3.1.3 Concluding remarks

The most important feature of this judgment for the rest of this paper, is that the judgment illustrates that policy arguments such as preventing homelessness can outweigh the interest of the creditors in bankruptcy (embodied by the establishment of the concursus creditorum) and hence provide an exception to the ‘first come’-rule, despite the fact that these are core principles of property/insolvency law.1 In the context of bankruptcy, the idea of the concursus creditorum and its first-come rule seem so impenetrable that there is hardly any point in challenging it. Instead of deciding in favour of the creditors or the buyer on the basis of the merits of their respective claims, the fixation principle seems to completely block out the possibility of discussing its merits. This all or nothing approach is hard to justify, especially given that the question whether an interest is proprietary or not, often depends on timing. To illustrate this, consider the English cases of Re Goldcorp Exchange Ltd and Re London Wine Company (Shippers) Ltd, in which the buyers were erroneously under the impression that ownership had already passed to them, with disastrous consequences when faced with the bankruptcy of the seller. For this reason, Worthington has compared the process of winding up a bankrupt estate as a game of musical chairs, because the relative positions of the parties at the time the music stops (the fixation principle kicks in) is crucial to their happiness.2 Worthington, therefore, pleads for a different approach that shifts the focus from doctrinal arguments to policy arguments. Sarrahwitz illustrates that policy arguments may in fact provide a deviation from the fixation principle. The judgment also proves that policy arguments may justify the existence of vacuum instruments, even though parties themselves have not explicitly chosen for such an instrument. This makes sense: from a policy perspective, the position of ms Sarrahwitz or mr Martiz is irrelevant. It is homelessness as a problem for society as a whole which must be tackled with a constitutional remedy.3