That one, observes Jean-Pierre after she’s closed the door, she’ll definitely do everything she can. I’m not saying she’ll make it, because with 950 euros a month, two kids on her hands, and the price of gas when you need your car to get to work, plus her expenses going up and housing subsidies going down—well, I wonder how she or any of them manage to survive. They make me laugh, those people who say a repayment schedule is too easy—your debts are now gone, you’re home free—when life is actually hell because all you do for ten years is pay and pay, it’s impossible to save or borrow anything or buy even the tiniest luxury, and things are calculated so tightly that there’s no room for error: the slightest unforeseen expense is catastrophic. The car breaks down, you’re dead. Most of the people who come here, let’s face it, they’ll be back. Her, I hope not, but now take this couple: just look at this list.
There are a good twenty creditors on the cover of M. and Mme L.’s dossier: the usual banks, moneylenders, credit companies, but also garage owners, small businessmen—they’ve run up tabs everywhere and although the individual amounts are all small, the total is impressive. The couple comes in; they’re both in their thirties. He’s emaciated, ashen, his face constantly twitching, while she’s chubby, with blotchy skin. Mme A. had seemed on the verge of tears throughout her hearing, but this woman seems well beyond that, sunk in apathy. They’ve recently separated but are facing their creditors together. She’s kept the apartment, where she lives with their four children; he sleeps in their broken-down car. Lately she’d been working as a waitress and he as a door-to-door salesman, trying to sell fire extinguishers weighing well over a hundred pounds to elderly people who couldn’t even lift them. He’s been let go because he wasn’t making enough sales and she couldn’t go on because their car quit running, her shift ended late at night, and there was no bus to get home. They’re both HIV positive. With massive debt, their resources reduced to social services, and their hopes for a “return to better times” (to use the current legal catchphrase) at just about zero, the question is why they weren’t prodded into personal bankruptcy, which would write off all their debts in accordance with the Borloo Law, rather than sent to the overindebtedness commission, which can’t go as far as that. They owe close to 20,000 euros. Their ability to repay has been evaluated, God knows how, at 31 euros a month. That’s enough to set up a schedule over 120 months that hasn’t the slightest chance of being followed. But that’s fine with this couple, who are clearly exhausted; all they want is a truce, a few weeks safe from the collection agencies that despite their obvious insolvency have brought out the big guns: the bright red final-notice envelopes in their mailbox, the neighbors obligingly informed of their difficulties, and even the visit to the children on Wednesday afternoon, when school lets out early, to tell them to pass on the message to Mama and Papa: If they don’t pay what they owe, you’ll be thrown out of your home. Mama and Papa love you, they don’t want you to sleep in the street, so ask them to pay what they owe and maybe they’ll listen to you, their own children.
Perhaps you think I’m overdoing it, says Jean-Pierre, but that’s really what happens, and the worst part is that the poor bastards who do this crappy work are in trouble themselves. He sees them come up before the commission week after week, and if he asks what they do for a living, that’s it: they work part-time for collection agencies—and when his jaw drops they don’t even understand why. So Jean-Pierre asks M. and Mme L. if personal bankruptcy wouldn’t be better for them, seeing as it would dispose of all their debts, but they say no, they’ve already put together a dossier, they’re too tired to start over. Jean-Pierre sighs and says, Fine. But have you really looked at your repayment schedule? You do understand that you have to repay 31 euros every month? Yes, they reply, and I have the feeling he could have said 310 or 310,000 euros, they’d have still said yes. Before letting them leave, Jean-Pierre tries to ascertain whether the social services are really following up on them, whether there are people the couple can talk to, and they say yes, yes, then leave as if they can’t stand to be in that room a moment longer, having to answer these questions and participate in one of life’s crueler rituals of humiliation. Their plan for getting out of debt had been sent to all their creditors, along with a formal notice of that day’s hearing. Only one of the credit companies has contested the plan, but without sending a representative to the hearing, having probably and with reason considered their cause lost in advance. When the clerk goes to get the next people, however, she returns in some surprise with a gentleman in a checked shirt who has also turned up for the L. hearing. He’d received the notice, so he came. He works for Intermarché, the chain supermarket, which is suing over two bad checks for 280 euros. When I hear that, I think, Intermarché can certainly afford to lose 280 euros, but as usual things aren’t that simple, because in this case “Intermarché” means a superette franchisee in Saint-Jean-de-Bournay, a village not far from Rosier, and the man in the checked shirt is not at all a heartless representative of the huge chain but a poor guy who personally has to take the hit when checks bounce and who’s now out 280 euros. He’s just encountered the delinquent couple as they left, has recognized them, and, with a rueful look, admits, It’s true they don’t seem too well off. You said it, confirms Jean-Pierre with a sigh, so I’m not going to lie to you. Here’s the situation: they have a long list of creditors, almost no income, four children, so … So? repeats the franchisee. So you were sent their repayment schedule yourself. The Banque de France has proposed paying certain claims and writing off the others. After a silence, the franchisee says, Ah … that’s one solution, I guess. A solution he obviously finds unpalatable, and he seems particularly shocked to hear it defended by a judge. Jean-Pierre then rises and, carrying the schedule, goes around the table to sit next to the franchisee and explain something: Mind you, it’s not hopeless. The schedule covers 120 months, which seems a bit ambitious to me, frankly, given the precariousness of their lives. But you see, what’s on offer for you is not a simple write-off. The offer is, nothing at all for 53 months, while they pay off the main creditors, and then 31 euros for the next nine months. It’s not impossible that you could recuperate your money in a little over five years. I can’t promise you this, I don’t know where they’ll be in five years, but it’s possible. The franchisee leaves not exactly reassured but not disgusted, either.
Étienne learned to be a juge d’instance at Jean-Pierre’s side. Deep down, they were in agreement. They thought credit companies went too far and they didn’t mind when they got a chance to give them a hard time. But as judges they were basically tinkering, dealing with matters on a case-by-case basis, without trying to establish jurisprudence.fn1 Then Étienne learned that another juge d’instance, Philippe Florès, had made his courtroom in Niort a model of consumer protection. Étienne knows his own worth, does not pretend to be modest, and that’s why—he says—he is never afraid to ask when he doesn’t know or to copy others who know better than he does. He therefore contacted Florès and began to apply his methods, which were more systematic than those of Jean-Pierre.
Florès had finished the ENM at the same time as Étienne but had become a juge d’instance right away, just when the overindebtedness commissions were being set up. And in spite of or because of the fact that he came from a poor family, the commissions had shocked Florès, too. They went against everything he’d been taught for years about respecting contracts and understanding that the law isn’t made for idiots who don’t read what they sign. On that last point, he quickly changed his mind: the law is also made for idiots, and for the ignorant, and for everyone who has, yes, signed a contract but who has also been royally screwed.
There was one law on the books, though, that did try to limit predatory contracts: the Scrivener Law of 1978, a basically social-democratic measure that limited—in connection with certain credit transactions—the sacrosanct powers of contracts.
In pure orthodox economic reasoning, people are free, equal, and grown-up e
nough to enter into agreements with one another without having the state get involved, and a landlord has a perfect right to offer his tenant a lease that allows him to evict the tenant or double his rent whenever he wants, to require that he turn off the lights at seven every evening or wear a nightshirt instead of pajamas—and as long as the tenant has the corresponding right to reject the lease, all is well. The law, however, takes reality into account: the parties are not actually as free and equal as free market ideology claims. One owns, the other asks; one has a choice, the other less so—which is why landlord-tenant leases are regulated, and loans as well. On the one hand, credit must be encouraged because it fuels the economy; on the other, people must be protected from exploitation because that degrades the social contract. The Scrivener Law therefore declares abusive all clauses that render a contract unconscionable and imposes upon the lender, since he’s the one drawing it up, a number of formal requirements, set phrases, obligatory clauses, standards of legibility and clarity—in short, a few rules aimed at ensuring that the borrower at least understands what he’s getting into.
The problem with the Scrivener Law was that the consumer credit companies it was intended to regulate didn’t respect it and the consumers it was supposed to protect knew nothing about it. Florès knew it backward and forward and unilaterally decided, off in his corner, to make sure it was respected. Nothing more, but nothing less.
Most of his colleagues, opening the dossier of a big credit company like Cofinoga vs. Mme Whosis, simply determined that yes, Mme Whosis was no longer paying the monthly sums mandated by her contract; and yes, Cofinoga was entitled by contract to demand repayment of the principal plus interest and penalties; and yes, Mme Whosis was broke but the law is the law, contracts are contracts, and even though I might find it distressing I have no choice, as a judge, but to render an enforceable decision: to seize the delinquent party’s assets or direct her to the overindebtedness commission.
As for Florès, he would hardly glance at what Mme Whosis owed but would zero in on the contract, in which he often found abusive clauses and almost always spotted technical irregularities. For example, the law requires a contract to be set in eight-point type; this one wasn’t. By law its renewal must be offered by letter; that hadn’t happened. Florès had drawn up a little chart of the most common irregularities; he would check them off and, at the hearing, declare: This contract is worthless. Cofinoga’s lawyer would gape at him, and if he had the nerve he’d reply, Monsieur le Président, it’s none of your business. It’s the responsibility of the defaulting party—or her lawyer, if she has one—to raise such objections, but you cannot do so in her stead. File an appeal, Florès would reply.
In the meantime, he would grant Cofinoga the right to reclaim its capital, but not the interest and penalties. Well, normally the borrower’s payments are first applied to the interest, not the capital. But if the judge decides that he must repay only the capital and that what he has already repaid is capital, the judge might find himself telling the borrower, You no longer owe (let’s say) 1,500 euros, you owe 600. And sometimes it would be nothing at all, and sometimes Cofinoga even owed the borrower money. Mme Whosis would faint with joy.
Philippe Florès, in Niort, pioneered that legal tactic. Étienne, in Vienne, was soon following suit. (I’d written “matching him,” but Étienne wrote in the margin of the manuscript, “That’s stretching it!” Duly noted.) He applied such remedies to his heart’s content in civil proceedings and especially in those concerning overindebtedness, where his passion for ferreting out irregularities and declaring the forfeiture of interest radically changed the deal. From the unfortunate debtor’s point of view, there’s a great difference between being told that one’s financial situation is so untenable that the only option is to write off what one owes, and hearing, You have been wronged and I will remedy this wrong. That’s much pleasanter, both to hear and to say, and Étienne did not deprive himself of that pleasure. Besides, once the total debt was reduced, it became possible to put together repayment schedules that were infinitely more realistic. There again, it was up to the judge to decide who would be reimbursed first, who might be repaid later, if possible, and who would get nothing. The decision was essentially political. The reason some got nothing was not simply because there were no funds available but also because they did not deserve reimbursement. Because they had behaved badly, because they were the bad guys, because it’s only right that the swindler should sometimes get swindled. Of course, Étienne doesn’t state matters that crudely. Regarding the creditors, he prefers to distinguish between those who will be seriously hurt by the denial of their claim and those who will suffer less: between the small garage owner, the private moneylender, the modest franchisee in Saint-Jean-de-Bournay, who, if they are not paid, could themselves fall into financial ruin, and the big lending institutions and insurance companies, which factor the risk of nonpayment into all their contracts anyway. The rationale that Étienne prefers is that the small tradesman, the garage owner, the franchisee, once burned, might become mistrustful, no longer willing to give anyone a break, and that the social fabric would be that little bit more frayed. He says that before anything else, his job as a judge is to help safeguard the bonds of society, so that people can continue to live together.
Still, even Jean-Pierre was beginning to think Étienne was overdoing it. Half jokingly, he called him Robespierre and the little pinko judge. It’s too easy, he said, and above all it isn’t a judge’s job to divide the world into cynical big corporations and poor naïve victims—and then go all out to serve only those victims. Étienne countered by echoing Florès: I’m only applying the law. And in fact he was applying it, but in his own way and in the spirit of a text that had impressed him, Oswald Baudot’s controversial “Harangue to New Magistrates,” which offers judges this counsel (and here I paraphrase): Be partial. To maintain the balance between the strong and the weak, the rich and the poor, who do not weigh the same, tip the balance a little to one side. Incline more favorably toward the wife than the husband, the debtor than the creditor, the worker than the boss, the injured than the injurer’s insurance company, the thief than the police, the litigant than justice. The law may be interpreted; it will say what you want it to say. Between the robber and the robbed, do not be afraid to punish the robbed.
As for the lawyers for the banks and credit companies, they left hearings both crestfallen and furious, forced to explain to their clients that the reason they’d lost, when they used to win all such cases, was because there was a son of a bitch in the courtroom in Vienne, some one-legged judge who measured font sizes and said, Sorry, it isn’t eight-point type, so bye-bye interest and penalties. If the eight-point ploy didn’t work, he’d come up with something else. No contract found favor in his eyes. Elsewhere in the département, in Bourgoin, there was a tribunal d’instance where the judge operated totally differently: creditors always left his hearings with a smile. The lawyers began scrambling to get around the territorial assignments and bring their cases before that understanding man. Hard on the poor, soft on the rich, Étienne used to joke, but that’s certainly not how the judge in Bourgoin saw himself; he would have said the same thing as Étienne and Florès: I apply the law. And his way of applying it, in 1998 or 1999, was still largely the norm. The judges in Niort and Vienne were considered, even by their colleagues, as leftists and weirdos. And yet, things were beginning to change.
According to Florès, only about 2 percent of credit card customers default on their loans. It’s a marginal amount, already accounted for, no big deal. What is a big deal is the risk of contamination. The credit companies are well aware that 90 percent of their contracts violate the law, technically speaking. As long as France has just two or three judges who pick up on this and use it to deny them interest income, that’s all right, and such decisions are often reversed on appeal in any case. If there are fifty or a hundred judges like that, it’s a different story. One that’s going to get very expensive.
Étienne felt a thrill of triumph one day when representatives of a large credit company asked to meet him, and he gave them an appointment. Four men arrived at his office: two company managers, one of whom had come all the way from Paris, and two lawyers from Vienne. I would like to describe their meeting as if it were a scene in a detective novel. It would begin quietly, with an exchange of banter: So you’re the guy who’s gumming up the works? But the jokes turn vaguely menacing, then give way to blunt threats and attempted bribery. One of the visitors, in a suit and fedora, talks while striding up and down. The one-legged judge keeps cool, biding his time. The gunsels hover silently in the background. Finally, the man who’s talking stops in front of the judge and mutters through clenched teeth, I’m going to crush you. He picks up some small ornament, breaks it with his pale, nervous hands, and drops the pieces onto the desk, warning, I’m going to crush you like this.
Actually, that’s not at all what happened. The conversation was polite and professional. The visitors acknowledged their discomfort with the decisions coming from Vienne and their fears of just what Florès was hoping for, that the whole thing would snow-ball. Besides which, they saw these verdicts as dangerous: if matters continued in that vein, credit would become impossible, and then where would everyone be? They’d come not to expound on judicial disagreements, however, but to seek advice. What could they do to avoid any future reversals? How could they do things according to the rules?
Other Lives But Mine Page 13