Moratoria and the Soldiers' and Sailors' Civil Relief Act

• DOI: 10.1177/000271624322700105
• Published date: 01 May 1943
• Author: Robert H. Skilton
• Date: 01 May 1943
• Subject Matter: Articles

Moratoria and the Soldiers’ and Sailors’ Civil Relief Act
By ROBERT H. SKILTON
F OR those men who upon induction and other charges during the period of
into the armed forces leave behind
relief.
Its purpose (as distinguished
them existing financial obligations or
from that of bankruptcy legislation) is
dependents, national service may entail
to preserve the status quo ante. Bank-
especial hardships. As the number of
ruptcy cancels debts, in return for the
such men grows, their problem becomes
debtor’s property, or most of it. This
a social problem. The necessity for
moratorium continues the debts, and
making special arrangements for them
allows the debtor to keep his property
is clear.
The losses that would nor-
in the meantime.
mally result from default-the surren-
der of a home by mortgage foreclosure,
BACKGROUND OF THE CIVIL
the cancellation of life insurance because
RELIEF ACT
of failure to pay premiums-must be
prevented, or at least mitigated. Com-
The principle of moratory relief in
munity concepts of fairness combine
unusual times is old. It is one of the
with practical dictates of expediency.
responses of government to an emer-
The morale of men in the service would
gency situation. War is the chief oc-
be jeopardized if they were futile wit-
casion for such action: moratoria for
nesses to the destruction of their inter-
soldiers and sailors have been very
ests by unreasonable creditors-a de-
frequent. Domestic examples are not
struction attributable to no fault of their
hard to find.
own, but to the fact that their present
During the Civil War, creditors’ rights
income is inadequate to pay existing
against soldiers and sailors were sus-
claims.
pended in many states.2
2
The statutes
Governmental intervention on behalf
varied widely. Some statutes prevented
of financially embarrassed servicemen
the commencement of civil suit against
has taken the form of the Soldiers’ and
members of the armed forces; others
Sailors’ Civil Relief Act.’ This legisla-
permitted commencement of suit but
tion is a type of moratorium, providing
prevented trial and judgment; others
for the suspension in proper cases of
permitted commencement, trial, and
the enforcement of a serviceman’s civil
judgment, but prevented execution of
obligations. Let it be understood at
judgment. Frequently the creditor’s
the outset that this moratorium (as all
judicial remedies only were suspended:
of its kind) is a palliative, not a cure-
although the debtor had gone to war,
designedly temporary-given in the
it was still possible for a mortgagee to
hope that the difficulties will be less
foreclose upon a defaulted mortgage by
if deferred till the end of the war. It
exercising his power to sell out of court,
does not provide (with a single excep-
2 Laws Ala. 1861,
tion) for the cancellation of
p. 36; Laws Ala. 1863,
obligations.
p.
5; Laws Ga., 1861, p. 61; Laws Ia. 1862, p.
It does not stop the accrual of interest
128;
Laws Ia. 1862, Sp. Ses., p. 8; Laws Ky.
1861-63, p. 67; Acts and Resolves Me. 1861,
1
Some of the ideas herein expressed have
p. 44; Laws Minn. 1865, p. 58; Laws Mo. 1861,
previously appeared in an article by the writer
p. 46; Laws N. Y. 1864, p. 1332; Laws Oh.
entitled "The Soldiers’ and Sailors’ Civil Relief
1861, p. 113; Laws Pa. 1861, p. 408; Laws Pa.
Act of 1940 and the Amendments of 1942," 91
1862, p. 484; Acts and Resolves R. I. Sp. Ses.
U. of Pa. Law Rev. 177 (1942).
1862, p. 157; Gen. Laws Wisc. 1861, p. 319.
28



ann.sagepub.com
Downloaded from
at SAGE PUBLICATIONS on December 4, 2012

---

29
or for a landlord to distrain on his ten-
relief to absolute relief-made an
ant’s goods. In general, the statutes
anomalous situation. A national army
were absolute in form.
The fact of
was composed of men having widely
membership in the armed forces was
differing civil rights and duties, accord-
enough to entitle the defendant to what-
ing to the state of their residence. It
ever relief was afforded.
Withholding
was clearly a case where national leg-
or granting relief was not a matter of
islation was required.
Accordingly,
discretion with courts.
toward the end of the war, the Fed-
Civil War moratoria are, therefore,
eral Congress passed the Soldiers’ and
examples of purely legislative moratoria:
Sailors’ Civil Relief Act of 1918.4
4
In
relief available to all within the class
certain respects, the statute was simi-
defined by the legislature. Their gen-
lar to state statutes already enacted
eralities had both defect and merit.
in Mississippi and New Jersey, but
They gave a means of evasion to service-
there were additional clauses providing
men with money but no desire to pay.
for protection of life insurance policies.
They were a sword as well as a shield.
In general, the principle of discretionary
On the other hand, they were easy to
relief was adopted.
understand, easy to administer.
The 1918 act was too short-lived to
The moratoria enacted by state legis-
provide much background of experience,
latures during the first World War for
but it seems to have been well received.
the...