Field et al. v. Mans (94-967), 516 U.S. 59 (1995).
[ Souter ]
[ Ginsburg ]
[ Breyer ]
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No. 94-967


on writ of certiorari to the united states court of appeals for the first circuit

[November 28, 1995]

Justice Ginsburg , concurring.

Mans prevailed on the reliance issue before the bankruptcy, district, and appellate courts on the basis of then governing Circuit precedent. See In re Burgess, 955 F. 2d 134, 140 (CA1 1992) (creditor required to prove that its reliance was reasonable). With the Circuit law on reliance solidly in his favor, Mans understandably did not advance in the lower courts the argument that the debt was not "obtained by" fraud. When the "reliance must be reasonable" rule solid in the Circuit was challenged in this Court, however, Mans raised the causation point as an alternate justification for the judgment in his favor. See Brief for Respondent 32-33 (argument heading V. reads: "Since the credit here was not `obtained by' the alleged fraud, petitioners have failed to meet the [causation] requirement of 523(a)(2)(A)"); Tr. of Oral Arg. 43 ("[U]nder the clear language of the statute, there has to be an extension of credit in connection with the fraud. It has to be obtained by the fraud . . . ."). [n.*]

At oral argument, the following exchange between the Court and the Fields' attorney occurred:

"QUESTION: . . . Suppose the debtor here had simply transferred th[e] property without saying one word to the creditor. . . . [W]ould [the debt] then be dischargeable? There would be no representation at all, just in violation of the agreement the debtor sells the property . . . . Dischargeable, right?

"MR. SEUFERT: While [those are] not the facts of this case, I would agree with you, it would be dischargeable." Id., at 8-9.

It bears consideration whether a debt that would have been dischargeable had the debtor simply transferred the property, in violation of the due on sale clause with never a word to the creditor, nonetheless should survive bankruptcy because the debtor wrote to the creditor of the prospect, albeit not the actuality, of the transfer. Because this Court is not positioned to provide a first view on questions of this order, I express no opinion on the appropriate resolution of the unsettled causation ("obtained by") issue.


* Mans appeared pro se in the lower courts; he was represented by counsel in this Court.