Bartenwerfer v. Buckley

PRELIMINARY PRINT
Volume 598 U. S. Part 1
Pages 69–84
OFFICIAL REPORTS
OF
THE SUPREME COURT
February 22, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
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OCTOBER TERM, 2022 69
Syllabus
BARTENWERFER v. BUCKLEY
certiorari to the united states court of appeals for
the ninth circuit
No. 21–908. Argued December 6, 2022—Decided February 22, 2023
Kate and David Bartenwerfer decided to remodel the house they jointly
owned in San Francisco and to sell it for a proft. David took charge of
the project, while Kate remained largely uninvolved. They eventually
sold the house to respondent Kieran Buckley. In conjunction with the
sale, Kate and David attested that they had disclosed all material facts
related to the property. After the purchase, Buckley discovered sev-
eral defects that the Bartenwerfers had failed to disclose. Buckley
sued in California state court and won, leaving the Bartenwerfers
jointly responsible for more than $200,000 in damages. Unable to pay
that judgment or their other creditors, the Bartenwerfers fled for
Chapter 7 bankruptcy. Buckley then fled an adversary complaint in
the bankruptcy proceeding, alleging that the debt owed him on the
state-court judgment was nondischargeable under the Bankruptcy
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Code's exception to discharge of “any debt . . . for money . . . to the
extent obtained by . . . false pretenses, a false representation, or actual
fraud.” 11 U. S. C. § 523(a)(2)(A). The Bankruptcy Court found that
David had committed fraud and imputed his fraudulent intent to Kate
because the two had formed a legal partnership to renovate and sell
the property. The Bankruptcy Appellate Panel disagreed as to Kate's
culpability, holding that § 523(a)(2)(A) barred her from discharging the
debt only if she knew or had reason to know of David's fraud. On re-
mand, the Bankruptcy Court determined that Kate lacked such knowl-
edge and could therefore discharge her debt to Buckley. The Bank-
ruptcy Appellate Panel affirmed. The Ninth Circuit reversed in
relevant part. Invoking Strang v. Bradner, 114 U. S. 555, the court held
that a debtor who is liable for her partner's fraud cannot discharge that
debt in bankruptcy, regardless of her own culpability.
Held: Section 523(a)(2)(A) precludes Kate Bartenwerfer from discharging
in bankruptcy a debt obtained by fraud, regardless of her own culpabil-
ity. Pp. 74–83.
(a) Kate (hereinafter, Bartenwerfer) disputes a straightforward read-
ing of § 523(a)(2)(A)'s text. Bartenwerfer argues that an ordinary Eng-
lish speaker would understand that “money obtained by fraud” means
money obtained by the individual debtor's fraud. This Court dis-
agrees. The passive voice in § 523(a)(2)(A) does not hide the relevant
70 BARTENWERFER v. BUCKLEY
Syllabus
actor in plain sight, as Bartenwerfer suggests—it removes the actor
altogether. Congress framed § 523(a)(2)(A) to “focu[s] on an event that
occurs without respect to a specifc actor, and therefore without respect
to any actor's intent or culpability.” Dean v. United States, 556 U. S.
568, 572. It is true that context can confne a passive-voice sentence to
a likely set of actors. See, e. g., E. I. du Pont de Nemours & Co. v.
Train, 430 U. S. 112, 128–129. But the legal context relevant to § 523(a)
(2)(A)—the common law of fraud—has long maintained that fraud liabil-
ity is not limited to the wrongdoer. Understanding § 523(a)(2)(A) to
refect “agnosticism” as to the identity of the wrongdoer is consistent
with the age-old rule of fraud liability.
Bartenwerfer points out that “ ``exceptions to discharge should be con-
fned to those plainly expressed.' ” Bullock v. BankChampaign, N. A.,
569 U. S. 267, 275. The Court, however, has never used this principle
to artifcially narrow ordinary meaning, invoking it instead to stress
that exceptions should not extend beyond their stated terms. See, e. g.,
Gleason v. Thaw, 236 U. S. 558, 559–562.
Bartenwerfer also seeks support from § 523(a)(2)(A)'s neighboring
provisions in subparagraphs (B) and (C), both of which require some
culpable action by the debtor herself. Bartenwerfer claims that these
neighboring provisions make explicit what is unstated in (A). This ar-
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gument turns on its head the rule that “ ``[w]hen Congress includes par-
ticular language in one section . . . but omits it in another section of the
same Act,' ” the Court generally takes “the choice to be deliberate.”
Badgerow v. Walters, 596 U. S. –––, –––. If there is an inference to be
drawn here, the more likely one is that (A) excludes debtor culpability
from consideration given that (B) and (C) expressly hinge on it. Bar-
tenwerfer suggests it would defy credulity to think that Congress would
bar debtors from discharging liability for fraud they did not personally
commit under (A) while allowing debtors to discharge debt for (poten-
tially more serious) fraudulent statements they did not personally make
under (B). But the Court offered a possible answer for this disparity
in Field v. Mans, 516 U. S. 59, 76–77. Whatever the rationale, it does
not defy credulity to think that Congress established differing rules for
(A) and (B). Pp. 74–79.
(b) Any remaining doubt about the textual analysis is eliminated by
this Court's precedent and Congress's response to it. In Strang v.
Bradner, 114 U. S. 555, the Court held that the fraud of one partner
should be imputed to the other partners, who “received and appro-
priated the fruits of the fraudulent conduct.” Id., at 561. The Court
so held despite the fact that the relevant 19th-century discharge excep-
tion for fraud disallowed the discharge of debts “created by the fraud
or embezzlement of the bankrupt.” 14 Stat. 533 (emphasis added).
Cite as: 598 U. S. 69 (2023) 71
Syllabus
And when Congress next overhauled bankruptcy law, it deleted the
phrase “of the bankrupt” from the discharge exception for fraud. The
unmistakable implication is that Congress embraced Strang's holding.
See Ysleta del Sur Pueblo v. Texas, 596 U. S. –––, –––. Pp. 79–81.
(c) Finally, Bartenwerfer insists that the preclusion of faultless debt-
ors from discharging liabilities run up by their associates is inconsistent
with bankruptcy law's “fresh start” policy. But the Bankruptcy Code
is not focused on the unadulterated pursuit of the debtor's interest, and
instead seeks to balance multiple, often competing interests. Barten-
werfer's fairness-based critiques also miss the fact that § 523(a)(2)(A)
does not defne the scope of one's liability for another's fraud. Section
523(a)(2)(A) takes the debt as it fnds it, so if California did not extend
liability to honest partners, § 523(a)(2)(A) would have no role here. And
while Bartenwerfer paints a picture of liability being imposed on hapless
bystanders, fraud liability generally requires a special relationship
to the wrongdoer and, even then, defenses to liability are available.
Pp. 81–83.
860 Fed. Appx. 544, affrmed.
Barrett, J., fled an opinion for a unanimous Court. Sotomayor, J.,
fled a concurring opinion, in which Jackson, J., joined, post, p. 83.
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Sarah M. Harris argued the cause for petitioner. With
her on the briefs were Lisa S. Blatt, Iain Angus MacDon-
ald, Reno Fernandez, and Anna-Rose Mathieson.
Zachary D. Tripp argued the cause for respondent. With
him on the brief were Robert B. Niles-Weed and Janet
Marie Brayer.
Erica L. Ross argued the cause for the United States.
With her on the brief were Solicitor General Prelogar, Prin-
cipal Deputy Assistant Attorney General Boynton, Deputy
Solicitor General Gannon, Michael S. Raab, and Sushma
Soni.*
*Briefs of amici curiae urging reversal were fled for Law Professors
by Peter V. Marchetti; for the National Consumer Bankruptcy Rights Cen-
ter et al. by Tara Twomey and Jacob T. Spencer; for Hon. Judith Fitzgerald
et al. by David R. Kuney; and for Robert E. Zuckerman by Kathryn M.
Davis.
A brief of amici curiae was fled for Lawrence Ponoroff et al. by Elaine
J. Goldenberg and J. Kain Day.
72 BARTENWERFER v. BUCKLEY
Opinion of the Court
Justice Barrett delivered the opinion of the Court.
The Bankruptcy Code strikes a balance between the inter-
ests of insolvent debtors and their creditors. It generally
allows debtors to discharge all prebankruptcy liabilities, but
it makes exceptions when, in Congress's judgment, the credi-
tor's interest in recovering a particular debt outweighs the
debtor's interest in a fresh start. One such exception bars
debtors from discharging any debt for money “obtained by
. . . fraud.” 11 U. S. C. § 523(a)(2)(A). The provision obvi-
ously applies to a debtor who was the fraudster. But some-
times a debtor is liable for fraud that she did not personally
commit—for example, deceit practiced by a partner or an
agent. We must decide whether the bar extends to this sit-
uation too. It does. Written in the passive voice, § 523(a)
(2)(A) turns on how the money was obtained, not who com-
mitted fraud to obtain it.
I
Page Proof
In 2005, Kate Pending
Bartenwerfer Publication
and her then-boyfriend, David
Bartenwerfer, jointly purchased a house in San Francisco.
Acting as business partners, the pair decided to remodel the
house and sell it at a proft. David took charge of the proj-
ect. He hired an architect, structural engineer, designer,
and general contractor; he monitored their work, reviewed
invoices, and signed checks. Kate, on the other hand, was
largely uninvolved.
Like many home renovations, the Bartenwerfers' project
was bumpier than anticipated. Still, they managed to get
the house on the market, and Kieran Buckley bought it. In
conjunction with the sale, the Bartenwerfers attested that
they had disclosed all material facts relating to the property.
Yet after the house was his, Buckley discovered several de-
fects that the Bartenwerfers had not divulged: a leaky roof,
defective windows, a missing fre escape, and permit prob-
lems. Alleging that he had overpaid in reliance on the Bar-
tenwerfers' misrepresentations, Buckley sued them in Cali-
Cite as: 598 U. S. 69 (2023) 73
Opinion of the Court
fornia state court. The jury found in Buckley's favor on his
claims for breach of contract, negligence, and nondisclosure
of material facts, leaving the Bartenwerfers jointly responsi-
ble for more than $200,000 in damages.
The Bartenwerfers were unable to pay Buckley, not to
mention their other creditors. Seeking relief, they fled for
Chapter 7 bankruptcy, which allows debtors to get a “fresh
start” by discharging their debts. Marrama v. Citizens
Bank of Mass., 549 U. S. 365, 367 (2007) (internal quotation
marks omitted). While that sounds like complete relief,
there is a catch—not all debts are dischargeable. The Code
makes several exceptions to the general rule, including the
one at issue in this case: Section 523(a)(2)(A) bars the dis-
charge of “any debt . . . for money . . . to the extent obtained
by . . . false pretenses, a false representation, or actual
fraud.”
Buckley fled an adversary complaint alleging that the
Page Proof Pending Publication
money owed on the state-court judgment fell within this ex-
ception. After a 2-day bench trial, the Bankruptcy Court
decided that neither David nor Kate Bartenwerfer could dis-
charge their debt to Buckley. Based on testimony from the
parties, real-estate agents, and contractors, the court found
that David had knowingly concealed the house's defects from
Buckley. And the court imputed David's fraudulent intent
to Kate because the two had formed a legal partnership to
execute the renovation and resale project.
The Ninth Circuit's Bankruptcy Appellate Panel agreed as
to David's fraudulent intent but disagreed as to Kate's. As
the panel saw it, § 523(a)(2)(A) barred her from discharging
the debt only if she knew or had reason to know of David's
fraud. It instructed the Bankruptcy Court to apply that
standard on remand, and, after a second bench trial, the
court concluded that Kate lacked the requisite knowledge of
David's fraud and could therefore discharge her liability to
Buckley. This time, the Bankruptcy Appellate Panel af-
frmed the judgment.
74 BARTENWERFER v. BUCKLEY
Opinion of the Court
The Ninth Circuit reversed in relevant part. In re Bar-
tenwerfer, 860 Fed. Appx. 544 (2021). Invoking our decision
in Strang v. Bradner, 114 U. S. 555 (1885), it held that a
debtor who is liable for her partner's fraud cannot discharge
that debt in bankruptcy, regardless of her own culpability.
860 Fed. Appx., at 546. Kate thus remained on the hook for
her debt to Buckley. Id., at 546–547. We granted certio-
rari to resolve confusion in the lower courts on the meaning
of § 523(a)(2)(A).1 596 U. S. ––– (2022).
II
A
“[W]e start where we always do: with the text of the stat-
ute.” Van Buren v. United States, 593 U. S. –––, ––– (2021).
Section 523(a)(2)(A) states:
“A discharge under section 727 . . . of this title does
not discharge an individual debtor from any debt . . .
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“(2) for money, property, services, or an extension, re-
newal, or refnancing of credit, to the extent obtained
by—
“(A) false pretenses, a false representation, or actual
fraud, other than a statement respecting the debtor's or
an insider's fnancial condition.”
By its terms, this text precludes Kate Bartenwerfer from
discharging her liability for the state-court judgment.
(From now on, we will refer to Kate as “Bartenwerfer.”)
First, she is an “individual debtor.” Second, the judgment
1
See, e. g., In re M.M. Winkler & Assoc., 239 F. 3d 746, 749 (CA5 2001)
(debts that arise from fraud cannot be discharged); In re Ledford, 970 F. 2d
1556, 1561 (CA6 1992) (no discharge if the debtor benefted from the fraud);
Sullivan v. Glenn, 782 F. 3d 378, 381 (CA7 2015) (a debt is nondischarge-
able only if the debtor knew or should have known of the fraud); In re
Walker, 726 F. 2d 452, 454 (CA8 1984) (same); In re Villa, 261 F. 3d 1148,
1151 (CA11 2001) (a debt cannot be discharged when fraud is imputed to
the debtor under agency principles).
Cite as: 598 U. S. 69 (2023) 75
Opinion of the Court
is a “debt.” And third, because the debt arises from the
sale proceeds obtained by David's fraudulent misrepresenta-
tions, it is a debt “for money . . . obtained by . . . false pre-
tenses, a false representation, or actual fraud.”
Bartenwerfer disputes the third premise. She admits
that, as a grammatical matter, the passive-voice statute does
not specify a fraudulent actor. But in her view, the statute
is most naturally read to bar the discharge of debts for
money obtained by the debtor's fraud.2 To illustrate, she of-
fers the sentence “Jane's clerkship was obtained through
hard work.” According to Bartenwerfer, an ordinary Eng-
lish speaker would understand this sentence to mean that
Jane's hard work led to her clerkship. Brief for Petitioner
20. Section 523(a)(2)(A) supposedly operates the same way:
An ordinary English speaker would understand that “money
obtained by fraud” means money obtained by the individual
debtor's fraud. Passive voice hides the relevant actor in
plain sight.
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We disagree: Passive voice pulls the actor off the stage.
At least on its face, Bartenwerfer's sentence conveys only
that someone's hard work led to Jane's clerkship—whether
that be Jane herself, the professor who wrote a last-minute
letter of recommendation, or the counselor who collated
the application materials. Section 523(a)(2)(A) is similarly
broad. Congress framed it to “focu[s] on an event that oc-
curs without respect to a specifc actor, and therefore with-
2
Buckley contends that Bartenwerfer has forfeited this argument be-
cause in her petition for a writ of certiorari and in the lower courts, she
asserted that § 523(a)(2)(A) bars discharge when the debtor “knew or
should have known” of her partner's fraud. We disagree. The question
presented is whether a debtor can be “subject to liability for the fraud of
another that is barred from discharge in bankruptcy . . . without any act,
omission, intent or knowledge of her own.” Pet. for Cert. i. Bartenwerf-
er's current argument—that the debt must arise from the debtor's own
fraud—is “fairly included” within that question and her position in the
lower courts. Supreme Court Rule 14.1(a); Yee v. Escondido, 503 U. S.
519, 534 (1992).
76 BARTENWERFER v. BUCKLEY
Opinion of the Court
out respect to any actor's intent or culpability.” Dean v.
United States, 556 U. S. 568, 572 (2009); B. Garner, Modern
English Usage 676 (4th ed. 2016) (the passive voice signifes
that “the actor is unimportant” or “unknown”). The debt
must result from someone's fraud, but Congress was “agnos-
ti[c]” about who committed it. Watson v. United States, 552
U. S. 74, 81 (2007).
It is true, of course, that context can confne a passive-
voice sentence to a likely set of actors. E. I. du Pont de
Nemours & Co. v. Train, 430 U. S. 112, 128–129 (1977). If
the dean of the law school delivers Bartenwerfer's hypotheti-
cal statement to Jane's parents, the most natural implication
is that Jane's hard work led to the clerkship. But in the
fraud-discharge exception, context does not single out the
wrongdoer as the relevant actor. Quite the opposite: The
relevant legal context—the common law of fraud—has long
maintained that fraud liability is not limited to the wrong-
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doer. Field v. Mans, 516 U. S. 59, 70–75 (1995) (interpreting
§ 523(a)(2)(A) with reference to the common law of fraud).
For instance, courts have traditionally held principals liable
for the frauds of their agents. McCord v. Western Union
Telegraph Co., 39 Minn. 181, 185, 39 N. W. 315, 317 (1888);
Tome v. Parkersburg Branch R. Co., 39 Md. 36, 70–71 (1873);
White v. Sawyer, 82 Mass. 586, 589 (1860); J. Story, Commen-
taries on the Law of Agency 465–467 (1839). They have also
held individuals liable for the frauds committed by their
partners within the scope of the partnership. Tucker v.
Cole, 54 Wis. 539, 540–541, 11 N. W. 703, 703–704 (1882); Al-
exander v. State, 56 Ga. 478, 491–493 (1876); Chester v. Dick-
erson, 54 N. Y. 1, 11 (1873); J. Story, Commentaries on the
Law of Partnership 161, 257–259 (1841). Understanding
§ 523(a)(2)(A) to refect the passive voice's usual “agnosti-
cism” is thus consistent with the age-old rule that individual
debtors can be liable for fraudulent schemes they did not
devise.
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Opinion of the Court
Searching for a way to defeat the natural breadth of the
passive voice, Bartenwerfer points to our observation that
“ ``exceptions to discharge “should be confned to those plainly
expressed.” ' ” Bullock v. BankChampaign, N. A., 569 U. S.
267, 275 (2013) (quoting Kawaauhau v. Geiger, 523 U. S. 57,
62 (1998)). This does not get her far. We have never used
this principle to artifcially narrow ordinary meaning, which
is what Bartenwerfer asks us to do. Instead, we have in-
voked it to stress that exceptions should not extend beyond
their stated terms. In Gleason v. Thaw, we held that “liabil-
ities for obtaining property” did not include an attorney's
services because services are not property. 236 U. S. 558,
559–562 (1915). In Kawaauhau, we concluded that medical
malpractice attributable to negligence or recklessness did
not amount to a “willful and malicious injury.” 523 U. S., at
59. And in Bullock, interpreting the discharge exception
“for fraud or defalcation while acting in a fduciary capacity,
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embezzlement, or larceny,” we applied the familiar noscitur
a sociis canon to hold that the term “defalcation” possessed
a mens rea requirement akin to those of “fraud,” “embezzle-
ment,” and “larceny.” 569 U. S., at 269, 274–275. In each
case, we reached a result that was “plainly expressed” by
the text and ordinary tools of interpretation. Our interpre-
tation in this case, which rests on basic tenets of grammar,
is more of the same.
Bartenwerfer also seeks support from § 523(a)(2)(A)'s
neighboring provisions, which both require action by the
debtor herself. Section 523(a)(2)(B) bars the discharge of
debts arising from the “use of a statement in writing—(i)
that is materially false; (ii) respecting the debtor's or an in-
sider's fnancial condition; (iii) on which the creditor to whom
the debtor is liable . . . reasonably relied; and (iv) that the
debtor caused to be made or published with intent to
deceive.” (Emphasis added.) Similarly, § 523(a)(2)(C) pre-
sumptively bars the discharge of recently acquired “con-
78 BARTENWERFER v. BUCKLEY
Opinion of the Court
sumer debts owed to a single creditor and aggregating more
than $500 for luxury goods or services incurred by an indi-
vidual debtor” and “cash advances aggregating more than
$750 . . . obtained by an individual debtor.” § 523(a)(2)(C)(i)
(footnote omitted; emphasis added). Unlike subparagraph
(A), the discharge exceptions in subparagraphs (B) and (C)
expressly require some culpable act on the part of the debtor.
According to Bartenwerfer, these provisions make explicit
what goes without saying in (A): The debtor's own fraud
must have given rise to the debt.
This argument fips the rule that “ ``[w]hen Congress in-
cludes particular language in one section of a statute but
omits it in another section of the same Act,' we generally
take the choice to be deliberate.” Badgerow v. Walters, 596
U. S. –––, ––– (2022) (quoting Collins v. Yellen, 594 U. S.
–––, ––– (2021)). As the word “generally” indicates, this
rule is not absolute. Context counts, and it is sometimes
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diffcult to read much into the absence of a word that is pres-
ent elsewhere in a statute. See, e. g., Field, 516 U. S., at 67–
69. But if there is an inference to be drawn here, it is not
the one that Bartenwerfer suggests. The more likely infer-
ence is that (A) excludes debtor culpability from consider-
ation given that (B) and (C) expressly hinge on it.
Bartenwerfer retorts that it would have made no sense for
Congress to set up such a dichotomy, particularly between
(A) and (B). These two provisions are linked: (A) carves
out fraudulent “statement[s] respecting the debtor's or an
insider's fnancial condition,” while (B) governs such state-
ments that are reduced to writing. In Bartenwerfer's view,
it “defes credulity” to think that Congress would bar debt-
ors from discharging liability for mine-run fraud they did not
personally commit while simultaneously allowing debtors to
discharge liability for (potentially more serious) fraudulent
statements they did not personally make. Brief for Peti-
tioner 23.
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Opinion of the Court
But in Field, we offered a possible answer for why (B)
contains a more debtor-friendly discharge rule than (A): Con-
gress may have “wanted to moderate the burden on individu-
als who submitted false fnancial statements, not because lies
about fnancial condition are less blameworthy than others,
but because the relative equities might be affected by prac-
tices of consumer fnance companies, which sometimes have
encouraged such falsity by their borrowers for the very pur-
pose of insulating their own claims from discharge.” 516
U. S., at 76–77. This concern may also have informed Con-
gress's decision to limit (B)'s prohibition on discharge to
fraudulent conduct by the debtor herself. Whatever the ra-
tionale, it does not “def[y] credulity” to think that Congress
established differing rules for (A) and (B). Brief for Peti-
tioner 23.
B
Our precedent, along with Congress's response to it, elimi-
Page Proof Pending Publication
nates any possible doubt about our textual analysis. In the
late 19th century, the discharge exception for fraud read as
follows: “[N]o debt created by the fraud or embezzlement of
the bankrupt . . . shall be discharged under this act.” Act
of Mar. 2, 1867, § 33, 14 Stat. 533 (emphasis added). This
language seemed to limit the exception to fraud committed
by the debtor herself—the position that Bartenwerfer advo-
cates here.
But we held otherwise in Strang v. Bradner. In that case,
the business partner of John and Joseph Holland lied to fel-
low merchants in order to secure promissory notes for the
beneft of their partnership. 114 U. S., at 557–558. After a
state court held all three partners liable for fraud, the Hol-
lands tried to discharge their debts in bankruptcy on the
ground that their partner's misrepresentations “were not
made by their direction nor with their knowledge.” Id., at
557, 561. Even though the statute required the debt to be
created by the fraud “of the bankrupt,” we held that the
80 BARTENWERFER v. BUCKLEY
Opinion of the Court
Hollands could not discharge their debts to the deceived mer-
chants. Id., at 561. The fraud of one partner, we ex-
plained, is the fraud of all because “[e]ach partner was the
agent and representative of the frm with reference to all
business within the scope of the partnership.” Ibid. And
the reason for this rule was particularly easy to see because
“the partners, who were not themselves guilty of wrong, re-
ceived and appropriated the fruits of the fraudulent conduct
of their associate in business.” Ibid.The next development—Congress's post-Strang legisla-
tion—is the linchpin.3 “This Court generally assumes that,
when Congress enacts statutes, it is aware of this Court's
relevant precedents.” Ysleta del Sur Pueblo v. Texas, 596
U. S. –––, ––– (2022). Section 523(a)(2) is no exception to
this interpretive rule. Lamar, Archer & Cofrin, LLP v. Ap-
pling, 584 U. S. –––, ––– – ––– (2018). So if Congress had
reenacted the discharge exception for fraud without change,
we would assume that it meant to incorporate Strang's inter-
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pretation. Appling, 584 U. S., at ––– – –––; Lorillard v.
Pons, 434 U. S. 575, 580 (1978).
But Congress went even further than mere reenactment.
Thirteen years after Strang, when Congress next overhauled
bankruptcy law, it deleted “of the bankrupt” from the dis-
charge exception for fraud, which is the predecessor to the
modern § 523(a)(2)(A). Act of July 1, 1898, § 17, 30 Stat. 550(“A discharge in bankruptcy shall release a bankrupt from
all of his provable debts, except such as . . . are judgments
in actions for frauds, or obtaining property by false pre-
tenses or false representations, or for willful and malicious
3
Bartenwerfer asserts that we should ignore Strang because, as a prod-
uct of the Swift v. Tyson era, it turned on the Court's understanding of
the general common-law rule rather than its interpretation of the statu-
tory text. 16 Pet. 1 (1842). This argument is a detour we need not take.
Whatever Strang's rationale, it constituted an important part of the back-
ground against which Congress drafted the current discharge exception
for fraud.
Cite as: 598 U. S. 69 (2023) 81
Opinion of the Court
injuries to the person or property of another”). By doing
so, Congress cut from the statute the strongest textual hook
counseling against the outcome in Strang. The unmistak-
able implication is that Congress embraced Strang's hold-
ing—so we do too.
C
In a last-ditch effort to persuade us, Bartenwerfer invokes
the “fresh start” policy of modern bankruptcy law. Preclud-
ing faultless debtors from discharging liabilities run up by
their associates, she says, is inconsistent with that policy, so
§ 523(a)(2)(A) cannot apply to her. A contrary holding would
be a throwback to the harsh days when “debtors faced ``per-
petual bondage to their creditors,' surviving on ``a miserable
pittance [and] dependent upon the bounty or forbearance of
[their] creditors.' ” Brief for Petitioner 16 (quoting 3 J.
Story, Commentaries on the Constitution of the United
States 5 (1833)). The same Congress that “champion[ed]”
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the fresh start could not also have shackled honest debtors
with liability for frauds that they did not personally commit.
Brief for Petitioner 37.
This argument earns credit for color but not much else.
To begin, it characterizes the Bankruptcy Code as focused
on the unadulterated pursuit of the debtor's interest. But
the Code, like all statutes, balances multiple, often compet-
ing interests. Section 523 is a case in point: Barring certain
debts from discharge necessarily refects aims distinct from
wiping the bankrupt's slate clean. Perhaps Congress con-
cluded that these debts involved particularly deserving cred-
itors, particularly undeserving debtors, or both. Regard-
less, if a fresh start were all that mattered, § 523 would not
exist. No statute pursues a single policy at all costs, and
we are not free to rewrite this statute (or any other) as if it
did. Azar v. Allina Health Services, 587 U. S. –––, –––
(2019).
It also bears emphasis—because the thread is easily lost
in Bartenwerfer's argument—that § 523(a)(2)(A) does not de-
82 BARTENWERFER v. BUCKLEY
Opinion of the Court
fne the scope of one person's liability for another's fraud.
That is the function of the underlying law—here, the law of
California. Section 523(a)(2)(A) takes the debt as it fnds it,
so if California did not extend liability to honest partners,
§ 523(a)(2)(A) would have no role to play. Bartenwerfer's
fairness-based critiques seem better directed toward the
state law that imposed the obligation on her in the frst place.
And while Bartenwerfer paints a picture of liability im-
posed willy-nilly on hapless bystanders, the law of fraud does
not work that way. Ordinarily, a faultless individual is re-
sponsible for another's debt only when the two have a special
relationship, and even then, defenses to liability are avail-
able. For instance, though an employer is generally ac-
countable for the wrongdoing of an employee, he usually can
escape liability if he proves that the employee's action was
committed outside the scope of employment. Restatement
(Third) of Agency § 7.07 (2006); D. Dobbs, P. Hayden, & E.
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Bublick, Law of Torts § 425 (2022). Similarly, if one partner
takes a wrongful act without authority or outside the ordi-
nary course of business, then the partnership—and by exten-
sion, the innocent partners—are generally not on the hook.
Uniform Partnership Act § 305 (2013). Partnerships and
other businesses can also organize as limited-liability enti-
ties, which insulate individuals from personal exposure to
the business's debts. See, e. g., § 306(c) (limited-liability
partnerships); Uniform Limited Partnership Act § 303(a)
(2013) (limited partnerships); Uniform Limited Liability
Company Act § 304(a) (2013) (limited-liability companies).
Individuals who themselves are victims of fraud are also
likely to have defenses to liability. If a surety or guarantor
is duped into assuming secondary liability, then his obligation
is typically voidable. Law of Suretyship and Guaranty § 6:8
(2022); Restatement (Third) of Suretyship & Guaranty § 12
(1996). Likewise, if a purchaser unwittingly contracts for
fraudulently obtained property, he may be able to rescind
the agreement. 27 R. Lord, Williston on Contracts § 69:47
Cite as: 598 U. S. 69 (2023) 83
Sotomayor, J., concurring
(4th ed. 2022). Thus, victims have a variety of antecedent
defenses at their disposal that, if successful, protect them
from acquiring any debt to discharge in a later bankruptcy
proceeding.
All of this said, innocent people are sometimes held liable
for fraud they did not personally commit, and, if they declare
bankruptcy, § 523(a)(2)(A) bars discharge of that debt. So it
is for Bartenwerfer, and we are sensitive to the hardship
she faces. But Congress has “evidently concluded that the
creditors' interest in recovering full payment of debts” ob-
tained by fraud “outweigh[s] the debtors' interest in a com-
plete fresh start,” Grogan v. Garner, 498 U. S. 279, 287
(1991), and it is not our role to second-guess that judgment.
III
We affrm the Ninth Circuit's judgment that Kate Bar-
tenwerfer's debt is not dischargeable in bankruptcy.
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It is so ordered.
Justice Sotomayor, with whom Justice Jackson joins,
concurring.
The Court correctly holds that 11 U. S. C. § 523(a)(2)(A)
bars debtors from discharging a debt obtained by fraud of
the debtor's agent or partner. Congress incorporated into
the statute the common-law principles of fraud, Husky Int'l
Electronics, Inc. v. Ritz, 578 U. S. 356, 360 (2016) (citing
Field v. Mans, 516 U. S. 59, 69 (1995)), which include agency
and partnership principles, ante, at 76. This Court long ago
confrmed that reading when it held that fraudulent debts
obtained by partners are not dischargeable, Strang v.
Bradner, 114 U. S. 555, 559–561 (1885), and Congress “em-
braced” that reading when it amended the statute in 1898,
ante, at 81.
The Bankruptcy Court found that petitioner and her hus-
band had an agency relationship and obtained the debt at
84 BARTENWERFER v. BUCKLEY
Sotomayor, J., concurring
issue after they formed a partnership. Because petitioner
does not dispute that she and her husband acted as partners,
the debt is not dischargeable under the statute.
The Court here does not confront a situation involving
fraud by a person bearing no agency or partnership relation-
ship to the debtor. Instead, “[t]he relevant legal context”
concerns fraud only by “agents” and “partners within the
scope of the partnership.” Ante, at 76. With that under-
standing, I join the Court's opinion.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
Page Proof Pending Publication
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None