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Real-World And Academic Questions About Nonmonetary Obligations Under The 2005 Version Of 365(B), David G. Epstein
Real-World And Academic Questions About Nonmonetary Obligations Under The 2005 Version Of 365(B), David G. Epstein
Law Faculty Publications
McLachlan, Countryman, Westbrook. More than most areas of bankruptcy law, the bankruptcy law of leases and contracts has been influenced by law professors. McLachlan is generally credited for inventing the bankruptcy law of leases and executory contracts; specifically, for drafting section 70(b) of the Bankruptcy Act-the predecessor of section 365. Countryman's law review articles based on work he did for the Commission to Study the Bankruptcy Laws of the United States led to the "Countryman definition" of "executory contracts." Additionally, Westbrook's article urging the elimination of the term "executory contract" and a clarification of the consequences of rejection shaped the …
Another Way Of Thinking About Section 105(A) And Other Sources Of Supplemental Law Under The Bankruptcy Code, David G. Epstein
Another Way Of Thinking About Section 105(A) And Other Sources Of Supplemental Law Under The Bankruptcy Code, David G. Epstein
Law Faculty Publications
In this article we discuss the role of 105 in bankruptcy law generally rather than in specific bankruptcy cases. We mention a few cases as examples. Mainly, we aim at 105. We work toward an understanding of this section that explains our view of the bottom issue that determines the proper role and use of 105 and also the proper role and use of supplemental law generally.
National Bankruptcy Review Commission's Section 365 Recommendations And The Larger Conceptual Issues, David G. Epstein
National Bankruptcy Review Commission's Section 365 Recommendations And The Larger Conceptual Issues, David G. Epstein
Law Faculty Publications
In the chapter of the Report of the National Bankruptcy Commission ("Report") entitled "Business Bankruptcy," the National Bankruptcy Review Commission ("Review Commission") makes four recommendations regarding section 365 of the Bankruptcy Code: 2.4.1 Clarifying the Meaning of "Rejection" The concept of "rejection" in section 365 should be replaced with "election to breach." Section 365 should provide that a trustee's ability to elect to breach a contract of the debtor is not an avoiding power. Section 502(g) should be amended to provide that a claim arising from the election to breach shall be allowed or disallowed the same as if such …
Postpetition Lending Under Section 364: Issues Regarding The Gap Period And Financing For Prepackaged Plans, David G. Epstein
Postpetition Lending Under Section 364: Issues Regarding The Gap Period And Financing For Prepackaged Plans, David G. Epstein
Law Faculty Publications
If the priorities provided by section 364(c) are insufficient to entice potential lenders to provide sufficient :financing to a Chapter 11 debtor, the debtor may, with the court's approval, obtain credit by granting the lender a lien on property of the debtor that is senior to existing liens on such property (a "priming lien"). The granting of such a priming lien, however, is subject to several statutory conditions. First, as with section 364(c), the debtor must prove that it cannot obtain credit on any less intrusive basis (i.e., through the use of section 364(a), (b), or (c)). Second, the debtor …
Is Revision Due For Article 2?, David Frisch
Is Revision Due For Article 2?, David Frisch
Law Faculty Publications
Although we ask whether Article 2 should be re-examined, it is not our only question. A second question posed is: What are the sources to which one should look in order to discover whether there is a strong enough need to justify a revision? In addition to mentioning sources, we offer a few examples illustrative of the fruits which these sources can produce. By doing so, we hope to spur additional interest because, if discussion of a new Article 2 is to begin, the sooner it begins the better. Revisions take time. Six years can pass from the time a …
Consequences Of Converting A Bankruptcy Case, David G. Epstein
Consequences Of Converting A Bankruptcy Case, David G. Epstein
Law Faculty Publications
This paper discusses some of the consequences of converting a bankruptcy case from one chapter to another. At present, there are four different forms of bankruptcy: chapter 7, chapter 9, chapter 11, chapter 13. Congress is currently considering creating yet a fifth form of bankruptcy for farmers. Most individual debtors are now eligible for relief under three of the chapters, 7, 11, or 13. Corporate and partnership debtors can now choose between chapter 7 and chapter 11. The various chapters of the Bankruptcy Code differ in both policy and particulars. A chapter 7 case involves liquidation of the "property of …
U.C.C. Survey: General Provisions, Bulk Transfers, And Documents Of Title, David Frisch
U.C.C. Survey: General Provisions, Bulk Transfers, And Documents Of Title, David Frisch
Law Faculty Publications
As in the past, there were no significant developments or trends in the few decisions on conflict of laws points. The text of U.C.C. section 1-105, the Code's general choice-of-law provision, speaks comprehensively of "the transaction." Yet recent cases and a draft of the proposed Personal Property Leasing Act take an issue-oriented approach, thus giving the parties greater freedom to specify choice of law. Following the formulation in section 187 of the Restatement (Second) of the Conflict of Laws, the draft Leasing Act supports party choice in the absence of some significant forum policy that requires overriding that choice. In …