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Section 365 Of The Bankruptcy Code Preempts Provisions Of State Dealer Statutes, Andrew Ziemianski
Section 365 Of The Bankruptcy Code Preempts Provisions Of State Dealer Statutes, Andrew Ziemianski
Bankruptcy Research Library
(Excerpt)
In bankruptcy proceedings, the rejection of an executory contract by a trustee under section 365 of the Bankruptcy Code constitutes a prepetition breach of contract, which gives rise to a general unsecured claim. The rejection damages claim, which is governed by state common law, will generally not be paid in full in bankruptcy.
The Bankruptcy Code will impliedly preempt state statutes that impose additional statutory damages, as these statutes impose damages for economic benefit of the counterparty and “‘frustrate section 365’s purpose of giving a debtor the power to decide which contracts it will assume and assign or reject …
Whether A Contract Is Divisible For Purposes Of Section 365 Of The Bankruptcy Code, Christopher Bolz
Whether A Contract Is Divisible For Purposes Of Section 365 Of The Bankruptcy Code, Christopher Bolz
Bankruptcy Research Library
(Excerpt)
Section 365 of the Bankruptcy Code governs the assumption, rejection, and assignment of executory contracts and unexpired leases in bankruptcy cases. Although the definition of an executory contract has not been codified, it is considered to be a contract that has not been fully performed. The assumption or rejection of an executory contract is achieved through court approval, except in certain instances concerning Chapter 7 bankruptcy. Rejection leads to a non-administrative unsecured claim for damages. Following rejection, neither the estate nor the other party owes performance to one another.
The trustee or debtor in possession must assume or reject …