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Q: What is an "executory contract" in bankruptcy ? ( Answered 4 out of 5 stars,   0 Comments )
Question  
Subject: What is an "executory contract" in bankruptcy ?
Category: Business and Money > Finance
Asked by: chriso_312-ga
List Price: $5.00
Posted: 05 May 2003 10:39 PDT
Expires: 04 Jun 2003 10:39 PDT
Question ID: 199672
What is an "executory contract" in bankruptcy ? Could you please
provide one or two examples ?
Answer  
Subject: Re: What is an "executory contract" in bankruptcy ?
Answered By: juggler-ga on 05 May 2003 11:38 PDT
Rated:4 out of 5 stars
 
Hello.

In context of Bankruptcy Code, an executory contract is a "contract
under which the obligation of both bankrupt and other party to
contract are so far unperformed that failure of either to complete
performance would constitute material breach breach excusing
performance of either."
source: Black's Law Dictionary  (6th ed. 1991) 
Quoted on Uncle Fed's Tax Board:
http://www.unclefed.com/ForTaxProfs/irs-ccbs/glb477.html

'An executory contract is a "contract under which the obligations of
both the bankrupt and the other party to the contract are so far
unperformed that the failure of either to complete performance would
constitute a material breach excusing the performance of the other."'
source: In Re TUNNISSEN, US Bankruptcy Court, District of South Dakota
http://www.sdb.uscourts.gov/Decisions/1996Decisions/1996%20-03%20Tunnissen%20htm.htm

Also see a fairly extensive discussion of executory contracts
beginning on page 16 of  "Construction Law Bankruptcy Considerations,"
hosted by constlaw.org:
http://www.constlaw.org/papers/langley9.pdf

[ Note that this document is in PDF format, so the Adobe Acrobat
Reader is required. If you don't have that, visit Adobe's web site:
http://www.adobe.com/products/acrobat/readstep2.html  ] 

As indicated in the previous documents, the significance of all this
is that the bankruptcy trustee may be able to cancel a contract if it
is executory:

'Section 365 of the Bankruptcy Code authorizes the trustee to assume
or reject executory contracts, enabling "the trustee to maximize the
value of the debtor's estate by assuming executory contracts . . .
that benefit the estate and rejecting those that do not." L.R.S.C. Co.
v. Rickel Home Centers (In re Rickel Home Centers, Inc.), 209 F.3d
291, 298 (3d Cir. 2000); see also 11 U.S.C.S 365(a) ("[T]he trustee,
subject to the court's approval, may assume or reject any executory
contract or unexpired lease of the debtor.")'
source: Cinicola v. Scharffenberger, US Court of Appeals for the Third
Circuit, hosted by bkinformation.com
http://bkinformation.com/NewCases/CaseCopies/cinicola.htm

---------

Examples:

" The traditional example of an executory contract that would fall
within the scope of 5 365(c) under either approach is a personal
services contract, where applicable law would excuse the nonassigning
party from accepting performance from a third party precisely because
the identity of the parties is a material condition of the contract. "
source: IN THE MATTER OF: Buildnet, Inc, UNITED STATES BANKRUPTCY
COURT MIDDLE DISTRICT OF NORTH CAROLINA 
http://www.ncmb.uscourts.gov/opinions/docs/ACF42F.PDF

"Executory contract - a contract in which performance is owing on both
sides; an unexpired lease is an example of an executory contract
because the tenant still must pay rent and the landlord still must
provide premises; a loan is not an executory contract because there is
no performance left for the lender"
source: Beat the Bankruptcy Blues
http://www.busride.com/2003/03/Beat_the_bankruptcy_blues.asp

"An employment contract is an example of an executory contract"
source: IN RE:ALBERT CURTIS HUTCHINS, JR. IN THE UNITED STATES
BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF ARKANSAS, hosted by
abiworld.org
http://www.abiworld.org/opinions/AR/hutchi~4.html

"A derivative contract is often an executory contract because it
doesn't involve a transaction but instead is merely an exchange of
promises about future actions. Another example of an executory
contract is an operating lease. Yet another example is a salary
agreement for the coming year between employer and employee - the
employer agrees to pay a certain amount if the employee works, and the
employee agrees to work if the employer pays that certain amount."
source: cwu.edu
http://www.cwu.edu/~rublem/351Solutions/sm18.doc

Based on the above examples, it's not difficult to think up some "real
world" examples. You sign a contract with a painter agreeing to pay
him $2000 to paint your house.  If he hasn't painted the house yet and
you haven't paid him, it's an executory contract.

search strategy:
bankruptcy, "an executory contract is a"
"example of an executory contract"

I hope this helps.
chriso_312-ga rated this answer:4 out of 5 stars
Thank you - very helpful!

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