Limitations on Assumption and Assignment of Executory Contracts by 'Applicable Law'

25 Pages Posted: 28 May 2008

Date Written: 2001


11 U.S.C. section 365 considers the treatment of executory contracts in bankruptcy proceedings. Subsection 365(c)(1) prohibits the assumption or assignment of executory contracts when a contractual or legal provision would applicable law excuses a party from accepting third-party performance, while subsection 365(f) allows assignment of an executory contract under certain circumstances regardless of legal or contractual prohibitions on the assignment. This article considers the balance between these sometimes-contradictory subsections of the Bankruptcy Code, and concludes that Congress intended to allow the assumption of executory contracts even if they are not assignable in order to further the objections of reorganization bankruptcy proceedings.

Keywords: executory contracts, bankruptcy, assumption of executory contracts, assignment of executory contracts

JEL Classification: K10, K30, K39

Suggested Citation

Pulley Radwan, Theresa J., Limitations on Assumption and Assignment of Executory Contracts by 'Applicable Law' (2001). New Mexico Law Review, Vol. 31, p. 299, 2001, Available at SSRN:

Theresa J. Pulley Radwan (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727-562-7800 x7952 (Phone)

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