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Executory Contracts An executory contract is one in which "performance is due to some extent by both parties" in order to fulfill all of its terms and conditions, other than paying or collecting money. A Trustee may affirm and accept (assume), or may terminate and surrender an executory contract or unexpired lease. Assumption requires Court approval, but rejection is automatic if the contract is not assumed within a proscribed time. In bankruptcy, real property leases and equipment leases are the most common forms of executory contract. The lessor has a duty to allow future possession of the property by the debtor in possession or Trustee, and the debtor/lessee has a duty to make future payments. In bankruptcy, an unexpired lease is an executory contract in that both parties have rights and obligations under the terms of the lease. Specifically, once a bankruptcy is filed, the Trustee may cure any default and preserve the remaining benefits of the debtor's unexpired executory contracts. Alternatively, the Trustee may unilaterally terminate an executory contract and minimize the financial impact of the default. The debtor's rights under an executory contract are protected by the "automatic stay" provisions of the US Bankruptcy Code, which arises immediately upon commencement of the bankruptcy case. Reprinted with the permission of Credit Research Foundation. Edited by Michael Dennis, author of "Credit and Collection Handbook" available at the NACM Bookstore. |
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