Executory Contracts/Leases

Creating a Split, Second Circuit Says that Section 363(m) Is Jurisdictional

The new decision from the Second Circuit is based on prior opinions where the appeals court said there was no “jurisdiction” when it would have been correct to say there was no “power.”
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Arbitration Clause Not Enforceable When the Contract Itself Was Rejected

Judge Jernigan in Dallas differs with a judge in Delaware by declining to enforce an arbitration agreement that was part of a rejected contract.

Surety Bonds Aren’t Executory Contract and Can’t Be Assumed, District Judge Says

An irrevocable surety bond isn’t executory because it gives the bonding company no further obligations to the debtor.

District Judge Rakoff Explains Why the Debtor Alone May Assert a Cure Claim

A creditor can’t assert a cure claim, even though Section 365(b) doesn’t give the counterparty the sole right to demand a cure on assumption of an executory contract.

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