White Paper

6 Pages
  • 6 Pages

Executory Contracts in Bankruptcy


What is an executory contract or unexpired lease?

The Bankruptcy Code does not expressly define executory contract. The legislative history, however, reveals that Congress intended the term to refer to contracts on which performance remains due to some extent on both sides at the time of the debtor’s bankruptcy filing. In addition, the unperformed obligations must be sufficiently important that a party’s failure to perform would constitute a material breach of the contract. In addition to this majority approach, some courts have adopted a functional approach, which considers whether an assumption or rejection of the contract in question would result in an actual benefit to the bankruptcy estate. This white paper reviews an overview of Section 365 and the standard for approval of assumption or rejection.



Tom Maxson

Tom Maxson

Cohen & Grigsby, P.C.

  • Director in the Pittsburgh office of Cohen & Grigsby, P.C.
  • Tom counsels clients in various aspects of bankruptcy law, commercial finance and creditors rights
  • Frequent presenter on bankruptcy and creditors rights topics
  • Board certified; Business Bankruptcy Law American Board of Certification
  • Selected to Thomson Reuters Pennsylvania Super Lawyers list, 2013-2014, bankruptcy law
  • Selected to Thomson Reuters Pennsylvania Super Lawyers list, Creditor Debtor Rights, 2015-2018
  • J.D. degree, cum laude, University of Pittsburgh, School of Law; B.A. degree, economics, Indiana University, Bloomington
  • Can be contacted at [email protected] or 412-297-4706

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