Accepting or Rejecting Leases and Unperformed Contracts

About half-way through your bankruptcy schedules you will discover “Schedule G – Executory Contracts and Unexpired Leases.” While the Bankruptcy Code does not have a specific definition of an executory contract, it is commonly understood as a contract between the bankruptcy debtor and another party in which the terms have not been completely performed. If one party fails to complete the unperformed terms, the contract would be breached.

The most common type of executory contract is a lease for real estate, a car, or for business equipment. Contracts for work not yet performed and intellectual property issues (like an author on retainer to write a book) also fall under the executory contract category. All executory contracts must be listed on Schedule G.

Once the bankruptcy case is filed, the debtor or the bankruptcy trustee can reject, affirm, assume or surrender the executory contract. For example, if a bankruptcy debtor was paid a $1,000 deposit on a $10,000 kitchen remodel job, but has not started work, the debtor has a decision to make. The debtor has the option to do the job and honor the contract, or to walk away. Likewise car leases, home rental agreements, and other executory contracts are handled in much the same manner.

If the debtor decides to continue performance (called “assuming” the contract), an assumption of the contract must signed by the debtor and other party and filed with the bankruptcy court. In a Chapter 7 case, an assumption on an executory contract must generally be filed within 60 days of the bankruptcy filing date. The debtor must also pay any past due amount due under the contract in full and show the ability to perform the outstanding contract terms. During the 60 day period, the “other party” to the executory contract is under an obligation to continue performing as if no bankruptcy had been filed.

While many executory contracts are run-of-the-mill type, some can get complex. If you have an executory contract and are considering a bankruptcy filing, discuss your situation with a seasoned bankruptcy attorney. Your attorney can offer solutions to restructure your finances and deal with your executory contract.

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