Jesse M. Fried, Executory Contracts and Performance Decisions in Bankruptcy, 46 Duke L.J. 51 (1996).
Abstract: This paper focuses on the treatment in bankruptcy of a debtor's executory contracts - contracts under which the debtor still owes (or is owed) performance at the time it files for bankruptcy. Under the bankruptcy laws of most countries, including the U.S., the bankruptcy trustee usually disposes of an executory contract in one of two ways: either by (1) assuming and seeking performance of the contract; or by (2) rejecting the contract, in which case any resulting damage claim is treated as a prebankruptcy unsecured claim and receives its ratable share of the assets available to pay unsecured claims. Since such unsecured claims are typically paid only a fraction of their face amount, a party injured by rejection usually receives less than full compensation. This approach is widely supported by U.S. bankruptcy commentators. The paper first explains how this ratable damages rule can give the bankruptcy trustee an incentive to reject contracts when performance would be efficient. It then shows that the manner in which the ratable damages rule is actually applied by U.S. courts tends to worsen the problem. The paper concludes by considering various arrangements for eliminating the distortion.