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Ninth Circuit Reignites Debate over the Interplay of Sections 363, 365

Bankruptcy Code sections 363 and 365 provide different rights for different parties, and they usually operate independently of one another. However, in situations where the two sections overlap, a number of courts have held they are in conflict, because a party invoking one of the provisions will seek to override the interest of a party invoking the other.


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In 2003, the U.S. Court of Appeals for the Seventh Circuit surprised many observers when it held that a sale of real property under section 363 of title 11 of the United States Code (the Bankruptcy Code) could be approved free and clear of a lessee’s leasehold interest in the property. Precision Industries, Inc. v. Qualitech Steel SBQ, LLC (In re Qualitech Steel Corp. & Qualitech Steel Holdings Corp.), 327 F.3d 537 (7th Cir. 2003).

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