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The Metamorphosis of Assignment Clauses in Bankruptcy

By Robbin L. Itkin and Katherine C. Piper

Last month, we discussed “The Debtor's Nightmare,” explaining how the Fourth Circuit joined the Ninth, Third and Eleventh Circuits in adopting the “hypothetical test” in denying a debtor in possession's assumption of an executory contract under section 365 (c) of the Bankruptcy Code despite an express assignability provision in the contract. RCI Tech. v. Sunterra Corp. (In re Sunterra Corp), 361 F.3d 257 (4th Cir. 2004). This month, we continue with “the debtor's paradox.”

The Debtor's Paradox

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