Michael J. Kelly
The final piece in Spring 2008, Recognizing the Breadth of
Non-Assignable Contracts in Bankruptcy: Enforcement of
Nonbankruptcy Law as Bankruptcy Policy, is an LL.M. thesis
authored by Michael J. Kelly. This thesis addresses the court
split in interpreting the relationship between Bankruptcy Code
subsections 365(c)(1) and (f)(1). Based on the plain language
and legislative history behind section 365, the author provides an
in-depth analysis of the scope of these subsections. The
author theorizes that Congress intended section 365(c)(1) to
include only those laws that require the non-debtor party's consent
prior to assignment of the involved contracts or leases. In
contrast, subsection (f)(1) remains feasible and renders
unenforceable laws generally prohibiting, restricting, or placing
conditions on assignment other than the consent of the
non-debtor. The thesis concludes by advocating for
application of this theory because it effectively eliminates
inconsistent treatment of subsections (c)(1) and (f)(1) and allows
them to successfully coexist.