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ARTICLE · 23 AUGUST 2006

Failure To Describe Easements Does Not Create Executory Contract

Reed Smith
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The U.S. Court of Appeals for the Third Circuit has held that unperformed obligations to more particularly describe easements in property conveyed by the debtor prepetition did not constitute "duties" remaining to be performed under a contract.

United StatesReal Estate and Construction
Monique Jewett-Brewster
Monique Jewett-Brewster
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The U.S. Court of Appeals for the Third Circuit has held that unperformed obligations to more particularly describe easements in property conveyed by the debtor prepetition did not constitute "duties" remaining to be performed under a contract. Therefore, the sale contract and prepetition deed were not an executory contract that could be assumed and assigned by the estate’s trustee pursuant to section 365 of the Bankruptcy Code.

The unpublished opinion In re Midwest Portland Cement Co. (Glosser v. Maysville Reg’l Water District Kents Run Partnership, Ltd.), 2006 WL 565683 (3rd Cir. March 9, 2006) addressed a contract entered into between the Midwest Portland Cement Co. ("debtor" or "Midwest") and Maysville Regional Water District ("Maysville") in or around March 1993 for the sale of real property located in Muskingum County, Ohio.

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