My New Article on Termination-on-Bankruptcy Provisions

It used to be that I’d wait impatiently for some article that I’d written to be published. “Perhaps this time,” I’d think, “they’ll sit up and take notice!”

It’s probably a good sign that I plumb forgot that my most recent article was published last week. It’s entitled Termination-on-Bankruptcy Provisions: Some Proposed Language. It’s in the most recent issue of Business Law Today, the online periodical of the ABA Section of Business Law. Go here for the web version; go here for a PDF.

Here’s the abstract:

A fixture of many different kinds of business contracts is the termination-on-bankruptcy (ToB) provision. In the United States, bankruptcy law restricts enforceability of ToB provisions. Nevertheless, in certain circumstances they are enforceable; the purpose of this article is to propose model language for such circumstances.

The article offers proposed language for contracts governed by U.S. law and contracts governed by foreign law.

My co-authors are Adrian Walters of IIT Chicago-Kent College of Law and Bob Eisenbach of Cooley LLP. Having grown tired of making stuff up when drafting termination-on-bankruptcy provisions, I decided to write an article on the subject, but I knew that I was entirely unqualified to write it myself. My thanks to Adrian and Bob for helping out. I just did my best to cover the clear-language part; they provided the bankruptcy expertise.

Having offered my version of severability provisions, force majeure provisions, indemnification language, and “successors and assigns” provisions, I’m slowly working my way through troublesome boilerplate. Next up? Perhaps “counterparts” language.

Posted in My Articles | 2 Comments

  • AWrightBurkeMPhil

    I don’t practice bankruptcy law and can’t speak to the effects, but the proposal seems clear and concise, so kudos to you and your co-authors.

    Only one nit to pick: “The world of contract drafting is drastically slow to change….” Merriam-Webster’s first definition of “drastic” is “acting rapidly and violently — used chiefly of purgatives.” Typesetter’s error?

    Here’s a “yes” vote to tackle “counterparts” next, and soon.

    • http://www.adamsdrafting.com/ Ken Adams

      *dons hair shirt*