Section 365, Mandatory Bankruptcy Rules and Inefficient Continuance

TLDR: In this paper, the authors show that the ability of insolvent firms to continue bad projects is enhanced by the absence of ipso facto clauses without such a clause, the firm can exploit the inability of courts always to assess expectation damages accurately to compel a solvent party to stay in a bad deal.

Abstract: Section 365 of the Bankruptcy Code prohibits enforcement of the once common “ipso facto clause” The clause excuses the solvent party from performance of the contract when the other party becomes insolvent We show that the ability of insolvent firms to continue bad projects is enhanced by the absence of ipso facto clauses Without such a clause, the firm can exploit the inability of courts always to assess expectation damages accurately to compel a solvent party to stay in a bad deal An ipso facto clause would preclude this outcome because the clause permits the solvent party to exit costlessly Further, an ipso facto clause improves the managers’ incentive to exert effort to avoid financial distress These results have two broader implications First, that the important mandatory rule regulating the ability of solvent parties to exit is inefficient suggests that the justifications for the Bankruptcy Code’s other mandatory rules should be rethought Second, our analysis suggests that stakeholders such as contract partners of bankrupt firms may have important roles to play in inducing efficient bankruptcy decisions through their abilities to stop unproductive projects that bankrupt firms may otherwise continue