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seek to use sales under § 363 to vitiate explicit protections under § 365. Because the appeal in Rickel addressed the validity of a use restriction that the district court had excised in order to permit a sale that had been consummated during the appeal, it was clear to the appellate court that the appeal was moot. Since the appellants had not sought a stay, and relief could not be afforded without undoing the transaction, the appeal would be dismissed as moot.
In a Ninth Circuit case involving assumption and assignment of an automobile franchise, the court analyzed mootness solely under § 363.
By Warren E. Agin
Swiggart & Agin, LLC
Boston, MA
Bankruptcy Code Section 365 governs the treatment of most executory contracts. The term "executory contract" is not defined by the Bankruptcy Code, but in general can be described as a contract for which "performance remains due to some extent on both sides." Licenses to use intellectual property, such as a copyright, patent or trademark, will almost always qualify as executory contracts.
Section 365 of the Bankruptcy Code provides a debtor with one of its key restructuring rights. It permits a trustee or debtor-in-possession to relieve the bankruptcy estate of burdensome
