Document Type

Article

Publication Title

Boston College Law Review

Publication Date

2005

Abstract

This Article explores the history and justification for the doctrine of necessity in Chapter 11 cases. It discusses the doctrine's gradual narrowing, due to appellate courts' reluctance to permit payment of prepetition debts or recognize courts' authority to authorize such payments. The Article analyzes the effect of recent amendments to the Bankruptcy Code on the doctrine and confirms that there is uncertainty regarding the propriety of payment of certain prebankruptcy debts. The Article proposes that the Code be amended to clarify the extent to which the doctrine of necessity applies in Chapter 11 cases and asserts that courts should recognize different standards depending on the type of debt being repaid. Finally, this Article argues that courts should have discretion to authorize payments in extraordinary circumstances when they follow procedural safeguards.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.