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THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS
Dissertation
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| Format: | Thesis |
| Language: | English |
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University of Pretoria
2022
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| _version_ | 1867613703129530368 |
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| access_status_str | Open Access |
| author2 | Brits, Reghard |
| author_browse | Brits, Reghard |
| author_facet | Brits, Reghard |
| collection | Thesis |
| dc_rights_str_mv | © 2022 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. |
| description | Dissertation |
| format | Thesis |
| id | oai:repository.up.ac.za:2263/84267 |
| institution | University of Pretoria (South Africa) |
| language | English |
| last_indexed | 2026-06-10T12:40:21.476Z |
| license_str | Other — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UPSpace — University of Pretoria Institutional Repository |
| publishDate | 2022 |
| publishDateRange | 2022 |
| publishDateSort | 2022 |
| publisher | University of Pretoria |
| publisherStr | University of Pretoria |
| record_format | dspace |
| source_str | UPSpace — University of Pretoria Institutional Repository |
| spelling | oai:repository.up.ac.za:2263/84267 THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS Brits, Reghard u13005538@tuks.co.za Nieuwoudt, Jacobus Jan Louw UCTD Business rescue Companies Act Dissertation With the coming into operation of the new Companies Act of 2008, business rescue replaced judicial management to remedy the somewhat flawed restructuring process in place at the time. The business rescue practitioner is the key role player in business rescue proceedings and is responsible for facilitating the rehabilitation of the company. In the course of fulfilling his functions, the business rescue practitioner will be faced with various legal issues and challenges, including the treatment of executory contracts. Unlike general insolvency proceedings, the rights of creditors and the role of the business rescue practitioner are still somewhat uncertain when it comes to executory contracts, which may be attributed to the fact that the courts are required to play an active role in interpreting the provisions of the Companies Act, specifically sections 133, 134 and 136. With executory contracts, the courts are often tasked with determining whether the cancellation of an agreement by a creditor constitutes legal proceedings or enforcement action and whether this has consequences for the lawfulness of the company’s possession of property subject to the agreement. Decisions in this regard could infringe upon the moratorium that the company in business rescue is entitled to and negatively affect the powers of the business rescue practitioner. Statutory amendments and judicial precedent have attempted clarifying issues regarding the powers of the business rescue practitioner in respect of executory contracts and the upholding of these contracts. However, the suspension power of the business rescue practitioner and the current moratorium provision remain contentious areas of law. In this dissertation, I investigate the powers of the business rescue practitioner with the aim of seeking a resolution to the conflicts between the powers of business rescue practitioners and the rights and obligations of creditors. Furthermore, this dissertation will investigate whether the powers of the business rescue practitioner are affected by a breach of contract that occurred before and/or during business rescue proceedings and what affect such a breach will have on the business rescue as a whole. To this end, I will also investigate the differences between the South African Companies Act, the USA Bankruptcy Code and the Australian Corporations Act to draw conclusions and make recommendations regarding the best way forward for the South African approach to the treatment of executory contracts during business rescue by the business rescue practitioner. University of Pretoria Postgraduate Scholarship Office LLM (Mercantile Law) LLM (Mercantile Law) Unrestricted 2022-02-28T11:35:28Z 2022-02-28T11:35:28Z 2022-04 2021 Dissertation * A2022 http://hdl.handle.net/2263/84267 en © 2022 University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria. application/pdf University of Pretoria |
| spellingShingle | UCTD Business rescue Companies Act THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS |
| title | THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS |
| title_full | THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS |
| title_fullStr | THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS |
| title_full_unstemmed | THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS |
| title_short | THE POWERS OF BUSINESS RESCUE PRACTITIONERS IN RESPECT OF EXECUTORY CONTRACTS |
| title_sort | powers of business rescue practitioners in respect of executory contracts |
| topic | UCTD Business rescue Companies Act |
| url | http://hdl.handle.net/2263/84267 |