Every time a new bankruptcy opinion is rendered with respect to a lease, or even a challenge to a lease clause is made in a court, draftspersons and their clients wonder what could have been done to avoid the risks and expense of dealing with the issue. Thus, these days, form leases are being reviewed frequently. Some attempted drafting solutions will be rejected by the court outright as being within the ambit of a statutory prohibition or as interfering with the role of the court in interpreting statutes. In a commercial case, especially one in which the lease grants the landlord alone the right to attorneys' fees, draftpersons may view a questionable clause as possibly intimidating an unsophisticated tenant or as giving the landlord at least an additional argument in court. This article deals with some of the provisions landlords or tenants may attempt to draft into leases to deal with a bankruptcy of themselves or of the other party.
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