In Re Thomas E. Magness Harry E. Redman, Debtors. John Paul Rieser, Trustee v. The Dayton Country Club Company and Cynthia Magness Karas

RALPH B. GUY, JR., Circuit Judge,

concurring in result.

Although I agree with the result reached by the court, I arrive at the result by different reasoning. For me, the entire case turns on the meaning of the term “applicable law” appearing in the two relevant portions of section 365 of the Bankruptcy Code, which governs the trustee’s assumption (or rejection) of executory contracts within the debtor’s estate. Section 365(f) is considered the “general rule” and, by nullifying anti-assignment provisions in private contracts and in “applicable law,” embodies the policy favoring the alienability…