以物抵债，指债权人与债务人之间存在金钱债务，双方约定将债务人财产作价交付债权人抵偿债务的行为。实践中，主要分为两种类型，包括当事人双方协商的以物抵债和民事强制执行程序中的以物抵债程序，本文仅就前种以物抵债类型进行探讨。

近年来，随着新冠疫情影响，经济形势发生变化，再加上政策调控等多重因素打击，导致地产行业遭遇寒冬，现金流频繁遭受考验。迫于资金回款压力，为了缓解僵局，地产企业推出“工抵房”“内部房”等房源以期减轻对外负债或实现现金回流。其中，“工抵房”也被称为工程抵款房，是开发商用于给工程方抵扣工程款的一种方式，也是大众所俗称以物抵债的一种常见形式。虽然，工程方的需求是现金而并非房屋，但目前经济形势下，工程方面临开发商无款支付的现实局面，只能无奈被迫接受“工抵房”。尽管“工抵房”的出现使得开发商不再面临房子无路销售的难题，同时解决了部分应付款项；工程方能获得部分“工抵房”以解决工程资金被长期拖欠的难题；购房者可以更低价格买到“工抵房”从而降低购房成本，这一循环链看似多赢，实则隐藏大量法律风险。本文将从“工抵房”的角度，以工抵债权人的视角，对以物抵债的性质、模式、法律风险等维度进行分析，以期对实践和后续研究有所贡献。

一、以物抵债协议的性质

The economic fallout from the COVID-19 pandemic will leave in its wake a significant increase in commercial chapter 11 filings. Many of these cases will feature extensive litigation involving breach of contract claims, business interruption insurance disputes, and common law causes of action based on novel interpretations of long-standing legal doctrines such as force majeure.

U.S. Bankruptcy Judge Dennis Montali recently ruled in the Chapter 11 case of Pacific Gas & Electric (“PG&E”) that the Federal Energy Regulatory Commission (“FERC”) has no jurisdiction to interfere with the ability of a bankrupt power utility company to reject power purchase agreements (“PPAs”).

The Supreme Court this week resolved a long-standing open issue regarding the treatment of trademark license rights in bankruptcy proceedings. The Court ruled in favor of Mission Products, a licensee under a trademark license agreement that had been rejected in the chapter 11 case of Tempnology, the debtor-licensor, determining that the rejection constituted a breach of the agreement but did not rescind it.

Few issues in bankruptcy create as much contention as disputes regarding the right of setoff. This was recently highlighted by a decision in the chapter 11 case of Orexigen Therapeutics in the District of Delaware.

The judicial power of the United States is vested in courts created under Article III of the Constitution. However, Congress created the current bankruptcy court system over 40 years ago pursuant to Article I of the Constitution rather than under Article III.

Southeastern Grocers (operator of the Winn-Dixie, Bi Lo and Harvey’s supermarket chains) recently completed a successful restructuring of its balance sheet through a “prepackaged” chapter 11 case in the District of Delaware. As part of the deal with the holders of its unsecured bonds, the company agreed that under the plan of reorganization it would pay in cash the fees and expenses of the trustee for the indenture under which the unsecured bonds were issued.

The Supreme Court’s recent decision in Merit Management Group, LP v. FTI Consulting, Inc. has appropriately drawn significant attention.

The Supreme Court recently heard arguments in a patent dispute case, Oil States Energy Services, LLC v. Greene’s Energy Group, LLC. Although the case has nothing to do with bankruptcy law, its outcome could have a substantial impact on bankruptcy practice and litigation.

The Supreme Court two years ago ruled in Baker Botts v. Asarco that bankruptcy professionals entitled to compensation from a debtor’s bankruptcy estate had no statutory right to be compensated for time spent defending against objections to their fee applications.