On December 31, 2024, the United States Court of Appeals for the Fifth Circuit issued its long awaited opinion in the disputes arising from the controversial “uptier” transaction executed by Serta Simmons Bedding, L.L.C. (“Serta”) in 2020 and the confirmation of Serta’s chapter 11 plan by the Southern District of Texas Bankruptcy Court in 2023. The Fifth Circuit reversed former Bankruptcy Judge David Jones’ summary judgment ruling that the 2020 uptier transaction was permissible under Serta’s existing credit agreements.

In an opinion issued on August 16, 2024 (In re Robertshaw US Holding Corp., Bankr. S.D. Tex., Case No. 24-90052, Docket No.

On June 27, 2024, the Supreme Court issued its opinion in Harrington v. Purdue Pharma L.P., 603 U.S. ____ (2024) holding that the Bankruptcy Code does not allow for the inclusion of non-consensual third-party releases in chapter 11 plans. This decision settles a long-standing circuit split on the propriety of such releases and clarifies that a plan may not provide for the release of claims against non-debtors without the consent of the claimants.

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

INTRODUCTION

In times of unprecedented market uncertainty, assessing financial exposure to your counterparties is essential. Volatility in the commodities markets and a public health crisis create the perfect storm for financial distress for companies in nearly every industry. Risk is inherent in business and that risk is heightened when you are dealing with a company in financial distress. Managing these risks begins with knowing your counterparties and understanding your legal position with respect to those counterparties.

During these uncertain times, bankruptcy courts across the country remain steadfast in their commitment to serve the public and provide critical relief to debtor companies and their many constituents, including employees, lenders, and other parties in interest. To address public concern about COVID-19 and to protect all parties, many bankruptcy courts have issued general orders implementing procedures and adopting protocols that balance public health and safety with parties’ need for emergency relief from the court.

The recent depression in the maritime shipping industry served as the catalyst for many shipping companies to restructure. During the past few years, a number of foreign-based shipping companies have sought protection from creditors in U.S. Bankruptcy Courts—with varying degrees of success.