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Clement Marumoagae

This chapter considers the treatment of executory contracts upon the default of a debtor company under South African law and the main factors behind the most recent reforms in the area. This chapter shows that executory contracts are regulated by the common law and that the opening of a formal insolvency proceeding does not automatically lead to their termination. However, there are specific sections in the IA 1936 which provides some guidance on how the courts can deal with executory obligations once the insolvent has been sequestrated. Unfortunately, ‘executory contracts’ do not receive statutory recognition as an autonomous type of contract under South African law. They have not yet received adequate legislative, judicial and academic attention. As a result, this chapter suggests that time is ripe for reform in the area.