Section 546(a) of the House amendment is derived from section 546(c) of the Senate amendment. Section 546(c) of the House amendment is derived from section 546(b) of the Senate amendment. It applies to receipt of goods on credit as well as by cash sales. The section clarifies that a demand for reclamation must be made in writing anytime before 10 days after receipt of the goods by the debtor. The section also permits the court to grant the reclaiming creditor a lien or an administrative expense in lieu of turning over the property.
The trustee’s rights and powers under certain of the avoiding powers are limited by section 546. First, if an interest holder against whom the trustee would have rights still has, under applicable nonbankruptcy law, and as of the date of the petition, the opportunity to perfect his lien against an intervening interest holder, then he may perfect his interest against the trustee. If applicable law requires seizure for perfection, then perfection is by notice to the trustee instead. The rights granted to a creditor under this subsection prevail over the trustee only if the transferee has perfected the transfer in accordance with applicable law, and that perfection relates back to a date that is before the commencement of the case.
The phrase “generally applicable law” relates to those provisions of applicable law that apply both in bankruptcy cases and outside of bankruptcy cases. For example, many State laws, under the Uniform Commercial Code, permit perfection of a purchase-money security interest to relate back to defeat an earlier levy by another creditor if the former was perfected within ten days of delivery of the property. U.C.C. § 9–301(2). Such perfection would then be able to defeat an intervening hypothetical judicial lien creditor on the date of the filing of the petition. The purpose of the subsection is to protect, in spite of the surprise intervention of a bankruptcy petition, those whom State law protects by allowing them to perfect their liens or interests as of an effective date that is earlier than the date of perfection. It is not designed to give the States an opportunity to enact disguised priorities in the form of liens that apply only in bankruptcy cases.
Subsection (b) [enacted as (c)] specifies that the trustee’s rights and powers under the strong arm clause, the successor to creditors provision, the preference section, and the postpetition transaction section are all subject to any statutory or common-law right of a seller, in the ordinary course of business, of goods to the debtor to reclaim the goods if the debtor received the goods on credit while insolvent. The seller must demand reclamation within ten days after receipt of the goods by the debtor. As under nonbankruptcy law, the right is subject to any superior rights of secured creditors. The purpose of the provision is to recognize, in part, the validity of section 2–702 of the Uniform Commercial Code, which has generated much litigation, confusion, and divergent decisions in different circuits. The right is subject, however, to the power of the court to deny reclamation and protect the seller by granting him a priority as an administrative expense for his claim arising out of the sale of the goods.
Subsection (c) [enacted as (a)] adds a statute of limitations to the use by the trustee of the avoiding powers. The limitation is two years after his appointment, or the time the case is closed or dismissed, whichever occurs later.
The date of enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, referred to in subsec. (i)(2), is the date of enactment of Pub. L. 109–8, which was approved Apr. 20 2005.
2006—Subsec. (e). Pub. L. 109–390, § 5(b)(1), inserted “(or for the benefit of)” before “a commodity broker” and “or that is a transfer made by or to (or for the benefit of) a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, in connection with a securities contract, as defined in section 741(7), commodity contract, as defined in section 761(4), or forward contract,” after “securities clearing agency,”.
Subsec. (f). Pub. L. 109–390, § 5(b)(2), struck out “that is a margin payment, as defined in section 741 or 761 of this title, or settlement payment, as defined in section 741 of this title,” after “avoid a transfer” and inserted “(or for the benefit of)” before “a repo participant”.
Subsec. (g). Pub. L. 109–390, § 5(b)(3), inserted “(or for the benefit of)” before “a swap participant”.
Subsec. (j). Pub. L. 109–390, § 5(b)(4), inserted “(or for the benefit of)” before “a master netting agreement participant”.
2005—Subsec. (c). Pub. L. 109–8, § 1227(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) consisted of pars. (1) and (2) relating to reclamation of goods sold to an insolvent debtor.
Subsec. (e). Pub. L. 109–8, § 907(o)(3), inserted “financial participant,” after “financial institution,”.
Subsec. (f). Pub. L. 109–8, § 907(o)(2), inserted “or financial participant” after “repo participant”.
Subsec. (g). Pub. L. 109–8, § 907(e)(1), struck out “under a swap agreement” after “avoid a transfer”, substituted “under or in connection with any swap agreement” for “in connection with a swap agreement”, and inserted “or financial participant” after “swap participant”.
Pub. L. 109–8, § 406(1), redesignated subsec. (g) relating to return of goods as (h).
Subsec. (h). Pub. L. 109–8, § 406(2), inserted “and subject to the prior rights of holders of security interests in such goods or the proceeds of such goods” after “consent of a creditor”.
Pub. L. 109–8, § 406(1), redesignated subsec. (g) relating to return of goods as (h).
Subsec. (i). Pub. L. 109–8, § 406(3), added subsec. (i).
Subsec. (j). Pub. L. 109–8, § 907(e)(2), added subsec. (j).
1998—Subsecs. (e) to (g). Pub. L. 105–183 substituted “548(a)(1)(B)” for “548(a)(2)” and “548(a)(1)(A)” for “548(a)(1)”.
1994—Subsec. (a)(1). Pub. L. 103–394, § 216, amended par. (1) generally. Prior to amendment, par. (1) read as follows: “two years after the appointment of a trustee under section 702, 1104, 1163, 1302, or 1202 of this title; or”.
Subsec. (b). Pub. L. 103–394, § 204(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “The rights and powers of a trustee under sections 544, 545, and 549 of this title are subject to any generally applicable law that permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of such perfection. If such law requires seizure of such property or commencement of an action to accomplish such perfection, and such property has not been seized or such action has not been commenced before the date of the filing of the petition, such interest in such property shall be perfected by notice within the time fixed by such law for such seizure or commencement.”
Subsec. (c)(1). Pub. L. 103–394, § 209, amended par. (1) generally. Prior to amendment, par. (1) read as follows: “such a seller may not reclaim any such goods unless such seller demands in writing reclamation of such goods before ten days after receipt of such goods by the debtor; and”.
Subsec. (e). Pub. L. 103–394, § 501(b)(4)(A), substituted “section 101, 741, or 761” for “section 101(34), 741(5), or 761(15)” and “section 101 or 741” for “section 101(35) or 741(8)”.
Subsec. (f). Pub. L. 103–394, § 501(b)(4)(B), substituted “section 741 or 761” for “section 741(5) or 761(15)” and “section 741” for “section 741(8)”.
Subsec. (g). Pub. L. 103–394, § 222(a), added subsec. (g) relating to return of goods.
1990—Subsec. (e). Pub. L. 101–311, § 203, inserted reference to sections 101(34) and 101(35) of this title.
Subsec. (g). Pub. L. 101–311, § 103, added subsec. (g) relating to trustee’s authority to avoid transfer involving swap agreement.
1986—Subsec. (a)(1). Pub. L. 99–554, § 257(d), inserted reference to section 1202 of this title.
Subsec. (e). Pub. L. 99–554, § 283(l), inserted a comma after “stockbroker”.
1984—Subsec. (a)(1). Pub. L. 98–353, § 461(a), substituted “; or” for “; and”.
Subsec. (b). Pub. L. 98–353, § 461(b), substituted “a trustee under sections 544, 545, and” for “the trustee under sections 544, 545, or”.
Subsec. (c). Pub. L. 98–353, §§ 351(1), 461(c)(1)–(4), substituted “Except as provided in subsection (d) of this section, the” for “The”, substituted “a trustee” for “the trustee”, struck out “right” before “or common-law”, inserted “of goods that has sold goods to the debtor” after “seller”, and struck out “of goods to the debtor” after “business,”.
Subsec. (c)(2). Pub. L. 98–353, § 461(c)(5)(A), inserted “the” after “if” in provisions preceding subpar. (A).
Subsec. (c)(2)(A). Pub. L. 98–353, § 461(c)(5)(B), substituted “a claim of a kind specified in section 503(b) of this title” for “an administrative expense”.
Subsec. (d). Pub. L. 98–353, § 351(3), added subsec. (d). Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 98–353, §§ 351(2), 461(d), redesignated former subsec. (d) as (e) and inserted “financial institution” after “stockbroker”.
Subsec. (f). Pub. L. 98–353, § 393, added subsec. (f).
1982—Subsec. (d). Pub. L. 97–222 added subsec. (d).
Amendment by Pub. L. 109–390 not applicable to any cases commenced under this title or to appointments made under any Federal or State law, before
Amendment by Pub. L. 109–8 effective 180 days after
Amendment by Pub. L. 105–183 applicable to any case brought under an applicable provision of this title that is pending or commenced on or after
Amendment by Pub. L. 103–394 effective
Amendment by section 257 of Pub. L. 99–554 effective 30 days after
Amendment by section 283 of Pub. L. 99–554 effective 30 days after
Amendment by Pub. L. 98–353 effective with respect to cases filed 90 days after