MEMORANDUM OPINION AND ORDER
The United States of America, for Farmers Home Administration (FmHA), appeals from an Order of the bankruptcy court denying FmHA’s motion for relief from the automatic stay to set-off amounts owed by the Commodity Credit Corporation (CCC) under five Agricultural Stabilization and Conservation Service (ASCS) contracts with the Debtor
1
against the amount the Debt
*418
ors owed to the FmHA on a promissory note,
Although stated somewhat differently by Appellant, this appeal really raises three issues:
1) Are the four contracts in question exec-utory contracts?
2) Are the debts potentially owed to the Debtor pursuant to those contracts debts that arose pre-petition?
3) Does a change in capacity of the pre-pe-tition Debtor to a post petition Debtor-in-Possession destroy the mutuality of obligation necessary to set-off under 11 U.S.C. § 553?
The bankruptcy court answered the first and third of the foregoing questions in the affirmative and the second in the negative. Appellant assigns error to all three answers.
Appellant argues that the contracts were not executory because after the Debtor entered into them in March of 1988, the Debtor had no affirmative duties under them except to file timely a Form ASCS-578, which Appellant asserts was done pri- or to the filing of Debtor’s bankruptcy petition on July 11, 1988. 3 Appellant in effect argues that as of the date the bankruptcy petition was filed, the contracts were executed, with payment being the only remaining thing to be done under each contract. Appellant implies that under the contracts, the right to receive payments was fixed as of the time the bankruptcy petition was filed but that the amounts of such payments — which are tied to the price of the particular crops covered by the contracts for the 1988 year — would not be ascertainable under October and December of 1988, when the actual cash payments were due to be made.
The bankruptcy court found that the contracts in question required that the Debtor
limit the acreage planted with crops, devote acreage to approved conservation uses, protect designated land from weeds, insects, rodents, and wind and water erosion by using certain approved covers or conservation practices through December 31, 1988, and not allow grazing or mechanical harvesting on the designated land. Debtor must also file a specified form listing all crops and land uses on the farm. As of the date the bankruptcy petition was filed, approximately six months’ performance had been rendered under these contracts, and approximately six months remained in which Debtor was bound to comply with the terms of these contracts.
Full compliance with the requirements of these contracts will entitle Debtor to deficiency and/or diversion payments as computed and announced by the CCC. Upon Debtor’s failure to comply with the terms and conditions of the contract, CCC has the right to declare him ineligible for any benefits under the contract, may require a refund of any advance or final payment, and may require payment of liquidated damages.
Order Denying in Part and Granting in Part Setoff of Entitlement Payments at pp. 22-3.
None of the foregoing findings of fact by the bankruptcy court are clearly erroneous.
See
F.R.Bankr.P. 8013;
Rowe International, Inc. v. Herd (In re Herd),
A leading bankruptcy treatise, while observing that there is no specific definition of an executory contract, states:
Generally, contracts on which material performance remains due on both sides are executory. If performance on one side is completed, the contract is no longer executory.
1 Collier Bankruptcy Manual ¶ 365.01 at pp. 365-2-3 (3rd ed. 1989).
A definition of an executory contract in the bankruptcy context which has been frequently quoted and followed is that set forth by Professor Vern Countryman:
A contract under which the obligations of both the bankrupt and the other party to the contract are so far unperformed that the failure of either to complete performance would constitute a material breach excusing the performance of the other.
Countryman, Executory Contracts in Bankruptcy: Part I, 57 Minn.L.Rev. 439, 460 (1973) (hereinafter “Countryman ”).
See In re Pacific Express, Inc.,
Given the foregoing definitions of an ex-ecutory contract, the bankruptcy court’s application of the law to the facts herein was correct and his conclusion that the contracts in question were executory contracts, on which substantial performance remained to be completed post-petition, was not contrary to law.
Accord, In re Fryar,
The Court finds it unnecessary to reach the third issue raised by this appeal because the lack of mutuality of the debts,
see, e.g., Braniff Airways, Inc. v. Exxon Co., U.S.A. (In re Braniff Airways, Inc.),
The bankruptcy court’s Order denying FmHA’s motion for set-off of debts owed by the ASCS/CCC to the Debtor pursuant to “Agreements # 3-# 6,” the four contracts which are the subject of this appeal, is AFFIRMED.
IT IS SO ORDERED.
Notes
. Debtor Jerry Garland Evatt is the only signatory to the ASCS/CCC contracts.
. The bankruptcy court granted the motion of the FmHA with respect to a debt owed by CCC to the Debtor for an overpayment by Debtor on a sixth contract, a Farm Storage Note and Security Agreement dated August 8, 1985.
. The Court finds no evidence in the record of whether or when such form was filed.
. Based on "[p]rovisions for the timely assumption [of] Agreements # 2-# 6 within Debtors’ plan of reorganization,” the bankruptcy court found that the debtor-in-possession intended to assume and complete performance of those contracts. Order Denying in Part and Granting in Part Setoff of entitlement Payments at p. 11. Appellant does not challenge that finding or raise any issue concerning the timing or effectiveness of assumption of the contracts.
. The Court agrees with the bankruptcy court that the cases of
Moratzka v. United States Agriculture Stabilization and Conservation Service (In re Matthieson),