United States: To Have And To Hold: Third Circuit Rules That Physical Possession Of Goods Is Required Under Section 503(b)(9) Of The Bankruptcy Code

Last Updated: November 24 2017
Article by Danielle Barav-Johnson

Since its enactment as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, section 503(b)(9) of the Bankruptcy Code has provided an important safety net for creditors selling goods to financially struggling companies that file for bankruptcy. The provision gives vendors an administrative expense priority claim for the value of goods "received by the debtor" during the 20-day period before the bankruptcy petition date. The U.S. Court of Appeals for the Third Circuit recently considered section 503(b)(9) and its relationship with another important vendor protection—reclamation rights under section 546 of the Bankruptcy Code and related nonbankruptcy law—in In re World Imports, Ltd., 862 F.3d 338 (3d Cir. 2017). The Third Circuit reversed lower court rulings that the phrase "received by the debtor" in section 503(b)(9) includes constructive possession of goods at the time title is transferred, in addition to physical possession of the goods.

Section 503(b)(9) Claims and Reclamation Rights

Section 503(b)(9) provides that a creditor shall have an administrative expense claim for "the value of any goods received by the debtor within 20 days before the date of commencement of a [bankruptcy] case . . . in which the goods have been sold to the debtor in the ordinary course of such debtor's business." Administrative expense priority is a benefit to creditors and a burden to debtors. Unless the creditor agrees otherwise, the debtor cannot confirm a chapter 11 plan without paying administrative claims in full. See 11 U.S.C. § 1129(a)(9)(A). By contrast, vendor claims that do not meet the requirements of section 503(b)(9) typically are treated as general unsecured claims, entitling the holders to no more than their pro rata share of the estate's unencumbered assets.

Section 503(b)(9) works in tandem with a seller's "reclamation" rights under applicable nonbankruptcy law. Section 546(c) of the Bankruptcy Code provides that, with certain exceptions, the avoidance powers of a trustee or chapter 11 debtor-in-possession are subject to the right of a vendor who sold goods to a debtor in the ordinary course of the vendor's business to "reclaim" those goods from the debtor, including by stopping shipment of or retrieving the goods, "if the debtor has received such goods while insolvent" and within 45 days before filing for bankruptcy, provided that the vendor timely gives notice of the reclamation. Section 546(c)(2) explicitly provides that a seller failing to timely give such notice may nonetheless "assert the rights contained in section 503(b)(9)." Thus, the applicability of both provisions hinges in part on when a debtor receives the applicable goods.

In World Imports, the Third Circuit examined the meaning of "received" under section 503(b)(9) as a matter of first impression in the circuit courts of appeal.

World Imports

World Imports, Ltd. (the "debtor") purchased furniture and other goods from two international vendors. The vendors shipped the goods to the debtor by common carrier more than 20 days before it filed for chapter 11 protection on July 3, 2013, in the Eastern District of Pennsylvania. Certain of the goods were shipped directly ("drop-shipped") to the debtor's customers, while others were shipped directly to the debtor. In each case, the goods were shipped "free on board" ("FOB") at the port of origin, meaning that title to the goods and the risk of loss passed to the debtor at the port. All of the goods were received by either the debtor or its customers within the 20-day period prior to the debtor's bankruptcy filing.

The vendors asserted administrative expense claims under section 503(b)(9), arguing that the goods were "received" when they were delivered to the debtor or its customers. The debtor countered that it "received" the goods for purposes of section 503(b)(9) when title to the goods transferred to the debtor upon shipment FOB—prior to the 20-day window.

Because the term "received" is not defined in the Bankruptcy Code, the debtor and the vendors insisted that the definition must be drawn from nonbankruptcy law, but they disagreed on the appropriate source of law. The vendors argued that the definitional "gap" should be filled by state law—specifically, the Uniform Commercial Code (the "UCC"). The debtor maintained that the definition should be drawn from the law governing the sale transaction, which in this case was the Convention on Contracts for the International Sale of Goods (the "CISG") and the international commercial terms ("incoterms") incorporated therein.

The bankruptcy court held that, as an international treaty, the CISG preempts application of the UCC and provides the meaning of undefined terms for transactions which fall under its purview. Although the CISG and the incoterms do not directly define the term "received," the court explained, the incoterms provide that goods shipped FOB are delivered by the seller when placed on board a common carrier for shipment. As a result, the bankruptcy court found that all goods were constructively received by the debtor when they were shipped FOB more than 20 days prior to the bankruptcy petition, except for the drop-shipped goods, which were never received by the debtor. Therefore, the court ruled that the vendors were not entitled to a section 503(b)(9) claim for the value of the goods.

The district court affirmed on appeal, and the vendors appealed to the Third Circuit.

The Third Circuit's Ruling

A three-judge panel of the Third Circuit reversed. The panel held, among other things, that the UCC is the proper source of law to fill in the gaps of undefined terms in section 503(b)(9), regardless of whether the CISG otherwise governed the transaction.

The Third Circuit noted the presumption that an undefined statutory term incorporates the ordinary meaning of the term which was in use when the statute was enacted, if there was one. After consulting several dictionaries, the panel concluded that the legal and dictionary definitions of "received" all require physical, as distinguished from constructive, possession. Moreover, the Third Circuit explained, Article 2 of the UCC, which defines "receipt" of goods as "taking physical possession of them" (see UCC § 2-103(1)(c)), governed the sale of goods in 49 states when section 503(b)(9) was enacted, and the legislative history indicates that Congress relied on the UCC definition for the term "received."

Because section 546(c) of the Bankruptcy Code (governing reclamation) was designed to function in conjunction with section 503(b)(9), the Third Circuit panel examined the meaning of "received" under section 546(c), reasoning that a consistent definition of the term must apply to each provision. The Third Circuit had previously ruled in Montello Oil Corp. Cities Service Co. v. Marin Motor Oil, Inc. (In re Marin Motor Oil, Inc.), 740 F.2d 220 (3d. Cir. 1984), that Congress intended to incorporate the UCC's reclamation provision (UCC § 2-702) into the Bankruptcy Code when it enacted section 546(c) in 1978 and, therefore, that the provision incorporates the UCC definition of "receipt." Adopting that reasoning, the Third Circuit panel in World Imports concluded that section 503(b)(9) must incorporate the same UCC definition.

Notably, the Third Circuit held that the definitional gap in section 503(b)(9) is not to be filled by reference to applicable law on a case-by-case basis. The court determined instead that Congress incorporated the UCC definition of "receipt" into section 503(b)(9) upon its enactment as a static definition. In other words, the Third Circuit panel explained, the meaning of "received" is not drawn from applicable law governing the relevant transaction, but rather is consistent regardless of the terms of the underlying transaction.

The Third Circuit rejected the debtor's argument that the goods were constructively "received" more than 20 days prior to the bankruptcy filing when they were delivered FOB to a common carrier, at which point both title and the risk of loss passed to the debtor. The court ruled that neither transfer of title nor the risk of loss amounts to constructive receipt of goods. Furthermore, the court noted, although physical receipt of goods by an agent of the buyer constitutes constructive receipt for purposes of section 503(b)(9), Third Circuit case law has consistently held that common carriers do not qualify as agents under section 503(b)(9) or the UCC.

The court ruled that, because the debtor physically received the goods which were not drop-shipped within 20 days of filing for bankruptcy, the vendors were entitled to an administrative expense claim for the value of those goods delivered to the debtor.

Ramifications of World Imports: In re SRC Liquidation, LLC

World Imports is significant as the first circuit court decision to address whether physical possession is required for goods to be "received" under section 503(b)(9). However, the Third Circuit was not the first court to consider the issue. Several other courts have similarly held that a section 503(b)(9) claim requires physical possession of goods by the debtor or its agent within the 20-day prepetition window. See, e.g., In re Wezbra Dairy, LLC, 493 B.R. 768 (Bankr. N.D. Ind. 2013) (holding that goods are "received" under section 503(b)(9) when they come into the debtor's physical possession, rather than when title to the goods transfers to the debtor); In re Circuit City Stores, Inc., 432 B.R. 225 (Bankr. E.D. Va. 2010) (same). It remains to be seen whether other courts not bound by the Third Circuit precedent will also adopt this approach.

Although the Third Circuit did not address the issue, World Imports is likely to impact administrative expense claims for goods that have been drop-shipped. Like several other courts that have considered the matter (see, e.g., Ningbo Chenglu Paper Prod. Mfg. Co. v. Momenta, Inc., 2012 WL 3765171 (D.N.H. Aug. 29, 2012); In re ADI Liquidation, Inc., 2017 WL 2712287 (Bankr. D. Del. June 22, 2017); In re Momenta, Inc., 455 B.R. 353, 361 (Bankr. D.N.H. 2011)), the bankruptcy court in World Imports held that drop-shipped goods were not "received" by the debtor for purposes of section 503(b)(9). See In re World Imports, Ltd., 511 B.R. 738, 740 n.2 (Bankr. E.D. Pa. 2014), aff'd, 549 B.R. 820 (E.D. Pa. 2016), rev'd, 862 F.3d 338 (3d Cir. 2017). Neither the district court nor the Third Circuit directly reviewed this ruling (because it was not appealed), focusing instead on the goods that were not drop-shipped.

Nevertheless, the bankruptcy court in In re SRC Liquidation, LLC, 573 B.R. 537 (Bankr. D. Del. 2017), relied on World Imports in ruling that goods drop-shipped directly to a debtor's customers were not "received" by the debtor for purposes of section 503(b)(9). In that case, a vendor drop-shipped goods to the debtor's customers using the debtor's United Parcel Service ("UPS") account. The court held that transfer of title to the debtor at the time of shipment did not constitute receipt of goods under section 503(b)(9). Further, the court determined, because UPS is a common carrier, it could not serve as the debtor's agent for the purpose of receipt.


World Imports clarifies that "received" under section 503(b)(9) means physical possession of goods rather than the passage of title.

In addition, on the basis of World Imports, SRC Liquidation, and similar rulings, vendors who drop-ship goods directly to customers of a buyer may not rely on section 503(b)(9) to improve their position in the event the buyer files for bankruptcy. To mitigate potential losses, such vendors may be forced to look to their reclamation rights instead. Alternatively, a vendor could require a buyer to take constructive possession prior to delivery of drop-shipped goods by, for example, arranging for receipt of the goods by an agent of the buyer or a bailee when the goods are delivered to a storage facility or processed by a customs agent. See, e.g., Momenta, 455 B.R. at 360–61 (noting that attorning goods to a debtor, e.g., at a storage facility or through receipt by a customs agent, would result in constructive possession for purposes of section 503(b)(9)).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions