Where There's a "Will," There Should Be a Way: Why In re Salvino Unjustifiably Restricts the Application of § 523(a)(6) to Exclude Willful and Malicious Breaches of Contract

Abstract

In accordance with the Bankruptcy Code's policy of limiting the privilege of discharge to "honest but unfortunate" debtors, the Code provides that certain types of debts shall be excepted from discharge as a matter of law. Of the twenty-one exceptions to discharge, the exception for "willful and malicious" injuries contained in section 523(a)(6) of the Code has given rise to a split of authority in the United States Circuit Courts of Appeals regarding whether tortious conduct is an essential element of a willful and malicious injury, as defined in section 523(a)(6). This note analyzes the decision in Wish Acquisition v. Salvino (In re Salvino) that a debt arising from a breach of contract not accompanied by tortious conduct is not subject to exception to discharge under section 523(a)(6). This note challenges the reasoning of the court in In re Salvino and argues that the court has immunized an entire class of wrongdoers who were not intended to benefit from the Bankruptcy Code's privilege of granting honest debtors a discharge in bankruptcy. Finally, this note proposes a solution that seeks to address specific concerns raised by the In re Salvino court, while ensuring that bankruptcy courts engage in a meaningful inquiry into the deliberateness of a debtor's injury-causing conduct, thus effectuating the Bankruptcy Code's underlying policy of limiting discharge to only honest but unfortunate debtors.