MEMORANDUM OP OPINION
KATZ, Bankruptcy Judge:On September 24, 1979 Verco Industries, debtor-appellant, entered into an escrow contract with Spartan Plastics for the sale of certain machinery, tools and a building lease, all which were used in conjunction with the manufacture of 25 pound practice bombs. The consideration for the sale consisted of $125,595 cash, $85,000 worth of castings, $36,860 in a prepaid sublease, the assumption by Spartan of approximately $20,000 in outstanding obligations and a promissory note back to Verco in the amount of $37,110. The sale was completed on December 21, 1979 when Spartan received a bill of sale, an assignment of the building lease, and a covenant not to compete.
On July 23, 1980 Verco filed a petition under Chapter 11 of the Bankruptcy Code. As debtor in possession, pursuant to § 544 of the Bankruptcy Code (11 U.S.C. § 544), Verco sought to invalidate the transfer under California Commercial Code §§ 6101-6111 dealing with bulk transfers and California Civil Code § 3440 relevant to fraudulent conveyances. Verco also sought to enforce the payment of the $37,110 promissory note, pursuant to § 541 of the Code (11 U.S.C. § 541).
After trial the lower court found that the transfers were invalid as against creditors of Verco partly for failure of Spartan to take possession of the property within a commercially reasonable time, as required by California Civil Code § 3440 and partly because of Spartan’s failure to comply with the California bulk transfer laws. California Commercial Code §§ 6107, 6105. Having found that the transfers were conclusively presumed fraudulent under California law the court invalidated the transfer and ordered that the debtor-in-possession shall recover the property for the benefit of the estate under 11 U.S.C. §§ 550, 544(b). The court also concluded that because the transfer of property to Spartan was invalidated, Spartan is relieved of its obligation to pay the outstanding $37,100 promissory note to Verco. Verco has appealed the decision of the trial court assigning as error the order relieving Spartan of its obligation under the promissory note.
The sole issue on appeal is whether a transferor may recover the purchase price under a sale agreement when the transfer has been invalidated by the debtor as debt- or-in-possession in a bankruptcy proceeding. At oral argument appellee conceded that the violation of bulk transfer law was so broad that the entire transfer could have been invalidated on that ground alone. Therefore the issue will be decided solely in accordance with the operation of the bulk transfer law.
It is the appellant’s position that two unrelated causes of action have arisen out of the transaction with Spartan. The first cause of action is that of the debtor to sue for the balance of the purchase price due on the sale agreement under 11 U.S.C. § 541(a). The second cause of action is that of the debtor-in-possession to avoid a fraudulent transfer on behalf of creditors under 11 U.S.C. § 544(b). The appellee contends that where a transfer is invalidated for failure to comply with the bulk transfer laws there is a failure of consideration and the promissory note is rendered unenforcea*350ble. The appellee also argues that the contract is unenforceable because it is a contract made in fraud of creditors. The latter contention of the appellee is without merit and will be dismissed summarily.1 We therefore turn to the first contentions of the parties.
California Commercial Code §§ 6101-6111 provides comprehensive regulation of bulk transfers. Section 6105 places a duty upon the transferee to record and publish a notice containing specified information about the intended bulk transfer. When the transferee fails to give notice any bulk transfer is deemed fraudulent and void against any creditor of the trans-feror. Cal.Com.Code § 6105.
Case law and commentators uniformly agree that as between the original transferor and transferee, failure on the part of the transferee to comply with the bulk transfer law does not render the contract void, nor does it provide a basis upon which to rescind the contract. See Jeffery v. Volberg, 159 Cal.App.2d 815, 324 P.2d 964 (1958); Martinez v. Clemente, 19 U.C.C. Rep. 652 (N.Y.1976); Peter Escalle v. Frank Mark, 183 P. 387 (Nev.1919); 5 A.L.R. 1517, 24 A.L.R.2d 1030; Note, Creditor’s Remedies Under Article 6 of the Uniform Commercial Code — A Fifth Circuit Analysis, 10 Cum.L.Rev. 739 (1980). The reason for this rule is that the bulk transfer laws were enacted for the protection of creditors of the transferor and not for the benefit of the transacting parties. Jeffery v. Volberg, supra, 159 Cal.App.2d at 818, 324 P.2d 964; Cooley v. Brennan, 102 Cal.App.2d Supp. 952, 228 P.2d 104 (1951).
The issue before the court is one of first impression. Case law and commentary however support the view that the transfer- or is still entitled to maintain an action for the price even though the transaction was set aside for violation of the bulk transfer laws. In Jeffery v. Volberg, supra, the court held that a party could not refuse to perform under a contract of sale merely because the transferee had not complied with the bulk transfer laws. In so holding the court stated that the bulk transfer statute does not “preclude the seller from recovering the purchase price of a sale made in violation thereof.” Id. 159 Cal.App.2d at 818, 324 P.2d 964.
In Clifton v. Dunn, 208 Ga. 326, 66 S.E.2d 735 (1951) the court refused to allow rescission of a contract of sale where claims were being made on the transferee by creditors and the bulk transfer laws were not complied with. The court further recognized that even though the contract of sale would not be rescinded the creditors of the trans-feror could reach the transferred goods by garnishment. Apparently the rule we announce today would not be as harsh on non-complying transferees as could be reached in other jurisdictions.2 To hold that a non-complying transferee could refuse to pay the purchase price or be allowed a set-off would seem to defeat the purpose of the bulk transfer laws. There would be no risk in noncompliance because a transferee could always claim a reduction in the purchase price or set-off against creditors for any amounts the transferee had already paid.3 The protection for the transferee is that he is entitled to any pro*351ceeds in excess of all creditors’ claims against the property and a credit against such claims paid to the creditors in the transferor’s bankruptcy. Cornelius v. J. & R. Motor Supply Co., 9 U.C.C.Rep. 709 (Ky. 1971).
At oral argument a question arose as to whether a trustee in bankruptcy must elect between invalidating the transfer on behalf of the creditors or suing to enforce a contract for the purchase price on behalf of the debtor. Language in Matter of Seward Dredging Company, 39 Am.B.R. 372 (1917) and J. H. Hincke Printing Company v. C. A. Bailey, 11 Am.B.R. (N.S.) 500 (1918) would seem to indicate that such an election would need to be made. Both cases basically held that the trustee in bankruptcy stands in the shoes of both the debtor and creditors. The cases further held that where the trustee has two rights to property in his custody, even though they are sometimes different and antagonistic, he can take his choice. These cases however deal with situations where the trustee has two rights to gain title to the same property. It only follows that the trustee can choose either right to the property as there is no need to gain title twice.
What we have in the present case is a situation highly distinguishable from the above case. Here we have two causes of action to different property. A trustee in bankruptcy first ascends to the rights of creditors to set aside a non-complying bulk transfer and recover the property for the benefit of the estate. See 11 U.S.C. § 544(b); Dannig v. Daylin, 488 F.2d 185, 13 U.C.C.Rep. 691 (9th Cir. 1973); In re Albany Brick Co., Inc., Leach v. Burns Brick Co., 12 U.C.C.Rep. 165 (D.C.Ga.1972); In re Rome Furniture Mart, Inc., 20 U.C.C.Rep. 1009 (D.C.Ga.1976); and secondly acquires all causes of action of the debtor which he is empowered to sue on for the benefit of the estate. 11 U.S.C. § 541(a)(1); R.Bankr. Proc. 610; 4 Collier on Bankruptcy ¶ 541.-10[5],
The fact that the debtor herein is a debtor-in-possession does not alter the above stated rights, for a debtor-in-possession holds substantially all the rights, powers and duties of a trustee in a Chapter 11 case. 11 U.S.C. § 1107. Since the trustee or debtor-in-possession holds two separate causes of action in different property we hold that an election need not be made between the two and both causes of action may be prosecuted. Clearly if the debtor would have sued in an action to recover the purchase price only, any pre-transfer creditor of the debtor would be able to proceed in state court to set aside the transfer as against the transferee.
In the present case Spartan had a duty to comply with the bulk transfer law and failed to do so. Therefore the risk of loss must be borne by the transferee. It is also evident that Spartan received everything it was promised under the sales contract and therefore there is no failure of consideration.
A further issue which must be discussed is whether Spartan is entitled to assert a claim against Verco as a result of the avoidance of the transaction and the collection by Verco of the promissory note.
Cases such as Buffum v. Barceloux, 289 U.S. 227, 53 S.Ct. 539, 77 L.Ed. 1140 (1933), and Gelinas v. Buffum, 67 F.2d 380 (9th Cir. 1933) as well as Misty Management Corp. v. Lockwood, 539 F.2d 1205 (9th Cir. 1976), all decided under the Bankruptcy Act of 1898 which seem to stand for the proposition that a transferee whose transfer is avoided, obtains a claim, are distinguishable from this case.
In each of the cases cited immediately above, the transferor/debtor was guilty of an act which made the transfer fraudulent as to creditors, and hence voidable. Here the transferor/debtor did nothing of the kind. In fact the transfer here was avoided solely because of the failure of the transferee to comply with the state law. The transferor is blameless and hence should not suffer.
None of the above cases, nor In re Hough, 4 B.R. 217 (Bkrtcy.Cal.1980) hold that the transferee whose transfer is avoid*352ed is entitled to an automatically proved up claim. These cases allow such entity to file a proof of claim and then attempt to sustain it.
Although no set-off was pleaded below, that issue need be disposed of. Section 553 of the Code permits a set-off of mutual debts that arose before the commencement of the case. 11 U.S.C. § 553(a).
Here, we can find no mutual debt. Spartan is indebted to Verco on the promissory note. Verco is not indebted to Spartan for anything, having transferred to Spartan all that was bargained for.
The reason Spartan has been deprived of those assets is not because of any act of Verco, but rather as a result of its own negligence. Having failed to comply with the bulk transfer law certain paramount rights are created in favor of third party creditors. The exercise of these rights by a third party cannot create a debt by Verco, let alone a mutual debt.
Had Spartan fully paid the purchase price before the transfer was avoided, it certainly could not have sued Verco for return of the money, nor could it have had the basis of a set-off claim.
We therefore hold that Verco is entitled to judgment on the promissory note against Spartan in the sum of $37,110 and reverse the holding of the trial court, with instructions to enter judgment accordingly.
REVERSED.
. The appellee relies on Severance v. Knight--Counihan Co., 29 Cal.2d 561, 177 P.2d 4 (1947) for the proposition that an executory contract made in fraud of creditors is unenforceable. The doctrine of Severance, supra, is limited however to cases in which there is an actual intent to defraud. The court therein rationalized that when the object of a contract is prohibited by penal law the contract is void. In the present case there was no showing of actual fraud or illegal purpose. The contract was merely ineffective to pass title as against the creditors of Verco. As between the parties the failure to comply with the bulk transfer law does not effect the validity of the sale. See Jeffery v. Volberg, 159 Cal.App.2d 815, 324 P.2d 964 (1958); Cal.Com.Code § 6105.
. In jurisdictions, other than California (which have adopted Uniform Commercial Code § 6106) a transferee may become liable to pay both the purchase price and all claims of the transferor’s creditors. Reforming and Rewriting Article Six of the U.C.C., 81 Com.L.J. 285 (1976).
. See similar reasoning in Borland v. Walker, 7 Ala. 269 (1845).