Publications

Articles on Contracts

What ‘As Is’ Is - and Isn’t

By Dmitry N. Feofanov
February
2017
Article
Page 32
Sellers can use "as is" to disclaim implied warranties. But they can't disclaim fraud, and "as is" only applies if no "circumstances indicate otherwise" and the seller has not waived the disclaimer.

Breach of contract claim starts timer for legal malpractice claim

January
2017
Illinois Law Update
Page 20
Filing a breach of contract claim triggers the limitations period for a legal malpractice claim against the attorney who assisted in drafting the contract.

Are Courts Moving Past the ‘Four Corners’ Rule in Duty-to-Defend Cases?

By Richard J. VanSwol
December
2016
Article
Page 30
Illinois courts seem increasingly willing to look beyond the terms of the policy and allegations of the complaint when deciding whether a liability insurer has a duty to defend its insured.

The Provisional Admission of Parol Evidence?

By Aaron T. Dozeman
May
2015
Article
Page 34
The four corners rule bars admission of parol evidence to interpret contracts unless they're ambiguous. But in rare cases, the provisional admission approach might allow such evidence.

New residential real estate contract incorporates common modifications

By Matthew Hector
October
2014
LawPulse
Page 466
A new version of the widely used multi-board real estate contract incorporates the most common changes lawyers made in its predecessor.

Protect Your Business Clients with a Prejudgment Interest Provision

By Kaitlyn Anne Wild
August
2014
Article
Page 394
Damage awards can take years, and Illinois' prejudgment interest statute doesn't always apply. Why not include a prejudgment interest provision in contracts for your business clients?

Provision requiring mutual and written consent for termination of contract is void as against public policy

April
2014
Illinois Law Update
Page 168
On February 7, 2014, the First District Appellate Court of Illinois held that a contract provision stating the agreement could only be terminated upon the express written consent of both parties created a perpetual contract, and was therefore void as contrary to public policy.

Principal must have full knowledge or have indicated agent had authorization to ratify contract

May
2013
Illinois Law Update
Page 228
On March 8, 2013, the Illinois Appellate Court, First District, held there must be evidence that a principal indicated an agent was authorized to bind the principal to a contract prior to its signing, or that the principal had knowledge of the contract, for the principal to be liable under claims of apparent authority or ratification.

The Two Faces of Contract Ambiguity Claims

By Jack Leyhane
May
2012
Article
Page 264
You could argue that a contract provision is ambiguous because it has more than one meaning. Or you could argue that it doesn't have any clear meaning. The article looks at both approaches.

Employment covenants not to compete: the high court lays down the law

By Helen W. Gunnarsson
January
2012
LawPulse
Page 10
Rumors of the death of the legitimate-business-interest test as a measure for determining the legitimacy of restrictive covenants were greatly exaggerated, the supreme court says.

Two-year limitation on claims under insurance policy violates Illinois public policy

November
2011
Illinois Law Update
Page 556
On August 30, 2011, the Appellate Court for the Third District of Illinois reversed a circuit court's denial of a motion to compel arbitration.

Civil engineers’ duty of care defined by contractual obligation

By Helen W. Gunnarsson
March
2011
LawPulse
Page 118

Supreme court: contractors can enforce oral home-repair contracts

By Helen W. Gunnarsson
November
2010
LawPulse
Page 558

2008 Global Credit Crisis and the Impossibility of Performance Doctrine

October
2010
Illinois Law Update
Page 508
On July 19, 2010, the Appellate Court of Illinois, First District, upheld a section 2-615 motion to dismiss from the Circuit Court of Cook County, finding that the 2008 global credit crisis was not adequate grounds to rescind a contract under the doctrine of impossibility of performance.

Third-party clients of licensed day and temporary labor service agencies face stiffer penalties for failure to meet their agreements. PA 096-1185

October
2010
Illinois Law Update
Page 508
A third-party client is now legally responsible to pay wages and payroll taxes to licensed day and temporary labor service agencies for the services performed according to the terms in the respective invoices and agreements. (820 ILCS 175/30). 

Violations of the Home Repair and Remodeling Act do not render a contract void and unenforceable

September
2010
Illinois Law Update
Page 452
On June 30, 2010, the Appellate Court of Illinois, First District, reversed a decision of the Circuit Court of Cook County, finding that a contractor's procedural violations of the Home Repair and Remodeling Act ("the Act") (815 ILCS 513/1 et seq) did not preclude the contractor from asserting a mechanic's lien or breach of contract claim.

Failure to provide a sworn statement detailing construction fees does not automatically defeat a breach of contract claim

December
2009
Illinois Law Update
Page 604
On September 30, 2009, the Illinois Appellate Court, Second District, affirmed in part and reversed in part the Circuit Court of Du Page County's decision to grant the defendant's motion to dismiss a complaint stemming from an unpaid construction bill, and remanded the case for further proceedings. 

Jordan v Knafel: A Troubling Take on Mutual Mistake?

By Joseph Siprut
June
2009
Article
Page 308
The first district found for Micheal Jordan against his former mistress in a case that, while interesting, includes a troubling analysis of the mutual-mistake doctrine you should know about.

Promissory Estoppel: Alive and Well in Illinois

By Helen W. Gunnarsson
May
2009
LawPulse
Page 220
The Illinois Supreme court holds that promises "reasonably inducing action or forbearance" are binding in Illinois.

Drafting Enforceable Noncompetition Agreements in Illinois

By Peter A. Steinmeyer
April
2009
Article
Page 194
Learn how to increase the odds that your employer-client’s noncompete will pass judicial muster in Illinois’ unfriendly legal environment.

Only actual damages are recoverable under Breach of Promise Act

November
2008
Illinois Law Update
Page 554
On August 20, 2008, the Illinois Appellate Court, First District, affirmed the judgment of the Circuit Court of Cook County finding that the defendant had committed legal malpractice.

Fraudulent Misrepresentation in Illinois Employment Cases

By Richard J. Gonzalez
September
2008
Article
Page 464
More at-will employees who have been misled by employers' oral promises are suing for fraudulent misrepresentation instead of breach of contract.

The “Buyer’s Option” Contract in Illinois

By John J. D’Attomo
August
2008
Article
Page 418
Recent opinions have recognized a buyer's-option contract that obligates sellers to sell without also requiring buyers to buy.

Winning the Battle of the Forms

By William J. Ryan and John B. Thornton
July
2008
Article
Page 364
Many contracts are formed by the exchange of price quotes, purchase orders, and invoices, which often contain conflicting terms. This article reviews typical "battle of the forms" issues.

Caveat Contractor: Recent Cases Interpret the Home Repair and Remodeling Act

By Brian R. Kalb
June
2008
Article
Page 298
A discussion of recent HRRA cases, including a new one from the supreme court holding that the Act doesn't apply to subcontractors.

Fraudulent misrepresentation tort limited to business

By Helen W. Gunnarsson
June
2008
LawPulse
Page 278
Fraudulent misrepresentation applies only to business-related, not personal, injury, the Illinois Supreme Court rules.

Home Repair and Remodeling Act: unfair to contractors?

By Helen W. Gunnarsson
June
2008
LawPulse
Page 278
A newsletter author argues that the Act is unfair to contractors and that the recent supreme court case interpreting it defeats its purpose.

Restrictive covenant unenforceable due to termination of employment agreement

May
2008
Illinois Law Update
Page 236
On February 21, 2008, the Illinois Appellate Court, First District, affirmed the judgment of the Circuit Court of Cook County denying the plaintiff's request for a preliminary injunction.

Seller must refund earnest money deposit for failure to provide real estate disclosure statement

April
2008
Illinois Law Update
Page 180
On January 30, 2008, the Illinois Appellate Court, Fifth District, affirmed the judgment of the Circuit Court of Christian County awarding the plaintiffs $10,000 plus costs for the defendant's failure to provide the plaintiffs with a real estate disclosure statement. 

Illinois supremes reject pre-existing debt rule

By Helen W. Gunnarsson
December
2007
LawPulse
Page 622
Under the rule, A’s promise to pay B’s debt is enforceable even if A didn’t put it in writing if it’s made before the debt was incurred. The high court says that’s not the law in Illinois.

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