ASSIGNMENT of CONTRACT RIGHTS 221 Fail in Case of Non-Fulfilment of This Condition

Total Page:16

File Type:pdf, Size:1020Kb

ASSIGNMENT of CONTRACT RIGHTS 221 Fail in Case of Non-Fulfilment of This Condition UniversityUniversity ofof PennsylvaniaPennsylvania LawLaw ReviewReview AndAnd AmericanAmerican LawLaw RegisterRegister FOUNDEDFOUNDED 18521852 PublishedPublished Moasthly.Moathly. NovemberNOYClDber toto June,JIlIIe, byby thethe UnivenmtyUninnit)' ofof PennsylvaniaPel1lll11nni. LawLaw School,School. atat 34th34th andaDd ChestnutCbettnut Streets,Streeb, Philadelphia,Philadelphia, Pa.P•• VOL.VOL. 74.74. JANUARY,JANUARY, 1926.1926. " No.NO·3· 3- ASSIGNMENTASSIGNMENT OFOF CONTRACTCONTRACT RIGHTSRIGHTS ThisThis subject hashas beenbeen muchmuch discusseddiscussed underunder thethe headingheading "alienability of choses inin action."action." InIn continuingcontinuing thethe discussiondiscussion ourour first stepstep should bebe toto abandonabandon altogetheraltogether thethe termtenn "chose in action." ItsIts linguisticlinguistic construction isis faulty, inin thatthat itsits individualindividual wordswords lead one toto thinkthink of somethingsomething very different fromfrom thatthat which the expression as a whole now denotes. There is no "chose" or thing or res.rcs. There isis a right (or claim): against some person. In this article we shall speak in terms of rightsrights (or claims) and not about "choses." It isis even more important that we should cease to use such a phrase as "assignment of contract." Whatever definition we choose for thethe word "contract," itit is not possible to construct accurate rulesrules by the use of such aa phrase. If a contract isis de­de- fined as consisting of thethe facts operating toto create a binding obli­obli- gation-offer, acceptance,acceptance, consideration, etc.-these facts are merely a part 0off recordedrecorded history and surely cannot bebe assigned.assignedL It isis meaninglessmeaningless toto speakspeak of assigning a pastpast event. IfIf aa con­con- tracttract isis defineddefined asas aa promisepromise enforceableenforceable atat law,law, wewe are merelymerely placingplacing emphasisemphasis uponupon oneone ofof thethe operativeoperative factsfacts andand indicatingindicating thatthat itit isis inin factfact operative.operative. AA promisepromise isis merelymerely aa pastpast eventevent andand cannotcannot properlyproperly bebe saidsaid toto bebe assignableassignable byby thethe promisee;promisee; muchmuch ·lessless cancan aa promisepromise bebe assignedassigned byby thethe promisorpromisor whowho mademade it,it, andand itit wouldwould bebe equallyequally erroneouserroneous toto saysay thatthat eithereither partyparty toto aa bilateralbilateral contractcontract cancan assignassign botkboth promises.promises. IfIf contractcontract isis defineddefined asas de-de- (207)(207) HeinOnline -- 74 U. Pa. L. Rev. 207 1925-1926 2082o8 UNIVERSITYUNIVERSITY OFOFPENNSYLVANIA PENNSYLVANIA LAWLAW REVIEWREVIEW notingnoting thethe legallegal relationsrelations ofof thethe partiesparties createdcreated byby agreementagreement oror promise,promise, itit isis againagain erroneouserroneous toto saysay thatthat thethe "contract""contract" cancan oror cannotcannot bebe assigned.assigned. SomeSome ofof thethe legallegal relationsrelations cancan bebe assignedassigned andand somesome cannot.cannot. TheThe legallegal relationsrelations createdcreated byby anyany particularparticular contractcontract mustmust bebe analyzedanalyzed andand thethe assignabilityassignability ofof eacheach oneone mustmust bebe consideredconsidered separately.separately. TheThe legallegal relationsrelations createdcreated byby aa contractcontract areare inin variousvarious com­com- binations;binations; theythey cancan alwaysalways bebe analyze4,analyzed, however,however, intointo rights,rights, powers,powers, privileges,privileges, andand immunities,immunities, eacheach havingshavings itsits necessarynecessary cor­cor- relative.relative. TheThe presentpresent articlearticle willwill notnot considerconsider thethe assignabilityassignability ofof powers,powers, privilegesprivileges oror immunities.immunities. TheyThey maymay inin somesome casescases bebe assignable. InIn thethe lawlaw ofof agencyagency isis toto bebe foundfound thethe oldold maximmaxim "delegatus"delegatwu delegaredelegarenon non potest,"potest," indicatingindicating thatthat thethe powerpower ofof anan agent isis not assignable.assignable. We know,know, however, thatthat thisthis maxim does notnot tell thethe wholewhole story.1story.' TheThe most importantimportant of the legallegal relationsrelations createdcreated by contract is thethe relation of right and duty.duty. The problem of assignment inin connection with thisthis relationrelation is th~the subject of the present article; and it isis restricted toto rights and du­du- ties that are created by contract. DEFINITION To say that one person has a "right" against another means that he has thethe aid of organized society inin controlling the conductcond,!ct of that other person inin some respect. Exactly thethe same ideaidea. isis expressed when we say that that that other person is under a legal duty toto thethe first.first. The one who has thethe right isis in the superior oror moremore advantageous position; thethe dutyduty bearer isis inin thethe inferior or lessless advantageousadvantageous position. AA contract maymay createcreate inin thethe one personperson rightsrights toto moremore thanthan one performance;performance; also,also, itit may createcreate rightsrights inin each of thethe contractingcontracting partiesparties againstagainst thethe other.other. LetLet usus determinedetermine firstfirst whatwhat' isis meantmeant byby thethe assignmentassignment ofof aa right.right. AA simplesimple illustrationillustration willwill bebe ofof service.service. LetLet usus supposesuppose thatthat AA hashas aa rightright thatthat BB shallshall paypay himhim $ioo.$IOO. ItIt isis establishedestablished lawlaw thatthat AA hashas powerpower toto assignassign thisthis rightright toto C.C. 'In Barber Agency Co. v. Co-op. Barrel Co., 133 Minn. 207, i58 N. W. 38 1 In Barber Agency Co. v. Co-op. Barrel Co., 133 Minn. 207, Is8 N. W. 38 (igs6),(1916), itit isis said:said: "It"It isis thethe universaluniversal rulerule thatthat anan agentagent cannotcannot transfertransfer toto anotheranother powerspowers callingcalling forfor thethe exerciseexercise 6fof discretion,discretion, skill,skill, oror judgment."judgment." HeinOnline -- 74 U. Pa. L. Rev. 208 1925-1926 ASSIGNMENTASSIGNMENT OFOF CONTRACTCONTRACT RIGHTSRIGHTS ItIt isis alsoalso establishedestablished lawlaw thatthat thethe assignmentassignment isis operativeoperative withoutwithout thethe consentconsent ofof B.B. AfterAfter thethe assignmentassignment B isis underunder thethe samesame dutyduty asas before;before; thatthat is,is, hehe mustmust stillstill paypay $ioo$100 at thethe timetime andand place specified.specified. TheThe correlativecorrelative right,right, however, isis nono longerlonger inin A;A; itit isis in C.C. The social assistance formerly at A's command isis now available toto CC andand isis notnot available toto A. ' If the foregoingforegoing isis correct,correct, anan assignment ofof anan existing right is an act of the possessor of thatthat rightright which operates to ex-ex­ tinguishtinguish the rightright of thethe'assignor assignor and toto create an exactlye."<:actl:· similar rightright inin thethe assignee. ThisThis definitiondefinition is inin termsterms of legal opera-opera­ tion-oftion--of thethe effect of the assignor's act upon.the action of organ-organ­ izedized society. It is not a descriptive definition enabling us to recognizerecognize an act of assignment when we see one. Such a definition as the foregoing renders some service, but it isis not sufficient standing alone. In order to predict legal opera­opera- tiontion we must be able toto recognize the facts that will bring it about. This is true even though the courts do not start in the beginning with completed descriptive definitions of facts and definite rules of law determining the legal operation of those facts. Perfect definition and fixed rule are the final goal toward which the courts are striving; they are a goal which, as Judge Cardozo tells us, is never actually reached.22 In every decision of a case the court may assume a definition.definition and assert a rule; but thethe facts and decision of that very case add ,toto the inductive basis used by the next court in remaking thethe definition and correcting the rule. The law does not start with definitions and general rules already crystallized and put into definite words. Instead,Instead, some eventsevents occur;occur; A acts and B complainscomplains thereofthereof to aa court. The court must determine what society will do about it;it; this is a deter- •'TheThe NatllreNature ofof thethe JlldicialJudicial Process (1921),(92), passim;passim; especiallyespecially atat p.p. 166:x66: "I"I wa.swas muchmuch troubledtroubled inin spirit, inin my firstfirst years uponupon thethe bench, toto findfind how tracklesstrackless waswas thethe oceanocean on whichwhich I hadhad embarked. II sought forfor certainty.certainty. TI WdSwas oppressedoppressed andand disheartened when II foundfound thatthat thethe questquest forfor itit waswas futilefutile ..•. .. AsAs thethe yearsyears havehave gonegone by,by, andand asas II have reflectedreflected moremore andand moremore uponupon thethe naturenature ofof thethe judicialjudicial process, II havehave becomebecome reconciledreconciled toto thethe uncertainty,uncertainty, becausebecause II havehave growngrown toto seesee itit asas inevitable.inevitable. II have growngrown toto seesee thatthat thethe
Recommended publications
  • In Dispute 30:2 Contract Formation
    CHAPTER 30 CONTRACTS Introductory Note A. CONTRACT FORMATION 30:1 Contract Formation ― In Dispute 30:2 Contract Formation ― Need Not Be in Writing 30:3 Contract Formation ― Offer 30:4 Contract Formation ― Revocation of Offer 30:5 Contract Formation ― Counteroffer 30:6 Contract Formation ― Acceptance 30:7 Contract Formation ― Consideration 30:8 Contract Formation ― Modification 30:9 Contract Formation ― Third-Party Beneficiary B. CONTRACT PERFORMANCE 30:10 Contract Performance — Breach of Contract — Elements of Liability 30:11 Contract Performance — Breach of Contract Defined 30:12 Contract Performance — Substantial Performance 30:13 Contract Performance — Anticipatory Breach 30:14 Contract Performance — Time of Performance 30:15 Contract Performance — Conditions Precedent 30:16 Contract Performance — Implied Duty of Good Faith and Fair Dealing — Non-Insurance Contract 30:17 Contract Performance — Assignment C. DEFENSES Introductory Note 30:18 Defense — Fraud in the Inducement 30:19 Defense — Undue Influence 30:20 Defense — Duress 30:21 Defense — Minority 30:22 Defense — Mental Incapacity 30:23 Defense — Impossibility of Performance 30:24 Defense — Inducing a Breach by Words or Conduct 30:25 Defense — Waiver 30:26 Defense — Statute of Limitations 30:27 Defense — Cancellation by Agreement 30:28 Defense — Accord and Satisfaction (Later Contract) 30:29 Defense — Novation D. CONTRACT INTERPRETATION Introductory Note 30:30 Contract Interpretation — Disputed Term 30:31 Contract Interpretation — Parties’ Intent 30:32 Contract Interpretation —
    [Show full text]
  • Who Needs That Recital of Consideration?
    DraftingDrafting aa newnew dayday Who needs that ‘recital of consideration’? By Kenneth A. Adams t’s hardly a shocking notion that are hereby acknowledged, the parties Farnsworth, Farnsworth on Contracts any given contract could contain hereto covenant and agree as follows. 150 (2d. ed. 1998).) It follows that Ione or more provisions that reflect Recitals of consideration raise a using instead the vague language of a an inaccurate or outdated view of con- number of issues of legal usage. For traditional recital of consideration tract law. What’s more noteworthy is example, NOW, THEREFORE is archa- would be equally ineffective. the fact one such provision — the tra- ic, while in consideration of the premises Similarly, a false recital of consider- ditional recital of consideration — is simply an obscure way of saying ation cannot create consideration appears in most corporate agreements. “therefore” and is superfluous given where there was none. If, in the con- In this article, I explain why that the preceding “therefore.” And refer- tract between Acme and Roe, Acme traditional recital of consideration ences to the value or sufficiency of recites falsely that the payment to Roe fails to serve its intended purpose and consideration are outdated: With the was in consideration of future services why omitting it could only improve a rise of the “bargain test of considera- and Acme subsequently refuses to pay contract. tion” reflected in the Restatement (Sec- the bonus, Acme should prevail in any The ostensible function of a recital ond) of Contracts, the focus of judges action brought by Roe if it succeeds in of consideration is to render enforce- has shifted from the substance of the proving that the recital was false.
    [Show full text]
  • “Supply for Consideration”? Presented by Tony Van Der Westhuysen BA; LLB; H
    12/05/2017 Just what is a “Supply for consideration”? Presented by Tony van der Westhuysen BA; LLB; H. Dip Tax Law; MBA; Cert IV TAA 1 12/05/2017 Legislative Background Section 9-5 You make a taxable supply if: (a) you make the supply for consideration; and (b) the supply is made in the course or furtherance of an enterprise that you carry on; and (c) the supply is connected with the indirect tax zone; and (d) you are registered, or required to be registered. However, the supply is not a taxable supply to the extent that it is GST- free or input taxed. 2 12/05/2017 Section 9-10 Meaning of ‘supply’ • A supply of goods or services; • The provision of advice or information; • A grant, assignment or surrender of real property; • The creation, grant, transfer, assignment or surrender of any right; • Includes financial supplies Continued…. Section 9-10 (continued) Includes • an entry into an obligation or • release from an obligation • to do anything • to refrain from an act • to tolerate an act or situation 3 12/05/2017 What is not a supply? “Supply” does not include a supply of money, unless the money is provided as consideration for a supply that is a supply of money. (s9-10(4)) Section 9-15 Meaning of ‘consideration’ “Consideration” Includes: • any payment or any act or forbearance • in connection with, • in response to or • for the inducement of • a supply of anything 4 12/05/2017 Case law • Reliance Carpet Company Pty Ltd v FCT AAT (yes) FFC (no) HC (yes) • COT v Qantas Airways Ltd AAT (yes) FFC (no) HC (yes) GSTR 2006/9 The meaning of “Supply” 5 12/05/2017 The Propositions Sixteen in total Proposition 4 • A transaction may involve two or more supplies • Non-monetary consideration • GST-inclusive market value 12 6 12/05/2017 Proposition 5 • To 'make a supply' an entity must do something • The ordinary meaning of 'supply' requires a positive act by the supplier • Compulsory acquisitions? Re Hornsby Shire Council v.
    [Show full text]
  • Lesser Known Breach of Contract Defenses
    LESSER KNOWN BREACH OF CONTRACT DEFENSES Jack A. Walters, III Cooper & Scully, P.C. Founders Square 900 Jackson Street, Suite 100 Dallas, Texas 75202 (214) 712-9500 (214) 712-9540 fax www.cooperscully.com [email protected] 3rd Annual Construction Symposium January 25, 2008 TABLE OF CONTENTS I. INTRODUCTION...............................................................................................................1 II. BACKGROUND ON CONSTRUCTION CONTRACTS..................................................1 A. Contract Documents...............................................................................................1 B. Checklist of Issues Covered in a Contract..............................................................1 C. Definitions..............................................................................................................2 III. CONTRACT DEFENSES...................................................................................................3 A. Limitations (Statute of Limitations & Statute of Repose)......................................3 B. Standing/Privity......................................................................................................5 C. Failure of consideration / Lack of consideration....................................................6 D. Mistake 7 E. Ratification.............................................................................................................8 F. Waiver 9 G. Plaintiff's Prior Material Breach.............................................................................9
    [Show full text]
  • Unit 6 – Contracts
    Unit 6 – Contracts I. Definition A contract is a voluntary agreement between two or more parties that a court will enforce. The rights and obligations created by a contract apply only to the parties to the contract (i.e., those who agreed to them) and not to anyone else. II. Elements In order for a contract to be valid, certain elements must exist: (A) Competent parties. In order for a contract to be enforceable, the parties must have legal capacity. Even though most people can enter into binding agreements, there are some who must be protected from deception. The parties must be over the age of majority (18 under most state laws) and have sufficient mental capacity to understand the significance of the contract. Regarding the age requirement, if a minor enters a contract, that agreement can be voided by the minor but is binding on the other party, with some exceptions. (Contracts that a minor makes for necessaries such as food, clothing, shelter or transportation are generally enforceable.) This is called a voidable contract, which means that it will be valid (if all other elements are present) unless the minor wants to terminate it. The consequences of a minor avoiding a contract may be harsh to the other party. The minor need only return the subject matter of the contract to avoid the contract. if the subject matter of the contract is damaged the loss belongs to the nonavoiding party, not the minor. Regarding the mental capacity requirement, if the mental capacity of a party is so diminished that he cannot understand the nature and the consequences of the transaction, then that contract is also voidable (he can void it but the other party can not).
    [Show full text]
  • Delay As a Bar to Rescission John M
    Cornell Law Review Volume 26 Article 7 Issue 3 April 1941 Delay as a Bar to Rescission John M. Friedman Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation John M. Friedman, Delay as a Bar to Rescission, 26 Cornell L. Rev. 426 (1940) Available at: http://scholarship.law.cornell.edu/clr/vol26/iss3/7 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. DELAY AS A BAR TO RESCISSION JOHN M. FRIEDMAN The remedy of rescission has enjoyed great popularity during the last few years. The frequency with which it has been invoked is probably trace- able not only to the increase in number of business transactions, but also to the economic stress of the times. Contracts made in the flush days of the 1920's have turned out to be not as desirable as planned. Promisors are unable to perform and promisees seek the return of specific consideration given, instead of resorting to a suit for damages against a defendant of doubt- ful responsibility. Purchasers discover that sellers' statements which induced sales were vastly exaggerated and, with worthless purchases on their hands, seek the return of the considerations paid. But just as the desirability of a rescission becomes manifest slowly to a would-be rescinder over a period of continued depression, so also the restora- tion by the defending party of the consideration given in the same measure becomes more difficult.
    [Show full text]
  • An Overview of Indemnification and the Duty to Defend
    AN OVERVIEW OF INDEMNIFICATION AND THE DUTY TO DEFEND Indemnification & Duty to Defend Subcommittee, ACEC Risk Management Committee Subcommittee Chair Theodore D. Levin, P.E., Attorney Morris Polich & Purdy LLP Subcommittee Members Karen Erger, Vice President, Director of Practice Risk Management Lockton Companies, Inc. Albert Rabasca, Director of Industry Relations XL Specialty Insurance Company Homer Sandridge, Underwriting Director, Professional Liability Travelers Insurance Creighton Sebra, Attorney Morris Polich & Purdy, LLP Principles and History One of the most basic principles of tort law is that every person should be responsible for damage that they have caused. Many states have reduced this concept to statute, each stating almost word for word that “Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one of the parties, or of some other person.”1 In many lawsuits, a plaintiff’s damages are caused by the convergence of several contributing factors originating from several different sources. To give one common example, a plaintiff homeowner alleging property damages resulting from construction defects may assert claims in one lawsuit against any of the diverse parties that contributed various scopes of work to the project, including the general contractor, subcontractors and trades that contributed to the defective work, as well as design professionals such as civil engineers, architects, and structural engineers. To put it even more bluntly, the owner files one suit against everyone in sight. In practice, however, the plaintiff more often merely sues the party or parties with whom he or she contracted, and lets the named defendant(s) do the legwork to identify and sue other parties that may also be responsible.
    [Show full text]
  • Interpretive Guidance on Statement of Cash Flows (March 2018)
    Life Sciences Accounting and Financial Reporting Update — Interpretive Guidance on Statement of Cash Flows March 2018 Statement of Cash Flows Introduction While the accounting principles underlying the statement of cash flows have been in place for many years, challenges in interpretation and preparation have consistently made the statement of cash flows one of the leading causes of restatements and comments from the SEC staff for life sciences entities. In the Industry Issues section below, we highlight issues commonly encountered by life sciences entities that are associated with the classification of cash flows as operating, investing, or financing. For more information as well as insights into topics not addressed below, see Deloitte’s A Roadmap to the Preparation of the Statement of Cash Flows. Industry Issues Foreign Currency Cash Flows The global nature of life sciences entities often gives rise to transactions that are denominated in a foreign currency and to businesses that operate in foreign functional currency environments. For example, the product supply chain structures for many life sciences entities typically involve the movement of materials and products across international borders throughout the manufacturing life cycle, giving rise to many transactions that are exposed to changes in the exchange rate. An entity should report the cash flow effect of transactions denominated in a foreign currency by using the exchange rates in effect on the date of such cash flows. Instead of using the actual exchange rate on the date of a foreign currency transaction, an entity may use an average exchange rate for translation if the exchange rates are relatively consistent throughout the reporting period.
    [Show full text]
  • Rescission, Restitution, and the Principle of Fair Redress: a Response to Professors Brooks and Stremitzer
    Valparaiso University Law Review Volume 47 Number 2 Winter 2013 pp.1-78 Winter 2013 Rescission, Restitution, and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer Steven W. Feldman Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Steven W. Feldman, Rescission, Restitution, and the Principle of Fair Redress: A Response to Professors Brooks and Stremitzer, 47 Val. U. L. Rev. 1 (2013). Available at: https://scholar.valpo.edu/vulr/vol47/iss2/8 This Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Feldman: Rescission, Restitution, and the Principle of Fair Redress: A Re Article RESCISSION, RESTITUTION, AND THE PRINCIPLE OF FAIR REDRESS: A RESPONSE TO PROFESSORS BROOKS AND STREMITZER Steven W. Feldman* I. INTRODUCTION Analyzing a remedy that the reporter for the Restatement (Third) of Restitution and Unjust Enrichment describes as having “[e]normous practical importance and theoretical interest,”1 scholars in recent years have produced a flood of articles covering contract rescission and restitution.2 In their 2011 Article in the Yale Law Journal, Remedies on and off Contract, Professors Richard Brooks and Alexander Stremitzer weigh in on the discussion.3 Relying on microeconomic theory, which reflects the perspective of rational buyers and sellers, the authors’ thesis is that current legal doctrine is too restrictive in allowing buyers’ rescission and too liberal in granting them restitution.4 Although other commentators * Attorney-Advisor, U.S.
    [Show full text]
  • Lien Id Kane County
    Lien Id Kane County Caesar is evidentiary and calibrating tastefully while arty-crafty Hayward revets and miscued. Lentoid and cany Xymenes never edulcorated his margarita! Varicelloid and aerobiological Lanny vitalized her bargepoles straighten inquisitorially or sterilized explanatorily, is Nealon druidic? Kane County highway Accident Lawyers Using a Defendant's Guilty Plea to. The gricultural landowners to process server could save you? The five funds are behind Bond and our Fund Junior Lien Reserve Fund. Parcel Deed Points Base Map Parcels For Aerial Images Section Township Range Select ship for Transparency Aerial Images Base Map Historical Parcels. Kane County Illinois Public Records Directory Quickly access public record. Kane County Treasurer. Velasquez v Downer Place Holdings LLC In re Cnty. Kane County Assessment Office. In the Circuit Court reverse the Sixteenth Judicial Circuit Kane County Illinois. THOMPSON v JARED KANE COMPANY INC FindLaw. Meanwhile sitting a New York court FXR filed a mechanic's lien on the benefit and. Alene in which represents a modern browser. Foreclose his lien the material men and laborers who also filed liens. A Idaho Falls based insulation Subcontractor asked TRADITION LIEN SERVICE to spend a. Fayette county meeting schedule describing each state or lien? Kane County construction Accident Lawyers Using a Defendant's. Library ID No Spaces or EZ Username Phone call four digits or EZ Password. Fulton County Tax Lien Amazon AWS. Illinois Anti-Predatory Lending Database. Will County Recorder. The cemetery of lien was filed pursuant to section 71305 Florida Statutes 1997 which allows for the. Judgment Liens and Priorities in Virginia William & Mary Law.
    [Show full text]
  • Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation
    STATE Q&A Contract Basics for Litigators: Illinois by Diane Cafferata and Allison Huebert, Quinn Emanuel Urquhart & Sullivan, LLP, with Practical Law Commercial Litigation Status: Law stated as of 01 Jun 2020 | Jurisdiction: Illinois, United States This document is published by Practical Law and can be found at: us.practicallaw.tr.com/w-022-7463 Request a free trial and demonstration at: us.practicallaw.tr.com/about/freetrial A Q&A guide to state law on contract principles and breach of contract issues under Illinois common law. This guide addresses contract formation, types of contracts, general contract construction rules, how to alter and terminate contracts, and how courts interpret and enforce dispute resolution clauses. This guide also addresses the basics of a breach of contract action, including the elements of the claim, the statute of limitations, common defenses, and the types of remedies available to the non-breaching party. Contract Formation to enter into a bargain, made in a manner that justifies another party’s understanding that its assent to that 1. What are the elements of a valid contract bargain is invited and will conclude it” (First 38, LLC v. NM Project Co., 2015 IL App (1st) 142680-U, ¶ 51 (unpublished in your jurisdiction? order under Ill. S. Ct. R. 23) (citing Black’s Law Dictionary 1113 (8th ed.2004) and Restatement (Second) of In Illinois, the elements necessary for a valid contract are: Contracts § 24 (1981))). • An offer. • An acceptance. Acceptance • Consideration. Under Illinois law, an acceptance occurs if the party assented to the essential terms contained in the • Ascertainable Material terms.
    [Show full text]
  • Choice of Law for Burdens of Proof
    NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW Volume 46 Number 1 Article 6 2021 Choice of Law for Burdens of Proof Dale A. Nance Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Part of the Law Commons Recommended Citation Dale A. Nance, Choice of Law for Burdens of Proof, 46 N.C. J. INT'L L. 235 (2020). Available at: https://scholarship.law.unc.edu/ncilj/vol46/iss1/6 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. Choice of Law for Burdens of Proof Dale A. Nance† ABSTRACT: The traditional view is that all aspects of the burden of proof are procedural, so a forum court properly employs its own law on such matters, even when comity dictates the application of another jurisdiction’s substantive law to the matter in dispute. However, this has never been an entirely accurate description of practice, and there has been discernible movement toward the opposite conclusion over the last century. The matter remains in flux, with divergent judicial opinions and unhelpful rationalizations. This Article explains the discord and provides a workable rule for resolving the choice-of-law problem. The key is to recognize that the two components of the burden of proof, the burden of persuasion and the burden of production, have quite different functions. Once these functions are identified, it becomes clear that the burden of production, in both its allocation and the severity of the burden that it imposes, should be governed by forum law.
    [Show full text]