Page 24 - John Hundley 2014

agreement on its face incomplete, overriding the parole evidence rule and opening the door for
the parties to testify as to what Exhibit A was supposed to be.

2. If in fact an Exhibit A was agreed upon, but just not attached, it will control.

3. If a particular Exhibit A was not agreed upon, the parties will be permitted to testify as to what
was their oral agreement as to its intended content.

Kay v. Prolix Packaging, Inc., 2013 IL App (1st) 112455.

Refusing to accept authority that an agreement must be definite and certain
enough on its face to allow the court to enforce it, Kay sides with federal authority
that “(t)he fact that a contract is incomplete, presents interpretive questions,
bristles with unresolved contingencies, and in short has as many holes as a Swiss
cheese does not make it unenforceable for indefiniteness.” This is particularly so
where, as in Kay, the parties' conduct post-closing indicated that a contract had
been made.

“Unconscionability” Ruled To Be A Question Of Law

“Whether a contract is unconscionable is a question of law to be decided by the court, not a jury,”
the Seventh Circuit Court of Appeals held recently.

Affirming summary judgment in favor of a construction contract bonding company on its indemnity
claim against the guaranteed construction company, the court said the trial court was correct in not
sending the contractor’s unconscionability defense to a jury.

Agreeing that Illinois law recognizes both procedural unconscionability and
substantive unconscionability as grounds for attacking a contract (see Sharp Thinking
No. 92 (June 2013)), it found there to be no merit under either ground. Noting that
the contract gave the surety the power to settle with bond claimants upon the
contractor’s default and that it promised that the contractor would indemnify the
surety for such settlement payments, the court said that “Hanover did exactly what it
was empowered to [do] by the Agreement. We cannot call that bad faith.” Hanover
Ins. Co. v. Northern Bldg. Co., 751 F.3d 788 (7th Cir. 2014).

Hanover relied upon federal precedent in deciding that unconscionability was a
question of law for the court, and the reader fairly may wonder whether the same
principle necessarily holds in state courts. For a recent state-court indicating that it
does, see Fuqua v. SVOX AG, 2014 IL App (1st) 131429 ¶ 36.

-John T. Hundley, Jhundley@lotsharp.com, 618-242-0246

Brenda\SharpThinking\#118.pdf

●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
THE SHARP LAW FIRM, P.C.

1115 Harrison, P.O. Box 906, Mt. Vernon, IL 62864 • Telephone 618-242-0246 • Facsimile 618-242-1170
www.thesharpfirm.com

Business Transactions • Litigation • Financial Law • Problem Finances • Real Estate • Corporate • Commercial Disputes
• Creditors’ Rights • Arbitration & Mediation • Estate Planning • Probate • Family Law

Terry Sharp: Tsharp@lotsharp.com; John T. Hundley: Jhundley@lotsharp.com;
Rebecca L. Reinhardt: Rreinhardt@lotsharp.com; Darren Taylor: Dtaylor@lotsharp.com

Advertising Material