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Tortious interference with a contract recognizes that a person's business relationships constitute a property interest, and as such are entitled to protection from unjustified tampering by another. The Film and Tape Works, Inc. v. Junetwenty Films, Inc., 368 Ill.App.3d 462, 468 (1st Dist. 2006). The Illinois First District Appellate Court held in order to state a cause of action for tortious interference with a contract, the plaintiff must allege: (1) the existence of a valid and enforceable contract between the plaintiff and a third party; (2) defendant's awareness of the contract; (3) defendant's intentional and unjustified inducement of a breach; (4) defendant's wrongful conduct caused a subsequent breach of the contract by the third party; and (5) damages. Purmal v. Robert N. Wadington and Associates, 354 Ill.App.3d 715, 727 (1st Dist. 2004).

The first element for the tort of interference with contractual rights requires the existence of a valid and enforceable contract between the plaintiff and another. Illinois Jurisprudence, Personal Injury and Torts § 14:04. The general rule that a person cannot sue for interference with a contract that is unenforceable has been applied only to contracts that are void from their inception due to their subject matter or the lack of the necessary formation requisites. Id. Furthermore, a cause of action for tortuous interference with a contract does not exist where a party seeking to bring the claim is, in fact, a party of the contractual relationship, which the claim is based upon. Cress v. Recreation Services, Inc., 341 Ill.App.3d 149, 176 (2d Dist. 2003).

The second element for the tort of interference with a contract requires the defendant to have knowledge of the contract. Purmal, 354 Ill.App.3d at 727. For purposes of pleading a cause of action for interference with contract, the plaintiff need only allege the defendant's knowledge of the contract. Guice v. Sentinel Technologies, Inc., 294 Ill.App.3d 97, 110 (1st Dist. 1997). “The exact date upon which knowledge of the existence of a contract was acquired by the defendant is irrelevant, provided that the acquisition of such knowledge preceded the alleged conduct of interference.” Guice v. Sentinel Technologies, Inc., 294 Ill.App.3d 97, 110 (1st Dist. 1997).

The third element for a cause of action of interference with a contract requires the plaintiff to establish that the defendant intentionally and unjustifiably induced the third party to breach the contract. Illinois Bell Telephone Co. v. Plote, Inc., 334 Ill.App.3d 796, 806 (1st Dist. 2002). The element of intentional and unjustified inducement of a breach of the contract requires the intentional and malicious inducement of the third person to breach the contract. Illinois Jurisprudence, Personal Injury and Torts § 14:05. “The test for inducement requires an intention on the part of the actor to interfere with another's contractual relations. To do so, he or she must know of the existence of the contract with which he or she interferes. Establishing inducement requires some active persuasion, encouragement, or inciting that goes beyond merely providing information in a passive way.” Id.

The fourth element for a cause of action of interference with a contract requires that the defendant's wrongful conduct caused a subsequent breach of the contract by the third party. Purmal, 354 Ill.App.3d at 727. The breach element requires either a breach of contract, a termination of contractual relations, or a rendering performance impossible. Illinois Jurisprudence, Personal Injury and Torts § 14:06. There need not be a termination or breach of the contract before a cause of action for interference with a contract exists. Id. The plaintiff must show that the contract was in fact breached or that a breach is imminent. Id.

Informational Purposes Only: The content of this writing was prepared by Tamari & Blumenthal, LLC for informational purposes only. The content of this writing is not intended to constitute and does not constitute legal advice. Reading the content of this writing or communicating with our office staff or attorneys by telephone, fax or e-mail does not make you a client of Tamari & Blumenthal, LLC. To become a client, you must sign and return our governing engagement agreement. Persons reading the content of this writing should not act upon this information without contacting and speaking with an attorney. Do not issue or provide us with confidential information until an attorney-client relationship has been formally established with our firm.

An adhesion contract is a standardized form agreement prepared entirely by one of the parties and submitted to another party for acceptance without any opportunity to negotiate terms. Endsley v. City of Chicago, 319 Ill.App.3d 1009, 1019 (1st Dist. 2001). Further, a contract of adhesion is a contract that is offered on a take-it-or-leave-it basis to a party who has no bargaining power and no ability to change the terms of the contract. Wigginton v. Dell, Inc., 890 N.E.2d 541, 546 (5th Dist. 2008). Therefore, a contract of adhesion exists where one party has absolutely no bargaining power or ability to change the contract terms. Hubbert v. Dell Corp., 359 Ill.App.3d 976, 987 (5th Dist. 2005).

Where there is disparity in bargaining power, the drafter may essentially require the other party, or "adherer," to accept or reject the form contract on a "take it or leave it" basis. Illinois Jurisprudence, Commercial Law § 1:4. Whether a contract is one of adhesion is itself a question of fact. Id. Burdensome clauses in adhesion contracts generally should be construed against the drafter of the contract.

Illinois courts have held that contracts of adhesion are generally lawful and "mere disparity of bargaining power is not sufficient grounds to vitiate contractual obligations.” Endsley v. City of Chicago, 319 Ill.App.3d 1009, 1019 (1st Dist. 2001). To vitiate a contractual obligation under an adhesion contract, something more than mere disparity in bargaining power is required. Illinois Jurisprudence, Commercial Law § 1:4. To determine whether a contract of adhesion is enforceable, Illinois courts look to two factors: the reasonable expectations of the adhering party and whether the contract is unconscionable. Hutcherson v. Sears Roebuck & Co., 342 Ill.App.3d 109, 120 (1st Dist. 2003). Thus, Illinois courts may declare adhesion contracts unlawful where the party in the superior bargaining position has taken unfair advantage of the adherer by making the desired product or service available only if the weaker party accedes to the form of the contract. Illinois Jurisprudence, Commercial Law § 1:4. Therefore, unfair advantage is the key to differentiating between lawful and unlawful adhesion contracts. Id.

Contracts of adhesion, typified by terms that are nonnegotiable and presented in fine print in language that the average consumer might not fully understand are not per se unenforceable from a procedural standpoint. Tortoriello v. Gerald Nissan of N. Aurora, Inc., 379 Ill.App.3d 214, 233 (2d Dist. 2008). Some additional coercion or overreaching is necessary. Id. The Illinois First District Appellate Court held that when contracts of adhesion are in a standardized form agreement and are submitted to a party for acceptance without any opportunity to negotiate the terms, the mere fact that one party to a contract enjoyed little relative bargaining strength cannot alone render a contractual provision unenforceable. Larned v First Chicago Corp., 264 Ill.App.3d 697 (1st Dist. 1994). However, a contractual clause that is part of a standardized form agreement may have some of its significance reduced because of the inequality in the parties' bargaining power. Williams v. Illinois State Scholarship Commission, 139 Ill.2d 24, 72 (1990).

Informational Purposes Only: The content of this writing was prepared by Tamari & Blumenthal, LLC for informational purposes only. The content of this writing is not intended to constitute and does not constitute legal advice. Reading the content of this writing or communicating with our office staff or attorneys by telephone, fax or e-mail does not make you a client of Tamari & Blumenthal, LLC. To become a client, you must sign and return our governing engagement agreement. Persons reading the content of this writing should not act upon this information without contacting and speaking with an attorney. Do not issue or provide us with confidential information until an attorney-client relationship has been formally established with our firm.

For a contract to be legally binding, it must be supported by consideration. Illinois Jurisprudence, Commercial Law § 1:32. Illinois courts have held that consideration is one of the requirements to prove that a valid contract exists. Meyers v. Woods, 374 Ill.App.3d 440, 450 (3d Dist. 2007).

Whether there is sufficient consideration to establish that a valid contract exists is a question of law. Illinois Jurisprudence, Commercial Law § 1:34. The burden of proving that there is sufficient consideration is on the party seeking to enforce the contract. Id. The sufficiency of consideration must be evaluated as it relates to the entire record, not as perceived in a vacuum of either terms or definitions. Illinois Jurisprudence, Commercial Law § 1:35. The burden of proving the sufficiency of consideration is upon the party asserting it. Id.

Generally, Illinois courts will not inquire into the sufficiency of the consideration to support a contract. United City of Yorkville v. Village of Sugar Grove, 376 Ill.App.3d 9, 22 (2d Dist. 2007). As long as the consideration is a bargained-for exchange, the amount the parties assign to a particular asset constitutes legally adequate consideration. Illinois Jurisprudence, Commercial Law § 1:36. Moreover, Illinois courts have held that a court's inquiry into whether a contract is supported by consideration does not extend to examining the adequacy or sufficiency of the consideration. Gavery v. McMahon & Elliott, 283 Ill.App.3d 484, 490 (1st Dist. 1996). Illinois courts have stated that it is not a court's function to review the amount of consideration. Id.

Moreover, Illinois courts have held that mutual and concurrent promises provide sufficient legal consideration to support each other. Solimini v. Thomas, 293 Ill.App.3d 430, 437 (2d Dist. 1997). Where there is no other consideration for a contract, the mutual promises of the parties constitute the consideration. Illinois Jurisprudence, Commercial Law § 1:48. However, these promises must be binding on both parties, or the contract fails. Id. If a promise is merely illusory, in that it does not bind one party, that promise will not constitute consideration and will not support a contract. Id.

However, Illinois courts have held that where the amount of consideration is so grossly inadequate as to shock the conscience of the court, the consideration is insufficient and the contract will fail. United City of Yorkville, 376 Ill.App.3d at 22. Upon such inquiry, adequacy and sufficiency of consideration is to be determined as of the time the parties entered into the contract. Illinois Jurisprudence, Commercial Law § 1:36. Evidence of gross inadequacy of consideration has been considered by some Illinois courts as tantamount to fraud, whether actual or constructive. Illinois Jurisprudence, Commercial Law § 4:16. Mere inadequacy of consideration, in the absence of fraud or unconscionable advantage, ordinarily is insufficient to justify setting aside a contract. Gavery, 283 Ill.App.3d at 490-91.

Illinois courts have found that consideration does not exist where a promise to do something one is already obligated to do. Illinois Jurisprudence, Commercial Law § 1:40. The pre-existing duty rule provides that where a party does what it is already legally obligated to do, there is no consideration as there is no detriment. Id. Illinois courts have held that consideration cannot flow from an act performed pursuant to a pre-existing legal duty. Id. Furthermore, consideration is not insufficient merely because it is a conditional promise, even though the controlling event may never occur. Illinois Jurisprudence, Commercial Law § 1:38. Where the consideration is a party's promise to perform in the future, the consideration does not fail because of non-performance, since the promise, and not the performance, is the real consideration. Id.

Informational Purposes Only: The content of this writing was prepared by Tamari & Blumenthal, LLC for informational purposes only. The content of this writing is not intended to constitute and does not constitute legal advice. Reading the content of this writing or communicating with our office staff or attorneys by telephone, fax or e-mail does not make you a client of Tamari & Blumenthal, LLC. To become a client, you must sign and return our governing engagement agreement. Persons reading the content of this writing should not act upon this information without contacting and speaking with an attorney. Do not issue or provide us with confidential information until an attorney-client relationship has been formally established with our firm.

In a recent First District Illinois Appellate Court decision, the court addressed the issue of whether a party who proves it was fraudulently induced to enter into a contract can rescind the contract as an equitable remedy. 23-25 Bldg. Partnership v. Testa Produce, Inc., 381 Ill.App.3d 751 (1st Dist. 2008). In the 23-25 Bldg. Partnership v. Testa Produce, Inc., both parties owned property in a Chicago subdivision. Id. An outside buyer allegedly agreed to purchase the entire Chicago subdivision if all the unit-owners agreed to sell. Id. The defendants allegedly agreed to pay the plaintiffs $50,000.00, as an inducement to agree to the sale. Id. After the sale was complete, the defendants allegedly refused to pay the $50,000.00, contending the plaintiff fraudulently misrepresented that it needed the money because it was “upside down” in its mortgage. Id. As a result, the plaintiffs brought a breach of contract action against the defendants. Id. At trial, the Cook County trial court entered judgment for the plaintiff, holding that even though the defendants had been allegedly fraudulently induced into entering into the agreement, they could not rescind the contract because they benefited from the plaintiffs’ performance of its obligations under the contract and because the parties could not be returned to their pre-contract position. Id.

On appeal, the First District Illinois Appellate Court reversed the Cook County trial court, held that rescission was an available remedy because sufficient evidence allegedly established that the plaintiffs fraudulently induced the agreement, and that the defendants would not be required to comply with the terms of the contract based on the fact that it benefited from it. Id.

To establish an equitable claim for rescission of a contract on the basis of fraud and/or misrepresentation, a party must prove: (1) a false statement of material fact; (2) known or believed to be false by the party making it; (3) intended to induce the injured party to act; (4) acted on by the injured party in reliance on the truth of the representation; and (5) resulting in damage. Id. To warrant rescission of a contract induced by the misrepresentation, the misrepresentation must be “material,” meaning that the injured party would have acted differently had he been aware of the falsity of the statement, or the person making it knew the statement was likely to induce the injured party to engage in the conduct in question. Id. The court found that the plaintiffs allegedly induced defendants to enter into the agreement through a fraudulent, material misrepresentation that the sale price would not satisfy its outstanding mortgage. Id.

A contract induced by fraud or misrepresentation is not void but is voidable at the election of the injured party. Id. Although the perpetrator of the fraud or misrepresentation cannot enforce a contract that is voidable due to fraudulent inducement, the injured party may: (1) rescind the contract, or (2) waive the defect, ratify the contract, and enforce it. Id. Rescission, an equitable remedy, is the canceling of a contract so as to restore the parties to their initial status. Id. Usually, a party seeking rescission must restore the other party to the status quo prior to entering into the contract. Id. As a prerequisite, restoration of the status quo requires the rescinding party to return any consideration it received from the other party under the contract. Id.

However, where restoration of the status quo is impossible, it does not necessarily preclude rescission of a contract. Id. Restoration of the status quo, as a prerequisite to rescission of a contract, will not be required when restoration has been rendered impossible by circumstances not the fault of the party seeking rescission, and the party opposing the rescission has obtained a benefit from the contract. Id. Where restoration of the other party to the status quo is impossible, the party seeking rescission of a contract generally must reimburse the other party for the value of the benefit it received under the contract. Id.

In conclusion, the First District Illinois Appellate Court held that because the plaintiffs allegedly fraudulently induced the defendants to enter into an agreement, the agreement can be rescinded, despite the impossibility of returning the plaintiffs to the status quo prior to entering into the contract. Id.

Informational Purposes Only: The content of this writing was prepared by Tamari & Blumenthal, LLC for informational purposes only. The content of this writing is not intended to constitute and does not constitute legal advice. Reading the content of this writing or communicating with our office staff or attorneys by telephone, fax or e-mail does not make you a client of Tamari & Blumenthal, LLC. To become a client, you must sign and return our governing engagement agreement. Persons reading the content of this writing should not act upon this information without contacting and speaking with an attorney. Do not issue or provide us with confidential information until an attorney-client relationship has been formally established with our firm.

When appropriate, in Illinois, Duress is sometimes used as a defense against the enforcement of a contract. To establish duress, it must be shown that the act or threat left the individual bereft of the quality of mind essential to the making of a contract. Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill.App.3d 720, 727 (2d Dist. 2003). The acts or threats complained of must be wrongful; however, the term “wrongful” is not limited to acts that are criminal, tortious, or in violation of a contractual duty, but extends to acts that are wrongful in a moral sense as well. Id.

Illinois courts have held that the test for duress is whether an act has left the individual bereft of the quality of mind essential to make a contract, which is an objective test. Illinois Jurisprudence, Commercial Law § 1:91. There must be such compulsion as to show that the execution of the contract was not the voluntary act of the maker and it must be present and operate at the time the instrument was executed. Id. The question of duress is one of fact in each particular case, to be determined upon consideration of the surrounding circumstances, such as age, capacity, situation and relation of the parties. Illinois Jurisprudence, Commercial Law § 1:91.

Moreover, Illinois courts have held that any wrongful threat that actually puts the victim in such fear as to act against his or her will constitutes duress. Illinois Jurisprudence, Commercial Law § 1:93. Thus, where the parties are not dealing at arm's length, but one of them is in a position to dictate, the courts may treat agreements that are influenced by threats of injury to, or the withholding of, property as made under duress. Id. And the threats of a party may constitute duress where their undoubted effect was to undermine the ability of another to refuse to execute an agreement. Id.

A contract executed under duress is not void, but is voidable at the option of the coerced party. Illinois Jurisprudence, Commercial Law § 1:92. Because duress requires that a party be deprived of free will and bereft of the quality of mind essential to make a contract, an agreement will not be voided if the plaintiff had an option or choice as to whether or not to do the thing or perform the act said to have been done under duress. Id. Mere advice, argument, or persuasion does not constitute duress if the individual acts freely in executing the questioned documents. Illinois Jurisprudence, Commercial Law § 1:93. The use or threatened use of civil proceedings to enforce a claim is not considered duress, where made in the honest belief that a good cause of action exists. Illinois Jurisprudence, Commercial Law § 1:94. Further, it is not duress for a party to a contract to act upon a plausible, even if uncertain, interpretation of its rights. Id.

A demand is not duress unless it is “wrongful” in the sense that it violates the law, a contract, or morality. Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 341 Ill.App.3d 438, 446 (4th Dist. 2003). Duress cannot be predicated upon a demand that is lawful or a threat to do something that a party has a legal right to do. Id. Further, a finding of duress is less likely if the party has the assistance of counsel and adequate time to consider the proposed contractual terms. Krilich v. American Nat. Bank and Trust Co. of Chicago, 334 Ill.App.3d 563, 540 (2 Dist. 2002).

A victim of duress who accepts the benefits flowing from the contract for any considerable length of time ratifies the contract. Inland Land Appreciation Fund, L.P. v. County of Kane, 344 Ill.App.3d 720, 728 (2d Dist. 2003). Ratification results if the party who executed the contract under duress accepts the benefits flowing from it or remains silent or acquiesces in the contract for any considerable length of time after opportunity is afforded to annul or void it. Illinois Jurisprudence, Commercial Law § 1:92.

Informational Purposes Only: The content of this writing was prepared by Tamari & Blumenthal, LLC for informational purposes only. The content of this writing is not intended to constitute and does not constitute legal advice. Reading the content of this writing or communicating with our office staff or attorneys by telephone, fax or e-mail does not make you a client of Tamari & Blumenthal, LLC. To become a client, you must sign and return our governing engagement agreement. Persons reading the content of this writing should not act upon this information without contacting and speaking with an attorney. Do not issue or provide us with confidential information until an attorney-client relationship has been formally established with our firm.

An issue in Illinois courts is whether a mistake, mutual or unilateral, between the parties of a contract can be grounds for rescission of an agreement. A mutual mistake occurs when an actual good-faith agreement is reached, but, due to error, the written reduction of the agreement violates the understanding of both parties. Cameron v. Bogusz, 305 Ill.App.3d 267, 272 (1st Dist. 1999). The reason for relief is that the misunderstanding precluded mutual assent to the terms of the contract. Illinois Jurisprudence, Commercial Law § 1:97.

The party asserting mutual mistake as grounds to rescind a contract must show that both parties were mistaken as to a material matter at the time the contract was entered into. Cameron, 305 Ill.App.3d at 272. Illinois courts require the plaintiff to prove the following elements for the court to grant rescission based on mutual mistake: (1) the mistake must have existed at the time the contract was entered into; (2) the mistake must have been mutual and common to all the parties; (3) the mistake must have involved a material matter; and (4) the mistake must have been such that the parties intended to say one thing but by the written instrument expressed another. Illinois Jurisprudence, Commercial Law § 1:97. To invalidate an agreement, a mistake must relate to a past or present fact material to the contract. United City of Yorkville v. Village of Sugar Grove, 376 Ill.App.3d 9, 24-25 (2d Dist. 2007). Illinois courts usually hold that predictions do not qualify as such present facts, and thus, mistaken predictions will not invalidate a contract. Id.

On the other hand, unilateral mistake, as a general rule, Illinois courts will not grant relief if only one party to a contract has made a mistake, especially where that party’s own negligence and lack of prudence caused the mistake. Illinois Jurisprudence, Commercial Law § 1:98. However, Illinois courts will allow a contract to be rescinded for unilateral mistake if: (1) the mistake relates to a material feature of the contract; (2) it occurred despite the exercise of reasonable care; (3) it is of such grave consequence that enforcement of that contract would be unconscionable; and (4) the other party can be returned to the same position it was in before the contract was entered into. Cameron, 305 Ill.App.3d at 274. The standard of care applied to the mistaken party where that party seeks to rescind the contract on the ground of unilateral mistake is whether a person of reasonable prudence would have acted in the same manner under the same circumstances. Illinois Jurisprudence, Commercial Law § 1:98.

Illinois courts will generally grant relief for unilateral errors that are clerical or mathematical. Illinois Jurisprudence, Commercial Law § 1:98. A contract fairly entered into cannot be rescinded on the ground of unilateral mistake merely because it is less profitable to one party than anticipated when he or she entered into it. Id. Nor can a party rescind a contract simply because of a mistaken opinion as to its legal effect. Id.

Unilateral mistakes in a party's assumptions as to cost to be incurred for performance of contract will not be cause for rescinding the contract. Bond Drug Co. of Illinois v. Amoco Oil Co., 274 Ill.App.3d 630, 635 (1st Dist. 1995). Illinois courts have held that each party assumes risk that its assumption as to cost of performance was wrong, and thus, the contract fairly entered into cannot be avoided or disregarded by one party upon discovery that the contract is less profitable than anticipated at the time of execution of the contract. Id.

Informational Purposes Only: The content of this writing was prepared by Tamari & Blumenthal, LLC for informational purposes only. The content of this writing is not intended to constitute and does not constitute legal advice. Reading the content of this writing or communicating with our office staff or attorneys by telephone, fax or e-mail does not make you a client of Tamari & Blumenthal, LLC. To become a client, you must sign and return our governing engagement agreement. Persons reading the content of this writing should not act upon this information without contacting and speaking with an attorney. Do not issue or provide us with confidential information until an attorney-client relationship has been formally established with our firm.

An issue in Illinois is what constitutes a sufficient offer and acceptance to establish a valid and enforceable contract. To prove that a valid contract exists, a party must prove the following elements: (1) offer; (2) acceptance; and (3) consideration. Meyers v. Woods, 374 Ill.App.3d 440, 450 (3d Dist. 2007). To prove an enforceable contract, a party must additionally prove that the agreement is sufficiently definite so that its terms are reasonably certain and able to be determined, and a meeting of the minds or mutual assent to the terms of the contract. Van Der Molen v. Washington Mut. Finance, Inc., 359 Ill.App.3d 813, 823 (1st Dist. 2005); In re Marriage of Murphy, 359 Ill.App.3d 289, 301 (3d Dist. 2005).

Mutual assent is proven when both parties assent to the same thing in the same sense, and their minds must meet on the essential terms and conditions of the agreement. Illinois Jurisprudence, Commercial Law § 1:16. Mutual assent may be manifested by the language employed by the parties or by their words or acts. Id. To satisfy the meeting of the minds requirement, it is not necessary that the parties share a subjective understanding as to the terms of the contract. Id. Rather, it is sufficient that their conduct indicates an agreement to those terms. Id. The intention of the parties gives character to the transaction, and if either party contracts in good faith, that party is entitled to the benefit of the contract, no matter what may have been the intention of the other party. Id.

An offer is an act on the part of one person giving another person the legal power to create the type of obligation necessary for a contract. Illinois Jurisprudence, Commercial Law § 1:19. Illinois courts have held that in order for a valid contract to be formed, an offer must be so definite as to its material terms or require such definite terms in the acceptance that the promises and performances to be rendered by each party are reasonably certain. In re Marriage of Murphy, 359 Ill.App.3d 289, 300-301 (3d Dist. 2005). If a contract offer does not state a definite limitation on the time period for its acceptance, it will lapse if not accepted within a reasonable time. Kalis v. Colgate-Palmolive Co., 357 Ill.App.3d 172, 175 (1st Dist. 2005). Whether a party's acceptance has come within a reasonable time “depends upon a multiplicity of circumstances” and should be resolved by the trier of fact. Id.

Illinois courts have held to be a valid acceptance, it must be objectively manifested, for otherwise no meeting of the minds would occur. Cowger v. Industrial Com'n, 313 Ill.App.3d 364, 370 (5th Dist. 2000). To create an enforceable contract, there must be an unequivocal acceptance. Illinois Jurisprudence, Commercial Law § 1:24. There can be no contract where the offeror cannot reasonably treat the offeree's response as an acceptance. Id. Furthermore, an offer cannot be accepted by one to whom it is not made. Illinois Jurisprudence, Commercial Law § 1:25. Because an offeror has a right to determine with whom he or she will contract, a non-offeree cannot be forced upon the offeror without consent. Id. There is no acceptance until the offeree notifies the offeror of the acceptance, or at least employs reasonable diligence in attempting to do so. Illinois Jurisprudence, Commercial Law § 1:26. Thus, it is well-established by Illinois courts that in order to constitute a contract by offer and acceptance, the acceptance must conform exactly to the offer. Finnin v. Bob Lindsay, Inc., 366 Ill.App.3d 546, 548 (3d Dist. 2006).

An offeror has complete control over an offer and may condition acceptance on the terms prescribed in the offer. Illinois Jurisprudence, Commercial Law § 1:27. The language of an offer may govern the place, time or manner of acceptance required, in which case the acceptance must strictly comply with these terms in order to create a contract. Id. Thus, where an offer requires a written acceptance, no other mode may be used. Id. On the other hand, if an offer merely suggests a method of acceptance, it does not preclude a different method. Id.

A well-established rule of Illinois contract law is that a counteroffer rejects an offer only when made before a contract is formed. Patel v. McGrath, 374 Ill.App.3d 378, 383 (2d Dist. 2007). Under Illinois contract law, an acceptance requiring any modification or change in terms to the original offer constitutes a rejection of the original offer and becomes a counteroffer that must be accepted by the original offeror before a valid contract is formed. Finnin v. Bob Lindsay, Inc., 366 Ill.App.3d 546, 548 (3d Dist. 2006). Responding to an offer with a counter-offer constitutes a rejection of the original offer. People v. Henderson, 211 Ill.2d 90, 103-104 (2004). Moreover, a conditional acceptance of an offer is not a sufficient acceptance, rather, the conditional acceptance becomes a counteroffer to the original offer. Karris v. U.S. Equities Development, Inc., 376 Ill.App.3d 544, 550 (1st Dist. 2007). An offer deemed rejected due to the proffering of a counteroffer or conditional acceptance cannot be revived by a later acceptance. Henderson, 211 Ill.2d at 103-104 (2004).

An offer can be accepted by the performance of a desired act. Illinois Jurisprudence, Commercial Law § 1:30. An offeree may also be regarded as having accepted a tendered contract offer by accepting the benefits of the contract. Id. Conduct may suffice to show acceptance of the terms of an offer. Illinois Jurisprudence, Commercial Law § 1:30. A party named in a contract may, by its acts, indicate its acceptance of the contract's terms and become bound by its provisions. Id. However, for a course of conduct to act as acceptance, it must be clear that the conduct relates to the specific contract in question. Id. The law ordinarily treats the offeree's silence or failure to decline a proposal as rejection, not acceptance, of an offer. Illinois Jurisprudence, Commercial Law § 1:31. However, circumstances such as the nature of previous dealings between the parties may make it reasonable for the offeror to construe silence as acceptance. Id. For this purpose, a single previous transaction does not establish a course of conduct or course of dealing sufficient to constitute an implied acceptance based on silence. Id. Generally, a contract is operative as such from the time when there is a meeting of the minds, or when the last act necessary for its completion is performed. Illinois Jurisprudence, Commercial Law § 1:15.

Informational Purposes Only: The content of this writing was prepared by Tamari & Blumenthal, LLC for informational purposes only. The content of this writing is not intended to constitute and does not constitute legal advice. Reading the content of this writing or communicating with our office staff or attorneys by telephone, fax or e-mail does not make you a client of Tamari & Blumenthal, LLC. To become a client, you must sign and return our governing engagement agreement. Persons reading the content of this writing should not act upon this information without contacting and speaking with an attorney. Do not issue or provide us with confidential information until an attorney-client relationship has been formally established with our firm.

A misappropriation of trade secret occurs when a person acquires or discovers a trade secret by improper means, or discloses or uses a trade secret in breach of a duty of confidentiality imposed on him by the nature of his relationship with the owner of the trade secret and the owner of the trade secret is damaged by this improper acquisition, disclosure or use. American Antenna Corp. v. Amperex Electronic Corp., 190 Ill.App.3d 535, 538 (2d Dist. 1989). To set forth a cause of action for a violation of the Illinois Trade Secrets Act, a plaintiff must allege facts that the information at issue was: (1) a trade secret; (2) misappropriated; and (3) used in the defendant's business. Arcor, Inc. v. Haas, 363 Ill.App.3d 396, 400 (1st Dist. 2005).

First, the Illinois Trade Secrets Act defines a “trade secret” as ‘information, including but not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, that is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality.” 765 ILCS 1065/2(d) (2002). Under case law, Illinois courts have defined a “trade secret” as a secret plan or process, tool, mechanism or compound known only to its owner and those . . . to whom it is necessary to confide it. American Antenna Corp. v. Amperex Electronic Corp., 190 Ill.App.3d 535, 538 (2d Dist. 1989). Furthermore, the First District Illinois Appellate Court has identified six common law factors that courts may consider in determining whether a trade secret exists: (1) the extent to which the information is known outside of the employer's business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the employer to guard the secrecy of the information; (4) the value of the information to the employer and to his competitors; (5) the amount of effort or money expended by the employer in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Arcor, Inc. v. Haas, 363 Ill.App.3d 396, 400 (1st Dist. 2005).

Second, under the Illinois Trade Secrets Act, “misappropriation” is defined as an acquisition of a trade secret of a person by another person who knows or has reason to know that the trade secret was acquired by improper means. 765 ILCS 1065/2. The Act also defines “misappropriation” as disclosure or use of a trade secret of a person without express or implied consent by another person who: (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use, knew or had reason to know that knowledge of the trade secret was: (I) derived from or through a person who utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. 765 ILCS 1065/2.

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