In addition to fraud claims that we have previously discussed, perhaps the most common type of commercial dispute that leads to litigation fall under the vast heading of breach of contract. As you can probably imagine, the areas covered under this area of the law are as vast and expansive as the subject matter that people contract for to begin with. And, as you can also probably imagine, most breach of contract lawsuits come down to the fact that someone — perhaps even both sides — didn’t read the proverbial “fine print.” Before we get into the ins and outs of what a breach of contract action entails or what a plaintiff will have to plead and eventually prove, there’s a fine nuance to the laws in Illinois that many don’t realize until it’s too late.
If you are suing someone under the terms of a written contract, you almost always have to attach the contract itself to the complaint. It sounds simple, but it is commonly overlooked — after all, if you are injured in an auto accident, you don’t have to attach a copy of the police report.
The rule finds its origin in Section 2-606 of the Illinois Code of Civil Procedure. Section 2-606 provides that
“[i]f a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit.”
735 ILCS § 5/2-606.
There is, however, a subtle exception to this rule, but it shouldn’t be relied on too heavily. In Case Presetressing Corp. v. Chicago College of Osteopathic Medicine, the court noted
“to the extent the complaint relies on a written contract to establish a duty or a claim…it must set forth all of the relied upon and referred to provisions of the contract or contracts in its complaint or attach them to the complaint as an exhibit.”
118 Ill. App. 3d 782, 789 (1st Dist. 1983) (emphasis added).
Stated otherwise, if you don’t attach a copy of the actual contract to your complaint, then you need to quote the language from the agreement instead. However, this doesn’t mean that you can get away with “cutting corners” and paraphrasing the language from a contract — actually, this is a quick way to get your complaint dismissed altogether.
The exception to the rule is more of a way to get around attaching a 50 page contract to a 5 page complaint or having to attach a document that might have confidential information to a publicly available court filing. Breach of contract actions, like all commercial disputes, are highly technical matters that often come down to the smallest of details — an “and” instead of an “or,” a “by” instead of a “before,” a small ambiguity that might seem innocuous to the untrained eye. But these are the sorts of things that give rise to contractual disputes to begin with, so it follows that these are the sorts of things that make or break such lawsuits when it comes down to it.
Before you can get down to proving who did what, or even what makes up the claim, you have to start at the most basic, elemental level — attaching the actual contract.
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