by David Cosgrove
It is well-established in Illinois that a movant is entitled to summary judgment if no genuine issue of material fact exists and the moving party establishes a right to judgment as a matter of law. 735 ILCS 5/2-1005(c) (2004); State Farm Mutual Automobile Insurance Co. v. Coe, 855 N.E.2d 173, 176 (Ill. App. 1 Dist. 2006). So it may be that you can win a breach of contract case on a motion for summary judgement—before trial—if the other party failed to live up to an express warranty in the contract.
An express warranty is “a creature of contract which a warrantor has created or agreed to by making the requisite affirmation as part of a contract to which it is an adjunct.” Indeck North American Power Fund, L.P. v. Norweb PLC, 735 N.E.2d 649, 659 (Ill. App. 1 Dist. 2000) (citing Collins Co., Ltd. v. Carboline Co., 532 N.E.2d 834 (Ill. 1988)). It is well-established in Illinois that “an express warranty is as much a part of the contract as any other term, and amounts to a promise to indemnify the promisee for any loss if the fact warranted proves untrue.” Id. (emphasis added).
Since representations and warranties are assurances upon which a party may rely, they are “intended precisely to relieve the promisee of any duty to ascertain the fact for himself.” Id.(emphasis added). So recover on an express warranty claim in Illinois, a party need only show that the warranty is part of the contract, and its mere existence in the contract is relied upon. Id. “[T]he right to indemnification depends only on establishing that the warranty was breached.” Id.
Finally, when a party to a contract fails to perform and/or breaches its express obligations under the contract, a court may rescind the contract and order restitution to return the parties to the status quo ante. Lempa v. Finkel, 278 Ill.App. 3d 417, 663 N.E.2d 158, 164-165 (2d Dist. 1996). Restoring the parties to the status quo ante requires “each party to return to the other the value of the benefits received under the rescinded contract.” Id. In sum, if you are in a contract dispute in Illinois, review the entire contract to determine if you or the other has breaded an express warranty Food for thought.