Joseph A. Wilkins, Attorney

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Why its imporatnt to clearly state your expectations in a contract.

The principal objective in construing a contract is to ascertain and give effect to the intent of the parties. Illinois Valley Asphalt, Inc. v. La Salle National Bank, 54 Ill. App. 3d 317, 320, 369 N.E.2d 525, 12 Ill. Dec. 28 (1977). "Intent" refers to objective manifestations of intent in the words of the contract and the actions of the parties; it does not encompass one party's secret, undisclosed intentions or purely subjective understandings of which the other party is unaware. See American College of Surgeons v. Lumbermens Mutual Casualty Co., 142 Ill. App. 3d 680, 699-700, 491 N.E.2d 1179, 96 Ill. Dec. 719 (1986). Terms are to be given their ordinary meaning unless it appears that the parties intended them to carry some other meaning. Illinois Valley Asphalt, Inc., 54 Ill. App. 3d at 320. Put another way, "Unless the contract clearly defines its terms, the court must give the contractual language its common and generally accepted meaning." Krilich v. American National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 574-75, 778 N.E.2d 1153, 268 Ill. Dec. 531 (2002). The party asserting that a term has some meaning other than its ordinary one bears the burden of establishing the nonstandard usage of the term. See Prairie Land Construction, Inc. v. Village of Modesto, 213 Ill. App. 3d 364, 370, 571 N.E.2d 1210, 157 Ill. Dec. 191 (1991).

You may want to achieve a particular goal when you enter into a contract but if you don't put those expectations into the contract it is difficult to enforce that expectation. In addition, it gives the other party an opporotunity to assess whether or not they can meet those expectations. Only the overt acts of the parties and the communications between them may be considered in determining whether and upon what terms they have entered into a contract. Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 331, 371 N.E.2d 634 (1977). Thus, a secret, undisclosed desire cannot be considered as being included in the parties’ agreement. An undisclosed "mental reservation" on the part of one party to the bargain is of no effect whatsoever. (Restatement (Second) of Contracts sec. 17, comment c (1981).) Bost v. Paulson's Enterprises, Inc., 36 Ill. App. 3d 135, 141, 343 N.E.2d 168 (1976). "A contract is to be construed in accordance with the intent of all the parties and not the secret intent of one of them," Id. citing 12 Ill. L. & Prac. Contracts sec. 212 (1955). In Steinberg, the Illinois Supreme Court stated, "In the formation of contracts, it was long ago settled that secret intent was immaterial, only overt acts being considered." Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 331, 371 N.E.2d 634 (1977), citing, 1 Williston, Contracts sec. 22, at 46-48 (3d ed. 1957).)