ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Friday, February 9, 2018

“Whenever That Might be” is Illusory Promise

Toll Processing, LLC, plans to have Kastalon, Inc., fix some very large industrial machinery for it at some point in time. Kastalon stores the machinery in the meantime, thinking that it will only be a few months until Toll Processing can issue a purchase order for the repair. However, Toll Processing never does so. Kastalon eventually sells the machinery for its scrap value; $6,380. About two years later, Toll Processing contacts Kastalon to have the machinery fixed. “What machinery?,” asks Kastalon. “My $417,000 machinery,” is the answer.   Lawsuit is filed for breach of contract.

Is storing items for a party without any definite timeframe being agreed upon an illusory promise? Both the district court and the Seventh Circuit Court of Appeals found that Toll Processing’s argument that Kastalon had promised to store the machinery until the issuance of a purchase order, “whenever that might be,” was indeed an illusory promise rendering the contract unenforceable. Perhaps, said the courts, the parties attempted to formulate a contract and were comfortable with somewhat informal proceedings, but parties cannot expect courts to complete the negotiation process and arrive at material terms on their behalf.

That makes sense, but the opinion also states that no less than two years had gone by between any contacts between the two companies. You would think that a simple email asking, “hey, what do you want us to do with your equipment, we can’t store it for free anymore?,” would have been possible and might have resolved this matter. The opinion does not mention bad faith, which seems to be at issue as well.

The case is Toll Processing Services, LLC, v. Kastalon, Inc., 2018 WL 505338.

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