Taking contract law to an extreme, Chicago attorney Carey M. Stein has filed a $1 million lawsuit in which he alleges his former son-in-law broke an oral agreement to be faithful to his daughter if he footed the bill for the couple's wedding.

With its allegation of a contract premised on marital fidelity, the case seems more suited to a Restoration comedy than to the modern world. An attorney for Stein's former son-in-law has already cast him as the vengeful father.

“He's clearly upset with his former son-in-law and has the power to exact revenge by virtue of his privilege to practice law,” Ardwin E. Boyer told Crain's Chicago Business.

Ironically, a legal rule that dates back to 17th-century England may provide the best defense against the case. Illinois' “statute of frauds” requires that a contract must be in writing if it “is not to be performed within the space of one year from the making thereof.”

Stein, who is representing himself, says he agreed to fork out more than $75,000 for his daughter's July 2008 wedding after Stephen Levy promised to “care for, protect and be sexually faithful to [Stein's] daughter throughout their lives.”

The marriage lasted only 17 months and now Stein has sued Levy for reneging on their deal by having “unprotected sexual activity” with prostitutes in sex clubs, even contracting “one or more sexually transmitted diseases” from these illicit encounters.

The complaint seeks breach-of-contract damages for the wedding costs and $1 million in punitive damages for fraud because Levy allegedly knew his promises of fidelity were false and “intentionally and deliberately failed or refused to inform Plaintiff that he had no intention of performing them.”

The Illinois statute of frauds tracks the English original, which was enacted to bar actions based on nothing more than loose verbal statements. Many states have allowed an exception to the statute for contracts of “uncertain duration,” reasoning that if performance of a contract is possible within a year, the contract is enforceable regardless of how unlikely it is that it will actually be performed within a year.

But in McInerney v. Charter Golf, 680 N.E.2d 1347 (1997), a 4-3 majority of the Illinois Supreme Court refused to apply the exception to an oral agreement for lifetime employment. “A 'lifetime' employment contract is, in essence, a permanent employment contract,” the court said. “Inherently, it anticipates a relationship of long duration — certainly longer than one year.”

“Illinois has a very unusual view of the statute of frauds,” notes Professor R.J. Robertson of the Southern Illinois University School of Law.

Stein, a name partner at Ashman & Stein in Chicago, would certainly be familiar with McInerney since he practices employment law. In his suit, he says Levy proposed to his daughter in June 2007 and “shortly thereafter, requested that Plaintiff bear the cost of the wedding and attendant celebration.”

In consideration of Levy's promises to be faithful, Stein agreed to foot the bill — and continued to honor the agreement even as the costs of the wedding mounted with Levy inviting “a number of business associates and people from around the world.” Ultimately, more than 100 guests attended the wedding at a Chicago hotel.

The feckless Levy, however, allegedly wasn't grateful for his father-in-law's generosity. “[S]hortly after the Wedding,” the suit says, “Defendant sought out and engaged in unprotected sexual activity with various prostitutes in sex clubs located in various cities, including Toronto, Long Beach and Seattle.”

Apparently trying to build a case for malice, the suit also includes the allegation that Levy had sex with Stein's daughter while knowing he was infected with an STD, “resulting in numerous batteries to her person.” The couple divorced in December 2009.

On the face of it, the statute of frauds stands in Stein's way since the complaint says Levy agreed to be faithful to his wife “throughout their lives,” amounting to a lifetime contract. But Stein may get some traction from the dissenting opinion in McInerney.

“While the majority,” Justice John L. Nickels wrote,

has declared that lifetime employment contracts anticipate a relationship of longer than one year, the decision in this case supplies no guidance as to other types of contracts that do not, by their terms, set forth a specific time frame for performance.

The New Mexico Court of Appeals, moreover, has suggested that “contracts that [do] not implicate lifetime employment ... would not be barred by McInerney's holding on the statute of frauds.” Ettenson v. Burke, 17 P.3d 440 (2000).

But a contract in which a party to a marriage promises fidelity in return for a service rendered by a nonparty just seems too extreme for any court to enforce. "This is a very, very strange lawsuit," says Professor Robertson. "And it's not going to help the public perception of the Illinois bar.”

By Matthew Heller
4/13/10