right we are going to go on to the sixth case of the day and it well actually it's the fifth case because we had one case that has been moved to another day and this last case and today's here asking the court to reverse the dismissal that was placed on judgment on the pleadings by the district court of the case was dismissed because the district court ruled the district court's attention that there was an error which was now i want you to help me just something please because it seems to me that your argument is premised on the idea that performance is necessary element in the formation of a valid contract in illinois am i correct about that argument yes yes your well you see because the illinois cases do not really say that i have had a problem the cases hold that performance is an element of a breach of contract action not an element needed to form a contract and it seems to me that that distinction would be fatal to your argument are open and brief it says included among the elements of the forcible contract are i'm going to list the elements and the fourth element is performance of all required conditions  can't be right because performance could go years into the future perhaps when they're referring to is some consideration but it all aspects of performance  don't determine whether the contract was for a material breach might give you crowns to rescind that country but the contract was formed with the initial meeting of the mind until performance is completed and that can't be because under contract law how could you have a realty for failure to perform in other words you have a contract and then someone fails to perform that's how you attack the the that's how you attack the contract but the contract is there is just a question of did you fulfill all the conditions and so then you you sue is is orange performance for breach a breach of the contract but you can't use the performance you cause otherwise we would never we would never have we would never get there we would never get to the contract and we were always weighing we did they performed you have to have a contract first but just i understand i understand your honest point but again when i look at what this case is you have if you don't have an illinois  and performance is surely not needed to form a contract and that's the problem we don't have any quarrel with that because that's that's an action to enforce the contract as distinct from whether there is a contract before elements judge ruled in or cited that's when you determine that's how you determine if you have personally was not counsel on the motion to dismiss it only came in on the tonight the issue and so i was presented with a scenario where the motion to dismiss had already been decided and so i was left to what illinois law tells me is an element that's required to establish a contract and so it seemed to me that that was the issue to present to the district court and then once the matter is we considered then of course there are there you might be a claim for recision there might be our own claim for breach of contract there might be many other avenues that we would like to take but first we have to present a  an argument that supported by existing law to ask the district court to present to the district court that the initial dismissal should not have been entered and so we get an uncle i'm confronted by the fact that the pleading itself says and here's what it says it's  take ten it's paragraph six point one of mr playlands pro se plead and it says and i'll quote it while i satisfied my obligations under the terms of the severance waiver contract the company repeatedly failed was a pro se complaint but it we can't up in the law in this area and just because it was an unfortunate circumstance you know saluting we're not going to change the illinois law we may point out this one point then since the allegation in the complaint has to be taken it's true and since it's also not tested and i want to point out i'm not simply making the  i'm not simply saying that it's a pleading issue but i'm saying that come ahead actually i'd admits in its response brief that there was a defect in how much time they took to issue the severance if he wants to say what he was entitled to you know ask for recession in a separate suit just like the district court suggested well yes can't do it in this case  may please the court i just wanted to get into more of the basic facts of this case because i think it's important with respect to whether this is actually some injustice to mr demean the basic facts of the basic pleadings i mean at this point do we really even know what the underlying facts are don't we have to assume that your client didn't complaint that you didn't perform if there was not compliance but there are a number of very specific allegations that are made mr pal i think this is extremely important for mr perelman basically says i could either sign the waiver and accept the severance payments or take the four zero one k money and my pension balance money which he indicates are two separate things and see if i could live and that long enough so that i effect of the air release and if someone who has signed a release is the plaintiff as is the case in this case then the plaintiff would have the burden of attacking the mr pailin and his reply brief if you look at pages thirteen and fourteen in reply very when he attempts to distinguish those cases he basically says well those cases don't apply because i could come in and attack but believe it the of the release but those cases would also provide if it is a void a bowl not a boarding contract then you would have to first ask for a reception asked that the parties be put back to the situation they were in before they sign and just fine him and specifically said to he never said anything about the four one k money he never said anything about any delay what he said was i should be allowed to continue correctly argued it was wrong and he decided every argument that was presented to him and said under those circumstances is improper to bring a rule fifty nine emotion to bring up something else so both on the basis of the default and on the basis that judge trying to run was right let alone he didn't abuse his discretion we would lease and so instead of arguing that there was no contract pleated he tried to bring a separate claim before two inducement that was decided under new york law and because new york law allows the release of future cla consequences and precision which your client wasn't interested in so then you're stuck with the contract and enforcement contract if if you know i don't read just fine many of the clue state action to enforce the contract it's not he's just saying you can't go forward without you can go forward on a civil contract claim and in tribal court yes yes yes and he also ruled that we could not rely on