years to be a contract of indefinite duration which is therefore terminable the will in making this decision this court must decide how the illinois supreme court would answer two questions the first question can we determine when the  sixty two agreement will end the second question if we can't determine that that's the one hundred sixty two agreement that's worth a means first term a nation that will allow us to determine the duration of the agreement if neither question can be answered yes in the agreement is one of indefinite aeration under illinois law and therefore terminable it well on giving you notice so there's nothing indefinite about contract even if those things happen every five years it could go on and on and i think there's two answers number one not is the test but the only courts apply your mouth does the contract offer the possibility of perpetual duration and if it does that contract is deemed indefinite as a matter of law yes your honor and that's the argument they make but i think with respect that argument ignores how the contract and the automatic renewal clause actually works this contract doesn't actually renew if you look at the terms of the agreement and how it works it simply sets forth an arbitrary high period when so cal has an option to terminate if you look at the contract and how it works this contract is no different from a contract that says it is going to continue when one doesn't really want to after you get it because i would assume that if i were to agree with you and we were to terminate this contract then so call would get  consideration actually all of the agreements reference your honor is that so far as predecessor is assigning whatever right title and interest the individuals have in the marks to budget we don't know what that is we don't know if there was anything that they actually owned other than potentially a claim and that assertion that they actually own the marks is certainly not supported by anything in the record second the argument that we would not be returning anything to them presumes that there is an obligation to do so ends if one of the parties wants to end it recision challenges the validity of the agreement from the beginning we are not challenging that this was a valid agreement what we are asserting is that the agreement is terminable at will there is no right hundred illinois law up to a return of any consideration that they get the budget should this agreement be declared terminable at will going back to the two questions that i mentioned earlier earlier we w construction principles in reaching its holding in the fitzgerald case relies on common sense the fact of the ordinance which is the same argument that we're making common sense leads to the conclusion that this contract will continue for an indefinite period second question and they don't dispute that illinois will have a substantial relationship this transaction the time of the trans there are absolutely judged i'm aware of no case and i did look for cases on this your honor which says that you can change the choice of law by moving somewhere down the line i don't think that that would be a result that this court would want to thank you because then if one party did not like the choice of what an agreement they could move and thereby invalidate the choice of what provision illinois has had for an extremely long period of time for at least forty changed i believe it was changed in two thousand and two your honor although i cannot tell the quote that i'm one hundred percent on that it's not in the record i think it was two thousand and two after sendak purchased this agreement in with the fitzgerald case is an easy really if an agreement for one year renewable annually is no different than an indefinite license and a contract for five years one american renewable every five years is also an indefinite contract i feel as with the first prime of the test i want to address it in more detail but that is our position on the first problem in terms of the second prong of the test we think that the illinois supreme court has also answered that question in the just recent case the i would take issue somewhat with the characterization that the contract provides that it can be renewed judged i think that's a big distinction that somebody gets out and lets the calends out yes the only way that this contract is in substance different from just person is that the contract fixes that an arbitrary point in time every five years when so how often and the problem with that right is we don't know when that's going to have come under illinois law the test for them if you read t indefinite well if you agree you agree not you agreed to not know whether or when they would  sure but here the party is intended for a five year term it's ok not to have any again an issue of the terms five years but if you take a look at the way the agreement is function it simply will go on forever in the exact same form neither party has the right to change one word in this contract not one word has ever been changed it will continue in the exact same form until the end of time on less and until that renders it indefinite as a matter of l i am not aware of any right to terminate in the contract so cal hasn't pointed out any i know there is a rate provision which require so cal to comply with the right policies but it doesn't offer a right the terminate i won't dispute that such a implicitly does not line a contract of indefinite duration of a term now so how tries to make a distinction in the papers between contracts which are indefinite and contracts with to offer the possibility of perpetual duration the both parties can see this contract fixed end point but which contains some provision which allow the parties to legally terminated that's exactly what this project is a contract and by the way that's the definition from the nicholas labs and the payroll express cases which so help signs this nine hundred ninety nine year lease this case may go on for nine hundred and ninety five years nine thousand ninety five years will simply never know if so how can send the notice terminating if for some reason or for no reason why they cannot  hundred sixty two agreement no your honor i want to briefly address the lake forest case because that is the focus of their grief it's the only case which even harder believe supports their parties have to exercise an option to renew this case in contrast the one hundred sixty two agreement water magically renews potentially forever in lake forest you could make an argument that the renewal contracts were different because the parties had built into their original agreement a mechanism whereby fees will fluctuate over time depending upon the number of students that unrolled in the lake forest school that does not exist here and neither party has any right to change any time of the nine hundred sixty two agreement that has existed and will continue to exist in the exact same form until the end of time on the scale of the sized and there are the most importantly if you look at the lake forest opinion it hardly it is hardly certain that it actually comes to a not a perpetual agreement or perpetual agreement is one that runs on without and for ever with no means for its germination that's not this agreement then the court says that the fact that the agreement could continue  a perpetual agreement is not ambiguous perpetuity does not equal ambiguity and i'm not sure how that's relevant to the opinion because the court previously said that the agreement was not in vegas the only time the court actually addresses the term issue is in a f sensible view of the duration is that the contract has a term which continues for successful terms that doesn't really take into account the impact of the renewal clause in fact the court says it's a semantic difference if you look at the opinion the court actually  ron olson representing the defendant happily budget rental car of some in california referred to a so cal first let me acknowledge and thank the court for expediting this feel in deference to this bird and i would like to begin by responding further to some of the questions that have been raised by the court thus far judge reimer you noted the distinction  between this case and those relied upon by counsel for the plaintiff here being a five year term and very much like the lake forest case with a six three year term where lake forest and a number of other illinois cases said that a court has no power to rewrite a contract into any contract term a law will unless there is one doubt is t duration issue with regard to the manner fermentation as in lake forest there was a notice provision late for snow's press vision was slightly different in that it took notice to renew here there is renewal unless there is notice to terminate but that is a distinction without a legal difference in the sense that both the fine precisely and identifiable means manner of germination and contrary to what has been suggested by counsel for the plaintiff late force does not go off on the fact that there was all terminations for the fall knowledge that a second play i think it is important to know the fairness question gets posed by the plaintiff it's a one sided kind of issue being put forth plenty of licensed franchise agreements where the payments up front and this was a substantial payment up front it was the trademark itself that got conveyed on top of that there is a continued obligation on the part of to provide full franchise services pursuant to the manner in which budget the national budget sets those standards in other words we have to operate pursuant to the demands they place upon us and any failure to do that would of course subject us to to the threat breech so and as we operate in that way proof we presumably are continuing to build value as budget trademark the third question asked i believe went to the issue of the illinois supreme court case the fitzgerald case that as i think the court recognized as merely a case of statutory interpretation decided in one nine hundred twelve pretty simple proposition state law trumps local ordinance particularly when you're talking about the gran shop law and liquor regulation it had nothing to do with contract principles did not cite contract principles and importantly that case so important  to the plaintiff now was not even cited to the court below and furthermore so far as i can tell has never been cited in any contract case going to the law of indefiniteness of contracts the court today you know well budget was originally incorporated in illinois and headquartered in illinois on the record that we have the only facts that we have are that the pla there is a substantial connection to the law chosen and at the time of the contract we acknowledge there was clearly a substantial connection the question is whether or not that question substantial connection is asked as of the time of the lawsuit or as of the time the contract was made and it doesn't make a difference to us because the law of illinois is as  california both very clear that these contracts are not contracts and definite by reason of the fact that there is a specified duration and by reason of fact that there is a specified manner of terminations so un when under california law it's even more clear because california will enforce pronk fraction of indefinite generation so it doesn't make any difference the final point i believe made or asked about was th there was a fixed term with automatic renewals and i believe the plaintiffs counsel was suggesting that we are here contending that this makes for a perpetual contract and it's not our position we believe that this is a contract of a term of years that can be removed by the interaction of our of a slope it can be terminated and it can only be terminated by so cal if an appropriate notice is given six months before the end of the five year term so both parties are going to know within six months of the end of that then extant term whether or not they're bound for another five and a half years or whether or not their obligations are going to expire in six months quite appropriate quite clear i think i would like to dwell for just a moment on what seems to me to be the fundamental error that is being made by the plaintiffs in presenting this case they've advocated in the first sentence of the ultimate brief in this case t reply brief the essential question for this court hansard is when does this contract then they repeated it again this morning they criticized the brief filed by so cal because as they said you could look in vain through our fifty pages and not find the date on which this contract with them their complaint starts that promise on in paragraph sixteen of their complaint they allege that the contract in this instance lacked any provision which set a date certain for terminations and then in the very next paragraph paragraph seventeen they say therefore it's indefinite that's the wrong questions courts do not impose upon parties the need to set a date certain for the for it to avoid the indefinite question is not when but whether whether the courts can determine what it is that will constitute fermentation so that they can determine whether or not there's been a terminated contract and that has been  eleventh circuit the medical here court of appeal decision and in the state of california came to the same judgment these were all instances where the events of terminations were clear the manner of terminations was clear there was no doubt about the court being able to discern what would constitute terminations but in each of those instances no one for the answer the question when the judge shader and late for us not any of the other that was cited by the plaintiffs takes note of the fact that that is that determination from trio breach is implied in the contract so if they don't think we're operating in accordance with their rules and regulations and standards they could seek to claim that there is a material breach and seek to terminate the contract other than that it is our position that we have the power of renewal and they made a big deal out of the fact that the law as we know requires them to prove two things one dollars duration to doubt as to the manner of terminations it does not relate to who has the power to force the terminations for preaching and solvency also rested only on the the one party so there is there are a number of cases where the power to terminate resides in a the original contract it's very clear that the original contract there was a partnership that own budget rights are southern california that partnership one person wanted to go nationwide the other didn't they split the letters sold the business to others including ford motor company and i forget who else and most recently very recently sent came in and bought the company and decided to take a run at this is my  read but you're right that it has been and has lived on for a long number of years and and nobody at this point contends that budget of southern california is not performing there's no allegation of breach here and i think it's also off the street legal question and on that basis we believe the court can resolve this matter based on both illinois law you know the law of the state of california i thank you porkers attention parties if one party can trigger a terminating a vent simply because they do not want to perform anymore that is not sufficient under illinois law here so how can the side just in the notice and in the contract for some