specially concurring:
I respectfully disagree with the conclusion reached by the majority that the public policy interest here is not sufficiently strong or fundamental to justify overriding a choice of law provision made by contracting parties and with its method of reaching this conclusion. The majority first assumed that the Illinois Consumer Fraud and Deceptive Business Practices Act (Act) is applicable to this transaction, a matter that is not clearly evident from the reading of the Act, and then determined that public policy considerations did not override the parties’ choice of Michigan law.
The public policy of a State must be sought in its constitution, legislative enactments and judicial decisions. (Roanoke Agency, Inc. v. Edgar (1984), 101 Ill. 2d 315, 327, 461 N.E.2d 1365.) The Act was intended to have broad applicability (Scott v. Association of Childbirth at Home, International (1981), 88 Ill. 2d 279, 284, 430 N.E.2d 1012) to effectuate its purpose, as stated in the preamble of the Act, “to protect consumers and borrowers and businessmen against fraud, unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Courts have perceived “a clear mandate from the Illinois legislature that the courts of this State are to utilize the Consumer Fraud Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and to grant appropriate remedies to defrauded consumers.” Warren v. Le May (1986), 142 Ill. App. 3d 550, 563, 491 N.E.2d 464; American Buyers Club of Mt. Vernon, Illinois, Inc. v. Honecker (1977), 46 Ill. App. 3d 252, 257, 361 N.E.2d 1370.
Section 2B of the Act (Ill. Rev. Stat. 1985, ch. 121½, par. 262B), originally enacted in 1967, provides important protection to consumers by enabling them to cancel a transaction within three business days and by requiring the seller to give them written notice of their right to cancel. The section was recently amended, expanding the definitions ahd broadening the coverage of the section to be in conformity with Ftederal provisions covering door-to-door solicitations. See 83d Ill. Gen. Assem., House Proceedings, June 27, 1983, at 287-88.
The need to provide consumers both with an opportunity to cancel transactions and with notice of their right to cancel has, therefore, long been recognized in Illinois, and this protection has recently been expanded. In my opinion, section 2B reflects a strong public policy to protect consumers and should not be avoided by a contract clause providing that another State’s law should apply. The application of Michigan law, containing no similar provision, is contrary to the public policy of this State. Although the contract involved here was apparently between businessmen who quite probably have some sophistication in making contracts, the majority’s decision has the same force and application to the ordinary consumer intended to be protected by that section as the majority assumes arguendo that the Act applies to this commercial lease transaction. To allow the party drafting the agreement to circumvent the salutary effect of the provisions of the Act by inserting a clause which would nullify the cancellation provision of section 2B would be contrary to our legislature’s expression of Illinois public policy. See American Buyers Club of Mt. Vernon, Illinois, Inc. v. Shaffer (1977), 46 Ill. App. 3d 266, 269, 361 N.E.2d 1380 (where the appellate court held that to allow the method of giving notice of cancellation of the contract under section 2B to be regulated by the sales agreement between the parties would be contrary to the protection which the statute afforded and contrary to considerations of overriding public policy).
In my opinion, section 2B is a legislative enactment which reflects public policy considerations of a strong and fundamental nature and cannot be avoided by a contract provision stating that Michigan law governed the agreement.
Although I would not reverse the judgment below on the basis determined by the majority, plaintiff (PLC) has raised several other contentions which require reversal of the granting of defendants’ motion for summary judgment.
Where a genuine issue of fact remains between the parties, the trial court errs in granting summary judgment. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872.) The affidavits filed by the parties dispute several material fact questions which affect whether the Act applies to this transaction. In an affidavit filed by PLC, it is stated that the person who initially contacted defendants was not an agent, representative, or employee of PLC. Defendant Charles Lumb filed an affidavit stating that he was contacted by someone representing himself as an agent of PLC. This disputed fact question must be resolved in a trial, for if the person contacting defendants is not an agent of PLC, a financing company in this transaction, then this financing transaction may not fall within the scope of the Act. See Christensen v. Numeric Micro, Inc. (1987), 151 Ill. App. 3d 823, 829-30, 503 N.E.2d 558.
In addition, there is a genuine issue of material fact raised in the affidavits as to whether PLC’s contact with defendants was consummated entirely by mail or telephone. If the person contacting defendants was not an agent or representative of PLC, it would then appear that the only contact for the financing agreement was by mail or telephone, thus falling within a specific exclusion from the application of the Act pursuant to section 2B (Ill. Rev. Stat. 1985, ch. 121½, par. 262B), which provides, in pertinent part, that: “[t]his section does not apply to any transaction *** (d) conducted and consummated entirely by mail or telephone without any other contact between the consumer and the person or its representative prior to delivery of the goods or performance of the services.”
Also, PLC has raised the argument that defendant is not a “consumer” under the Act and is therefore not entitled to the protections of section 2B. PLC contends that the lease agreement involved here concerned the rental of a french fryer to be used in the operation of defendant’s restaurant business, not for his own use, and cites People ex. rel. Scott v. Cardet International, Inc. (1974), 24 Ill. App. 3d 740, 746-47, 321 N.E.2d 386, which determined that the term “consumer” could not be read to include the purchaser of a franchise, who was a “businessman” acting as such in the conduct of “any trade or commerce.”
The majority has not analyzed these arguments because of its decision to assume that the Act applies to the situation here. In my opinion, a serious question is raised on these facts as to whether the Act applies. If the Act does not apply to this situation, the validity of the choice-of-law provision in the parties’ contract that Michigan law applies to the transaction may well be recognized under the circumstances here. By basing its decision on an assumption of the Act’s applicability, the majority has decided an important question of public policy based on a transaction to which the Act very likely does not apply.
For the foregoing reasons, I disagree with the majority opinion, and, while agreeing for different reasons that the judgment below should be reversed, I would remand for trial based on the genuine issues of material fact presented in the affidavits.