Hello everyone, So I'm outlining this story and came up with an idea that I'm wondering if it even makes sense. I searched about it on the internet and couldn't get an exact answer. In my story, a character has a secret--has to do with cheating--and it weights on her and she wants to tell somebody, but also doesn't want anybody else to find out. She's planning to tell a friend and get her to sign a non-disclosure agreement to make sure the secret will never be revealed. I know companies do this kind of agreements to protect trade secrets, ideas, personal information and things like that. But could something like this be believable and hold out in court, or would it be seen as a joke to a lawyer or a judge? I wonder, because the character who cheated technically broke her marital contract with her husband when she cheated on him. Could I implement this idea and would it be valid? What do you guys think?
Depends where you are, and I'm not a lawyer, but if it was a written contract, all parties were adults and it wasn't ridiculous I would imagine a court would be prepared to uphold it.
Maybe the judge would cite precedence and call the claim frivolous. You might be hanged for frivolity. Actually, I quite like your idea. You have to write it in a convincing way. The readers will set aside all qualms if your journey is entertaining. Come the TV adaptation all the lawyers will be chewing pillows and thrashing about in the popcorn. You'll be rich, it's great, write it.
Non-disclosure agreements are enforced by seeking monetary damages. So if I break an agreement with Coca-Cola and disclose the secret formula they can sue for the monetary damages resulting from this. What are the damages if your agreement is broken? If it's just divorce, hard to say. But let's say its someone with a morality clause in their business arrangements, which infidelity is part of. Or perhaps they have to remain married to receive certain benefits like a pension or inheritance. You might have something there. Also, usually these are business arrangements so it works better if its a personal assistant or something of the like. All this said, although I've signed non-disclosure agreements (NDA's) on numerous occasions, I'm not a lawyer so I might be in left field.
My understanding is that each party in a contract has to give something ("consideration") and therefore each party has to benefit-though I say that as someone without a legal education. If you sign an agreement saying, "I'll mow Joe's lawn every Friday", I think that's unenforceable. If you sign an agreement saying, "I'll mow Joe's lawn every Friday in exchange for the right to take cut flowers from Joe's garden" I think that's enforceable. For a normal non-disclosure agreement, I assume that both parties benefit from the sharing of information--though I'm actually curious as to exactly how the "consideration" for a non-disclosure agreement is described. In your scenario the person revealing the information is the one getting the benefit--the benefit of being able to unburden herself. I don't see any benefit for the person signing the agreement, so I'm not sure if the contract is valid.
Consideration can be very broad. Forbearing to take an act one would otherwise be legally entitled to take can be sufficient consideration.
Yep, I can see how that could work with a nondisclosure where the person learning the information, wants to learn the information. But I I see this: Person A: Asks Person B to please listen to their issues and worries. So Person B has provided consideration (is that the phrase? well, you see what I mean, anyway) by listening. Person B: Refrains from revealing what they've learned. So Person B has provided consideration by being discreet. I don't see that Person A has provided any consideration. Now, if there were documented proof of Person B asking for the information, that would be different, but that's not how I understood the situation.
I'd argue person A is providing consideration by disclosing to person B information they are not otherwise obligated to disclose. It seems to me it gets a bit fuzzy in this kind of purely inter-personal situation. My first thought, also, was "what are the damages for a breach?" Typically, you'll have a phrase in the contract whereby both parties acknowledge that consideration was received and the sufficiency of the consideration won't be questioned. I suppose you could have person A pay person B a dollar if you wanted to make sure A gave consideration
But by that argument, therapists should pay their patients. In fact, come to think of it, this is like a therapist relationship. And in that contract, I don't think that the therapist learning about the patient's personal life is treated as consideration. The therapist gets money; the patient gets to TELL about their personal life--and also get advice. I think that, yes, Person A needs to pay Person B.
Most NDAs/CDAs I've been involved in, which is quite a few, there has been no payment. One party discloses information to the other that they don't otherwise have to disclose, and the other party agrees to keep it confidential. Doesn't mean there can't be payment. In a therapist relationship, I think a CDA would be enforceable even without payment. The patient is providing information they're under no obligation to provide, and the therapist is providing time and professional services that they aren't obligated to provide. But like I said, the whole thing does look a bit fuzzier in the interpersonal realm. When I draft NDAs, it's generally because my client and another party are contemplating a business relationship that will benefit them both, and they're entering into the agreement/exchanging information for the purpose of exploring that relationship. In other words, one party is disclosing information that has monetary value, and the other party is agreeing to keep it confidential in exchange for being made aware of it and possibly entering into a business relationship. Even if the relationship doesn't pan out, the NDA will be enforceable without monetary payment. Also, in the realm of patents, the NDA serves the very important function of preventing any disclosure from being a "public" disclosure and negatively affecting the patent rights of the discloser.
But in the NDA scenario the recipient of the information wants that information. I don't see "no obligation" as sufficient. We do lots of things that we're not obligated to do, but that doesn't mean that those things are beneficial. If Person B says, "Ooh! Ooh! Tell me the gossip!" then you could say that Person A has provided consideration. If Person B says, "Oh for God's sake. Fine, you can talk to me until the bus comes, if you insist." then I don't think that you can.
There was a case or two way back in law school that someone agreeing to do something they weren't obligated to do, or not to do something they were legally entitled to so, was sufficient basis for consideration. I'll see if I can find it, but I don't remember the facts, just the general idea.
But "agreeing" means that someone wanted them to do the thing. If Person A agrees to tell Person B information that Person B wants, then Person A could be seen as providing consideration. If Person B agrees to listen to Person A talk, then Person B could be seen as providing consideration. I interpreted the situation as matching the second, not the first. Person B agrees to listen, though he's not obligated to. Person B agrees not to reveal the information, though he's not obligated to refrain. Person B is providing two forms of consideration. Person A is providing nothing.
A provides information they don't have to provide, in either case. B is receiving information they're not otherwise entitled to receive, and giving up the right to repeat information they'd otherwise be able to repeat. At least, that's one argument. When it comes to refraining from doing something you're entitled to do, it reminds me of settlement agreements. If I agree not to sue A in exchange for a $5000 settlement of a claim I have against A, the only real consideration I'm bringing is my agreement not to do something I would otherwise have the legal right to do.
If A kicks B in the shin, they're providing B with a sensation that B is not entitled to receive. That doesn't mean that the kick counts as consideration. The fact that a massage might count as consideration doesn't mean that the kick does. The fact that some information might count as consideration doesn't mean that all information does.
Therapists services are covered under HIPAA. Your therapist is forbidden, by law, to disclose any personal information unless he/she believes you are a risk to your own health or others.
This example isn't really relevant. In the above, B consents to listen. B doesn't consent to be kicked. I don't know what you're stretching to prove, but yeah, if there is no meeting of the minds the consideration argument is irrelevant because there is no agreement.
I'm trying to argue that "consideration" has to be something that the party receiving it wants. You seem to be arguing that receiving information is ALWAYS consideration. I'm arguing that if Person B agrees to listen to Person A as a favor to Person A, and Person B signs a nondisclosure agreement, that is arguably not a contract, because Person B is doing Person A two favors, and there is no consideration in return. Let's change it a bit: Person A asks Person B if he can store his possessions in Person B's garage. Person A also asks Person B to sign a non-disclosure agreement, whereby Person B agrees not to reveal the contents of the possessions to an outside party. Is that a contract? Is the presence of Person A's stuff in Person B's garage a consideration, something that is of value to Person B? I would argue that, no, Person B is doing Person A two favors--providing storage space, and making a promise. So I would argue that there is no contract.
If my friend asked me to sign an NDA for something like this and was serious about it, I would slap the shit out of him. In other words, he better be joking.
I think that the problem with enforcing an NDA under these circumstances is that the "contract" negotiations go something like: Person A: I want to tell you a secret, but you must promise never to tell. Person B: Of course! Person A: And I want you to sign this NDA. Person B: What's in it for me? Person A: You'll know my secret. Person B: And what is that secret? Person A: Sign first. Person B: But how do I know the secret's worth me signing? Person A: You'll have to take my word for it. Person B: And you'll have to take my word I won't tell. While the court won't - generally - look at the fairness of the consideration in a contract, the consideration has to be "real".
And then add in: Person A: If you tell, you have to pay me a million dollars! Person B: You want to tell me a secret, one that I don't even know if I care about, and if I accidentally tell someone I have to pay you a million dollars? Go tell your teddy bear, I'm not interested. If Person B had reason to believe that there was something really interesting/useful about to be disclosed, maybe Person B would sign. Maybe?
My thoughts, too. If a friend asked me to sign a NDA to tell me a "secret" especially one that ended up being something like "I cheated on my spouse" I'd be like, are you fucking kidding me? And then cease being their friend because why would I want to be friends with someone who doesn't trust me. If your character wants to tell someone she cheated and keep it a secret have her go to a therapist.
