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I found an employment contract, in which the employee promises, upon termination of employment, to sign a "Termination Certification" and present it to the employer. The text of the certification is attached to the contract as an exhibit.

The termination certification contains assertions, ostensibly made by the employee, about the state of the world: things along the lines of "I certify that I have complied with the agreement to disclose all relevant inventions to the company", and "I certify that I do not currently possess and did not fail to return any company-issued computers or devices".

It seems to me that it is possible that, upon termination of employment, some of these statements the employee is supposed to certify might not be true. For example, if the employee is fired for losing a company laptop, they obviously will have failed to return a company-issued computer, yet they will have an obligation, from their employment contract, to sign a statement saying that this is not the case.

Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality?

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Does this amount to the employer potentially paying the employee to lie to them, to no ultimate legal effect? Or will the employee have a problem if they end up with an obligation to sign a statement that is not in agreement with reality?

Neither. Contract law contemplates a party's subsequent inability to comply with the terms that were established at the formation of the contract. In the Restatement (Second) of Contracts, this is referred to as supervening impracticability. See, for instance, the Restatement at § 261.

In the hypothetical scenario you outline, the loss of a company laptop renders the employee's promise (namely, "to return any company-issued computers or devices") impracticable. Instead, the circumstances may entitle the employer to restitution (by the employee) for what the employee now is literally unable to return. That would be cognizable as compliance in substance.

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I don't know of any specific precedent for answering this question, but the employee can probably gain some protection against future accusations of lying by writing "signed under protest" above the signature.

  • This wouldn't make the statement true, or have any effect anyway. A contract is a contract, if they protest its signing, they just shouldn't sign it. – Nij May 1 at 19:44

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