Suppose parties A and B are signing a contract that incorporates by reference a confidential document belonging to A. Party B agrees to a non-disclosure agreement which disallows B from viewing or possessing the document after the contract has been signed.

A and B sign the contract. To comply with the NDA’s requirements, B destroys their copy of the document.

Is such a contract enforceable in California / United States?

  • 1
    Interesting question. I could imagine this being jurisdiction-specific, so you may want to specify a jurisdiction, but perhaps it could also be answered more generally.
    – Ryan M
    Commented Mar 11, 2021 at 8:21
  • Thanks for the feedback - I have updated to specify CA / USA.
    – Kevin Chen
    Commented Mar 11, 2021 at 18:49

2 Answers 2


Is a contract enforceable if one party can’t keep a copy?

Yes. For instance, the nature of the confidential document might such that it suffices for B to know the substance --or memorize/memorialize certain contents-- of that document. Thus, B does not need to keep consulting his copy in order to perform his duties pursuant to the contract.

Likewise, the contract might directly or impliedly allow B to inquire of A about details of the document.

Even if B is not allowed to consult A, the contract is enforceable from the standpoint of B bearing the risk of mistake. See Restatement (Second) of Contracts § 154 (a) and (b). In this scenario, B agreed to bear the risks inherent to being unable to ascertain the terms or substance of the confidential document. He treated his limited access to the confidential document as sufficient [knowledge] for purposes of the contract.

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    This sounds implausible. The contract is enforceable by A, because A can sue and produce the contract as evidence. B however cannot sue, because B cannot prove a breach of contract, because B cannot show which part of the contract is broken, because B doesn't have the copy of the contract. B cannot even show that a contract exists. And lawsuits are how contracts are typically enforced.
    – MSalters
    Commented Mar 11, 2021 at 11:57
  • @MSalters if B sues, they can get a copy of the document through discovery
    – Dale M
    Commented Mar 11, 2021 at 12:02
  • @MSalters "B doesn't have the copy of the contract. B cannot even show that a contract exists". You are misreading the OP's description, and/or your comment reflects various multiple misunderstandings. Contract and the confidential document referred therein are not the same thing. B's agreement to depriving himself of the confidential document does not suppress his obligations. B can certainly sue, and during court proceedings do as DaleM points out. Commented Mar 11, 2021 at 12:02

I'm skeptical that this would come up.

While an NDA would often refer to a confidential document that can't be disclosed, normally, the obligation of the party to the NDA would not itself be kept secret because this would impair, as a practical matter, the capacity of the party to the agreement to perform the agreement.

I suppose the NDA might specify the documents not to be disclosed, in general, while the confidential schedule to the NDA might contain a list of all of the specific secret documents that are out there by date and title. But even then, preventing the person charged with performing the contract from knowing the scope of their obligation is at a minimum bad practice, even if it is enforceable.

It could depend also on the complexity of the confidential document.

But again, I've never seen an NDA that denies to a party to the NDA access to the scope of his or her obligation.

Then again, it is routinely the case, that obligations are set forth on a single piece of paper (or a single electronic file) that is only maintained by one party. Usually the party in possession would have a duty to make the document in their possession available upon request (or at least to clarify what it says upon request), but the other party might not be the custodian of the document (e.g. an original promissory note).

  • 1
    This is a good answer and I concur.
    – user36183
    Commented Mar 11, 2021 at 17:24

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