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Would a contract (such as an NDA or non-disparagement agreement) be enforceable if it prevents a person from talking to the authorities such as:

  1. the police
  2. the labour board
  3. starting a lawsuit
  4. responding to a subpoena

I noticed a common phrase in contracts is "You aren't allowed to do x y z unless required by law". For example from here

Receiving Party's obligations under this Agreement do not extend to information that is...is disclosed as required or ordered by a court, administrative agency, or other governmental body.

Or another example from here:

Notwithstanding the foregoing, nothing in this Agreement shall preclude Executive from making truthful statements that are required by applicable law, regulation or legal process.

What is the point of such statements? Without them would it be breach of contract for the signer to do something they are legally required to do? Or is the intent of such statements to limit the amount of term found to be unenforceable?

2
  • A contract can have an arbitration clause that would require the parties to settle out of court in case of disagreements over the contract, but that is probably not what you mean. May 5, 2023 at 11:33
  • 2
    Ah, the libertarian's wet dream. May 5, 2023 at 12:07

5 Answers 5

19

No enforceable contract can contain illegal clauses and work

Contracts can not remove some rights and never can bypass obligations. Talking to the police at times is a requirement by law, as is taking to the labor board. Responding to a subpoena is legally forced by the court. An NDA might limit the amount what you can say, and a contract might limit who you can sue, but can not ban you from suing at all.

In , a contract that tries to curtail such requirements would be Sittenwidrig and make all clauses that try to limit the rights fully Void and nill ab initio - in fact, it can be used as evidence against the drafting party that they tried to do so. So to stay legal and keep the clause working in the limited fashion where it is not demanded, the clause cuts the contract to explicitly exclude such situations.

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  • 3
    A settlement agreement, of course (which often also contains an NDA) can prevent you from suing at all. Often an NDA will require that if you sue over matters that would require NDA materials that you take all available steps to bring the suit "under seal".
    – ohwilleke
    May 4, 2023 at 23:36
  • @ohwilleke it onyl prevents you frokm suing one püarty, not generally
    – Trish
    May 5, 2023 at 7:00
17

The point of such verbiage is to distinguish legal from illegal disclosures. A contract can prevent a party from disclosing information, and that can include "disclosure to the government". However, government power to compel disclosure is superior to such contract disclosure. Therefore, for example, a company can be contractually prevented from disclosing information, unless ordered to do so via the courts. Example: I cannot get the name and address of a website owner from an ISP unless I have a subpoena, because the company has promised to not disclose that information otherwise. A legally-forbidden disclosure becomes legally-mandatory by court order. The contract might not specifically limit disclosures to those demanded by the courts, it could also allow disclosures when requested by a government agency, such as the police. Ordinarily, it is legal to not comply with a request for information made by the government, or any other party. It becomes illegal, when it involves disobeying a lawful order. It then comes down to the conditions under which you must comply with a government or third-party interest. You can see this in your examples, from words like "require" and "order".

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  • 2
    A common provision related to subpoenas will state that upon receiving one, you will give notice to the party protected by the NDA immediately and to not immediately consent to it, give them an opportunity to try to hire lawyers to quash the subpoena.
    – ohwilleke
    May 4, 2023 at 23:37
  • In addition, a contract can legally prohibit you from filing most types of civil lawsuit against the other party (see binding arbitration clauses, among other things). Many locales have specific carve-outs for types of suits that cannot be barred, like those regarding civil rights abuses or intellectual property disputes.
    – bta
    May 5, 2023 at 2:03
4

If a contract just said "you cannot do X", someone bound by such a contract might try to claim that they are prevented by contract when they are legally compelled to do X.

The people who want them to do X (say, the police) would then have to take them to court to get a judge to enforce the law requiring them to do X. The judge would have to rule on what happens when someone is under these two conflicting obligations.

We all expect that legal obligation like answering formal police questions would take precedence over a contract, and the judge would order the person to comply. It's possible the judge would simply rule that in this specific circumstance that clause of the contract should be ignored and still otherwise applies; this would make the clause have the same effect as if it included "unless required by law" anyway. But it's also possible the judge could rule that the prohibition in the contract was simply invalid, as it was requiring the contracted party to do something illegal (refuse a legal obligation). That would mean the person no longer has any contractual obligation not to do X in other contexts either (or technically never had any obligation, if the provision was ruled to have been invalid from the beginning). Or perhaps the whole contract would be ruled invalid!1

The company drafting the contract does not want this. If they also expect that a legal obligation to do X cannot be stopped by a contract, then they don't care about trying to prohibit you from doing X in those circumstances (they know it won't work). The point of adding "unless required by law" is to make sure that the contract doesn't impose obligations that conflict with other laws in the first place. If the conflict can't arise then a judge can't resolve it by throwing out (part or all of) the contract, so the person's obligations under the contract will continue to be enforceable in other circumstances.


1 Most contracts I have signed contained provisions saying that the parties agreed that if any provision of the contract was found to be unenforceable that the rest would stand, which I assume is specifically to try to avoid the scenario where the whole contract is deemed invalid.

4

You can certainly answer a query from police or a subpoena by responding that you are contractually prohibited from answering that question due to your contract with the other party, who you also identify clearly. That won't silence their query of course.

If it is a civil matter and not a criminal investigation, you also notify that party or their legal team... and then the querent and the other party can fight it out amongst themselves.

If it's a criminal matter, you can't leak that to a defendant, so seek advice from your attorney to keep you out of an edge conditon where you breach your contract because you answer a query an overzealous officer was not entitled to make.

1

Italian Constitution prohibits this. In particular there are the following articles that deal with it:

Art. 23.

Nessuna prestazione personale o patrimoniale puo` essere imposta se non in base alla legge.

Art. 24.

Tutti possono agire in giudizio per la tutela dei propri diritti e interessi legittimi. La difesa e` diritto inviolabile in ogni stato e grado del procedimento. Sono assicurati ai non abbienti, con appositi istituti, i mezzi per agire e difendersi davanti ad ogni giurisdizione. La legge determina le condizioni e i modi per la riparazione degli errori giudiziari.

Art. 25. Nessuno può essere distolto dal giudice natu- rale precostituito per legge. Nessuno puo` essere punito se non in forza di una legge che sia entrata in vigore prima del fatto commesso. Nessuno può essere sottoposto a misure di sicu- rezza se non nei casi previsti dalla legge.

Translation (taken from the official English translation available on Italian Senate website).

Article 23

No obligation of a personal or financial nature may be imposed on anyone except by law.

Article 24

Anyone may bring cases before a court of law in order to protect their rights under civil and administrative law. Defence is an inviolable right at every stage and instance of legal proceedings. The poor are entitled by law to proper means for action or defence in all courts. The law shall determine the conditions and forms regulating damages in case of judicial errors.

Article 25

No one may have their case removed from the court seized with it as established by law. No one may be punished other than by virtue of a law in force at the time the act was committed. No one may have their liberty restricted save for as provided by law.

So in general these article prohibit that a private agreement could go against the law, even if all the parties involved sign a contract without being under duress or coercion.

In particular our civil code has an article (art.1418) that explicitly regulates when a contract is intrinsically void (sorry for not being able to cite the text, but it links to a host of other articles of the code and general law concepts).

For example, one of those articles is art.1346 which states:

L'oggetto del contratto deve essere possibile, lecito, determinato o determinabile.

Translation by me (emphasis mine):

The object of the contract must be possible, licit, determinate or determinable.

So this article renders void contracts where you, for example, renounce a civil right.

NDAs are possible, though, if their object is determinate. In other words, you can legally agree to avoid disclosing informations (e.g. specific trade secrets), but you cannot agree to renounce your free-speech right or to renounce the right to call the authorities if you discover some illegal behavior covered by the terms of the contract.

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