Re: Non-disclosure agreem

> > > Why would a non-disclosure agreement dealing with public
> > > information be invalid? Suppose A doesn't know but wants to
> > > know the date of Lincoln's death, and B says: "I will tell you
> > > the date right now, and save you the time of looking it up, but
> > > only if you promise not to say anything about Lincoln's date of
> > > death to anyone else."
>
> Doesn't the analysis first have to pass contract law before you start
> worrying about whether it is in restraint of trade? Isn't the
> consideration illusory (A promise not to disclose something already
> publicly known?) If there is a breach of the agreement, what can the
> damages possibly be?

The consideration on B's part would be the fact of disclosure; the consideration on A's would be the promise to remain silent vis a vis others. Traynor once wrote that the disclosure of an "idea" (he wasn't talking about public domain information specifically, but I think the same reasoning would apply to that situation) could itself constitute the consideration for a contract. This was in a case in which the idea was not sufficiently developed or novel to qualify for any kind of "property" like protection. Stanley v. CBS, 35 Cal. 2d 653. But he noted that a court should be wary of any argument that conduct of this type *impliedly* created such a contract, since one ought not readily presume that anyone would (impliedly) agree to a contract calling for disclosure of essentially valueless information. But should a case of an express contract arise, it might, according to Traynor, be enforceable.

        --Trotter Hardy

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