The NDA is not a valid contract because there is no consideration. For a contract to be valid each party has to gain something. This is why many contracts include a token consideration of $1. This one didn't, so it's invalid.
This contract might actually be egregious enough to warrant an unqualified declaration of invalidity, in which case you should go the other direction and overstate your case with conclusory statement and some word like "clearly" or "patently". "This contract is patently invalid!" and then explain why.
This isn't even an IP question!
If a contract doesn't outline consideration, and the jurisdiction requires consideration, then the lawyer writing the contract was not very good at their job...
You, sir, have unfortunately failed that test.
A contract is what lets you sue someone over a private transaction. That's what it does, that's all it does. If for whatever reason you're not willing to bring a contract dispute to court, then your contract doesn't do anything and you wasted your time writing it. Contract = right to sue for breach of contract.
In order to sue someone, you need to be able to describe what damages have been done to you. The goal of a lawsuit is for the responsible party to 'make you whole,' i.e. pay you back an amount equal to the damages done to you.
In a contract dispute, the 'damages' of breaking the contract is equal to the 'consideration' of fulfilling the contract. In other words, the promised consideration is the actual thing that you can sue over.
If there is no consideration, then there are no potential damages, and there is no potential lawsuit. And since the only point of a contract is to enable a lawsuit, a contract that doesn't do that isn't a contract.
This is categorically incorrect.
Damages for breach of contract are supposed to put you back in the position you'd have been in had the contract been performed. It's not related to the value of the consideration.
Consideration is one of the things needed to make a contract binding in English law (along with offer & acceptance, and "intention to create legal relations").
Jurists still debate the rationale for consideration, but the best answer I've found is that contract in English law is seen as an exchange or a “bargain”. There is no gratuitous contract, donations are not contractual right.
By comparison, a contract under French law is based on "consent of the parties" and the theory of individual autonomy. There's no requirement for consideration.
In a "mutual NDA", consideration is easy to find; each party agrees not to disclose confidential information disclosed by the counterparty.
Another way to make an agreement binding without consideration is to sign it as a deed.
https://blogs.warwick.ac.uk/anneprudhomme/entry/consequences...
I don't think mutual NDAs are typical. Typically, you sign an NDA prior to receiving information. So the consideration for signing the NDA is receiving the information that you agreed to not disclose. If you already have that information, then that's no longer valid consideration.
In this case, the reporter already knew the security vulnerability, so that knowledge could not be considered consideration. The bank would have needed to offer something else.
If I say, "I'm going to give you some apples in six months, after the harvest" and then there's a blight and I don't actually end up with any apples, society (at least in America) decided that I should be able to just say, "Oops, sorry, I'm not going to be able to give you those apples after all" and be done with it.
On the other hand, if I say, "I am going to sell you some apples in six months, in return for $100", American society collectively decided that I'm on the hook to get you those apples, regardless of whatever difficulties should ensue.
Also, you have to ask why someone chose to sign a one-sided contract. Was it signed under duress? The court shouldn’t enforce that. Was it a gift? The court would rather not get involved with enforcing every casual promise!
Worth noting that just because it doesn't stand up as a contract doesn't necessarily mean a claim can't be made under breach of confidence (I doubt it would be applicable here, but just pointing out that contracts aren't the only form of legal protection provided to confidential information).
Definitely not. The bank did not disclose the vulnerability to him, he discovered it on his own. He had absolutely no obligation to the bank.
In the first case you have extinguished a right that could be used against you. In the second case you have obtained nothing more than the illusion of safety.
[1] http://www.jstor.org/stable/1321438
[2] http://onlinelibrary.wiley.com/doi/10.1111/j.1468-2230.1964....
Edit:googled some more and it appears that continued employment as sufficient consideration is different on a state by state basis and isn't firmly set in stone yet
Yes, that is exactly right.
> doesn't seem like a gain
Why not? If you don't think that's a gain, why are you wasting your time doing the interview in the first place?
A chance for employment (over an outright dismissal) is a recognizable gain.
You are however, free to decline with the appropriate consequences.
Obvious failure modes are exempted. Anyone can tell you about a bad bridge after it has failed. But it would take a bridge engineer to tell you that before it fails.
https://www.designingbuildings.co.uk/wiki/The_architectural_...
Also, your definition includes itself as part of its own definition, which is a circular definition fallacy.
According to what definition?
> Anyone can work in wood long enough to say "That wooden bridge looks like it'll hold X people,"...
I severely doubt that, given the complexity of trussed bridge designs [0]. There's a lot more to it than how much weight a 4-by-4 can support.
> ... and not have any way of conveying how they came to that conclusion...
If you can't transfer knowledge in a way that other people can independently verify, you're working in magic. If such a transfer is possible, but simply not possible for a particular person because they lack the tools, then that's a professional failing. For some reason, this state seems acceptable to you when we're talking about physics and complex loads. But could you imagine a doctor describing the appendix as "that thing sticking out where the long thin squiggly bit meets the short thick squiggly bit"?
> Also, your definition includes itself as part of its own definition, which is a circular definition fallacy.
You can't just throw out "circular definition is fallacy" and dismiss the idea. That itself is a fallacy -- "argument from fallacy". [1]
Yes, I use the word "professional" twice, but that's not necessarily a circular definition and especially not necessarily a fallacy. First, the two "professionals" are not the same person. The first mention of "professional" is an individual, while the second mention is a group. What I did is tie membership of a group to a conditional ability which is dependent on the group itself.
However, I did cheat a little bit. Because what I did not define is the individual ability necessary to meet that conditional. Because, of course, that changes depending on what group of professionals we are discussing.
For backup, let's look at a definition of malpractice [2]:
> a dereliction of professional duty or a failure to exercise an ordinary degree of professional skill or learning by one (as a physician) rendering professional services which results in injury, loss, or damage
In other words, malpractice is a professional doing something which such a professional should not do... Because the mere fact of a person being a professional implies that they should know better.
It's this same logic that I am using: A professional is someone who acts in a professional capacity, and understands the practices of such profession, and thereby is capable of judging whether another person understands and acts in a professional capacity.
[0] https://en.wikipedia.org/wiki/Truss_bridge#Truss_types_used_...
PS: and if you want an advice by a lawyer that accept liabilities for its counsel just pay for it, because that is the only way you get it.