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  • Jeremy Bombard


When parties enter a contract, there must be a mutual agreement on the terms. Essentially this is Contract 101; there must be a benefit of the bargain. Often, one party is contributing money, and the other party is doing/not doing something. The terms that go along with that bargain must be mutually agreed upon.

This is especially true with confidentiality and non-disparagement clauses. You want to have a confidentiality clause in order that the other side does not tell other people (or competitors) how much money is involved. And you want a non-disparagement clause because you don’t want the other party getting upset and writing a derogatory review solely because they are angry with you. This is essential in this current age of social media and easy-to-find reviews.

This situation arose in a U.S. Federal Court Case, Foss v. City of New Bedford, et. al. (Civil Action No. 22-10761-JGD). Foss agreed to settle her claims but reneged on that agreement after one of the Defendants required confidentiality and non-disparagement provisions. The Defendant then moved to enforce the settlement. The Court held that because the Parties never agreed on the terms of the settlement agreement, there was no settlement and nothing to enforce.

Any contract requires negotiation and always involves more than money. The terms are just as essential and must be agreed upon. The Parties should always be clear from the beginning about what terms must be in any contract before a final agreement can be reached.

If you ever have any contract questions, please don’t hesitate to reach out to me, and I’ll be happy to assist.

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