Non-disclosure agreement lawyer in Paris: NDA scope and penalties for a leak before a sale or partnership.

The agreement must first designate the protected information. A general formula covering any information exchanged looks protective, but it leaves the party owed confidentiality to show, on the day of the dispute, which precise document was handed over and used. A dated annex, supplemented by the data room index, makes that showing possible. The agreement then sets the single purpose of use, for example assessing the transaction, and the list of people authorised to know the information: directors, advisers, funders. It provides for the usual exclusions, such as information that is already public or already held, as well as the duration of the obligation, the return or destruction of copies and the penalty. The Orléans Court of Appeal rejected the claim of a seller that linked no specific information to the complaints raised (CA Orléans, ch. com., 18 September 2025, No. 23/01684). This unfavourable decision illustrates the risk of an agreement that does not make it possible to identify what was passed on. The firm reviews each provision in terms of the evidence it will make it possible to produce, not of its wording alone.

A confidentiality undertaking may take the form of a letter sent by the seller and countersigned by the recipient alone. A contract has the force of law between those who made it, under Article 1103 of the Civil Code, and no provision requires a particular form for this type of undertaking. In a case decided by the Paris Court of Appeal, the letter came from the seller and the undertaking wording had been signed by the representative of the company seeking to buy. The court characterised the document as a unilateral confidentiality undertaking and ordered its author to compensate the harm caused by its breach (CA Paris, pôle 5 ch. 4, 13 September 2023, No. 21/09217). What matters is therefore proof of the undertaking given by the person accused of the leak, of its content and of its date. An undertaking signed by both sides remains preferable, because it allows reciprocal obligations to be provided for when each party provides information. The firm checks who signed, in what capacity and for which company, before any claim is made.

The very existence of a sale under discussion may be covered by the agreement. In the case decided by the Paris Court of Appeal on 13 September 2023, the prospective buyer had told a manager of the target company about the ongoing negotiations, then hired them. The court held that "This chronology is enough to establish that the poaching is the direct result of the breach of the confidentiality undertaking" (our translation) (CA Paris, pôle 5 ch. 4, 13 September 2023, No. 21/09217). It then identified "non-material harm consisting of its destabilisation in the negotiations it was conducting with its employee, then with it, for the purchase of its partners' shares" (our translation) (same judgment), and compensated it with an award of €10,000, reducing the amount set at first instance. The same decision does, however, reject the complaint based on the use of the information to create a competing company, for lack of proof that this project relied on confidential data. The practical lesson is twofold: provide expressly for the confidentiality of the transaction itself, and document the timeline of contacts with employees. The firm compares those dates with those of the negotiations before putting a figure on a claim.

Proof rests on three elements: the information was covered by the agreement, it was handed to the recipient, and it was used or revealed outside the agreed purpose. The Rennes Court of Appeal overturned an adverse judgment, holding that "It is for Conscientia to identify the confidential information communicated, or the trade secrets, that were allegedly used" (our translation) (CA Rennes, 3e ch. com., 27 January 2026, No. 25/00525). In that case, the documents alleged to have been reused did not appear among the information passed on during the negotiations, and the reports produced described a copying of files without revealing their content. This decision is unfavourable to the claimant. To avoid this pitfall, keep the dated data room index, the transmission emails, the access logs and the meeting minutes. Then compare precisely the document handed over with the opposing product, offer or document. Where the evidence is held by the other party, a fact-finding measure may be sought before any proceedings on the merits under Article 145 of the Code of Civil Procedure, provided a legitimate reason is shown and the measure sought is lawful and targeted.

For the part that has not been made public, yes. The Court of Cassation quashed a judgment that had declared a confidentiality agreement lapsed after the publication of a patent application, holding that "publication of the patent application could not have the effect of rendering the confidentiality agreement itself lapsed, nor of releasing the obligor from its confidentiality obligation as regards the elements protected by the agreement and not disclosed by that publication" (our translation) (Cass. com., 17 May 2023, No. 19-25.007). Publication exposes only what it contains: commercial exchanges, invoices or unpublished technical information remain subject to the agreement. The same decision criticises the lower courts for ruling "without concretely analysing whether the documents in dispute had been exchanged under conditions of confidentiality preventing their being passed to a third party" (our translation) (same judgment), which requires a document-by-document analysis. In practice, when a party relies on the publicity of information to escape the agreement, what was published and what was not must be isolated precisely. The clause excluding public information should, moreover, cover information that has become public without fault on the part of the recipient, and not any information appearing in a partially circulated document. The firm makes this comparison before answering the argument.

Yes. Article 1231-5 of the Civil Code allows the judge, even of their own motion, to moderate or increase the agreed penalty where it is manifestly excessive or derisory. The Dijon Court of Appeal held, regarding a confidentiality contract breached by posting a video online, that "mere proof of the breach penalised by the clause is enough to make the penalty clause payable, even in the absence of proof of any harm" (our translation) (CA Dijon, 2e ch. civ., 22 May 2025, No. 22/00399). It nevertheless found the stipulated penalty of €150,000 excessive and reduced it to €20,000, having regard to the circumstances. For its part, the Court of Cassation holds that a stipulation that compensates the creditor on a fixed basis and aims to compel the debtor to perform is a penalty clause, which the judge may then moderate; the judgment concerned a contractual notice period and the pre-2016 texts, and the Court, finding the penalty not disproportionate, refused to reduce it and ordered payment of the stipulated amount (Cass. com., 17 September 2025, No. 24-15.287). A penalty clause therefore spares the claimant from quantifying the harm, but it remains open to review. An amount in proportion to the real value of the information and the stakes of the transaction withstands challenge better than a purely deterrent figure.

A contract creates obligations only between the parties, under Article 1199 of the Civil Code. An undertaking signed by an individual therefore does not, in principle, bind a separate company. The answer depends on the terms of the document. In a case decided by the Marseille economic activities court (tribunal des activités économiques), the prospective buyer had signed the undertaking in their own name and on behalf of the company to be formed for the acquisition. The court found that "the spirit of this undertaking naturally extends the obligations taken on in the name of Mr [U] to the company to be formed for the acquisition of the assets offered" (our translation) (TAE Marseille, ch. 10, 27 May 2026, No. 2025F00590). It ordered the signatory to pay €16,000 to the intermediary, the sale having been concluded less than two years after signing without going through them. This is a first-instance decision, made on the precise terms of that undertaking, and not a general rule. To avoid any argument, the agreement should name the company or companies bound, provide for the formed company to accede to it and oblige the signatory to ensure the undertaking is respected by the entities they control.

The duration is the one the agreement provides. No provision sets a single duration for an NDA, but Article 1210 of the Civil Code prohibits perpetual undertakings, each contracting party being able to end them on the terms applicable to an open-ended contract. Article 1211 of the Civil Code then allows an open-ended contract to be ended by giving the notice provided for or, failing that, a reasonable period. An agreement with no end date therefore exposes the party owed confidentiality to a termination it will not have chosen. The duration is negotiated according to the nature of the information and the planned transaction; the undertaking examined by the Marseille economic activities court, for example, set twenty-four months from its signature (TAE Marseille, ch. 10, 27 May 2026, No. 2025F00590). For lasting know-how or technical information, the duration can be differentiated according to the nature of the information. The firm checks the stipulated duration on the date of the acts complained of, as well as the starting point chosen by the parties.

Not in itself. A non-disclosure agreement protects information; it prohibits recruitment only if it contains a provision to that effect. The Orléans Court of Appeal rejected the claim of a seller that accused the unsuccessful bidder of poaching its employees, noting that "no clause of the confidentiality agreement stipulates a ban on hiring an employee or former employee of Rubex" (our translation) (CA Orléans, ch. com., 18 September 2025, No. 23/01684). The clause that prohibited soliciting staff was intended only to prevent confidential information from being obtained through that channel. This decision is unfavourable to the seller. It differs from the Paris Court of Appeal judgment of 13 September 2023, where the hiring was the consequence of a disclosure of the existence of the negotiations, itself prohibited by the undertaking (CA Paris, pôle 5 ch. 4, 13 September 2023, No. 21/09217). Where protecting staff matters, the agreement should contain a separate non-solicitation clause, limited in time and in scope. Otherwise, the seller will have to show a prohibited disclosure or unfair conduct falling under another basis.

Yes, on certain conditions. Depending on the competent court, the president of the judicial court (Article 835 of the Code of Civil Procedure) or the president of the commercial court (Article 873 of the same Code) may order, in urgent proceedings (référé), the protective or restorative measures needed to prevent imminent damage or to put an end to a manifestly unlawful disturbance. Where the information constitutes a trade secret, Article L. 152-4 of the Commercial Code also allows interim and protective measures to be obtained on application or in urgent proceedings. Article R. 152-1 of the same Code authorises in particular, including subject to a daily penalty, a ban on using or disclosing the secret, but these measures lapse if the court on the merits is not seized within twenty working days or thirty-one calendar days of the order. The application must rest on precise documents: the agreement, the list of documents handed over and indications of current use. If use is suspected but not established, a fact-finding measure under Article 145 of the Code of Civil Procedure may first make it possible to gather the evidence. The Court of Cassation nonetheless requires the judge, when asked to do so, to check that the measure ordered is not a general investigative measure (Cass. 2e civ., 1 December 2016, No. 15-22.916). The firm therefore calibrates the application to the documents and people actually concerned.

Within certain limits, yes. Ruling on a confidential document circulated within a franchise network, the Court of Cassation held that "the right to evidence may justify the production of material covered by trade secrecy, provided that the production is indispensable to its exercise and that the interference is strictly proportionate to the aim pursued" (our translation) (Cass. com., 5 June 2024, No. 23-10.954). It quashed the judgment that had penalised the production of the document without checking whether it was indispensable to proving the alleged unfair competition. On this point, this decision is unfavourable to the holder of the secret. A contractual confidentiality obligation therefore does not, in principle, prevent any production in court. Conversely, Article L. 153-1 of the Commercial Code allows the judge to examine a document alone, to limit its disclosure to certain elements or to restrict access to it, where the secret cannot be protected otherwise. Anyone who fears disclosure during the proceedings must request these measures. Anyone who produces the document must show that it is indispensable to exercising the right to evidence and that the interference with the secret is strictly proportionate to the aim pursued.

No. Article 1112 of the Civil Code provides that the initiation, conduct and breaking off of pre-contractual negotiations are unrestricted, subject to good faith. The Versailles Court of Appeal recalls that "Negotiations may be broken off by the unilateral decision of a party, which is at liberty not to contract, so that the mere fact of breaking off negotiations is not in itself wrongful" (our translation) (CA Versailles, 12e ch., 12 January 2023, No. 21/02823). In that case, a confidentiality agreement had been signed, due diligence carried out and an offer made; the court nonetheless found a wrongful break-off in the circumstances and awarded €75,000, reducing the amount set at first instance. The same provision limits compensation: it can make up neither for the loss of the benefits expected from the contract not concluded, nor for the loss of a chance of obtaining those benefits. The NDA and the breaking off of negotiations therefore fall under two distinct regimes. The first penalises the use or disclosure of information; the second, unfair conduct in the handling of the discussions. A single case can combine both complaints, provided each is proved separately.