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Maverick, Attorney
Category: Legal
Satisfied Customers: 5745
Experience:  20 years experience as a civil trial and appellate lawyer
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I signed a confidentiality and non-disclosure agreement on

Customer Question

I signed a confidentiality and non-disclosure agreement on February 1, 2016. I later found out that the company that provided and signed the agreement was not legally formed until February 22, 2016. Does this void the agreement, as the company did not legally exist? Also, does this mean that the company engaged in misrepresentation or fraud by doing so? Thank you.
Submitted: 2 months ago.
Category: Legal
Expert:  Maverick replied 2 months ago.

Welcome! My name is Maverick. Please give me a few minutes to analyze and/or research your inquiry and I will be back.

Expert:  Maverick replied 2 months ago.

1. This would be a defect in the formation of the contract as the entity could not have given consent to agree to anything if it did not exist. So, it is not void per se; but should be voidable at your option.

2. Yes, this may qualify as fraud under this TX definition:

To establish common law fraud, a plaintiff must prove (1) the defendant made a material
representation, (2) which was false, (3) which was either known to be false when made or which
was recklessly made as a positive assertion without knowledge of its truth, (4) which the
speaker made with intent that it be acted upon, and (5) the other party took action in reliance
upon the misrepresentation, and (6) thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.
3d 749, 758 (Tex. 2001)

Customer: replied 2 months ago.
Thank you. How would I go about making the agreement voidable and notifying the other party that the agreement is void and that they engaged in common law fraud?
Expert:  Maverick replied 2 months ago.

You can send them a letter. However, you should also know that if you knew for a while these facts about the company not being in existence, but chose to continue to operate under the agreement then they could argue that you are estopped from now trying to void out the agreement.

Reminder: Please know that the answers provided here are for educational purposes only as per the JA's disclaimers. If you want formal legal advice you should consult a local lawyer before acting or failing to act.