Are &quot;If you breach this disclosure agreement we may sue you&quot; clauses *legally* necessary?
<p><a href="https://law.stackexchange.com/questions/31484/how-to-interpret-this-paragraph-from-an-mnda-in-context-with-ohio-law">This recent question</a> asks the meaning of the following clause in a Mutual Non-Disclose Agreement (MNDA):</p>

<blockquote>
  <p>The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.</p>
</blockquote>

<p>Now, my doubt is what would happen to the MNDA if that clause (and any other else to the same effect) were not in the agreement. It seems to me that "if you breach the contract we may sue you" is pretty much a given for any contract<sup>1</sup>.</p>

<p>Does this clause have any actual <strong>legal</strong> effect?</p>

<p>Here I use the "legal" term in a narrow meaning (if the matter goes to court, will it make it a difference the presence of absence of the clause?); I guess that there could be some practical reasons for the clause, like:</p>

<ul>
<li><p>if the opposing party is not legally savvy, it serves to remind it that breaching the contract can have penalties.</p></li>
<li><p>if the customer notices the absence (for example comparing the agreement with some other agreement), s/he may think that his/her lawyer "forgot" to include it.</p></li>
<li><p>it does no harm, so there is no actual reason to make an effort to remove it.</p></li>
<li><p>(feel free to tell me of other non-legal motives for the clause).</p></li>
</ul>

<p>If jurisdiction is relevant, let's go with that of the original question (Ohio), although it would be nice to know if I could expect a similar situation elsewhere or if it is dependant on the jurisdiction.</p>

<p><hr/>
<sup>1</sup>I know that there may be arbitration clauses forcing the parts to submit to a different conflict resolution mechanism; let's just assume the contract does not not have any.</p>

<p>This is not a "<em>if you breach the contract we may sue you</em>" clause. This is a clause which says "<em>if we find you trying to breach the contract, we can ask a court to stop you from doing so (even though you may not have actually breached the contract at that point in time)</em>".</p>

<p>The provision entitles the aggrieved party to specific relief - in this case, by the way of an injunction. Specific relief means relief of certain determined nature or of a specific kind, rather than a general relief or damages or compensation. </p>

<p>Essentially, the clause that provides that if the receiving party of the confidential information threatens to disclose such information, the disclosing party shall be entitled to ask the court to specifically order the receiving party not to disclose the confidential information (as opposed to post-facto asking for damages for the harm caused by reason of such disclosure). In the absence of this provision, a court may rule that the disclosing party has no locus to take pre-emptive legal action, as no damage has been caused yet by the other party.</p>

contract-law