The Legal Basis of an NDA and Freedom of Contract
A non-disclosure agreement (NDA) does not appear as a separately named contract in the Civil Code of Georgia — its entire strength rests on the principle of freedom of contract. Private law subjects may, within the limits of the law, freely conclude contracts and determine their content; they may also conclude contracts that are not provided for by law, provided they do not contradict it (Article 319, part 1). The obligation not to disclose information is built precisely on this norm: the parties themselves create the rules by which exchanged information is protected.
This freedom is not absolute: where one party holds a dominant position in the market, it bears the obligation to conclude contracts in that field and may not groundlessly offer a counterparty unequal terms; nor may a refusal to contract be declared to a person acquiring property or services for non-entrepreneurial purposes without justification (Article 319, parts 2 and 3). These boundaries become real in NDA practice whenever the negotiating partner is a powerful market player — and a well-drafted agreement anticipates them.
The Obligation to Provide Information and Its Limits
An obligation may imply the right to receive particular information: the provision of information must be secured where it matters for determining the content of the obligation and the counterparty can provide it without violating its own right, while the costs of providing the information must be reimbursed by the recipient (Article 318). In NDA practice this norm works in two directions: it reflects the connection between information and the content of the obligation, and it frames the scope of cooperation — what information is subject to a right of receipt and what remains purely a matter of the parties' agreement.
A well-drafted NDA precisely defines what constitutes protected information, to whom it may be transmitted (for example, advisers and consultants), for which purposes it may be used, and what happens after the cooperation ends. Where these elements are missing, disputes often reach the preliminary question of whether the information was confidential at all.