Question: In the release for a personal injury case, do we need adequate consideration for a confidentially clause after the terms of the settlement have already been reached by the parties?
Answer: Yes. See below. Indiana strongly favors settlement agreements and if a party agrees to settle a pending action, but then refuses to consummate his settlement agreement, the opposing party may obtain a judgment enforcing the agreement. Settlement agreements are governed by the same general principles of contract law as other agreements. Generally, a settlement agreement is not required to be in writing. The existence of a contract is a question of law, and the basic requirements are offer, acceptance, consideration, and a meeting of the minds of the contracting parties. The intention of the parties to a contract is a factual matter that must be determined from all the circumstances. To determine whether a contract is enforceable, there are two interrelated areas that must be considered: intent to be bound and definiteness of term. Only essential terms need be included in order to render a contract enforceable. Whether the parties intended to execute a subsequent written document is relevant to the determination of intent to be bound. Parties may make an enforceable contract which obligates them to execute a subsequent final written agreement. However, it is necessary that agreement shall have been expressed on all essential terms that are to be incorporated in the document.