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Immutable Terms?

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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2 Responses

  1. Bruce Boyden says:

    “You can recover your expected profit for a breach of a contract that you’ve just agreed to, though you haven’t invested one cent in reliance on the bargain.” Theoretically this is true, and I taught my contracts students the same thing. Has this ever happened, though? I.e., this situation:

    Party A: [signs agreement]

    10 seconds later

    Party A: “Actually, I change my mind.” [Rips up agreement]

    Party B: “Anticipatory breach! I get expectation damages! Woo-hoo!”

  2. Ken Arromdee says:

    And even were that not true, contracts transferring goods with defects that are (i) material; (ii) known to the seller at the time of sale; and (iii) hidden would create a serious problem of good faith, which is not generally disclaimable under the common law or under the UCC.

    Again, if the principles actually don’t change anything, why have them? “This doesn’t change anything” often means, at *best*, “this doesn’t change anything assuming that our interpretation of the law is correct, but a court might interpret the laws in different ways and it could change that”.

    If you’re selling a DVD containing thousands of programs for a couple of dollars–not at all an unusual scenario for a Linux distribution (or even selling it for more than that as a typical boxed Linux distro) there could be hundreds or thousands of bugs all together. It’s completely impractical to list them all in detail.

    Another big problem is not directly related to warranty disclaimers or open source at all–it’s that the rules, like UCITA, say that clickwrap agreements are valid and go even further to say that they’re not necessarily needed. This is definitely a case where “doesn’t change anything” means “doesn’t change anything, assuming that our interpretation of the law is correct”.