Comments on: Immutable Terms? http://www.concurringopinions.com/archives/2009/06/immutable-terms.html The Law, the Universe, and Everything Fri, 19 Mar 2010 15:14:21 +0000 http://wordpress.org/?v=2.9.2 hourly 1 By: Ken Arromdee http://www.concurringopinions.com/archives/2009/06/immutable-terms.html/comment-page-1#comment-64028 Ken Arromdee Thu, 04 Jun 2009 14:36:42 +0000 http://www.concurringopinions.com/?p=16797#comment-64028 <i>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. </i> 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". 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”.

]]> By: Bruce Boyden http://www.concurringopinions.com/archives/2009/06/immutable-terms.html/comment-page-1#comment-64016 Bruce Boyden Wed, 03 Jun 2009 15:14:45 +0000 http://www.concurringopinions.com/?p=16797#comment-64016 "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] <i>10 seconds later</i> Party A: "Actually, I change my mind." [Rips up agreement] Party B: "Anticipatory breach! I get expectation damages! Woo-hoo!" “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!”

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