User Protection in IT Contracts

Name: User Protection in IT Contracts | A Comparative Study of the Protection of the User Against Defective Performance in Information Technology
Brand: Kluwer Law International
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A Comparative Study of the Protection of the User Against Defective Performance in Information Technology

Clarisse Girot(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 1. März 2002

488 Seiten

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Inhalt

Cover
Half Title Page
Title Page
Copyright Page
Acknowledgements
Table of Contents
List of abbreviations
CHAPTER 1 Introduction
1 Position of the problem issue: the role of law in Information Technology
2 Causes and effects of inequality of bargaining powers and imbalance in contracts
2.1 Introduction
2.2 Generality of the phenomenon of inequality of bargaining powers in contract
2.3 Generality of the dichotomy between specialists and laymen
2.4 Additional factors of weakness in the IT sector
2.5 Impact on the quality of the stronger party's performance
3 The role of contract law as to performance quality in one-sided contracts
3.1 Should the law be concerned with inequality of bargaining powers and contractual imbalance?
3.2 Re-organising the functions of contract law
4 Research objectives and methodology
4.1 Research objectives
4.2 Justification of a comparative approach
4.3 Selection of three IT contracts as an experimental terrain for the common rules of contract law
5 Plan of the research
CHAPTER 2 The protection of weak parties in comparative law
1 Introduction
2 The development of the protection of weak parties in comparative law
2.1 Introduction
2.2 The protection of weak parties in English law
2.3 The protection of weak parties in Dutch law
2.4 The protection of weak parties in French law
2.5 Synthesis and conclusion
3 Reasonable expectations, freedom of contract and the protection of weak parties
3.1 Presentation of the issue
3.2 References to the parties' reasonable expectations in comparative law
3.2.1 English law
3.2.2 Dutch law
3.2.3 French law
3.2.4 Conclusion
3.3 Assessment of the protective function of the notion of reasonable expectations
4 Conclusion
CHAPTER 3 Co-ordinating the protection of consumers and weaker commercial parties
1 Introduction
1.1 Aims of the Chapter
1.2 Logic and structure of the Chapter
2 Essential methods of consumer protection against defective performance
2.1 Introduction
2.2 Warranties of conformity in consumer sales
2.2.1 General
2.2.2 Warranties of conformity in consumer sales under English law
2.2.3 Warranties of conformity in consumer sales under Dutch law
2.2.4 Warranties of conformity in consumer sales under French law
2.2.5 Conclusion
2.3 Exemption clauses in consumer contracts
2.3.1 General
2.3.2 Exemption clauses in consumer contracts in English law
2.3.3 Exemption clauses in consumer contracts in Dutch law
2.3.4 Exemption clauses in consumer contracts in French law
2.3.5 Conclusion
2.4 Consumer information
2.4.1 General
2.4.2 First illustration: Directive of 20 May 1997 on distance contracts
2.4.3 Second illustration: Directive of 8 June 2000 on electronic commerce
2.5 Right of withdrawal
2.6 Conclusion
3 The need for a strict definition of the consumer
3.1 Introduction
3.2 The definition of the consumer in European law
3.3 The definition of the consumer in French law
3.4 The definition of the consumer in Dutch law
3.5 The definition of the consumer in English law
3.6 Reconciling a restrictive notion of consumer with the protection of weak commercial parties
4 Interaction between consumer law and the protection of commercial parties under common rules of contract law
4.1 Introduction
4.2 Interaction between consumer law and the protection of professionals
4.2.1 Influence of consumer law on the common rules of contract law
4.2.2 First illustration: the English Unfair Contract Terms Act 1977
4.2.3 Second illustration: the 'reflexwerking' of Dutch consumer regulations
4.3 Selected methods for the protection of professionals and application guidelines
5 Conclusion
CHAPTER 4 Why are IT contracts unbalanced? Arguments for and against protective concerns in IT
1 Introduction
2 Contractual imbalance and standard software licences
2.1 Introduction
2.2 Influence of the computer and software markets
2.3 Definition of standard software quality
2.3.1 Introduction
2.3.2 Technical, system and quality specifications
2.3.3 Objective quality of the program: bug-free standard software does not exist
2.3.4 Subjective quality of the program: the role of the user in the definition of software quality
2.4 Consequences for the position of the software user
3 Contractual imbalance and electronic information services
3.1 Introduction
3.2 The influence of the structure of the electronic information services market
3.3 Definition of the quality of electronic information services
3.3.1 Introduction
3.3.2 Quality of the access to the service
3.3.3 Quality of the database system
3.3.4 Quality of the contents of the database
3.4 Consequences for the position of the user of electronic information services
4 Contractual imbalance and Internet access services
4.1 Introduction
4.2 Influence of the telecom market on Internet access services
4.2.1 Importance of telecom operators on the access services market
4.2.2 Competition issues in the telecom sector
General advantages of PTOs over private competitors
Network access and interconnection issues
Network services
4.3 Definition of the quality of Internet access services
4.3.1 Availability of the service
4.3.2 Complementary services
4.4 Consequences for the position of the user of Internet access services
5 Conclusion
CHAPTER 5 Liability for defective IT services in comparative law
1 Introduction
2 Liability for defective standard software in comparative law
2.1 Introduction
2.2 Liability for defective standard software in English law
2.2.1 Introduction
2.2.2 Legal nature of standard software and classification of software licences in English law
Implications of the discussion
Case law
2.2.3 Satisfactory quality
2.2.4 Fitness for purpose
2.2.5 Conclusion
2.3 Liability for defective standard software in Dutch law
2.3.1 Introduction
2.3.2 Legal nature of standard software and classification of software licences in Dutch law
2.3.3 Breach of contract, strict obligations, and information duties
2.3.4 Conclusion
2.4 Liability for defective standard software in French law
2.4.1 Introduction
2.4.2 Legal nature of standard software and classification of software licences in French law
Implications of the discussion and doctrinal opinions
Case law
2.4.3 Breach of contract, strict obligations, and information duties
2.4.4 Conclusion
2.5 Personal opinion and conclusion
3 Liability for defective electronic information services in comparative law
3.1 Introduction
3.2 Liability for defective electronic information services in English law
3.2.1 Introduction
3.2.2 Preliminary issue: problems raised by three-way commercial relationships
Position of the issue
Possible solutions to the issue
3.2.3 Analogy with the assessment of the quality of standard software
3.2.4 Satisfactory quality of electronic information
3.2.5 Fitness for purpose of electronic information
3.2.6 Conclusion
3.3 Liability for defective electronic information services in Dutch law
3.3.1 Introduction
3.3.2 Legal nature of data and classification of contracts of electronic information services in Dutch law
Hazardous inference from strict product liability
Non-authoritative application of Art. 3:2 BW to information
Why should classification matter?
3.3.3 Breach of contract, 'inspannings-' or 'resultaatsverbintenissen'
3.3.4 NVI and Viditel Code of conduct
3.3.5 Conclusion
3.4 Liability for defective electronic information services in French contract law
3.4.1 Introduction
3.4.2 Legal nature of data and classification of contracts of electronic information services in French law
Doctrine of 'informational goods'
Issues of classification of contracts of electronic information services
3.4.3 Breach of contract, 'obligation de moyens' or 'de resultat'
3.4.4 Codes of conduct and similar undertakings
3.4.5 Conclusion
3.5 Personal opinion and conclusion
4 Liability for defective of Internet access services in comparative law
4.1 Introduction
4.2 Liability for defective Internet access services in English law
4.3 Liability for defective Internet access services in Dutch law
4.4 Liability for defective Internet access services in French law
4.5 Personal opinion and conclusion
5 Conclusion
CHAPTER 6 Pre-contractual information in IT contracts: misrepresentation and duties of disclosure
1 Introduction
1.1 General
1.2 Distinction between defects of consent and pre-contractual information duties
1.3 Advantages and functions of pre-contractual information duties
1.4 General arguments for or against pre-contractual duties of disclosure
1.5 Aims, methodology and outline of the Chapter
2 Misrepresentation and pre-contractual information duties in English law
2.1 1ntroduction
2.2 Misrepresentation, implied warranties and pre-contractual duties of disclosure
2.3 No general obligation of pre-contractual information disclosure in English law
2.4 Arguments grounding the refusal of pre-contractual duties of disclosure in English law
2.5 Conclusion
3 Pre-contractual duties of disclosure in Dutch law
3.1 Introduction
3.2 Doctrines grounding pre-contractual duties of disclosure in Dutch law
3.2.1 'Dwaling' and pre-contractual duties of disclosure
Definition of 'dwaling'
Conditions for a successful claim in 'dwaling'
Effects of 'dwaling'
3.2.2 Requirement of conformity and pre-contractual duties of disclosure
3.2.3 'Redelijkheid en billijkheid' (Art. 6:248 BW) and pre-contractual duties of disclosure
3.2.4 Pre-contractual information duties as an independent doctrine in Dutch contract law?
3.3 Variables in the scope of pre-contractual duties of disclosure in Dutch law
3.3.1 Balancing duties of disclosure and duties of spontaneous investigation
3.3.2 Type of information to be disclosed
3.4 Conclusion
4 Pre-contractual duties of disclosure in French law
4.1 Introduction
4.2 Doctrines grounding pre-contractual duties of disclosure in French law
4.2.1 Introduction
4.2.2 'Erreur' and pre-contractual duties of disclosure
Definition of 'erreur'
Conditions of liability for 'erreur'
Effects of 'erreur'
4.2.3 'Dol' and pre-contractual duties of disclosure
Definition of 'dol'
Conditions for a successful claim in 'dol'
Effects of 'dol' as the breach of a pre-contractual duty of disclosure
4.2.4 Warranty against latent defects, conformity and pre-contractual duties of disclosure
4.2.5 Pre-contractual information duties as an independent doctrine in French contract law
4.3 Variables in pre-contractual duties of disclosure in French law
4.3.1 Balancing duties of disclosure and duties of spontaneous investigation
4.3.2 Type of information to be disclosed
4.4 Conclusion
5 Synthesis and personal opinion
5.1 Pre-contractual information duties and reasonable expectations
5.2 Technical arguments for favouring implied terms to duties of disclosure in English law
5.3 Theoretical overlaps between the principles of disclosure and nondisclosure
5.3.1 General
5.3.2 Scope of duties of spontaneous investigation
5.3.3 Type of information to be disclosed
5.3.4 Standard nature of the service provided
5.3.5 Conclusion: mitigating the formal opposition between the principles of disclosure and non-disclosure
6 Conclusion
CHAPTER 7 Enforceability of standard contracts and general conditions in IT: shrinkwrap licences and incorparation by reference
1 Introduction
2 Shrinkwrap licences in comparative law
2.1 Introduction
2.2 Issues raised by shrinkwrap licences
2.3 Shrinkwrap licences in England
2.3.1 Doctrinal opinions
2.3.2 The case Beta v. Adobe
2.3.4 The case Aztech PTE Ltd v. Creative Technology Ltd
2.4 Shrinkwrap licences in the Netherlands
2.5 Shrinkwrap licences in France
2.6 Present synthesis in Europe: ensuring the protection of software licensees
2.7 Shrinkwrap licences in the United States: a different perspective?
2.8 Conclusion: anticipation of an evolution towards a better enforceability of shrinkwrap licences in Europe
3 Incorporation of general conditions in IT contracts
3.1 Introduction
3.2 Acceptance of terms and manifestations of assent
3.2.1 Acceptance of terms by signature in off-line contracts
3.2.2 Acceptance of terms in on-line contracts: 'double click' and 'implied consent by use'
3.3 Time of notice
3.3.1 Time of notice in off-line contracts
3.3.2 Time of notice in on-line contracts
3.4 Reasonable notice of the general conditions
3.4.1 Reasonable notice in off-line contracts
General
English law
Dutch law
French law
3.4.2 Terms of reference in on-line contracts
3.4.3 Availability of the general conditions in on-line contracts
3.4.4 Open alternative: constructive or effective knowledge of the terms?
3.5 Incorporation of terms drafted in a foreign language
3.5.1 Incorporation of terms drafted in a foreign language in off-line contracts
English law
Dutch law
French law
3.5.2 Incorporation of terms drafted in a foreign language into on-line contracts
3.6 Concluding comments: influence of the content of the terms
4 Conclusion
CHAPTER 8 Exemption clauses in IT contracts
1 Introduction
2 Exemption clauses in IT contracts in English law
2.1 Introduction
2.2 Exemption clauses at Common Law
2.3 Statutory control of exemption clauses under the Unfair Contract Terms Act 1977
2.3.1 General scheme of the Unfair Contract Terms Act 1977
2.3.2 The Salvage Association v. CAP Financial Services
2.3.3 St Albans City and District Council v. ICL
2.3.4 IT contracts after the Salvage Association and St Albans cases
2.4 Statutory control of exemption clauses under the Unfair Terms in Consumer Contracts Regulations
2.5 Entire agreement clauses
2.5.1 General
2.5.2 Entire agreement clauses in commercial contracts
2.5.3 Entire agreement clauses in consumer contracts
2.6 Conclusion
3 Exemption clauses in IT contracts in Dutch law
3.1 Introduction
3.2 Judicial control of exemption clauses
3.3 Statutory control of exemption clauses
3.3.1 General scheme of the Regeling algemene voorwaarden (Arts. 6:231 to 6:237 BW)
3.3.2 Application of the Regulation to commercial contracts
3.3.3 Application of the Regulation to consumer contracts
3.3.4 Impact of the 'reflexwerking' of the black and grey lists in commercial contracts
3.4 Entire agreement clauses
3.5 Conclusion
4 Exemption clauses in IT contracts in French law
4.1 Introduction
4.2 Judicial control of exemption clauses
4.2.1 Submission of one-sided terms and conditions to the requirement of good faith
4.2.2 Non-excludability of liability for intentional or gross negligence
4.2.3 Non-excludability of 'essential' or 'fundamental' obligations
4.2.4 Essential obligations and 'cause' of the contract
4.2.5 Relevant factors in the assessment of exemption clauses in French law
4.3 Statutory control of exemption clauses
4.3.1 General scheme of the statutory control of exemption clauses in consumer contracts
4.3.2 Exemption clauses and the Decree No. 78-464 of 24 March 1978
4.3.3 Exemption clauses and the autonomous power of the French courts in relation to unfair terms in consumer contracts
4.3.4 Exemption clauses and the Recommendations of the Commission des Clauses Abusives (CCA)
4.4 Entire agreement clauses
4.5 Conclusion
5 Synthesis and conclusion
CHAPTER 9 Conclusions
1 Existence of an undeniable concern of protection of IT users in contract law
2 Reasonable expectations
3 Relation between the common rules of contract law and consumer law
4 Co-relation between protective concerns and constraining liability standards in IT
5 Distinction between the objective and the subjective quality of IT services
6 Information on the subject matter and on the terms of the contract
7 Conclusion: is contract law biased in favour of IT users and is it efficient to improve performance standards in IT?
Summary
Table of cases
Bibliography
Index
About the Author
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