[lucumo]

You see, I don't get it. Contracts specify a deal between two or more entities. If these entities disagree on a matter, they can go to court. The court can decide the matter based on terms in the contract.

If the contract is not in legalese, but is in normal clear English, a court should (and I'll assume it would) decide the same way. If the "clear English" is somehow ambiguous, the court should decide it in the spirit of what parties most likely meant when they signed the contract. It can determine that on little clues in the language, but also on accompanying letters, or even on what is considered normal behaviour in the same kind of situation.

So, why doesn't it work like that? Why is everybody so afraid to write clear English which describes what we mean?

I look upon this with a foreigner's eye. I have no problem reading most Dutch contracts and even laws that come my way. It takes longer to read than an average news paper article, but I can figure it out quite easily. I'm well educated, but I don't have a law degree.

[mseebach]

Legalese is English (or whatever language) evolved by trial and error over several decades to be as unambiguous as possible.

Thing is, contracts are for when you get in a fight, and once you're there, figuring out in a fair manner what spirit you were in when signing is an incredibly hard problem.

[lucumo]

So what's the difference between:

"NO WARRANTY

11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES."

And:

"There is no warranty on this software to the extent permitted by applicable law. The copyright holder is not liable for any damages."

And what's with the capitals on that clause? I don't believe for a second it's less valid if not in capitals...

[jgfoot]

Ah, warranty disclaimers. Here, lawyers are limited in how they may write contracts, because consumer protection laws require that disclaimers of warranty must be written in a certain stylized manner that is in theory easier for otherwise unsophisticated consumers to read. What's with the capitals? The Uniform Commercial Code says that a disclaimer of warranty in a contract of sale must be "conspicuous" to be valid. It gives only one example of how something can be conspicuous: all capitals. Believe it or not, there are cases dealing with whether, for example, lower-case boldface printed on the opposite side of the signature page is "conspicuous." This was part of a pro-consumer movement, designed to help the little guy by making it hard to hide damaging parts of a contract--the part that says "you're on your own if this thing breaks." This all-caps rule has held out over decades, despite the innovation of several improved typesetting techniques and significant improvements in literacy since the 1930s, when most states enacted this statute.

The UCC also says that using the words "as is" is an effective way to disclaim warranties. So, lawyers put that in. Your version doesn't. That doesn't make yours wrong. It does marginally reduce the probability that your version will work in court. So, most lawyers keep it in.

Curious? Read more: http://www.law.cornell.edu/ucc/2/2-316.html

[lucumo]

Thank you for the explanation.

It's somewhat ironic that there is an "it should be easy to spot" kind of rule, but not an equivalent "it should be easy to comprehend". In theory it could be printed in a 2cm font and be completely unreadable at the same time :(

[pelle]

Thank you very much for that link. That explains a lot. I guess it's up to us to create new precedence.

[dctoedt]

All-caps text is a relic from the typewriter era -- it's about the only way (other than underlining) that a typewriter can meet a statutory requirement that warranty disclaimers be "conspicuous." Modern drafters, with laser printers and word processors, use bold-face type or even paragraph borders.

[watt]

seconded. what is written in contract, only matters when there is dispute - when you decide to fight in court. and then you don't want to be disputing what was the "spirit" of thing.