Chris F Clark cfc at world.std.com
Fri Feb 2 03:59:05 UTC 2001

> However, I may be confused by the term "merchantibility". I take that term to 
> mean that a commercial product is fit to be sold for the purpose under which 
> it is advertised. I can see no possible reason for a commercial concern to 
> sell products it deems unfit for use, so I can't understand why software 
> companies routinely disclaim this.

While I can't speak for all vendors of all software, I can tell you
what our lawyer told us when we were drafting our license (as best I
can recall it).

    If the company doesn't explicitly disclaim all (implicit)
    warantees including merchantability, one leaves oneself open to a
    particular class of otherwise frivolous lawsuits.

    If one disclaims the implicit warantees, one must provide some
    explicit warantee for the contract to be valid.  (Thus, the common
    warantee that "the media will be readable for a period of ninety

    Certain problems are better to cover in a warantee (and to provide
    specific (controlled) remedies for, because disclaiming them
    actually opens a larger hole for lawsuits.  (Patent issues are one
    of these areas.)

    All of these are simply "legal" concerns and do not have any
    bearing on whether the company will accept returns or not.  The
    disclaimers are simply to help protect against certain legal
    tactics.  Anyone can sue, but with the right defenses, one
    minimizes the chances that those suits will result in an adverse

The company I develop software for does accept customer returns (no
questions asked).  It's just a matter of good business sense.  An
unhappy customer is a constant problem.  A less unhappy non-customer
is someone who may later become a happy customer.

However, our license includes the above protections--so if one just
reads the license it would seem that we have no faith that our
software will do anything.  That is obviously not the case.  Still we
need to protect ourselves from unscrupulous people who might be
willing to try suing us if it looked liked we were vulnerable.  It's a
basic problem with the legal system.  Any well meaning agreement can
be distorted and used to extract unintended concessions or as they say,
"what you say can and will be used against you in a court of law."

The legal system is not about what is right and wrong, but about what
precedents can be brought to bear to win the argument even if the
argument is falacious.

Hope this helps,

Chris Clark                    Internet   :  compres at world.std.com
Compiler Resources, Inc.       Web Site   :  http://world.std.com/~compres  
3 Proctor Street               voice      :  (508) 435-5016
Hopkinton, MA  01748  USA      fax        :  (508) 435-4847  (24 hours)

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