[Fwd: Germany]

Ravicher, Daniel B. DRavicher at brobeck.com
Mon Jan 29 19:31:09 UTC 2001

> -----Original Message-----
> From: David Johnson [mailto:david at usermode.org]
> Sent: Sunday, January 28, 2001 4:53 PM
> To: Ravicher, Daniel B.; Angelo Schneider;
> license-discuss at opensource.org
> Subject: Re: [Fwd: Germany]
> But are they really explicitly disclaimed? Or does one have 
> to open up the 
> shrink wrapped box in order to discover that there are no warranties.

The disclaimer is on the outside of the box.  
> But not disclosing a disclaimer of warranty 
> at time of sale 
> is tantamount to fraud. You can sell as many copies of 
> warranty-less BS 
> Office as you want, and you'll have no problem with me. So 
> long as the 
> customer is made aware of that warranty-less state at the 
> time of sale.

Agreed.  Their can be no bargain based on fraud.  However, if I do tell you
there's no warranty, I won't hear you complain later.  It's the decision of
the consumer to purchase a warranty or not.  [Have you ever tried getting
out of Circuit City after buying a new electronic without them trying to
push on you some "extended warranty plan"?]

> The only time the courts 
> should be 
> involved is when the consumer sues the producer for fraud. An 
> example would 
> be BS Inc representing BS Office as a merchantible product 
> when it is clearly 
> not.
> I don't expect you to offer a warranty with your rust-bucket 
> used Pinto. 
> However, if you represent to me that there is nothing wrong 
> with your old 
> Pinot, and it collapses in a heap ten feet out of your 
> driveway, I want my 
> money back. The courts step in if we cannot subsequently agree on a 
> resolution. Perhaps there indeed was nothing wrong with your 
> Pinto until 
> thirty secons after the sale was finalized. Perhaps you were 
> fully cognizant 
> that it was a piece of crap and outright lied to me.

Complete agreement.

> I'm not arguing that you can't sell software without a 
> warranty. But if you 
> do you need to disclose to the school that your software is 
> not warrantied to 
> be fit for any purpose. Or in other words, make it clear to 
> them that "all 
> sales are final".

Agreed again.  But once I tell them "no warranties; as is" they can't
complain later when the software crashes.
> But warranty is not support! As a school administrator, if 
> you were going to 
> sell me your software for $1 but couldn't even see your way 
> to offering a 
> money-back warranty, I would be very suspicious. If the 
> software doesn't 
> work, I'm not going to ask you to spend 100 man hours trying 
> to fix it, I 
> only want my $1 back.

Your suspicions indicate an educated consumer who might be willing to pay
more money for $1 back guarantee [for that matter, you might even be willing
to pay even more for a 100 man hour warranty].  Shouldn't you have that

> -- 
> David Johnson
> ___________________
> http://www.usermode.org

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