[RFC] Serious Open Source (SOS) License -- Injunctive Relief clause

Tue Mar 17 00:59:53 UTC 2009

2009/3/17 Donovan Hawkins <hawkins at cephira.com>:
> Fortunately the Jacobsen case seems to favor us (on appeal at least), so
> your clause is probably not needed:
>
> http://www.rosenlaw.com/BadFactsMakeGoodLaw.pdf

The CAFC ruled:

http://www.cafc.uscourts.gov/opinions/08-1001.pdf

“Under California contract law, “provided that” typically denotes a
condition. See, e.g., Diepenbrock v. Luiz, 159 Cal. 716 (1911)”

The CAFC further ruled:

“The choice to exact consideration in the form of compliance with the
open source requirements of disclosure and explanation of changes…”

How on earth can “disclosure and explanation of changes” come before
(be a condition precedent) to the license grant?

As discussed by The Supreme Court of California, the term “provided”
may or may not indicate a condition, noting that “‘there is no magic
in the term [“provided”], and the clause in a contract is to be
construed from the words employed and from the purpose of the parties,
gathered from the whole instrument.’” Diepenbrock v. Luiz, 115 P. 743,
744 (Cal. 1911) (quoting Boston Safe Dep. and Trust Co. v. Thomas, 53
P. 472 (Kan. 1898) (finding that, based on a reading of an entire
provision, a clause containing “provided, that” was not a condition)).

“It is undoubtedly true, as claimed by appellant, that stipulations in
a contract are not construed as conditions precedent unless that
construction is made necessary by the terms of the contract. ( Deacon
v. Blodget, 111 Cal. 418, [44 Pac. 159]; Antonelle v. Lumber Co., 140
Cal. 318, [73 Pac. 966].) There are also well considered cases holding
that provided does not necessarily impose a condition. In Hartung v.
Witte, 59 Wis. 285, [18 N. W. 177], it is said: ‘But the words, “upon
the express condition,” as here used, or the words “if it shall so
happen” or “provided however” and the like do not always make a
condition, and it is often a nice question to determine whether it is
a condition or a covenant and courts always construe similar clauses
in a deed as covenants rather than as conditions, if they can
reasonably do so.’ (2 Washburn on Real Property, 4.)

“In Stanley v. Colt, 72 U.S. 119, [18 L. Ed. 502], it is declared that
‘The word provided though an appropriate word to constitute a common
law condition does not invariably and of necessity do so. On the
contrary, it may give way to the intent of the party as gathered from
an examination of the whole instrument, and be taken as expressing a
limitation in trust.’

“Similarly in Woodruff v. Woodruff, 44 N. J. Eq. 353, [16 Atl. 6, 1 L.
R. A. 380], it is said: ‘While the words “provided nevertheless” and
“upon the following conditions” are appropriate words to create a
condition, they do not of necessity create such an estate. They and
similar words, will give way when the intention of the grantor as
manifested by the whole deed, is otherwise, and they have frequently
been explained and applied as expressing simply a covenant or a
limitation in trust.’

“Indeed, the decisions are uniform to the point that, while ordinarily
the word ‘provided’ indicates that a condition follows, as expressed
in Boston S. and D. v. Thomas, 59 Kan. 470, [53 Pac. 472], ‘there is
no magic in the term, and the clause in a contract is to be construed
from the words employed and from the purpose of the parties, gathered
from the whole instrument.’

The Restatement (Second) of Contracts Article 224 states:

“Condition Defined:
A condition is an event, not certain to occur, which must occur,
unless its non-occurrence is excused, before performance under a
contract becomes due.”

Obviously an “event” that depends on performance of a contract cannot
occur *before* performance of the contract becomes due. This result is
called an impossible condition in contract construction and is
strictly construed *against* the drafter.

The ruling of the CAFC reminds me of this limerick ridiculing the
theory of special relativity:

There was a young lady named Bright,
Whose speed was far faster than light.
She went out one day,
In a relative way
And returned the previous night!

- Arthur Reginald Buller