[License-review] Disclaimer of warranty under German law (was For Approval: Open Logistics License v1.2)

[Andreas Nettsträter]

Hi Pam,

I’ve got some feedback from our lawyer:
“In Germany, but also in other EU member states, a provision in general terms and conditions that restricts the rights of the contractual partner "to the extent permitted by law" is invalid. The rationale behind this is that the party using general terms and conditions must inform the contractual partner in a transparent manner of the conditions that apply and the contractual partner cannot be required to check the extent to which a permissible deviation from the statutory rule is possible. Ineffectiveness leads to the law applicable in the absence of a contractual provision being applicable.”

Of course, this do not need to lead to concrete problems and in the end, I guess, it could have the same outcome. But we wanted to make the formulation as unambiguous and explicit as possible.

Regards
Andreas


Von: License-review <license-review-bounces at lists.opensource.org> Im Auftrag von Pamela Chestek
Gesendet: Sonntag, 11. Dezember 2022 17:24
An: license-review at lists.opensource.org
Betreff: [License-review] Disclaimer of warranty under German law (was For Approval: Open Logistics License v1.2)

On 12/5/2022 2:45 PM, Carlo Piana wrote:


Rationale:

This new license is intended to represent the rights and obligations of an

established license, such as Apache v2, while respecting the differences

between US and German law. The changes were mainly done in the paragraphs

regarding warranty (limitation of the warranty to comply with legal

requirements) and liability (intent cannot be excluded under German law).

Indeed this is true also under Italian Law and to my understanding a few other laws.


I'm just curious. This is true under US law as well. We generally address it in the way that the Apache license does, with something like "Unless required by applicable law or agreed to in writing," any warranty is disclaimed. Why doesn't that work in Germany, and what would be the outcome in Germany if the license didn't expressly exclude intentional or grossly negligent conduct? Is the entire paragraph discarded, and so someone who has a claim for mere negligence has a warranty despite the effort to disclaim it?

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com<mailto:pamela at chesteklegal.com>
+1 919-800-8033
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