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

[Pamela Chestek]

Thanks Andreas, that's very helpful.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
pamela at chesteklegal.com
(919) 800-8033
www.chesteklegal.com

On 12/23/2022 6:05 AM, Andreas Nettsträter wrote:
>
> 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
> +1 919-800-8033
>
>
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