Year: 2005
Type: article
Abstract: The contract, under which software is transferred, is often known as a software contract.The classification of such a contract is still debatable in many legal systems.This is most likely due to its unique nature in terms of the transferee's limited authority and the intangibility of the computer programme (software).A software transaction usually involves two elements, namely, the supply of software and its licence.It is still controversial whether these two elements are embedded in one or two contracts.Classifying a software contract as one type of contract or another may have significant legal consequences.At the international level classifying a software contract as a sale contract will make it fall under the General Agreement on Tariffs and Trade with Goods ("GATT") whereas classifying it as a service contract will make it fall under the General Agreement on Trade and Service ("GATS").Furthermore, the United Nations Convention on the International Sale of Goods ("CISG") applies only to sale of goods contracts and, hence, classification of a software contract is necessary for determining its applicability.At the national level the application of certain domestic rules, e.g., implied terms, consumer protection, etc., may depend on the type of contract.While the law provides warranties as to the quality of goods sold, there are no such warranties in the case of a service contract, under which services are supplied with reasonable care and skill.This paper seeks to find out whether a software contract can be classified under the traditional method of classification adopted in English law or as a new type of contract governed by common-law rules.If the latter possibility becomes our choice, the next question will naturally be whether a new legislation is needed to deal with such a contract.The United States ("US") Uniform Computer Information Transactions Act is a model of such legislation and, hence, studying its applicability and scope is necessary in this work.The last part of this paper examines the applicability of the CISG to a software contract as it is the well-known international uniform commercial law.
Author: Aymen Masadeh
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W58294697