Re: Some licensing questions regarding celestia
* Rick Moen (rick@linuxmafia.com) [030908 10:05]:
> Quoting Arnoud Galactus Engelfriet (galactus@stack.nl):
> > If I make an offer and you accept it, we've got a contract.
> You're saying there are _no_ other required elements of contract
> formation under German law? That seems very difficult to believe.
There are some, but not always, and not at the question of contract,
but of validity of "offer" and "acceptance".
> In English-derived common law legal systems (such as that of the USA),
Thank you for your explanation of the common law.
Well, we really have two legal systems in the world, the Roman Law
(including the countries of both Roman Empires, that including Russia
as sucessor of the east-roman empire, and the holy roman empire as
sucessor of the west-roman empire and it's sucessors Spain, France and
Germany and the other European countries except England and Ireland,
all including their allied countries and other areas in near
relation), and the common law (including the Kingdom of England and
Wales, the Kingdoms united with these (Scottland, Northern Ireland),
their (former) united and allied countries, their empire, the
common-wealth, ...). The two legal systems are total different.
> Are you saying that parties to German contracts aren't required to have
> the legal capacity to enter into contracts? Are they binding against
> infants? Somehow, I rather doubt it.
I'm speaking about German law now, which is one of the most abstract
law systems of the Roman Law; most others are a bit more simple, but
similar (as they all have the same predecessor). A important thing in
Germany is that the (base) contract just says who must do what, but
their are extra contracts of the actual doing, and the validity of
each contract is viewed seperate.
For a contract, you need matching declarations of intent from all
parties. There are many thing why making a contract could fail. Some
make the contract void per se ("nichtig"), some give a party the right
to make the contract void ("anfechtbar"). In each of these cases, the
law says who has to pays whose expenses.
Speaking of the declarations of intent now: Normal persons can make
their own declarations of intent. However, this can fail if they don't
mean it serious (nichtig if obvious; otherwiese anfechtbar), because
of error (anfechtbar), ...
Persons who are non-contractually capable (persons until age of seven,
or with certain illnesses) are not able to make a declaration of
intent.
Persons who are over seven, but not of full age, can make their own
declaration of intent only in certain cases; by default their
declarations are void and whoever is interessted in their validity
must prove that this was an exemption.
Persons can make declarations of intent in name of someone else if
they are "responsible" by law (parents by default for their children
with certain restrictions, executive board for their companies, ...),
have explicit mandate or mandate by law. Well, all this can of course
fall in certain cases.
The declaration could also fall due to legal prohibitations or
restrictions. E.g. for transfer (and similar) of real estate there is
a notarial act necessary. A violation again a restriction means
usually a contract is void; in some cases it changes only some
meanings (e.g. at renting of a flat for living the contract has the
legal defaults if the contract is not written on one sheet of paper).
The normal cases and defaults are written in a common part of the law,
the special cases at the special part for different contract types.
So, things that fail in common law at the question "Is this a
contract", falls in Germany at the question "are there non-void
declarations of intent"; however, "contract" is here a more
generalised term. We use the term "two-sided contracts" for contracts
where both parties give something of equal value (e.g. buying
something), and "one-sided contracts" if only one party has to give,
and "mixed contracts" for mixed ones.
Now to a example: Two persons A and B meet (anywhere where German law
is undoubtly valid), and A (full age) is making B (older than 7, but
not full age) the present of a chewing-gum.
This means: A says "Do you want that", B says "yes" (or they express
their intent by any other means). That makes a donation, but
1. donations are only valid in certain forms. This would make the
contract void. However, for donations is a special clause that the
declaration of intent is valid as soon as the donation is really done
(means here: the ownership of the chewing-gum has changed).
2. B is under full age. However, between 7 and full age persons could
make a declaration of intent as long as they have only legal
advantages - as in this example.
So, we have a valid contract of a donation as soon as the ownership is
transfered.
If we look at a a bit more complicated example and B is buying
something from A, the contract about buying would be void(*), and the
contract of the transfer of money also(*), but the contract of the
transfer of ownership of the good would be valid. However, A has the
right to get the goods back because there was a transfer without a
base contract or another legal cause. (*): in certain cases, as if B
paid with pocket money, all contracts are valid from beginning.
Now back to the licenses: At the moment where a author A and someone
else B have the same wish, namely to allow B in a legal binding way
the usage of a software, there is a contract (if nothing is wrong with
their wishes, as said above).
I hope that this mail is understandable. If anything is unclear, I
would try to make a better explanation (and of course this mail just
shows the general line, so that there are some small differences when
looking at a detail).
Cheers,
Andi
--
http://home.arcor.de/andreas-barth/
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