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Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...

Scripsit Lionel Elie Mamane <lionel@mamane.lu>
> On Thu, Sep 08, 2005 at 04:58:32PM +0200, Yorick Cool wrote:
>> On Thu, Sep 08, 2005 at 03:55:56PM +0200, Dalibor Topic wrote:

>>>> The application of the
>>>>    United Nations Convention on Contracts for the International Sale
>>>>    of Goods is expressly excluded.

>> Well actually, in most countries part of the UN, the convention
>> applies by default to international contracts. So it is quite
>> relevant to exclude it, otherwise it may seriously be contended that
>> it is applicable.

> Yes, but what does it *say*?

There are thousands and thousands of words in the CISG. They cover
much ground in many areas of contract law. It is impossible to tell
which specific one of the CISG's 101 articles Mozilla's lawyers were
afraid of.

The context of the exclusion suggests that the target might be default
choice-of-law and choice-of-venue principles, but such rules are not
to be found in the CISG.

The very curious may read the full text of the convention at

> What are the consequences of it being applicable?

The effect of the exception is probably very different in different

The CISG is a treaty between *governments*; some governments may have
implemented it by adjusting their national law such that it matches
the principles of the CISG (in which case the explict exclusion of
CISG is likely a no-op). Others may have special rules for
international contracts in their national law which "just happen" to
be compatible with the CISG (in which case the exclusion is probably
still a no-op). Still others have incorporated the CISG by reference
into their body of law. In the latter case only, the exclusion
probably means that a party is barred from appealing to the CISG to
justify an interpretation of the license text with which the pther
party does not agree. He can still try to argue his interpretation
based on other sources than CISG, of course.

One readily imagines that the exclusion has some well-defined meaning
under California law. However it is quite likely that it becomes pure
nonsense when somebody outside USA creates a MPL-derived license and
substitutes his own local jurisdiction for "California".

>  And for my education: Does it apply to "international" intra-European
>  contracts?

That varies. For example, Denmark, Sweden, and Finland have opted out
of part II of CISG (pursuant to Article 92) and do not recognize it
for trade between the Nordic countries.

In principle the CISG would apply unless a "better" source of law
claims otherwise and takes precedence. Conflicting EU regulations
could be one such better source of law, but isn't necessarily - there
are several classes of EU regulations, and some of them may have
weaker force in some member states than a strongly implemented CISG.
(Isn't law fun?)

For the record, my own favourite piece of legalese is

| The Covered Code is a "commercial item," as that term is defined in
| 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer
| software" and "commercial computer software documentation," as such
| terms are used in 48 C.F.R. 12.212 (Sept.  1995). Consistent with 48
| C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June
| 1995), all U.S. Government End Users acquire Covered Code with only
| those rights set forth herein.

I have managed to find out what "C.F.R." means and to locate the text
of the referenced sections, completely without becoming wiser about
what that text is supposed to achieve (and whether a private party
*can* at all stipulate a different application of the U.S. federal
administration's _internal_ purchasing regulations than would
otherwise be used) ...

Henning Makholm  "I paid off ALL my debts and bought a much-needed new car."

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