Re: Warranty disclaimers with SHOUTY CAPITALS (was: licensing of XMPP specifications)

["John Halton" <johnhalton@gmail.com>]

On Jan 9, 2008 12:20 AM, Ben Finney <bignose+hates-spam@benfinney.id.au> wrote:
>     [...] because no lawyer on Earth knows [why] they aren't in mixed
>     case and everybody seems to think that everybody else knows and
>     that he's the only one that doesn't know and he was absent that
>     day in law school.

I have a (slightly old) edition of Rennie's "Computer and Internet
Contracts and Law" (a leading English software precedents looseleaf),
and the notes state as follows in a number of contracts:

"USA: NOTE: In all States in the USA (except Louisiana) all
disclaimers of warranty of merchantability or warranty of fitness for
any particular purpose must be conspicuous and are usually in boldface
or uppercase (capital) print or both."

According to the commentary, this is a requirement of the Uniform
Commercial Code. (Quick forage on Wikipedia). Here you go:
http://www.law.cornell.edu/ucc/2/article2.htm#s2-316

So it appears the legal requirement is for the disclaimer to be
"conspicuous". However, it's difficult to see how you can achieve this
in plain text other than by SHOUTY CAPITALS, alas.

A similar requirement exists under English common law, where
disclaimers of liability must be brought to customers' attention,
particularly if they are unusual or onerous. When I'm drafting
contracts where this is necessary, however, I tend to prefer using
bold to capitals, because mixed case text is easier to read, and
indeed less hideous all round. ;-)

John

(TINLA)