[cc-licenses] ShareAlike and version compatibility
peter.brink at brinkdata.se
Thu Apr 13 09:08:32 EDT 2006
drew Roberts skrev:
> Let's assume for a second that it would be a contract in Europe, are
> consideration and "a meeting of the minds" necessary conditions for contracts
> there? If so, what would be the consideration?
The concept of "consideration" is a common law legal concept. In fact,
when we enter the field of legal theory you will find that the
differences between civil law jurisdictions and common law jurisdictions
become more pronounced. One of the "features" of the civil law tradition
is its heavy reliance on legal theory (as compared to common law that is
formed by case law). Civil law is, in fact, pretty much equal to legal
science. Preciseness and predictability is its prime objectives.
Needless to say there are copious amounts of works devoted to the law of
contracts, so the following is a very brief overview. It is also based
on Swedish law, which differs from continental law in this particular
field. Sweden does not have a large civil code book, as does Germany,
France, and Italy etc. A large part of Swedish contract law is still
non-codified, the gaps being filled by the use of analogies from written
That being said the basis of contract law in Europe (as in most parts of
the world) is the offer of and the acceptance of obligations. Party A
offers something to B under certain conditions, B accepts and in doing
so becomes obligated to perform what A requested. The classic example
being a purchase; A offers to sell something to B for a given amount of
money, B accepts and becomes obligated to pay A the sum that was agreed
upon. A is in turn obligated to perform his part, the delivery of the
sold goods. So a contract is an exchange of obligations.
However not all exchanges of obligations are contracts. There are some
basic requirements. The exchange must be voluntarily and the offer and
the acceptance must be in accord. To put it in another way: both parties
must intend to be obligated, and the expressions of this intent must be
If only one party intends to bound by an obligation and unilaterally
expresses this intention we don’t have a contract properly. What we have
is a gift. Gifts are unilateral legal acts which only binds the benefactor.
If the expressions of intent are in discord we normally still have a
valid contract but we might have problems when we try to determine what
has been agreed upon.
It's perfectly possible to have contract, written by one of the parties,
where the terms of the contract can only be accepted or refused by the
other party. Such contracts are called adhesion contracts. In this case
the expression of intent is usually the contract itself.
So to answer your question. No – a consideration is not necessary. A
"meeting of minds" is however.
> And how could a meeting of the
> minds be imputed with respect to a person from a jurisdiction with the
> concept of a license who thought they were issueing a license and not
> entering into a contract?
That would depend upon international private law. More precisely - the
rules regarding the choice of laws and these rules are not easy to
understand and are thus largely the domain of legal professionals. In
Europe we have reasonably robust rules that would make it possible to
predict what laws would apply to a contract such as CCPL. If one of the
parties lives in the US the matter becomes more uncertain...
> Is this whole jurisdictional adaptation and the cross jurisdiction clause
> really a big legal minefield? (I hope I am being clear as to my concern
Well, that depends on where you live and where the other party lives...
It also depends on how you intend to use a CCPL:ed work. If you only
want to make large amounts of copies of a work or redistribute the work
then there should be no problems. If, however, there is a dispute over
the meaning of the term "commercial" then it might be a real problem.
More information about the cc-licenses