[cc-licenses] ShareAlike and version compatibility

Peter Brink 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 
law.

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 
in accord.

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 
> here.)
> 

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.

/Peter Brink



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