[cc-licenses] New Generic and ports

Andres Guadamuz a.guadamuz at ed.ac.uk
Mon Oct 9 03:26:06 EDT 2006

drew Roberts wrote:

>> In theory you need a meeting of minds, but in practice sometimes this
>> meeting of minds is an illusion, it simply doesn't exist. 
> I find this confusing, but so be it.

To complement Peter's excellent post, I think that the definition of a
contract as a "meeting of minds" is often misleading, as in the vast
majority of contracts actions speak louder than words. We're involved in
contracts every day. You enter a shop and buy the newspapers (sale of
goods). You buy a train ticket, or park your vehicle on the car park
(provision of services). We rarely think of these actions on the terms
of a contract, but they often are. As there is rarely an expressed
"meeting of minds", contract law looks at the actions undertaken by the
parties to determine if there is a contract.

Apologies if I go into lecturing mode (I'm teaching electronic contracts
next week, so please bear with me). Let's take a sale of goods as an
example. The contract formation steps are (those in brackets are not
necessary everywhere):

- (Invitation to treat) sort of a preliminary stage, but important to
indicate that the process has started. The provider of goods or services
makes it clear that something is on offer (store display, e-commerce
website, shelves, etc).
- Offer: I take the goods on offer to the till.
- Acceptance: The cashier accepts my purchase and does not sic the
bouncer on me.
- (Consideration) this exists in most common law systems, and it is a
reciprocity requirement, generally takes the shape of monetary payment,
but also some form of reciprocal obligation is accepted as consideration.
- (Intention to create legal relationships) There must be an intention
to enter into a legal relationship between the parties (note that this
does not say "intention to enter into a contract").

The actions will determine if there is a contract. As you can see, the
stages of contract formation vary from one jurisdiction to another, so
it is important to know what set of actions will produce a contract.

In common law systems with consideration, unilateral obligations are
handled differently (because of the consideration requirement). In civil
law systems, the formation of unilateral obligations is doctrinally
sound, as there is no need to have reciprocal payment in exchange for
your obligation. If there is offer, and there is acceptance, then you
will be faced with a contract.

In my very personal view, you have a contract in copyright licences in
most civil law systems because the offer takes place when the work is
made available to the public under a licence, while the acceptance takes
place when the licensee uses the work under those terms. However, in
some systems the making available to the public would be an invitation
to treat, and NOT  an offer, which could mean that you may not have a
contract until the licensor has made an unequivocal acceptance. The
intention to enter into a legal relationship is clear on the fact that
the work has been made available under a licence.

This is where we enter into a complex analysis of the existing case law,
and my class falls asleep.



Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law
Old College, South Bridge
Edinburgh EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuz at ed.ac.uk

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