[cc-licenses] New Generic and ports

drew Roberts zotz at 100jamz.com
Mon Oct 9 07:51:30 EDT 2006


Lecturing mode is fine by me when I am in active learning mode. Thanks for the 
lesson.

On Monday 09 October 2006 03:26 am, Andres Guadamuz wrote:
> 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.
>
> Regards,
>
> Andres

all the best,

drew
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