[OT] EULA and legality

[Peter Alcibiades]

The question isn't whether EULAs are contractually enforceable.  As a class,
the answer is that they are.  That means that consenting to them can lead to
a valid entry into a contract.  CAN.  That is not an issue.

The question is whether some particular terms in a contract, whether entered
into by EULA or other means, are enforceable and lawful in the jurisdiction
one lives in.

It is my belief, and i'd be very interested to hear of cases on this either
way, that in the EU under the terms under which OSX and Windows are sold,
they are sold and not licensed.  Regardless of what is in the EULA, and
regardless of whether the delivery is accompanied by a signed assent to the
EULA or a click through. 

I also believe that post sale restrictions on use are unenforceable in the
EU.  Regardless of whether they occur in a EULA or in a condition of sale
document which one signs.  I don't believe anyone can sell you a CD recorder
and stipulate in the conditions of sale that you only use their own brand
blanks.  For instance.  I don't believe Wolfcraft can stipulate as a
condition of sale that you shall not use someone else's hoe attachment.  Or
the hose and tap people can stipulate as a condition of sale that you shall
not connect someone else's tap or coupler to theirs.  

Just because a given form of entry into a contract may be OK, it does not
follow that all contracts entered into in this way are valid and binding. 
its not really about EULAs.  Its about the law in your country and the
clause.

In the EU, for instance, one can swear a contract in which he gives up his
consumer protection rights in exchange for an extended warranty or some
other reason.  The act is not valid, because it is contrary to consumer
protection law, and you do not have the power to do that.  It will not be
enforceable. 

What is needed is an EU case in which either running the thing in a VM or on
the wrong sort of hardware was ruled breach of contract and some kind of
ruling made.  I don't know of one.  Maybe someone else does.  Lets hear it.


François Chaplais-3 wrote
> 
> 
> ....Almost anywhere, if you use a baseball bat to squash somebody's head,
> you are bound to trouble. Even if it is not told so in the user's manual.
> It called the law. 
> BTW, the same applies even if the bat is not your own.
> If the law says that electronically accepting a EULA is binding, that's
> the way it is.
> 
> In France there is a general legal principle that states that nobody is
> supposed to ignore the law (understanding it is another matter
> unfortunately). For this reasons, all laws, decrees, etc are published in
> a free newspaper that anybody can consult in any city hall; you can also
> subscribe to to it for a zero fee. The same texts are now available online
> (at least the recent ones). I do not know if this is true for other
> countries, but it makes sense, anyway.
> 
> Best,
> 	François
> 




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