On 09/12/2012 05:48 PM, François Chaplais wrote:
There is another point which is is maybe overlooked by people whose official language is
English. It seems to me that EULAs suffer from a "vice de forme" in the sense
that they are often written in a language that is not an official language of the country
where it is supposed to apply. Specifically, most EULAs are solely written in English
Further to that, most EULAs are written in one dialect of English (the
one used in the USA).
The other day a pupil of mine asked me what 'cremenently' meant, having
watched Disney's cartoon
of "Robin Hood".
Anybody here know what 'cremenently' means???? Fancy that in a EULA?
The English and the Americans are divided by a common language.
and rarely translated because (I assume) the vast amount of money it would
take
1) to translate the EULA into one official language of the target
country/countries
2) to adapt the text to the local jurisdiction (while keeping in mind that
international treaties, in particular concerning IP, apply above national law)
Best,
François
Le 12 sept. 2012 à 16:34, Lynn Fredricks a écrit :
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.
You bring up a interesting point here, and one I believe to be a growing
problem in the future.
EULAs are granted under the laws of a place designated by the vendor, not
under the laws of where the user is located. Severability usually is based
upon changes under that law, not under the laws of wherever the user is
located.
In the USA, there are some serious differences in state laws - one big
example is the treatment of "chance", contests, raffles, etc. Typically how
that's handled is that the agreement you go into when you participate in the
contest is that the terms include the following: "Void where prohibited" -
meaning, if some local law is contrary to the implementation of the contest,
nobody in that area may participate in the contest.
Vendors in specific jurisdictions will take into account the law of a
specific location only (in the US, state, and in some respects, federal
law).
In the "English speaking world" there are all sorts of legal systems
(just for example,
crossing the border between England and Scotland one moves from some sort of
homemade outgrowth of Anglo-Saxon law to Roman law) and all sorts of
dialects.
If a EULA is invalidated someplace, the vendor can simply terminate
your rights under the license.
This the point of view from the vendor's jurisdiction. If the end user is in
another country, another conclusion may be drawn locally. International (or
bilateral) treaties are signed to cure these potential headaches. But there
remains to put into place an enforcement institution that is accepted by all
parties.
If you want to have an idea of what a mess this can be, look at the World Trade
Organization.
The European Union (unfortunately) also gives good examples of how difficult
these things are difficult to achieve in practice (take for instance the
managing of the euro :( ).
Best regards,
Lynn Fredricks
President
Paradigma Software
http://www.paradigmasoft.com
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