Over the the Concurring Opinions blog, the two reporters of the American Law Institute's recently approved Principles of the Law of Software Contracts explain their work and defend the ALI's decision to create (at Section 3.05(b)) a non-excludable implied warranty that the software “contains no material hidden defects of which the transferor was aware at the time of the transfer.” According to the reporters, Robert A. Hillman, a professor at the Cornell Law School, and Maureen A. O'Rourke, Associate Dean at the Boston University School of Law, some software providers had complained about Section 3.05(b), arguing that it was new law, would promote litigation and, being a tort law concept, it had no place in a summary of contract law.
Profs. Hillman and O'Rourke recently published a draft paper at SSRN, Rethinking Consideration in the Electronic Age, discussing the application of contract law to free and open source licenses.
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