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Is software goods
From time to time people sell software which does not (say it quietly) work. It has what we used to call bugs, but are now called features. When the time comes and you want your money back, you feel puzzled at the conversation which follows:
"You sold me this software. It doesn't work. Gimme mi'money.'
"Sorry, old bean. I didn't sell you the software. I sold you a licence to use the software - like a book. Now if you bought a book, and didn't like the story, would you ask for your money back?"
The form of the software 'sale' is that the software is not sold, but licensed. As a license, what is sold is not covered by the Sale of Goods Acts. If it isn't covered by the sale of goods legislation, then what quality does the software have to achieve? What promise is there that the software will accord with its description, or will be of a quality fit to be sold?.
One fiction was that one bought the disc on which the software was provided, and that whatever was recorded on it was subject to the same warranties as to quality as applied to the disc. This always seemed to me an utterly unattractive, miserable and weak minded fiction, but it was a way of importing standard quality conditions and warranties.
Then came the case of St Alban's City and District Council v ICL (CA 26 July, 1996). When this got to the Court of Appeal, this question arose tangentially. In his obiter judgement Sir Iain Glidewell, re-inforced this view, but added a consideration of what would happen where software was not sold on a disc but suppplied in insubstantial form, being downloaded remotely over a modem. He held that software supplied in this way was not goods, and therefore not subject to to the warranties. He said however that English law would have no difficulty in implying such terms into the contract.
The decision confirmed my belief that software isn't sold. It is frankly nonsense to say that the conditions inplied into a contract for the sale of software are dependent upon the medium in which it sold.
If terms are to be implied, however we must still exercise some caution. The test about just what conditions are implied into the contract is a strict one. See Trollope & Colls Ltd v NW Metropolitan Regional Hospital Board 1 WLR 600 (1973) (see the speech of Lord Pearson.
Sir Iain Glidewell said '"… a contract for the transfer into a computer of a program … is one to which Lord Pearson's words apply… such a contract is subect to an implied term that the program will be reasonably fit for, ie reasonably capable of achieving, the intended purpose.'
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