[Python-Dev] Still no new license -- but draft text available

[Alex Martelli]

"Guido van Rossum" <guido at beopen.com> wrote in message
news:200008022218.RAA04178 at cj20424-a.reston1.va.home.com...
    [snip]
> I wouldn't worry.  If the German law says that part of a license is
> illegal, it doesn't make it any more or less illegal whether the
> license warns you about this fact.

I'm not a lawyer, but: classical legal doctrine (from Roman Law,
which I do know a tiny little bit about as an amateur passionate in
Roman history:-) holds that if a contract contains provisions
contra legem, then the _whole_ contract may be deemed null
and void; private agreements not being allowed to override the
law in any way, any agreement so doing becomes suspect.

This may be very different in Common Law traditions, such as
the US; I wouldn't know.  But a classical example from Roman
Law tradition countries goes: Caius and Sempronius sign a
contract; Caius undertakes to poison Titius, and, in return,
Sempronius undertakes to give Caius a hundred sesterces.
Now, contract in hand, Caius refuses to perform his half (which
is contra legem, since poisoning is illegal) but still demands
from Sempronius his 100 coins and takes him to court about
them.  Here, the court would nullify, not just the poisoning
provision (contra legem), but the whole contract (since it
contains a provisio contra legem); i.e., Sempronius would not
legally owe Caius one as, because the whole contract is null
and void (they'd also probably both go to jail, but that's another
issue having to do with penal law, not with contract law:-).

If the contract reads something like "Sempronius will pay
Caius 100 sesterces; Caius will poison Titius, if that is legal
in this jurisdiction, else he will sing a ditty about Sempronius'
cleverness", then the contract might be valid, and Sempronius
would have to pay the money, while Caius sings about how
clever Sempronius is.  The "if that is legal" clause (or similar
and less readable wording) is supposed to make a difference.

I do not know whether this applies to disclaimers of warranties
that cannot by law be disclaimed, specifically, and in particular
I do not know whether Germany agrees to this general legal
doctrine (i.e. whether it's a Roman Law tradition, like France
and Italy, or a Common Law one, like England and the US; I
suspect the former, but that's just a guess on my part).  But
the point is that  saying "states or countries" rather than just
"states" seems so cheap an insurance against having the whole
contract nullified, that I can't understand not wanting it.  In
fact I would say "jurisdictions" rather than trying to guess if
a given issue comes under country-wide, state-wide, county-wide,
canton, municipal, or whatever else, including super-national law
(the European Union has quite a lot of those...:-).

But hey, again, I'm no lawyer, while apparently the people who
are negotiating this license are, so, if the prospect of a court
somewhere in Europe declaring the whole contract null and
void doesn't faze them, why should it faze ME -- I'm just indulging
some intellectual interest in the abstract issue!-)


Alex