Standing

Posted Oct 26, 2021 21:53 UTC (Tue) by giraffedata (guest, #1954)
In reply to: Standing by kleptog
Parent article: Empowering users of GPL software

Contracts are created that way in Anglo-American law as well, though there are some specific situations (mostly, real estate transactions) where writing is the only acceptable evidence of a contract and in every case where the contract is memorialized in unambiguous writing, no other evidence of what was agreed to is allowed.

There may be a terminology or translation problem with the difference between US and NL copyright licenses, because if a license is a contract per se, then what do you call the thing that the copyright holder agrees to give in that contract? In US law, the word for the thing given is "license". And the word works for a gift as well (and gifts don't involve contracts).

Standing

Posted Oct 27, 2021 12:05 UTC (Wed) by kleptog (subscriber, #1183) [Link] (1 responses)

> There may be a terminology or translation problem with the difference between US and NL copyright licenses, because if a license is a contract per se, then what do you call the thing that the copyright holder agrees to give in that contract? In US law, the word for the thing given is "license". And the word works for a gift as well (and gifts don't involve contracts).

Ah, the joys of translating legalese. A licence grant rights ("rechten") or informally, permissions. So in English you say "I have a licence to copy" you would say (translated literally) "I have the right/permission to copy" (a wording that probably gives English copyright lawyers fits). A "driving licence" becomes "rijbewijs", literally, proof you can drive.

It does make a phrase like "licence to kill" a bit tricky since the obvious translation "right to kill" isn't quite the same. You have to go to a (relatively) recent word "vergunning", invented in 1881 as the thing that places had to have to be able to sell alcohol. However, only the government can issue "vergunningen".

Interesting point about gifts, here gifts are also a contract! In particular, it's a "contract without consideration" or alternatively a "single-party contract" ("eenzijdige overeenkomst"). It only binds the person doing it. I can't figure from the wikipedia page whether single-party contracts are possible under Anglo-American common law.

Ain't language fun. In civil law system "contracts" are merely a subcategory of "obligations" and so cover all manner of things. In common law systems (AFAICT) there is no attempt to categorise the different kinds of obligations. Which I guess is why the discussion "is it a licence or is it a contract" even exists.

Standing

Posted Oct 27, 2021 20:01 UTC (Wed) by NYKevin (subscriber, #129325) [Link]

> I can't figure from the wikipedia page whether single-party contracts are possible under Anglo-American common law.

This is called a "gratuitous contract." In general, they are not enforceable, but you may still get equitable rights under the promissory estoppel doctrine, depending on the specifics, including jurisdiction (England and America, for example, have different rules here). As a result, it is difficult to categorize gratuitous contracts as either enforceable or unenforceable. When the contract is breached and you sue each other, a judge will look it over and try to be "fair" to both parties, based on a long list of considerations and precedents which lawyers spend years studying.

You can easily fix this problem by having the other party give you a dollar in exchange, regardless of whether that's fair market value or not (contract law doesn't care whether you made a good deal, just whether you made a deal at all). Then it's definitely a real contract and not a gratuitous contract, and you don't have to bother with this estoppel nonsense.