June 2010 Edition
Computer Science Department, University of Cape Town
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What are the various responsibilities of the different role players – buyer and seller?
The seller:
Has the right to sell
Has a duty to be honest
Has a duty not to coerce a client
Expected to emphasise the good aspects of the product
Expected to answer questions honestly
Is a seller being dishonest if they do not disclose a problem area not asked about? This is probably the case but it is very difficult to say especially if the user’s needs are varied and complex – how does the salesman know what the needs are. To a naïve user, the answer might be yes, but it is difficult to compel this. Usually, the product itself (either packaging or licence agreement) will contain all the necessary information. Contract can be voided if all relevant information is not given.
The buyer also has the responsible to find out all the necessary information and ask the right questions if there is lack of it.
This depends on the circumstances of how the software is produced and/or sold. A comparison can be made between software and buying a suit. (Prince 1980). There are three types:
Off the peg / Ready to wear (no alteration)
Tailor made to specific requirements of person
In between (oo the peg + alterations)
For software a similar groupings can be made:
Mass market (a product)
Customised software (service)
Mixed (Product + service)
With mass market, strict liability can be imposed on this type of product. Producers can be sued for errors or malfunctions causing damage because:
Producers puts the product in the public domain and invites people to buy or use it
Producer earns profit and should bear the risks
Producer is in the best position to anticipate and control the risks associated with the product, thus the onus is on the producer to get the product right.
Producer can spread the cost of injury and insurance over all clients.
The reason for this utilitarian is that placing the onus on the producer has positive effects.
Strict liability does not make sense here as software created and designed specifically for client. The client knows the context in which the software will be used and so specifies what is required. The client thus needs to take part of the risk. This type of software should thus be considered as a service.