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From: ems@amdahl.UUCP (ems)
Newsgroups: net.legal,net.sources.mac
Subject: Re: Is a Shareware license enforceable?
Message-ID: <2451@amdahl.UUCP>
Date: Mon, 30-Dec-85 13:50:16 EST
Article-I.D.: amdahl.2451
Posted: Mon Dec 30 13:50:16 1985
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Xref: watmath net.legal:2681 net.sources.mac:822

> In terms of contractual legality there are 6 points that must be
> fulfilled for aconract to be legally enforceable: agreement,
> consideration, contractual
> capacity, legality, reality of assent,  and form.
...
> By the acceptance of the shareware the party accepting it
> has entered into an implied-in-fact, informal contract with the
> distributor or representative of the offeree (the person offering
> the software).  The terms of acceptance are stipulated in the

This presumes that the party accepting the software is aware it
is shareware.

> contract and acceptance is implied by the usage and
> possession of the software itself. The person accepting the software
> need not say he accepts the software and need not sign anything.
> Also, saying that he did not see the permission (i.e. the terms
> of the contract and cost) for use is legally unacceptable and not
> valid as a defense.
...
> Reality of assent has been fulfilled because the
> contract is implied-in-fact and acceptance is genuine when the offeree
> takes posession of the software.
...
Only if the party accepting is aware that the software is
shareware.  If, upon notification, the party ceases to use or
posess the software and rufuses to enter into the contract, then
the contract should be void.  If, upon notice, the party continues
to use or posess the software then an implied-in-fact contract
exists.  The meaning of 'reality of assent' is just that.  I
just give real assent.

(While I may unknowingly enter into large numbers of
contracts daily by such acts as buying soap, eating in a
restaurant, etc. I have given my real assent by being presumed
to understand those normal activities.  If I did not understand the
meaning of shareware, there was no reality of assent.  Even for
signed, written contracts; If one party can be shown to have not
read or understood the contract, it can be voided.  The basis of
contract law is a meeting of the minds, where no such mutual
understanding existed, there is no contract; regardless of form.)
--
E. Michael Smith  ...!{hplabs,ihnp4,amd,nsc}!amdahl!ems

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