Chapter 3

Contractual Aspects of the Acquisition and Use of Systems of Systems ¹

 

3.1. Introduction

The technical complexity of a system of systems is also manifest in the legal issues. A system of systems is composed of several goods and services, provided by various legal entities, and calls for coherence and unity. Combining various categories of regulations becomes essential. Thus, the system of systems’ structure can include: material goods (tangible assets), studies and software (intangible assets), engineering, counseling and services of installation or implementation (services), public works (civil engineering).

A system of systems is developed by people of various nature (artificial entities or individual, related to public or private law, specialized, or not, in a technical field). The legal qualification of goods and people is an essential prelude to the choice of the contractual organization to implement so as to monitor, with the necessary and achievable flexibility, the system of systems’ design, its development, its operation, its maintenance, as well as its evolution and end-of-life.

The scope of the regulations varies depending on the category of people the system is aimed at. For example, a transportation system will not be presented to an end-user, to whom precise information must be given, as waivers of responsibility do not apply to non-professionals; however, it will be presented to professionals, whom the law doesn’t protect as much.

If the system of systems processes personal data, such as a ticket reservation system or a military database management system, directives on the protection of such data will be called upon. The system of systems also demands that the property regime relevant to each of its components and to the system in its entirety be properly thought out. The ownership of the equipment can be transferred, and assignments of intellectual property rights are indispensable.

A system of systems may include computer components. The data processing system itself is a collection of equipment and creations of the mind, which can be provided by various entities, such as manufacturers, SSII (IT consulting firms), consultants, business software publishers, hosts, IT infrastructure facilities managers, maintenance providers. Each agent will organize his supplies and services following his own methodology, offer his own set of guarantees, limit his liability according to his corporate strategy, require a method of payment adapted to his objectives and financial capacity.

Such a system can include subsystems of various natures, such as:

– equipment (servers, work stations, telecommunication equipment, desktop publishing tools, etc.);

– software (standard software and specific developments);

– databases;

– files resulting from data processing;

– technical documentation or instruction manuals;

– hosting, maintenance, database updating services, etc.;

– services for the integration of the various components and the adaptation to specific needs, including project management (direction, control and coordination).

Concerning systems of systems¹ used in France, developed for the public corporation, the constraints specific to French law and the French tongue², whose enforcement is mandatory, will have to be reckoned with. A great many number of regulations will have to be taken into account (law, regulations, principles of European Union law), and their combination and implementation will lead to the creation of precise clauses (government contract, outsourcing of a public service, partnership contract), while following the discretion of the courts and the Council of State. Moreover, we will have to take into account the specificities of the defense district.

The contractual set-up the most adapted to a system of systems will depend on its nature and its complexity. In the case of an order filled by a public corporation, the set-up will have to follow a government contract or a contract for the outsourcing of a public service. In some cases, a solution can be found in the implementation of partnership contracts between public and private agents, as long as the established framework is strictly respected.

This chapter aims to make people aware of the multitude of rights and obligations which necessarily come into play in the design, development, operation and maintenance of a system of systems, as well as the wide range of responsibilities which it entails. Systems of systems therefore constitute an integrated set of components of various nature (section 3.2), designed by people who can coherently combine their diversified skills to meet the expressed needs (section 3.3), with engagements to coordinate (section 3.4), while complying with the unavoidable regulations on ownership rights (section 3.5), according to the most appropriate legal set-up (section 3.6).

It should be noted that this chapter, originally written by a French author for a French edition, is based upon French laws, The United Kingdom and the United States context is different. In the latter, laws may even vary from state to state. However, the main issue we address here is that systems of systems engineering cannot ignore the legal dimension. The reader is invited to refer to their specific laws to find those laws’ answers to these questions.

3.2. An integrated set of components of various natures

3.2.1. Material components

The material components can vary and, depending on their nature and their purpose, they can obey specific regulations. Such is the case, for example, with security equipments³ on which specific audits must be run. The terms of procurement of some equipment, such as spare parts, will depend on the contractual commitments taken by the manufacturer or the distributor towards their clients, or sometimes toward maintenance providers. The equipment’s compatibility will require precaution as to the choice of materials and the guarantee clauses associated with it. The general contractor’s obligations towards the maintenance of the equipment will differ depending on whether he acquired them through a sale, a renting⁴ or a financial leasing⁵. Some equipment will require, before it can be used, authorizations or accreditations (electric tools, for example). It will have to meet all the standards concerning its quality⁶ and the respect of environmental regulations⁷.

3.2.2. Software elements

The nature of software is not unique. Some display standard functionalities identical for every client. Adjustments and customizations can be made through settings or specific developments. Developments are generally undertaken by someone other than the business software publisher, in most cases an IT consulting firm, as an integrator. Existing agreements between publishers and integrators limit possible interventions on the software to a number of undertakings. Since the software will evolve through time, and might exhibit faults which will be corrected during their useful life, it is essential to draw up maintenance contracts. The contract may be complex since, more often than not, the publisher doesn’t open his sources to third parties, and only selected persons are entitled to perform maintenance services.

The software package’s maintenance still has to be coordinated with the maintenance of the specific developments, since the publisher has no control over the latter.

More and more, systems of systems include parts taken from free software or software developed from free software. Despite giving service providers and clients more rights than with proprietary software, the obligation to release any development and improvement to the community using the free software⁸ becomes a constraint, especially in a field where confidentiality and secret prevail.

Since the software components are designed by different authors, compiling the various documentations will be all the more crucial, so as to provide the users with a single, up-to-date and coherent documentation. Whether they concern techniques, organization, installation, use, instruction, essential manipulations in case of faults, the regulations differ in language, coherence, completeness, and level of detail.

3.2.3. The human factor

The use of a system of systems is generally complex, and the general contractor might wish to be assisted by outside business enterprises. In their turn, the enterprises will hire physical persons to provide the services. These persons will, however, remain under the employ of their own company; they will work with the tools, methods and knowledge they’ll have taken from or learned in the company, and will therefore not be considered to be under the orders of the general contractor.

Defining all the means and behaviors firsthand is imperative, in order to uphold the boundaries between employer/employee, and between customer/provider.

In the case of undeniable confusion between the teams of the general contractor and those of the provider, these two entities will be liable to sanctions, which can be enforced in the name of unreported employment⁹. If such behavior is damaging to the provider’s employees, they will be able to launch an action for redress for illegal subcontracting¹⁰. Vigilance can also incite temp agencies to react against the violation of their monopoly¹¹.

By way of example, sentences have been pronounced in cases where the sums paid by the customer were calculated not according to the services provided by the operating agents, but to the exact amount of work accomplished by employees which were considered to be rented¹². The client who, under the cover of pretend subleasing contracts, actually took part in illicit workforce leasing¹³, was sentenced. Illicit workforce leasing was attested by the way the provider’s employees were put under the client’s authority, the way the latter would define which tasks the employees should undertake, the way he himself provided the spare parts, the way the services’ price was calculated according to the workforce’s cost, and the way the service corporation did not implement any of its own techniques¹⁴.

Moreover, a system of systems could include databases featuring information directly or indirectly linked to individuals. All treatment of personal data is regulated as to the nature of the information which can or cannot be used (interdiction to use racial origins or opinions on politics, religion, labor union or philosophy), as to the formalities to satisfy before the implementation of treatment (declaration to the CNIL, or counseling), as to their transfer outside of the European Union, in order to protect fundamental rights¹⁵.

If people’s representations are introduced in the system of systems, such as photographs, sketches, biometrics such as fingerprints, their use shall be strictly supervised¹⁶.

All regulations concerning hygiene and safety shall be respected¹⁷. People will also be vigilant as to the credentials of the employed individuals¹⁸.

3.3. Combining people with diversified skills and their contributions

3.3.1. Diversity of the agents

The “material” components of systems of systems may be provided directly by the publishers, but also by the agents of a distribution network. The range of obligations will therefore vary depending on the actual knowledge of the customer’s needs and the requirements of the manufactured equipments. Standard and specific manufacturing will also have to be reflected on by the general contractor, who might seek cautionary advice from the providers chosen as assistants to the contracting.

The supplies, works and services may be provided through momentary partnerships, within which the tasks will be divided among the joint venturers¹⁹. Even if the members of such a group elect a spokesperson who will represent them to the general contractor, the coordination and coherence of the supplies, works and services will not be taken care of. Indeed, the spokesperson does not take care of the technical coordination of the services. Such a task must be entrusted to a specific person, for example to one of the joint venturers. The more components there are in a system, the more crucial this question will be.

Moreover, the successful tenderer, whether he is alone or corresponds to a group of joint venturers, will be able to contract out some parts of the works, services or supplies specific to the client. Even though the law clearly entrusts the responsibility of what is contracted out to the subcontracting entity, reality is often more complex. How should the subcontractor’s knowledge be monitored? How can we be assured of their solvency? Even if the subcontractors must be approved by the client, and the terms of their payment agreed on²⁰, their failure during the system’s development or operation can be very problematic: lack of durability, lack of information about the manufacturing, making reparations uncertain, complexity of a software’s sources, making corrections difficult or even impossible, adjustments to the statutory changes, evolutions.

In the construction of any system of systems, it will be essential to anticipate its operation and its maintenance, even if all or part of these services are subject to outsourcing²¹.

There can be cases where several subsystems are designed under various project managements, which raises the unavoidable question of global project management.

The general contractor will not always become the system’s owner, even though the system will be designed according to his own specifications. He will be able to use the system, in a way, through a leasing service, or a line service granting him units of operating time.

3.3.2. Project management

Stemming from a need of coherence, project management helps monitor the project of design and operation of the system of systems, coordinate the various agents, and monitor the project’s progression in order to anticipate failures and remedy them as they come. But the challenge is to know how to build efficient project management of the components, or even of the entire system of systems²².

There is no unique, rigorous definition of project management (French notion of “Maîtrise d’œuvre”). And there is no exhaustive list of project management tasks. The scope of a project is further defined by each new contract. Once again, the notion is eminently variable from one contract to the next, dependent on the agreements reached between the parties. Likewise, in works of civil engineering, the architect does not automatically share management with a legal agent. Project management can be entrusted to an engineering office, a service provider, or to the general contractor himself²³.

In the event of a system failure, the project manager is the first responsible, since he is in charge of the surveillance of the supplies and of the services provided by the other agents involved on the project, as a “chef d’orchestre”²⁴ or an “ensemblier cotraitant”²⁵. The project manager is the client’s privileged interlocutor and therefore, legally, his only co-contractor, and he is therefore liable for any failure of the subcontractors to meet their contractual obligations²⁶.

The contractual definition of the project manager’s duties may include:

– the organization and animation of project monitoring committees;

– the writing of the reunions’ reports;

– regular verification that the partners respect the project’s rules of quality insurance, the performances agreed on in a service agreement, the management of apparent faults;

– alert in the event of significant straying away from the project;

– the verification of the client’s comprehension and fulfillment of his obligations, in the name of his obligation of collaboration, and the respect of the financial commitments.

When a contract is deemed to be “turnkey”, the system’s supplier is charged with managing the project²⁷. The project manager’s obligations concern the system in its entirety²⁸.

Outsourcing the project management does not discharge the general contractor of his obligation to participate in the project, by helping define his needs²⁹, his organization and his objectives; by validating the reunions’ reports and the delivered components; by proceeding, in the contractually defined delays, to his own deliveries and receipts³⁰; by following the payment schedule or by providing evidence, through written documents, of his well-founded reasons for not paying for the works, supplies or services that are not in accordance with the order³¹.

3.3.3. Competitive bidding

The difficulty in choosing the proper participants also results from the public corporation’s obligation to open the contract to competitive bidding, in accordance with the regulations on government contracting, based on the corporation’s specifications³², without subjecting the specifications to substantial modifications either during the bidding process, or during the drawing of the contract.

When ordering a system of systems, a public corporation should therefore be extremely vigilant during the drawing of the technical clauses, but also during the drawing of the administrative clauses which, in fact, possess a critical legal importance. This notably concerns the description of the deliveries, in their nature and division, their schedule, methodology, the receipt’s organization, the choice of guarantees, levels of responsibilities and transfers of ownership.

The rules of competitive bidding, which ensure the respect of the candidates’ equality in front of a public order, considerably reduce the possibilities of negotiation.

In public law, it is essential to anticipate all and any purchase which, put together, constitute a functional unit or belong to the same operation, in order to determine the tendering procedure. Nowadays, we should favor allotment to single market³³. This provision enables the command, during the same competitive bidding procedure, of supplies and services, or even works, the realization of which might be entrusted to several separate successful bidders. This provision is highly favorable to the development of systems of systems.

Whether it concerns a government contract, a framework agreement, the outsourcing of a public service or a partnership contract, the public corporation is under the obligation to issue a public notice of competitive bidding, which is fundamental and must include all the characteristics of competitive bidding, including the criteria for candidate choice. We quickly reach the threshold where a notice in the Official Journal of the European Union is mandatory³⁴.

It should be noted that launching a project on the basis of a letter of intent is not valid in public law, and that the bidder will only be able to file for compensation if he can prove that the public corporation led him to believe that it would definitely win the bid³⁵.

3.4. Commitments to coordinate

3.4.1. Effective date and duration of contractual commitments

The effective date of the contract is also the start of the contracting parties’ reciprocal obligations. For government contracts, the effective date is the date called “notification”³⁶. No commitment can be taken nor any expense laid out by the public corporation with regard to an un-notified contract. This date corresponds to the receipt, by the successful bidder, of the contract duly signed and validated by all of the administration’s monitoring bodies.

In private law, the contracting parties can agree on the contract’s effective date, which can either be fixed, or correspond to the date of the contract’s signature, either by the contracting parties, or by the last party if they do not all sign it at the same time. In that case, the shipping delays must be taken into account.

A system of systems combines a contract under public law signed by a public corporation, and contracts under private law, signed between joint venturers, between the contractor and his subcontractors and suppliers. Coordinating the duration of commitments can turn out to be extremely difficult, in particular the management of the receipt and guarantee expiration dates which apply to some of the system’s components.

A contract cannot be signed for an unlimited period of time. However, its duration can be specified or unspecified. A contract can be signed for a fixed period of time. It can also be renewable. Two solutions exist: tacit renewal or express renewal. In the case of tacit renewal, the contracting parties must give themselves the possibility of terminating the contract. Generally, an advance notice is planned so the remaining parties can anticipate the consequences of that non-renewal. As a precaution, we might send this advance notice via registered letter with delivery confirmation. The tacit renewal of a government contract is illegal.

For express renewals, the contract is automatically terminated at the end of a period if one or all of the contracting parties, depending on their agreement, have not decided on its renewal. A government contract can only be renewed upon decision of the public corporation. There again, an advance notice and a notice of the decision should be sent via registered letter with delivery confirmation.

3.4.2. Delivery

It is essential to clearly define the specific commitments of each party concerning the legal nature of the contract, namely selling, renting, leasing, services, etc., and to have a clear database of all the client’s needs.

The description of what must be delivered can be broken down into stages, in some cases can be defined within order slips, in one mandatory and several conditional segments.

The components of the system of systems must also be defined via commitments on performance, completeness, compatibility, etc.

All terms of delivery ought to be specified within the contract, such as the form of the delivery, the number of copies of a study report, the delivery of software in an object file or sometimes in source code, the documentation, etc.

The terms of equipment transportation are specified, notably to monitor the transfer of risks. The risks pertaining to the delivered goods or to the service’s results will be transferred to the client on the date agreed in the contract. Any damage or loss of the merchandise will be imputed to its guardian. In international contracts, it is common practice to refer to the incoterms (International Commercial Terms), codified by the International Chamber of Commerce, which determine the moment of the transfer of risk depending on the chosen transportation mode: by air, rail, road, or sea. There is no ban, as pointed out by the incoterms themselves, on using these terms within a contract drawn under French law. The coverage of risks calls for adapted insurance. The transfer or risks also influences the choice of the carrier and the closing of the contract of carriage. It also has an impact on the party who goes through customs and the party who pays the duties.

Partial and definitive deliveries can also have deadlines: deadlines for the delivery of supplies, services and works, deadlines for the delivery of documents, for the communication of information, deadlines for receipt, deadlines for reactivation, repair or correction. These deadlines belong within the contract’s full duration. Service deliveries can be associated with quality engagements defined by the contracting parties within a service level agreement. Penalties for the deterioration of the service can be agreed on, so as to prompt the service provider to respect his commitments.

In government contracting, certain kinds of contracts include deadlines planned for in the texts.

If the deadlines are imperative, delays may be sanctioned liquidated damages called “pénalités”, or by the rescission of the contract.

The defined liquidated damages will however have to be enforced within reasonable limits. If they are too low, or too high, a judge called on to settle the dispute might deem the liquidated damages to be patently excessive or derisory, and accordingly lower or raise them.

In some contracts, the service provider or the supplier may be prompted to work faster or deliver higher quality by bonus clauses.

Likewise, the liquidated damages and bonuses shall not be patently excessive nor derisory.

Nothing prevents the buyer from planning several liquidated damages clauses depending on the nature of the delays. We should specify in the clause which part of the price it concerns, and the factors of delay (day, hour, week, month, etc.).

3.4.3. Receipt

Receipt, also called acceptance in the field of systems engineering, consists of controlling that the delivered equipment, or the provided service, or the work achieved, conform to the client’s needs as they have been expressed.

It is therefore extremely important for the contracting parties to draw documents referencing the definition of the client’s needs, the scope of services or the characteristics of the merchandise on which the service provider or the supplier has contractually agreed. The compliance monitoring will be more efficiently implemented based on these reference elements.

The contracting parties will define, as early as the charting of contractual documents, the terms regulating the inspections, tests, corrections of detected faults, malfunctions or defects, the classification of the faults and malfunctions or defects, the temporary implementation of solutions for their replacement or bypassing. These rules can be written in a receipt file, which will be updated and validated by the contracting parties during the contract’s performance.

The validation and the declaration of receipt must be done by the client; they are one of his principal obligations, along with the payment of the agreed price.

This stage is crucial, for the receipt frees the supplier or the service provider from most of his contractual obligations.

It will be much harder for a client to have his claims recognized after the declaration of receipt than it would have been before it.

Receipt should be accepted expressly and be authenticated by the signature of a written document often called a written statement³⁷.

3.4.4. Financial matters

3.4.4.1. The price

The price must either be determined or determinable. A sale is void if the price is not determined by the contracting parties at the time of its closing. In a service contract, the price can be completely fixed upon signature of the contract, but there is a possibility that its precise determination will vary depending on certain events which can only be controlled during the contract’s performance: quantity, application for authorizations, level of performance, technical complexity, evolution of the client’s needs, etc.

A price fixed in a definite fashion is generally called all-inclusive. Rates, called unit prices, can be implemented for certain services or works, notably when the deal is carried out through purchase orders.

3.4.4.2. Price variations

The price may vary through a common agreement between parties. Such a variation may result from the carrying out of an escalator clause founded on indexes that have been published and are representative of the trade of one or both parties and fixed by contract. The clauses can combine the application of one or more indexes.

A distinction must be made between the revision of the price which will occur during the performance, and the price discounting contract. The latter allows for the price to be reassessed between the date on which the service provider issues his offer and the effective date of the contract or the notification³⁸.

In a government contract, an escalator clause must always include a fixed part³⁹. In private law, this is left to the contracting parties’ discretion.

3.4.4.3. The payment schedule

It is also important to combine the payment schedules of the various supplies, services and works which are part of the various components of the system of systems, whenever the general contracting of the system of systems is authenticated.

An advance payment can be made on the effective date of the contract, before its performance. In government contracts, it is called a lump-sum advance payment⁴⁰.

Deposits can be made by the client during the contract’s performance, until the balance is paid.

In government contracts, the deposit and balance payments cannot be made in advance: these payments are made on the basis of “performed service”.

In public law, the prime rate subcontractors benefit from the direct payment of their invoices by the public corporation⁴¹. In private law, the system of direct action⁴² applies. Payments to the various agents will have to be adjusted.

3.4.4.4. The payment period

The contracting parties are also free to determine the payment period within private law contracts. However, if a precise clause is not featured, payments will have to be made every thirty days, when private individuals receive their invoices. In government contracts, the period is of 45 days from the invoice’s receipt.

3.4.4.5. Late liquidated damages

If the client cannot pay the due sums, without justification, late liquidated damages will be automatically enforced. The rate of these liquidated damages will have to be featured on the invoices.

It is also preferable to have it featured in the contract’s clauses. This rate must not be less than a certain amount resulting from a rate determined by the law.

3.4.4.6. Expenses

The contracting parties will also split expenses according to their agreement. Those expenses might arise from traveling, logistics, reprography, freight, etc.

3.4.4.7. Taxes and fees

Taxes and fees are exercised on commercial transactions and supplies, services or works performed for a public corporation.

Their nature, amount, terms of coverage and their declaration vary depending on the country, the nature of the goods and services, and their destination. If some of the system of systems’ components come from a foreign country, the financial impact and the method of payment of these duties and these taxes will have to be taken into account.

3.4.4.8. Discharge of responsibility through payment

The basic principle is that payment equals acceptance. Hence a recurring payment equals the validation of the deliveries which it concerns. It can therefore be useful to point out that these payments will be made progressively but might later be challenged if a substantial nonconformity was detected. In public law, the aim is to deftly handle the interim payments and the final partial payments.

3.4.5. Guarantees

3.4.5.1. Contractual guarantees

After the receipt, or even in parallel with the running of certain tests, the supplier or the service provider can provide guarantees to the client. These are contractual guarantees whose contents, duration and terms of implementation are fixed by the contracting parties. Between professionals, there is no obligation to have any contractual guarantee⁴³.

These guarantees can take on many forms: correction of faults, dysfunctions or defects, replacement of faulty parts, standard replacement of the equipment, lending of equipment with similar characteristics, etc.

We should therefore be extremely clear on that subject in the contracts and deals, and mind the coherence of the guarantees over every component of the system of systems.

3.4.5.2. Guarantee of hidden defects

For the whole life of a corporeal good, subject to normal use, the legal guarantee of hidden defects allows us to get a refund or keep the good in exchange of an allowance. The burden of proving the hidden defect is left to the person invoking it⁴⁴.

In French law, this guarantee concerns the selling of goods and rental. It is unknown within service contracts.

It is however heavy to implement and requires a proof of the hidden defect and to take legal action in the two years following the discovery of the defect in order to represent one’s rights⁴⁵.

3.4.5.3. Defects liability and decennial guarantee

These two guarantees only concern the works. The first means that the contractor must answer, for two years after the handover, for the perfect completion of the works⁴⁶. The second means that, for ten years after the handover, the contractor must repair any defect that might damage the works in such a way as to make it unfit for its destination⁴⁷.

3.4.5.4. The hold harmless clause

In the event of the violation of intellectual property rights, the client who sees a third party claim ownership over the works he is making use of might act against the person who gave him the rights to the works⁴⁸.

This is the case, for example, for maps, diagrams, reports, drawings, models, sketches, music, software, etc. In particular, this concerns the works used through the Internet.

The terms for the implementation of that guarantee can be strictly defined in the contract: deadline for the transfer of the write of summons, information necessary to the organization of the defense of interests, etc. The fees’ coverage and their limits are also controlled, as well as the type of replacement the guarantor will be able to provide (modification of the software, delivery of software of substitution).

3.4.6. The combination of limitations of liability

When all, or part, of the contractual obligations are not respected, a party can act by calling on the responsibility of the faulty party. In a system of systems, complexity arises from the variety of the works, services, supplies and the complexity of searching for the cause of the faults and malfunctions. The variety of the agents also calls for an in-depth search for the persons behind the fault or the malfunction. The agents will play with the qualification of their commitments concerning the “obligation de moyens” and performance. But that distinction is also present in the burden of proof. The same obligation can be an “obligation de moyens” or “obligation de résultat” depending on the context, or the parties’ explicit wishes, or simply depending on the coherence and wording of the contractual documents. The contractor bound to an “obligation de résultat” is presumed liable for any fault or malfunctioning reported by the client. In order to be held harmless, he must prove the client’s fault (client who did not fulfill his obligation of collaboration, for example) or a third party’s fault (a supplier outside of the project who has direct contractual relations with the client) or a case of force majeure (external to the parties, unforeseeable, irresistible). If the contractor is bound by an “obligation de moyens”, the client must provide the proof of the contractor’s fault, the latter having presumably fulfilled his obligations according to the contract and good engineering practice.

As for the services, the provider’s “obligation de moyens” increases with the random nature of their provision, and his “obligation de résultat” increases as they become more precise.

If the principle is that everyone can put the liability of another person into question, the liability must follow certain rules and correspond to actual damage. Failing that, purely dilatory liability actions will be punished⁴⁹. Claiming a right does not mean one can pervert that claim⁵⁰.

In order to analyze and monitor these risks, the agents are authorized to limit their liability. Thus, clauses of limitation of, or even exemption of, liability can apply. The foundation of liability pertains to civil law. It distinguishes tort liability, which pertains to civil laws and therefore cannot be abridged by a contract⁵¹, from contractual liability⁵².

If it is true that by “natural follow-up of the contractual engagement, the debtor must take responsibility for the acts of people whom he chooses to call on in the performance of a contract, to assist him or substitute to him⁵³”, this foundation is still lacking an essential detail. The debtor’s contractual obligation, legally binding, is in fact only a preliminary condition of the contractual liability whose operative factor is precisely defined as the debtor’s failure to fulfill his obligations⁵⁴. In other words, and this observation explains the specificity of contractual liability⁵⁵, it is not the contractual debt which justifies the liability to compensation, but its non- performance imputable to a fact which appeared within the debtor’s sphere of authority.

It is however mentioned that no limitative clause “must affect any essential obligation featured in the contract⁵⁶.”

In any case, the limit, or the disclaimer of liability, will not apply in the event of a gross negligence⁵⁷.

The project manager’s liability can be challenged on the grounds of neglect of his obligation of coordination. However, each of the suppliers, joint venturers, subcontractors, remains liable for their own failures⁵⁸.

In the event where a contracting company entrusts another with the performance of the services in its name and for its benefit, the company taking care of the services will also become liable in the place of the mandating company. Likewise, in the event where the client delegates a service of general contracting (concerning, for example, the definition of needs, the conformity checks before the acknowledgement of receipt, the signature of meeting reports), the representative will automatically bind the liability of the client who will not be able to impute the fact or fault to a third party⁵⁹.

In a system of systems, the difficulty lies in the coordination and coherence of the levels of contractual commitments agreed on by the various agents, suppliers and service providers. If the client is aware of certain limitations of liability resulting from his direct contracting with joint venturers, the same does not apply to the responsibilities accepted by the subcontractors, nor by external subcontractors or suppliers in direct contact with the subcontractors. Thus, in the event where liability is challenged, it is not rare to be faced with some agents opposing inescapable limitations of contractual liability. Moreover, in the event of dire difficulties, the insufficient solvency of some agents prevents real compensation of the damages suffered by the client or by the other agents. As a measure of precaution, insurance subscription commitments should be drawn against certain covered risks as well as the corresponding coverage costs. Those are not sufficient, however, especially in the event of a redress or a winding-up of the people concerned by the decision of the court.

In order to be mended in civil liability, a proven damage must be both certain (that is to say, already done or unavoidable), personal to the one who acts to mend it, and direct (that is to say, a link of causality must exist between the fault and the damage). The direct or indirect character of the damage can be subject to diverging interpretations: some damages deemed indirect can be mended. It is therefore common practice to specify the indirect damages in advance, for example a tarnished brand image, an operating loss, etc. A minute examination of the risks of damage must be led by the buyer, so as to determine, for the client, the nature and scope of the possible contractual events.

One of the particularities of co-contracting lies in the nature of liability established between the various joint venturers. What the buyer is most interested in is the nature of the joint venturers’ liability: joint or joint and several. In the case of joint co-contracting, each service provider or supplier will only be liable for his share of supplies or services provided to the client. The client will therefore have to be able to prove the origin of a difficulty, and whom it can be imputed to, in order to challenge the liability of the actual defaulting joint venturer.

On the other hand, in the event of joint and several co-contracting, since all the joint venturers are united, the client will be able to take action against any of them if need be. The joint venturers will then turn on each other. Solidarity can apply to all joint venturers, or to a single joint venturer of them. In that case, the joint venturer’s liability will be the only one to be challenged, and he alone will have to take appropriate action against the others.

Sometimes the contract must be suspended during its performance. Such is often the case in the event of force majeure or a temporary unsupportable failure of a supplier or of the contractor. The obligations are then temporarily suspended. The contracting parties can then specify under which terms they will end the contract if the event endures. The parties can also plan other causes for suspension within their contract. This option will have to be specifically mentioned in the contract, as well as the difference of price between both suppliers, difference which will be covered by the defaulting supplier⁶⁰.

3.4.7. The end of commitments

3.4.7.1. The end of contractual commitments

A contract may end for reasons of expiration, cancellation, rescission or impossibility of performance.

Impossibility of performance can occur if the contract could not exist because an event prevented its valid execution. Such is the case, for example, of imperfect consent, such as a willful misrepresentation (fraudulent maneuver aiming to abuse the other party’s agreement), a misunderstanding on the content, companies which do not have the legal capacity of contracting. This cancellation requires legal proceedings.

In an ongoing contract, i.e. a contract which goes on in time, if services or supplies cannot be challenged (for example maintenance services), the contract is terminated by termination. This means the contract is terminated, but all the services already provided and the equipments already used will have to be paid for, at the right price, if need be in the view of experts.

As for the contracts of instantaneous performance, such as the selling of a corporeal property, the sanction is like cancellation. When the contract is put into question because of a party’s failure to meet its obligations, the contracting parties will return to the state they would be in if they had not signed a contract. This will lead to the restitution of the delivered property and the refund of the paid price.

An action in liability can always be filed against the defaulting party, which can be condemned to pay additional damages to the other party.

3.4.7.2. Reversibility

The consequences of terminating contractual commitments should be anticipated. Especially when it comes to services which last through time and for which, for example, competitive bidding will be opened to new service providers. It is important that the client keep a certain number of elements from the former contractual relationship. These can be documentations, anomalies, malfunctions or defects statistics, procedures to implement, archived database, etc.

Since reversibility is not a legal obligation, it is essential to write the terms of the reversibility into a contract. The implementation of this period of reversibility will allow the service’s continuity⁶¹.

The full scope of the period of reversibility is defined within the contract: definition of the tasks to perform during reversibility, bond of performance during reversibility, organization and monitoring of its development, definition of the technical and documentary elements to transfer, including the databases, along with the transfer of the necessary rights of ownership.

3.5. Ownership rights

3.5.1. Corporeal property

It should be noted right away that the transfer of ownership of a property can be dissociated from the transfer of risks which has been studied on the level of the delivery. In a supplementary manner, these two transfers coincide and both happen during the agreement on the thing and the price, as far as the sale is concerned. But the contracting parties can, within the sale, agree on a clause of reservation of title. The goal is to delay the transfer of ownership until after the client has acquitted himself of the full price.

The full magnitude of this provision is apparent in the case of the client’s receivership or winding-up, before the full payment of the price. This clause allows the seller to reclaim the property. To be valid, this clause must appear in clear terms and be differentiated from the other terms of the contract (in caps lock or print characters).

The transfer of ownership carries the property’s license, the rights to make it fructify or garner profits from it, the rights to alienate it⁶².

3.5.2. The patent⁶³

An invention is a process which must be materialized by the manufacturing of an industrial good.

The invention is protected if it is new, through confidentiality or a patent application.

When there is a transfer of rights on a patented invention, the transfer must be done by the person who owns those rights.

Once the patent is filed, a certificate from the organization holding it might be produced.

A patent is filed with the National Institute of Industrial Property in France, and in national or international patent offices around the world.

3.5.3. Copyrights and the particular case of software

The intellectual creations which are works of the mind are protected if they are original (marked with the author’s personality) and can be exploited. They are protected, whether complete or not. Software are protected through copyrights, with some specificities.

The author holds, from the mere act of creation (without formality), the proprietary and moral rights of his work. Among moral rights is the right to respect for his name and his creation. There rights are perpetual, inalienable and imprescriptible. Among proprietary rights are the rights of reproduction, use, distribution, translation, tuning, adjustment, alteration, etc. In Europe, they are protected for 70 years starting from the death of the physical author, or from the date of creation in the case of artificial persons.

In French law, the transfer of proprietary rights must imperatively:

– be recorded in writing;

– include the delimitation of the transferred rights as for their width, destination, geographical zone of use and the length of time during which the transferring party can exercise the transferred rights.

Failing that, the transfer is declared invalid⁶⁴ and the person who does not usually hold the rights is declared a counterfeiter⁶⁵. Transfers can be operated on an exclusive or non-exclusive basis.

The author, the original owner of the copyright, holds the moral and patrimonial rights to his work.

The original title is protected along with the work.

A copy can be given for the private use of the copier, except for software. Access to the software’s sources is most often planned for in the contracts. It is a measure of Protection, insofar as the sources can be exploited by somebody other than their designer and creator⁶⁶.

Concerning software, the legitimate user can permanently or temporarily create the software’s reproduction (downloading), translate it, tune it, adjust it, and conduct any other modification, etc., if those rights are necessary to allow the legitimate user to use the software, according to its destination, including the correction of faults.

However, the author can reserve the rights to correct any fault himself. He can also reserve the right to make a backup copy (not to be used at the same time as the running copy), since the right to observe, study or test might lead the user to create a distinct work without copying.

He also holds the right to come back to the original code (decompilation, disassembling) for the purpose of interoperability (creation of interfaces), but this right requires cumulative conditions:

– only the legitimate user can do it;

– the information necessary for interoperability has not already been made available in a fast and simple manner;

– reverse engineering must be limited to the parts which are necessary to interoperability.

The legitimate user cannot use the data thus obtained for any other end, he must not disclose them to third parties, and he must not use them to develop substantially similar software.

The data acquired during the implementation of interoperability remain confidential and could only be communicated to third parties, general contractors or project managers of systems interoperating within a system of systems, with the written agreement of the author of the software’s part which has been disassembled or decompiled.

In the event of juxtaposition of services, for example on the same Internet site, provided by various contractors, the contractual technique will once again be used. The parties agree on their terms of cooperation by defining the types of information and their signification, the alerts and restrictions of use, the disposal process in the event where the brand image is tarnished.

The provisions relative to copyrights do not only apply to software, but also to all the other works such as documents (reports, calculation notes, etc.), plans, diagrams, images, sound editing.

3.5.4. The databases

The producers of databases own the rights on the ones they have created, and the ability to grant some rights to a third party, such as a right of conversion.

3.5.5. Designs and models

Designs and models can be protected through a filing at the INPI (National Institute of Intellectual Property). In that case, the buyer must check whether the contract grants him the appropriate rights on these works. Indeed, the creator of such works is the only one who can decide on the use of his designs and models.

3.5.6. Brands and logos

The trademarks, whether they apply to business enterprises, products or services, along with the logos that represent them, are also filed at the INPI. The brand’s filing is preceded by a search of possible former use. To use them, the client will need a deed of transfer, which can be featured as a clause in the contract.

3.5.7. The domain name

IP addresses are managed by the ICANN. The “.fr” addresses are managed by the AFNIC.

Domain names are allotted following the rule of “first-come, first-served.” From this can arise a conflict with intellectual property rights on brands, corporate names and other domain names. Abuses can be sanctioned on the grounds of usurpation. Example: registering, as a domain name, a client’s corporate name, for which one is creating a site, or the registering of a cartoon character’s name, “calimero.org”, which affects the author’s ownership rights.

The “naming charter” lays out regulations for the recording, maintenance, transfer and deletion of a domain name.

Actions in unfair or parasitic competition can be led in the event of slamming.

3.6. The most adapted legal strategies

When the buyer is public, he can choose between signing a contract⁶⁷ or a framework agreement⁶⁸, an agreement for the outsourcing of a public service⁶⁹ or a partnership contract⁷⁰. All these contractual set-ups are framed by statutory regulations and cases.

The contract must allow for the fulfillment of the needs expressed by the public corporation within specifications. This therefore implies good knowledge on the nature of the supplies, the works necessary to the development of the system of systems, their volume, their monetary and technical cost allocation base. However, some flexibility is available for the contract’s design. It is possible to contract open-end contracts and options contracts. The allotment of contracts, allowing for a single competitive bidding for the acquisition of supplies, or highly varied services or works, enables the precise segmentation of the description of needs, and to turn to specialized market agents to answer each contract.

In the event where the needs, and most of all the desired result, are not easy to determine a priori by the public corporation, in the event where the financial or contractual set-up is not obvious, the contract can be drawn through the procedure of competitive meeting, which allows for in-depth discussion with the various candidates.

By combining all the contracts’ possibilities, it is possible to efficiently define the rights and obligations of each agent, as well as determine the obligations of the public corporation.

This contractual framework puts rather large constraints on the analysis of applications in relation to the established criteria. It is not really possible negotiate with each candidate (since such negotiations would thereby modify the candidates’ offers) in order to avoid breaking the law regarding public contracting; additional clauses, in the event where new needs appeared during the performance of the contract, are closely monitored; any appeal to complementary contracts or identical contracts must be strictly justified. As for the use of public money, within a just management and considering the fact that they answer to government accounting, financial commitments are strictly monitored and must not significantly exceed the allotted budgets.

To implement a framework-agreement means to draw an agreement between the public corporation and the contractor, defining the general principles of the contractual relationship (type of services, rates, liability, etc.). Contracts are signed subsequently, on a case by case basis, each time the public corporation expresses needs which belong within the scope of the agreement.

Considering they represent a new notion for French public law, issuing from the recent application of European directives, their implementation within systems of systems requires some reflection, and an analysis of each case to determine their relevancy.

The outsourcing of a public service is used when the services belong within a mission of public service and generate a strong investment assumed by the agreement’s contractor, who is remunerated according to the performance of the service he is providing for the public corporation.

The partnership contract consists of entrusting a service provider, for a long period of time, with a global service relative to the financing, construction, maintenance, operation or management of works or equipments necessary to the public service. This contractual set-up implies that the risks are shared between the public corporation and the joint venturer.

3.7. Conclusion

The contractual set-ups made available to the public corporation have become more varied in recent years. Each contractual set-up has a determined framework, with prerequisites, constraints and terms. For systems of systems, it might be pertinent to combine several kinds of agreements, insofar as possible effects have been anticipated.

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1 Chapter written by Danièle VÉRET.

1. Dominique Luzeaux, Part 1, Chapter 1, “Systems of Systems: From Concept to Effective/actual Development”.

2. Law of August 4, 1994 relative to the use of the French language:

– law 94-665 of 4/08/94 (loi Toubon) relative to the use of the French language, JORF

5/08/94;

– law 2004-575 of 21/06/2004 (LCEN), JORF 22/2004, section 14: every person established

in France durably to exercise their activity, and every legal entity whose head offices are

established in France, must use French in their e-commerce activity.

3. Labour Code, sections R233-83-2 to R233-89-4.

4. Civil code, section 1 719.

5. Law on leasing, n° 66-455 of 2/07/66, JORF 3/7/66, amended by decree n° 67-837 of 28/09/67 and decree n° 2000-1223 of 14/12/2000.

6. New Approach directives. Several directives exist, depending on the field of activity. The list is available at: http://www.newapproach.org/Directives/DirectiveList.asp.

Note the directive “electromagnetic compatibility” (CEM) 89/336/CEE of 03/05/89 (repealed by 2004/108/CE) and the directive “radio and telecommunications terminal equipment” 1999/5/CE of 09/03/99.

7. ROHS: decree n° 2005-829 of July 20, 2005 relative to the “composition of electrical and electronic equipments and the elimination of the issued waste”, J.O n° 169 of July 22, 2005, p. 11 988, text n° 39.

8. See the free software licences. For example, the CeCILL licence released by the INRIA (Institut National de Recherche Scientifique, the national institute for information and automation research).

9. Labour code, section L. 125-3: such is the case for any profit-making operation with the exclusive purpose of workforce leasing, if it does not do so within the legal framework.

10. Labour Code, section L. 125-1: “all profit-making operation of workforce leasing which harms one employee, or eludes the enforcement of the law, the regulations, the work convention or the collective agreement, or bargaining, is forbidden”.

11. Labour Code, section L. 124: The temporary work contractor is, as defined by section L. 124-1 of the Labour Code: “any individual or artificial entity whose activity is to temporarily supply clients with employees whom they will hire and pay according to a qualification formerly agreed upon.” The text enacts that, subject to the provisions of section L. 125-3: “All temporary work activity exercised outside such an agency is illegal.”

12. Court of Cassation, criminal division, 25th April 1989, report 1 989, p. 435.

13. Court of Cassation, criminal division, 25th April 1989, report 1 989, p. 437.

14. Court of Cassation, criminal division, 15th June 1984, report 19 894, p. 229.

15. Law 78-17 of January 6, 1978, amended by the law 2004-801 of August 6, 2004.

16. - Civil code, section 9: “Everyone is entitled to the respect of his or her privacy. Without prejudice to compensation for injury suffered, the court may prescribe any measures, such as sequestration, seizure and others, appropriate to prevent or put an end to an invasion of personal privacy; in case of emergency those measures may be provided for by interim order.”

- Penal Code, section L., subsection 226-1: “A voluntary breach of someone’s privacy, through any means, is punishable by a year in jail and a fine of 45,000 euros: 2° Through fixing, recording or transmitting, without said person’s consent, the image of a person being in a private place.

When the aforementioned actions have been accomplished in plain view and knowledge of the interested parties without them declaring their opposition, while they were able to do so, their consent is implied.”

- Penal Code, section L. 226-8: “Publishing, through any means, an editing of the speech or image of a person without their consent, if it is not apparent that it has been edited, or if it is not explicitly stated, is punishable by a year in prison and a fine of 15,000 euros.”

When the aforementioned infraction is committed through written press, tv or radio, the particular provisions of the relevant laws can be applied to determine the responsible party.”

17. Various provisions of the French labour code.

18. Labour Code, sections L. 143-3 and L. 320 (delivery of a payslip and declaration prior to employment). Section L. 324-9 of the Labour Code forbids “totally or partially concealed work, defined and exercised according to the provisions of section L. 324-10, it is also forbidden to knowingly, directly or through a third party, employ one who exercises a concealed occupation.”

19. There is no official definition of joint venturing. It results from an agreement between several business enterprises. However, it is implied in the books of general administrative clauses and in the forms made available by the Minefi (former French ministry of economy, finance and industry; www.minefi.gouv.fr).

20. Law n° 75-1334 of December 31, 1975 relative to subcontracting.

21. Through government contract, outsourcing of a public service or a contract of partnership.

22. - AFNOR standard n° NF P03-001: definitions, for project contracts subject to private law, of project management and general contracting. The general contractor is the entity in charge of defining his needs, ordering, taking delivery and paying. The project manager is the entity in charge of managing the project, coordinating the interventions, ensuring that everyone respects their obligations.

- The Minefi Guide on general contracting in computer sciences is available in French at: http://www10.finances.gouv.fr/fonds_documentaire/daj/guide/gpem/amo/amo.pdf

- General contracting: “Maîtrise d’ouvrage, maîtrise d’œuvre dans les projets informatiques” published by Lavoisier (Syntec).

23. Court of Cassation, commercial division, March 7, 2006: “concerning the coordinating obligation resting on the Atos company, which could only be interpreted as an obligation related to the means used (“Obligation de moyens”), […] notes that the Atos company could not monitor the works of the Metaware company in real-time, nor intervene in their development, and that only the IRD company could have a global vision of all the agents, and declares that the latter acted thoughtlessly by breaking the contract that linked it to the Atos company, even though the delays could not be imputed to the company.”

24. “conductor”, following André Lucas’s expression, Droit de l’Informatique et de l’Internet, PUF, Paris, 2001.

25. Philippe Le Tourneau, Théorie et Pratique des Contrats Informatiques, p. 115, Dalloz, Paris, 2000.

26. Cassation, Commercial Division, June 4, 1991: “But, since after noting that the Progeci company, the project manager, was sole capable of helping the Parent company fulfil its obligations towards its own client, the court of appeal has declared that the Progeci company was responsible of the faults in the system it sold to the Parent company; having thus defined the nature of the contract binding the two companies as the range of obligations subscribed to by the Progeci company towards the Parent company, it has legally justified its decision.”

27. Court of Cassation, Commercial Division, May 19, 1998: “the court of appeal […] has been able to interpret the commitment to provide both project management and a “turnkey” installation subscribed to by the A and S company as implying not only the installation of the equipment in the various stores but also their connexion with the central site, the centralization of data being, according to the company, the essential purpose of the system.”

28. Court of Cassation, Commercial Division, May 19, 1998: “the A and S society could only be exempt from responsibility for the difficulties resulting from the evolution of the central computer’s operating system if it had been kept away from the decisions and information relative to the evolution, and unable to fulfil its project management mission.”

29. Court of Cassation, Commercial Division, May 11, 1999: “after noting that the Campocasso company did not draw up specifications, the judgement rules that the responsibility was theirs to define their needs and objectives, by clearly specifying the nature and the importance of the works they wished to realize, so as to allow the suppliers to determine their actual needs and offer them the appropriate supplies, packages and software.”

30. Court of Cassation, Commercial Division, 7th March 2006: “no important technical obstacle hindered the effective start of the operations on the 31st December 1998 and the Atos company fulfilled its technical obligations of result; having noted that the system developed by the Metaware company was only received by the IRD company on the 2nd of December 1998, hence four months late, and having noted that the IRD company itself was late in delivering its goods to the Atos company, the judgement then holds, without reversing the burden of proof, that the stated delay cannot be ascribed to the Atos company […].”

31. Implementation of the legal principle of anticipatory breach (“exception d’inexécution”).

32. For government contracts, the specifications include a minima the following documents: the tender document and its appendixes including the priced contract, the special administrative terms and conditions (CCAP, cahier des clauses administratives particulières) and the special technical terms and conditions (CCTP, cahier des clauses techniques particulières). There is no longer an obligation to refer to the general administrative terms and conditions.

33. Code of government contracting, decree n° 2006-975, August 1, 2006, circular of August 3, 2006,

34. For the thresholds, see the code of government contracting, order of June 6, 2005.

35. Council of State.

36. Code of government contracting, section 12.

37. Court of Cassation, commercial division, January 22, 2006: “[…] considering the ordered equipment had been delivered and accepted and gave entire satisfaction to the Imrep company, from which results that the Dai company had fully met its obligation of delivery and was therefore legally justified in its request for the buyer to provide proof concerning other failures of the seller.”

38. In government contracts, the discounting is applied to offers issued more than three months before the notification of award.

39. In government contracts, the fixed part is equal to 0.125.

40. The lump-sum advance payment equals to 5% of the total price. The contractor can forfeit it.

41. Law n° 75-1334 of December 31, 1975 relative to subcontracting.

42. If a subcontractor is not paid by the main contractor, he will address to the latter a registered formal notice with delivery confirmation, and send a copy of the letter to the client. If thirty days later the main contractor still has not paid the subcontractor for the performed and accepted services, the client must pay the required sum to the subcontractor.

43. Since the European directives, a two-year guarantee applies to customers.

44. Cassation, Commercial Division, January 4, 2005: “having declared that the Vieules company could not bring the proof that the data processing system was afflicted with hidden defects, the court of appeal did not have to go through with the research invoked in the second branch.”

45. Civil code, sections 1 641 and following.

46. Building regulations: defects liability guarantee: law n° 78-12 of 4/01/78, JORF of 5/01/78 p.188, also called “Spinetta law”.

47. Building regulations: decennial guarantee, sections 1 792 and following, and section 2 270 of the Civil Code, “law Spinetta”.

48. The basic principle of this guarantee was in fact designed for sales (section 1 625 of the Civil Code says that: “the guarantee the seller owes to the buyer has two objects: the first is the peaceful possession of the sold good; the second is this good’s hidden or latent defects”).

49. Code of Civil Procedure, sections on abusive or dilatory procedures:

- section L. 32-1 NCPC: for a dilatory or abusive action: fine of 3,000 euros, in addition to the eventual reparation of damages;

- section 559 NCPC: idem for a dilatory or abusive appeal;

- section 628 NCPC: for a dilatory or abusive appeal: civil fine of 3,000 euros and compensation to the respondent.

50. On the abuse of rights:

- emergence of the theory: as early as the beginning of the 20^th century, it became necessary to uphold the social function of rights, and therefore not to grant full impunity to contractors.

It is now admitted that the quasi-totality of rights are liable to abuse punishable by law. Therefore, there exists very few absolute rights (an example of those would be ownership);

- criterion of the abuse of rights: an abuse of rights is confirmed when the law is wielded with the intention of harming, for example the construction of works on one’s grounds for the sole purpose of harming one’s neighbor. But the jurisprudence now holds the abuse of rights in a broader way:

- when the holder of the right shows condemnable levity in the exercising of said right (Cass. Com. 11/10/97). Examples: abusive procedures, right to media criticism (obligation to check the exactitude of their information);

- in some fields, the principle is even reversed: a right can only be exercised for serious motives. Example: right to dismiss an employee.

51. Civil code, section 1 382: “Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.”

52. Civil code, section 1 146 and following.

53. A Bénabent op. cit. 412-1.

54. Fascicle Jurisclasseur “Responsabilité civile et Assurances”, fasc. 171-10 or Civil Code, sections 1 146 to 1 155, fasc. 11-10 or Notarial Répertoire, “V° Responsabilité civile”, fasc. 171-10, n° 2.

55. A. Bénabent.

56. Court of Cassation, commercial division, October 22, 1996: “[…] resulting from failure to meet an essential obligation [… of the contract…], the contract’s clause of limitation of liability, which contradicted the scope of the commitment taken, had to be considered non written.”

57. “Considering that the manifest intention of the contracting parties, when a clause of non-responsibility is added to the contract, is not to plan for a simple reversal of the burden of proof in the event of the debtor failing to meet his obligations, but truly to limit the latter’s liability to the consequences’ of his gross negligence or his wilful misrepresentation, consequences to which he cannot escape; that such is the opinion of the doctrine and the jurisprudence, which require the proof of a gross negligence which can be likened to wilful misrepresentation, for the debtor’s liability to be challenged…” CA Douai, Octobre 7, 1954, Gaz Pal 1954 &, jurisprudence, p. 302, RTD Civ. 1955. 1., p. 121 n° 50, Mazeaud observations.

58. Court of Cassation, commercial chamber, May 3, 1995: “But considering, firstly, that the court of appeal, while not holding the Fiduciaire company responsible for checking the computer’s power supply by itself, was able to decide that said company had to ensure that the technical installation was properly cared for by professionals, since it had acted as counsellor to the Janin company in the choice of said computer equipment and its implementation;

Considering, secondly, that the court of appeal has only condemned the Fiduciaire company for the failure to perform its own obligations, and not for the failures of the Bull and Chausson companies;

But considering that, without ignoring the faults of the Chausson and Bull companies, and having, at the sole discretion of the court, accepted the expert’s conclusions while adopting the appreciations of the first judges as to the distribution of responsibilities between the various concerned companies, then having noted that the share of the damage imputed to the Chausson and Bull companies had been mended by mutual agreement, the court of appeal did not contradict itself by deciding that the damage not yet mended, whose responsibility had been imputed by the court to the lone Fiduciaire company, did not concern the Chausson and Bull companies.”

59. Some authors point out that “the failure attributed to the third party whom the debtor entrusted with performance becomes imputable to the debtor himself, who takes over the actions of said third party” (J. Flour, J.L. Aubert, Y. Flour, E. Savaux, t. 3, op. cit., n° 205); “concerning the creditor contractor, these acts are imputed to the debtor himself, to the point where, if said acts constitute a gross negligence, the debtor will suffer the effects resulting from said character” (A. Bénabent, op. cit., n° 412-1).

60. This condition appears in the general administrative terms and conditions.

61. For the redaction of a reversibility clause, see the journal of the CDAF, Danièle Véret, “La réversibilité”, 2006.

62. Civil code, sections 544 and following.

63. Section L. 131-3 of the code of intellectual property.

64. The court of appeal in Paris answered that particular point in a judgement on December 20, 1989: “Since the failure to respect the terms laid out by section L. 131-3 are void “nullité relative”, only the authors can argue that a transfer of their rights is void.”

65. Jurisprudence construes the section L. 131-3 of the code of intellectual property in a very strict manner. Let us take, for example, the judgement of the 1^st Civil Division of the Court of Cassation, rendered on October 9, 1991. The Court of Cassation states that a general transfer cannot be admitted through a blurry clause. It thus reminds us that, according to the terms of section L. 131-3, the transfer of copyright is subordinated under the condition that their field of use is delimited in scope and destination, place and duration. Without trying to interpret the text, it calls forth its principle and applies it in a totalitarian way, without allowing a single exception. The Court of Cassation reminds: “It does not matter that the author has accepted the “principle of reproduction” of his work and perceived a percentage on some of the sales, as long as there is not any contract of transfer abiding with the formalism of section L. 131-3.” The court of appeal of Paris also mentioned it in a judgement of May 2, 1975, declaring that “the reality of a transfer of copyright can only be established if it results from specific elements dispelling any doubt on the subject… Such a strict demand is imposed by the necessity to protect copyrights, which are in close relation to the author’s personality so that the latter can only be dispossessed if he has agreed to it, and only within the limits of said agreement.”

66. Cassation, Commercial Division, January 24, 2006: “for more than a year, the TIC and M.X. company had tried, without success, to enable the use of the software delivered to the Digitechnic company. The court of appeal has deemed that it wasn’t established whether the release of the software’s sources would have enabled them to find a solution to this problem, and has decided that the prejudice resulting from the withholding of these sources could be analysed as a loss of chances of enabling the use of the software, of which it has demanded the repair without appeal.”

67. Code of government contracting.

68. Code of government contracting, after the addition of the last European directive on contracts.

69. Law n° 93-122 of January 29, 1993, called “loi Sapin”, and law n° 2001-68 of December 11, 2001, called “loi Murcef”.

70. Order n° 2004-559 of June 17, 2004, and decree n° 2004-1145 of October 27, 2004.