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v. Oracle software vendors are not carriers fast!

The legal battle between the automotive supplier to the software publisher has finally completed June 29, 2010. The decision of the Commercial Chamber of the Court of Cassation is important. Through its broad scope, it exceeds the field of computer contracts to cover all the disclaimers. A reminder
pendulum jurisprudence (1) illustrates the value of this solution but dislike balanced (2).

1. The jurisprudential balance: conflict-failure-contradiction

By 1996 Chronopost with jurisprudence, the Supreme Court had deemed unwritten clause of limited liability of the carrier, since it had failed in its essential duty. In this case, it was to deliver folds within a specified period.

The High Court noted that: "the limitation of liability clause of the contract, which contradicted the scope of the commitment, should be deemed not written."

Once the breach, many dissatisfied customers tried to "jump" clauses limiting the liability of their providers.
is precisely what made Oracle Faurecia cons.

In this case, the software company had not fulfilled its commitment to deliver the V12 version of its software in September 1999. He had not done before either. In its ruling on February 13 2007, the Commercial Chamber ruled that, in the absence of force majeure, the failure of the delivery schedule by Oracle Corporation constituted "a breach of an essential obligation of a nature to obstruct the implementation of the disclaimer of repair. "

Failure delivery schedule was thus constituting the breach of an essential obligation of the supplier. And a "mere" breach had become enough.
But was not it going too far? And sacrificing legal certainty and forecasts of the contractors on the altar of defense of the weaker party, the client cheated ?
is precisely what we say is the Judgement of 29 June 2010.

The High Court said: "alone is deemed unwritten clause to repair that contradicts the essential scope of the obligation contracted by the debtor."
now to be discarded, the disclaimer must contradict the essential scope of the obligation. It must be devoid of any substance. A default is not enough.

Going back to the rule by law Chronopost.

2. A solution bitter but balanced: Publishers are not carriers fast

Undoubtedly, the decision of 29 June 2010 marked the end of recess. At least for dissatisfied customers.
And those who have suffered because of unfulfilled promises of time are legion. In the computer industry, projects and software delivered on time are rare. They imported to "moralize" the practice and punish bad faith.

Thus, the first case Faurecia aroused general sympathy, at least among the customers of IT.
However, the contract must not lose its strength and its effects must remain predictable. Only rare cases, "extreme" can justify forcing the contract by the judge, in particular by deeming an unwritten clause.
Wisely, the High court has backtracked June 29, 2010.

But the rule in 1996, plays in reverse.
The Chamber Business, the failure time is not in itself sufficient to contradict the essential duty of a software company.
The software industry is not that of rapid transit!

The binding force of contracts is thus emerged victorious from the battle with morality.

Users cheated (And unwise) are the losers.

More than ever, vigilance is needed before any signature.

The pre-contractual negotiations and their mysteries are still some good times ahead ...

Michael Pasotti - Lawyer at the Paris Bar
Paris, July 15, 2010

Blue Ray Twilight Digital Copy

Condemn BNP Paribas for discrimination: lessons and prospects?

May 5, 2010 GIE BNP Paribas was sentenced by the Court of Appeal of Paris for discrimination. Being a firm yet stamped "Swiss variety" opposed to a graduate of HEC, the decision is yours. It illustrates how the risk of being accused of discrimination becomes ubiquitous for the company. What lessons can we learn from this remarkable stop teaching? He opens up new prospects?

1. Rules of evidence in favor of the plaintiff

As for harassment, the burden of proof is especially designed to limit the task of the applicant.

The approach of the Court of Appeals articulated in two stages and in turn charged to the employee and the employer.

First, the employee who allegedly injured by a discriminatory measure shall submit to the judge the facts may characterize a violation of the principle of equal treatment.

then it is incumbent upon the employer to establish that the disparity observed situation is justified by objective factors unrelated to discrimination.

2. Assessment of damage to career stagnation and rule called "the triangle"

assessment of the damage resulting from the combination of heads. By combining each other, they can lead to formidable amounts for the employer.

First, discrimination gives rise to a self-repair.

In this case, the prejudice is rooted in the stagnation of the professional development of the salaried and wage discrimination against male colleagues for the plaintiff, as she graduates from HEC.

It is typically calculated according to the rule known as the triangle, using the formula: (difference current salary x number of years of discrimination / 2) + influence retirement. This simple method is not necessarily devoid of common sense.

The moral damage is assessed by the supreme court, which is a way to recognize the essentially subjective amount withheld.

Second, compensation must be completed once the discrimination was accompanied by a breach of employment contract due to the employer, for example when taking an act by the employee. The employer is then ordered to pay compensation including legal dismissal and damages for dismissals without real and serious.

3. Decisive importance of the panels and the statistical rigor

in discrimination, it is essentially through the use of panels that each party submits its arguments.

And as the saying goes, the statistic is still the third form of lying.

So the delicate topic of the representativity of the statistical panels that the parties will oppose.

In this case, the Court of Appeal dismissed The panel of BNP Paribas, noting: "It has obviously been chosen for the sake of argument" and "he has no employee graduated from HEC.

Ultimately, the statistical rigor of the parties that determines the outcome of this category of litigation.

4. Intervention HALDE collective scope of the dispute and prospects

HALDE (High Authority against Discrimination and for Equality) was seized in the course of proceedings by the employee. It comes, therefore, in the proceedings and the Court of Appeal has resumed most of its conclusions that:

- "slowing the employee's career and the challenges she faced ... the result of unequal treatment based on sex, pregnancy and family status ";

-" BNP Paribas has not justified its management ... by objective factors unrelated to any proportionate discrimination;

- the employee "has been of combined direct and indirect discrimination in relation to his reinstatement, his career development and remuneration. "

The role of the High Authority is particularly important. She has thrown its weight behind the employee, at the risk of undermining the fairness of the trial.

Furthermore, in his expert report, it states "for all the core businesses of the company, women are paid less than their male colleague with the same degree, a date comparable and a common working environment. "

Undoubtedly, this finding is likely to give a collective dimension to an individual case at the outset. It may therefore be the starting point of a succession of disputes based on the same cause.

The risk of contagion appears to be a collective dimension inherent in the litigation of discrimination.

no doubt that companies will increase their vigilance in this area. And that employees will choose more and more frequently in the field of discrimination to defend their rights.

The conviction of a company as iconic as BNP Paribas is likely to amplify this movement. It is also necessary that employees have the courage to begin a long trial while exposing himself to retaliation by companies in their professional field.

But Mrs. "Smith" does not belong to the elite graduates of HEC

... Except that the unions seized on the topic, the field of non-law, so dear to the Dean Carbonnier, still bright future ahead of him!


Michel PASOTTI - Lawyer of Paris - May 24, 2010

Removing Red Wine From Velvet

The Minaret of Akka, its site and the oasis.

and Information Images on this very little known monument in southern Morocco.

The minaret of Akka, 1997

The Minaret exists as remains of an ancient mosque, probably influence or time Almhoade (XII century) . It is located in the context of the village and oasis of Rahal Ait- , two or three kilometers of track north of the main village of Akka.

is the area of Wadi Draa and the Anti-Atlas to the south.

We are in the vast region South Morocco.

In response to a first voyage made in 1997 between the High Atlas and Smara, with a spirit of curiosity and personal "survey" of historic architecture, traditional Berber general I, by degrees, developed a search on this place then proposed as a center of interest for the recovery of the same architecture and site, in a context, which at the time (year 2000 more or less) the anticipated institutional projects currently in southern Morocco.

lot of research and analysis on the medieval architecture in Morocco now allow us to assume a clear association with the Almohad architecture, including the minaret of the extraordinary walled mosque of Tin Mal. On the other hand, the "Tour Hassan" in Rabat we also offers interesting analogies is related to architectural decoration as proportions.

The proportions of the minaret of Akka and analogies that can recognize from this notation, however, less obvious than a setting, we immediately close to the architecture and to Almohad culture.

is believed to be able to offer - even when the debate is still open - if not a dating to this early period, probably a deep breath instead of manufacturers, from this current cultural that has deeply marked an era that has left traces of his language throughout the Mediterranean, from Spain to Algeria, from Morocco to Sicily .

Almohad This culture has its origins on the highest mountains in the heart of Morocco and is surely one of elements -base complex of the Mediterranean culture.

This is finally a reason to know her better, to talk and to capitalize on it.

Tech Decks Youdesign Online

Images: the place and the minaret

Interdesign Bath Mats Without Suction Cups

Big bang Web 2.0: the Supreme Court puts the record straight !

January 14, 2010, an era House Civil Court of Cassation ruled on the business of Tiscali Media. Described as a publisher, this company does not qualify for exemption from liability for hosting reserved. The entire economy of Web 2.0 may be struck by the power of the shock wave!

To anticipate, it should reconsider the meaning of this Decision (1) before measuring the huge economic impact (2) then to say why he should approve (3).

1) The meaning of the decision of the 1 st Civil Division: the host should perform only simple technical functions, excluding the management of paid advertising space. In consequence: the manager of the advertising displayed on a page is fully responsible for the content of any page.

This decision confirms the decision of the Court of Appeal in Paris on June 7, 2006, which described the publisher Tiscali Media, a subsidiary of Telecom Italia. As a publisher, This company is fully responsible for the content available on its site, even if such content is provided and stored by the Internet themselves.

In practice, it is characteristic of Web 2.0, this is the most time. Everyone contributes. But it may be defamatory, abusive, counterfeiting, provocation or justification of crimes and misdemeanors, violations of privacy, ... whose publisher is responsible for.

Considering this situation as likely to impede the development of e-commerce Parliament has provided an original status: the host (Act 1 st August 2000, then LCEN - June 21, 2004, transposing the European Directive of June 8, 2000 called "electronic commerce").

The essential characteristic of the host is the mitigation of its liability in case of illegal content.

On January 14, 2010, the Supreme Court tells us that the media company Tiscali is not eligible for classification as host.

For this, she notes that the company "offered to the user to create their personal pages from his site and offered to advertisers to set up directly on these pages, the advertising fee which it manages ;.

The High court draws the consequence that these services "exceeded the simple technical functions" provided by law for availing of quality hosting.

The rule is clear: the host shall not exercise that simple technical functions.

The advertising network business is not simply a technical function.

Therefore: the manager of the advertising displayed on a page is fully responsible for the content of any page.

2) From huge economic impact: an economic model to reconstruct

Paying the manager of the advertising displayed on a page fully responsible for the content of any page, the Supreme Court opened the floodgates for lawsuits brought against the tenor of the Internet such as Google, Facebook, YouTube ...

Rather than hypothetical prosecution of offenders, litigants may prefer to turn to these companies for compensation.

Similarly, countless forums and blogs balancing their accounts by advertising revenue will be beset by lawsuits that they can not lose.

Ultimately, it's a whole segment of the digital economy which is threatened with death and more specifically that of Web 2.0, characterized by the active role of users.

only seems viable rapid change to new economic models of funding, to see new behaviors.

Like any crisis, it should make a cohort of painful adjustments but also lucky winners.

3) A decision that should be approved because it is right and serves the public interest

The temptation to rebel against the decision of the Court of Cassation is strong.

This collides liberal ideology, so characteristic of the Internet.

Web 2.0 has this fascinating as it allows everyone to do as it pleases, speak, see to appropriate intangible property of others.

This freedom, reinforced by anonymity, propels the success and popularity of Web 2.0. In other words, its audience, its corollary financed through advertising.

Critics are sure to castigate a rule that would cut funding by advertising, which opposes the dogma of the development of e-commerce, inscribed in marble of the European Directive of 2000.

In 2010, however, regulation has more to prove that it has become essential.

Conforms to the general interest principle is to empower those who benefit from illegal acts of others.

The Supreme Court merely applied that principle to the galaxy of Web 2.0.

Like all exceptions, that granted the benefit of technical service providers must be interpreted strictly.

We must give thanks to the 1 st Civil Chamber of reminding us of the foundations of law.