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Institute for Legal Questions on Free and Open Source Software

V. Liability and Warranties

What is the legal standard for liability and warranty in Germany?

Sec. 306 Para. 2 BGB [German Civil Code] states: "to the extent that the provisions are not included in the contract or are invalid, the content of the contract is governed by statutory regulations

The BGB provides different standards of liability and warranty for typical contracts.  The scope of liability and warranty strongly depends on the type of contract.

A distinction is drawn between reimbursed and non-reimbursed distribution.  For non-reimbursed distribution, the governing opinion is that regulations regarding gifts apply.  In general, regulations regarding purchasing apply to reimbursed distribution.  Gift regulations provide less stringent liability (only for willful intent and gross negligence) and restricted warranty (only for malicious concealment of a defect). » Weiter

Is the normal exclusion of liability and warranties in open-source licenses effective in Germany?

No.  According to German law, the regulations are invalid since complete exclusion of liability and warranty is impermissible according to German law governing terms and conditions of trade.  The regulations exist because many developers would not accept clauses that do not contain the wording of a complete exclusion of liability.  In addition, such an exclusion can be valid in other countries, and the exclusion is therefore relevant given the international use of open-source software.  In Germany, the applicable statutory liability regulations apply (→ What is the legal standard for liability and warranty in Germany?).
  » Weiter

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