"open ended bug fixes " 2009/9/19 David Brennan <span dir="ltr"><<a href="mailto:dugdavid@dbsolutions.co.nz">dugdavid@dbsolutions.co.nz</a>></span><br><br>
<div class="gmail_quote">Dear David,</div>
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<div class="gmail_quote">When we talk about D8 and especially 2005 we are not talking about minor matters.</div>
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<div class="gmail_quote">Others in the past have listed what does not work, the list is not too cool.</div>
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<div class="gmail_quote">What needs to be realised here is that there is a very big difference between "bugs" than may be a little annoying to some one, and things that are actually fundamental to the application's operation. They are not "bugs" but I believe misdemeanors :-)</div>
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<div class="gmail_quote">If a 'bug' actually stops the application operating as it shuld in any significant way it may in my opinion fall fowl of Lord Deninnigs famous judgement onn when is a car bought under contract, not a car? (More below)</div>
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<div class="gmail_quote">Developers need to keep to very high standard in this, if for no other reason than that if commercial resentent levels rise to high in the broader community with developer's attitudes, regualtion will follow. It is already being considered in some quarters.</div>
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<div class="gmail_quote">Regulation will not be nice.</div>
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<div class="gmail_quote">Seek legal advice on any and all of the following points of my personal opinion.</div>
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<div class="gmail_quote">At present the general provisions regulating the industry I believe are the Fair Trading Act, Common Law of Torts and a few Absolute liabilities.</div>
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<div class="gmail_quote">Absolute liabilities are things contained in Statute or if you like also those Universal moral principles of duty of care.</div>
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<div class="gmail_quote">For example if one designs a computer application say for the operation of lifts, and people are trapped and injured or even die becasue it is later determined by a competent tribunal that one failed to develop the application using the genreal standards of care and diligence that a developer should use, it is even possible in some juristdictions that the developer could be found guilty of culpible homicide - man slaughter!</div>
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<div class="gmail_quote">In NZ the equivalent commonly known scenario was where previously mechanics have been found guilty for things that they missed during WOF inspections of vehicles where injury or death has resulted. Not becasue they mised the items but because it could be demonstrated that they had not exercised in this case an absolute duty of care in their work.</div>
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<div class="gmail_quote">The standard is not always simpolt that there is a problem, but the nature of the problem.</div>
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<div class="gmail_quote">In software ddevelopment I would submit that if your client wants to use your software for an uninteded or unenvisaged purpose at the time of design brief, and this breaks your application, then the developoer maybe should rightly feel indignent that the problem is laid at their door. And maybe could expect to charge out to make the new use of the application work.</div>
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<div class="gmail_quote">If however a period of time elapses before it becomes apparent that some proscribed feature of the software as brieefed and paid for does not function properly, than no matter what periods of testing or due diligence my be inserted in the contract the developoer may find himself liable for soemthing, and the amount may increase with time the more he fights it.</div>
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<div class="gmail_quote">You can not always contract out of established law. Often you can not at all contract out of law.</div>
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<div class="gmail_quote">The reason is that one is subject to the Sovereign power of the jurisdiction you are operating in. And contracts made under that jurisdiction can not contravene the determinations of that jurisdiction. Unless there is specific provision to do os.</div>
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<div class="gmail_quote">In other words in NZ there are provisoins of the Fair Trading Act that can not be contracted out of.</div>
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<div class="gmail_quote">As a matter of public policy, this helps prevent any form of commercial or other duress during treating to contract.</div>
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<div class="gmail_quote">Now be careful in saying that a licanse is not the same as ownership.</div>
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<div class="gmail_quote">Truly it is not, but if you take money for it, more and more legislators and courts all over the world are starting to say that there are responsabilites on the person who receives the money to give value.</div>
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<div class="gmail_quote">In common law there are lessor duties of care that people can rely on even in an contract situation.</div>
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<div class="gmail_quote">Lord Denig found that even though the man who bought a car was bound bby contract to pay for the car, because the car was defiecent in several ways from what a reasonible man might expect a car to be and do -- legally it was not a car! So he granted the man relief.</div>
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<div class="gmail_quote">If your application fails to meet certain requiremetns of your contract formal or implied, or shows that you have not designed it with the reasonible care that a resaonible person should do so as a developer, then you may get a nasty surprise if you don;t want to put it right!</div>
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<div class="gmail_quote">I wholoehearetadly belive that D.2005 is headed that way. Even the service pack three doesn't work on some people's machines as a known issue! It doesn't on my main one. F1 gives no help at all let alone the inadequate help it gives on the other machine I sue. I can not cut copy ot paste in the Form Designer .. I could go on! but I won't bore you, hte issues are well established else where.</div>
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<div class="gmail_quote">So where does E satnd? In my view they bought a franchise - and nneed to fix the elkements of the franchise that they want to make money out of. Does E have any liability to licensees under the franchise?</div>
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<div class="gmail_quote">Legal, moral, practical? Yes beyond doubt.</div>
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<div class="gmail_quote">But most importantly commonsense wise they have obligations.</div>
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<div class="gmail_quote">We are people who want to get on with each other. </div>
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<div class="gmail_quote">E and their staff want to feel that they are acting in a caring way towards their clients - just as people.</div>
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<div class="gmail_quote">Saying it is business and therefore different rules apply, doesn't cut it any more - its casued too many problems and is a failed philosophy.</div>
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<div class="gmail_quote">Now when you buy a franchise or equivalent - you can't say I am only responsible for the bits I like, or which will give us a qucik cash fix.</div>
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<div class="gmail_quote">You need to act responsabily accross the board and deal with things as they are, not as they would wish them to be.</div>
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<div class="gmail_quote">Isn't the good price E is rumoured to have got D for, going to reflect the issues of D that B had to concede sale price over?</div>
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<div class="gmail_quote">And therefore does that not mean that E have been compensated already for the D.8 D.2005 liability? </div>
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<div class="gmail_quote">So come on E you've had your financial compensation for the D.8 D.2005 problems, pass some on and help us up!</div>
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<div class="gmail_quote">And as for the D.3 -> upgrade issue surely here again commonsense comes into play ... Developers are people don't be too quick to play with their minds like this.</div>
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<div class="gmail_quote">The franchise has certain groundrules we bought our licenses on certain understandings, you bought the franchise on those understandings, change it to improve the experiences of the Licenses hoders not to remove provisions.</div>
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<div class="gmail_quote">Put some real incentive in there, and as well leave the dooor open!</div>
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<div class="gmail_quote">Seek legal advice on any and all of the above points of my personal opinion.</div>
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<div class="gmail_quote">paul</div>
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