Freelancer Programmer's liability

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+5 Q:

Freelancer Programmer's liability

What is a freelancer's liability in the case of data loss, system outage, money lose, injury, death, and all other bad things that can arise from the use of the software?

I understand this is something that can be arranged in a written contract. But what are the standards if software was exchanged for money with no written contract.

This probably varies by country so please state what country does your answer refer to.

By default, all the answers are considered IANAL. If you do have legal background please state what.

Anything you exchange for money, being goods or services must be of 'merchantable quality'. That being, it must be fit for the purpose of its intended use.

So, if your job is to deliver some software, and it causes damage while being used as it was intended to be, and used in a manner that the developer would be aware of when building it, then yes you may be liable for the damage caused.

It's like the manufacturer of airbags in a car. If the car crashes and the airbags don't go off, then they are not fit for purpose and the manufactuerer is certainly liable.

This is true of the laws in at least most western countries.

Evernoob 2009-09-23 07:37:15

I'm sorry, but this simply isn't true. Most software license agreements include a clause about the software not having any guarantee of quality, including "merchantability" - One of the reasons for this is that software developers never know where their software will be used. What if your small app you released years ago is being used by someone to fly a plane?

Thomi 2009-09-23 07:47:43

Yes, but we're not talking about cars, we're talking about software. Cars are (as you point out) highly dangerous objects, as are firearms, planes, power tools, and rabbits. However, the question is about *software*, where my point remains valid.

Thomi 2009-09-23 07:51:46

@Evernoob: That is a different situation. Cars by definition are highly dangerous objects. For that category of goods disclaimer would not work because prohibited by laws of some countries.

Developer Art 2009-09-23 07:57:15

The question was about a freelancer's liability, which implies it's building something specific for a specific purpose. The question also stiplulates that liability was not disclaimed or having any license agreements.Your not building some generic product for yourself, you're building something specific as a freelancer and you have a responsibility to ensure that it works.

Evernoob 2009-09-23 08:03:51

Yes. Any freelance programmer (or any other occupation, for that matter) will tell you that you *never* enter into a contract for anything without a sound legal contract that limits your liability. Sure, in some industries, no one would employ you ("No, I won't buy your air-bags that might not work"), but that's rarely the case in software development.

Thomi 2009-09-23 08:08:27

That may be true, Thomi, but the question here and I quote: "what are the standards if software was exchanged for money with no written contract". So that is the way I framed my answer.

Evernoob 2009-09-23 08:20:53

@Thomi: In some jurisdictions, a seller can't completely disclaim all warranty, and a straight sale will automatically come with a guarantee of merchantability and fitness. Exactly what this implies is unclear, but I'd be really reluctant to take on potential liability without consulting with a lawyer.

David Thornley 2009-12-09 17:32:03

+2 A:

My understanding is that your liability is what you make it. If you undertake a legal contract to deliver X, then you are liable to deliver that, and in that case the clauses about quality that Evernoob mentioned may come into practise.

However, you can also protect yourself with clauses such this one, which appears at the top of many open source licenses:

THIS SOFTWARE IS PROVIDED BY ''AS IS'' AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

That's not to say that you should use this particular clause, especially not in a commercial contract. However, it's an example of what can be achieved. No sensible freelance programmer / graphics artist / whatever would enter into an employment arrangement without a contract. This contract can contain clauses that limit, or remove your liability. Depending on the industry you're working on, you may be able to get away with more or less in this department.

Thomi 2009-09-23 07:50:07

It should be noted, though, that depending on the country you live in it needs not be true that what's in a license agreement is legally valid.

erikkallen 2009-12-09 17:33:07

+1 A:

I would think, that if you have legal questions, then you should consult an attorney!

I think most of the posters here are probably not attorneys, and while they may be able to give you sound advice, there may be legal issues in the state/province/country where you are that an attorney who practices there will be able to advise you on.

Chris Dunaway 2009-12-09 17:32:17

ansaurus

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Freelancer Programmer's liability

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