most jurisdictions provide specific protections to con-
sumers because they are considered as the weak party
in a contract with a professional. Let us first consider
contracts involving only professionals. Several cases
of invalidity of liability limitation clauses are defined
by law. The first obvious cases where the liability limi-
tation would be considered null and void are when the
party claiming the benefit of the clause has committed
acts of intentional fault, willful misrepresentation, or
gross negligence. Another case is the situation where the
limitation would undermine an essential obligation of
a party and would thus introduce an unacceptable imbal-
ance in the contract. This situation is more difficult to
assess though, and left to the appraisal of the judge who
may either accept the limitation, consider it null, or even
impose a different liability cap.a
As far as consumers are concerned, the law offers a num-
ber of protections which severely restrict the applicability of
liability limitation clauses. The philosophy of these rules is
that the consumer is in a weak position in the contractual
relationship and legal guarantees should be provided to
maintain some form of balance in the contract. For exam-
ple, professionals must provide to their consumers “non-
conformance” and “hidden defects” warranties in French
law and “implied warranty” (including “merchantability”
and “fitness”) in the American Uniform Commercial Code.
Any clause which would introduce a significant imbalance
at the prejudice of the consumer would be considered
unconscionable.

Let us note that we have focused on contractual liabil-
ity here (liability which is defined in the contract itself): Of
course, strict liability (when a defect in a product causes per-
sonal or property damages) will always apply with respect to
third parties (actors who are not parties to the contract). It
is still possible though for professionals to define contrac-
tual rules specifying their respective share of indemnities
due to a victim (third party) by one of the parties.b
To conclude this subsection, let us mention other
criteria that need to be taken into account to refine the
legal analysis, in particular: the qualification of the con-
tract itself (product or service agreement), in case of a
product agreement, whether it is qualified as a purchase
agreement or a license agreement, the nature of the soft-
ware (dedicated or off-the-shelf software), the behavior of
the actors, etc.

Log files as Evidence: The first observation concerning the contractual use of log files is that digital evidence a The “Faurecia case” illustrates the different interpretations of the notion of “essential contractual obligation” in France. In June 2010, the chamber of commerce of the final court of appeal (“Cour de cassation”) has rejected a referral of the case to the court of appeal which had itself declared that the limitation of liability was not in contradiction with the essential obligation of the software provider (Oracle) because the customer (Faurecia) could get a reasonable compensation. The philosophy of the decision is that the overall balance of the contract and the behavior of the parties should be considered to decide upon the validity of liability limitations. b In European laws, the victim of a defect caused by a product can sue any of the actors involved in the manufacturing or distribution of the product.

is now put on par with traditional written evidence. In addition, as far as legal facts are concerned (as opposed to legal acts, such as contracts), the general rule is that no constraint is imposed on the means that can be used to provide evidence. As far as legal acts are concerned, the rules depend on the amount of the transaction: for example, no constraint is put on the means to establish evidence for contracts of value less than one thousand and five hundred Euros in France. The logs to be used in the context of our project concern the behavior of software components, which can be qualified as legal facts. Even though they would also be used to establish the existence and content of electronic contracts (as in our case study), we can consider at this stage that their value would be under the threshold imposed by law to require “written evidence” or that the evidence provided by the log files would be accepted as “written evidence” under the aforementioned equivalence principle.

A potential obstacle to the use of log files in court could be the principle according to which “no one can form for himself his own evidence.” It seems increasingly admitted, however, that this general principle allows exceptions for evidence produced by computers. As an illustration, the printed list of an airline company showing the late arrival of a traveler at the boarding desk was accepted as evidence by the French Cour de cassation.c Another condition for the validity of log files as evidence is their fairness and legality. For example, a letter, message, or phone conversation recorded without the sender or receiver knowing it cannot be used against them. As far as our project is concerned, attention should be paid to the risk of recording personal data in log files: In certain cases, such recording might be judged unfair and make it impossible to use the log as evidence in court.

Generally speaking, to ensure the strength of the log-based evidence provisions in the agreement, it is recommended to define precisely all the technical steps for the production of the log files, their storage, and the means used to ensure their authenticity and integrity. Last but not least, as in the previous subsection, the cases where consumers are involved deserve specific attention with respect to evidence: Any contractual clause limiting the possibilities of the consumer to defend his case by providing useful evidence is likely to be considered unconscionable in court.

International Law: To conclude this section, let us mention the issue of applicable law. Needless to say, the information technology business is in essence international and, even though we have focused on European regulations in a first stage, more attention will be paid in the future to broaden the scope of the legal study and understand in which respect differences in laws and jurisdictions should be taken into account in the design of our framework. For example, certain types of liability limitations are more likely to be considered as valid by American courts which put greater emphasis on c Cass. civ. 1re, July 13th. 2004: Bull. civ. 2004, I, n° 207.