In the course of its business, the developer may be required to accept liability, particularly in the event of defects or malfunctions in the product results, security flaws, hidden defects, etc. in products, such as software, conceptualised for third parties.
It will be up to the victim to demonstrate the fault, the damage and the causal link, in accordance with the rules of common law.
In the majority of situations, in the event of a fault, such as a product that does not comply with the contractual specifications, it is often not the victim’s responsibility that is engaged, but that of the manufacturer, importer or seller.
However, in chains of contracts, the sub-purchaser may have all the rights and actions attached to the item. In the case of a connected object, for example, it is also possible to hold the developer liable, especially as he can hold it jointly and severally with the manufacturer.
The developer’s liability is primarily contractual, provided for in contracts that include standard commitments such as an obligation to achieve results, but can also be more specific depending on the purpose of the software (free software licences, proprietary licences, etc.). It is therefore necessary to anticipate the risks and solutions appropriate to each type of service. For example, with open source software, the service provider has a specific obligation to provide advice and warnings which, if not respected, may result in liability.
It is therefore possible for the developer to stipulate that his liability is limited in his contract, particularly in contracts between professionals, except in the case of gross negligence or fraud, breach of an essential obligation, etc.
Furthermore, nothing precludes the developer from being held liable on the basis of product liability or liability for defective products, even if these examples are fairly rare in practice:
- Liability for defective products: the developer can easily escape this if he can demonstrate that he was sufficiently vigilant in his duty to warn of potential problems with his product. In addition, it will be up to the victim to prove that the defect in the service caused the damage. In this specific case, the limitation period is three years.
- Liability for things: it is possible to be liable for damage caused by things in one’s care. The difficulty lies in knowing who, in the chain of contracts, is considered to be the custodian (owner, manufacturer, developer, etc.).
