When and how is the developer's liability occured? - GOLDWIN Avocats
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When and how is the developer’s liability occured?

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The developer, within the framework of his activity, can be brought to engage his responsibility in particular in the event of defect or dysfunction of the result produced, fault of safety, hidden defects… present on the products, such as software, conceptualized for thirds.

It will be up to the victim to demonstrate under the rules of common law the fault, the damage and their causal link.

In the majority of situations, in the event of a breach, such as a product that does not conform to the contractual specifications, it is often not the victim’s responsibility that is engaged, but that of the manufacturer, importer or seller.

However, in the chain of contracts, the sub-purchaser may have all the rights and actions attached to the thing. Thus, in the case of a connected object, for example, it is also possible to engage the responsibility of the developer, especially since he can engage it jointly with the manufacturer.

The developer’s liability is above all contractual, provided for in contracts including standard commitments such as an obligation of result, but also more specific according to its purpose (free software licenses, proprietary…). Thus, it is necessary to foresee the risks and solutions adapted to each type of service. For example, the free software induces for the provider a particular obligation of advice and warning which, if it is not respected, is likely to engage its responsibility.

Also, it is possible for the developer to foresee the limitation of its responsibility in its contract, in particular concluded between professionals, except in case of gross negligence or fraud, of failure to respect an essential obligation…

Furthermore, nothing excludes the developer from being held liable on the basis of liability for defective products or for the fact that things are not as they should be, even if these examples are quite rare in practice:

Liability for defective products: the developer can easily escape this if he demonstrates that he was sufficiently vigilant in his duty to warn about potential problems with his product. Moreover, it will be up to the victim to prove that the defect in the product caused the damage. In this case, the action for damages is prescribed after three years.
Liability for things: it is possible to be liable for damage caused by things in one’s custody. The difficulty is to know who, in the chain of contracts, is considered to be the guardian (owner, manufacturer, developer…).

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