Best-efforts, result and advice obligations
The three obligations of an IT provider: best efforts, result and advice. Who must prove what, how to recognise them in a clause, and the customer's duty to cooperate.
- 24 cards
- 5 topics
- Free
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Best-efforts obligation: what is it?
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A commitment to apply a professional's diligence towards a goal, without guaranteeing the goal will be reached.
Failure alone does not create liability: the customer must prove the provider was at fault, meaning it did not act as a prudent professional.
A security audit contract promises “a professional's care”. The audit misses a flaw. What must the customer prove to be compensated?
- That the auditor was at fault
- Only that the flaw existed
- That the auditor has no external cause to invoke
- Nothing, the audit's failure is enough
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That the auditor was at fault
The auditor committed to diligent work, not to finding everything. Without proof of fault (unsuitable method, neglected scope), the flaw's existence does not make it liable.
With a … obligation, the customer must prove the provider's fault; with a … obligation, it is enough to show the result is missing.
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With a best-efforts obligation, the customer must prove the provider's fault; with a result obligation, it is enough to show the result is missing.
What the provider promised determines who carries the risk of proof.
Result obligation: what is it?
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The debtor commits to a precise outcome; its absence is enough to engage liability.
The customer need only show the outcome is missing. The provider escapes only by proving an external cause: force majeure, a third party's act or the customer's fault.
A craftsman orders a software package too small for his business, and the integrator installs it without a word. Which breach is at stake?
- The customer's breach of his duty to cooperate
- None, since the customer chose the package himself
- A breach of the duty to warn a layperson
- An external cause that clears the integrator
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A breach of the duty to warn a layperson
The integrator is the professional and the craftsman a layperson: the integrator must point out the product is unsuitable. The customer's choice does not excuse it.