Faculty of Law
Department of Private Law
Selected Highlights from Research Findings
Where a contractor develops computer software for a client the full and exclusive ownership in the software is seldom transferred to the client. Clients usually obtain mere user rights in the software, whether exclusive or non-exclusive, worldwide or not, from the contractor. The danger exists that the contractor, as actual owner of the software, could become insolvent, ceases to exist or ceases to develop or engineer software, in which event the client is deprived of further assistance regarding the remediation of defects, maintenance and support of the software or the issue of new releases.
It has become practice to agree that the software source code be kept by a third party in safekeeping. Under specific circumstances the client is allowed access to the source codes to perform the necessary actions regarding maintenance and support, repair and re-engineering of the software that it is using. Under English law the source codes are kept in so-called 'escrow' by the third party. This term has infiltrated our law yet the principle of safekeeping in escrow has not ever been acknowledged as part of our law. Under Roman-Dutch law however, a form of safekeeping known as depositum existed that has become part of our law.
The research examines the differences and similarities of the principles of depositum and safekeeping by placing in escrow, and comes to the conclusion that they are in essence one and the same thing. The rights and duties of the parties involved in the so-called escrow agreements, as well as the merits of either a two-party or three-party escrow agreement, are discussed.
Contact person: Ms B Kuschke.
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