Author(s): Said Elsayed Kandil, Moustafa Elmetwaly Kandeel
This research addresses how a contracting party is protected, as an ordinary consumer, when entering into a contractual relationship with a professional party specializing in computer software contracts. In this regard, the paper tackles two types of guarantee: the latent or hidden defect guarantee and the issue of a nonconformity guarantee attached to a sold item. The applicability of the provisions of these guarantees is also considered within the scope of this research. The main problem covered in this paper concerns the judicial and jurisprudential dispute about whether these two types of guarantee are similar or different. This dispute includes all consequent legal effects in this regard, particularly the application of different provisions for each guarantee from both the objective and procedural perspectives, to identify which guarantee offers more protection to the ordinary consumer. The scope of the current research is determined by both the French and Egyptian legislations, as they represent the most common models for the Latin School of Private Law. It is concluded that confusion between hidden and non-conformity defects, and between the claims of each defect, can be seen at the highest levels of judiciary. Nevertheless, protection for the ordinary consumer, including a professional buyer specialized in another field, takes precedence regarding the provision of a stronger guarantee. Although legal jurisprudence generally determines clear standards on the scope and provisions of each guarantee, it is recommended that a new legislative amendment be passed in Egyptian law with regard to calculating the stated deadline for filing a claim. This deadline should be calculated from the date of detecting the defect, and not as of the date of delivery, to provide a bona fide buyer with due protection.