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RobertHoff wrote:
> Would the product then be "unsuitable for the use intended" (car with bad
> breaks)? Would the seller then be obligated to refund? (I''m making an
> assumption that the seller would not claim that in fact the product was
> suitable and therefore assume the buyer's risk of furture losses due to bad
> charts.)
It is not immediately obvious that this would render it defective. The analogy
with the faulty brakes isn't entirely accurate - a better one would be the case
where one is required to stop within a certain distance, and while the brakes
could have been made to do so (e.g. ABS), they were not of sufficient quality.
This doesn't mean they were defective, though - the product merely lacks this
additional feature. In our case, the inability of Omega software to instantly
recover from bad tick data is best understood as falling within this class.
As far as being "unsuitable for the use intended," this potential problem falls
well short of what would be required to validate such a claim. Suitability is a
generality here, which obviously does not cover every possible circumstance,
particularly those not caused by the product itself. Generally, this program is
very suitable for its purpose, and traders around the world continue to benefit
from it, despite infrequent data problems. If either the frequency or the
magnitude of these problems was such that we could then claim that overall
suitability was substantially affected, the matter would be different, but this
isn't the case here. Suitability is a minimum standard, which does not include
optimization of performance. For instance, the economy car would be "suitable" in
terms of braking distances, even though it could be improved in this regard.
Regards,
A.J.
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