Amazon thumbs its nose at French ban on free shipping of books.

[tompe]

Originally Posted by darryl

Ninjalawyer gave the benefit of his opinion which is generally correct in common law jurisdictions. Intent of the legislature may become relevant in a very limited fashion if it is required to resolve an ambiguity in the wording of the legislation concerned. If there is no ambiguity, the question never arises.

However, Ninjalawyer's comments were limited to Common law jurisdictions, as are my own. France is, of course, a civil law jurisdiction and I am not familiar with its rules of interpretation. I do, however, note eschwartz's comment with approval. That is:

"It may be that there are places where the "intent" of the law is enforceable, but I don't really consider that to be lawful.

I cannot imagine the horror of living in a place where the "law" is that arbitrarily dependent on whatever the politicians say it is -- and then have it apply retroactively.

If they can explain the intent in court proceedings, they should've used that explanation as the text of the law."

But this is of course a strawman.

It is not dependent on what politicians say. It is dependent on what was written down when the law was created. And that includes things not in the actual law text. But interpretations for new situations are allowed. It is a strength not to be locked to the literal interpretation of some text.

[tubemonkey]

Originally Posted by tompe

It is a strength not to be locked to the literal interpretation of some text.

I agree - money is speech

[darryl]

Originally Posted by tompe

But this is of course a strawman.

It is not dependent on what politicians say. It is dependent on what was written down when the law was created. And that includes things not in the actual law text. But interpretations for new situations are allowed. It is a strength not to be locked to the literal interpretation of some text.

It is, of course, a balancing act. Complete inflexibility is bad, but total flexibility is as bad or worse. I think the law in Common Law jurisdictions in this regard is, though not perfect, pretty good. It would not IMHO be good government or good law to disregard the plain meaning of leglslation to give effect to some intention to be found not in the wording of the law but in other places and stated no doubt with even less precision.

[tompe]

Originally Posted by darryl

It is, of course, a balancing act. Complete inflexibility is bad, but total flexibility is as bad or worse. I think the law in Common Law jurisdictions in this regard is, though not perfect, pretty good. It would not IMHO be good government or good law to disregard the plain meaning of leglslation to give effect to some intention to be found not in the wording of the law but in other places and stated no doubt with even less precision.

Why with less precision? In other places the intention and reasoning is stated.

To take the current example. Even if the wording of the law said "free delivery" if you are allowed to make non-literal interpretations it is obvious that one cent would be considered to fall under this law since it is virtually free and falls under the category the law was intended to cover.

[eschwartz]

Originally Posted by darryl

Ninjalawyer gave the benefit of his opinion which is generally correct in common law jurisdictions. Intent of the legislature may become relevant in a very limited fashion if it is required to resolve an ambiguity in the wording of the legislation concerned. If there is no ambiguity, the question never arises.

However, Ninjalawyer's comments were limited to Common law jurisdictions, as are my own. France is, of course, a civil law jurisdiction and I am not familiar with its rules of interpretation. I do, however, note eschwartz's comment with approval. That is:

"It may be that there are places where the "intent" of the law is enforceable, but I don't really consider that to be lawful.

I cannot imagine the horror of living in a place where the "law" is that arbitrarily dependent on whatever the politicians say it is -- and then have it apply retroactively.

If they can explain the intent in court proceedings, they should've used that explanation as the text of the law."

Thanks!

[darryl]

Originally Posted by tompe

Why with less precision? In other places the intention and reasoning is stated.

To take the current example. Even if the wording of the law said "free delivery" if you are allowed to make non-literal interpretations it is obvious that one cent would be considered to fall under this law since it is virtually free and falls under the category the law was intended to cover.

What do you mean by in other places? Emails between those involved? Newspaper articles and reports? Television news? Rumours? The plain fact is that Parliament gets the opportunity to pass its legislation in an unambiguous form. If it fails to do this then they get a second bite at the cherry, so to speak. But it will surely not surprise you to learn that even then the materials that may be taken into account to determine intention are limited, for example, in Australia, to a Bills Explanatory Memorandum and perhaps a second reading speech.

In the current example, I disagree with you totally. "Free" is not "virtually free". And if one looks at intention it is strongly arguable that the intention was not to catch, as you put it, "virtually free". Amazon in fact warned what it intended to do, yet the law still went through as is. Had the intention been to stop Amazon offering "virtually free" shipping, then the Politicians, forewarned, could have done this. Presumably they deliberately formed the intention not to do so.

Not all lawyers agree, but I am a strong believer that wherever possbile one should be able to look at the law and interpret it from its plain words whenever possible, rather than reading the plain words and then having to undertake a wide-ranging enquiry about what Parliament may or may not have intended.

[tompe]

Originally Posted by darryl

What do you mean by in other places?

I do not know the English term. In Swedish it is call "förarbeten" (prework) and they are not part of the actual law but courts looks at was was written during the process when the law was created to make intepretations. It is the material the law making body use when creating a new law.

[tompe]

Originally Posted by darryl

Not all lawyers agree, but I am a strong believer that wherever possbile one should be able to look at the law and interpret it from its plain words whenever possible, rather than reading the plain words and then having to undertake a wide-ranging enquiry about what Parliament may or may not have intended.

Just because you think it should work so does not mean that the existing different law systems all work that way. Different law systems works in fundamentally different way.

[Alfy]

In France, any law voted in parliament and promulgated by the president further needs a 'décret d'application' drafted by the Republic's administrative judges that will formulate a number of details on how the law will be enforced. This usually includes the agencies that will be in charge, the budget for enforcement, and any required details to make the law applicable in real life situations, including, for example, a minimum level at which enforcement takes place. As far as I have seen, the so-called anti-Amazon law has not received such a decree, and as such, the law is not being applied for the moment.

By the way, the law, as amended and voted in the senate, is not quite the one mentioned in this thread. The text says that for books that are not picked up in a physical shop, the distributor must apply the price indicated by the publisher (or the importer). However, the distributor can then apply a discount on delivery charges, up to 5% of the book's price. The distributor is not entitled to deliver for free under any circumstances (the original text was calling for 5% discount OR free delivery). This completely destroys Amazon Prime: the book itself cannot be discounted, and delivery cannot be free.

However, I have seen that several websites complain that it will be impossible to write up a proper decree for this law. Not only can delivery charges vary a lot, making it very difficult for smaller online resellers to advertise the actual cost for their books, but in addition, major companies such as Amazon and the FNAC have global contracts with delivery companies, making it near impossible to determine what the cost should be under the law.

Not sure what the future holds, but it would not be the first time a high visibility law voted to assuage the fears of a specific powerful or influential sector ends up never being applied...

French text of the law:

« Lorsque le livre est expédié à l'acheteur et n'est pas retiré dans un commerce de vente au détail de livres, le prix de vente est celui fixé par l'éditeur ou l'importateur. Le détaillant peut pratiquer une décote à hauteur de 5 % de ce prix sur le tarif du service de livraison qu'il établit, sans pouvoir offrir ce service à titre gratuit. »

[darryl]

Originally Posted by tompe

Just because you think it should work so does not mean that the existing different law systems all work that way. Different law systems works in fundamentally different way.

True. But in reading some of the posts here it is interesting how many similarities there are. It appears generally that neither civil law nor common law allows the blatant disregard of plain words in favour of an intention not manifest on the face of the statute concerned.