Defective Data? A comparative analysis of quality and usability obligations in B2B data contracts

The thesis has a twofold objective: Firstly, to examine which obligations related to the quality and usability of data a supplier undertakes under Danish, German, and English law when providing data pursuant to a B2B data contract. Secondly, to analyse the differences and similarities between the three jurisdictions to determine if a common core exists.

The backdrop for the thesis is the rise of data-driven technologies. These technologies are built on large amounts of data and their overall performance is linked to the quality of such data. To develop high-grade data-driven technologies, companies therefore conclude data contracts to obtain high quality data. Yet, data and data markets differ from other objects treated in contract law. While recent research has taken first steps in examining how contract law overall can be adapted to data, almost no research have focused specifically on the supplier’s quality and usability obligations. The thesis fills this significant research gap.

To analyse the law de lege lata, the thesis uses doctrinal study of the law. Doctrinal studies presume that an understanding of the legally relevant facts exists; this is not given in B2B data contracts due to the special characteristics of data. Part of the doctrinal analysis thus delimits the legally relevant facts for analysing quality and usability obligations. To identify a common core, the thesis employs a functional comparative method.

The thesis starts by creating a foundation for analysing quality and usability obligations by identifying which contract types B2B data contracts can be classified as. B2B data contracts can take the form of sales or license contracts; quality and usability obligations can therefore be determined with reference to the rules on defects and legal defects for these contracts.

The rules on defects state that the data must be of the nature required by the contract, fit for agreed purposes and of the agreed quality (agreed requirements). If no agreement exists, the data must be fit for the purposes, which data of the same kind is ordinarily used for, of a quality ordinary in data of the same kind, and correspond to a provided sample (default requirements). An exception to the rules is that the recipient of the data cannot make a claim for defects the recipient knew about prior to conclusion of the contract. 

The thesis’ contention is that the rules on defects rest on a set of presumptions that are unclear for B2B data contracts. Among others, the rules presume that “data of the same kind” is identifiable and that a common understanding of data quality exists. To remedy this, the thesis elaborates on each of the presumptions in order to identify the legally relevant facts for analysing the supplier’s obligations. On the basis of the informed presumptions, the thesis analyses each of the agreed and default requirements.

The rules on legal defects require the supplier to provide data to which no third party can claim any rights. As many different types of data exist, it differs, however, if third parties have rights in data. Therefore, the thesis examines the different rights that can exist in data and assesses their relevance in B2B data contracts.

The thesis concludes that a common core exists between the three jurisdictions. Parties from the three jurisdictions can therefore conclude B2B data contracts with relative confidence that the supplier’s quality and usability obligations are similar. Overall, the thesis’ contribution lies in its extensive comparative analysis of the supplier’s quality and usability obligations in B2B data contracts; such analysis is the first of its kind. The thesis’ conclusions provide the springboard for the future development of contractual practices for B2B data contracts.