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Can Technical Debt Constitute a Breach of Implied Warranties?

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POGO_film_diffs by Dancing Lemur.

Photo credit: Dancing Lemur (Flickr)

Cunningham’s quip “A little debt speeds development so long as it is paid back promptly with a rewrite” is intuitively very clear. We are talking about short-term debt which will be reduced, and hopefully eliminated in entirety, at the earliest possible time.

The question this post addresses is what happens when the expected short-term technical debt becomes a significant long-term debt? Specifically, can technical debt under some conditions constitute a breach of implied warranties?

In his InformIT article Don’t “Enron” Your Software Project, Aaron Erickson coined the term “Technical Fraud” and connected it to Lemmon Laws:

As a reaction to seeing this condition and its deleterious effects, I coined the term technical fraud to refer to the practice of incurring unmanaged and hidden technical debt. Many U.S. states have “lemon laws” that make it illegal to knowingly sell someone a car that has undisclosed maintenance problems. Selling a “lemon” is a fraudulent practice in the world of cars, and it should be considered as such in the world of software.

It is a little tricky (though not impossible – see Using Credit limits to Constrain Development on Margin) to define the precise point where technical debt becomes “unmanaged.” One needs to walk a fine line between technical/methodical incompetence and resource availability to determine technical fraud. For example, if your code has 35% coverage, is it or is not unmanaged? Does the answer to this question change if your cyclomatic complexity per class exceeds 30? I would think the courts might be divided for a very long time on the question when does hidden technical debt represent a fraudulent misrepresentation.

One component  of technical debt deserves special attention in the context of this post. I am referring to the conscious decision not to do unit testing at all.

Best I understand it, the rationale for not “bothering” with unit testing is a variant of the old ploy “we do not have time for testing here.” It is a resource allocation strategy that bets on the code being miraculously bug-free. Some amount of functional testing is done out of necessity – the code in customers hands needs to function as proclaimed.  But, the pieces of code  from which functionality is constructed are not subject to direct rigorous testing. The individual units of code will be indirectly exercised in some manner through functional testing, but not in a systemic manner to verify and validate correctness of the units of code per se.

Such a conscious decision IMHO indicates no intention to pay back this category of technical debt – unit test coverage. It is therefore quite incompatible with the nature of an implied warranty:

An implied warranty is as an unstated promise, assumed by the law in most sales transactions, that the product will be of at least average quality and will do what the average customer would expect it to do  [The Reader’s Digest Legal Questions & Answers Book]

To #1 defense open to a software vendor who gets sued over lack of unit testing is that a fair average quality of software can be attained without any unit testing. As a programmer, I would think such defense would fly at the teeth of the availability since 1987 of the IEEE Standard for Software Unit Testing.

It is fascinating to note the duality between contracts and programming.  For the programmer who follows the tenets of design by contract, “a unit test provides a strict, written contract that the piece of code must satisfy…”

Disclaimer: I am not an expert in the law. The opinion expressed in this post merely represents my layman’s understanding of  principles of contract law that might be applicable to technical debt situations.

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