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«WAS PROSSER'S FOLLY ALSO TRAYNOR'S? OR SHOULD THE JUDGE'S MONUMENT BE MOVED TO A FIRMER SITE? Reed Dickerson* It is a happy privilege to join in this ...»

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Reed Dickerson*

It is a happy privilege to join in this tribute to one of our

finest judges, Roger J. Traynor. At the same time, I must reveal

my distress at having to witness the watering down of a richly

deserved tribute through exposing the object of our admiration to

the possibly libelous charge that he participated in what has been, in the opinion of some, a legal catastrophe.

Because I lack the time on this occasion to document the affirmative basis for my admiration, I am relegated to the second- ary mission of trying to soften any stigma of judicial guilt by association by suggesting that the central or greater fault, if any, may have lain elsewhere. But even if this fails, I can still enthu- siastically salute a great judge whose only known legal shortcom- ing may be occasional fallibility. The accolades of my fellow con- tributors, I trust, have been grounded more fully on other and more impressive accomplishments.

I undertake this thankless task' recognizing that most of the commentators whom I know and respect disagree with me, and that at this juncture my position still rests partly on surmise. So be it.

The burden of the following analysis is that, under the doc- trine of legislative supremacy, courts should respect not only the text of a statute but its negative implications. To this end they should fully and objectively explicate it. Unfortunately, there is reason to believe that, in the case of the Uniform Commercial Code, many courts have been beguiled by the Restatement (Sec- ond) of Torts into subverting these principles.

More specifically, the Code has a legislative reach, within the domain of products liability, that has been materially frustrated * A.B., Williams College; L.L.B., Harvard Law School; J.S.D., LL.M., Columbia University. Professor of Law, Indiana University School of Law.

1. The New Hampshire Supreme Court recently had this to say:

The question of when a plaintiff should be permitted to recover under the law of warranty or under strict liability and whether strict liability has superseded the warranty approach has been argued by legal scholars with all the zeal, fury, and abstruseness of medieval theologians.

Buttrick v. Arthur Lessard & Sons, 110 N.H. 36, 38, 260 A.2d 111, 112 (1969).

Ho/stra Law Review [Vol. 2, 1974] 470 by simplistic, probably spurious, and ultimately irrelevant dis- tinctions between "tort" and "contract," and, perhaps, even by irrelevant distinctions between "warranty" and "non-warranty."

Such frustrations have lain largely undetected, their visibility sharply reduced by their having been clothed in verbiage seem- ingly unrelated to the Code.

What part, if any, has Justice Traynor played in this misadventure?

It seems to be popularly assumed 2 that Greenman v. Yuba Power Products, Inc. furnished direct support for Dean William Prosser's brainchild, § 402A of the Restatement (Second) of Torts. Whatever Judge Traynor had in mind on that occasion beyond what is disclosed by his opinion, it seems clear that that opinion can be justified without necessarily throwing full support to this unsightly blemish on the Restatement.

The gist of Yuba is that in defining the legal relationships between immediate buyer and seller, the Uniform Sales Act did not preempt the area constituting the relationship between the manufacturer and a remote buyer or user.' Because the legislature had not provided an answer to situations lacking privity, the court was free to create either a derivative third-party benefit or, better yet, something approximating a leaping warranty directly in favor of the consumer. Here the court was free to work by analogy with the statute, but depart from it where, as in the case of privity, disclaimer, and notice, the analogy did not seem apt.

This was done on the basis of authority such as Klein v. Duchess Sandwich Co. 5 There was precedent also in other states. In this regard, Yuba did not break significantly with the legal past.

Justice Traynor used language in his opinion that can be, and has been, read as importing more than it expresses. In stating that "...the liability is not one governed by the law of contract warranties... ", he was expressly rejecting, not warranties as such, but "contract" warranties. Unless there was an accompanying implication, he did not necessarily close the door on noncontract warranties. And by espousing "strict liability in tort,", he was embracing a concept wholly consistent with warranties

2. E.g., Lascher, Strict Liabilityin Tortfor Defective Products:The Road to and Past Vandermark, 38 So. CAL. L. REV. 30 (1965).

3. 59 Cal.2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1963).

4. Id. at 58-59, 377 P.2d at 899-900, 27 Cal. Rptr. at 699-700.

5. 14 Cal. 2d 272, 93 P.2d 799 (1939).

6. 59 Cal. 2d at 61, 377 P.2d at 901, 27 Cal. Rptr. at 701.

7. Id. at 59-60, 377 P.2d at 900-01, 27 Cal. Rptr. at 700-01.

Was Prosser's Folly also Traynor's?

other than those founded on implied promise, as, for example, one founded on implied representation, or one simply implied by law. 8 Indeed, the assumption that breach of warranty for consequential injuries sounded properly in tort had been a theory often seized upon by courts as a doctrinal justification for doing away with the privity requirement. Reaffirmation of the tort theory of breach of a warranty implied in law did not, therefore, constitute a break with existing theory as already adopted in many cases.

Certainly, there is nothing in Yuba that requires building a partition between breach of warranty implied in law and "strict liability in tort." The two ideas, if not identical, are fully compatible.

The only rationale that Justice Traynor expressly rejected in Yuba was reliance on warranties based on promise expressed or implied in fact.' But even rejecting promise-in-fact did not involve rejecting the contract-in-fact that constituted the underlying sale. Yuba was still conditioned on an underlying sale, as is, indeed, § 402A.' 0 There is even stronger evidence in the opinion that Justice Traynor, by adopting "strict liability in tort," was not necessarily rejecting warranty in the non-promissory sense. He said, "Implicit in the machine's presence on the market... was a representation that it would safely do the jobs for which it was built."" This statement has representational warranty written all over it.

Nor was this interpretation contradicted when he said, "It should not be controlling whether the details of the sales from manufacturer to retailer and from retailer to plaintiff's wife were such that one or more of the implied warranties of the sales act arose.' 2 A leaping warranty need not be cramped by the sales transaction from which it leaps.

What about Justice Traynor's quotation from Ketterer v.

Armour & Co.?' 3 "The remedies of injured consumers ought not be made to depend upon the intricacies of the law of sales.' 4 Was this a rejection of sales law as such, or a rejection only of the current version of commercial sales law as being inadequate for

–  –  –

products liability personal injury cases? Because Sales Act law, the common law of products liability in supplementation of the Sales Act, and even § 402A itself were premised on a sale of goods, the latter interpretation of Ketterer's statement would seem the more plausible. Briefly, then, Ketterer and Traynor were thus contending, not necessarily for an abandonment of "sales law," but for a simpler version of sales law, one better tailored to the consumer's needs. Even "strict liability in tort," however emancipated (if at all) from warranty, remains part of "the law of sales."15 And yet, read hurriedly, Yubg suggests that Justice Traynor was doing something more than merely expanding strict liability in tort, under the label "breach of warranty", over a wider product base. What was it? On this occasion, his sense of social need may have outrun his usual talent for doctrinal clarity.

Justice Traynor's impulse to move away from "contractual" (promissory) warranty in favor of something else was undoubtedly encouraged by Dean Prosser's stricture, most recently stated in his article in the Yale Law Journal,6 that warranty (unless inclosed by quotation marks) lies basically in a contractual mold.

This view was first stated in Dean Prosser's Minnesota article of the early forties,' 7 when he argued, not wholly convincingly, that the warranty of merchantability was best rationalized as a promise implied in fact, free from any consideration of reliance. If this

15. Any attempt to show that today's products liability has become emancipated from the commercial sale or its near equivalent seems fatuous, despite increasing judicial statements to the contrary. For example, there is no indication that bystander protection is other than derivative; in each case the defendant is a commercial operator who launched the product in the plaintiff's general direction by sale. And, although clearly beyond the reach of statutory sales law, the lease is for present purposes the perfect analog of the sale.

The same is true of the commercial service. In the blood cases, although the hospital may or may not "sell" the plasma to the patient, the blood bank certainly sells it to the hospital. That is enough to establish the necessary commercial context for a court that, having established defectiveness, wants to hold the blood bank liable to the patient. Even in the "gift" cases, commercial sale at least hovers nearby. Thus, the "gift" in Perfection Paint & Color Co. v. Konduris, 147 Ind. App. 106, 258 N.E.2d 681, 688 (1970), was incidental to a conventional sale. Whether a sale is immediately present, commercial transaction continues to inhere in the general rationale of products liability, the gist of which is to protect the amateur against the professional. Moreover, commercial sellers simply do not make gifts that are unrelated to actual sale or its solicitation. Conversely, if there is a bona fide gift unrelated to commercial solicitation, that is strong evidence that the donor is not the kind of person on whom it is appropriate to impose strict liability.

16. Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 YALE L.J. 1099 (1960).

17. Prosser, The Implied Warranty of Merchantable Quality, 27 MINN. L. Rlv. 117, 125, 168 (1943).

Was Prosser's Folly also Traynor's?

approach was sound, which is subject to severe doubt,'8 it gave a strong incentive to cut loose from warranty altogether and find a better basis of action, that is, some kind of non-warranty. Although Justice Traynor refrained from adding the tag "warranty," it is not clear from Yuba that he was willing to go so far.

Dean Prosser's reasons for wanting to chuck warranty may be challenged on several grounds. First, as witness Yuba itself, misrepresentation (which smacks of tort) is as often a basis of implied warranty as promise.' 9 The fact that the underlying transaction, a sale of goods, is necessarily contractual cuts no ice here, because the presupposition of an underlying sale has, until recently at least, been a constant factor regardless of the theory the courts have adopted. Dean Prosser's contention, therefore, had to rest on the contractual character of the warranty as distinct from the contractual character of the underlying sale.

Second, one of Dean Prosser's arguments for concluding that the warranty of merchantability has not rested on the tort of misrepresentation, but rather on contract, is that "... the warranty of fitness, does not specifically mention "reliance." However, its omission from the text of the statute does not necessarily indicate that reliance is not a factor upon which the seller's responsibility to the consumer is generally predicated. A more plausible explanation of its absence is that expressing it would have been redundant, because reliance is normally a built-in aspect of any sale by a professional seller that contemplates an ultimate non-professional buyer or seller. Reliance inheres in that kind of deal. This observation would seem to apply equally to § 402A, notwithstanding its comment m.

Whatever weight this analysis may have for retail sales, the warranty of merchantability is not so limited; it applies also to sales to commercial buyers. But, to a lesser degree, the same rationale applies even here. A deal between two corporations does not necessarily represent the same balance of bargaining strength as is supposed to exist in a deal between two farmers. In an age of ever-increasing specialization, even a parity of economic power does not automatically guarantee a parity of technical sophistication. Today, reliance is almost inevitable.

–  –  –

However, for me, the whole tort-contract issue is, in this context, a red herring, 21 a view that Dean Prosser himself tentatively espoused. 2 Within existing statutory limitations, desirable 2 rules of law should be freely adoptable by the courts on the ground of social need, without cluttering the rationale by classifying them as "tort" or "contract".

Yuba would probably have created no great stir except for the fact that it is almost always read, despite its more conservative language, as underwriting the views of Dean Prosser that culminated in § 402A. Some support for that reading, of course, lies in the fact that Justice Traynor was on the advisory board that helped Dean Prosser develop § 402A.

But what was so new about Yuba or even § 402A? A well established strict liability was already available to cope with the privity requirement, as we have seenm and as Henningsen v.

Bloomfield Motors, Inc.Y well illustrated, and many cases had found its breach easily classifiable as "tort." And so it is not true, as many now assume, that Dean Prosser and Justice Traynor invented "strict products liability in tort" in the early 1960's. The theory was already there, and the main problem was that in the states that could not develop an accommodation with the cognizant sales statute, it carried too much doctrinal baggage with respect to privity, disclaimer, and notice.

In the days before Yuba, §402A, and the Uniform Commercial Code, the bolder courts, best exemplified by Chapman v.

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