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"The Private Law Treatment of Defective Products In Sales Situations," 49 Indiana Law Journal 8 (1973)


The parties to every sale face risks because the goods may be nonconforming. Courts and codifiers have pursued three goals in connection with these risks of nonconformity: (1) to allow private choice by permitting parties, under both warranty and tort law, to bargain as to who will bear them; (2) to prevent buyers from bearing concentrated losses from defective goods by allocating risks to the parties believed best able to spread those losses; and, (3) to prevent defects from occurring by allocating risks so as to improve product quality. These goals have been pursued by initially placing risks of nonconformity on sellers, but allowing sellers, subject to judicial control, to shift them to buyers by contract.

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