The Protection of the Consumer Under Modern Sales Law, 74 YALE L.J. 262 (1964)
American courts, particularly during the last decade, have become increasingly aware of the need for protecting the consumer against dangers inherent in the use of defective goods. In few other fields of law has Corbin's advice to treat rules of law as "tentative working rules" been more heeded. Continuously and relentlessly our law has expanded contract and tort liability so as to satisfy public needs. Classical contract theory has undergone profound modifications in response to drastic changes in the structure of the distribution process. Our sales law and particularly the law of warranties likewise has changed. Where contract liability has been regarded as inadequate, it has been supplemented by tort law. There is an ever increasing tendency to permit the consumer injured by defective goods or services to reach the producer directly, if not with the help of contract law, then with the help of a revised law of torts. Not only has the decline of the rules of privity permitted the consumer to reach the producer, but product liability, in contrast to the tenets of classical tort law, is straining away from negligence. In a fascinating blending of tort and contract law, product liability increasingly is becoming strict liability. A theory of enterprise liability has emerged, frequently based on vague and unanalyzed notions of public policy and economics.
Date of Authorship for this Version
Kessler, Friedrich, "The Protection of the Consumer Under Modern Sales Law" (1964). Faculty Scholarship Series. Paper 2725.