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W(h)ither Warranty: The B(l)oom of Products Liability Theory in Cases of Deficient Software Design |
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Peter A. Alces |
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| Proposed Article 2B of the Uniform Commercial
Code is, like all commercial codification
initiatives, a product of time and circumstance.
The law would apply product quality jurisprudence
to an evolving property form--the tangible/intangible
hybrid that is the software license. In this
Article, Professor Alces describes the Article 2B
drafters' approach to the implied warranty of
merchantability, concluding that the draft's
formulation is inconsiderate of commercial and
jurisprudential realities. He surveys the
contract and tort bases of warranties as they are
formulated in Article 2 of the Uniform Commercial
Code to support the conclusion that Article 2B
has failed to come to terms with the fit between
commercial law's warranty regime and the
complementary body of product quality law.
Professor Alces then describes how courts
determined to do justice might consult strict
products liability law when Article 2B's implied
warranty of merchantability fails to respond to
the demands of technologically sophisticated
commerce. The new Restatement (Third) of Torts:
Products Liability may provide disappointed
licensees the protections that an impotent
merchantability warranty would deny them. This
result could be avoided were Article 2B's implied
warranty of merchantability drafted after the
technology it would govern has been afforded the
time to mature toward repose.
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Copyright
© 1999 by California Law Review, Inc. |
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