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Home > Journals > Michigan Law Review > MLR > Volume 37 > Issue 1 (1938)

 

Abstract

When a manufactured article fails to meet the reasonable expectations of the purchaser-user and in consequence he suffers personal injury or property damage, is the manufacturer responsible? When the user purchases from the manufacturer, so that there is privity of contract and the formulated concepts of sales and warranty law are available, we have a relatively simple situation which it is not the primary purpose of this paper to discuss. The common-law concepts for dealing with such problems seem to have been formulated in times when this privity element was usually present, and it is therefore not a matter of wonder that the privity element came to be regarded as necessary. Manufacture was not on a mass basis in those days. Even coffins were made to order. The user ordered the thing he wanted and it was made accordingly. There was direct dealing, i.e., privity between maker and prospective user; and, if the article was not up to expectations and caused the purchaser harm, he could sue the maker for breach of the agreement and recover appropriate damages in accordance with the terms of the agreement, express or implied. As a feature of contracts of sale, there came in time to be recognized a seller's obligation described by the word "warranty." Such obligations or warranties might be expressed in the contract; but the law also attached duties as incidental to the sale, varying with the nature of the subject matter, which were known as implied warranties. The limits of this field of implied warranty are yet not clearly defined. The pull of conflicting social and economic pressures and other factors continue to influence the courts in deciding these cases, thus producing asymmetry from time to time and place to place.

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