Privity Revisited: Tort Recovery By a Commercial Buyer for a Defective Product's Self-Inflicted Damage
Kaprelian, Mark A.
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Abstract
This Note argues that if a seller and a commercial buyer are in privity, damage to a product resulting from its own defect should not be recoverable by a commercial buyer in a tort action. Part I shows how the conflict arises and examines the judicial boundaries that are normally drawn between tort and warranty liability. Part II contrasts the rationales for the warranty and tort remedies, with particular emphasis on the Uniform Commercial Code and Section 402A of the Restatement (Second) of Torts. Part III argues that if a seller and a commercial buyer are in privity and the only damage is to the defective product itself, the rationales supporting strict tort liability are inapplicable.
The Note concludes that commercial buyers seeking to recover the value of a product that has been damaged as a result of its own defect should be limited to the remedies provided by the Uniform Commercial Code in a suit against their immediate sellers.