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Full-Text Articles in Law
Warranties In The Box, James J. White
Warranties In The Box, James J. White
Articles
Thousands of times each day, a buyer opens a box that contains a new computer or other electronic device. There he finds written material including an express "Limited Warranty." Sometimes the box has come by FedEx directly from the manufacturer; other times the buyer has carried it home from a retail merchant. Despite the fact that it is standard practice for the manufacturer to include a limited written express warranty on the sale of such products,' and despite the fact that both the manufacturer and the buyer believe that warranty to be legally enforceable, the law on its enforceability is …
Chuck And Steve's Peccadillo (Symposium: Threats To Secured Lending And Asset Securitization), James J. White
Chuck And Steve's Peccadillo (Symposium: Threats To Secured Lending And Asset Securitization), James J. White
Articles
Are investors in securitized receivables to be treated as the owners of an asset whose sale has taken it beyond the reach of the trustee in bankruptcy of their sellers? O are they to be treated as holders of a security interest in the transferred asset who have left behind an interest in the sellers' hands that would cause the asset to be subject to claims and interference by the sellers' grasping trustee? By adopting contrasting-arguably conflicting-statements in two subsections of a single section, the drafters of 1999 Article 9 have thrust this issue in the faces of courts and …
Default Rules In Sales And The Myth Of Contracting Out, James J. White
Default Rules In Sales And The Myth Of Contracting Out, James J. White
Articles
In this article, I trace the dispute in the courts and before the ALI and NCCUSL over the proper contract formation and interpretation default rules. In Part II, I consider the Gateway litigation. In Part III, I deal with UCITA and the revision to Article 2. In Part IV, I consider the merits of the competing default rules.
Reverberations From The Collision Of Tort And Warranty (Products Liability Law Symposium In Memory Of Professor Gary T. Schwartz), James J. White
Reverberations From The Collision Of Tort And Warranty (Products Liability Law Symposium In Memory Of Professor Gary T. Schwartz), James J. White
Articles
In his famous Stanford Law Review article, When Worlds Collide,' Professor Marc Franklin foretold the troubles for American law in the impending collision of the tort of strict liability with the warranty of merchantability.2 We daily suffer the reverberations from that collision as courts struggle with the proper application of strict tort liability and breach of warranty in products liability cases. Lawyers who have not studied Article 2 of the Uniform Commercial Code (U.C.C.) are surprised to learn that virtually every buyer who has a strict tort claim for an injury caused by a defective product also has a potential …
Freeing The Tortious Soul Of Express Warranty Law, James J. White
Freeing The Tortious Soul Of Express Warranty Law, James J. White
Articles
I suspect that most American lawyers and law students regard express warranty as neither more nor less than a term in a contract, a term that is subject to conventional contract rules on formation, interpretation, and remedy. Assume, for example, that a buyer sends a purchase order to a seller and the purchase order specifies the delivery of 300 tons of "prime Thomas cold rolled steel." The acknowledgment also describes the goods to be sold as "prime Thomas cold rolled steel." Every American lawyer would agree that there is a contract to deliver such steel and furthermore would conclude that …
Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White
Form Contracts Under Revised Article 2 (Symposium: Consumer Protection And The Uniform Commercial Code), James J. White
Articles
The current draft of section 2-206 in Revised Article 2 of the Uniform Commercial Code ("UCC") entitled "Consumer Contract: Standard Form"1 presents a unique and threatening challenge to the drafters of consumer form contracts. In earlier drafts, one part of the section applied to both to commercial contracts and consumer contracts. It required that "one manifest assent" to any form contract, commercial or consumer, in order for it to be binding.2 Bowing to commercial opposition in the most recent version, the drafters have omitted all reference to commercial contracts. As the section stands, it applies only to consumer contracts.
Reforming Article 9 Priorities In Light Of Old Ignorance And New Filing Rules (Symposium: 'Managing The Paper Trail': Evaluating And Reforming The Article 9 Filing System), James J. White
Articles
The other papers in this Symposium demonstrate that we have the technical capacity to build a filing system that will exceed the expectations of Grant Gilmore in every dimension.1 With more thought about what is put into the system and more clever software to get it out, the most sophisticated system possible under current technology will store and produce enough information about a debtor to give the ACLU a fright. All of the issues on improving the filing system are important, but I do not concern myself with any of them directly. I am here discuss a different question. In …
Stalking The Squeeze: Understanding Commodities Market Manipulation, Richard D. Friedman
Stalking The Squeeze: Understanding Commodities Market Manipulation, Richard D. Friedman
Articles
This article addresses the perplexing and important problem of how to distinguish valid, large-scale trading activity from a squeeze. Part I analyzes and reformulates what I will call the price-impact test, according to which manipulation is conduct motivated by its impact on price. This test, I contend, states a necessary but not sufficient condition for characterizing conduct as a squeeze. Part II offers a substantially different test, which I call the modified-sanctions approach. Under this approach, the price-impact test is used as a preliminary safe-harbor standard. The modified-sanctions approach goes further, however, recognizing that the essence of a squeeze is …
The Decline Of The Contract Market Damage Model, James J. White
The Decline Of The Contract Market Damage Model, James J. White
Articles
In law school every American lawyer learns that the conventional measure of damages for breach of a sales contract is the difference between the contract price and the market price. Even before these rules were embodied in the Uniform Sales Act and the Uniform Commercial Code (UCC), they were a staple of Anglo-American common law. They remain the rules with which a court would determine damage liability not only for the sale of goods, but also for the sale of real estate and securities.
Contract Law In Modern Commercial Transactions, An Artifact Of Twentieth Century Business Life?, James J. White
Contract Law In Modern Commercial Transactions, An Artifact Of Twentieth Century Business Life?, James J. White
Articles
Diligent first year law students study contract law with a passion previously reserved for romantic objects and religious idols. Their professors lead them in extensive and difficult intellectual explorations of the wilds of contract law. There are careful analyses of why damage recovery X will stimulate performance Y, why recovery A is appropriate to encourage the aggrieved party to return to the market, and so on and so forth. Lurking behind this year long analysis are several inarticulate hypotheses: that they make rational evaluations of the threat of legal sanctions; that they respond in other varied and subtle ways to …
Eight Cases And Section 251, James J. White
Eight Cases And Section 251, James J. White
Articles
[A] continuing sense of reliance and security that the promised performance will be forthcoming. . . is an important feature of the bargain-so states Comment 1 to section 2-609 of the Uniform Commercial Code. At common law, one party to a contract might suffer considerable and justifiable anxiety about the other party's willingness or ability to perform and yet have no legal basis for cancelling the contract or for procuring additional assurances from the other party. Section 251 of the Restatement (Second) of Contracts is designed to provide a remedy for one party's reasonable fears that the other party to …
Allocation Of Scarce Goods Under Section 2-615 Of The Uniform Commercial Code: A Comparison Of Some Rival Models, James J. White
Allocation Of Scarce Goods Under Section 2-615 Of The Uniform Commercial Code: A Comparison Of Some Rival Models, James J. White
Articles
Section 2-615 of the Uniform Commercial Code authorizes a contract seller to allocate goods in short supply when full performance has become commercially impracticable. Most of the cases under and commentary on that section have focused on the issue of commercial impracticability. The allocation aspects of the section have attracted much more modest attention in the cases and in the scholarly journals. The purpose of this article is to examine critically the allocation rule set out in section 2-615(b). That subsection authorizes a seller, upon a finding of commercial impracticability, to allocate "in any manner which is fair and reasonable." …
Some Petty Complaints About Article Three, James J. White
Some Petty Complaints About Article Three, James J. White
Articles
IN many ways Article Three of the Uniform Commercial Code (Code) is like a huge machine assembled by a mad inventor and comprised of assorted sprockets, gears, levers, pulleys, and belts. Few thoroughly understand all of the jobs which this machine is to perform; and a search through the reported cases suggests that the machine is either performing so efficiently that it commits no mistakes worth litigating or it is not performing at all. In their study of the intricacies of Article Three, law students resemble persons climbing about on the machine-pulling its levers, testing its belts and pulleys, and …
Can A Manufacturer Be Compelled To Sell?, Henry M. Bates
Can A Manufacturer Be Compelled To Sell?, Henry M. Bates
Articles
The fight for price maintenance is not yet completely settled, despite, the decisions in Dr. Miles Medical Company v. Parks & Sons Company, 220 U. S. 373, 31 Sup. Ct. 376, 55 L. Ed. 502, and Bauer & Cie v. O'Donnell, 229 U. S. 1, 33 Sup. Ct. 616, 58 L. Ed. 1041, which held invalid contracts, whether nominally of agency, or of sale, between manufacturer and wholesaler or jobber whereby the latter in purchasing agreed himself to maintain and to sell only to others who would maintain a schedule of prices established by the manufacturer. But there are more …