The doctrine of privity has dogged contract plaintiffs for several hundred years, but it has been even more challenging for the courts. Never being fully satisfied with one take on it, courts have oscillated back and forth from allowing third-party suits to almost entirely prohibiting them. Even when the doctrine was at its strongest, the courts found ways to avoid its often inequitable dictates. The question seemed to be answered for sales contracts upon the promulgation and adoption of U.C.C. section 2-318. Many states, however, considered the provision unsatisfactory, and it was soon replaced by a set of three alternatives with varying sizes to their protected classes. Several other states adopted non-uniform "hybrid" versions of section 2- 318. Despite the efforts of the U.C.C. 's drafters to unify the law of contract across jurisdictions, the area surrounding the doctrine of privity and its effect on the rights of third-party purchasers is still a confusing mass of complex exceptions and acrobatic legal workarounds.
This Article examines the states wrangling over competing versions of section 2-318 and the ever-expanding use of alternative common law theories by courts, specifically concerning the law of express warranties, without focusing on the already heavily commented-on question of whether privity should exist at all. After briefly addressing the history of privity and warranty, this Article covers four ways in which courts allow circumvention of the law of privity when it dictates an inequitable result: liberal interpretation of U.C.C. statutory provisions, construal of direct advertisement as contractual privity, application of common law assignment, and an emerging use of common law third-party beneficiary law. This Article addresses each method in detail, synthesizing historical underpinnings and emerging trends, and provides guidance on each method's applicability to various transactional and situational scenarios.
Gary E. Sullivan & Braxton Thrash,
Purchasers Lacking Privity Overcoming "The Rule" for Express Warranty Claims: Expanding Judicial Application of Common Law Theories and Liberal Interpretation of U.C.C. Section 2-318,
Drexel L. Rev.
Available at: https://scholarship.law.ua.edu/fac_articles/639