Two too many1965

The underlying purpose of the Uniform Commercial Code is clearly stated in section 1-103(a): “to simplify, clarify and modernize the law governing commercial transactions...and to make uniform the law among the...jurisdictions.” Generally, the cogent rules of the U.C.C. have been largely successful in achieving that end. Unfortunately, provisions such as section 2-318 have undercut this stated purpose by making the law of commercial transactions more complex and less homogenous. Specifically, section 2-318 provides state legislatures a choice among three very different alternatives (rather than one well-grounded provision) on when third-party, non-purchasers can sue a seller or manufacturer for breach of warranty. The end result is a section that (i) produces vastly different outcomes among jurisdictions, including variations in the common law among states with the same alternative; (ii) defeats the purpose of the U.C.C. by promoting complexity and discord; (iii) creates unpredictable liability; and (iv) generates unnecessary battles over choice of law. This article examines these problems associated with section 2-318 in depth and proposes a revision that aligns section 2-318 with modern jurisprudence and public policy. The proposed revision would not only fulfill the purpose of the U.C.C. by creating uniform and predictable outcomes, but also correctly allocate risk of loss to the party in the best position to avoid or minimize that risk - the manufacturer.