Private Law Theory

ABSTRACT
This chapter analyzes sales law in the United States, situating the applicable legal framework within the broader literature on private ordering and dynamic merchant traditions. In the United States, the Uniform Commercial Code (UCC) provides the primary default rules governing contracts for the sale of goods across state jurisdictions. The chapter summarizes the theoretical framework for assessing whether parties to commercial sales contracts are likely to pursue private ordering instead of exhibiting demand for law. It then evaluates the extent to which the UCC accounts for commercial usage, accommodates changes in usage over time, and thus reflects how merchants would have likely structured their transactions had they been able to engage in private ordering. The chapter concludes by reviewing the implications for how default contracting rules supplied by the state should be drafted and suggests avenues for further empirical research on these questions.

Finnegan, David L, Private Ordering, Dynamic Merchant Tradition, and the Uniform Commercial Code (August 14, 2019) in Research Handbook on International Commercial Contracts 181-195 (Andrew Hutchinson and Franziska Myburgh, eds) (Edgar Elgar UK, 2020).