Alexandra D Lahav, ‘A Revisionist History of Products Liability’ (9 January 2023), available at SSRN. The story of the rise and fall of privity of contract in products liability is familiar to all torts scholars. William Prosser even labeled privity a ‘citadel’ and wrote two significant law review articles discussing in martial terms the assault upon and fall of the citadel of privity. The story is simple. In an 1842 English case, Winterbottom v Wright, Lord Abinger held that an injured passenger could not sue the manufacturer of the allegedly defective stagecoach that injured him because the coach was provided under contract to the passenger’s employer, not to him. Abinger invoked floodgates by reasoning, ‘There is no privity of contract between these parties … Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue …’. The rule migrated to the United States … (more)
[Christopher J Robinette, JOTWELL, 18 July 2023]
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