Boilerplate Symposium Part XIV: Peter Linzer, That Was No Contract: That Was My Lunch

This is the fourteenth in a series of posts reviewing Margaret Jane Radin’s Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law.

Peter Linzer is a Professor of Law at the University of Houston Law Center.

Peggy Radin’s book, Boilerplate has got lots of people talking – andblogging, particularly about her argument that boilerplate contracts aren’tcontracts at all, and shouldn’t be overseen by contract law.   Peggy was expanding on the theme of theapologists for adhesion who argue that the form contract is simply part of theproduct; you’d pay less, and we’d analyze the transaction very differently ifyou were buying a used or dented washer, so why shouldn’t we treat the washerwith a disclaimer of merchantability the same way?   Peggy does a good job in undermining theidea that the benevolent sellers (they would say “licensors”) will share theirsavings with you by reducing the price, but the bigger objection is from thosewho are offended by the removal of form contracts from the contractskingdom.  Yet that has been the processthroughout the history of products liability, the very area Peggy is pointingto.

The usual starting point of products liabilityis Winterbottom v. Wright, an 1842 decision of the Court of Exchequer,in which a coachman who had been injured when a defective mail coach “brokedown,” attempted to recover from Wright, who had contracted with thePostmaster-General (who had immunity) to supply the coach and keep it in goodrepair.  Lord Abinger, the Chief Baron,took considerable care to support his conclusion that no duties were owed thatwere not “public duties” or violations of the law of nuisance, unless they werecreated by contract. Since Winterbottom was not in privity of contract withWright, Winterbottom had no claim against him for his injuries, though causedby Wright’s failure properly to perform his contractual duties.  For nearly seventy-five years, the courtschipped away at this notion that a manufacturer (or, as in Winterbottom’s case,a maintenance contractor) had no tort duty to the ultimate user, until Cardozo,in Macpherson v. Buick Motor Co. destroyed the doctrine, with carefuldelineation of the caselaw, but really in three sentences: “We have put asidethe notion that the duty to safeguard life and limb, when the consequences ofnegligence may be foreseen, grows out of contract and nothing else. We have putthe source of the obligation where it ought to be.  We have put its source in the law.”

This worked well when negligencecould be shown, but it didn’t help Bertha Chysky, a waitress who had beenfurnished as part of her lunch a piece of cake containing a nail that puncturedher gum and cost her three teeth. She couldn’t prove negligence against thewholesale baker and sued for breach of warranty. The New York Court of Appeals,only seven years after Macpherson, and with Cardozo joining with themajority, reversed a verdict for her because “privity of contract does notexist between the seller and such third persons [like Bertha], and unless therebe privity of contract there can be no implied warranty.”  Yet in the same era, in other states, courtswere focusing on the nature of food to expand liability, until it became thewidespread law that implied warranties were not limited to a contractualprivity, and until Roger Traynor, in 1944, could use the fact that a Cokebottle contained “foodstuffs” to buttress his seminal opinion in Escola v.Coca-Cola Bottling Co., the well-spring of strict products liability. 

By focusing on the subject matter ofthe transaction rather than the formalities of contract or the assumption thattort is based on fault and wrong, Cardozo, Traynor and many other judges andwriters were able to transform the issue to a question of who should bear thecost when a product injures a consumer, regardless of contract, regardless offault.  Similarly, the courts, Congressand state legislatures should look, not at the mechanics of contract, but atthe many factors relied upon by Professor Radin, to restrain the power of sellersto deprive consumers of rights that the social system has granted them and thatform contracts attempt to take away.

 [Posted, on Peter Linzer’s behalf, by JT]