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foreseeable uses, it is not merchantable. Of course, tort law also addresses liability for unreasonably dangerous products. To that end, a plaintiff seeking to recover in products liability will typically proceed under three theories: (1) strict products liability in tort, (2) negligence in tort, and (3) Article 2’s implied warranty of merchantability. Insofar as the relationship between Article 2 and tort law is concerned, four issues generally arise:
privity, the statute of limitations, damages, and precisely what the plaintiff must prove.
[ See 2 Hawkland UCC Series § 2-314:6, Westlaw (database updated June 2021).]
a. Privity and Products Liability There is controversy over whether, to prevail on a claim for breach of the implied warranty of merchantability, the plaintiff must have privity (a contractual or similar legal relationship) with the defendant. Normally, the plaintiff sues the manufacturer, though she bought the goods from another party ( e.g. , a retail seller) and thus had no contractual relationship with the manufacturer. Some courts require privity, but they differ on the circumstances in which they find privity. Privity may exist if the manufacturer made representations to the plaintiff, or if the direct seller acted as the manufacturer’s agent. Other courts simply do not require privity. Some states have adopted versions of Article 2 that expressly permit products-liability suits founded on merchantability, even without privity (indeed, even if the plaintiff was not the buyer, as when she was a member of the buyer’s household when the product injured her). [2 Hawkland UCC Series § 2-314:5, Westlaw (database updated June 2021).]
Note : Privity is irrelevant under a theory of negligence or strict products liability in tort.
b. Statute of Limitations in Products-Liability Cases Article 2’s statute of limitations is typically four years. In a case of breach of the implied warranty of merchantability, the cause of action accrues upon tender of delivery. Thus, the plaintiff generally has four years from that time to file suit. In tort, the rules vary somewhat among the states. Usually, though, the plaintiff must file suit within two years (or more, depending on the state) after the time she knew or should have known about the tort, often when the harm occurred. [2 Hawkland UCC Series § 2-314:6, Westlaw (database updated June 2021).]
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