The citadel of privity has undergone a massive assault in the field of products liability yet still remains a viable force in warranty law. In most cases, the privity requirement is held to be a function of the dangerousness of the product, the type of harm caused and the situs of the chose in action. As a prerequisite to recovery under a contract theory for breach of warranty, courts have required a finding of privity -- a direct nexus between vendor and vendee. While the strict application of the doctrine created harsh results, courts made inroads to mitigate its effects and to satisfy judicial notions of justice where conduct was inexcusable and harm intolerable. The results in some instances were unpredictable and inconsistent until they were finally codified judicially into a category of exceptions that either supplied privity directly or obviated the need for its application, although in many instances the route taken was obfuscated. This article will explore the devices employed to evade the privity requirements and will discuss the necessity of extending judicial reasoning to its logical extreme--the elimination of the vertical privity barrier, regardless of the qualitative aspect of the harm caused.
Schwartz, Martin V.
"The Demise of Vertical Privity: Economic Loss and the Uniform Commercial Code,"
Hofstra Law Review: Vol. 2
, Article 16.
Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol2/iss2/16