Amended Article 2: What Went Wrong?
Duquesne Business Law Review, Vol. 11, pp. 131-142, 2009
12 Pages Posted: 27 Jan 2016
Date Written: 2009
This symposium issue explores two related questions: 1) Is the current version of Article 2 of the Uniform Commercial Code (U.C.C., or Code) satisfactory for dealing with modem sales-law issues; and 2) What problems are likely to arise as a result of amended Article 2's failure in the legislatures? My answer to the first question is "probably not, but it will have to do." The original article was drafted when manufacturers' warranties were rare and electronic contracting and products that combine goods and software were unknown. Although brilliant in conception, the drafting is often confusing and even sloppy. Judging from the massive volume of litigation that continues to this day, at least one of the article's key innovations--the so-called "battle-of-the-forms" provision--must be rated a failure. Despite these flaws, the courts have managed to deal with the issues and are capable of continuing to do so, albeit at great cost both to litigants and to those planning transactions.
As to the second question, the failure of the amendments may go beyond merely missing an opportunity to improve the law. The inability of stakeholders to reach consensus on key issues and the willingness of some to commit resources to fight the amendments in the legislatures suggest a weakening of the consensus that in the past has supported uniformity at the state level in the field of commercial law. The failure of the amendments, coupled with other events described below, provides an occasion to think seriously about the need to keep the Code current and the problems that will arise if we are unable to do so.
JEL Classification: K12, K19
Suggested Citation: Suggested Citation