W(h)ither warranty: The b(l)oom of products liability theory in cases of deficient software design

Proposed Article 2B of the Uniform Commercial Code is, like all commercial codification initiatives, a product of time and circumstance. The law would apply product quality jurisprudence to an evolving property form-the tangi ble/intangible hybrid that is the software license. In this Article, Profes sor Alces describes the Article 2B drafters' approach to the implied warran ty of merchantability, concluding that the draft's formulation is inconside rate of commercial and jurisprudential realities. He surveys the contract a nd tort bases of warranties as they are formulated in Article 2 of the Unif orm Commercial Code to support the conclusion that Article 2B has failed to come to terms with the fit between commercial law's warranty regime and th e complementary body of product quality law. Professor Alces then describes how courts determined to do justice might consult strict products liabilit y law when Article 2B's implied warranty of merchantability fails to respon d to the demands of technologically sophisticated commerce. The new Restate ment (Third) of Torts: Products Liability may provide disappointed licensee s the protections that an impotent merchantability warranty would deny them . This result could be avoided were Article 2B's implied warranty of mercha ntability drafted after the technology it would govern has been afforded th e time to mature toward repose.