The Development of Privity of Contract as the Common Law Standard for Product Liability: An Analysis of Winterbottom v. Wright, Thomas v. Winchester, and Industrialization

Abstract

This article explores the development of standards of product liability during the Market Revolution, arguing that jurists adopted the standard of privity of contract to protect manufacturers from the legal consequences of industrialization. This article surveys the history of product liability prior to the Market Revolution, and then it describes how Winterbottom v. Wright and Thomas v. Winchester radically departed from this tradition. This article then analyzes how judges specifically feared the increased volume of liability cases under a strict liability framework that would have arisen from a depersonalized and mechanized economy. The article concludes with parallels between questions surrounding product liability in the Market Revolution and the present day.