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Products Liability

s 402A. SPECIAL LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Caveat:

The Institute expresses no opinion as to whether the rules stated in this Section may not apply

(1) to harm to persons other than users or consumers;

(2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer; or

(3) to the seller of a component part of a product to be assembled.

s 402B. MISREPRESENTATION BY SELLER OF CHATTELS TO CONSUMER

One engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though

(a) it is not made fraudulently or negligently, and

(b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.

Caveat:

The Institute expresses no opinion as to whether the rule stated in this Section may apply

(1) where the representation is not made to the public, but to an individual, or

(2) where physical harm is caused to one who is not a consumer of the chattel.

Comment:

a. The rule stated in this Section is one of strict liability for physical harm to the consumer, resulting from a misrepresentation of the character or quality of the chattel sold, even though the misrepresentation is an innocent one, and not made fraudulently or negligently. Although the Section deals with misrepresentation, it is inserted here in order to complete the rules dealing with the liability of suppliers of chattels for physical harm caused by the chattel. A parallel rule, as to strict liability for pecuniary loss resulting from such a misrepresentation, is stated in s 552 D.

b. The rule stated in this Section differs from the rule of strict liability stated in s 402 A, which is a special rule applicable only to sellers of products for consumption and does not depend upon misrepresentation. The rule here stated applies to one engaged in the business of selling any type of chattel, and is limited to misrepresentations of their character or quality.

Restatement, Second, Torts, copyright © 1977 by The American Law Institute. Reproduced with permission. All rights reserved.

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