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* Norman & Edna Freehling Scholar and Professor of Law, Illinois Institute of Technology, Chicago-Kent College of Law. Some of the ideas developed in this paper were presented to the Contracts Section of the Association of American Law Schools as part of a panel on "The Relational Theory of Contract" held at the 1988 Annual Meeting in Miami Beach, Florida. Financial support for this project was provided by the Marshall D. Ewell Research Fund of the Chicago-Kent College of Law. Research assistance was provided by Craig Truitt. Finally, I wish to thank Jay Feinman for commenting on an earlier draft. I I introduced this thesis in Randy E. Barnett, Contract Scholarship and the Reemergence of Legal Philosophy, 97 Harv. L. Rev. 1223 (1984) (book review), and greatly expanded it in Randy E. Barnett, A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986) [hereinafter Barnett, Consent Theory]. A condensed and revised account of this approach appears in Randy E. Barnett, Rights and Remedies in a Consent Theory of Contract, in Liability and Responsibility: Essays in Law and Morals 135 (R.G. Frey & Christopher W. Morris eds., 1991). 2 Although these two expressions of the principle serve well for most purposes, they are not strictly accurate. A more complete formulation is that contractual obligation arises when a person "voluntarily performed acts that conveyed her intention to create a legally enforceable obligation by transferring alienable rights." Barnett, Consent Theory, supra note 1, at 300. This more elaborate version is needed to account for the restrictions that are properly placed on people's ability to legally bind themselves. This limitation is reflected in, for example, the rules governing the remedy of specific performance. See Randy E. Barnett, Contract Remedies and Inalienable Rights, 4 Soc. Phil. & Pol'y 179 (1986). Although I describe this as the "traditional" view, it represents a rejection of the modern Willistonian-Restatement approach that places the concept of promise (as opposed to consent) at the heart of contract. A promise may or may not be accompanied by an explicit or implicit manifestation of intention to be legally bound. See Randy E. Barnett, Some Problems with Contract as Promise, 77 Cornell L. Rev. 1022 (1992).

The choice in favor of "strict products liability" has already been made, amidst a clamor of commentary, in many jurisdictions across the country. Even after the initial choice is made, however, there remain many questions which demand attention: which defendants exactly may be liable to which plaintiffs, and for just what sort of defect? The author considers what the answers to these and other questions are or will be under the two principal approaches to products liability, the approach of the Restatement of Torts, Second, and the Virginia approach, which sets products liability problems in the context of the Uniform Commercial Code provisions on warranties. The author finds that the results under the two approaches will differ less than might be expected, and he concludes that the Virginia approach is preferable, chiefly because of the freedom, suitably limited, which it allows the parties to modify or exclude warranties or remedies by contract.