Council Reviews Drafts at October Meeting

At its meeting in Philadelphia on October 18-20 the Council reviewed the latest submissions for the Restatements of Restitution and Unjust Enrichment and Torts: General Principles, as well as for the Federal Judicial Code Revision Project and Revised Article 2 (Sales) of the Uniform Commercial Code.

Council Draft No. 2 of Restatement Third, Restitution and Unjust Enrichment, contained a revision of Chapter 2 on Transfers Subject to Avoidance, which had been presented to last May’s Annual Meeting for discussion only. The Council in October approved about two thirds of the draft for submission to the 2001 Annual Meeting, subject to further revision, but there was insufficient time to complete review of the remainder, which was reserved for consideration in December. At that time the full extent of what will constitute Tentative Draft No. 1 will be determined.

Approved in its entirety was Council Draft No. 2 of Restatement Third, Torts: General Principles, which covered strict liability with respect to both abnormally dangerous activities and wild animals. The Council also completed its review of the material on negligence contained in the Discussion Draft that had been submitted at the 1999 Annual Meeting in San Francisco. That entire Discussion Draft will now be revised and combined with a revised text on strict liability for submission as the project’s first Tentative Draft. There was discussion of narrowing the project’s title to reflect the fact that the principles to be restated are expected to be limited to liability for causing physical harm, but no immediate decision as to what the new title should be. Subsequently, however, it was decided to rename the project "Torts: Liability for Physical Harm (Basic Principles)."

Torts Reporter Gary T. Schwartz of the University of California at Los Angeles was joined for the first time at the October Council meeting by a new Co-Reporter, Michael D. Green of Wake Forest University. Professor Green, formerly of the University of Iowa, was previously Co-Reporter for another segment of Torts Third, the recently published volume on Apportionment of Liability. He succeeds Harvey S. Perlman, former Dean of the University of Nebraska College of Law, who resigned as Co-Reporter for Torts: General Principles because of his new duties as Interim Chancellor of the University’s Lincoln campus.

The Council also approved, subject to discussion, Council Draft No. 4 of the Federal Judicial Code Revision Project, which contained proposed changes to the Code’s provisions governing venue and transfer. The draft’s most controversial proposal was to establish a five-year sunset period for a long list of special venue statutes that are inconsistent with the general venue provisions found in the Code. It was eventually decided to withdraw this proposal and instead to consider the problems presented by special venue statutes in the Commentary.

The new draft of Revised Article 2 considered by the Council in October lacked the Article’s crucial provision on scope, which was delayed pending resolution by the Drafting Committee of the extent to which Article 2 should govern transactions involving software, particularly "smart goods" into which software has been integrated. In November, the Drafting Committee reached agreement on a new scope provision, which will be considered by the Council at its December meeting. Although the Council made various suggestions for improvement of the incomplete October draft, all voting on its provisions was deferred until it reconvened in December. Also deferred was any action on Revised Article 2A (Leases), which is closely related in substance to Revised Article 2 and involves comparable issues.

At its meeting on December 6-8, the Council will consider new Restatement drafts on Agency, Trusts, and Property (Wills and Other Donative Transfers) and a new UCC draft of Revised Article 1 (General Provisions), as well as revisit Restitution and UCC Articles 2 and 2A. It will also discuss for the first time a new UCC project concerned with revision of the Code’s Payment Articles (3, 4, and 4A). The complete agenda for the 2001 Annual Meeting will be determined following that meeting.