I am pleased to report that as a result of the efforts of its business and consumer critics (among whom I include myself), the Tentative Draft of the Restatement of the Law, Consumer Contracts was put “on hold” yesterday at ALI’s annual meeting in Washington, D.C., making next year’s annual meeting the earliest date when the Restatement will again be considered by ALI’s members.
Although the meeting agenda had assigned a four-hour session for consideration of the Restatement, only the first of the Restatement’s nine sections reached a vote. Section One contains the Restatement’s definitions and describes its scope. ALI’s members voted to approve an amendment to Section One to clarify that to the extent the Uniform Commercial Code applies to a transaction and provides a rule, the Restatement does not apply. While not objectionable, the amendment seems unnecessary since to the extent the Restatement sets forth the common law, common law cannot override statutory law such as the UCC.
The remainder of the session was devoted to debate on Section Two, which deals with how a consumer manifests consent to a transaction. No vote was taken on Section Two. A motion to convert the Restatement into a “principles project” was deferred until the 2020 annual meeting.
While the Restatement technically remains alive, its future is unclear. Instead of becoming a principles project, the Restatement could continue as such but with redrafting. Possible next steps could include a meeting of ALI’s Council or a meeting of the Restatement’s Advisers (of which I am one) and/or ALI’s Members Consultative Group.
One thing is clear, however. Substantial work will be needed to arrive at a redrafted Restatement that is acceptable to both business and consumer groups.