The primary purpose of this article is not to end the longstanding malaise surrounding section 1-103, but to illuminate its existence and encourage a serious reconsideration of the extent to which common law and equitable principles serve as sources of law in resolving cases under the Code. A greater appreciation of the importance of this issue to commercial law development will result in an approach which makes the law more predictable and which better facilitates the essential need to keep the Code responsive to commercial practice. Part II of this article introduces the context within which section 1-103 will be discussed. This discussion involves the use of a recurring Code problem. Part III examines various solutions offered by courts and commentators to resolve this problem and shows why those solutions should be rejected. Part IV suggests that the answer to the problem lies in the application of the non-Code doctrine of mistake. Finally, Part V considers several methodological approaches to the application of section 1-103 and the degree to which each aids in deciding whether the doctrine of mistake has been displaced by the Code in the context of the problem. The conclusion reached is that section 1-103 is hopelessly indeterminate in its current form.
David Frisch, Buyer's Remedies and Warrenty Disclaimers: The Case for Mistake and the Indeterminacy of U.C.C. Section 1-103, 43 Ark. L. Rev. 291 (1990).