Nathan Isaacs, a professor of business law at Harvard, writing in 1934, characterized the 1906 provisions for implied warranties as “liberal.” They included “implied contracts of correspondence with description, conformity to sample, fitness for particular purpose, and compliance with trade usages and customs” (Isaacs 1934, p. 181). Assessing the impact of the principle of the implied warranty, Isaacs writes: “The setting up of a standardized contract of sales by statute, from which deviation is possible only by making clear provisions to the contrary, is a mighty force in this busy world to bring about even-handed bargains” (p. 181 [emphasis added]). This characterization raises the question of what criteria must be met in order for a given exchange to qualify as “even-handed.” To be sure, even-handedness meant the elimination of egregious asymmetries of information between seller and buyer—the 1906 legislation addressed that issue by making it incumbent on the seller not only to not actively conceal flaws, but also to point out those that might not be apparent to the prospective buyer. Yet the notion of “fitness for purpose” suggests something more substantive than just securing transparency in the marketplace, for purpose implies use and use entails practices extended in time. In order for a product to be fit for its purpose it must be able to perform its function for a “reasonable” number of uses, and therefore for some approximate duration of time. If a product, say a bicycle, were to break after having been ridden for only five days, it would not be judged as having been “fit for purpose.” To specify that goods must be fit for purpose then entailed that consumers have the right to some duration of use from them (most states specified that a “reasonable” duration of efective usefulness for consumer durables under the implied warranty is four years). The legal concept of “fitness for purpose” was, therefore, connected to the norm that goods should contain some objectively reasonable quantity of abstract use power (measured as a duration of time in use) while also suggesting a standardization of the uses of things—use “under normal circumstances.”
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Time for Things