concurring.
The majority opinion says that, assuming Section 402A of the Restatement (Second) of Torts is available to bystanders and is binding on used car dealers, it was not error to submit this case to the jury. I agree with the holding that plaintiff was not entitled to a directed verdict. I do not agree, however, with the implication that, under the assumptions mentioned, this was necessarily a proper case for the jury. In my opinion, the majority has misconceived the na*578ture of the functions of the court and the jury in these cases.
As I understand it, § 402A is intended to embody in the Restatement the principle of strict tort liability for the sale of a defective product as developed most fully in Greenman v. Yuba Power Products, Inc., 59 Cal2d 57, 27 Cal Rptr 697, 377 P2d 897 (1963) and Henningsen v. Bloomfield Motors, 32 N J 358, 161 A2d 69, 75 ALR2d 1 (1960), and now adopted by a majority of the courts in the United States.
The underlying theory supporting this principle as expounded in Greenman is that the seller, being engaged in a commercial enterprise, should be made to bear the loss, at least where he is better able to absorb the cost or shift it through the pricing of his product.
We have rejected this reasoning on the ground that if it were adopted we would be obliged logically to employ it also in cases not involving the sale of products if the loss could be absorbed or shifted. Wights v. Staff Jennings, 241 Or 301, 405 P2d 624 (1965).
If this position is maintained, we must explain the applicability of § 402A on some basis other than enterprise liability. I have attempted to work out elsewhere an acceptable theory to explain the imposition of liability upon the sellers of products distinct from other defendants engaged in a commercial enterprise.① I shall not now review that explanation nor attempt to re-appraise it. Whether that explanation is right or wrong, I think that we ought to explain why and how § 402A applies in a particular setting. *579This is especially important because our commercial code purports to deal with the subject of the seller’s liability and we should, therefore, at least attempt to make onr application of § 402A consistent with the legislative policy expressed in the code.
The code is drafted upon the assumption that the seller’s liability is based upon an express or implied warranty of merchantability (or the warranty of fitness for a particular purpose, not germane here).② Even before Greemnan v. Yuba Power Products, supra, the liability of the seller for breach of the implied warranty of merchantability could not be explained upon the basis of principles of contract law (even where the action was between the buyer and seller). Since the seller’s liability fit more logically into the notions of tort law, it was finally recognized for what it was and is now ordinarily treated as a form of strict liability in tort. However, when strict liability was imposed under the theory of implied warranty of merchantability (whether conceived of as founded in implied contract or tort), the reason for imposing it was not stated in terms of enterprise liability as developed in Greemnan v. Yuba Power Products, supra. The idea running through the implied warranty cases is that a seller who purports to sell an article of a certain character impliedly represents that the product meets the standard which an article of that type normally has in the market. We may assume that the legislature, in adopting the commercial code, intended to limit the *580seller’s liability within this framework of representational conduct, however implied. If so, § 402A must be similarly circumscribed.
As Dean Prosser has recently noted, the theory underlying strict liability is important in answering such questions as whether an injured bystander may recover:
“The courts are going to be compelled to make up their minds as to what they are trying to do. Are they adopting a so-called socialistic theory, a compulsory insurance, risk distribution and so on? Or are they going to adopt the theory that this thing is justified by the defendant’s conduct in putting the product on the market, and representing to the public that it is fit for use?” Prosser, Products Liability in Perspective, 5 Gronzaga L Eev 157, 170 (1970).
The underlying theory is just as important in determining what is a defect which makes a product unreasonably dangerous in a particular class of cases. Having rejected the enterprise liability theory, we ought to approach this question in each instance in terms of the nature of the seller’s representations.③
*581In this case we are concerned with how the seller of nsed goods, and specifically the seller of nsed automobiles, fits into this scheme of liability. When a seller of new automobiles sells one of them to a customer he impliedly represents that the automobile is adequately equipped with all the essentials that characterize a new vehicle of that type. It was for that reason we assumed in Heaton v. Ford Motor Co., 248 Or 467, 435 P2d 806 (1967) that a seller could be liable for damages resulting from a defective wheel. (We were in disagreement as to the point at which the court or jury could reasonably conclude that a representation upon which a purchaser could justifiably rely had been made.) That conclusion did not commit us on the question of the character of the representation made by those selling used goods under various circumstances. It does not necessarily follow that because a seller of a new car is deemed to have made an implied representation as to the quality of the brakes, a used car dealer makes the same representation, or any representation at all. It is for the court to decide whether a used car dealer is deemed to make a representation that the vehicle he is selling has brakes which are free from defects which could arise from normal use. This is the court’s function of looking at the general character of men’s dealings in the market place and deciding whether, as a normal course of such dealings, it is ordinarily understood by sellers and buyers that the seller represents, in effect, that he has inspected the car not only for patent defects but also defects which would be disclosed only by tearing down parts of the car in search for them.
I do not think that this is the understanding of either buyer or seller in the usual sale of used cars. In any event, it is not for the jury to decide whether *582this is the general character of such sales. This is entirely different than the function of the jury where, as in Heaton v. Ford Motor Co., supra, we begin with the court-drawn conclusion that sellers of new cars are deemed to make representations that cars sold by them will have adequate wheels. The jury’s function in such a case is to determine whether, beginning with that assumption, the wheels in the particular circumstance (i.e., where subjected to a certain type of impact) performed in a manner consistent with the representations expressly or impliedly made. It is permissible in that setting to permit the jury to find the representation by appraising the average purchaser’s reasonable expectation as to the performability of the product. That is quite a different function than that which the majority opinion in this case indicates the jury is to perform. A products liability case, in my view, is for the jury only after the court has determined what the seller in the particular type of sale impliedly represents as to the condition of the product, and that the evidence discloses a possible breach of that representation.
Denecke and Holman, JJ., concur in this opinion.See my dissenting opinion in State ex rel Western Seed v. Campbell, 250 Or 262 at 276, 442 P2d 215 at 221 (1969) for a summary of this explanation.
See ORS 72.3140 and 72.3150
Many of the difficulties involved in the adoption and application of § 402A in light of the commercial code’s warranty provisions are discussed in Titus, Restatement (Second) of Torts Section 402A and the Uniform Commercial Code, 22 Stan L Rev 713 (1970). See also Dickerson, Products Liability: How Good Does a Product Have to Be?, 42 Ind L J 301 (1967).
Our cases involving liability for the injurious side effects of prescription drugs, although not couched in these terms, are consistent with this approach. Cochran v. Brooke, 243 Or 89, 409 P2d 904 (1966); Lewis v. Baker, 243 Or 317, 413 P2d 400 (1966). In the latter case we held that
“. . . a drug, properly tested, labeled with appropriate warnings, approved by the Food and Drug Administration, and marketed properly under federal regulation is, as a matter of law, a reasonably safe product.” 243 Or at 324.
We held, in effect, that regardless of the degree of danger from side effects, a drug manufacturer would not be liable if he marketed his drug in accordance with applicable regulations and was not guilty of wilful or negligent mislabeling. In other words, he represents only that there are no impurities, that he has done what the drug laws require of him, and that he has disclosed all the dangers of which he knows or ought to know.