Six New Drafts Will Be Considered at Three-Day Annual Meeting in May

At its meeting in New York City on December 5-7, the Council determined that six new drafts would be submitted to the Institute’s 79th Annual Meeting in Washington on May 13-15. The membership will be asked to consider Restatement Tentative Drafts on Restitution and Unjust Enrichment, Agency, and Torts; Discussion Drafts on Transnational Civil Procedure and International Jurisdiction and Judgments; and an initial submission of Proposed Revisions to Articles 3 (Negotiable Instruments) and 4 (Bank Deposits and Collections) of the Uniform Commercial Code. Unlike last year’s Annual Meeting, which required four full days and several concurrent sessions, this year’s gathering will encompass just three days of plenary sessions, although two of those days will begin at 8:30 a.m.

Tentative Draft No. 2 of Restatement Third, Restitution and Unjust Enrichment, will complete the chapter on transfers subject to avoidance, otherwise approved last year, with a new section on the types of transactions that are voidable because they were entered into without sufficient authorization. Additional new material raises important policy issues about the extent to which persons who provide services in emergencies, such as physicians and rescue workers, as well as those who confer an unrequested benefit merely for reasons of self-interest, are entitled to be reimbursed on restitutionary grounds despite the absence of prior contractual agreement. Tentative Draft No. 3 of Restatement Third, Agency, will explore the ramifications of multiple principal-agent relationships and the particularly timely issue of when notice of facts that the agent knows or has reason to know should be imputed to the principal. It will also revisit two sections that the members last year asked to be redrafted. Tentative Draft No. 2 of Restatement Third, Torts: Liability for Physical Harm (Basic Principles), will contain revised versions of the sections whose treatment of the concept of duty provoked intense controversy at last year’s Annual Meeting and which were accordingly remanded to the Reporters for reconsideration. In addition, there will also be two new chapters, on causation and scope of liability. The Council in December had insufficient time to complete its review of the scope chapter, with the result that it will be available at the Annual Meeting for discussion only; the remainder of the draft will be submitted for approval this year.

The Discussion Draft for the International Jurisdiction and Judgments Project constitutes the first submission to the Institute of a proposed federal Foreign Judgments Recognition and Enforcement Act to harmonize and unify what is now governed by the vagaries of state law. The project had been originally conceived as one that would develop legislation to implement in the United States the principles of the current Convention at The Hague on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, but the Council subsequently decided, in light of the uncertain prospects of the Hague Convention, to pursue an alternative approach independent of the Convention. Discussion Draft No. 3 of Principles and Rules of Transnational Civil Procedure, now a joint project in collaboration with UNIDROIT, will reflect the increasing prominence of the Principles, with the Rules reconceived as a model statute for implementation of the Principles. Although being presented to the Annual Meeting for the first time, the limited revisions proposed for UCC Articles 3 and 4 are not thought to be highly controversial and are expected to be presented for approval this year by both the Institute and the National Conference of Commissioners on Uniform State Laws.

As this issue of the Reporter goes to press, the future of the considerably more controversial project on Articles 2 (Sales) and 2A (Leases) remains unresolved, and discussions continue within the National Conference in an effort to develop a viable definition of Article 2’s scope with respect to goods that have software and electronic informational components. The Article 2 Amendments, which were approved by the Institute in 2001 with no change in the traditional scope language of the Sales Article, have meanwhile not been scheduled for reconsideration at the 2002 Annual Meeting.