for breach of warranty. Comment "m" following § 402A, plaintiff's argument continues, clearly states that strict liability sounds in tort, not contract, therefore the warranty limitation does not protect the defendant and plaintiff can recover under a tort theory of strict liability.
Under Pennsylvania law a warranty exculpatory clause may be used to disclaim liability in both contract and tort. Shafer v. Reo Motors, supra. A fortiori, an "AS IS" clause coupled with a "hold harmless" clause may also be used to disclaim liability in both contract and tort. We need not decide, therefore, whether Pennsylvania courts would adopt Comment "m" because regardless of the classification of § 402A as warranty or tort the disclaimer is broad enough to protect the defendant. This position is buttressed by reading the contract which, taken as a whole, clearly evidences an understanding between the parties that no liability of any kind would run with the sale.
For purposes of waiver of liability between two corporations we perceive no difference between the tort theories of negligence and strict liability. We see no reason why if, under Pennsylvania law, parties to a contract in some circumstances may waive tort liability for negligence they should not be able to waive tort liability for strict liability as well.
The question remains, however, whether as a policy matter the courts should permit the waiver of liability imposed under § 402A.
Strict liability as embodied in § 402A was conceived and born as a "pure matter of public policy."
The purpose of the strict liability rule as the California Supreme Court said in Greenman, supra, is to protect consumers who are "powerless to protect themselves." 59 Cal.2d at 63, 27 Cal.Rptr. 697.
That policy hardly can be said to extend to the situation at bar where two corporations have negotiated the terms of a sale at arms length. Both corporations obviously are familiar with aeronautical equipment and they have negotiated at least two of these sales with each other.
While it can be fairly said that for reasons of social policy strict liability cannot be disclaimed in a "garden-variety" consumer sale we see no reason to extend that logic to a strictly commercial sale between two corporations which have negotiated both the terms and the price of the sale. It would be unwise to hold that § 402A applies to corporations in a commercial sale whether they like it or not. Freedom of contract demands that a corporate purchaser be permitted to make business judgments, e.g., accepting the protection of a full warranty at a higher price or negotiating a lower price and running the risk that the product may be defective.
Delta Air Lines, Inc., v. Douglas Aircraft Company, Inc., 238 Cal.App.2d 95, 47 Cal.Rptr. 518 (1965) is directly in point. There Delta Air Lines sued Douglas Aircraft to recover the cost of repairs to a DC-7 airplane which Delta had purchased from Douglas and which had been damaged in a crash. In denying recovery the court held that the broad exculpatory clause in the sales contract was adequate to prevent recovery under either negligence or strict liability. The court summarized its holding by saying that:
"In short, all that is herein involved is the question of which of two equal bargainers should bear the risk of economic loss if the product sold proved to be defective. Under the contract before us, Delta (or its insurance carrier if any) bears that risk in return for a purchase price acceptable to it; had the clause been removed, the risk would have fallen on Douglas (or its insurance carrier if any), but in return for an increased price deemed adequate by it to compensate for the risk assumed. We can see no reason why Delta, having determined, as a matter of business judgment, that the price fixed justified assuming the risk of loss, should now be allowed to shift the risk so assumed to Douglas, which had neither agreed to assume it nor been compensated for such assumption." (Footnote omitted). 238 Cal.App.2d, at 104-105, 47 Cal.Rptr. at 524.
We think that both the reasoning and the holding in that case is sound and applies with equal force here.
Plaintiff cannot recover damages, therefore, under any of the three theories pled in the complaint.
Accordingly, defendant's motion for summary judgment shall be and hereby is granted.
It is so ordered.