Proc 5810 Midterm

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Quiz #1 (pg. 1 of 3) 1. Discuss whether Article 2 applies to a blood transfusion given during an operation. Assume for the purposes of this question that the patient will have to pay for the blood supply. This reminds me of the discussion we had in week 2 about the swimming pool. It’s another grey area because the blood could be considered a sale of a good. Article 2-105(1) states that goods are “all things which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities and things in action” Since blood is a movable object and the patient is charged a price for it in this scenario it could fall under Article 2, but, the operation itself is a service and would fall under common law. If using the gravamen of action test, I would say if infected blood was given to a patient, the patient was charged for that blood, and the infected blood is what brought on the suit then the infected blood is what raised the issue and therefore would determine how the suit was handled which would cause it to fall under Article 2. Using the predominate purpose test the blood transfusion was a service performed to provide healthcare not to sell the patient blood, so, Article 2 would not apply, it would fall under common law. I don’t think there is really a right answer here because the U.C.C. doesn’t give guidance on mixed contracts and courts have come up with varying conclusions on how to tackle this issue. In Perlmutter v. Beth David Hospital the court refused to impose liability for a breach of warranty because it found that the predominant purpose of the contract between the patient and the hospital was for restoring the patient’s health which is a service. The blood transfusion was considered an incidental transfer of property made while performing that service. In Cunningham v.
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