CHAPTER 99 SENATE BILL No. 518 An Act concerning the Kansas consumer protection act; relating to the disposal of surplus
property; amending K.S.A. 50-627 and 50-639 and repealing the existing sections. Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 50-627 is hereby amended to read as follows: 50-
627. (a) No supplier shall engage in any unconscionable act or practice
in connection with a consumer transaction. An unconscionable act or
practice violates this act whether it occurs before, during or after the
transaction.

(b) The unconscionability of an act or practice is a question for the
court. In determining whether an act or practice is unconscionable, the
court shall consider circumstances of which the supplier knew or had
reason to know, such as, but not limited to the following that:

(1) That The supplier took advantage of the inability of the consumer
reasonably to protect the consumer's interests because of the consumer's
physical infirmity, ignorance, illiteracy, inability to understand the lan-
guage of an agreement or similar factor;

(2) that, when the consumer transaction was entered into, the price
grossly exceeded the price at which similar property or services were
readily obtainable in similar transactions by similar consumers;

(3) that the consumer was unable to receive a material benefit from
the subject of the transaction;

(4) that, when the consumer transaction was entered into, there was
no reasonable probability of payment of the obligation in full by the con-
sumer;

(5) that the transaction the supplier induced the consumer to enter
into was excessively onesided in favor of the supplier;

(6) that the supplier made a misleading statement of opinion on
which the consumer was likely to rely to the consumer's detriment; and

(7) that except as provided by K.S.A. 50-639, and amendments
thereto, the supplier excluded, modified or otherwise attempted to limit
either the implied warranties of merchantability and fitness for a partic-
ular purpose or any remedy provided by law for a breach of those war-
ranties.

Sec. 2. K.S.A. 50-639 is hereby amended to read as follows: 50-639.
(a) Notwithstanding any other provisions of law, with respect to property
which is the subject of or is intended to become the subject of a consumer
transaction in this state, no supplier shall:

(1) Exclude, modify or otherwise attempt to limit the implied war-
ranties of merchantability as defined in K.S.A. 84-2-314, and amendments
thereto, and fitness for a particular purpose, as defined in K.S.A. 84-2-
315, and amendments thereto; or

(2) exclude, modify or attempt to limit any remedy provided by law,
including the measure of damages available, for a breach of implied war-
ranty of merchantability and fitness for a particular purpose.

(b) Notwithstanding any provision of law, no action for breach of
warranty with respect to property subject to a consumer transaction shall
fail because of a lack of privity between the claimant and the party against
whom the claim is made. An action against any supplier for breach of
warranty with respect to property subject to a consumer transaction shall
not, of itself, constitute a bar to the bringing of an action against another
person.

(c) A supplier may limit the supplier's implied warranty of merchant-
ability and fitness for a particular purpose with respect to a defect or
defects in the property only if the supplier establishes that the consumer
had knowledge of the defect or defects, which became the basis of the
bargain between the parties. In neither case shall such limitation apply
to liability for personal injury or property damage.

(d) Nothing in this section shall be construed to expand the implied
warranty of merchantability as defined in K.S.A. 84-2-314, and amend-
ments thereto, to involve obligations in excess of those which are appro-
priate to the property.

(e) A disclaimer or limitation in violation of this section is void. If a
consumer prevails in an action based upon breach of warranty, and the
supplier has violated this section, the court may, in addition to any dam-
ages recovered, award reasonable attorney fees and a civil penalty under
K.S.A. 50-636, and amendments thereto, to be paid by the supplier who
gave the improper disclaimer.

(f) The making of a limited express warranty is not in itself a violation
of this section.

(g) This section shall not apply to seed for planting.

(h) This section shall not apply to sales of livestock for agricultural
purposes, other than sales of livestock for immediate slaughter, except in
cases where the supplier knowingly sells livestock which is diseased.

(i) This section shall not apply to the disposal of surplus property by
any governmental entity if the governmental entity has given conspicuous
written notice of the warranty limitation, exclusion or disclaimer. In the
case of surplus property which is a motor vehicle, a notice of such limi-
tation, exclusion or disclaimer shall be affixed to a side window of the
motor vehicle. Such notice shall comply with the buyers guide required
by 16 CFR 455.2 and 16 CFR 455.3 (as in effect on the effective date of
this act).

Sec. 3. K.S.A. 50-627 and 50-639 are hereby repealed.

Sec. 4. This act shall take effect and be in force from and after its
publication in the Kansas register.

Approved April 9, 1998

Published in the Kansas Registers April 16, 1998

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