Printable Format58-2544. Finding of unconscionability; remedies; evidence. (a) If the court, as a matter of law, finds: (1) A rental agreement or any provision thereof was unconscionable when made, the court may refuse to enforce the agreement, enforce the remainder of the agreement without the unconscionable provision, or limit the application of any unconscionable provision to avoid an unconscionable result; or
(2) a settlement in which a party waives or agrees to forego a claim or right under this act or under a rental agreement was unconscionable at the time it was made, the court may refuse to enforce the settlement, enforce the remainder of the settlement without the unconscionable provision or limit the application of any unconscionable provision to avoid any unconscionable result.
(b) If unconscionability is put into issue by a party or by the court upon its own motion, the parties shall be afforded a reasonable opportunity to present evidence as to the setting, purpose and effect of the rental agreement or settlement to aid the court in making the determination.
History: L. 1975, ch. 290, ยง 5; July 1.
Law Review and Bar Journal References:
"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197, 207 (1979).
"Express Contracts of Indemnity," Richard J. Lind, 65 J.K.B.A. No. 7, 36 (1996).
CASE ANNOTATIONS
1. Referred to; advertising contract limiting company liability not unconscionable. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 757, 549 P.2d 903.
2. Mentioned in upholding constitutionality of subsection (d) of K.S.A. 58-2550. Clark v. Walker, 225 Kan. 359, 364, 590 P.2d 1043.
3. Cited; on counterclaim for damages, held that the Residential Landlord and Tenant Act was specific and took precedence over the broader Consumer Protection Act. Chelsea Plaza Homes, Inc. v. Moore, 226 Kan. 430, 435, 436, 601 P.2d 1100.
4. Doctrine of unconscionability discussed. Willman v. Ewen, 230 Kan. 262, 266, 634 P.2d 1061 (1981).
5. Cited; unconscionability of illegible liquidated damages clause in lease with disparity in sophistication between lessor and lessee farmer examined. John Deere Leasing Co. v. Blubaugh, 636 F. Supp. 1569, 1572 (1986).