Printable Format84-2-303. Allocation or division of risks. Where this article allocates a risk or a burden as between the parties "unless otherwise agreed," the agreement may not only shift the allocation but may also divide the risk or burden.
History: L. 1965, ch. 564, ยง 37; January 1, 1966.
KANSAS COMMENT, 1996
1. Many sections of Article 2 allocate risks or burdens "unless otherwise agreed." In addition, 84-1-102(3) and (4) make clear that even when those words do not appear, the parties in general may vary the effect of Code provisions. There are exceptions. Parties may not disclaim obligations of good faith, reasonableness, diligence, and care, although they may agree to the standards by which those obligations are to be measured. 84-1-102(3). Several provisions of Article 2 expressly or implicitly preclude the parties from variation by agreement. See, e.g., 84-2-210(1) (delegation of duties); 84-2-318 (third party beneficiaries of warranties); 84-2-616(3) (procedure after notice claiming excuse); 84-2-718(1) (limitations on liquidated damages); 84-2-719(3) (limitations on consequential damages). Finally, an agreement reallocating risks or burdens may be subject to challenge on grounds of unconscionability. 84-2-302.
2. This section makes clear that not only may the parties reallocate the risk or burden imposed by Article 2 in its entirety, but that they also may divide it between them. Thus, it adds to the freedom of contract permitted by the Code.