50-625. Waiver; agreement to forego rights; settlement of claims. (a) Except as otherwise provided in this act, a consumer may not waive or agree to forego rights or benefits under this act.
(b) A claim, whether or not disputed, by or against a consumer may be settled for less value than the amount claimed.
(c) A settlement in which the consumer waives or agrees to forego rights or benefits under this act is invalid if the court finds the settlement to have been unconscionable at the time it was made. The competence of the consumer, any deception or coercion practiced upon the consumer, the nature and extent of the legal advice received by the consumer, and the value of the consideration are relevant to the issue of unconscionability.
History: L. 1973, ch. 217, ยง 3; January 1, 1974.
KANSAS COMMENT, 1973
Unlike the UCC (K.S.A. 84-1-102(3)), which broadly permits variation by agreement, this act starts from the premise that a consumer may not in general waive or agree to forego rights or benefits under it. Compare K.S.A. 84-9-501(3). Waiver or other variation is specifically provided for in some sections, such as section 50-640(a)(5) relating to home solicitation transactions in an emergency; in the absence of such a provision, however, waiver or agreement to forego must be part of a settlement and settlements are subject to review as provided in this section.
Law Review and Bar Journal References:
"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197, 211 (1979).
"The Untapped Potential of the Kansas Consumer Protection Act," Amy Fellows, 74 J.K.B.A. No. 4, 24 (2005).
CASE ANNOTATIONS
1. Refusal of trial court to give requested instructions not clearly erroneous; allegations of violation of Kansas Consumer Protection Act. Kiser v. Gilmore, 2 Kan. App. 2d 683, 691, 587 P.2d 911.
2. Cited in showing legislative intent to impose absolute and non-delegable duties on one party to contract. State v. Mwaura, 4 Kan. App. 2d 738, 741, 610 P.2d 662.
3. Delay of over three months in notifying plaintiff that order for a limited production car could not be filled held a deceptive practice. Willman v. Ewen, 6 Kan. App. 2d 321, 324, 627 P.2d 1190.
4. A consumer may not in general waive or forego rights hereunder. Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, 14, 637 P.2d 458 (1982).
5. Offer to settle in excess of what plaintiffs owed under GM protection plan not an unconscionable act. Farrell v. General Motors Corp., 249 Kan. 231, 241, 815 P.2d 538 (1991).
6. A contractual provision is unenforceable under the Kansas consumer protection act if the provision purports to waive or forego a consumer's right or benefit under the act. Kansas City Grill Cleaners, LLC v. BBQ Cleaner, LLC, 57 Kan. App. 2d 542, 548, 454 P.3d 608 (2019).
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