Printable Format50-627. Unconscionable acts and practices. (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) 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 language of an agreement or similar factor;
(2) 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) the consumer was unable to receive a material benefit from the subject of the transaction;
(4) when the consumer transaction was entered into, there was no reasonable probability of payment of the obligation in full by the consumer;
(5) the transaction the supplier induced the consumer to enter into was excessively onesided in favor of the supplier;
(6) the supplier made a misleading statement of opinion on which the consumer was likely to rely to the consumer's detriment; and
(7) 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 particular purpose or any remedy provided by law for a breach of those warranties.
History: L. 1973, ch. 217, § 5; L. 1976, ch. 236, § 4; L. 1983, ch. 180, § 1; L. 1991, ch. 159, § 3; L. 1998, ch. 99, § 1; April 16.
KANSAS COMMENT, 1973
1. Section 50-627 forbids unconscionable advertising techniques, unconscionable contract terms, and unconscionable debt collection practices. As under the UCC (K.S.A. 84-2-302), unconscionability typically involves conduct by which a supplier seeks to induce or to require a consumer to assume risks which materially exceed the benefits to him of a related consumer transaction. It involves over-reaching, not necessarily deception. The Old Buyer Protection Act had no such provision. "Knowledge or reason to know" often will be established by a supplier's course of conduct.
2. Subsection (b)(1) includes such conduct as selling an English-language encyclopedia set for personal use to a Spanish-American bachelor laborer who does not read English, or using legal verbiage in a manner which cannot be readily comprehended by a low-income consumer who both reads and speaks English.
Subsection (b)(2) includes such conduct as a home solicitation sale of a set of cookware to a housewife for $375 in an area where a set of comparable quality is readily available to such a housewife for $125 or less.
Subsection (b)(3) includes such conduct as the sale of two expensive vacuum cleaners to two poor families whom the salesman knows, or has reason to know, share the same apartment and the same rug.
Subsection (b)(4) includes such conduct as the sale of goods, services, or intangibles to a low-income consumer whom the salesman knows, or has reason to know, does not have sufficient income to make the stipulated payments.
Subsection (b)(5) includes such conduct as requiring a consumer to sign a one-sided adhesion contract which is loaded too heavily in favor of the supplier, even though some or all of the contract terms are lawful in and of themselves.
Subsection (b)(6) applies to misleading subjective expressions of opinion on which a supplier should reasonably expect a consumer to rely to his detriment. For example, a violation of this subsection would occur if a prospective purchaser asked a supplier what the useful life of a paint job was and the supplier, with reason to know that repainting would be necessary within two years, responded, "in my opinion the paint will wear like iron." Overt factual misstatements expressed in form of opinion are dealt with by 50-626's proscription of deceptive consumer sales practices. For example, a violation of 50-626 would occur if a prospective purchaser asked a supplier what the useful life of a two-year paint job was and the supplier responded, "in my opinion repainting will not be necessary for five years."
Law Review and Bar Journal References:
"The New Kansas Consumer Legislation," Barkley Clark, 42 J.B.A.K. 147, 152, 189 (1973).
Consumer protection in Tenth Judicial District, William P. Coates, Jr., 44 J.B.A.K. 67, 71 (1975).
"A New Kansas Approach to an Old Fraud," consumer protection, Polly Higdon Wilhardt, 14 W.L.J. 623, 627, 628 (1975).
"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197, 207, 211 (1979).
"Broadcast Advertising: What Has It Done to the Audience?" Ronald C. Griffin, 23 W.L.J. 237, 264 (1984).
"Express Contracts of Indemnity," Richard J. Lind, 65 J.K.B.A. No. 7, 36 (1996).
"Corporate Corruption and Wall Street Finagling: How Will it Play in Kansas After SLUSA?" Steven Ramirez and Jeffrey S. Kruske, 72 J.K.B.A. No. 8, 14 (2003).
"The Untapped Potential of the Kansas Consumer Protection Act," Amy Fellows, 74 J.K.B.A. No. 4, 24 (2005).
"Williamson v. Amrani: The KCPA Applies to the Practice of Medicine ‒ For a Limited Time," Nancy Ogle, K.D.J. Summer (2007).
Attorney General's Opinions:
Consumer protection; disclaimer or limitation of warranties. 86-25.
Financial institution that occasionally sells motor vehicles it has repossessed is not a "supplier" under Kansas Consumer Protection Act. 2005-2.
CASE ANNOTATIONS
1. Referred to; advertising contract limiting company liability not unconscionable. Wille v. Southwestern Bell Tel. Co., 219 K. 755, 757, 549 P.2d 903.
2. Question of conscionability of an act to be by court; conclusion upheld. Meyer v. Diesel Equipment Co., Inc., 1 K.A.2d 574, 579, 570 P.2d 1374.
3. Debt collection agency is "supplier" within meaning of Consumer Protection Act. State ex rel. Miller v. Midwest Service Bureau of Topeka, Inc., 229 K. 322, 324, 623 P.2d 1343.
4. Selling of feeder pigs was a consumer transaction under the Kansas Consumer Protection Act. Plaintiff failed to produce sufficient evidence to support claim. Musil v. Hendrich, 6 K.A.2d 196, 198, 200, 201, 627 P.2d 367.
5. 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 K.A.2d 321, 324, 325, 627 P.2d 1190.
6. Unconscionability considered in action to void or reform lease. Estate of Link v. Wirtz, 7 K.A.2d 186, 188, 638 P.2d 985 (1982).
7. Decision in Willman V. Ewen, 6 K.A.2d 321, affirmed. Willman v. Ewen, 230 K. 262, 634 P.2d 1061 (1981).
8. Unconscionability of action considered and determined by court; however, record is sufficient to present question of "deceptive act" to jury. Swanston v. McConnell Air Force Base Fed'l Cred. Union, 8 K.A.2d 538, 542, 661 P.2d 826 (1983).
9. Application and purpose of act considered; disputed material facts on issue of supplier's guilt of deceptive or unconscionable act not resolved. Stair v. Gaylord, 232 K. 765, 775, 776, 659 P.2d 178 (1983).
10. Whether or not an act is unconscionable is question of law for the court; claimant not entitled to jury trial. Waggener v. Seever Systems, Inc., 233 K. 517, 521, 522, 664 P.2d 813 (1983).
11. Whether act is unconscionable is question for court; whether act is deceptive is not question of law. Waggener v. Seever Systems, Inc., 233 K. 517, 522, 664 P.2d 813 (1983).
12. Rental agreement with option to purchase TV set, terminable at will by renter, not unconscionable. Remco Enterprises, Inc. v. Houston, 9 K.A.2d 296, 301, 677 P.2d 567 (1984).
13. Whether suppliers actions are unconscionable within meaning of statute is question of law for the court. Agristor Leasing v. Meuli, 634 F.Supp. 1208, 1219 (1986).
14. 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).
15. Issue of whether deceptive act committed is question for jury; whether act unconscionable is question for court. Bailey v. Morgan Drive-Away, Inc., 647 F.Supp. 648, 656 (1986).
16. Action for civil and statutory penalties must be brought within one year (60-514). Wight v. Agristor Leasing, 652 F.Supp. 1000, 1018 (1987).
17. Unconscionability under UCC, UCCC and hereunder contrasted; unconscionability under UCCC question for trier of fact. Topeka Datsun Motor Co. v. Stratton, 12 K.A.2d 95, 107, 736 P.2d 82 (1987).
18. Cited; punitive damages award for fraud, attorney fees award even though factor in considering punitive damages examined. Equitable Life Leasing Corp. v. Abbick, 243 K. 513, 515, 757 P.2d 304 (1988).
19. Application of act to direct mail business did not violate Art. 1, § 8 or first, fifth or 14 th amendments to U.S. Constitution; federal interest in preventing fraud does not preclude state law on subject. Conte & Co., Inc. v. Stephan, 713 F.Supp. 1382 (1989).
20. Considered in determining propriety of removal to federal court; preemption by federal law considered. State of Kan. ex rel. Stephan v. TWA, 730 F.Supp. 366 (1990).
21. Unconscionability under act is a question of law; appellate review of conclusions of law is unlimited. Farrell v. General Motors Corp., 249 K. 231, 238, 815 P.2d 538 (1991).
22. Franchisor did not violate KCPA in sale of gasoline to franchisee. Wayman v. Amoco Oil Co., 923 F.Supp. 1322, 1365 (1996).
23. Breeder's disclaimer of implied warranties in sale of diseased hogs not unconscionable. Schweizer v. DeKalb Swine Breeders, Inc., 954 F.Supp. 1495, 1502 (1997).
24. Issue concerning whether corporation engaged in unconscionable acts in consumer transaction precluded summary judgment. Alexander v. Certified Master Builder Corp., 43 F.Supp.2d 1242, 1251 (1999).
25. Issue concerning whether recreational vehicle dealer used false information in selling vehicle precluded summary judgment. Tufts v. Newmar Corp., 53 F.Supp.2d 1171, 1176 (1999).
26. Insuring against civil penalties associated with wrong doer's own actions violates state public policy. State Farm Fire & Cas. Co. v. Martinez, 26 K.A.2d 869, 871, 875, 995 P.2d 890 (2000).
27. In sting operation to buy drug Viagra via website from out of state doctor, held not unconscionable act within meaning of Kansas Consumer Protection Act. State ex rel. Stovall v. Confimed.com, 272 K. 1313, 38 P.3d 707 (2002).
28. Multiple violations of KCPA can be based on single telephone call if multiple violations were committed. Lowe v. Surpas Resource Corp., 253 F.Supp.2d 1209, 1227 (2003).
29. Issue concerning whether consumer plaintiff was aggrieved by alleged violations of KCPA precluded summary judgment. Caputo v. Professional Recovery Services, Inc., 261 F.Supp.2d 1249, 1260 (2003).
30. Fact issue concerning whether creditor should have known debtor would repay loan in full precludes summary judgment in KCPA action. In re Jones, 298 B.R. 451, 461 (2003).
31. Failure by auto finance company to include insurance payments in loan amount did not constitute per se violation of KCPA. In re Nave, 303 B.R. 223, 227 (2003).
32. Deceptive act to tell renters of storage space they had exclusive control of space when space had already been rented to someone else. Dodson v. U-Needa Self Storage, 32 K.A.2d 1213, 96 P.3d 667 (2004).
33. Summary judgment appropriate if there is no evidence of deceptive or unconscionable acts. Bomhoff v. Nelnet Loan Services, Inc., 279 K. 415, 109 P.3d 1241 (2005).
34. Directed verdict proper where court found defendant's actions unconscionable act. State ex rel. Kline v. Berry, 35 K.A.2d 896, 907, 137 P.3d 500 (2006).
35. No violation where plaintiffs acted as sophisticated buyers and being out of state does not equate with physical infirmity or illiteracy under subsection (b)(1). Crandall v. Grbic, 36 K.A.2d 179, 197, 138 P.3d 365 (2006).
36. A physician treating a patient may be found to have violated the Kansas Consumer Protection Act. Williamson v. Amrani, 283 K. 227, 244, 152 P.3d 60 (2007).
37. KCPA claims against towing company relating to price not preempted by federal law. State ex rel. Kline v. Transmasters Towing, 38 K.A.2d 537, 168 P.3d 60 (2007).
38. Elements of action under Kansas consumer protection act are identical to fraud actions except intent requirement. Thompson v. Jiffy Lube Intern., Inc., 505 F.Supp.2d 907, 932 (2007).
39. Cited; jury's finding of no negligence in medical malpractice action does not preclude claim under consumer protection act. Kelly v. VanZant, 287 K. 509, 520, 523, 524, 197 P.3d 803 (2008).
40. Summary judgment is appropriate on claims under K.S.A. 50-626 and 50-627 only if no evidence of deceptive or unconscionable acts. Osterhaus v. Toth, 39 K.A.2d 999, 1005, 187 P.3d 126 (2008).
41. Court finds the plaintiffs' claim under the KCPA plausible. Wenner v. Bank of America, NA, 637 F.Supp.2d 944 (D. Kan. 2009).
42. Seller's failure to provide manufacturer's statement of origin does not alone constitute deceptive or unconscionable act. Cornerstone Homes v. Skinner, 44 K.A.2d 88, 235 P.3d 494 (2010).
43. District court's finding of no unconscionability not error. Louisburg Building & Development Co. v. Albright, 45 K.A.2d 618, 252 P.3d 597 (2011).
44. Consumer held not an aggrieved party where there was an intervening event between seller's misrepresentation and consumer's damages. Schneider v. Liberty Asset Management, 45 K.A.2d 978, 251 P.3d 666 (2011).
45. Limitations of implied UCC warranties in a consumer transaction should be adjudicated under K.S.A. 50-639, rather than under K.S.A. 50-627. Golden v. Den-Mat Corporation, 47 K.A.2d 450, 276 P.3d 773 (2012).
46. The court held that there is no record of deceptive or unconscionable acts by the defendant funeral home and staff; summary judgment upheld. Dana v. Heartland Management Co., 48 K.A.2d 1048, 301 P.3d 772 (2013).