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84-2-105. Definitions: Transferability; "goods"; "future" goods; "lot"; "commercial unit". (1) "Goods" means all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (article 8) and things in action. "Goods" also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty (section 84-2-107).

(2) Goods must be both existing and identified before any interest in them can pass. Goods which are not both existing and identified are "future" goods. A purported present sale of future goods or of any interest therein operates as a contract to sell.

(3) There may be a sale of a part interest in existing identified goods.

(4) An undivided share in an identified bulk of fungible goods is sufficiently identified to be sold although the quantity of the bulk is not determined. Any agreed proportion of such a bulk or any quantity thereof agreed upon by number, weight or other measure may to the extent of the seller's interest in the bulk be sold to the buyer who then becomes an owner in common.

(5) "Lot" means a parcel or a single article which is the subject matter of a separate sale or delivery, whether or not it is sufficient to perform the contract.

(6) "Commercial unit" means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use. A commercial unit may be a single article (as a machine) or a set of articles (as a suite of furniture or an assortment of sizes) or a quantity (as a bale, gross, or carload) or any other unit treated in use or in the relevant market as a single whole.

History: L. 1965, ch. 564, § 22; January 1, 1966.

KANSAS COMMENT, 1996

1. Subsection (1) defines goods as all things movable at the time they are identified to the contract, other than any money to be paid, investment securities, and choses in action. See Kansas Municipal Gas Agency v. Vesta Energy Co., 843 F. Supp. 1401 (D. Kan. 1994) (natural gas is good). The subsection specifically includes the unborn young of animals as goods. Crops and other things to be severed from real estate are addressed in section 84-2-107. The Kansas Court of Appeals has held that at least certain types of computer software are goods. Systems Design & Mgmt. Info., Inc. v. Kansas City Post Office Employees Credit Union, 14 K.A.2d 266, 788 P.2d 878 (1990). Article 2 applies to contracts for the sale of goods and the sale of future goods, as well as the present sale of existing goods. It applies to the sale of used goods as well as new goods. International Petroleum Serv., Inc. v. S&N Well Serv., Inc., 230 K. 452, 639 P.2d 29 (1982).

2. Because Article 2 applies only to transactions in goods (84-2-102), it does not apply to the sale of real estate. Nor does it apply to construction contracts, employment contracts, or other contracts for the provision of services. If a contract provides both for the sale of goods and the provision of services, Article 2 does not govern if the "predominant factor" or "thrust" of the contract is the provision of services. Care Display, Inc. v. Didde-Glaser, Inc., 225 K. 232, 589 P.2d 599 (1979). If a contract involves services only incidentally, however, Article 2 still controls. Linscott v. Smith, 3 K.A.2d 1, 587 P.2d 1271 (1978) (contract for the sale of a mobile home that the seller was to deliver and set up subject to Article 2). On occasion courts have split mixed contracts and applied Article 2 only to the goods portion. Franklin v. Northwest Drilling Co., 215 Kan. 304, 524 P.2d 1194 (1974).

Law Review and Bar Journal References:

"Remedies for Breach of Sales Contract Under the Code," Keith Hey, 7 W.L.J. 35 (1967).

"Beefing Up Product Warranties: A New Dimension In Consumer Protection," Barkley Clark, Michael J. Davis, 23 K.L.R. 567, 582 (1975).

"The Uniform Consumer Credit Code and Real Estate Financing—A Square Peg in a Round Hole," Thomas L. Griswold, 28 K.L.R. 601, 612 (1980).

"Express Contracts of Indemnity," Richard J. Lind, 65 J.K.B.A. No. 7, 36 (1996).

"Electronic Commerce in Kansas: Contract Formation and Formalities Under Article 2," Christopher R. Drahozal, 68 J.K.B.A. No. 5, 22 (1999).

"The Untapped Potential of the Kansas Consumer Protection Act," Amy Fellows, 74 J.K.B.A. No. 4, 24 (2005).

Attorney General's Opinions:

Cereal malt beverages; off-premises sales. 87-1.

CASE ANNOTATIONS

1. Mentioned in finding that wheat included in definition of goods hereunder. Decatur Cooperative Association v. Urban, 219 K. 171, 175, 547 P.2d 323.

2. Mentioned; advertising contract limiting company liability held not unconscionable. Wille v. Southwestern Bell Tel. Co., 219 K. 755, 757, 549 P.2d 903.

3. Applied; contract principally for rendition of services not within purview of 84-2-201; damage judgment affirmed. Care Display, Inc. v. Didde-Glaser, Inc., 225 K. 232, 238, 589 P.2d 599.

4. Acceptance of goods by buyer; defendant not entitled to cure nonconformance; defects; implied warranty action proper. Linscott v. Smith, 3 K.A.2d 1, 587 P.2d 1271.

5. Rights of parties arising out of aborted sale of motor vehicle considered and determined. Stanturf v. Quality Dodge, Inc., 3 K.A.2d 485, 486, 596 P.2d 1247.

6. Title to goods cannot pass under contract for sale prior to identification to the contract. Reeves v. Pillsbury Co., 229 K. 423, 426, 427, 428, 625 P.2d 440.

7. Directed verdict for defendants erroneous; UCC applicable to transaction involving irrigation system with defective hose not manufactured by dealer. Stair v. Gaylord, 232 K. 765, 770, 659 P.2d 178 (1983).

8. Cited; choice of law question is whether transaction between parties bears appropriate relation to this state. Owens-Corning Fiberglas v. Sonic Dev. Corp., 546 F.Supp. 533, 540 (1982).

9. Cited; where suit involves sale of goods rather than rental, four-year limitation applicable. Transamerica Oil Corp. v. Lynes, Inc. 723 F.2d 758, 762 (1983).

10. Severed crops are farm products, not "growing crops"; if in farm debtor's possession, financing statement needs no property description. In re Roberts, 38 B.R. 128, 129, 132 (1984).

11. Whether issue of breach of duty of good faith by supplier in negotiating final contract precluded summary judgment examined. Kansas Mun. Gas Agency v. Vesta Energy Co., Inc., 840 F.Supp. 814, 820 (1993).

12. Whether natural gas is goods under KUCC examined. Kansas Mun. Gas Agency v. Vesta Energy Co., Inc., 843 F.Supp. 1401, 1407 (1994).

13. Whether holder in due course immune to defense that transaction is illegal and nullified by other law examined. U.S.D. No. 207 v. Northland Nat'l Bank, 20 K.A.2d 321, 331, 887 P.2d 1138 (1994).

14. Computer software considered "goods" even though incidental services are provided. Inter-Americas Ins. Corp. v. Imaging Solutions Co., 39 Kan. App. 2d 875, 885, 185 P.3d 963 (2008).


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