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84-2a-308. Special rights of creditors. (1) A creditor of a lessor in possession of goods subject to a lease contract may treat the lease contract as void if as against the creditor retention of possession by the lessor is fraudulent under any statute or rule of law, but retention of possession in good faith and current course of trade by the lessor for a commercially reasonable time after the lease contract becomes enforceable is not fraudulent.

(2) Nothing in this article impairs the rights of creditors of a lessor if the lease contract (a) becomes enforceable, not in current course of trade but in satisfaction of or as security for a preexisting claim for money, security, or the like, and (b) is made under circumstances which under any statute or rule of law apart from this article would constitute the transaction a fraudulent transfer or voidable preference.

(3) A creditor of a seller may treat a sale or an identification of goods to a contract for sale as void if as against the creditor retention of possession by the seller is fraudulent under any statute or rule of law, but retention of possession of the goods pursuant to a lease contract entered into by the seller as lessee and the buyer as lessor in connection with the sale or identification of the goods is not fraudulent if the buyer bought for value and in good faith.

History: L. 1991, ch. 295, ยง 38; February 1, 1992.

KANSAS COMMENT, 1996

Subsections (1) and (2), which are based on sections 84-2-402(3) and (3)(b), preserve non-Code law on the fraudulent retention of possession (see K.S.A. 33-103), fraudulent transfers, and voidable preferences. Note that, like section 84-2-402(2), the second clause of subsection (1) makes clear that it is not fraudulent for a lessor to retain possession in good faith and current course of trade for a commercially reasonable time after the lease contract becomes enforceable. Subsection (3) states a new rule for sale-leaseback transactions that overrides the application of section 84-2-402(2) to such transactions. Under this subsection, a sale-leaseback transaction is not fraudulent if the buyer bought for value and in good faith.


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