Printable Format84-2-616. Procedure on notice claiming excuse. (1) Where the buyer receives notification of a material or indefinite delay or an allocation justified under the preceding section he may by written notification to the seller as to any delivery concerned, and where the prospective deficiency substantially impairs the value of the whole contract under the provisions of this article relating to breach of installment contracts (section 84-2-612), then also as to the whole,
(a) terminate and thereby discharge any unexecuted portion of the contract; or
(b) modify the contract by agreeing to take his available quota in substitution.
(2) If after receipt of such notification from the seller the buyer fails so to modify the contract within a reasonable time not exceeding thirty days the contract lapses with respect to any deliveries affected.
(3) The provisions of this section may not be negated by agreement except insofar as the seller has assumed a greater obligation under the preceding section.
History: L. 1965, ch. 564, ยง 96; January 1, 1966.
KANSAS COMMENT, 1996
This section complements section 84-2-615 by specifying the actions a buyer may take upon receiving notice under that section that delivery will be delayed or that the seller is allocating production. This section assumes that the seller's failure to perform is excused under 84-2-615; if the seller cannot make out an excuse under 84-2-615, this section does not apply. Under subsection (1), the buyer may terminate the contract or may modify the contract by agreeing to take the seller's suggested allocation. Under subsection (2), if the buyer does not notify the seller of its intentions within a reasonable time (not to exceed thirty days), the contract automatically terminates. Subsection (3) denies effect to any provision of a sales contract that purports to negate the rights of the buyer under this section.
Law Review and Bar Journal References:
"Electronic Commerce in Kansas: Contract Formation and Formalities Under Article 2," Christopher R. Drahozal, 68 J.K.B.A. No. 5, 22 (1999).