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Kansas Statutes Annotated

K.S.A. § 84-2-609 (2026)

Right to adequate assurance of performance

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84-2-609. Right to adequate assurance of performance. (1) A contract for sale imposes an obligation on each party that the other's expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.

(2) Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.

(3) Acceptance of any improper delivery or payment does not prejudice the aggrieved party's right to demand adequate assurance of future performance.

(4) After receipt of a justified demand failure to provide within a reasonable time not exceeding thirty days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.

History: L. 1965, ch. 564, § 89; January 1, 1966.

KANSAS COMMENT, 1996

1. This section is an important Code innovation, and is intended to protect one contracting party when the other party's willingness or ability to perform has declined materially between the time of contracting and the time of performance. The approach is essentially a positive one, aimed at saving the bargain rather than creating a lawsuit. This section makes it possible to respond to questions about the other party's forthcoming performance when the other party has not yet repudiated and the provisions of the next section are not available. However, the section has its own uncertainties in application that can limit its usefulness. See James J. White & Robert S. Summers, 1 Uniform Commercial Code 286 (4th ed. Practitioner Treatise Series 1995) ("section 2-609 sometimes does little more than extend the minuet between the weaseling party and the contractual counterpart and add a couple of new moves").

2. Subsection (1) provides the aggrieved party with the right to demand adequate assurances of performance from the other party when reasonable grounds for insecurity arise. The party demanding assurances may, if commercially reasonable, also suspend its own performance. The demand for assurances must be in writing, although courts construe that requirement liberally. See LNS Inv. Co. v. Phillips 66 Co., 731 F. Supp. 1484 (D. Kan. 1990) (citing AMF, Inc. v. McDonald's Corp., 536 F.2d 1167 (7th Cir. 1976)). What constitutes reasonable grounds for insecurity and what assurances may be demanded are questions of fact. Official Comments 3 and 4 provide examples and guidance. See also 84-2-210(5) (delegation of performance creates reasonable grounds for insecurity). For recent cases applying these requirements, see Smyers v. Quartz Work Corp., 880 F. Supp. 1425 (D. Kan. 1995); LNS Inv. Co. v. Phillips 66 Co., supra. Subsection (2) provides that commercial standards govern these questions between merchants. Note that a party that is already in breach may not rely on 84-2-609 and demand assurances. See Hope's Architectural Prod., Inc. v. Lundy's Constr., Inc., 781 F. Supp. 711 (D. Kan. 1991), aff'd mem., 1 F.3d 1249 (10th Cir. 1993).

3. Failure to provide adequate assurances after proper demand and in a reasonable time is a repudiation of the contract under subsection (4), and opens the way to all remedies for breach. A party that makes unreasonable demands for assurances, however, may itself be found to have breached or repudiated the contract. Hope's Architectural Prod., Inc. v. Lundy's Constr., Inc., supra.

Law Review and Bar Journal References:

Anticipatory breach and bankruptcy, Richard F. Broude, 17 K.L.R. 1, 12, 13, 14, 15 (1968).

CASE ANNOTATIONS

1. Failure of company to provide either quantity or quality of goods called for entitled buyer to suspend performance. LNS Inv. Co., Inc. v. Phillips 66 Co., 731 F. Supp. 1484 (1990).

2. Demand for assurances by seller overly broad and unreasonable. Hope's Architectural v. Lundy's Const., Inc., 781 F. Supp. 711, 714, 715 (1992).

3. When subcontractor failed to supply affidavits, considered repudiation with UCC remedies available. In Re John Gruss Co., Inc., 22 B.R. 236, 237, 242 (1982).

4. Whether buyer's failure to give assurances of payment after nonpayment constituted breach of contract examined. Smyers v. Quartz Works Corp., 880 F. Supp. 1425, 1432 (1995).

5. Statute inapplicable if the parties' agreement as to pilot project goods and non-pilot project goods involved separate contracts. School-Link Technologies v. Applied Resources, 471 F. Supp. 2d 1101, 1118 (D. Kan. 2007).

6. Three factors to suspend performance under Kansas law discussed and applied. GFSI, Inc. v. J-Loong Trading, Ltd., 505 F. Supp. 2d 935, 945 (2007).


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Notes of Decisions
Cited in 7 cases, 1982–2007 · leading case: Hope's Architectural Prods., Inc. v. Lundy's Constr., Inc., 781 F. Supp. 711 (D. Kan. 1991).
Sort: Relevance Newest Treatment
Hope's Architectural Prods., Inc. v. Lundy's Constr., Inc., 781 F. Supp. 711 (D. Kan. 1991). · cites it 8× “Two issues emerged as pivotal to the resolution of this case: (1) when was delivery of the windows due, and (2) if delivery was late, could Hope’s lawfully suspend performance and demand certain assurances, (including ultimately, a demand for prepayment in full) that Lundy’s…”
Sch.-Link Tech., Inc. v. Applied Resources, Inc., 471 F. Supp. 2d 1101 (D. Kan. 2007). · cites it 4× “Here, the fundamental flaw in both parties’ summary judgment arguments on this issue is that neither has addressed whether, under the legal standards set forth in the Kansas UCC, their agreement relating to the non-NYCDOE goods and their agreement relating to the NYCDOE…”
Smyers v. Quartz Works Corp., 880 F. Supp. 1425 (D. Kan. 1995). · cites it 8× “K.S.A. § 84-2-609. If assurance is not received in a reasonable time, the party demanding such assurance may suspend performance.”
Aero Consulting Corp. v. Cessna Aircraft Co., 867 F. Supp. 1480 (D. Kan. 1994). · cites it 3× “Section 84-2-609 allows a party in certain circumstances to suspend performance if it has not received adequate assurance of performance from the other party. Because it was not raised, the court concludes that any reliance upon that provision by the parties has been waived.”
LNS Inv. Co., Inc. v. Phillips 66 Co., 731 F. Supp. 1484 (D. Kan. 1990). · cites it 5× “K.S.A. 84-2-609. To suspend its performance pursuant to this section, defendant must (1) have had reasonable grounds for insecurity regarding plaintiff’s performance under the contract, (2) have demanded in writing adequate assurance of plaintiff’s future performance and (3)…”
John Gruss Co. v. Paragon Energy Corp. (In re John Gruss Co.), 22 B.R. 236 (Bankr. D. Kan. 1982). “This was Paragon’s right, pursuant to K.S.A. 84-2-609, which states in pertinent part: “Right to adequate assurance of performance.”
GFSI, INC. v. J-Loong Trading, Ltd., 505 F. Supp. 2d 935 (D. Kan. 2007). · cites it 2× “K.S.A. § 84-2-609 provides as follows: (1) A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired.”
— K.S.A. § 84-2-609(2) — 1 case
Hope's Architectural Prods., Inc. v. Lundy's Constr., Inc., 781 F. Supp. 711 (D. Kan. 1991). “Two issues emerged as pivotal to the resolution of this case: (1) when was delivery of the windows due, and (2) if delivery was late, could Hope’s lawfully suspend performance and demand certain assurances, (including ultimately, a demand for prepayment in full) that Lundy’s…”
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