Will a Kansas court apply the law our contract chooses?
Generally yes, with a real public-policy exception. In Brenner v. Oppenheimer & Co. the Supreme Court said that "Where the parties to a contract have entered an agreement that incorporates a choice of law provision, Kansas courts generally effectuate the law chosen by the parties to control the agreement", and then stated the exception: "Where the application of the contracting parties' choice of law provision engenders a result contrary to public policy, Kansas courts will not apply another state's law." With no effective choice, Kansas remains a First Restatement state: in M & I Marshall & Ilsley Bank v. Higdon the Supreme Court described the approach. The forum first decides whether a question is one of substance or procedure and then selects the law of a jurisdiction based on the location of a certain event, citing Restatement (First) of Conflict of Laws § 332, "setting forth lex loci contractus, i.e., the law of the state where the contract is made governs", and said "Kansas is one of a minority of states that continues to follow the First Restatement." Higdon itself decided a property question and not a contract question - the conflict there "related to property ownership, rather than contracts", the account was opened in Missouri, and because the ownership interest "was created in Missouri, the First Restatement of Conflict of Laws favors application of Missouri law", so the garnishing creditor lost and the judgment below was reversed. Within the UCC, K.S.A. 84-1-301(a) lets the parties choose Kansas law or another state's or nation's law when the transaction bears a reasonable relation to Kansas and also to that other state or nation. That permission is qualified by the section itself: where one of eight listed provisions of the uniform commercial code specifies the applicable law, "that provision governs and a contrary agreement is effective only to the extent permitted by the law so specified" (K.S.A. 84-1-301(c)).
The trap
Two Kansas-specific dangers. First, the public-policy exception has teeth: Brenner itself refused to enforce a New York choice-of-law clause in a brokerage form agreement because Kansas public policy strongly favours the regulation of securities transactions for the protection of Kansas investors. A clause that would strip a Kansas statutory protection is the case the exception was written for. Second, for four kinds of contract there is no choice at all: K.S.A. 16-121(e) provides that notwithstanding any contractual provision to the contrary, Kansas law applies to and governs every contract to be performed in Kansas, and any provision conflicting with that subsection is void and unenforceable. "Contract" there is defined in K.S.A. 16-121(a)(2) as any construction contract, motor carrier transportation contract, dealer agreement or franchise agreement, each of which the section defines at length. The section also carries its own date limit - "This section applies only to indemnification provisions and additional insured provisions entered into after January 1, 2009" - and whether that sentence also limits subsection (e), which is about governing law and forum rather than indemnification, the words do not say.
15 authorities
The words that state the rule
Where the parties to a contract have entered an agreement that incorporates a choice of law provision, Kansas courts generally effectuate the law chosen by the parties to control the agreement.
The words that state the rule
As we stated in Davis , however, a well-recognized exception to the general rule allowing parties to incorporate their choice of law into the contract does exist. Where the application of the contracting parties’ choice of law provision engenders a result contrary to public policy, Kansas courts will not apply another state’s law.
The words that state the rule
Under this approach, the forum state first decides whether a given question is one of substance or procedure and then selects the law of a jurisdiction based on the location of a certain event. See Restatement (First) of Conflict of Laws § 332 (setting forth lex loci contractus, i.e., the law of the state where the contract is made governs); § 378 (tort claims governed by law of the state where injury occurred). Kansas is one of a minority of states that continues to follow the First Restatement.
- statuteK.S.A. 84-1-301enactment date not established
The words that state the rule
Except as otherwise provided in this section, when a transaction bears reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
Notwithstanding any contractual provision to the contrary, the laws of the state of Kansas shall apply to and govern every contract to be performed in this state. Any litigation, arbitration or other dispute resolution proceeding arising from such contract shall be conducted in this state. Any provision, covenant or clause in such contract that conflicts with the provisions of this subsection shall be void and unenforceable.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
"Contract" means any construction contract, motor carrier transportation contract, dealer agreement or franchise agreement.
The words that state the rule
Because Kansas’ public policy strongly favors the regulation of securities transactions for the protection of Kansas investors, we hold the choice of law provision to be invalid on public policy *549 grounds. Thus, we overturn the district court’s decision and hold die choice of law provision in Oppenheimer’s standard form agreement invalid.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
"Construction contract" means an agreement for the design, construction, alteration, renovation, repair or maintenance of a building, structure, highway, road, bridge, water line, sewer line, oil line, gas line, appurtenance or other improvement to real property, including any moving, demolition or excavation, except that no deed, lease, easement, license or other instrument granting an interest in or the right to possess property shall be deemed to be a construction contract even if the instrument includes the right to design, construct, alter, renovate, repair or maintain improvements on such real property.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(4) "Dealership agreement" means an oral or written agreement of definite or indefinite duration between an equipment manufacturer or service provider and an equipment or service dealer which provides for the rights and obligations of the parties with respect to the purchase or sale of such equipment or services.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(5) "Franchise agreement" means any contract or franchise or any other terminology used to describe the contractual relationship between manufacturers, distributors and dealers, by which: (A) A right is granted one party to engage in the business of offering, selling or otherwise distributing goods or services under a marketing plan or system prescribed in substantial part by the other party, and in which there is a community of interest in the marketing of goods or services at wholesale or retail, by lease, agreement or otherwise; and (B) the operation of the grantee's business pursuant to such agreement is substantially associated with the grantor's trademark, service mark, trade name, logotype, advertising or other commercial symbol designating the grantor or an affiliate of the grantor.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(7) "Motor carrier transportation contract" means, with respect to a motor carrier as defined in 49 C.F.R. § 390.5, as in effect on July 1, 2017, or any later version as established in rules and regulations adopted by the state corporation commission, a contract, agreement or understanding covering: (A) The transportation of property by a motor carrier; (B) the entrance on property by the motor carrier for the purpose of loading, unloading or transporting property; or (C) a service incidental to activity described in subparagraph (A) or (B) including, but not limited to, storage of property. "Motor carrier transportation contract" shall not include the uniform intermodal interchange and facilities access agreement administered by the intermodal association of North America or other agreements providing for the interchange, use or possession of intermodal chassis, containers or other intermodal equipment.
- statuteK.S.A. 84-1-301enactment date not established
The words that state the rule
(c) If one of the following provisions of the uniform commercial code specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law so specified: (1) K.S.A. 84-2-402, and amendments thereto; (2) K.S.A. 84-2a-105 and 84-2a-106, and amendments thereto; (3) K.S.A. 84-4-102, and amendments thereto; (4) K.S.A. 84-4a-507, and amendments thereto; (5) K.S.A. 84-5-116, and amendments thereto; (6) K.S.A. 84-6-103, and amendments thereto; (7) K.S.A. 84-8-110, and amendments thereto; (8) K.S.A. 2025 Supp. 84-9-301 through 84-9-307, and amendments thereto.
- statuteK.S.A. 16-121enactment date not established
The words that state the rule
(f) This section applies only to indemnification provisions and additional insured provisions entered into after January 1, 2009.
The words that state the rule
This issue related to property ownership, rather than contracts, when resolving a conflict-of-laws question.
The words that state the rule
Because the ownership interest was created in Missouri, the First Restatement of Conflict of Laws favors application of Missouri law. And because the Higdons' account is considered a tenancy by the entirety under Missouri law, M & I Bank cannot use its judgment against Kevin to garnish the account.
“Defective” means that reading found something to correct. What you are reading is the rule as it stands after that reading.