dissenting. The plaintiff knew the 1978 Chevrolet Corvette Indianapolis 500 Pace Car was a limited edition in short supply; she had unsuccessfully tried to secure one from another dealer. Knowing this, she entered into a written agreement with the defendant motor company. The agreement provided:
“Delivery is to be made Approx. - May, 1978. . . . It is agreed, however, that neither you [motor company] nor the Manufacturer will be liable for failure to effect delivery.”
The purchaser made a $1,000.00 down payment on the contract. On May 9, 1978, the motor company notified Paula Will-man, the plaintiff, they could not deliver such a car. A refund check for $1,000.00 was mailed to her and she cashed the check on May 12, 1978. This court holds the provision in the contract restricting liability for failure to deliver was proper and binding. *269It was not an unconscionable provision. The prospective purchaser was notified and she had her refund check in hand within the period of time allowed in the agreement for delivery - May, 1978.
I cannot agree with the court that even though the contract provision was proper the motor company committed an unconscionable act in this case.
K.S.A. 50-627 provides that an unconscionable act or practice violates the act whether it occurs before, during, or after the transaction. A “laundry list” of nonexclusive acts which are merely examples of those acts which might be determined unconscionable then follows. Some of these examples apply to actions before a transaction is entered into; some apply to actions taking place during the transaction; and some apply to actions occurring after the transaction has been completed. Professor Barkley Clark in The New Kansas Consumer Legislation, 42 J.B.A.K. 147, 189 (1973), points out:
“[S]ection 5 [K.S.A. 50-627] forbids unconscionable advertising techniques, contract terms, and debt collection practices, with a non-exclusive ‘laundry list’ of violations spelled out in the statute.”
In State ex rel. Miller v. Midwest Serv. Bur. of Topeka, Inc., 229 Kan. 322, 324, 623 P.2d 1343 (1981), this court, speaking through Mr. Justice Prager, divided this statutory “laundry list” of unconscionable acts into these same three categories: (1) Advertising techniques, (2) contract terms, and (3) debt collection practices. Advertising techniques refer to those acts occurring before the transaction. These are not in the present case. Contract terms refer to those matters occurring during the transaction and the court holds the contract was valid. Debt collection practices refer to actions occurring after the transaction and the down payment was returned without prior demand. This is not a debt collection case.
The failure of the salesman for the motor company to notify plaintiff occurred after the contract had been executed. The alleged statements of the Ewen brothers that the car would be delivered did not constitute an unconscionable act as contemplated by the statute.
The question of whether an act is unconscionable is a question for the trial court to decide. K.S.A. 50-627(b) so provides:
“(b) The unconscionability of an act or practice is a question for the court. In *270determining whether an act or practice is unconscionable, the court shall consider circumstances of which the supplier knew or had reason to know, such as, but not limited to the following:”
See also Meyer v. Diesel Equipment Co., Inc., 1 Kan. App. 2d 574, 578, 579, 570 P.2d 1374 (1977).
In the present case the trial court determined the acts were not unconscionable since they were not in contravention of the terms of the agreement. The trial court concluded the provision in the contract which relieved the dealer and manufacturer from liability for failure to deliver was valid, that the contract was terminated, that the down payment was refunded before the time limited for delivery of the car, and that the acts of the Ewens were not unconscionable within the meaning of the statute.
I agree with the trial court and believe that this court should not substitute its judgment for that of the trial court. I find no abuse of discretion. I cannot say that no reasonable judge knowing the facts of the case could hold the acts were not unconscionable under the provisions of the statute. That is the test for an abuse of judicial discretion.
The majority holding in this case opens the door to consumer protection act suits which were never contemplated by the act itself. The decision has the effect of adding to and changing the terms of a written contract.
It adds a provision that time is of the essence and, if the dealer cannot deliver the car previously allotted to the dealer, but not yet delivered by the manufacturer, the dealer must notify the consumer of this fact immediately and before attempting to locate the merchandise elsewhere.
If the purchaser had a cause of action it was for fraud and misrepresentation, not for violating the Consumer Protection Act. Therefore, I respectfully dissent.
Herd, J., joins the foregoing dissenting opinion.