§490:2-719  Contractual modification or
limitation of remedy.  (1)  Subject to the provisions of subsections (2)
and (3) of this section and of the preceding section on liquidation and
limitation of damages,



(a) The agreement may provide for remedies in addition
to or in substitution for those provided in this article and may limit or alter
the measure of damages recoverable under this article, as by limiting the
buyer's remedies to return of the goods and repayment of the price or to repair
and replacement of nonconforming goods or parts; and



(b) Resort to a remedy as provided is optional unless
the remedy is expressly agreed to be exclusive, in which case it is the sole
remedy.



(2)  Where circumstances cause an exclusive or
limited remedy to fail of its essential purpose, remedy may be had as provided
in this Act.



(3)  Consequential damages may be limited or
excluded unless the limitation or exclusion is unconscionable.  Limitation of
consequential damages for injury to the person in the case of consumer goods is
prima facie unconscionable but limitation of damages where the loss is
commercial is not. [L 1965, c 208, §2-719; HRS §490:2-719]



 



Case Notes



 



  Limited remedies have been held to fail when defects were
latent or when the party required to provide the remedy, causes it to fail.  56
H. 466, 540 P.2d 978.



  Manufacturer of pacemaker failed to rebut this section's
presumption of unconscionability.  74 H. 1, 837 P.2d 1273.