Exemption Clauses Research Articles

Assessing the implications of short-term exemption clauses for insurers in Chinese fishery mutual insurance contracts

The exemption clauses in China’s Insurance Law delineate the scope of obligations, performance standards, and certification requirements pertaining to fishery mutual insurance and supplementary coverage. However, the legal validity of time-limited exemption clauses remains contentious in Chinese legal theory, with judicial practice evidencing inconsistent interpretation standards. This paper argues that the application of such clauses enables insurers to potentially restrict or deny liability to some extent, promoting moral hazard and violating public order and good customs. Through analysing current theories and judicial judgments, the paper examines threats and rationale underlying the incorporation of these clauses in fishery mutual insurance policies. It contends that time-limited exemption clauses essentially function as implicit coverage exemptions and should, therefore, be deemed invalid, precluding insurers from refusing claims based on time limits. The paper concludes by recommending insurers fully disclose the liability time restrictions imposed by this clause when formulating contracts to ensure policyholder awareness.

Copyright Infringement and Exemption Clause on Indian Copyright Law: Issues and Challenges

Copyright Infringement and Exemption Clause on Indian Copyright Law: Issues and Challenges

Unauthorized Withdrawal from ATM/POS: Compounding Customers’ Nightmares in the Banking Sector of Nigeria

In recent times, a lot of bank customers have experienced a sudden disappearance of funds in their bank accounts and this has been a source of concern to the stakeholders in the banking sector of Nigeria. These are unauthorized transactions which occur without the consent or authorization from the customers. The unauthorized transactions may be in the form of illegal or unauthorized withdrawals by criminals or indiscriminate or multiple deductions or debits by the banks claiming to be ATM/POS transaction charges. In some cases, the entire life savings of a customer may be siphoned without any trace of the source of the illegal withdrawals. This paper examines these cases of unauthorized transactions in the accounts of bank customers and argues that appropriate steps should be taken by the banks to prevent unauthorized transactions in the customers’ accounts rather than rely an exemption clause which may not avail them when they are negligent. The paper concludes that the customers also have a role to play to guard against unauthorized withdrawals in their accounts, and recommends among others, that any customer who discovers any unauthorized transaction in his or her account should immediately report to the bank for appropriate action to be taken.

Reflection on the First Offense Exemption Clause of the Crime of Tax Evasion in China

The first offense exemption clause of the Crime of Tax Evasion in China embodies the normative purposes of both guaranteeing the national tax revenue, maintaining the order of tax collection and administration, and displaying the modesty of criminal law, and setting up the “Golden Bridge” for the actor to retreat. The provisions of the first offense exemption clause only apply to the taxpayers who have evaded a large amount of taxes but not to the withholding agent. This not only has legal basis, but also in line with the needs of reality. The first offense exemption clause can only be applied to taxpayers if they have committed tax evasion under Paragraph 1 of Article 201 of the Criminal Law of the People's Republic of China and they have accepted the orders of the tax authorities for correction and administrative punishment, moreover, the extent of back-payment of taxes, late fees and fines, and the subjective attitude of accepting administrative punishment will affect the application of the exemption clause for first-time offenders. The first offense exemption clause of the Crime of Tax Evasion is faced with loose applicable conditions, which does not fully reflect Criminal Policy of Temper Justice with Mercy, which shows that the administrative power has arrogated over the judicial power and gradually evolved into the applicable predicament of a “Get-out-of-jail-free card”, in order to solve the dilemma of its application, it is necessary to improve its application conditions, increase the amount of tax evasion in different proportion, clarify the powers of various organs, and ensure the seamless connection of the two-way linking mechanism between administrative law enforcement and criminal justice, at the same time, further normative interpretation and in-depth excavation of the first offense exemption clause of the Crime of Tax Evasion of the legal basis to solve practical problems.

Exemption clauses: a comparative review of the Unidroit Principles and the Qatar Civil Code

Abstract This article deals with exemption clauses and specifically with respect to their definition, types, and validity. It tackles clauses that exempt the obligor from liability for his or his employees’ non-performance. The article presents and analyses the legal provisions on exemption clauses under the Unidroit Principles and the Qatar Civil Code and discusses the case law made under these legislative instruments. In addition, the article draws a comparison between the legal texts at issue in order to conclude with a solution that best serves the parties’ interests.

Abortion restrictions: the case for conscientious non-compliance on the part of providers

This paper offers a qualified defence of physician non-compliance with antiabortion legislation in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. The paper examines...

Contesting the Constitution: Congress Debates the Missouri Crisis, 1819–1821 ed. by William S. Belko, and: A Fire Bell in the Past: The Missouri Crisis at 200. Volume 1: Western Slavery, National Impasse ed. by Jeffrey L. Pasley and John Craig Hammond

Reviewed by: Contesting the Constitution: Congress Debates the Missouri Crisis, 1819–1821 ed. by William S. Belko, and: A Fire Bell in the Past: The Missouri Crisis at 200. Volume 1: Western Slavery, National Impasse ed. by Jeffrey L. Pasley and John Craig Hammond Stuart Leibiger Contesting the Constitution: Congress Debates the Missouri Crisis, 1819–1821. Edited by William S. Belko. Studies in Constitutional Democracy. (Columbia: University of Missouri Press, 2021. Pp. x, 225. $40.00, ISBN 978-0-8262-2228-2.) A Fire Bell in the Past: The Missouri Crisis at 200. Volume 1: Western Slavery, National Impasse. Edited by Jeffrey L. Pasley and John Craig Hammond. Studies in Constitutional Democracy. (Columbia: University of Missouri Press, 2021. Pp. xxvi, 414. $45.00, ISBN 978-0-8262-2231-2.) Two new books in the University of Missouri Press series Studies in Constitutional Democracy mark the recent bicentennial of the Missouri Compromise. Contesting the Constitution: Congress Debates the Missouri Crisis, 1819–1821, edited by William S. Belko, executive director of the Missouri Humanities Council, closely examines congressional debates over the settlement. A Fire Bell in the Past: The Missouri Crisis at 200, Volume 1: Western Slavery, National Impasse, edited by Jeffrey L. Pasley, a professor of history at the University of Missouri, and John Craig Hammond, an associate professor of history at Penn State University–New Kensington, explores the Missouri crisis in a context broader than the narrow congressional milieu in which it is usually studied. Between 1819 and 1821, a controversy over Missouri's admission to the Union deadlocked Congress. Antislavery restrictionists in the House of Representatives passed the Tallmadge Amendment, prohibiting Missouri's admission as a slave state, but proslavery antirestrictionists blocked the measure in the Senate. After a one-year deadlock, Congress admitted Missouri as a slave state. The settlement also provided that the remainder of the Louisiana Purchase north of latitude 36°30′ would be forever free of slavery. Later in 1820, controversy resurfaced when a clause in Missouri's state constitution banned free people of color from entering the state. A congressional resolution stating that the clause in question could not be used to violate the privileges and immunities clause of the federal Constitution resolved this second dispute, despite Missouri's continued refusal to admit free Black people. Each chapter of Contesting the Constitution perceptively analyzes how a specific clause in the U.S. Constitution was interpreted by restrictionists and antirestrictionists in the congressional debates over Missouri's bid for statehood. Christopher Childers's essay discusses how Missouri's ban on free Black people entering the state sparked a disagreement over the meaning of the privileges and immunities clause. Restrictionists argued that by denying free citizens of color access to the state, Missouri's constitution violated the clause in Article IV, Section 2, that states that "citizens of each state shall be entitled to all privileges and immunities of citizens of the several states" (Belko, p. 31). Antirestrictionists countered that Missouri's constitution did not violate the federal Constitution because Black people were not in fact U.S. citizens. A chapter by John Eastman (who supported Donald Trump's effort to overturn the 2020 presidential election) examines the debate over the guarantee clause. Restrictionists insisted that Article IV, Section 4, of the Constitution, which guarantees "to every State in this Union a Republican Form of Government," required Congress to deny Missouri's admission to the Union as a [End Page 763] slave state, because slavery clearly violated the principles of republicanism (Belko, p. 51). Antirestrictionists answered that the treaty between the United States and France creating the Louisiana Territory ensured that new states carved out of that territory must enter the Union on the same terms as the original states, including the option to have slavery. Chapter 8, one of three chapters by William S. Belko, illustrates how restrictionists refuted this claim by maintaining that the president and the Senate could not use a treaty to usurp the power of Congress to regulate the territories and admit new states. As John R. Van Atta's essay demonstrates, southern states vigorously denied that Congress possessed the power to prohibit slavery in new states (as opposed to in...

Practical aspects of chimeric antigen receptor T-cell administration: From commercial to point-of-care manufacturing

Chimeric antigen receptor T-cells targeting the CD19 antigen have achieved impressive results in patients with relapsed/refractory (R/R) B-cell malignancies, leading to their approval in the European Union and other jurisdictions. In Spain, the 100% academic anti-CD19 CART-cell product varnimcabtagene autoleucel (var-cel, ARI-0001 cells) has been extraordinarily approved under the Hospital Exemption clause for the treatment of patients older than 25 years of age with R/R acute lymphoblastic leukaemia. Var-cel has also been granted PRIority MEdicines designation by the European Medicines Agency for the same indication. In this review we reveal some practical aspects related to the preparation and administration of academic point-of-care CART-cell products, using var-cel as an example, and put them into the context of commercial products.

REVISITING THE INTERPRETATION OF EXEMPTION CLAUSES Drifters Adventure Tours CC v Hircock 2007 2 SA 83 (SCA)

The influence of the Constitution on the enforceability of exemption clauses contained in contracts has received some attention in the recent jurisprudence and literature on the subject. (Tladi “One Step Forward Two Steps Back for Constitutionalising the Common Law: Afrox Healthcare v Strydom” 2002 2 SA Public Law 473-478; Young “Indemnification Clauses in Multiple Contract Transactions” March 2002 IBL 115-118. Van der Heever “Exclusion of Liability in Private Hospitals” April 2003 De Rebus 47-48; Richardson “Managing HIV/AIDS Impact No Easy Task; Interpreting an Indemnity Clause: Insurance” Jun-Jul 2005 Executive Business Brief 28-29; Hopkins “Exemption Clauses in Contract” June 2007 De Rebus 22-25; and Visser “Drifters Adventures Tours CC v Hircock [2006] SCA 130 (RSA)”2007 1 De Jure 188-193.) In particular, decisions of the Supreme Court of Appeal, the traditional upper custodian of the common law, have drawn much interest and criticism for their apparent failure to approach contractual issues from a constitutional perspective. The recent case of Drifters Adventures Tours CC v Hircock (2007 2 SA 83) provides a further opportunity to obtain some insight into that court’s approach in interpreting exemption clauses in contracts. This note endeavours to analyse the court’s approach and decision in the Drifter’s case against the background of the well-established traditional approach to contractual interpretation as well as recent cases which have raised the role of the Constitution with respect to exemption clauses. A further objective of this paper is to consider the impact of the court’s decisions on the wording which drafters of such clauses choose to use when seeking to protect their clients or themselves.

Exemption clauses in the modern age: do they result in an “institution in crisis”?

Exemption clauses are a common feature of modern trusts. These seek to exempt trustees from liability for breach of trust, or to indemnify them from the trust assets for personal liability for breach. Contract law has long featured a rule that exemption clauses cannot protect a person from liability arising from the person’s own fraud.2 It cannot safely be assumed that rules of contract will be applied to trusts and, if they are, how they might be adapted to the different trust context. The rule in contract is that a person’s own fraud cannot be excluded. Fraud is capable of different meanings in different contexts. Equity has long treated conduct falling short of actual fraud to be constructive fraud.3 There was uncertainty as to whether this special meaning would apply to trust exemption clauses. If fraud has the same meaning as in a contractual setting, then exemption...

Analysis on the Responsibility and Exemption Clause of COLREG Rule 2

Analysis on the Responsibility and Exemption Clause of COLREG Rule 2

Judicial Approaches to the Criminalisation of Marital Rape

In India, as in different traditional cultures, women have been and still are treated in a number of inhumane ways. They are controlled, prone to assault and abuse and risk rape not only outside but within their own homes. Moreover, marital rape is not considered a crime in India. The article attempts to analyse Indian rape laws and to show that exemption for marital rape does not align with the fundamental principles of justice and equality, which is the basic feature of the Indian Constitution. The article argues that the exemption clause should be repealed, and marital rape be criminalised. The article further discusses the approach of the Indian judiciary towards the issue of criminalisation of marital rape.

Application of Muslim Personal Law in the Kenyan Courts: Problems and Prospects

Abstract This paper examines the application of Muslim personal law in the Kenyan courts. It addresses jurisprudential issues which engage conventional government judges, magistrates and kadhis (Islamic judges). The interaction between the conventional and religious courts has paved the way for a conflict of laws on matters related to Muslim personal law and has led to an interesting scenario of constructive conversation and criticism that in turn has set the stage for an emerging comparative jurisprudence within a pluralistic society. Factors which contribute toward conflicts include wholesale adoption of Common Law and Islamic law notions and exemption clauses in statutes. To overcome the challenges facing the kadhis’ courts and the application of Muslim personal law in Kenya, the paper proposes the adoption of a progressive comparative jurisprudential approach in responding to emerging legal issues facing Muslim litigants in the Kenyan courts.

COMPATIBILITY OF INDONESIA’S REGULATIONS ON SUBMARINE CABLE WITH UNCLOS 1982

The special status of Exclusive Economic Zone of Indonesia (EEZ) raises a problem particularly related to the submarine cable laying activities. This study aims to analyze the compatibility of the marine location permit instrument under Law No. 32/2014 on Marine Affairs and Government Regulation No. 32/2019 on National Marine Spatial Planning (MSP) with UNCLOS 1982 in regulating submarine cable in the EEZ. This normative research shows that the marine location permit instrument regulating submarine cable laying activity in EEZ is incompatible with the provisions of UNCLOS 1982. In contrast, the MSP instrument is compatible and a suitable instrument to protect Indonesia's interests in the EEZ. The Government of Indonesia is advised to regulate an exemption clause for submarine cable installation in EEZ in the Draft of Government Regulation on Marine Location Permit; formulate and formalize ‘prior notification’ procedures by other countries in submarine cable laying activities in EEZ into laws and regulations; and publish the Government Regulation on Marine Spatial Planning and its annexes through the channels of relevant international organizations such as International Cable Protection Committee (ICPC) and Intergovernmental Oceanographic Commission (IOC).

Building Renovation Passports in Spain: Integrating exiting instruments for building conservation, renovation and heritage protection

This article discusses how the existing regulatory, informative, and financial instruments for the renovation of existing building stock in Spain could be combined to produce a national ‘Building Renovation Passport’, that is expected to be introduced by the European Commission in 2023. This work also argues in favour of integrating the existing tools for the conservation of heritage buildings in the Passport, and surveys current mechanisms used as ‘interfaces’ between heritage conservation and broader, building stock conservation-related instruments that are already in use and could be helpful in the aforementioned integration. The latter would allow all stakeholders to identify those improvement opportunities that are compatible with heritage protection and plan for the staged conservation, restoration, and adaptation of any heritage building, reducing transaction costs and enhancing conservation by reducing the use of existing exemption clauses from compliance with technical regulations. The division of competences between government levels, a risk of excessive technical complexity, and the need to take the urban scale into consideration will emerge as the main challenges for an initiative that could be adapted to the legal framework of other Member States.

Pregnancy Clauses

Pregnancy Clauses

Judicial Guidance on the Application of Section 49 of the Consumer Protection Act, 2008 – Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa (Pty) Ltd [2020] 1 All SA 857 (WCC)

In South Africa, the legislature’s response to the negative consequences resulting from the pervasive use of disclaimers by suppliers has been to regulate the use of these terms through the enactment of a number of provisions in the Consumer Protection Act 68 of 2008 (CPA), including sections 48, 49 and 51. A number of publications have considered the meaning of these provisions and the impact they may have on the use of disclaimers in consumer contracts. As a consequence of the widespread use of disclaimers and the adverse consequences they may hold for consumers, any judicial pronouncement on the impact of the CPA on these clauses is significant. In Van Wyk t/a Skydive Mossel Bay v UPS SCS South Africa ([2020] 1 All SA 857 (WCC) (Skydive v UPS)), the Western Cape High Court was afforded the opportunity to consider the impact of aspects of section 49 specifically on the use of a clause in a consumer agreement excluding the risk or liability of suppliers (referred to as an “exemption clause” in this note).Section 49 of the CPA applies to four distinct types of clause enumerated in section 49(1) – namely, clauses limiting the risk or liability of suppliers in respect of any other person; clauses constituting an assumption of risk or liability by the consumer; clauses imposing an obligation on the consumer to indemnify the supplier for any cause; and clauses requiring a consumer to acknowledge a particular fact. As indicated, in Skydive v UPS, the contentious clause was one excluding the risk or liability of the supplier. The focus of this note then is on the interpretation and application by the court in Skydive v UPS of the relevant provisions of section 49 of the CPA to an exemption clause.

Historical Origins of the Personal Belief Exemption to Vaccination Mandates: The View from California.

A number of states, starting with California, have recently removed all non-medical exemptions from their laws requiring vaccinations for schoolchildren. California was also one of the earliest states to include a broad non-medical, or personal, belief exemption in its modern immunization law, which it did with a 1961 law mandating polio vaccination for school enrollment, Assembly Bill 1940 (AB 1940). This paper examines the history of AB 1940's exemption clause as a case study for shedding light on the little-examined history of the personal belief exemption to vaccination in the United States. This history shows that secular belief exemptions date back further than scholars have allowed. It demonstrates that such exemptions resulted from political negotiation critical to ensuring compulsory vaccination's political success. It challenges a historiography in which antivaccination groups and their allies led late-nineteenth and early-twentieth century opposition to vaccination mandates while religious groups drove mid-twentieth century opposition. It also complicates the historiographic idea of a return to compulsion in the late 1960s, instead dating this return a decade earlier, to a time when belief exemptions in polio vaccination mandates helped reconcile the goal of a widely vaccinated population with the sacrosanct idea of health as a personal responsibility.

An Evaluatıon on Whether Temporary Incapacity Damages are Covered by Compulsory Traffic Insurance

Motorway Motor Vehicles Compulsory Financial Liability Insurance (Traffic Insurance) is the most common compulsory insurance and the most common liability insurance in Turkey. In recent years, both the legislation and the general insurance terms, which are essential parts of the insurance contract, have been radically amended. These amendments affected the scope of the liability of the insurer against the injured party. Lastly, the Motorway Traffic Act (Act Number: 2918, Acceptance Date: 13.10.1983, OG 18.10.1983/18195) has been amended by Act Nr 6704 (Act Number: 6704, Acceptance Date: 14.4.2016, OG 26.4.2016/29695). Concordantly in 2016, the General Terms of Motorway Motor Vehicles Compulsory Financial Liability Insurance have also been amended. After these amendments, it becomes unclear whether the insurer is liable to indemnify the damages due to temporary incapacity. In fact, insurance companies are able to claim that temporary incapacity damages are not covered by the compulsory traffic insurance contract. Our study has discussed this issue. First of all, the concept of temporary incapacity damage has been examined in light of the Supreme Court decisions. Afterwards, the provision of the General Terms, which leads to uncertainty, is addressed. The subject has been discussed with reference to a recent decision of the Arbitral Committee of Appeal assessing this issue. In the case of compulsory insurance regulated under a special statute, only the circumstances may be excluded from the scope of the insurance coverage, which are stated as such as per the law provided that they are explicitly excluded in the General Terms. Furthermore, exemption clauses must be definite, clear, and certain. In addition, in terms of legal policy, it is indefensible that these damages could be excluded from the scope of the insurance coverage. Therefore, it has to be considered that the damages due to temporary incapacity will fall within the scope of the insurance coverage.

Single-Limb Collective Action Clauses and the European Stability Mechanism Reform

In December 2019, the Euro Summit did not approve the amendments to the ESM Treaty because of a disagreement among Member States on debt restructuring as a requirement for stability support in the case of unsustainable debt and questionable capacity of repayment. In this context, a key role is played by single-limb CACs which permit restructuring across all the bond series. On the one hand, this facilitates the restructuring process and neutralize the blocking action of vulture funds under single series. On the other hand, this poses some problems in relation to the protection of minor bondholders. The solution to these problems may come from inserting a sort of exemption clause in the model CACs that the EU Economic and Financial Committee is mandated to draft. This scenario is now exacerbated by the social and economic effects of the Covid-19 pandemic crisis that have caused a generalised increase in sovereign indebtedness and may imply debt restructuring. ESM treaty reform, debt restructuring, single-limb CACs, protection of minor bondholders, Covid-19 crisis