Utmost Good Faith Research Articles

Application of the Terms and Conditions of English Law Related to the Duty of Utmost Good Faith under Marine Insurance Contract: Korean Supreme Court Decision 2018.10.25, Docket No.2017Da272103

Application of the Terms and Conditions of English Law Related to the Duty of Utmost Good Faith under Marine Insurance Contract: Korean Supreme Court Decision 2018.10.25, Docket No.2017Da272103

Does new technology put an end to policyholder risk declaration? The impact of digitalisation on insurance relationships

The availability of data from telematics and wearables enables insurers to design and price products based on more information about the consumer. As new technologies develop rapidly, it is worth looking more closely at the way digitalisation changes the nature of insurance relationships. The purpose of this paper is to analyse how technology influences risk assessment and the insurance contract. Particular interest will be given to the role of traditional risk declaration. The author claims it is possible to obtain a full risk profile based merely on the information provided by ‘smart’ devices. This raises the specific question of whether the traditional policyholder’s risk declaration is still needed. The paper also discusses whether the use of telematics will alter the nature of insurance relationships in such a way that the doctrine of utmost good faith will no longer apply, or will apply only to a limited extent.

The Utmost Good Faith in Maritime Insurance: The Nature

The Marine Insurance Act 2015 (UK) marked the start of a contemporary period for insurance law because the Act improved the regime for the duty of good faith by transitioning to the duty of fair presentation from traditional doctrines of utmost good faith in the Marine Insurance Act 1906 in the UK. While the obligation of utmost good faith made up the firm cornerstone of insurance law in the past, it has not been an extensive and all-encompassing duty because the nature of uberrimae fidei in insurance contracts has already changed lately. This essay introduces briefly the evolution of uberrimae fidei in marine insurance law and analyses the nature and its dilemma. By comparing the relationship between good faith and the utmost good faith, upon further analysis, the reason why the obligation needs current reform is the downturn of international trade from the macro-level perspective. Moreover, from the micro-level perspective, legal requirements between the subjective state of the insured and the duty of the “fair presentation” are radically different. All in all, though the utmost good faith laid a solid foundation on insurance law, the “fair presentation” in the 2015 Act is more obviously applicable to counterpoise the benefits of the insurer and the insured, which is regarded as insurance relationships’ fresh core. Therefore, nowadays this reform is a success on a fair and reasonable legal basis, and it reduces insurance obligations of the insured traditionally to boost the prosperity of the marine insurance business currently.

영국 보험법 상 보험자가 부담하는 (최대)선의의무의 적용범위에 관한 연구-2015년 보험법의 영향을 중심으로

영국 보험법 상 보험자가 부담하는 (최대)선의의무의 적용범위에 관한 연구-2015년 보험법의 영향을 중심으로

보험계약의 변경과 최대선의의무의 관계 - 대법원 2018. 10. 25. 선고 2017다272103 판결의 평석을 중심으로 -

신의성실의 원칙상 보험계약과 관련된 지식이나 정보가 계약의 일방 당사자에 편재되어 있는 경우에는, 그러한 위험정보를 보유하고 있는 계약당사자로 하여금 성실하고 정직한 협조를 상대방 당사자에게 제공하도록 할 필요가 있으므로, 보험계약상 최대선의의무와 보험계약법상 고지의무는 밀접한 관련성이 있다. 영국의 경우, 원칙적으로 특별한 사정이 없는 한 피보험자 등의 중요한 사항의 고지는 보험계약의 성립 시까지 이행되어야 하지만, 법원은 보험계약상 최대선의의무는 계약의 성립 후에도 계속해서 존속한다고 판시하고 있다. 그러나 보험계약 체결 후 최대선의의무의 계속성을 인정하더라도, 최대선의의무의 인정범위는 엄격히 제한할 필요가 있다. 한편 보험계약의 체결 후에도 보험계약과 관련한 보험자의 결정이 필요한 경우에는 피보험자 등의 최대선의의무는 언제든 되살아나고, 이 때 피보험자는 보험자의 결정에 필요한 중요한 사항을 충실히 제공할 의무가 있다. 이에 따라 영국 법원은 보험계약 체결 후 피보험자의 고지의무의 대상인 중요한 사항의 판단에 관해 영국 해상보험법 제18조 제2항을 유추적용하고 있다. 다만 보험계약 성립 전과 후의 피보험자 등의 고지의무의 인정근거는 별개라는 점을 감안하면 보험계약 성립 후의 피보험자 등의 고지의무는 보험계약의 체결 전까지 피보험자가 부담하던 고지의무의 연장선에서 동일한 내용과 강도로 존속한다고 볼 수는 없고, 보험계약 체결 후 변경된 상황에 따라 요구되는 것에 한정된다고 보아야 한다. 이 사건에서 대법원은 “영국 해상보험법상 보험계약 계속 중 기존 계약의 내용을 추가 또는 변경할 때에는 해당 변경사항과 관련하여 중요한 사항에 대하여만 고지의무를 부담하는 것이지, 제18조에 규정된 고지의무와 같이 모든 중요한 사항에 대하여 고지하여야 하는 것은 아니다.”라고 판시하였다. 이러한 대법원 판시는 영국 해상보험법상 피보험자 등의 보험계약 성립 전과 후의 고지의무의 인정근거는 별개의 것이라는 점과 보험계약 성립 후에 피보험자가 고지해야 할 중요한 사항은 보험계약의 체결 후 문제가 된 사항과 ‘관련이 있는(relevant)’ ‘중요한 사항(material circumstances)’만이 이에 해당한다는 점에 관한 영국 판례의 입장을 재확인한 것에 그 의의가 있다.

THE APPLICATION OF THE PRINCIPLE OF UTMOST GOOD FAITH IN PYRAMID SCHEME BUSSINES PRACTICE

This study focuses on the study of media development against misinformation and contains the best elements. This situation has been exploited by the actors / activities that conduct business pyramid scheme invetation. The social growth media plays an important role in the development of the pyramid in which the givers / promoters in attracting the public interest, carried out in a pattern that is shared with the public figures using the ambassador's brand, the notes boost offerees to join other aspects such as legality and prospects social media investment, social media, culture, culture, culture, culture, culture, socialization, promotion, promotion, promotion, promotion, promotion. This study focuses on the study of violations of law against the principle of utmost good faith in the fraudulent practices of pyramid schemes used by the offeror when conducting recruitment. This fraudulent practice in its development uses social media as a misleading means of conveying information. To appeal to a widely used pattern of inviting offeree by accentuating the public figure being brand ambassador, thus boosting offeree trust to join. The objective of the study was to criticize mediamorphosis in eradicating fraudulent pyramid schemes in business investment. This research uses empirical juridical method with normative juridical approach. Observation activities support the search for legal literature. The results show that, (1) misleading information is a violation of the principle of utmost good faiht used when the promoter offers and recruits the offeree into the fraudulent practices of the pyramid scheme business; (2) social media into commodities and promotional support instruments for offerors in the fraudulent practices of pyramid scheme business investments; offeree joins a prominent pyramid promotion scheme without considering the legality and prospects of the investment.

Statutory Reform of the Doctrine of Uberrimae Fidei in Insurance Law: A Comparative Review

AbstractThe common law doctrine of uberrimae fidei is pivotal to all contracts of insurance. It imposes a duty on the parties to act towards each other with utmost good faith by disclosing all material facts and not misrepresenting any fact, either before the contract is formed or while the contract subsists. This article examines the doctrine and its statutory reforms in Nigeria and the United Kingdom. It argues that, before the statutory interventions, the iniquitous doctrine was a potent weapon, most often used by insurers to defeat just and legitimate claims by an insured. Although the legislation has brought some measure of relief to the insured in these jurisdictions, the article concludes that there are still some grey areas in the Nigerian law that need to be addressed to further the cause of justice between the contracting parties.

Neka pitanja u vezi s reformom engleskog pomorskog osiguranja iz 2015. godine

The article deals with changes to the English Marine Insurance Act 1906 by the Insurance Act 2015 such as abandoning the principle of utmost good faith and replacing it with the principle of fair presentation of risk, as well as amendments to the warranty in the English Law as stipulated by the 1906 Act. At the same time, versions of Slovenian, Croatian, Montenegrin and Serbian civil law are presented, considering them in the context of the civil law (change of risk severity) and the Anglo-Saxon law (influence of warranty on the contract).

PELANGGARAN PRINSIP ITIKAD BAIK DALAM PERJANJIAN ASURANSI PADA P.T. ASURANSI JIWASRAYA CABANG PADANG

This study uses empirical juridical method where research with a view to legal provisions in practice. This study concerns the basic factors underlying the onset of any breach of the principle of utmost good faith in the insurance agreement as well as how the settlement and legal consequences of the breach of the principle of utmost good faith in the contract of insurance. The author uses the qualitative data analysis to make an assessment of data that authors get on the field with the help of literatures related research. Based on the research that earned the author the P.T. Asuransi Jiwasraya (Persero) Padang Branch that the factors underlying the violation of the principle of utmost good faith can be caused by internal factors (the insurer) is an insurance agent and risk selectors (underwriter) and external factors i.e. insured parties. Violation of the dishonest agents caused the insurer gives a description of the products offered to the prospective insured because only the pursuit of targets and commissions, vice versa the insured provides false information when responding to a question from the insurer. Completion of the offence principle of utmost good faith this is done first by deliberation, if agreement was not reached will proceed through court proceedings. As a result of legal violations of principle of utmost good faith is the insurance agreement void or in other words the insurer has no duty to indemnify if the claims of the insured object.

Lies, Collateral Lies and Insurance Claims: The Changing Landscape in Insurance Law

Determining the scope of the fraudulent claims rule in insurance law has posed a significant challenge for the courts, particularly in the last two decades. In the shadow of the doctrine of utmost good faith, the law in this area has developed in an uncompromising fashion introducing draconian remedies against an assured who submits a fraudulent claim. The Supreme Court's most recent intervention has provided much needed guidance on the state of the law. This article, taking into account the fact that in other areas of law more proportionate remedies have gradually been introduced, discusses the boundaries of the fraudulent claims rule in insurance law as it applies in England and Wales and Scotland. Considering that the insurers might be tempted to introduce fraudulent claims clauses into their contracts to expand the common law definition of insurance fraud at the claims stage, this article also evaluates the wording of such clauses often used in practice and concludes that they lack the desired clarity.

A study on the relation between violation of disclosure duty and fraud

A study on the relation between violation of disclosure duty and fraud

Risk Assessment in Insuring Space Endeavours: A Legal Approach

Risk assessment is part of the underwriting process in any type of insurance, but space insurance has peculiarities requiring a specific approach: the technical nature of space risks, the inability to apply the ‘law of large numbers’ and the time between risk assessment and risk attachment. It also requires special expertise from space insurers concerning space technology and the related risks. Insurers have to take an individual approach to projects, and the risk assessment process by the space licensing authorities is of invaluable importance and help for insurance underwriting. Information on space projects from the space operator is of critical value for the insurance underwriting and the licensing processes. However, the third party liability risk is the main interest for the licensing authorities, while the space insurance market remains about first party insurance. From an insurance law point of view, the transfer of information between insurers and space operators reflects one of the basic insurance principles – ‘utmost good faith’. It seems that this tendency, visible both in civil and common law systems, has led to the standardization of contractual clauses in space insurance contracts, despite insurance coverage being tailored to a project. This article gives a legal perspective of risk assessment in space insurance, looking at the interaction between space law and insurance law, with interesting results for space insurance contracts and the established principles of insurance in risk assessment.

Briefing: Recent developments in construction and engineering insurance law

The UK Supreme Court has considered, for the first time, the effect on an insurance claim of a ‘fraudulent device’ – the embellishment of that claim. In doing so, it has also clarified the ambit of the doctrine of utmost good faith, which for centuries has underpinned UK insurance contracts. The extent of the uncertainty which has hitherto surrounded this area of law can be seen by the fact that the opinion of four Supreme Court judges prevailed, notwithstanding the opposing views of five judges, one in the High Court, three in the Court of Appeal and one in the Supreme Court. This briefing note discusses the Supreme Court’s recent judgement in Versloot Dredging BV and another v. HDI Gerling Industrie Versicherung AG and others.

Interest Rate, Corporate Membership and Loan Repayment by Borrowers from Micro-Financial Institutions in Nakuru County

The purpose of this study was to determine the relationship between interest rate, corporate membership and loan repayment in MFIs in Nakuru County. The study was guided by two objectives; to investigate the role of interest rate in loan repayment in MFIs in Nakuru County and to analyze the role of corporate membership in loan repayment in MFIs in Nakuru County. The study adopted correlation design and was guided by multiple regression models. The study collected data through structured questionnaires that had adequate research items on every research indicator. Collected data was analyzed using STATA and results were presented using tables. The findings of the study revealed that interest rate is not a determinant of loan repayment in Micro Financial Institutions in Nakuru County and it was concluded that interest rate charged on a loan does not impact on repayment. Similarly, it was evident that corporate membership is not significant determinant of loan Repayment in micro financial institutions in Nakuru County. The study recommends that institutions should establish a close relationship between the lenders and the borrower through monitoring, business advice and regular meetings. The institution can also develop a reward system to those borrowers who repay their loans on time through discounts on subsequent loans and savings. Further studies should be conducted to examine if the following determinants are associated with loan repayment in MFIs period of membership, security given, utmost good faith, consistency of payment during previous loan and social problems.

Motivation, Information, Negotiation: Why Fiduciary Accountability Cannot Be Negotiable

In the debate over contractual freedom or enabling-versus-mandatory rules in fiduciary law, those who do not adhere to an unbridled contractatian approach tend to justify fiduciary law’s strict posture by appealing to transaction cost reasoning. In this view, fiduciary law more efficiently sets rules that the parties would adopt or, also efficiently, sets penalty default rules that they would not adopt. Drawing on new institutional economics and information economics, this paper advances another theory on the appropriate scope of contractibility with regard to fiduciary loyalty. The present account highlights information asymmetries that are more tenacious than those stemming from information production costs - to wit, asymmetries due to unobservable and unverifiable information. These asymmetries provide a compelling justification for a strict, full-disclosure-based accountability regime. A similar analysis vindicates a rather similar legal policy in traditional insurance law, in which insurance relations are based on utmost good faith and impose a duty of full disclosure on the insured.

‘Just and lawful war’ as genocidal war in the (United States) Northwest Ordinance and Northwest Territory, 1787–1832

ABSTRACTThis article focuses on the United States Northwest Ordinance of 1787's profession of ‘utmost good faith’ towards Indians and its provision for ‘just and lawful wars’ against them. As interpreted by US officials as they authorized and practised war against native communities in the Northwest Territory from 1787 to 1832, the ‘just and lawful wars’ clause legalized wars of ‘extirpation’ or ‘extermination’, terms synonymous with genocide by most definitions, against native people who resisted US demands that they cede their lands. Although US military operations seldom achieved extirpation, this was due to their ineptness and the success of indigenous strategies rather than an absence of intention. When US military forces did succeed in achieving their objective, the result was massacre, as revealed in the Black Hawk War of 1832. US policy did not call for genocide in the first instance, preferring that Indians embrace the gift of civilization in exchange for their lands. Should Indians reject this display of ‘utmost good faith’, however, US policy legalized genocidal war against them.

Utmost Good Faith After the Formation of Contract Under English Insurance Law and its Implication to our Law

Utmost Good Faith After the Formation of Contract Under English Insurance Law and its Implication to our Law

The Insurance Act 2015: Rebalancing the Interests of Insurer and Assured

The Insurance Act 2015 is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts. Exactly 250 years after Lord Mansfield articulated the routinely‐cited principle of utmost good faith in insurance law in Carter v Boehm (1766) 2 Burr 1905, that principle has been recast, with important implications for both the pre‐ and post‐contractual duties of the parties. The Insurance Act has also imposed important restrictions on the enforcement of policy terms by insurers, and clarifies the law affecting fraudulent claims. The Marine Insurance Act 1906, a codifying measure, looks increasingly outmoded.

Reinsurance: Substance, range and importance

Reinsurance - at least in Serbian law - represents one of the institutes of Insurance Law of whom a little is known. It should not be surprising as the contract of reinsurance traditionally is not regulated in civil codes or laws on contract of insurance. Questionable are all features of the contract of reinsurance: from the definition through the essentialia negotii to the principle of utmost good faith. That is why the paper is structured so that firstly gives definition of contract of reinsurance and explains position of reinsurance in the system of insurance. It is high­lighted that the contract of reinsurance builds on the contract of insurance; which enables the further transfer of risk. It is business-to-business contract (B-2-B), concluded between insurance law experts; frequently of international character; mostly contract of adhesion, aleatory and synallagmatic contract, contract with subsequent execution, etc. The importance of reinsurance in the system of insurance is divided on three components: increase of capacity of insurance market, guarantee of acomplishment of obligations of insurer and regulatory effect on insurance. The author concludes that the contract of reinsurance is a specific business insurance contract, concluded by the insurance law experts and that represents community of interests of reinsurer and reinsured. The mentioned contract may perform its function only if the contracting parties act in a responsible manner, lege artis and respecting the principle of utmost good faith.

In Terms of Utmost Good Faith, the Law of Insurance Imposes Strict Obligation on the Insured as Compared to the Insurer: A Literature Review

Unlike other contracts in legal arena, the law of insurance in England emphatically revolves around the duty of utmost good faith imported from the continental legal systems as nucleus element in insurance contracts. Notwithstanding the fact that insurance law casts the duty upon both the parties - insured and insurer, to an insurance contract, the former finds himself in a more harsh and difficult condition when a dispute arises. The instant literature is directed to scan the relevant writings on the subject with a view to present a comparative study of the legal stand of the insured and the insurer so far as their duty of utmost good faith, in other words the duty of disclosure, is concerned under the contract of insurance. It also focuses on some non-UK jurisdictions regarding the topic and on some possible reforms offered by the Law Commission.