Insurance Contracts CP - Law Reform Commission

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National Consumer Agency would be the most obvious agency but as the re-organisation is under review, the Commission merely wishes to flag this issue as one that needs to be considered. 150
7 CHAPTER 7 FORMALITIES A Introduction. 7.01 Irish law does not provide a coherent set of rules requiring an insurance contract to be negotiated or concluded in tandem with the creation of a written or electronic record of the transaction. A fragmented body of EU legislation has built up in relation to consumer insurance but the absence of any general requirement on pre-contractual information being furnished to a proposer, or the recording of essential terms of the agreement, as well as any requirement to actually furnish the insured with a copy of the policy (or key terms such as promissory warranties) are shortcomings in the law that need to be addressed. The Commission is aware of the need to allow flexible contractual practices to operate and the desirability of keeping transaction costs to a minimum, but these objectives should not be purchased at the cost of lack of clarity and procedural or substantive fairness. B Legislation, Case Law and Codes of Practice 7.02 Isolated examples of legislative provisions which seek to promote greater clarity of purpose and legal certainty between a proposer and an insurer do exist. The Insurance Act 1936 in relation to industrial assurance 1 provides exceptions that prove the rule. While the Insurance Act 1989 contained an enabling provision 2 that would have had a significant impact on pre-contractual negotiations and notice requirements in respect of the duty of disclosure and warranties, this power was never exercised. (1) Limited legislative provisions 7.03 The Road Traffic Acts make it necessary for vehicle insurers who issue approved policies on insurance to issue certificates of insurance in the prescribed form, 3 an understandable provision in relation to compulsory insurance. Some isolated examples of formal requirements have been identified in industrial assurances relating to endowment policies, eg funeral expenses, but not only have such instances been repealed. 4 It appears that in historical terms the interest of Parliament and the Óireachtas in ensuring that contracts of insurance are evidenced in writing owe much to a desire to create appropriate targets for stamp duties and levies. 5 Section 22 of the Marine Insurance Act 1906 requires every contract for marine insurance to be expressed in a policy, the policy being capable of being executed or issued either at the time of the contract or otherwise. Non-compliance renders the contract of marine insurance inadmissible in evidence. As was shown in Chapter 2, in relation to the insurable interest requirement, the Life Assurance Act 1774, as extended into Ireland, requires policies of life insurance to be in writing with the name of the beneficiary on it. This is not however a ―consumer protection‖ measure – quite the reverse. Lack of clarity and certainty is also not provided via section 2 of the Statute of Frauds, 1695. The provision in section 2 of the Statute of Frauds, which directs that a memorandum is necessary in respect of an agreement that is not to be performed within one year from the making of the agreement has been held to be fully performed on one side by the payment of the 1 2 3 4 5 Eg. s.61 (contents of proposals to contain some specific terms) and 63 (ministerial power to delete or amend proposal terms) s.61. Road Traffic Act 1961 s.66, and SI 14 of 1962, as amended. Eg Assurance Companies Act 1909, repealed by section 7(2) of the Insurance Act 1936. Existing revenue practice is to raise the levy against premiums: see for example section 26 of the Finance Act 2009. 151
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CONSULTATION PAPER INSURANCE CONTRA
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
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TABLE OF CONTENTS Table of Key Legi
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CHAPTER 4 (3) Factors covered by an
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(10)Enforcement 149 CHAPTER 7 FORMA
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TABLE OF KEY LEGISLATION Assurance
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Pg No. Economides v Commercial Unio
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Ireland Ltd Pg No. Roselodge Ltd v
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D Regulation and Supervision of Ins
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has been the Consumer Protection Co
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this definition would apply both to
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Commission provisionally recommends
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2005 Final Report and Recommendatio
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in Coleman accords with data protec
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functions may in the future be merg
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estrictions on the ability of the O
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(2) Adverse comments on the propose
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harmonisation of insurance contract
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1.49 Before leaving the general iss
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(2) Decisions of the Financial Serv
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uberrima fidei, regulatory requirem
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1.68 The Commission provisionally r
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2.03 In contrast, a non-indemnity
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CJ expressed the view that it made
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2.18 In the House of Lords, Lord El
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Lord Eldon formulation, 45 overrule
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interest in respect of the property
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drawings themselves, Auld LJ and Si
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the judges to complicate the law by
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Insurance in the UK, Ireland and EU
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any existing doubt, or prevailing m
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(2) A potential financial loss reco
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to the extent of monies actually ex
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took out a life insurance policy on
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2.86 The Commission invites submiss
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and social provision be integrated
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and deny enforceability. The leadin
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(6) Defining Insurance Contracts in
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3 CHAPTER 3 DUTY OF DISCLOSURE A In
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the Ohio case of Hartford Protectio
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the basis that the insurance contra
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that which the signatory could reas
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―(i) In order to be entitled to a
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withholding information on the basi
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public interest in running blockade
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In Manor Park, McMahon J. took a si
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at the precontractual stage. The de
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decisions in which the Ombudsman ha
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(8) The English Law Commission’s
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(10) Australia 3.88 In ALRC Report
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Article 3:103 Exceptions The sancti
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it is desirable to retain the duty;
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B Judicial approaches to limiting a
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will no doubt arise in the future.
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questions that are incapable of a y
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(1) Marine Insurance Act 1906 and m
Page 120 and 121: (3) Should the right to rescind be
Page 122 and 123: y English judges to any extent, and
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Page 126 and 127: Factually incorrect answers to a qu
Page 128 and 129: 4.68 While the English and Scottish
Page 130 and 131: terms to be construed by reference
Page 132 and 133: conclusion, ―with considerable re
Page 134 and 135: the present was held not to be prom
Page 136 and 137: (10) Limiting the scope of the warr
Page 138 and 139: have been forthright in suggesting
Page 140 and 141: nature and potentially draconian na
Page 142 and 143: (b) that even though the loss was o
Page 144 and 145: whichever is the earlier event. 103
Page 146 and 147: 5.67 Nevertheless, the law reports
Page 148 and 149: may properly consider to be relevan
Page 150 and 151: ―It is easy to sympathise with th
Page 152 and 153: decisions, and case-law, that preve
Page 154 and 155: the terms of the insurance contract
Page 156 and 157: householder each assuming the other
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Page 160 and 161: may be regarded as technical or unm
Page 162 and 163: ―Basis of contract clauses would
Page 164 and 165: The court may be influenced by the
Page 166 and 167: ―consumer‘s reasonable expectat
Page 168 and 169: of the term, particularly in the co
Page 172 and 173: premium, thus taking the contract o
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Page 176 and 177: exceptions to these requirements in
Page 178 and 179: (l) the existence of guarantee fund
Page 180 and 181: policy should be issued within fift
Page 182 and 183: contains interesting and helpful ad
Page 184 and 185: in the Aro Road case who wrote that
Page 186 and 187: 8.11 The most visible demonstration
Page 188 and 189: common law position relating to sep
Page 190 and 191: F Effects of fraud 8.27 Once the fr
Page 192 and 193: 8.36 In the case of composite insur
Page 194 and 195: (i) consented to the act or omissio
Page 196 and 197: Insurance Corporation of the Channe
Page 198 and 199: not only an economic purpose, but a
Page 200 and 201: Article 6:104 Time of Performance (
Page 202 and 203: B The Problem in Context 9.04 The d
Page 204 and 205: D Exceptions to the Privity Rule (1
Page 206 and 207: 9.20 Because Ireland has not adopte
Page 208 and 209: cover but the defendants failed to
Page 210 and 211: (1) ―Where a person who is not pa
Page 212 and 213: 9.46 The privity doctrine confines
Page 215 and 216: CHAPTER 10 REMEDIES A Introduction
Page 217 and 218: (4) Where the risk would have been
Page 219 and 220: isks‖ policy provided by Royal an
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elation to negligent misrepresentat
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insurer is seeking to avoid the con
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10.38 The decision of Hirst J in Th
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10.48 The Ontario Court of Appeal,
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(a) An insurer cancelled a motor in
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G Subrogation - Public Policy Excep
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(ii) Subrogation - Employee Liabili
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Employee‟s Liability (Indemnifica
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―an employer should be liable to
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Street Dublin against the embezzlem
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11.09 The Commission invites submis
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of a promissory warranty, it should
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Insurance Contracts CP - Law Reform Commission

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