| Foreword to the Third Edition |
|
vii | |
| Preface to the Third Edition |
|
ix | |
| Foreword to the Second Edition |
|
xiii | |
| Foreword to the First Edition |
|
xv | |
| Outline Table of Contents |
|
xvii | |
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xxvii | |
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|
lvii | |
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Chapter 1 The Insurance Contract Uberrimae Fidei |
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1 | (20) |
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1 | (4) |
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5 | (2) |
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The necessity of identifying an insurance contract |
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7 | (3) |
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To which types of policy does the duty of good faith apply? |
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10 | (11) |
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10 | (3) |
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But differences do exist... |
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13 | (3) |
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16 | (5) |
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Chapter 2 Other Contracts of the Utmost Good Faith |
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21 | (14) |
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Ordinary contracts and contracts uberrimae fidei compared |
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21 | (3) |
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24 | (4) |
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28 | (1) |
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Contracts between spouses and settlements between family members |
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29 | (1) |
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30 | (1) |
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Contracts for the purchase of shares publicly offered |
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30 | (2) |
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Disclosure by fiduciaries |
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32 | (3) |
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Chapter 3 The Nature of the Duty of the Utmost Good Faith |
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35 | (46) |
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Good faith and a structured duty |
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35 | (9) |
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36 | (1) |
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37 | (3) |
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40 | (1) |
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Good faith in other guises |
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41 | (3) |
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44 | (4) |
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The purpose of the duty of good faith |
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48 | (3) |
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Continuity of the duty of good faith |
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51 | (23) |
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52 | (1) |
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When does the duty of disclosure at placing come to an end? |
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53 | (4) |
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After the contract is made: an adjustment of the parties' obligations |
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57 | (5) |
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After the contract is made: claims |
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62 | (8) |
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After the contract is made: the operation of the contract |
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70 | (2) |
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When does the duty of good faith come to an end? |
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72 | (2) |
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74 | (4) |
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Good faith as an engine of fraud |
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78 | (3) |
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Chapter 4 The Source of the Duty of Utmost Good Faith |
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81 | (22) |
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The law merchant, the common law and insurance---an accelerated history |
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81 | (5) |
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Fraud before and after the contract |
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86 | (2) |
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Negligent and innocent misrepresentation |
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88 | (2) |
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90 | (7) |
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The source of remedies for breach of the duty |
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97 | (4) |
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101 | (2) |
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103 | (14) |
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The social or policy view of the duty of good faith |
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103 | (3) |
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106 | (11) |
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Proposal for European Council Directive relating to insurance contracts |
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107 | (2) |
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Law Commission recommendations in 1957 and 1980 |
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109 | (1) |
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Voluntary reform and regulation |
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110 | (2) |
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Australian Law Reform Commission's recommendations |
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112 | (1) |
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Law Commission's current review of insurance contract law |
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113 | (1) |
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Law Commission's issues paper on damages for late payment |
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114 | (3) |
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Chapter 6 Legislation affecting the Duty of Good Faith |
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117 | (14) |
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Marine Insurance Act 1906 |
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117 | (3) |
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120 | (2) |
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Misrepresentation Act 1967 |
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122 | (2) |
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Rehabilitation of Offenders Act 1974 |
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124 | (2) |
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Anti-discrimination legislation |
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126 | (1) |
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Freedom of information legislation |
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127 | (1) |
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Legislation imposing obligations of confidence |
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127 | (1) |
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Criminal offences created by statutes |
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128 | (1) |
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Directive 93/13/EEC on unfair terms in consumer contracts |
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129 | (2) |
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Chapter 7 The Assured's Duty of full Disclosure at Placing |
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131 | (58) |
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131 | (3) |
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134 | (2) |
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The misrepresentation, the non-disclosure |
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136 | (11) |
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137 | (2) |
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The representation and the non-disclosure---the line between |
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139 | (1) |
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139 | (2) |
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Misrepresentation by silence |
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141 | (4) |
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Representations and warranties distinguished |
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145 | (2) |
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The circumstance (misrepresentation and non-disclosure) |
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147 | (15) |
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Facts and statements of belief or opinion |
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147 | (1) |
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Implied representation that opinion justified when opinion expressed |
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147 | (3) |
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The representation of opinions |
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150 | (3) |
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Disclosure of opinions, fears, speculation and inferences |
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153 | (2) |
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Intention and promises of future conduct |
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155 | (3) |
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158 | (2) |
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Rumours, allegations, communications and intelligence |
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160 | (2) |
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The falsity or untruth of the representation (misrepresentation) |
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162 | (7) |
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The meaning of the representation |
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163 | (1) |
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The meaning of questions put to the assured |
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163 | (2) |
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The meaning of the representation |
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165 | (2) |
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The variance from the truth |
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167 | (2) |
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Knowledge of the assured (non-disclosure) |
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169 | (20) |
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170 | (2) |
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172 | (2) |
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The agent who has knowledge of the subject-matter of insurance |
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174 | (1) |
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175 | (1) |
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The broker or agent to insure |
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176 | (1) |
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177 | (2) |
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Constructive or deemed knowledge |
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179 | (4) |
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The principal's deemed or imputed knowledge of the agent's fraud or breach of duty |
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183 | (6) |
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Chapter 8 The Exceptions to the Duty of Disclosure at Placing |
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189 | (38) |
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191 | (2) |
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The actual and presumed knowledge of the insurer |
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193 | (11) |
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193 | (1) |
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194 | (1) |
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Matters which the insurer in the ordinary course of business ought to know |
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195 | (1) |
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195 | (2) |
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197 | (4) |
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Characteristics and usage of the insured trade |
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201 | (3) |
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204 | (23) |
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205 | (1) |
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Implied waiver based on the questions asked by the insurer |
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206 | (1) |
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Implied waiver based on the insurer's selection of questions |
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207 | (3) |
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Implied waiver based on the questions answered or unanswered by the assured |
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210 | (1) |
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Waiver where the assured provides a summary of material facts |
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211 | (3) |
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Waiver based on the state of the insurer's actual or presumed knowledge |
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214 | (3) |
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217 | (1) |
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Superfluity by reason of a warranty |
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217 | (4) |
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221 | (2) |
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Other statutory exceptions |
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223 | (1) |
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Information received too late |
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224 | (3) |
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Chapter 9 Modification of the Duty of Disclosure at Placing |
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227 | (16) |
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Modification of the duty generally |
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227 | (1) |
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Warranties and basis clauses |
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228 | (10) |
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The nature and effect of basis clauses |
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228 | (8) |
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Alleviation from basis clauses and the effect of legislation |
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236 | (2) |
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Where the insurer asks questions |
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238 | (5) |
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Chapter 10 The Post-Contractual Duty of Good Faith |
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243 | (22) |
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The making of the contract of insurance |
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246 | (2) |
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The post-contractual duty |
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248 | (8) |
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Post-contractual adjustment of the parties' obligations |
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249 | (1) |
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Variations to the insurance contract |
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249 | (2) |
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251 | (2) |
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Other additional premium clauses |
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253 | (1) |
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Change of circumstances clauses |
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253 | (1) |
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254 | (1) |
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255 | (1) |
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256 | (3) |
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Notice of loss, claims co-operation clauses and claims control clauses |
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257 | (1) |
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The insurer's claims handling |
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258 | (1) |
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Follow the settlements clauses |
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258 | (1) |
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259 | (1) |
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The operation of the insurance contract: performance of the contract |
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259 | (2) |
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The circumstances in which the right of avoidance may be exercised |
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261 | (1) |
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The end of the duty of utmost good faith |
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262 | (3) |
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Chapter 11 The Assured's Duty of Utmost Good Faith and Claims |
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265 | (36) |
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The duty of utmost good faith and claims |
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267 | (3) |
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The scope of the assured's duty |
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270 | (4) |
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274 | (14) |
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The fraud must be "substantial" |
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275 | (2) |
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277 | (1) |
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Types of fraudulent claim |
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278 | (1) |
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Pure fraud: wilful misconduct and invented losses |
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279 | (1) |
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Cloaking the insurer's defence to the claim |
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279 | (1) |
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280 | (3) |
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283 | (3) |
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286 | (1) |
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287 | (1) |
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Fraudulent claims which are withdrawn |
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287 | (1) |
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Who is the "assured" for the purposes of the duty? |
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288 | (2) |
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288 | (1) |
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289 | (1) |
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The fraud of the assured's agents |
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289 | (1) |
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Fraudulent claims clauses |
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290 | (2) |
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The duration of the duty in the context of claims |
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292 | (3) |
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295 | (6) |
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296 | (1) |
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296 | (2) |
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Forfeiture of all benefit |
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298 | (2) |
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300 | (1) |
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Chapter 12 The Insurer's Duty |
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301 | (18) |
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301 | (1) |
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301 | (6) |
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The insurer's own enquiries and assessment of the risk |
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307 | (4) |
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The insurer's duty to explain the policy terms to the assured |
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311 | (2) |
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Does the insurer have a duty to issue the policy? |
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313 | (1) |
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Post-contractual disclosure |
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314 | (1) |
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Treatment and investigation of claims |
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314 | (5) |
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319 | (38) |
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321 | (7) |
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321 | (1) |
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The assignment is subject to equities |
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322 | (3) |
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When must the equities exist? |
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325 | (1) |
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When will the assignee be subject to the duty of the utmost good faith? |
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326 | (2) |
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328 | (3) |
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Co-insurers; leading and following underwriters |
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331 | (5) |
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336 | (21) |
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Imputation of agent's knowledge |
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337 | (1) |
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337 | (1) |
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An exception: the agent's breach of duty and knowledge acquired other than as agent |
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338 | (2) |
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340 | (1) |
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341 | (1) |
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341 | (1) |
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342 | (1) |
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342 | (3) |
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345 | (1) |
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345 | (2) |
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347 | (5) |
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352 | (2) |
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354 | (1) |
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Third Parties (Rights Against Insurers) Act 1930 |
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355 | (1) |
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356 | (1) |
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Chapter 14 Materiality and Inducement |
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357 | (48) |
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The general law requirements |
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357 | (2) |
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Materiality and disclosure by the assured at placing |
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359 | (30) |
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The common law and statutory requirement |
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359 | (3) |
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362 | (1) |
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The evolution of the test of materiality |
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362 | (1) |
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The reasonable assured v the prudent underwriter |
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362 | (2) |
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The characteristics of the prudent underwriter |
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364 | (3) |
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The effect on the prudent underwriter |
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367 | (10) |
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When is materiality tested? |
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377 | (1) |
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Material to the risk: must there be an objective connection to the risk? |
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378 | (1) |
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378 | (1) |
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The two theories: material to the risk or material to inducement? |
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379 | (3) |
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The preferred theory: material to the risk |
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382 | (4) |
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The basis on which materiality is tested |
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386 | (1) |
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Materiality and amendments |
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387 | (1) |
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Materiality and misrepresentation |
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388 | (1) |
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Inducement of the insurer at placing |
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389 | (10) |
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The requirement of inducement |
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389 | (5) |
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394 | (5) |
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Materiality and the assured's claim |
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399 | (3) |
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Materiality and disclosure by the insurer at placing |
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402 | (3) |
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Chapter 15 Examples of Material Facts |
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405 | (48) |
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406 | (4) |
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406 | (2) |
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Nationality, origin and residence |
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408 | (1) |
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409 | (1) |
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409 | (1) |
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410 | (1) |
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411 | (1) |
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Financial history and practices |
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412 | (1) |
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413 | (9) |
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413 | (2) |
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Past convictions and dishonesty |
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415 | (3) |
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Allegations of dishonesty |
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418 | (2) |
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Past breaches of the duty of the utmost good faith |
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420 | (2) |
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422 | (1) |
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The subject-matter insured: property |
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422 | (12) |
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Identification of the property |
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422 | (1) |
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422 | (1) |
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423 | (1) |
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424 | (1) |
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424 | (1) |
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424 | (1) |
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424 | (1) |
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424 | (1) |
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425 | (1) |
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426 | (1) |
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426 | (1) |
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426 | (1) |
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427 | (1) |
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427 | (1) |
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427 | (1) |
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427 | (1) |
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427 | (1) |
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428 | (1) |
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Qualifications of persons in whose charge or custody the property may be kept |
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429 | (1) |
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Condition, nature and safety of the property |
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429 | (2) |
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Nature of related property |
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431 | (1) |
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431 | (1) |
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431 | (1) |
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The voyage: location and timing (marine) |
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432 | (2) |
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Nationality, class, licences and registration (marine) |
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434 | (1) |
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434 | (5) |
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439 | (4) |
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Loss and claims experience |
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439 | (2) |
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Reaction of other underwriters and prior refusals to the risk proposed |
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441 | (2) |
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443 | (3) |
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446 | (1) |
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Insurance-related information |
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446 | (1) |
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447 | (1) |
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Brokers and agents' fraud |
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448 | (1) |
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The existence of other policies |
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449 | (1) |
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Other contracts and arrangements |
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450 | (1) |
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Accumulation of non-material circumstances |
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451 | (1) |
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Obviously material circumstances |
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451 | (2) |
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453 | (58) |
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453 | (4) |
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457 | (27) |
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Meaning and source of avoidance |
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457 | (2) |
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459 | (1) |
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460 | (2) |
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Can the insurer decline a claim without avoidance? |
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462 | (2) |
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464 | (3) |
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467 | (2) |
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Restitutio in integrum must be possible |
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469 | (3) |
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What is avoided or rescinded? |
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472 | (4) |
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476 | (1) |
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477 | (3) |
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480 | (4) |
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Termination of the insurance contract |
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484 | (1) |
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Delivery up and cancellation of the policy |
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485 | (1) |
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486 | (5) |
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486 | (1) |
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Forfeiture in the absence of an express contractual right |
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487 | (4) |
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Relief against forfeiture |
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491 | (1) |
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491 | (2) |
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493 | (18) |
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Fraudulent misrepresentation or deceit |
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494 | (2) |
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Negligent misrepresentation |
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496 | (2) |
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Misrepresentation Act 1967 |
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498 | (2) |
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500 | (1) |
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501 | (1) |
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Does the duty of disclosure import a duty of care? |
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502 | (4) |
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Damages for breach of the duty of good faith? |
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506 | (3) |
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509 | (2) |
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Chapter 17 The Loss of the Right to avoid the Contract or to Rely upon a Breach of Warranty |
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511 | (46) |
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511 | (1) |
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512 | (14) |
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512 | (4) |
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516 | (1) |
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Waiver where there is a right to avoid for breach of the duty of good faith |
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516 | (1) |
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Waiver where there is a breach of warranty |
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517 | (9) |
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526 | (10) |
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527 | (1) |
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527 | (1) |
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527 | (1) |
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527 | (3) |
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Actual knowledge required |
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530 | (1) |
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Knowledge itself a question of fact |
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530 | (1) |
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531 | (3) |
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Intention distinguished from knowledge |
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534 | (1) |
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535 | (1) |
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536 | (1) |
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537 | (7) |
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Exercise of contractual rights |
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538 | (3) |
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541 | (1) |
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542 | (1) |
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Reliance on a policy defence |
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543 | (1) |
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543 | (1) |
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543 | (1) |
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544 | (11) |
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Suspensory only, not final |
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545 | (1) |
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545 | (2) |
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547 | (2) |
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549 | (1) |
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550 | (2) |
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552 | (3) |
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555 | (2) |
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555 | (1) |
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555 | (1) |
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|
555 | (2) |
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Chapter 18 Evidence: how to Prove a Breach or a Defence |
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557 | (10) |
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557 | (4) |
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561 | (1) |
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561 | (6) |
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561 | (3) |
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564 | (3) |
|
Chapter 19 Issues Affecting Conflict of laws and Dispute Resolution |
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|
567 | (6) |
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567 | (1) |
|
Arbitration and jurisdiction agreements |
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|
567 | (2) |
|
Allocation of jurisdiction in the absence of a prorogation agreement |
|
|
569 | (4) |
| Index |
|
573 | |
