Franziska Arnold-Dwyer

Insurable Interest and the Law

• Gebundenes Buch

Produktbeschreibung

This book assesses the role of the doctrine of insurable interest within modern insurance law by examining its rationales and suggesting how shortcomings could be fixed. Over the centuries, English law on insurable interest - a combination of statutes and case law - has become complex and unclear. Other jurisdictions have relaxed, or even abolished, the requirement for an insurable interest. Yet, the UK insurance industry has overwhelmingly supported the retention of the doctrine of insurable interest. This book explores whether the traditional justifications for the doctrine - the policy against wagering, the prevention of moral hazard and the doctrine's relationship with the indemnity principle - still stand up to scrutiny and argues that, far from being obsolete, they have acquired new significance in the global financial markets and following the liberalisation of gambling. It is also argued that the doctrine of insurable interest is an integral part of a system of insurance contract law rules and market practice. Rather than rejecting the doctrine, the book recommends a recalibration of insurable interest to afford better pre-contractual transparency to a proposer as to the suitability of the policy to his or her interest in the subject-matter to be insured. Providing a powerful defence for the retention of insurable interest, this book will appeal to both academics and practitioners working in the field of insurance law.

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Hinweis: Dieser Artikel kann nur an eine deutsche Lieferadresse ausgeliefert werden.

Produktdetails

• Verlag: Routledge
• Seitenzahl: 272
• Erscheinungstermin: 2. Juni 2020
• Englisch
• Abmessung: 240mm x 161mm x 19mm
• Gewicht: 577g
• ISBN-13: 9780367076672
• ISBN-10: 0367076675
• Artikelnr.: 59585572

Autorenporträt

Dr Franziska Arnold-Dwyer, Lecturer in Insurance Law and Deputy Director of the Insurance, Shipping & Aviation Law Institute at the Centre for Commercial Law Studies, Queen Mary University of London.

Inhaltsangabe

TABLE OF CONTENTS
1. Introduction
1. The historical development of the insurable interest requirement
Formative period
Insurable interest under the lex mercatoria and common law
Wager and wager policies
Early legislation
The Marine Insurance Act 1746
The Life Assurance Act 1774
Consolidation
The Gaming Act 1845
The Marine Insurance Act 1906
The Gambling Act 2005
2. The legal bases for insurable interest
Legal bases
Marine property
Non-marine goods
Buildings and land
Profit and future income
Life
Liability
Debtor's property and debtor's life
Debt
Reinsurance
Timing and consequences of lack of insurable interest
Marine insurance
Life insurance
Non-marine goods, buildings and land, and liability insurance
Defence of lack of insurable interest
The courts' strategies to "lean in favour of an insurable interest"
The defence of lack of insurable interest and good faith
Waiver and assignment
Marine insurance
Life insurance
Non-marine property insurance
3. The meaning of insurable interest
Property insurance
The classic definition of insurable interest
Expanding the meaning of insurable interest
Expanding insurable interest to pervasive interests
Pervasive interest -v- legal interest test -v- moral certainty test
Has the notion of pervasive interest become obsolete?
Life insurance
Pecuniary interests
Presumed interests
Statutory extensions
A new approach to insurable interest: Feasey
The principles
Construction
Ward LJ's dissenting judgment
Reception and analysis
4. Insurable Interest - Quo Vadis?
The LC's proposals
The case for reform of the doctrine
The IIB
Would the IIB address the issues identified?
Academic debate
Examining the Traditional Justification
Abolition
Retention and expansion
Remedies
Foreign law approaches
Australia
US / New York
Canada
Germany
South Africa
People's Republic of China
Themes for reform
5. The anti-wagering justification
Wagers and insurance distinguished
Doctrinal distinction
Economic analysis
Public policy and the differentiation between insurance and wagers
Policy on gambling
Policy on insurance
Reasons against gambling by insurers
Dividing line for tax treatment
Dividing line for takaful insurance
Policy against wagering under the guise of insurance
Sham transactions
Misrepresentation
Unintentional wager policies
Contracts of insurance differentiated from CDS
What are CDS?
CDS and insurance contracts distinguished
Restraining effect of insurable interest requirement
The anti-wagering justification and the definition of insurable interest
6. The moral hazard justification
Historical background and economic analysis
Criticisms
Doubtful deterrent effect
Reverse moral hazard
Inappropriateness of contract law
'Skin in the game' in property insurance
How does an insurable interest constitute skin in the game?
Relationship with other anti-moral hazard techniques
Relationship between insurable interest and moral hazard restated
Moral hazard in the capital markets
Moral hazard and STOLI
Moral hazard and the definition of insurable interest
7. The indemnity justification
The indemnity principle
Criticisms
The relationship between the doctrine of insurable interest and the
indemnity principle
The indemnity justification and the definition of insurable interest
Indemnity dependent on nature and extent interest
Multiple claims
Valuation
8. The integral dimension of insurable interest - insurance contract law
Utmost good faith and pre-contractual risk presentation
Utmost good faith
Pre-contractual risk presentation under the IA 2015
Pre-contractual representations under CIDRA
Causation
No interest
Economic interests
Consequential loss
Duty to mitigate loss
Duty to prevent, avert and mitigate loss
Reasonableness and insurable interest
Failure to mitigate as an intervening cause
Abandonment
Subrogation
Relationship with the doctrine of insurable interest
Rights of action against third parties
Significance of abandonment and subrogation
9. The integral dimension of insurable interest - policy terms
Methodology for survey
Insurable interest and title requirements
Clauses requiring loss and exclusion of consequential loss
Retention, deductibles and limits of liability
Loss prevention and loss mitigation
Risk Control Terms
Notice of loss
Claims conditions
Basis of settlement (reinstatement and repairs)
Subrogation provisions
Insurable interest as part of contractual fabric
10. The definitional dimension of insurable interest
Historical background to definition of 'contract of insurance'
Doctrinal analysis of definition of 'contract of insurance'
Interest -v- insurable interest in property insurance
Definition for regulatory and tax purposes
Conceptual analyses
Abraham's four conceptions of insurance
Merkin and Steele's models of insurance
Insurable interest and market perception
Definitional role
Economic interest
Reconciliation between definitional and validity roles
Route A: contracts with 'interest' but without 'insurable interest'
Route B: non-insurance contracts under the guise of insurance
Consequences of falling outside definition
Consequences for policyholder
Consequences for insurer
11. Remedies, enforcement and reform
Evaluation of remedies regime
Fairness
Effectiveness and enforcement
Interference with the parties' contract
Remedial gap between legal consequences and regulatory sanctions
Authorization and permissions
Prudential regulation
Conduct of business regulation
FOS
Insurers' duties in relation to insurable interest
Suggested wordings
The duty to decline
A regulatory product information requirement
Legal bases for the duty to decline and the regulatory product information
requirement
Benefits and detriments
12. Conclusion

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TABLE OF CONTENTS

1. Introduction

The historical development of the insurable interest requirement

Formative period



Insurable interest under the lex mercatoria and common law

Wager and wager policies



Early legislation



The Marine Insurance Act 1746

The Life Assurance Act 1774



Consolidation



The Gaming Act 1845

The Marine Insurance Act 1906

The Gambling Act 2005

The legal bases for insurable interest

Legal bases



Marine property

Non-marine goods

Buildings and land

Profit and future income

Life

Liability

Debtor's property and debtor's life

Debt

Reinsurance



Timing and consequences of lack of insurable interest



Marine insurance

Life insurance

Non-marine goods, buildings and land, and liability insurance



Defence of lack of insurable interest



The courts' strategies to "lean in favour of an insurable interest"

The defence of lack of insurable interest and good faith



Waiver and assignment



Marine insurance

Life insurance

Non-marine property insurance

The meaning of insurable interest

Property insurance



The classic definition of insurable interest

Expanding the meaning of insurable interest

Expanding insurable interest to pervasive interests

Pervasive interest -v- legal interest test -v- moral certainty test

Has the notion of pervasive interest become obsolete?



Life insurance



Pecuniary interests

Presumed interests

Statutory extensions



A new approach to insurable interest: Feasey



The principles

Construction

Ward LJ's dissenting judgment

Reception and analysis

Insurable Interest - Quo Vadis?

The LC's proposals



The case for reform of the doctrine

The IIB

Would the IIB address the issues identified?



Academic debate



Examining the Traditional Justification

Abolition

Retention and expansion

Remedies



Foreign law approaches



Australia

US / New York

Canada

Germany

South Africa

People's Republic of China



Themes for reform

The anti-wagering justification

Wagers and insurance distinguished



Doctrinal distinction

Economic analysis



Public policy and the differentiation between insurance and wagers



Policy on gambling

Policy on insurance

Reasons against gambling by insurers

Dividing line for tax treatment

Dividing line for takaful insurance



Policy against wagering under the guise of insurance



Sham transactions

Misrepresentation

Unintentional wager policies



Contracts of insurance differentiated from CDS



What are CDS?

CDS and insurance contracts distinguished

Restraining effect of insurable interest requirement



The anti-wagering justification and the definition of insurable interest

The moral hazard justification

Historical background and economic analysis

Criticisms



Doubtful deterrent effect

Reverse moral hazard

Inappropriateness of contract law



'Skin in the game' in property insurance



How does an insurable interest constitute skin in the game?

Relationship with other anti-moral hazard techniques

Relationship between insurable interest and moral hazard restated



Moral hazard in the capital markets

Moral hazard and STOLI



Moral hazard and the definition of insurable interest

The indemnity justification

The indemnity principle

Criticisms

The relationship between the doctrine of insurable interest and the indemnity principle

The indemnity justification and the definition of insurable interest



Indemnity dependent on nature and extent interest

Multiple claims

Valuation

The integral dimension of insurable interest - insurance contract law

Utmost good faith and pre-contractual risk presentation

Utmost good faith

Pre-contractual risk presentation under the IA 2015

Pre-contractual representations under CIDRA



Causation



No interest

Economic interests

Consequential loss



Duty to mitigate loss



Duty to prevent, avert and mitigate loss

Reasonableness and insurable interest

Failure to mitigate as an intervening cause



Abandonment

Subrogation



Relationship with the doctrine of insurable interest

Rights of action against third parties

Significance of abandonment and subrogation

The integral dimension of insurable interest - policy terms

Methodology for survey

Insurable interest and title requirements

Clauses requiring loss and exclusion of consequential loss

Retention, deductibles and limits of liability

Loss prevention and loss mitigation

Risk Control Terms

Notice of loss

Claims conditions

Basis of settlement (reinstatement and repairs)

Subrogation provisions

Insurable interest as part of contractual fabric

The definitional dimension of insurable interest

Historical background to definition of 'contract of insurance'

Doctrinal analysis of definition of 'contract of insurance'



Interest -v- insurable interest in property insurance



Definition for regulatory and tax purposes

Conceptual analyses



Abraham's four conceptions of insurance

Merkin and Steele's models of insurance



Insurable interest and market perception



Definitional role

Economic interest



Reconciliation between definitional and validity roles



Route A: contracts with 'interest' but without 'insurable interest'

Route B: non-insurance contracts under the guise of insurance



Consequences of falling outside definition



Consequences for policyholder

Consequences for insurer

Remedies, enforcement and reform

Evaluation of remedies regime



Fairness

Effectiveness and enforcement

Interference with the parties' contract



Remedial gap between legal consequences and regulatory sanctions



Authorization and permissions

Prudential regulation

Conduct of business regulation

FOS



Insurers' duties in relation to insurable interest



Suggested wordings

The duty to decline

A regulatory product information requirement

Legal bases for the duty to decline and the regulatory product information requirement

Benefits and detriments

Conclusion