scholarly journals Transparency, trust and security: An evaluation of the insurer's precontractual duties

2014 ◽  
Vol 17 (6) ◽  
pp. 2412 ◽  
Author(s):  
D Millard ◽  
B Kuschke
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Code Of Conduct ◽  
Insurance Contract ◽  
Access To Information ◽  
Insurance Contracts ◽  
Term Insurance ◽  
The Common ◽  
The Republic ◽  
Material Information

Transparency in insurance law attaches to the rights and duties of the parties, the relationships between insurers, insurance intermediaries such as agents and brokers, insurance supervisory law and insurance dispute resolution procedures. Regarding the rights and duties of the insurer and the prospective policyholder, it requires insurers to disclose precontractual information in a timely manner that is clear, understandable, legible and unambiguous. Transparency as a value is incredibly important in insurance contracts. This contribution focuses exclusively on the insurer's duty of disclosure during precontractual negotiations. Although the insured's duty of disclosure has enjoyed more attention in the past, the duty clearly  applies to the insurance proposer as well as the insurer. The purpose of this contribution is to evaluate the nature and extent of the insurer's transparency duties as informed by both common and statutory laws.The insurer's duty is derived primarily from the statutory rights of access to information in accordance with the provisions of the Constitution of the Republic of South Africa and the Promotion of Access to Information Act. It is furthermore supported by specific insurance consumer protection law found in the detailed provisions on mandatory disclosures in the Financial Advisory and Intermediary Services Act, the Long-term Insurance Act, the Short-term Insurance Act and, finally, the Policyholder Protection Rules issued in accordance with these acts. Strict rules on advertising can be found in the General Code of Conduct issued under the FAIS Act.The Act furthermore specifically targets the activities of insurance intermediaries in precontractual disclosures. The fact that insurance products and services have been exempted from the scope of the Consumer Protection Act from 28 February 2014 should not diminish the insured's right to rely on  universal consumer protection principles as envisaged by South African insurance legislation. The insurer's duty to disclose is in the last instance also derived from the common law duty not to make misrepresentations by commission or omission. When negotiating an insurance contract, the insurer's duty to speak is not based on a general requirement of bona fides, but is recognised as an ex lege duty due to the involuntary reliance of the prospective insured on information supplied by insurers in the market. A lack of transparency should lead to the insurer's accountability. A failure to disclose material information or a disclosure of false information that goes to the root of the matter and that induces the prospective  policyholder to buy the insurance product is recognised as an actionable misrepresentation. Statutory provisions do not diminish the common-law duty not to make misrepresentations, but provide details of the nature and extent of the information duty to provide clarity and legal certainty in the determination of the standards of transparency required in law. In addition, statutes provide for enforcement actions by regulators, orders that could affect the licence of the insurer and provide for punishable offences and penalties. In terms of common law, a misrepresentation by omission or commission renders the insurance contract wholly or in part voidable. The policyholder may decide to rescind the contract and claim restitution. He may also, in conjunction with rescission, or as an alternative when deciding to maintain the contract, claim delictual damages or even constitutional damages when judged by a court of law as appropriate relief. Statutory remedies include a monetary award by the Insurance Ombud. Even though such an award is capped at R800 000, it is submitted that it is preferred to a civil law damages claim.

The Republic of Bees

2019 ◽  
pp. 77-126
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
The United States ◽  
State Constitutions ◽  
System A ◽  
The Social ◽  
American Law ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

This chapter details changes in American law from the eighteenth century onward, covering federal and state constitutions, judges, organization of courts, and civil procedure, and the law of evidence. The colonies declared themselves independent in 1776. However, American law continued to borrow from English law. English doctrines that were needed and appropriate were welcome. Between 1776, and the middle of the nineteenth century, there developed a true republic of bees; their flowers were the social and economic institutions that grew up in the United States. American conditions and ideas were the lawmakers that made American law a distinctive system: a separate language within the common-law family.

The Common Law in Lesotho

1969 ◽  
Vol 13 (3) ◽  
pp. 127-144
Author(s):  
Sebastian Poulter
Keyword(s):  
South Africa ◽  
East Africa ◽  
Southern Africa ◽  
Legal System ◽  
Common Law ◽  
The Subject ◽  
The Common ◽  
English Law ◽  
The Republic

Whereas the reception and operation of English law in West and East Africa have been the subject of much study over the last few years, the introduction and application of Roman-Dutch law in Southern Africa (apart from South Africa itself) have received scant treatment.1 This article deals only with the position in Lesotho and attempts to show the extent to which Lesotho's legal system is tied to that of the Republic of South Africa, and thus strengthens the geographical and economic bonds which link the two countries.

Principles of Internet contracting: Illuminating the shadows

2019 ◽  
Vol 48 (4) ◽  
pp. 208-232
Author(s):  
Caterina Gardiner
Keyword(s):  
United States ◽  
United Kingdom ◽  
Consumer Protection ◽  
Common Law ◽  
Case Law ◽  
The United States ◽  
Contract Law ◽  
Contract Formation ◽  
The Common ◽  
The Relationship

The common law that applies to Internet contract formation could be said to exist in a penumbra—a grey area of partial illumination between darkness and light—where it may be possible to lose sight of established contract law principles. Internet contracts raise difficult issues relating to their formation that challenge traditional contract doctrine. Analysis of case law from the United States, United Kingdom and Ireland illustrates that the courts have not applied contract formation doctrine in a principled or consistent way. There is a tendency for decisions to be reached for policy reasons, for example, to facilitate the development of e-commerce, or to achieve a result that is considered fair, rather than on sound principles of contract law. There may also be some uncertainty arising from the relationship between statutory consumer protection rules and common law contract formation doctrine. The enforceability of Internet contracts in the common law courts remains unpredictable. This article argues that although Internet contracting may raise distinctive contract formation issues, it is possible for the judiciary to invoke the inherent flexibility of the common law, to take into account the specific characteristics of Internet contracts, while still adhering to established contract law doctrine and maintaining a principled approach.

scholarly journals Impact of the Constitution's Normative Framework on the Interpretation of Provisions of the Companies Act 71 of 2008

2019 ◽  
Vol 22 ◽  
pp. 1-24
Author(s):  
Christa Rautenbach ◽  
Brighton M Mupangavanhu
Keyword(s):  
Common Law ◽  
Social Science Research ◽  
Science Research ◽  
Company Law ◽  
Bill Of Rights ◽  
Commercial Law ◽  
Normative Framework ◽  
The Common ◽  
Research Questions ◽  
The Republic

Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to which the Act actually does this. The article thus seeks to showcase evidence of the Act's intentional alignment with the normative framework of the Constitution of the Republic of South Africa, 1996 (the Constitution). The paper does this by answering the question: what are the implications of the Constitution's normative framework on the interpretation and application of the Act? The term "normative framework" is defined, and a distinction is drawn between the descriptive and explanatory social science research questions and the legal research questions which are evaluative and normative in nature. The article provides examples of the contexts in which the intentional alignment of the Act with the Constitution's normative framework is evident. To this extent, commentary is made on the following selected issues: remedies to facilitate the realisation and enjoyment of rights established by company law; the direct and indirect horizontal application of the Bill of Rights to provisions of the Act; and a discernible court's duty to develop the common law as necessary to improve the realisation of the rights established by the Act. A point is made in the article that judicial decisions involving the application of company law must be justified by reference to a cohesive set of values from the Bill of Rights. This is part of transformative constitutionalism. It demands that even commercial law principles should no longer be blindly accepted simply because precedent says so, or for the reason that it is expedient for the purposes of commercial certainty. The article argues that the Act permits the direct horizontal application of the Bill of Rights on its provisions in two stated ways. It is also argued that the Act permits the indirect application of the Bill of Rights through the development of the common law where it is deficient in promoting the spirit, purport and objects of the Bill of Rights. The development of the common law, it is argued, is vital for producing an incremental and cohesive body of constitutionalised common law in the company law context.

scholarly journals Fundamental Consumer Rights Under the Consumer Protection Act 68 of 2008: A Critical Overview and Analysis

2017 ◽  
Vol 13 (3) ◽  
pp. 301
Author(s):  
Wenette Jacobs ◽  
Philip N Stoop ◽  
René Van Niekerk
Keyword(s):  
South Africa ◽  
Consumer Protection ◽  
Common Law ◽  
Fair Value ◽  
Wide Field ◽  
Business Practices ◽  
Consumer Protection Act ◽  
Consumer Rights ◽  
The Common ◽  
The Government

South Africa was in need of a comprehensive framework of legislation, policies and government authorities to regulate consumer-supplier interaction. The Consumer Protection Act 68 of 2008, which was signed by the President of the Republic of South Africa on 29 April 2009 and published in the Government Gazette on 29 April 2009, now provides an extensive framework for consumer protection and aims to develop, enhance and protect the rights of consumers and to eliminate unethical suppliers and improper business practices. Certain areas of the common law regarding consumer rights have been codified by the Act and certain unfair business practices that were previously unregulated are now governed by the Act. The Act has a wide field of application. It applies to every transaction occurring within South Africa for the supply of goods or services or the promotion of goods or services and the goods or services themselves, unless the transaction is exempted from the application of the Act. The Act also specifically regulates aspects of franchise agreements. In terms of the Act, consumers obtain several new rights and some existing rights are broadened and reinforced. These rights are: the right to equality in the consumer market; privacy; choice; disclosure and information; fair and responsible marketing; fair and honest dealing; fair, just and reasonable terms and conditions; and fair value, good quality and safety. The last right in terms of the Act deals with a supplier's accountability to consumers. The authors critically analyse and discuss these rights. It is clear that the Act is written in favour of the consumer. Various provisions of the Act make inroads into the common-law position to strengthen the position of the consumer vis-à-vis the supplier and suppliers are undoubtedly facing an onerous task to prepare to comply, and eventually attempt to comply, with the Act. Although the Act has its own interpretation clause, which provides that it must be interpreted in a manner that gives effect to the purposes of the Act, the Act poses many uncertainties and interpretational and practical challenges. Many questions are therefore raised, some of which remain unanswered. These questions illustrate some of the uncertainties concerning the scope and possible interpretation of the fundamental consumer rights.

Roman Law

2014 ◽  
Author(s):  
Thomas Izbicki
Keyword(s):  
Roman Empire ◽  
Canon Law ◽  
Common Law ◽  
Public Law ◽  
Roman Law ◽  
Real Property ◽  
The West ◽  
The Common ◽  
The Law ◽  
The Republic

During the Middle Ages, law loomed large in efforts to manage life situations, beginning with the adaptation of late imperial law to the successor or barbarian kingdoms of the West. Alongside local law and custom, the learned law was increasingly used to answer questions and settle disputes about family issues such as marriages and dowry, property and inheritance, contracts, and crime. Study of the law, not only as taught at the universities but as used to advise judges who lacked formal training, illuminates the status of women and children under patriarchy. Although Roman law was geared more to private than public law, political issues were addressed. Moreover, Romanistic procedure had a wide influence across Europe. Even where Roman law was not received, it had its influence via canon law and specialized courts. This is evident in England, where the common law governed real property, but canon law introduced the possibility of testamentary disposition of certain possessions. Similarly, the admiralty courts dealt with issues such as navigation and salvage on the basis of civil law. Roman law began in the Republic, beginning with the Twelve Tables of the Law (450 bce), resulting from struggles between patricians and plebeians. Under the Republic certain men knew the laws; but there were no legal careers. The most important judicial document was the praetor’s edict about procedure, the foundation of later jurisprudence. Both the popular assemblies and the Senate legislated for both the private and the public spheres, and the jurisconsults of the imperial period commented on their enactments. The Roman Empire produced jurisconsults able to give authoritative advice, and some wrote on the laws. Emperors legislated, and collections of their laws were compiled. The most important, the Theodosian Code (438–439 ce), influenced the Latin churches and the codes of the Western barbarian kingdoms. In the East, the study of law continued. Eventually Justinian I ordered systematization of centuries of jurisprudence. The Institutes served as a textbook. The works of the jurisconsults were divided topically in the Digest (Pandects). Imperial decrees were collected in Justinian’s Code with supplements in the Novellae. This Corpus iuris civilis (529–534 ce) was diffused throughout Justinian’s empire but had little influence in the West for centuries. The largest part of Justinian’s corpus is concerned with private, rather than public, law. Later jurists retained that focus in most of their writings. Revived study of Roman law in the West is tied traditionally to recovery of the Digest (c. 1070 ce). The teaching of law took root at the University of Bologna. The Glossators expounded texts and annotated (glossed) them. The Bolognese curriculum divided the Digest into Old Digest, Infortiatum, and New Digest. The first nine books of the Code were treated together, while the Institutes, last three books of the Code and Authenticum, a version of the Novellae, with two books on feudal law, made up the Volume. The direction of study changed in the 14th century. The Commentators (Post-Glossators) created detailed expositions of the entire corpus. The Commentators predominated even after humanists criticized their Latin and their interpretative methods. Works on procedure or specific topics, records of disputations, and opinions (consilia) on cases were written. All of these genres originated in the manuscript milieu, but many texts were printed beginning in the 15th century. Lawyers trained at the universities taught, provided advice, served as judges, and worked as bureaucrats. In much of Italy, the learned law was fused with elements of feudal law in the ius commune (common law). Most consilia engaged both the common law and the ius proprium of localities to be relevant in specific contexts. The Roman law was received through much of Europe in the late medieval and Early Modern periods, but its influence in England was mostly indirect.

Access to Information and Evidence

2021 ◽  
pp. 136-173
Author(s):  
European Law
Keyword(s):  
European Union ◽  
Common Law ◽  
Civil Law ◽  
Relevant Information ◽  
Civil Procedure ◽  
Access To Justice ◽  
Access To Information ◽  
The European Union ◽  
The Common ◽  
Law Of Evidence

This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.

Mandatory Family Protection in the Common Law Tradition

2020 ◽  
pp. 707-739
Author(s):  
Kenneth G C Reid
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Early Modern Period ◽  
The United States ◽  
Judicial Discretion ◽  
Real Property ◽  
Personal Property ◽  
The Common ◽  
The Republic ◽  
Close Family

In medieval English law, widows were entitled to dower and widowers to curtesy, both being life interests in the deceased’s real property. In addition, the personal property of the deceased was divided according to a tripartite system, with surviving spouse and children being entitled to one-third each and only the final third being available for disposal by will. The tripartite system was abandoned in the early modern period though it survives still in Scotland. But dower and curtesy remained and were exported to the British Empire. In the United States they had a rich future, developing into the fixed ‘elective share’ of the deceased’s estate which is available, in many states, for the surviving spouse. Elsewhere, dower and curtesy faded away during the nineteenth century giving rise to almost complete freedom of testation. This freedom was, however, short-lived. In 1900, New Zealand, having considered but rejected the tripartite system of fixed shares still used in Scotland, introduced a discretionary ‘family provision’ by which courts could make awards to close family members. The New Zealand model was soon copied throughout Australia, in the common law provinces of Canada, and, in 1938, in England and Wales itself. The chapter considers the reasons for the abandonment of freedom of testation, and examines the debate in New Zealand, England, and the Republic of Ireland as to whether family protection was best achieved by a system of fixed shares, as in Scotland, or by a system involving judicial discretion.

13. Controlling contract terms

Contract Law ◽  
2019 ◽  
pp. 371-403
Author(s):  
TT Arvind
Keyword(s):  
Consumer Protection ◽  
Common Law ◽  
Freedom Of Contract ◽  
Liquidated Damages ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Unfair Terms ◽  
Formal Requirements ◽  
Statutory Regulation

This chapter examines how the law regulates contract terms, with particular emphasis on rules that are intended to protect weaker parties. It begins with a discussion of the limits of freedom of contract and proceeds by assessing the role played by formal requirements, such as the requirement that contracts be in writing. It then considers how the law regulates contract terms which seek to alter the liability that one party will have in the event of breach. More specifically, it looks at exclusion clauses in the common law and the statutory regulation of such clauses, along with liquidated damages, contractual remedies, and the rule against penalties. It also explores the extent to which consumer protection law restricts the terms that can be included in consumer contracts, especially when dealing with the problem of unfair terms.

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