Ki Jeong Han, A Study on the Connection between Breach of Contract Terms and Actual Loss according to the Insurance Act 2015, Korea Insurance Law Journal, Vol. 14, No. 1 (2020), pp. 565-597.
<Abstract>
In 2015, The Insurance Act was enacted in the United Kingdom. This article explores the issue of insurance terms not relevant to actual loss in the Insurance Act section 11. This matter is a significant issue in U.K. insurance contract law as in Korea. Furthermore, as the international standard policy in marine insurance usually stipulates the U.K. insurance contract law as applicable law, and Korean cases have recognised such a clause as valid, there is a need to understand the law more accurately. Before the enactment of the Insurance Act, the insurer’s liability was automatically discharged for the breach of warranties which are typical insurance contract terms related to risk control, even when the breach had no possible connection to the actual loss. This was criticised to be unjust by English courts and academics. According to the section 11 of the Insurance Act, the insurer cannot reject a claim due to a breach of insurance terms totally unconnected to the actual loss. In other words, the insured is entitled to a claim if it can prove that the breach could not have increased the risk of the loss that actually occurred, which is the nexus test. It does not matter whether the breach actually increased the risk of the loss, which is the causation test. This article discusses the definition and application of nexus, and its difference from causation. Nexus is a broader concept than causation, nexus being less favourable to the insured than causation. This is because nexus could be recognised without causation while causation could not without nexus. This article also deals with the reason why the Insurance Act took the position of nexus. Finally, this article discusses ‘terms defining the risk as a whole’ that are not subject to the section 11 of the Insurance Act. This article also discusses these terms with a special focus on how to differentiate them from other terms.
<Keywords>
warranty , causation , nexus , term delimiting the scope of cover
Ki Jeong Han, A Study on the Connection between Breach of Contract Terms and Actual Loss according to the Insurance Act 2015, Korea Insurance Law Journal, Vol. 14, No. 1 (2020), pp. 565-597.
<Abstract>
In 2015, The Insurance Act was enacted in the United Kingdom. This article explores the issue of insurance terms not relevant to actual loss in the Insurance Act section 11. This matter is a significant issue in U.K. insurance contract law as in Korea. Furthermore, as the international standard policy in marine insurance usually stipulates the U.K. insurance contract law as applicable law, and Korean cases have recognised such a clause as valid, there is a need to understand the law more accurately. Before the enactment of the Insurance Act, the insurer’s liability was automatically discharged for the breach of warranties which are typical insurance contract terms related to risk control, even when the breach had no possible connection to the actual loss. This was criticised to be unjust by English courts and academics. According to the section 11 of the Insurance Act, the insurer cannot reject a claim due to a breach of insurance terms totally unconnected to the actual loss. In other words, the insured is entitled to a claim if it can prove that the breach could not have increased the risk of the loss that actually occurred, which is the nexus test. It does not matter whether the breach actually increased the risk of the loss, which is the causation test. This article discusses the definition and application of nexus, and its difference from causation. Nexus is a broader concept than causation, nexus being less favourable to the insured than causation. This is because nexus could be recognised without causation while causation could not without nexus. This article also deals with the reason why the Insurance Act took the position of nexus. Finally, this article discusses ‘terms defining the risk as a whole’ that are not subject to the section 11 of the Insurance Act. This article also discusses these terms with a special focus on how to differentiate them from other terms.
<Keywords>
warranty , causation , nexus , term delimiting the scope of cover