Robert Merkin

Insurance and the Law of Obligations

It is widely acknowledged that insurance has a major impact on the operation of tort and contract law regimes in practice, yet there is little sustained analysis of their interaction. The majority of academic private lawyers have little knowledge of insurance law in its own right, and the amount of discussion directed to insurance in private law theory is disproportionately small in relation to its practical importance. Filling this substantial gap in the literature, this book explores the multiple influences of insurance in the law of obligations, and the nature and impact of insurance law as an inherent and significant aspect of private law. It combines conceptual and doctrinal analysis, informing the theoretical discussion of the nature of private law, including the role of judicial and public purpose, and the place of formalism and of contextualism in normative theories of private law. Arguing for the wider recognition of the multiple impacts of insurance, the book claims that recognition of the presence of insurance necessarily marks a departure from the two-party framework sometimes described as definitive of private law. The structured exploration and interpretation of the contemporary role of insurance in the law of obligations, and of its implications, illuminates this under-explored area of private law, and equips the reader for further enquiry and debate.

Insurance Act 2015

The Insurance Act 2015 is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts. Exactly 250 years after Lord Mansfield articulated the routinely‐cited principle of utmost good faith in insurance law in Carter v Boehm (1766) 2 Burr 1905, that principle has been recast, with important implications for both the pre‐ and post‐contractual duties of the parties. The Insurance Act has also imposed important restrictions on the enforcement of policy terms by insurers, and clarifies the law affecting fraudulent claims. The Marine Insurance Act 1906, a codifying measure, looks increasingly outmoded.

The Insurance Act 2015: rebalancing the interests of insurer and assured

The Insurance Act 2015 is the first piece of legislation since the eighteenth century to seek to lay down new principles governing the formation and operation of insurance contracts. Exactly 250 years after Lord Mansfield articulated the routinely‐cited principle of utmost good faith in insurance law in Carter v Boehm (1766) 2 Burr 1905, that principle has been recast, with important implications for both the pre‐ and post‐contractual duties of the parties. The Insurance Act has also imposed important restrictions on the enforcement of policy terms by insurers, and clarifies the law affecting fraudulent claims. The Marine Insurance Act 1906, a codifying measure, looks increasingly outmoded.

Insurance between Neighbours: Stannard v Gore and Common Law Liability for Fire

Liability under Rylands v Fletcher has since its inception been justified by ideas of risk-creation and loss-spreading, in circumstances where parties are free from blame. Pollock described it as amounting to an ‘insurance’ between neighbours; in its contrast with negligence liability, it has more recently been described as the ‘conscience’ of the law. Here we are concerned with the nature and limited existence of Rylands liability for damage done by the escape of fire after the Court of Appeal’s decision in Stannard v Gore. How does ‘insurance’ through liability compare with the well-recognised and widespread practice in relation to fire, of insuring oneself? We particularly discuss the possible purposes of the long disembodied section 86 of the Fires Prevention (Metropolis) Act 1774, the significance of insurance in that statute, and the importance of rival interpretations of its applicability to Rylands liability. We identify the current difficulties in this area of law as lying in the elusiveness of the social purposes which have shaped its principles, suggesting that any justification of Rylands liability for fire should indeed take account of the long-established practice of first party insurance.