Davey, James (2016) Utmost good faith, freedom of contract and the Insurance Act 2015. Insurance Law Journal, 247-260.
Abstract
One of the little discussed — but defining — features of utmost good faith in
English insurance law was its malleability. Generally speaking parties were
free to increase or reduce the duties and remedies owed in the
pre-contractual sphere. The only significant restrictions arose in respect of
excluding fraud of the insured or its agents. Before the end of 2016, this
position will have been substantially altered. English law will have a
mandatory regime for consumer insurance and a newly hatched default
regime for commercial parties. It is expected that this ‘one-size-fits-all’
commercial regime will be much amended by contract terms, but the
regulation of contracting out and the contractual difficulties of recreating the
prior position have not been examined in detail. This article remedies that
omission.
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