By Haemala Thanasegaran
This booklet examines reliable religion in non-marine assurance and takaful (Islamic coverage) contracts in Malaysia, and proposes holistic legislations reform of an analogous. the 1st two-thirds of the ebook contain an in depth comparative felony research of the problems among Malaysia, Australia and the uk, with the ultimate 3rd devoted to a socio-economic research of legislation reform and recommendations for legislation reform really fitted to Malaysia.
The publication evaluates no matter if the obligation of extreme solid religion (the cornerstone of coverage and takaful contracts) is successfully regulated and, in flip, saw by way of insurers (and takaful operators) and insureds alike in Malaysia. The adequacy of the coverage Act 1996 (Malaysia), the Takaful Act 1984 (Malaysia), the monetary providers Act 2013 (Malaysia) and the Islamic monetary companies Act 2013 (Malaysia) is evaluated, in addition to the aiding infrastructure and oversight measures brought through the Malaysian govt. In doing so, The e-book examines the obligation of maximum reliable religion from either a doctrinal and a social technology standpoint, with a view to suggest appropriate criminal reform.
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Extra info for Good Faith in Insurance and Takaful Contracts in Malaysia: A Comparative Perspective
However, his Honour’s decision on the point of recoverability of damages by the insured for the insurer’s breach of its duty of disclosure was reversed on appeal. 52 Slade LJ53 at the Court of Appeal cited several reasons for this. First, that the court has the power to grant rescission of the contract in cases of duress and undue influence as well as for bad faith, none of which carries any right to damages. Secondly, the words of the Marine Insurance Act 1906 (UK) provide no indication that Parliament contemplated the remedy of damages; and lastly, it would also have to be reciprocal and therefore, result in causing greater hardship to the insured if the roles were reversed, since there is no need to prove fault.
As far as the English courts have been concerned, a rather conservative stance seems to have been taken. This is apparent from Slade LJ’s concern voiced at the Court of Appeal in Le Banque Financiere v Westgate Insurance Co Ltd3 in response to an indication by Steyn J in Banque Keyser Ullmann SA v Skandia (UK) Insurance Co Ltd4 that utmost good faith may be wide enough to include broad based notions such as fair dealing and co-operation: …in the case of commercial contracts, broad concepts of honesty and fair dealing, however laudable, are a somewhat uncertain guide when determining the existence or otherwise of an obligation which may arise even in the absence of any dishonest or unfair intent … More importantly, in our judgment, it would be too broad a proposition to state that any fact is 1 The Insurance Act 2015 (UK) is however, not exclusively applicable to non-consumer insurance contracts, in that it also contains provisions dealing with consumer insurance.
49 Steyn J in the case, in holding that insurers like insureds, were under a duty to exercise utmost good faith in disclosing facts that were material to the insurance contract, said: I am of the opinion that it is established beyond doubt that the uberrima ﬁdes principle, as it is sometimes called, imposes reciprocal duties on the insured and insurer. … In other 46 See: Mahmood (1992, p. 43). The Insurance Act 1996 in turn repealed and succeeded the ﬁrst insurance regulation in Malaysia, namely the Insurance Act 1963.
Good Faith in Insurance and Takaful Contracts in Malaysia: A Comparative Perspective by Haemala Thanasegaran