Patrick Bracher (ZA)

Subscribe to all posts by Patrick Bracher (ZA)

Animals cannot commit vandalism and malicious mischief (US)

By Patrick Bracher (ZA) on October 14, 2019 Posted in Insurance

An insured sued under their Dwelling Policy for a substantial amount of damage that had been caused to their home by racoons which somehow entered the dwelling. They relied on the cover provided for ‘vandalism and malicious mischief’ which cannot be applied to animals, said the Pennsylvania court. Not surprisingly, the court found that ‘vandalism’ … Continue reading

‘In writing’ does not mean implied acceptance of written clause

By Patrick Bracher (ZA) on October 14, 2019 Posted in General

Article 25 of the Recast Brussels Regulation which requires an agreement conferring jurisdiction to be ‘in writing or evidenced in writing’ is not satisfied by a clause in the contract being in writing and the consent being solely implied from conduct of the parties. The consent itself has to be in writing or evidenced (or confirmed) … Continue reading

Equitable financial compensation instead of land restitution

By Patrick Bracher (ZA) on October 8, 2019 Posted in General

The applicant in Jacobs v Department of Land Affairs had been deprived of land through a racist fraudulent transfer of the land in 1907 and subsequent eviction in 1921. They claimed financial compensation and were awarded R780 000. On appeal it was held that the Land Claims Court had correctly calculated the amount. The calculation is not … Continue reading

Russian roulette is self-inflicted injury not suicide (US)

By Patrick Bracher (ZA) on October 8, 2019 Posted in Insurance

A Texas court held that the insurers did not have to pay the death claim for a teenager who died when he pulled the trigger of a revolver with the barrel in his mouth and one bullet in the cylinder killed him instantly, because it was excluded by the policy exclusion for death caused directly … Continue reading

Electronic signatures confirmed in UK

By Patrick Bracher (ZA) on September 25, 2019 Posted in General

Everyone involved in agreements governed by English law will be pleased to hear that the UK Law Commission has confirmed that an electronic signature can be used to execute an English law document (including a deed) if: the person signing the document intends to authenticate the document; and any formalities relating to the execution of … Continue reading

Act of God defence fails

By Patrick Bracher (ZA) on September 25, 2019 Posted in Insurance

When Superstorm Sandy struck Staten Island off New York in October 2012, a dinner cruise boat docked in a marina sustained severe damage from the storm’s high winds and rain, ultimately sinking with a loss of $750 000. The operators of the marina were held liable to the insurer which had paid out more than $900 000 … Continue reading

Prescribed rate of interest is 10% from 1 September 2019

By Patrick Bracher (ZA) on September 22, 2019 Posted in General

The prescribed rate of interest has been changed with effect from 1 September 2019 to 10% per annum. The previous rate was 10.25%. According to the Prescribed Rate of Interest Act, interest on debts where no rate is prescribed is calculated at the repo rate plus 3.5%. The prescribed rate of interest applies to all … Continue reading

Contracting with a trust

By Patrick Bracher (ZA) on September 18, 2019 Posted in General

Where an agreement was purportedly entered into with a trust where one of two required trustees did not sign and in fact refused to do so, the agreement was void and there was no basis for an action compelling the sale to the trustee who did sign to buy the property. A signatory who warrants … Continue reading

Prescription of debt for restitution after contract cancelled

By Patrick Bracher (ZA) on August 21, 2019 Posted in General

Where one party cancels a contract because of repudiation by the other party there is an obligation to make restitution and to pay money or deliver assets which were received as performance under the cancelled contract. The cancellation gives rise to a personal obligation to pay or deliver what was received. The same would apply … Continue reading

International Arbitration Act does not override local law

By Patrick Bracher (ZA) on August 21, 2019 Posted in General

The purchaser of a consignment of coal sought to join the party which had loaded hot coal on board the vessel causing an explosion and abandonment of the voyage. It was held that the International Arbitration Act 2017 does not override the admiralty jurisdiction of the court. The Admiralty Jurisdiction Regulation Act 1983 is a … Continue reading

Entire building cladding replaced despite only two sides damaged

By Patrick Bracher (ZA) on August 14, 2019 Posted in Insurance

A hailstorm physically damaged the aluminium cladding on the south and west sides of the insured building. The insurer was ordered to replace the cladding on all sides of the building because a matching cladding could not be found. It was held that the obligation to pay for “direct physical loss” to the “covered property” … Continue reading

Damages under insurance contract with reinstatement value conditions

By Patrick Bracher (ZA) on August 12, 2019 Posted in Insurance

Where an insurance policy included reinstatement value conditions and the insured had taken immediate steps to comply with the reinstatement conditions, the insured could rely on the clause as long as the insured was genuinely desirous of restarting the business but was unable to do so because of the insurer’s unjustifiable decision not to indemnify … Continue reading

Contribution between insurers (US)

By Patrick Bracher (ZA) on August 12, 2019 Posted in Insurance

When Empire Insurance Company paid the claim for losses sustained by a car hire company when the hirer crashed their Lamborghini, it sought to recover its outlay from Allstate Insurance who insured the driver who was responsible for damage to the vehicle under the rental contract. The court held that Allstate was not entitled to … Continue reading

Setting aside arbitration finding for fraud discovered after award (UK)

By Patrick Bracher (ZA) on August 7, 2019 Posted in General

The English commercial court set out the limited basis on which an arbitration award can be set aside when it is alleged that evidence of fraud that would have affected the decision only came to light after the award. The merits of an arbitration award are rarely reviewed. Public policy exceptions such as fraud can … Continue reading

The State’s liability for damages at a school under the Schools Act

By Patrick Bracher (ZA) on August 6, 2019 Posted in General

The South African Schools Act 1996 makes the State liable for any delictual damage or loss caused as a result of any act or omission in connection with any school activity for which the school would otherwise have been liable. The State is only liable to the extent that the event is not covered by … Continue reading

Separating good from bad in a statute

By Patrick Bracher (ZA) on July 30, 2019 Posted in Drafting tips

It has been reaffirmed that where part of a law is invalid for being beyond the powers of the lawmaker (ultra vires) the good in the law will not be separated from the bad if it is complicated and impractical to do so. If there is an incoherent remainder, the entire law will be set … Continue reading

A rare contribution case, and the pollution exclusion (US)

By Patrick Bracher (ZA) on July 30, 2019 Posted in Insurance

After the Zurich American Insurance Co (ZAIC) in Missouri, USA paid out a claim on wrongful death from asbestos exposure, it sought a contribution from Insurance Company of North America (INA). The claim for contribution failed because the INA policy had a pollution exclusion but the principles of contribution between insurers were discussed. The facts … Continue reading

War exclusion requires hostilities between sovereign states (US)

By Patrick Bracher (ZA) on July 23, 2019 Posted in Insurance

A Californian court of appeals found that war exclusions which exclude coverage for expenses resulting from “war” or “warlike action by a military force” require hostilities between de jure or de facto governments (governments or entities essentially like governments). The insured was a film company producing a television series in Jerusalem when Hamas fired rockets … Continue reading

POPI progress

By Patrick Bracher (ZA) on July 23, 2019 Posted in General

At the end of June 2019 the Information Regulator announced that the process of putting the Protection of Personal Information Act into effect is “going very slowly” and that: A CEO started on 1 June 2019; A CFO started on 1 July 2019; Other executives are being appointed; They are now at a point where they are … Continue reading

Rationality of an administrative decision

By Patrick Bracher (ZA) on July 23, 2019 Posted in General

A government administrator’s decision may be irrational because it does not take into account a vital material fact for making a rational decision in the light of the empowering legislation and its purpose. The relevant question for rationality is whether the means, including the process of making a decision, are linked to the purpose or … Continue reading

Cyber cover must be specifically provided or excluded (Lloyd’s)

By Patrick Bracher (ZA) on July 23, 2019 Posted in Insurance

Lloyd’s of London requires its insurers to exclude or provide affirmative cover for cyber risks. Insurers connected to Lloyd’s must make sure they do not have unintended exposure to cyber risk. From the beginning of 2020 underwriters are required to ensure that their property damage policies specifically affirm or exclude cyber cover. This applies to … Continue reading

Corporate joint venture not a partnership

By Patrick Bracher (ZA) on July 18, 2019 Posted in General

Section 13(1)(d) of the Prescription Act 1969 delays prescription where there is a debt between partners arising out of the partnership relationship. The legal relationship of partnership arises from a contract between two or more persons who each agree to make a contribution (whether in money, property or service) to a venture to be carried on … Continue reading

Bin with wheels is not a ‘vehicle’ (US)

By Patrick Bracher (ZA) on July 16, 2019 Posted in Insurance

A New York Appeals Court unsurprisingly found that a recycling bin with wheels, which ruptured a gas line used by residents of an apartment building, is not a ‘vehicle’. An all risks policy exclusion did not apply if there was ‘direct loss causing physical damage to covered property from vehicles’. The court said that not … Continue reading

Principal debtor can rectify guarantee between guarantor & beneficiary

By Patrick Bracher (ZA) on July 16, 2019 Posted in Insurance

The Western Cape High Court held that the principal debtor (in this case the contractor under a building contract) can apply to court to rectify a guarantee between the guarantor (an insurer) and the beneficiary under the guarantee (the employer) where the contractor had given a counter indemnity to the insurer. A guarantee contract is … Continue reading