Patrick Bracher (ZA)

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Misrepresentation inducing a contract is not a breach excluded by the contractual exclusion clause in a policy (US)

A US court found that the exclusion in an insurance policy against losses arising out of or involving a breach of contract or agreement did not exclude a claim resulting from a misrepresentation that induced the contract. The insurer was excused from paying the amount of an arbitration award arising from a business dispute which … Continue reading

Certain private bodies exempted from compiling information manual

The Promotion of Access to Information Act of 2000 requires most entities to provide an information manual setting out the documents which are readily available to anyone seeking information from the entity.  The number of businesses, including private companies, required to prepare a manual is inestimable.  Some private companies have now been exempted from the … Continue reading

Interpretation: “subsequent amendment” to a statute does not refer to a replacement statute (Aus)

In June 2021 the High Court of Australia held that a clause in a business interruption policy that excluded diseases that were “declared to be quarantinable diseases under the Quarantine Act, 1908 and subsequent amendments” did not include diseases quarantinable under the Biosecurity Act, 2015 which had repealed and replaced the 1908 Act. The insurers … Continue reading

Terminal illness claim rejected for lack of proof of life expectancy (AUS)

The Australian Financial Complaints Authority (AFCA) rejected a claim for a terminal illness benefit because there was no evidence that the complainant, although seriously ill, had a life expectancy of less than 12 months.  The policy only covered death and terminal illness.  There was no cover for disability or serious illness.  A terminal illness was … Continue reading

Certifying documents as copies of the original without seeing the originals is dishonest

The facts in a Financial Services Tribunal debarment matter were that the financial services’ representative had certified certain documents as copies of the original without having seen the original documents.  She failed to ensure that she complied with the statutory requirements for certifying copies and the duties made mandatory upon her through her position as … Continue reading

True brokers may be paid a secret commission (UK)

In negotiations between parties who were negotiating charterparty terms for the chartering of two vessels, third parties involved in the negotiations received commission unknown to the party paying the price for the charter of the two vessels. It was held that although the third parties were intermediaries they were not agents in the full legal … Continue reading

New York state financial regulator warns of cyber risk

In April 2021 the New York State Department of Financial Services issued a Report on the SolarWinds Cyber Espionage Attack and Institutions’ Response warning that the next great financial crisis could come from a cyberattack because with each passing day our world gets more interconnected. The report ends with the following passage: “The SolarWinds Attack … Continue reading

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract

A Constitutionally invalid agreement is void from inception and does not confer any rights under the contract The dispute concerned a lease for a hotel in Coffee Bay, Transkei for a period of 20 years that was held to be constitutionally invalid because the lease had been signed contrary to the laws relating to public … Continue reading

Powers of the Financial Services Tribunal

Industry role players who have found themselves subject to regulatory action taken by the Prudential Authority (PA) or the Financial Sector Conduct Authority (FSCA) may apply to the Financial Service Tribunal (FST) for reconsideration of that action.  Reasons for the decision can be requested within 30 days and the application must be made within 30 … Continue reading

“Reasonable prior notice” discussed (UK)

A UK admiralty court held that 12 hours’ notice of a change of tariff for berthing charges and other services in a port for a vessel that had been delayed by the Covid-19 pandemic was not reasonable notice.  The regulation required “reasonable prior notice”. The requirement of reasonable prior notice was not complied with because … Continue reading

English law and exclusive jurisdiction clauses

In a claim between reinsurers and a South African banking group, the English High Court, in an application that was not opposed by the South African party, granted an anti-suit injunction preventing the proceedings taking place in South Africa for various reasons including that the English law exclusive jurisdiction clause was binding. English legislation allows … Continue reading
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