Patrick Bracher (ZA)

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Extinctive prescription: When is a debt due?

The Constitutional Court reaffirmed that a debt becomes due when it is immediately claimable or recoverable. Where the purchase price was not receivable under the Alienation of Land Act 1981 until the contract was recorded at the Deeds Office, prescription did not start to run until the recording of the contract took place. It is … Continue reading

Bad subcontractor work not an ‘accident’ – Ohio USA

Ohio’s high court has held that damage from a subcontractor’s faulty work is not fortuitous in the context of a commercial general liability policy which covered an ‘occurrence’ meaning an ‘accident, including continuous or repeated exposure to substantially the same general harmful conditions’ causing property damage including physical injury to or destruction of tangible property. … Continue reading

Cyber breach claim fails under GLP because information not ‘published’ (US)

A Florida court held that the insurer had no duty to defend a hotel operator’s information technology subsidiary against allegations that it was responsible for a hacking incident that exposed hotel customers’ credit card data because, under the general liability policy, there was no ‘making known to any person or organisation covered material that violates … Continue reading

Damages for denying gender-confirming medical care (US)

A jury in Wisconsin awarded damages to two transgender women who were denied gender-confirming medical care by a state health plan. The state’s health insurance excluded procedures, services and supplies ‘related to surgery and sex hormones associated with gender reassignment’. The court found that the exclusion is unconstitutional because it ‘entrenches the belief that transgender … Continue reading

Administrative law: Legal status of departmental Directive

The Department of Home Affairs issued an Immigration Directive which required departmental functionaries to refuse all applications for temporary or permanent residence visas made by the holder of an asylum seeker permit. The court found that the directive was treated as binding by the departmental officials tasked to implement it and it was therefore open … Continue reading

PI policy cannot be ceded to third party

The professional indemnity policy issued by the Attorneys Insurance Indemnity Fund is incapable of cession to a third party. A purported cession to the client of a law firm who had lost misappropriated trust funds was declared invalid by the Supreme Court of Appeal. Contracts can be ceded to third parties if there is no … Continue reading

Private equity firm not liable for investing in competing company (US)

A Delaware court dismissed a claim that a private equity firm and its affiliated funds had misappropriated trade secrets acquired from a portfolio company via their directors on the board of the company and misused the information by investing in a competitor. The court found that no reasonable inference of misappropriation could be drawn because … Continue reading

Administrative law: Obligation to exhaust internal remedies

The Constitutional Court re-examined section 7(2) of the Promotion of Administrative Justice Act which creates an obligation on applicants for the court review of an administrative decision to exhaust all internal remedies first. The obligation to exhaust internal remedies should not be rigidly imposed nor used by administrators to frustrate an applicant’s efforts to review the … Continue reading

Fraudulent misrepresentation defeats voetstoots clause in sale

Where a seller had fraudulently failed to disclose a defective roof and sewerage system covered by buildings constructed without required statutory approval he was successfully sued in delict for fraudulent misrepresentation and fraudulent nondisclosure. Because the conduct was fraudulent the delictual claim defeated the voetstoots clause in the deed of sale as well as the … Continue reading

Claim by shareholders against directors under section 218(2) of Companies Act fails

Shareholders of African Bank Investments Limited failed in their claim for over R720 million against the directors and auditors of African Bank. The plaintiffs sued unsuccessfully under section 218(2) of the Companies Act 2008 alleging that the conduct of the defendants resulted in a loss to the shareholders because of the drop in the share price. The … Continue reading

‘Fraudulent devices’

The English Supreme Court had the following to say regarding the standard insurance policy fraud clause which excludes liability if the insured makes a claim ‘by fraudulent devices’. The court said: ‘The expression is borrowed from a standard clause avoiding contracts of fire insurance which was widely used in the 19th and early 20th Centuries. … Continue reading

Medical prosthesis not defective nor abnormal risk (UK)

The manufacturer of a hip prosthesis system (which was of a metal-on-metal design) for use in total hip replacement operations was sued by 313 individual claimants who alleged metal-wear debris damaged surrounding soft tissues necessitating revision surgery. The court found that the system was not defective and the claimants had not proved that it did … Continue reading

Bank escapes liability for credit reference

Playboy Club London sued an Italian bank for losses it suffered after it extended a credit facility to one of the bank’s customers on the basis of a favourable credit reference provided by the bank. A ‘well-known figure at a casino in Lebanon’ applied to Playboy Club for a cheque-cashing facility up to £800 000 to … Continue reading

Hiring a sexual offender who causes harm is an insured ‘accident’ (US)

The California Supreme Court held that the negligent hiring, retention and supervision of an employee who sexually abused a 13-year old at a school where he was working was an ‘accident’ for the purposes of a general liability policy. In Californian law an accident is ‘an unexpected, unforeseen, or undesigned happening or consequence from either … Continue reading
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