Patrick Bracher (ZA)

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Proof of online questions in insurance application

Insurers could not reject liability on the basis that the insured had deliberately or recklessly misrepresented his address when applying for insurance because there was no clear evidence about the precise wording of the questions which appeared on the computer screen at the time the online application was made. Computer websites allowed the consumer to … Continue reading

Director’s personal liability (UK)

In a UK case the court made some pertinent remarks about the personal liability of a director: A director is not liable for the wrongdoing of her/his company merely by reason of being a director. The director is liable for wrongs personally carried out by her/him. A director is also liable where she or he … Continue reading

Armed robbery is vis major

Two consignments of cigarettes which were imported into South Africa from Zimbabwe were stolen in August 2009 by unknown armed robbers during a robbery from a customs and excise warehouse. The owners of the consignment claimed a rebate of customs duty under the Customs and Excise Act which allows a rebate in circumstances of vis … Continue reading

Arbitration clause not void for vagueness (UK)

The UK Chancery Division held that an arbitration clause, which could be invoked over a dispute whether there had been ‘any major physical or financial change in circumstances affecting the operation’ of Tata Steel which imported goods through a Welsh port, was not void for uncertainty. The court quoted a nice passage from a previous … Continue reading

When the costs exceed the claim (UK)

Two UK judges have expressed their dismay over a matter that went to court for three plaintiffs with modest claims in the lower hundreds of pounds where the parties ended up spending GBP2 million on costs. The claim was against an airline for air tickets for cancelled flights. The court observed that from an early … Continue reading

Scope of arbitration clause (UK)

The UK Chancery Division held that an arbitration clause relating to any dispute regarding a contractual undertaking to renegotiate port licensing conditions in the event of ‘any major physical or financial change in circumstances affecting the operation’ of the importer’s works, was broad enough to cover a dispute about the fees for the use of … Continue reading

Asbestos exclusion upheld in US

An exclusion for claims ‘arising out of asbestos’ was upheld by the US Third Circuit because it is unambiguous and therefore enforceable. The Appeal Court overturned a $36 million judgment against the insurer, which is only part of the policyholder’s liability for $120 million worth of asbestos-related claims. The court did not accept the argument that the … Continue reading

Administrative action can be reviewed from when it adversely affects a person’s rights

The Supreme Court of Appeal decided that a decision by the National Energy Regulator of South Africa to determine gas prices was not reviewable at the stage when NERSA decided on a methodology to determine the prices, but was reviewable when NERSA subsequently determined the prices imposed on customers. In February 2012, NERSA concluded that … Continue reading

Cancellation of contract not justified where most of the price already paid and restitution unlikely

The court refused to uphold cancellation of an agreement of sale for a members’ interest in a close corporation because only a total of R160 000 out of a purchase price of R4 million (96%) was outstanding and three of the appellants had been paid in full. In addition, restitution of the amount already paid was doubtful … Continue reading
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