Duty Of Disclosure In Insurance Law

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1. INTRODUCTION
The Insurance law provides business to get protection or cover against various kinds of risks (including risk of loss from fire, negligence, crime & risk of death of essential people working in the business) & spreads the risk of loss as well. Moreover, the insurance law consists of insurance policy which is a contract where one party (which is the insurer) agrees in return for a considered price to cover the other party (which is the insured) for loss from a specified event. In short, it is a contract whereby, for specified consideration, where one party undertakes to compensate the other for a loss relating to a particular subject as a result of the occurrence of designated hazards. (Paul Latimer, Australian Business Law, 33rd Edition)
DUTY OF DISCLOSURE UNDER THE COMMON LAW
In duty of disclosure under the common law, the insured party is under a duty of utmost good faith to disclose all the provided material facts but not to make any material misstatements at the pre-contractual stage of an agreement, which is before the establishment of a policy. However, any kind of breach to that duty would give the insurer the right to void the policy at the claim stage. Furthermore, the insured is under a further & continuing duty of utmost good faith to disclose material facts & information and avoid making material misrepresentations as long as the policy is valid. On the other hand, the insurer is equally bonded under both the pre-contractual & continuing duty of utmost good faith to disclose or not to misrepresent material facts to the insured. (Wei Song, The extent of the insured’s duty of disclosure, 2012, P.g. 14)
In common law the materiality test is known as the Prudent Insurer Test, which is referred to a fact is ...

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...es it would not have entered into the contract of insurance (as opposed to having to establish it would not have entered into a contract of insurance on any terms).
• At any point of time the insured sum can be altered (unless the contract has a surrender value or provides a death benefit – in which case it can only do so within three years).
• Moreover if the insurer chooses not to avoid policy or alter insured sum, it can affect the contract in such a way as to place the insurer in the position it would have been in if the non-disclosure or misrepresentation had not occurred.
However the above apply only if:
- Amendments can be done if the mentioned variations are consistent with what other reasonable and related insurers would have done in similar situation.
- Also this will not be applied to a contract which provides death benefits or has a surrender value.

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