This thesis approaches key areas of insurance contract law and their reform from the perspective of Adams and Brownsword’s theory of contract law ideologies. Pursuant to this theory, there are two layers of ideologies underlying contract law. One is the formalist versus realist judicial approaches. The other is that the realist approach being broken down into two limbs, namely market-individualism and consumer-welfarism in contract law. The theory of contract law ideologies is relevant to insurance contract law, because there is substantiated homogeneity between general contract law and insurance contract law, and the relevance consists in the theory’s usefulness both as an interpretive framework and as an evaluative standard. Specifically, from that particular ideological perspective, the thesis interprets the law of disclosure and warranty in insurance, of the requirement of insurable interest, and of the legal rules for insurance payment. Under the theory of contract law ideologies as an interpretative framework, the current law of insurance as far as those three key areas are concerned is found to be much more formalist than realist. The thesis also evaluates the core proposals tentatively put forward by the Law Commission and the Scottish Law Commission for reform in those key areas of insurance contract law. From the theory of contract law ideologies, it can be derived an evaluative standard that, for law reform through legislation, the realist approach is more preferable, and market-individualism should prevail in business insurance whereas consumer-welfarism should prevail in consumer insurance. By this standard, most of the core tentative proposals by the two Law Commissions for reform in the law of disclosure in business insurance and of warranties in insurance are realist and therefore desirable, but two of the proposals need to be amended. The recent proposals in 2011 to retain the requirement of insurable interest are not realist and instead it is better to return to the proposals in 2008. Among the proposals regarding the legal rules of insurance payment, the Scottish approach is preferable for its realist re-characterization of insurers’ primary contractual obligation.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:582729 |
| Date | January 2013 |
| Creators | Han, YongQiang |
| Publisher | University of Aberdeen |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Source | http://digitool.abdn.ac.uk:80/webclient/DeliveryManager?pid=201899 |
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