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Cousy, Herman --- "Insurance Law" [2006] ELECD 180; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 29

Section Title: Insurance Law

Author(s): Cousy, Herman

Number of pages: 13

Extract:

29 Insurance law*
Herman Cousy


1 Generalities
1.1 Insurance as a contract, a technique and an industry
Cambridge professor Malcolm Clarke begins his treatise on `The law of
insurance contracts' with the following remarkable statement: `The English
courts know an elephant when they see one, so too a contract of insurance.
Judges speak, for example, of "those who are generally accepted as being
insurers". Until 1 December 2001, the legislation under which the conduct
was regulated in the United Kingdom did not attempt a definition or
description of insurance' (Clarke, 2002). Not only under the English tradi-
tion but also elsewhere a certain reluctance to give a unique and general def-
inition of insurance can be noticed. This reluctance is partly due to the fact
that two different sorts of insurance, namely indemnitory and non-indem-
nitory insurance (see Section 2.3 below) are so far apart as to make a legal
definition of insurance in general hazardous. In addition the (private law)
definition of the contract of insurance, that usually makes reference to the
concept of `insurer' and the (public law) definition of an insurer, that in
turn refers to exercising the activity of insurance, are closely interrelated so
as to make separate statutory definitions incomplete.
Scruples and details left aside, a common denominator of usual defini-
tions would say that insurance is a contract whereby, in return for a (vari-
able or fixed) premium, one party, the insurer, promises the other party (the
policyholder) to give coverage ( ...