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Lowry, John --- "Pre-contractual Information Duties: The Insured’s Pre-Contractual Duty of Disclosure – Convergence Across the Jurisdictional Divide" [2012] ELECD 158; in Burling, Julian; Lazarus, Kevin (eds), "Research Handbook on International Insurance Law and Regulation" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on International Insurance Law and Regulation

Editor(s): Burling, Julian; Lazarus, Kevin

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849807883

Section: Chapter 4

Section Title: Pre-contractual Information Duties: The Insured’s Pre-Contractual Duty of Disclosure – Convergence Across the Jurisdictional Divide

Author(s): Lowry, John

Number of pages: 37

Extract:

4 Pre-contractual information duties: the insured's
pre-contractual duty of disclosure ­ convergence
across the jurisdictional divide
John Lowry



1. INTRODUCTION

This chapter examines the pre-contract duty of disclosure borne by proposers for
insurance. It traverses the English law on non-disclosure and misrepresentation as a
means of setting the backdrop against which divergences of approach in the USA,
Australia and Germany can be assessed. A particular focus of the chapter lies not merely
on the deficiencies of the current law but is also directed towards examining reform
proposals across the jurisdictions, together with recent legislative developments in the UK
and Germany. It will be demonstrated that a remarkable degree of consensus has emerged
across the jurisdictional divide with respect to the scope of the insured's duty not to
conceal or misrepresent facts material to the underwriting of risk.
While non-disclosure and misrepresentation are distinct defences to a claim, they are
frequently treated as one and the same thing by the English courts,1 no doubt because of
the common practice of insurers raising both by way of defence to a claim. Non-
disclosure is concerned with the insured's duty to volunteer material facts, while misrepre-
sentation concerns the insured's duty to answer the insurer's questions (generally
contained in proposal forms) accurately and to ensure that any statement volunteered is
true. The difficulty in drawing a bright line between non-disclosure and misrepresentation
in insurance contracts can be seen in relation to an ...