Good Faith in Insurance and Takaful Contracts in Malaysia: A by Haemala Thanasegaran

By Haemala Thanasegaran

This booklet examines strong religion in non-marine coverage and takaful (Islamic coverage) contracts in Malaysia, and proposes holistic legislation reform of an analogous. the 1st two-thirds of the publication include an in depth comparative felony research of the problems among Malaysia, Australia and the uk, with the ultimate 3rd devoted to a socio-economic research of legislation reform and recommendations for legislations reform fairly fitted to Malaysia.

The publication evaluates even if the obligation of maximum stable religion (the cornerstone of coverage and takaful contracts) is successfully regulated and, in flip, saw through insurers (and takaful operators) and insureds alike in Malaysia. The adequacy of the coverage Act 1996 (Malaysia), the Takaful Act 1984 (Malaysia), the monetary prone Act 2013 (Malaysia) and the Islamic monetary companies Act 2013 (Malaysia) is evaluated, in addition to the helping infrastructure and oversight measures brought through the Malaysian govt. In doing so, The ebook examines the obligation of maximum strong religion from either a doctrinal and a social technological know-how viewpoint, with a purpose to suggest compatible criminal reform.

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35 Ibid. 36 A useful account of this debate can be found in Merkin (2010, pp. 291–302). 37 [2002] Lloyd’s Rep I R 573 (Mance LJ). 38 [2006] Lloyd’s Rep I R 385 (Waller LJ). 39 [2008] EWCA Civ 1206 (Toulson LJ). 40 Soyer, above n 23, 59 however argues that there is still a possibility that the treatment of fraudulent claims may be based on the implied term theory proposed by Hoffmann LJ in Orakpo v Barclays Insurance Services [1995] LRLR 443 (that has not been discredited) which might come in handy where an insurer incurs expenditure in investigating fraudulent claims.

Support for this reasoning can be found in Hirst J’s judgment in Black King Shipping v Massie (The Litsion Pride)17 where a post-contractual duty of good faith was clearly said to exist between both insurers and insureds. 23 It would appear that this reasoning is more in line with the recent reforms that have taken place in insurance. 3 Continuing Nature of the Duty of Utmost Good Faith The notion of good faith in insurance contracts as embodied in s17 of the Marine Insurance Act 1906 (UK) was introduced in the landmark case of Carter v Boehm24 where Lord Mansfield stated that: 17 [1985] 1 Lloyd’s Rep 437.

52 Slade LJ53 at the Court of Appeal cited several reasons for this. First, that the court has the power to grant rescission of the contract in cases of duress and undue influence as well as for bad faith, none of which carries any right to damages. Secondly, the words of the Marine Insurance Act 1906 (UK) provide no indication that Parliament contemplated the remedy of damages; and lastly, it would also have to be reciprocal and therefore, result in causing greater hardship to the insured if the roles were reversed, since there is no need to prove fault.

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