Rob Merkin and Jenny Steele
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199645749
- eISBN:
- 9780191747823
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199645749.001.0001
- Subject:
- Law, Law of Obligations
Aims to fill a significant gap in the general understanding of the law of obligations, by focusing on the place of insurance within it. Argues that the majority of academic obligations lawyers have ...
More
Aims to fill a significant gap in the general understanding of the law of obligations, by focusing on the place of insurance within it. Argues that the majority of academic obligations lawyers have little knowledge of insurance law in its own right, and that the amount of discussion directed to insurance is disproportionately tiny in relation to the impact of insurance and insurance law on the law of obligations and more broadly. Seeks to address this lack of coverage by exploring the multiple influences of insurance in the law of obligations, and the nature and impact of insurance law as an inherent and significant aspect of private law. Combines conceptual and doctrinal analysis in order to inform and engage, while also making a distinctive contribution to broader discussion about the nature of private law, including the role of judicial and public purpose; and the place of formalism and of contextualism. Argues for wider recognition of the multiple impacts of insurance, and suggests that such recognition will have a number of important implications for obligations lawyers. In particular, suggests that recognition of the presence of insurance necessarily marks a departure from the two-party framework sometimes described as definitive of private law. Provides a structured exploration and interpretation of the contemporary role of insurance in the law of obligations, and of its implications, equipping its readers for further enquiry and debate.Less
Aims to fill a significant gap in the general understanding of the law of obligations, by focusing on the place of insurance within it. Argues that the majority of academic obligations lawyers have little knowledge of insurance law in its own right, and that the amount of discussion directed to insurance is disproportionately tiny in relation to the impact of insurance and insurance law on the law of obligations and more broadly. Seeks to address this lack of coverage by exploring the multiple influences of insurance in the law of obligations, and the nature and impact of insurance law as an inherent and significant aspect of private law. Combines conceptual and doctrinal analysis in order to inform and engage, while also making a distinctive contribution to broader discussion about the nature of private law, including the role of judicial and public purpose; and the place of formalism and of contextualism. Argues for wider recognition of the multiple impacts of insurance, and suggests that such recognition will have a number of important implications for obligations lawyers. In particular, suggests that recognition of the presence of insurance necessarily marks a departure from the two-party framework sometimes described as definitive of private law. Provides a structured exploration and interpretation of the contemporary role of insurance in the law of obligations, and of its implications, equipping its readers for further enquiry and debate.
Rob Merkin and Jenny Steele
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199645749
- eISBN:
- 9780191747823
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199645749.003.0007
- Subject:
- Law, Law of Obligations
Examines the part played by insurance arrangements in a wide variety of commercial contracts. Explains that insurance is an inherent aspect of party relationships; and that the contractual ...
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Examines the part played by insurance arrangements in a wide variety of commercial contracts. Explains that insurance is an inherent aspect of party relationships; and that the contractual relationship between parties may be better understood by expanding the frame of analysis beyond two parties, to encompass insurance relationships. Explains the significance of party risk allocation for commercial contracting and underlines the need to explore contracts in their context, including the risk allocation context of market transactions. Sets out some common concerns facing contracting parties and explores the role of insurance in relation to risks of insolvency and defective performance. Examines the obstacles to successful risk allocation through first party and third party insurance, and relevant insuring obligations. Further explores the issues through a case study of insurance provisions in construction contracts, including co-insurance provisions.Less
Examines the part played by insurance arrangements in a wide variety of commercial contracts. Explains that insurance is an inherent aspect of party relationships; and that the contractual relationship between parties may be better understood by expanding the frame of analysis beyond two parties, to encompass insurance relationships. Explains the significance of party risk allocation for commercial contracting and underlines the need to explore contracts in their context, including the risk allocation context of market transactions. Sets out some common concerns facing contracting parties and explores the role of insurance in relation to risks of insolvency and defective performance. Examines the obstacles to successful risk allocation through first party and third party insurance, and relevant insuring obligations. Further explores the issues through a case study of insurance provisions in construction contracts, including co-insurance provisions.
Rob Merkin and Jenny Steele
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199645749
- eISBN:
- 9780191747823
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199645749.003.0008
- Subject:
- Law, Law of Obligations
Turns from contract to tort, exploring the significance of insurance in determining the existence and ambit of tort duties. Explains the perceived differences between contract and tort duties and ...
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Turns from contract to tort, exploring the significance of insurance in determining the existence and ambit of tort duties. Explains the perceived differences between contract and tort duties and explores the significance of party risk allocation arrangements, including insurance arrangements, in relation to tort. Explains that attention to insurance arrangements is not inconsistent with the idea of ‘duty’. Explores the role of insurance arrangements in relation to tort duties in a variety of cases, beginning with ‘contractual matrix’ cases including construction cases; then turning to cases of ‘advice’ between parties and other cases beyond the contractual matrix; to public authority liability; and to employers’ duties to employees. Explains how insurance issues, and particularly risk allocation issues, have influenced the most significant developments in the law relating to negligence duties in particular.Less
Turns from contract to tort, exploring the significance of insurance in determining the existence and ambit of tort duties. Explains the perceived differences between contract and tort duties and explores the significance of party risk allocation arrangements, including insurance arrangements, in relation to tort. Explains that attention to insurance arrangements is not inconsistent with the idea of ‘duty’. Explores the role of insurance arrangements in relation to tort duties in a variety of cases, beginning with ‘contractual matrix’ cases including construction cases; then turning to cases of ‘advice’ between parties and other cases beyond the contractual matrix; to public authority liability; and to employers’ duties to employees. Explains how insurance issues, and particularly risk allocation issues, have influenced the most significant developments in the law relating to negligence duties in particular.
Rob Merkin and Jenny Steele
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199645749
- eISBN:
- 9780191747823
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199645749.003.0005
- Subject:
- Law, Law of Obligations
Explains the hidden significance of insurer subrogation for the law of obligations, explores its operation, and identifies how it may best be controlled. Argues that broadly contractual analysis ...
More
Explains the hidden significance of insurer subrogation for the law of obligations, explores its operation, and identifies how it may best be controlled. Argues that broadly contractual analysis offers the most promising route for judicial control of subrogation remedies; and identifies the significance of party risk allocations. Explores the rationales for insurer subrogation and for the exclusion of life and personal injury policies; and explores the potential use of subrogation on the part of health insurers. Critically analyses the decision in Lister v Romford Ice and Cold Storage Ltd and explains why it should not be seen as authority for a proposed ‘orthodox’ view that insurance is irrelevant to analysis of rights between parties.Less
Explains the hidden significance of insurer subrogation for the law of obligations, explores its operation, and identifies how it may best be controlled. Argues that broadly contractual analysis offers the most promising route for judicial control of subrogation remedies; and identifies the significance of party risk allocations. Explores the rationales for insurer subrogation and for the exclusion of life and personal injury policies; and explores the potential use of subrogation on the part of health insurers. Critically analyses the decision in Lister v Romford Ice and Cold Storage Ltd and explains why it should not be seen as authority for a proposed ‘orthodox’ view that insurance is irrelevant to analysis of rights between parties.
Rob Merkin and Jenny Steele
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199645749
- eISBN:
- 9780191747823
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199645749.003.0010
- Subject:
- Law, Law of Obligations
Shows how vicarious liability illustrates the themes of earlier chapters. Explains the significance of vicarious liability as secondary liability; and shows how the difference between personal and ...
More
Shows how vicarious liability illustrates the themes of earlier chapters. Explains the significance of vicarious liability as secondary liability; and shows how the difference between personal and vicarious wrongdoing is reflected in the insurance position. Explores the role of loss-spreading and insurance in relation to vicarious liability; and considers the relationship between vicarious liability, and contractual structure including the structure of party risk allocations.Less
Shows how vicarious liability illustrates the themes of earlier chapters. Explains the significance of vicarious liability as secondary liability; and shows how the difference between personal and vicarious wrongdoing is reflected in the insurance position. Explores the role of loss-spreading and insurance in relation to vicarious liability; and considers the relationship between vicarious liability, and contractual structure including the structure of party risk allocations.
