2.1 - The Legal Context for Property Insurance

Question 1

Civil Law

Answer 1

-concerned with settling disputes:

1. whether to rule in favour of the plaintiff and
2. whether to assess compensation

-objective of the courts is to find remedies based on reasonable standard of Conduct

Question 2

In Canada, there are 2 main systems of Civil Law

Answer 2

1. Common Law
2. Civil Code of Quebec

Question 3

Common Law definition

Answer 3

-used in Provinces and territories other than Quebec
-a system of laws originating and developed in England by judges based on court decisions and similar tribunals.
-also known as case law or the law of precedent
-influenced by canon (Church) law and Roman Law
-evolved into a mix of both case law and statute law

Question 4

Civil Code of Quebec

Answer 4

The Civil code in force in the Province of Quebec

-predecessor - the “Civil Code of Lower Canada” was based in part on France’s Napoleonic Code which influenced the civil law in many part of Europe, and was itself based in part on the Code of Justinian (sixth-century Byzantine Emperor
-expectations for behaviour outlined in the Civil Code and Quebec’s Charter of Human Rights and Freedoms are the basis for courts to formulate their opinions
-a court may consider the outcome of prior legal cases, it is not obliged to

Question 5

Precedent

Answer 5

A legal description that serves as a basis to resolve subsequent disputes in similar cases

Question 6

Case law

Answer 6

-The body of previously decided cases that courts review for guidance on cases currently in dispute
-If case law has not been established in Canada, decisions in other countries such as England or the United States may be sought

Question 7

Statute Law

Answer 7

A law set down in a government and passed by legislature

-Parliament and Provincial/territorial legislatures have passed laws into these written forms
-in some cases statute law has been derived from legal principals and criteria developed by case law

Question 8

Insurance Laws

Answer 8

-not drafted by courts but rather are introduced in government forums
-legislative bodies write the laws, which then must be enforced by the courts

Question 9

Contra Proferentem

Answer 9

A legal term that provides that any ambiguity in a contract must be interpreted against the person who drew the contract because that person had the opportunity to make it clear

-if there is inconsistency between the Act and the Insurance contract the act will always prevail unless the coverage afforded under the policy is broader in favour of the policyholder

Question 10

Relief from forfeiture

Answer 10

An insured’s failure to comply with a particular condition of the policy forfeits the insured’s claim under the policy. However, the insured might argue that, in some circumstances, the policy condition is unjust or unreasonable, the insured can apply to a court for relief from forfeiture - the insured may be excused in whole or in part - that is relieved - from perfect compliance with that particular condition