Edited by Jan M. Smits
Chapter 34: Insurance law*
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 tradition but also elsewhere a certain reluctance to give a unique and general definition of insurance can be noticed. This reluctance is partly due to the fact that two different sorts of insurance, namely indemnitory and nonindemnitory 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.
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