Bibliographie sélective OHADA

The security cession of the rights under life policies marries two separate areas of the law: The Law of cession and the Law of Insurance. This makes for a complex union since varying common law and statutory principles ����ind application, and in reality trade practices also play a role. In theory a cession in securitatem debiti may take one of two possible constructions, namely a pledge or a fiduciary security cession, and each has its own advantages and disadvantages. Disparity arose when judicial preference was given to the pledge construction while academics preferred the other. The problem, however, was larger than a disagreement as to the better construction. The underlying problem was that there was a lack regarding clarity as to the practical operation of security cession of life policies, in addition to the problems surrounding the construction thereof. As a solution to this problem some academics have suggested legislative intervention. The South African Law Reform Commission, nevertheless, advised against it in 1991 and was of the opinion that the issue was one which our courts would eventually solve. In the 22 years since then, our courts have merely confirmed its preference for the pledge construction. The intricacies of security cessions of life policies have seen no further judicial development. It is probable that the courts do not have enough practical information at hand to advance this area of the law. An investigation into the operation of such cessions in practice was thus necessary. The outcome of the practical investigation reveals that legislative intervention is indeed a viable solution especially since the issues are too complex for the courts to solve. As part of this work, legislation has been drafted and it is recommended that this is inserted into the Security by Means of Movable Property Act .

Liability insurance concerns an insured’s insurance of its legal liability towards a third party for the latter’s loss. This specialised type of insurance is rather neglected in South African insurance law. There is a lack of understanding of the intricacies of liability insurance and its unique challenges. This flows primarily from its complex nature as third-party insurance, which involves legal obligations between multiple parties, and a lack of statutory regulation of the distinctive contractual aspects of liability insurance. Furthermore, limited authority exists on contentious legal aspects as a result of the relatively small number of judicial decisions in this field of law. It is also evident that liability insurance constantly evolves as new grounds of liability emerge and new insurance products develop in response to the changing demands of society. The rise of consumerism and the increase in third-party claims amplify the economic significance of the law of liability insurance in South Africa. A substantial knowledge gap remains in our jurisprudence, irrespective of the recent introduction of new statutory instruments aimed at regulating insurance practice in general. These reforms have not as yet been applied critically to liability insurance, and no specialised legislation in South Africa regulates aspects of this branch of insurance as is the case with microinsurance. The focus in this thesis is on two main issues: the insurer’s duty effectively to indemnify the insured, and the insurer’s defence and settlement of third-party claims brought against the insured. As a subsidiary theme, this thesis analyses legal uncertainties that may persist during pre-contractual negotiations, the liability insurance contract lifecycle, and even after the expiry of the contract. Legal challenges can be addressed by novel and creative application of the national law. Potential solutions can be gleaned from the other progressive jurisdictions reviewed – English and Belgian law. It is evident that this research may prompt Parliament to develop specific rules and regulations for liability insurance contract law. This thesis includes a check list of some of the most important disclosure duties for procuring liability insurance cover, its operation, and claims processes.

This research sought to establish whether the general acceptance that the common construction and engineering contracts as falling within the classification of the locatio conductio under South African law is correct. As the classification of a contract attracts specific essentialia and naturalia, and then too certain implied terms one example of an implied term that would have practical relevance is specifically investigated: The warranty against latent defects. Through this example I seek to demonstrate the relevance and importance of establishing what the classification of these contracts is, and its ensuing essentialia and naturalia. The investigation commenced by firstly considering the classification of the common building, construction and engineering contracts, with reference to the South African publications of JBCC and GCC, as well as the internationally published FIDIC Silver Book, FIDIC Yellow Book, and FIDIC Red Book, as well as the NEC ECC Option A and Option B. With alternate dispute resolution mechanisms, such as adjudication and arbitration, resulting in limited publications by way of case law and academic writing on the subject (specifically in South Africa), English law and German law were also consulted. It was established that, unfortunately, the classification of the common building, construction and engineering contracts under South African law is problematic: It does not fit the ordinary and previously accepted classifications, specifically that of the locatio conductio. This makes it questionable whether the warranty against latent defects could be, and should be, implied into any one of these contracts. The recommendation, accordingly, is that it is crucial for the construction and engineering industry to carefully consider and develop the true and relevant essentialia and naturalia applicable to these contracts. Only then will there be certainly as to what may be implied into these contracts, and what will not so be implied. Until this is achieved, the parties to these contracts, in order to have certainty, must deal with aspects such as the warranty against latent defects by way of an explicit written term in the particular contract.