Bibliographie sélective OHADA

The paper analyses the rights and duties of Nigerian insurers at common law emanating from the contractual relationship between the insurer and the insured as amplified or abridged under the statute. It argues that the statutory incursion into the common law rules of uberrimae fidei, insurable interest, conditions and warranties and assignment of policies, circumscribing some of the rights exercisable by the insurer against the insured to defeat just claims as well as expanding the scope of the insurer’s duties in order to improve on service delivery is salutary. The paper, however, concludes that further reform measures, aimed at addressing some other salient issues, are still essential in the overall interest of the insuring public.

Insurance fraud is a major issue in the insurance industry. Insurance companies around the world are all facing significant losses due to the prevalence of fraudulent claims. These fraudulent claims and subsequent losses suffered by insurers inevitably lead to a dilution of the insurance pool and result in other policyholders bearing the brunt of these losses. The inevitable solution for insurers is to hike the premiums for all other policyholders in order to compensate for their losses caused by fraudulent claims. Insurance fraud is an international problem and it is common for insurers in most jurisdictions to use forfeiture clauses. These clauses aim to protect the insurer by stating that if the policyholder should submit any type pf fraudulent claim, the policyholder will forfeit the entire claim. There has been much controversy around the validity and fairness of these clauses. This thesis seeks to provide an overview of the prevalence of fraudulent insurance claims in South Africa, England, Australia and New Zealand. Moreover, it will consider the fairness of forfeiture clauses in light of the fundamental movement towards policyholder protection in recent years both in South Africa and in those jurisdictions that form part of the comparative study. The thesis concludes that forfeiture clauses form an indispensable part of short-term insurance contracts and are justifiable and therefore lawful. It is, however, submitted that insurance companies have a duty to disclose the nature and extent of forfeiture clauses at the inception of the policy and again at claim stage. By using so-called staggered disclosure, insurers provide policyholders with the opportunity to consider their claim and the means with which to prove it in order to avoid instituting a fraudulent claim. The thesis recommends that these rules pertaining to staggered disclosure should form part of the 2018 Policyholder Protection Rules, together with a statutory definition of insurance fraud.