Circumstances affecting the Risk in Life Insurance

Circumstances affecting the Risk in Life Insurance Risk in life insurance is the risk of death at an early date due to disease or distinguished from accident In. Thomson vs. Weems 1884 9 AC 671,681 Lord Blackburn observed “Those whose business is to insure lives calculate on the average rate of mortality and charge a premium which on that average will prevent their being loses. a. Age of the proponent. b. His family history. c. Personal health d. Moral history including habits of life past and present. e. Geographical position & occupation Age of the Proponent Age is an important material fact in life insurance as the rate of premium depends on theage of the assured. Case law:-Alliance and strutgarter Vs. Hemantha Kumar AIR 1938 Cal 641 Once it is written Then it is admitted In case of M.K. Shah V. Yorkshire Insurance Co. AIR 1938 Bom 161 Once the age is admitted by the insurer then correctness of the age cannot be questioned unless the insurer can prove that his admission was procured by the fraud of the assured. {Section 45 of the Insurance Act 1938 says After 2 years company have no right to reopen the things.} The section generally provides that the correctness of a representation shall not be questioned by an insurer after two years but the proviso specifically makes an exception with reference to the representation of the age in a proposal form. • According to this the insurer is entitled to call for proof of the age from the assured at any time if the same had not been proved and admitted as true by an endorsement on the policy notwithstanding the fact that the requisition of the proof has been made by insurer after two years. • When once a date is given as date of birth and on subsequesnt verification after the issue of the policy the date is found to be wrong it may result in either Overstatement of Age :---------- Overage Understatement of Age:---------Underage In either case the original representation becomes a misrepresentation, but effect on the validity of the policy is different.  If it is overstatement:- it is considered to be an innocent misrepresentation as it will be against the interest of the maker and so in such cases the validity of the policy is not affected. In such cases if the insurer accepts the proof of age, he can be compelled to refund the excess payment towards the premium and to adjust the rate for future payment according to the proved age.  But when it turns out to be an understatement of age, if is proved gross understatement or is proved to have been made willfully, it amounts to fraud and the policy become voidable. 1. The sum assured may be reduced to such amount 2. The assured may be required if he wants to continue the policy for the entire insured amount to pay the difference of premium with interest. Hemmin’s v/s Scetore (1905) ch 365 Misstated age as 41 years through in fact she was at that time forty-four years, of age. This fact was brought to notice of the insurers in 1997 and inspite of that the insurers accepted the premiums for two subsequent year later they demanded form the assignee a highter rate of premium ande also the difference of premiums accumulate to date at the revised rate premium and the insurers refused to receive the same. If after becoming acquainted with a breach of warranty the office continue to treat the policy as valid it will be held to have waived the breach. Family History The risk in life policies the assured and heredity throws sufficient light and play an important role in the determination or the probable longevity of a person. In Asia Assurance Company V/s Kartiya Devi 1936 Cal 437 The total numbers of bothers and sisters had to be filled in one column and the actual number alive in another column. The assured filled the first column but left the other b lank. It was helf that answer amounted to suppression of truth and hence amounted to misrepresentation and the policy was void. Personal Health and Moral History The habits of life, past and present and which tend to shorten the life must be disclosed ,e.g. the use of opium, tobacco or alcohol. • The present state of health is important. • The past illness also become important • Regulat habits regarding food, sleep etc. tend to increase the longevity. Geographical Position The place where the applicant lives is important as climate and environment have an appreciable effect on one’s health. Unhealthy surrounding have a tendency to shorten the life. Further, the particular, place may be subject to earthquake, volcanoes and floods. Huguenin v/s Rayley Where the assured gave his residential address but actually he was not there at that time. It was held that the omission of this fact was fatal to the policy and the insurance company was not liable. Occupation If it is a dangerous occupation like a soldier, sailor, airman or workman in an ammunition factory the insurers charge a higher rate of premium.

Community and Law

III. Community and Law:-

Community means the people living in one particular area of people who are considered as a unit
because of their common interest, background of nationality.  India is one community, so law made
in the territory of India shall be uniform, without any discrimination.  In this regard, our constitution
has guaranteed many rights.  There is provision for single citizenship in India    which focuses that
India is one community only; there is no scope for any discrimination.  This non-discrimination is not
absolute, but provided with some exceptions.

1. Non-discrimination:- The preamble of the constitution sets that the goal of the constitution and
secure to all citizens equality: (i) of status (ii) of opportunity; and (iii) to promote among them all
justice, liberty, equality and fraternity.  The goal  set by preamble is extended by Articles 14 to
18 of the Constitution.  Art. 14 provides for equality before law and equal protections of the
laws. Art. 15 provides for prohibition of discrimination on grounds of religion, race, case, sex or
place of birth. Art. 16 provides for equality of opportunity in matters of public employment, Art.
17 provides for abolition of untouchability.
2. Reservation for rural area is unconstitutional:- Reservation for candidates coming from rural
area is unconstitutional but for those who come from Hills and Uttarakhand area is valid. It was
observed by the Supreme Court that these  areas were instances of socially and educationally
backward class citizens.
3. No advantage of reservation on conversion to non-reserved class:-The Supreme Court has held
that the advantage of reservation to any reserved class person will not be available on
conversion to non-reserved class.
4. No reservation on basis of domicile:- The Constitutional Bench of the Supreme Court has held
that reservation on the basis of domicile is not permissible in terms of Art. 15(1) of the
Constitution as there does not exist any separate State domicile in India, Supreme Court has
specifically banished residential requirement for purpose of admission into PG medical courses
for all times. (Saurab Chaudri vs. UOI (2003) 

SIR HENRY MAINE'S LEGAL THEORY

·         SIR HENRY MAINE (1822 – 1888) :    

Savigny’s method of the historical school was followed in England by Sir Henry Maine, Lord Bryce & many others who made studies of various legal systems on historical lines.  Maine published his first work ‘Ancient Law’ in 1861.  This is considered to be the manifesto of his lifework in which he stated his general doctrines.  He also wrote Village Communities (1871), Early History of Institutions (1875) & Dissertations of Early Law and Custom (1883).  He was law member in the Council of the Governor–General of India b/w 1861 & 1869, which provided him an opportunity for the study of Indian legal system.

Maine inaugurated both comparative & anthropological approaches to the study of law.  Unlike Savigny, Maine favoured legislation & codification, he did not share Savigny’s mystique of the Volksgeist & he used the study of legal history mostly to understand the past & not to determine the future course & standards.

Maine classified the development of law in the following stages : 

(i)       In the beginning, law was made by the commands of the ruler believed to be acting under the divine inspiration, e.g., Themistes of ancient Greek.  When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration.  The king was not the maker of law, but merely an executor of judgments of the God.

(ii)      In the second stage, the commands crystallise into customary law.  Customs seem to have succeeded to the prerogatives of the king.  Hwr, they don’t appear to hv pretended to direct inspiration for each sentence & the progress of thought no longer permits the solution of a particular dispute to be explained by supposing an extra–human interposition.

(iii)     In the third stage, the knowledge & administration of customs goes into the hands of a minority, due to the weakening of the power of the original law-makers, usually of a religious nature, e.g. priests.  The ruler is superseded by a minority who obtain control over the law.

(iv)     In the fourth stage, the law is promulgated in the form of a code.

Static & Progressive Societies :

The growth of law was on a uniform basis amongst the primitive societies upto a certain stage of development.  The societies, which do not progress beyond the fourth stage & close the era of spontaneous legal development, r static societies.  The stationary/static societies don’t move forward beyond the era of the codes.

The societies, which go on developing their law by new methods, r called progressive societies.  They develop their law with the help of three instruments / methods, namely, legal fiction, equity & legislation, in order to make law harmonious to social needs & change.

(i)       By use of legal fictions, law is altered to changing needs of the society, while it is pretended that it remains what it was.  Thus, legal fictions change the law according to the changing needs of the society without making any change in the letter of law.  He thought fictions should be abandoned in a society because they made the law more difficult to understand & harmonise legal order.

(ii)      Equity is used to modify the law as a set of principles invested with higher sacredness than those of original law.  Equity came to remove the rigidity in law & to remove injustice, delay & other inconveniences.  According to Maine, equity is a body of rules existing by the side of the original civil law & founded on distinct principles.

(iii)     The final stage comes with the legislation, which is the last effective instrumentality of quick social reform.  Law can be enacted by explicit declarations of intention incorporated in the language of legal enactments.  Maine regarded it as the most desirable method of legal change.

In early societies–both ‘static’ & ‘progressive’, the legal condition of the individual is determined by status, i.e., his claims, duties, etc. are determined by law.  The march of progressive societies witnessed the disintegration of status & the determination of legal condition of the individual by free negotiation on his part.  The development of societies was summed up by Maine in the following famous phrase, “If we employ status to signify the conditions only & avoid applying the term to said conditions, we may say that the movement of the progressive societies has hitherto been a movement from status to contract”.

From a condition of society, in which all the relations of persons wr summed up in the relation of family, we seemed to hv steadily moved towards a phase of social order in which all these relations arose from free agreement of individuals.

According to Maine, status is a fixed condition in which an individual finds himself without reference to his will and of which he can’t divest himself by his own efforts.  The group, not the individual, is the primary unit of social life.   With the progress of civilisation, this condition gradually gives way to a social system based on contract.  This is the age of the standardised contract & of collective bargaining (trade unions, business associations, etc.).  Even the contracts, which an individual enters into in everyday life, have been standardised as contract for water, electricity or contract for a carriage with a railway company.  The freedom of contract is, thus, being curtailed every day.

Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age.  In India, the policy of ‘mixed economy’ has assumed greater control over individual liberty & freedom.  The State can impose reasonable restrictions in the interest of the public {Art. 19(6)}.  Pollock says that this theory is limited only to laws of property because personal relations like marriage, minor’s capacity, etc. are still matters of status & not of contract.

However, in one sense, Maine’s theory still holds good.  The trend of legislation in undeveloped or developing countries is to remove personal disabilities, which arise due to membership of a class (status).

On the whole, Maine presented a balanced view of history of law.  Savigny had explained the relation b/w community & law, but Maine went further & pointed out the link b/w the developments of both.  His conclusions are based on comparative study of different systems & hence their value is greater than other studies based on Roman Law exclusively.  Influenced Friedmann, Dicey, etc.

In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an important piece of comparative legal research to a legal theory inspired by principles of historical evolution.  His great contribution to legal theory specially lies in the combination of what is best in the theories of both Montesquieu & Savigny.  Maine’s theory avoids the danger of an excessive disintegration of theoretical laws of legal evolution.  It is also free from the abstract & unreal romanticism, unlike Savigny’s theory.

·         Difference b/w Historical & Analytical School :          

S.No.	Analytical School	Historical School
1.	Law is the command of the sovereign (created by sovereign).	Law is found & not made.
2.	Law is enforced by the sovereign.	Law is independent of political authority & its enforcement.
3.	Example of typical law is statute.  Custom isn’t law, until its validity has been established by a judicial decision/by an Act of legislature.	Example of typical law is custom.  Custom is law by itself.  It does not require State recognition to become a law.
4.	Force of politically organised society is the basis of law.	Law rests on the social pressure.
5.	Judges find themselves to interpretation of statute.	Judges to consider only history of legislation.
6.	Applicable to developed countries – matured legal systems.	Applicable to developing countries – primitive legal institutions of society.

HISTORICAL SCHOOL – SAVIGNY & MAINE

JOHN AUSTIN'S THEORY OF LAW AND POSITIVISM

JOHN AUSTIN

·         JOHN AUSTIN ( 1790 – 1859 ), who was a Prof. in London University, is the founder of the Analytical School.  He is considered as the Father of English Jurisprudence.  He was elected to the chair of Jurisprudence in the University of London in 1826.  Then he proceeded to Germany & devoted some time to the study of Roman Law.  Austin, a disciple of Bentham, is a positivist & concerned with ‘what law is’ & ‘not what law ought to be’.  ‘Positus’ means ‘as it is’.

The first six (6) lectures were published in 1832 under the title ‘The Province of Jurisprudence Determined’, while rest were published posthumously in 1861.  He avoided metaphysical method, which is a German characteristic.  The method, which Austin applied, is called analytical method & he confined his field of study only to ‘positive law’.  Therefore, the school founded by him is called by various names – ‘Analytical’, ‘Positivism’, & ‘Analytical Positivism’.  Prof. Allen thinks it proper to call the Austin’s school as ‘Imperative School’ on the basis of is conception of law, i.e., ‘Law is Command’. 

For Austin, the matter of jurisprudence is ‘positive law’; ‘law simply & strictly so called’ or ‘law set by political superiors to political inferiors’.  He believed that ‘Law’ is only an aggregate of laws & defined ‘law’, “As a rule laid down for the guidance of an intelligent being by an intelligent being having power over him”.  To him, law is the command of a sovereign requiring his subjects to do or forbear from doing something.  There is an implied threat of ‘sanction’ if the command is not obeyed.

L A W

-----------------------------------------

Law properly so called               Law improperly so called

           -------------------------------                      --------------------------------

Law by God               Law by humans          Law by analogy          

or Divine Law               / Laws  set by                                     Law by metaphor

                                       men for men

          --------------------------------             

Law by political         Law  by  superiors     Law    of   fashion       All   the   laws

superiors       to         to   inferiors,   but     & public opinion,        of nature, i.e.,

political inferiors       the superiors r not     i.e., international       law of motion,

                                  political superiors     law,   customs   &      gravitation,

                                                                   traditions                    etc.

This is called

Positive Law                          --------------------------

                                               Positive   Morality

He distinguished b/w ‘laws properly so called’ & ‘laws improperly so called’.  The former r general commands addressed to the community at large & enjoined classes of acts & forbearance.  They r divided into laws set by God / divine law / law of God & laws set by men to men.  Laws set by men to men also fell into 2 categories – the first consisted of laws set by political superiors to political inferiors.  This was termed by Austin ‘positive law’ or ‘law simply & strictly so called’ & was, to him, the subject matter of jurisprudence.  Thus, law properly so-called must hv 3 elements– (i) command, (ii) sanction & (iii) sovereign.  The second category consisted of laws set by men to men neither as political superiors nor in pursuance of rights conferred upon them by such superiors, e.g., those set by a master to a servant or the rules of a club.  They r still laws properly so called because they r commands, but he distinguished them from positive law by giving them the term ‘positive morality’. 

Analogous to the laws of the latter class r a number of rules to which the name ‘laws improperly so called’ is given.  They are opinions or sentiments of an undeterminate body of men & laws of fashion or honour.  He places intl. law under this class.  In the same way, there r certain other rules which r called law metaphorically – laws of nature.  They are laws improperly so called.

‘Positive law’ (law simply & strictly so called or law set by political superiors to political inferiors) is the only proper subject matter of jurisprudence.  Jurisprudence is the general science of positive law. 

Laws properly so called are species of commands.  But being a command, it flows from a determinate source or emanates from a determinate author.  For whenever a command is expressed of intimated, one party signifies a wish that another shall do or forbear & the latter is obnoxious to an evil which the former intends to inflict in case the wish is disregarded.  The key to understanding law properly so called lies in duty which is created by the command of a sovereign.  Duty & sanction are correlative terms – whenever duty lies, a command has been signified & whenever a command is signified, a duty is imposed. 

In a nutshell, by law, Austin means command, sanction & duty (C+S+D), which r inextricably linked & can’t be separated.  According to him, there r 3 kinds of laws, which, though not commands, r still within the province of jurisprudence:

(i)       Declaratory of Explanatory Laws : Austin does not regard them as commands because they r passed only to explain laws already in force, e.g., General Clauses Act.

(ii)      Laws to Repeal Laws : These too r not commands but r rather the revocation of a command.  They release from duties imposed by existing laws & r named permissive laws.

(iii)     Laws of Imperfect Obligation : These laws have no sanction attached to them.  Thus, there is a duty, but in case of non-compliance, there is no sanction, e.g., D.P.S.P., F.D.s, etc.

Criticisms of Austin’s Theory :                                             

(i)       Customs ignored : For Austin, law is the command of sovereign.  In the early times, not the command of any superior, but customs regulated the conduct of the people.  Even after coming of State into existence, customs continued to regulate the conduct.  Therefore, customs should also be included in the study of jurisprudence, but he ignored them.  Customs have been in existence since old times.  Customs hv also bn an important source of law.  As per Austin, customs can only be a law if the sovereign accepts them as law, while customs provide the basis on which the law can be based.  Thus, even if the sovereign does not recognise them as law, customs hv always bn an important source of law & can’t be ignored.

(ii)      Judge-made law : There is no place for judge-made law.  In the course of their duty (while applying precedents & interpreting the law), judges make law.  Though an Austian would say that judges act under the powers delegated to them by the sovereign, therefore, their acts r the commands of the sovereign.  However, in modern times, judges perform a creative function & Austin’s definition of law does not include it. 

(iii)     Command theory untenable : Command presupposes a commander.  No indeterminate party can command, expressly or tacitly or can receive obedience or submission.  The question is whether he can be discovered, who might be regarded as having commanded the whole corpus of law.  In democratic system, it is not possible that one person commands. 

(iv)     Sanction is not the only means to induce obedience : As per Austin, it is the sanction alone which induces the man to obey law, while it is open to criticism from many points of view as there r many other considerations such as reasoning, logic, love, etc. due to which people obey.

(v)      International Law : Austin put Intl. Law under positive morality a/w the law of honour & law of fashion.  The so-called law of nations consists of opinions or sentiments.  It, therefore, is no law properly so called.  The main ingredient of law lacking in Intl. Law is sanction, but this alone will not deprive from being called law.  Now-a-days, Intl. Law is playing an important role &, thus, it can’t be totally negated.  Hence, nobody will accept that Intl. Law is not law.  Therefore, according to Austin, a very imp. branch of law shall be excluded from the study of jurisprudence.

(vi)     Relation of law & morals overlooked : To Austin, law isn’t concerned with morals but this isn’t correct proposition.  Law is not an arbitrary command, but it is a growth of an organic nature.  Moreover, law has not grown as a result of blind forces, but it has been developed consciously & has been directed towards a definite ends.  It isn’t completely devoid of ethical & moral elements.  Any law, which is devoid of ethics or morality, can’t withstand the test of time.  People don’t accept it whole-heartedly because of it being unethical.  Hence, morals hv always bn an integral part of law. 

(vii)    Other Laws ignored : Austin does not cover procedural laws, e.g., Civil Procedure Code, etc.  He also does not talk about laws conferring privileges, e.g., Payment of Bonus Act, Gratuity Act, etc.

Applicability of Austin’s Theory In India :                           

(1)      We don’t hv a legally unlimited or indivisible sovereign.  Our constitution is supreme, though it can be amended, but basic structure can’t be. 

(2)      Though there is separation of powers, yet sometimes judiciary makes law (Art. 141 – Vishakha’s case & D.K Basu’s case). 

(3)      Ordinance making power of the Governor & the President (Art. 123 & 213);

(4)      We have quasi-federal system.  Though the President has the supreme power, but the same is exercised by the Prime Minister. 

(5)      DPSP r not positive law as per Austin.  Though DPSP r non-justiciable, yet they r important as they govern the guidelines for the society.  Thus, the principle of ‘is’ & ‘ought’ fails.

Comparison of Bentham & Austin :

(i)       Bentham provided a deeper & more adaptable theory.  His concept of sovereignty was flexible as it avoided indivisibility & illimitability.  He was, thus, able to accommodate the division of authority b/w organs as in a federation or division in certain areas as well as restrictions of authority.

(ii)      His concept of law was broader than Austin’s.  He avoided the absurdity of ‘law properly so called’. 

(iii)     His sanction was both wider & less important than Austin’s sanction.  Laws are still laws even though supported by moral or religious sanctions or they may even be accompanied by rewards.  He, thus, had no need to resort to a sanction by nullity. 

ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW

JEREMY BENTHAM'S THEORY OF LAW

   JEREMY BENTHAM

      JEREMY BENTHAM ( 1748 – 1832 ) laid down the foundation of positivism in the modern sense of term.  He was a ferment champion of codified law & of reforming English law, which was, according to him, in utter chaos.  He distinguished b/w ‘expositional jurisprudence (what the law is)’ & ‘censorial jurisprudence (what law ought to be) or the art of legislation’.  The main function of the former was ‘to evaluate law’, while that of the later ‘to analyse law’.       In seeking answers to the questions { What is a penal code of laws? / What is a civil code? }, he had to investigate the nature of law, which led him into a maze through which he mapped out a path of laws in general.  This was finished more or less in 1782, but remained unpublished till 1939 when Prof. Everett disinterred it & published under the title ‘The Limits of Jurisprudence Defined’ in 1945.  A revised edition was published as ‘Laws in General’ in 1970 under the editorship of Prof. H.L.A. Hart.

Bentham gave the ‘Principle of Utility’, which says, “Only those laws are important, which give maximum happiness to the maximum number of people”.  Those laws, which r not giving maximum pleasure & giving maximum pain to the people ought to be removed.  Pleasure & pain r the basic ingredients of this principle.  He also gave “Hedonistic Calculus, which is the imaginary principle to judge pleasure & pain of any law”.  

ANALYTICAL SCHOOL / POSITIVISM (BENTHAM & AUSTIN); HART’S CONCEPT OF LAW & KELSEN’S PURE THEORY OF LAW