| Warranty in insurance law originated from the Britain's marine insurance practice, the legal institution of warranty is going through deeply development after centuries; its content is enriched constantly, and has formed very complete system. It originated just because the insurers wanted to control their risks. But today with the development of marine insurance market, people find gradually that this system is harmful to the interests of the insured while protecting the insurer's interests. The traditional warranties are regarded as the "trump card" of the insurer. Especially the strict performance principle has received extensive criticism. People think the strict performance principle is so severe that it causes the imbalance of distribution of interests between the insured and the insurer.This thesis introduces the basic theory of warranties by the historical and comparative methods, from the view of fairness, and analyzes the existing defects of warranties, and discusses the reform of warranties according to the legislation of some countries and their practices.The first chapter defines warranty and its nature, expound the creation and development of warranties, prove the rationality of Warranties' existence. The warranties in the insurance law, which are different from those in other laws, refer to that the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled or whereby he admits or negatives the existence of a particular state of facts. In UK-US law, the promissory warranty belong to condition subsequent, and the affirmative warranty belong to the contract preconditionThe second chapter introduces the essential content of warranties in United Kingdom, base on MIA1906 and some judicial precedents. It concludes classification, definition, interpretation rule, principle of stringent performance, consequence of violation, wavier in warranties. The Seventh part introduces the warranties in the law of the country and region out of English.The third chapter evaluates the defects of the warranties in the marine insurance and expounds the trend of the development. The traditional warranties are so strict to the insured that the insurer can often cancel the contract or refuse to indemnify, which is unreasonable. In order to overcome this kind of defects, and set up a fair and reasonable lay system, the practice of legislative and juristic organs in some countries such as U. S. A, Canada and Australia, introduce the standard of importance and standard of correlation or causal relation into the system of the warranties.The fourth chapter constructions the systems of warranties in our country. In the field of marine insurance, there is need to establish systems of warranties, and there is not need in overland insurance. The fourth chapter discusses the shortcomings of the warranties system in China, and gives some legislative suggestions to perfect it. In Britain, the performance of the obligation of warranties is the condition precedent for the insurer to undertake the liability of insurance. Therefore the breach of warranties discharges the liability of insurance. But in China the warranties are not treated as "condition precedent", but as a special provision of the contract, unless both sides have other agreements. The breach of warranties only confers the insurer with the optional rights to cancel a contract. |
