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CHAPTER 4 SPECIFIC ISSUES RELATING TO INCORPORATION

Reinsuring Clauses

4

SPECIFIC ISSUES RELATING TO INCORPORATION

WAIVER OF DEFENCES CLAUSE IN THE ORIGINAL INSURANCE

4.01 It is difficult to see sometimes how a clause which is perfectly appropriate to a direct policy can operate between the parties to the reinsurance contract. An illustration of this is HIH Casualty & General Insurance Ltd v New Hampshire Insurance Co 1which raised the position of a waiver of defences clause by which the direct insurer waived its right of disclosure from the assured and of avoidance in case of misrepresentation. The full facts of this case were given earlier in the discussion of the general criteria for the incorporation into reinsurance of terms from the direct policy,2 but are outlined here for the sake of convenience. Clause 8 of the original policy provided:

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