Lloyd's Maritime and Commercial Law Quarterly
ON THE USE AND ABUSE OF CUSTOM AND USAGE IN REINSURANCE CONTRACTS
William Hoffman*
At common law, a litigant asserting that industry practice or trade usage affects the meaning of a contract must prove iter alia that the practice or usage prevailed in the relevant market at the time of contracting. This proof requirement is critical for reinsurance contracts, which often rely on usage for meaning. However, a few American courts have misapplied or even ignored these standards in recent reinsurance cases, creating questionable precedent for future cases. This article analyses the proof requirements applicable to reinsurance usage and then takes an in-depth look at two areas in which American market reinsurance usages have been at issue.
The common law’s malleability to suit the necessities and usages of the mercantile and commercial world is one of its most valuable characteristics: Mercer County v. Hacket (1863) 68 US 83, 95 (Grier, J.).
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