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The insurer-insured relationship is contractual; the parties are parties to an arms-length agreement. The principle of uberrima fides does not affect the arms-length nature of the agreement, and cannot be used to find a general fiduciary relationship. The insurance contract, as noted above, imposes certain specific obligations on its parties.
Insurance contracts are governed by the principle of utmost good faith (uberrima fides), which requires both parties of the insurance contract to deal in good faith and in particular, imparts on the insured a duty to disclose all material facts that relate to the risk to be covered. [12]
In Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd [1] John Hobhouse, Baron Hobhouse of Woodborough said, . As Lord Mustill points out, Lord Mansfield was at the time attempting to introduce into English commercial law a general principle of good faith, an attempt which was ultimately unsuccessful and only survived for limited classes of transactions, one of which was insurance.
This basic principle of insurance must be followed if insurance companies are to remain solvent. [ citation needed ] Thus, "discrimination" against (i.e., negative differential treatment of) potential insureds in the risk evaluation and premium-setting process is a necessary by-product of the fundamentals of insurance underwriting.
The European principle was based on the assumption of good faith on the part of the merchants, or uberrima fides, something completely lacking in English law. [47] In Carter v Boehm (1746) 3 Burr 1905, 96 ER 342, Mansfield got a chance to reform the law relating to the assumption of good faith.
Acknowledging that the origin of the phrase “uberrima fides” was doubtful, but noting that it apparently made its appearance in English law in 1850, the court was “unable to find any Roman-Dutch authority in support of the proposition that a contract of marine insurance is a contract uberrima fidei”. The court rejected the expression as ...
uberrima fides: most abundant faith: Or "utmost good faith" (cf. bona fide). A legal maxim of insurance contracts requiring all parties to deal in good faith. ubertas et fidelitas: fertility and faithfulness: Motto of Tasmania. ubi amor, ibi dolor: where [there is] love, there [is] pain: ubi bene, ibi patria: where [it is] well, there [is] the ...
This affirms a general principle that any change to a fundamental reason for contracting (supervening falsification) must be communicated, where it is known to one party. It does not matter what the reason or motive is for not communicating is, it need not be malicious or fraudulent, but merely known to the representor.