Disclosure duties in German insurance contract law

This paper analyses disclosure duties in insurance contract law in Germany on the basis of questions developed in preparation of the World Congress of the International Insurance Law Association (AIDA) 2018. As risk factors are within the policyholder’s sphere of knowledge, the insurer naturally depends on gaining such knowledge from its policyholder in order to calculate and evaluate premium and risk. Legal approaches as to how the insurer may obtain relevant information and the legal consequences differ in national insurance contract laws around the globe. Taking part in this legal comparison, the paper describes the key elements of such a mechanism from a German perspective and comprises both duties of the policyholder and duties of the insurer. As for the policyholder, these issues are differences between a duty to (spontaneously) disclose and a duty not to misrepresent as a reaction to questions of the insurer, the prerequisites and remedies of such duty, the subjective standard of the disclosure duty and a duty to notify material changes during the contract term. On the other hand, the paper also addresses an insurer’s duty to investigate, a duty to ascertain the policyholder’s understanding of the policy and a duty to inform during the contract term or after the occurrence of an insured event. In doing so, the paper offers a comprehensive and critical overview on the transfer of knowledge in the insurance (pre-)contractual relationship.

Consent and the Right to Refuse Treatment

This chapter is concerned with one of the major ethical issues in contemporary health care practice: informed or valid consent. The chapter defines the elements of informed consent—that is, the types of information that need to be transmitted for consent to be adequately informed. The second section looks at cases involving questions of the standards of consent, referring to the question of what standard of reference should be used in determining whether a sufficient amount of a particular type of information has been transmitted: the professional standard, the reasonable person standard, or the subjective standard. The third section examines questions of whether the information transmitted is comprehended and whether the consent is adequately voluntary. Finally, the fourth section addresses whether incompetent patients can be expected to consent and what role parents, guardians, and other surrogates can play in giving approval for medical treatments for those who are legally incompetent to do so themselves.

After the Reasonable Man: Getting Over the Subjectivity/Objectivity Question

This article challenges the conventional notion of the "reasonable man." It argues that we make a category mistake when we adopt the metaphor of a human being as the starting point for analysis of the criminal law and instead offers an alternate approach based on heuristic theory, reconceiving the reasonable man as a heuristic that serves as the site for debate over majoritarian norms. The article posits that the debate over having a purely subjective standard and a purely objective standard obscures the commonsense necessity of having a hybrid standard, one which takes into account the characteristics of a particular defendant at the same time that it provides normative guidance. The analysis then proceeds to examine what happens when this hybrid standard is applied to the problem of the reasonable woman. The article concludes by arguing that equality would be better served by a normative analysis rather than one mired in the subjectivity/objectivity debate.

Measurement of Light Transmission in Young Conifer Plantations: A New Technique for Assessing Herbicide Efficacy

A rapid and accurate technique, using a simple measure of light intensity, for assessing the efficacy of herbicide treatment is proposed. Herbicide treatment efficacy was independently measured 1, 2, and 3 years after a single application of glyphosate on three adjacent plantations of black spruce reinvaded by red raspberry and fireweed in eastern Quebec. Each plantation represents a given time, 1, 2 or 3 years, after herbicide application. Light intensity, expressed as percent of full sunlight in the PAR spectral region (400-700 nm) reaching the upper one-half of the tree seedlings, significantly discriminates released and unreleased tree seedlings. Spruce seedlings receiving 60 to 100% of full sunlight grew significantly better in height and basal stem diameter and had significantly fewer stems and less height growth of competing vegetation than seedlings receiving less than 60% of full sunlight. This indicates that measuring the intensity of light reaching the tree seedlings is an easy and effective way to assess efficacy of herbicide treatment and also competition between spruce seedlings and surrounding vegetation. It is suggested that light reaching tree seedlings be measured instead of quantifying the competition variables. The proposed technique eliminates all potential bias from subjective standard procedures which in turn makes possible quantitative comparisons between evaluations of herbicide treatment efficacy. North. J. Appl. For. 9(3):112-115.