1.

Zuki has concluded an insurance contract with INSCO Insurance Co in terms of which INSCO
provides Zuki with insurance cover for her household contents, including a big flat-screen TV.
One weekend Zuki's house is burgled and the TV is stolen. INSCO have Zuki’s TV replaced
with a similar new TV. A few days later the police recovers the undamaged TV. Zuki is hoping
to get her old TV back because she is very Sentimental about that particular TV. Explain the
legal position to Zuki.

2. “Common sense is the final arbiter in determining what the proximate cause of a loss is.
However, we must not think of a common sense notion as necessarily a matter of mere
impression, or so intuitive that it cannot further be elucidated, at least in its application to
standard cases, however vague a penumbra may surround it. Common sense is not a matter of
inexplicable or arbitrary assertions, and the casual notions which it employs …can be shown to
rest, at least in part, on stateable principles.” (Anonymous).
With aid of cases vindicate

3. “The duty of disclosure is neither contractual, tortious, fiduciary nor statutory thus did not give
rise to an award of damages.” (anonymous) Do you agree? State the remedies available to an
aggrieved party upon breach of the duty of disclosure by either of the parties.

4. “As questions of causation are mixed questions of fact and law differences in opinion are
bound to arise” (per Lord Brightman, in Shell International Petroleum Co. Ltd v. Caryl Anthony
Vaugham Gibbs, [1983] 1 Lloyd’s Rep. 342 at 350.

REQUIRED:
Vindicate using decided cases on Marine Insurance

5. “The concept of insurance and particularly the “social insurance programme” dealing with
socio-economic problems has been around Africa, like in other parts of the world, for a long
time. Members of a community pooled together resources to create a “social insurance fund”.
The “premiums” ranged from material to moral support or other payments in kind. From the
fund, “drawings were made out” to support the few unfortunate members exposed to perils….”
Discuss the evolution of insurance schemes in East Africa paying attention to socio-economic
conditions of the communities involved.

6. Does the mere fact that the insurer has abundant means of knowledge of all or some of the
material facts about the subject matter of the proposed insurance relieve the insured of his
otherwise stringent duty of disclosure? Elucidate

7. Mr. Msakamali is the owner of a house situated in Kikuyu town. He rented the house to one
Sijengi who agreed to maintain the same in case of any damage in the course of his stay.
However the house being the only asset he has Msakamali insured it against fire with Jikomboe
Insurance Co. and Majanga Insurance Co. The house was damaged with fire to the extent of 10
million. Msakamali sued Jikomboe Insurance Co. for indemnity.
Advise the parties on their rights and liabilities and state the insurance principles involved in the
scenario.

8. “Without the principle of insurable interest, insurance business would be a venue of

mischievous gaining and gambling upon human lives and property. The law endeavours to keep
the industry within the bounds of rational business fair play by requiring the insured to have
insurable interest in the subject-matter of his policy at the pain of having no remedy either at law
or in equity should he have non” Discuss this quotation

9. “Although the process of forming an insurance contract is from one point of view merely a
particular application of the general principles of offer and acceptance in the law of contract, the
practices of the insurance industry involve certain distinctive characteristics which may give rise
to some special problems.” (Anonymous) Discuss.

10. “The special facts, upon which the contingent chance is to be computed, lie most commonly
in the knowledge of the insured only: the underwriter trusts to his representation, and proceeds
upon confidence that he does not keep back any circumstances in his knowledge, to mislead the
underwriter into a brief that the circumstance does not exist….” Lord Mansfield in Carter v.
Boehm (1766) 3 Burr 1905.
Discuss this statement in line with uberrimae fidei (utmost good faith) principle under insurance
contracts

11. “Insurance companies are financial institutions that play a big role in capital accumulation.
Their intention is to get profit rather than protecting the insured parties.” Do you agree?
Critically discuss the above statement
12. The essence of insurance contract is indemnity and the rights of the parties depend on this.
Critically discuss the soundness of this statement

13. “The process of ‘making better the loss’ in an indemnity policy is procedurally cumbersome
hence, the actual recoverable sum must be ascertained industriously by both parties. This takes
on board, among other circumstances, the nature of the loss sustained; the scope of the
protection; number of policies effected on the insured subject matter; the likelihood of a fault on
either insured or third party; the terms of the policy; and last, but certainly not least, whether the
risk insured against is in fact operative.” (Anonymous) Discuss

14. “Causation is to be understood as a man in the street, and not as either the scientist or
metaphysician would understand it” Per M.N Srinivansan’s Principles of Insurance Law, 7th Ed
2002 at Pg. 99. In the light of the above statement, critically discuss the legal maxim causa
proxima non remota spectator
15. “As seen through the eyes of modern courts, the insurable interest concept possesses four
main heads. The first and broadest heading embraces property rights, whether legal or equitable.
The second and closely allied category includes those types of interests which are reflected in
contract rights. The possibility of legal liability as a result of the insured event is the third
division while the fourth is the controversial residuum category of ‘factual expectation of
damage’.” [Hodgin, R., (1998) Insurance Law: Text and Materials] Discuss with aid of cases.

16. Mr. Muona Mbali is the owner of a house situated in Ng’ong’ona town. He rented the house
to one Mvivu Kujenga who agreed, among other terms, to maintain the same in case of damage
whatsoever caused in the course of his stay. However, the house being the only real asset he has
Muona Mbali insured it against fire with Kiboko Insurance Co. and Manufaa Insurance Co. The
house was damaged with fire to the extent of 10 million Tshs. The evidence available suggests
that Mvivu Kujenga took no measures neither called fire brigade nor exercised self-help to check
the progress of fire. Muona Mbali sued Kiboko Insurance Co. for indemnity.
Advise the parties on their respective rights and/or liabilities and state the insurance principles
involved in the scenario.

18. Restoration principle is the sole and absolute measure of recovery. Expectation and reliance,
the well-known and basic measures of damage in general contract law, are in basic conflict with
restoration principle. Discuss with authorities.

19. “One of the basic rules of contract law is that there must be ‘certainty of terms’. Without
certainty there cannot be a true agreement because there will be vagueness preventing a meeting
of the minds.” (Anonymous). With aid of cases, discuss how courts have imputed the notions of
“knowledge of terms” and “usual terms” to determine the rights of parties in insurance contracts.

20. In De Souza v Home and Overseas Insurance Co Ltd [1995] LRLR 453, Mustill LJ warned:
The cases…are difficult if not impossible to reconcile. Some of them would, I believe, be
regarded by at least some lawyers as wrong. Others would perhaps be differently decided
in today’s different social context, and even at the time it is plain that the judges were not
all of a like mind… In these circumstances, I think it better to withdraw a little from the
authorities to the firmer ground of this policy and these facts, and to look critically at
each authority to see whether it really leads inexorably to a solution of our present
problem, or indeed, lends us any help at all.

Guided by the above quotation and a number of decided cases, discuss on the rules of
construction of insurance policies.

21. In line with Sat Dev Sharma Trading vs. The Home Insurance Co. of New York discuss on
the conditions precedent for enforcement of insurance contract by third parties.
22. While it is clear from Wainewright v. Bland that a person always has unlimited insurable
interest in his own life, there is not always an insurable interest in the life of another. Using the
applicable rules in Tanzania, vindicate this statement.

23. (a) Explain with examples the circumstances and modality under which the insurer’s
right of subrogation is often waived.
(b) State how the insurer can limit subrogation waiver clause

24. The modern law of insurance is a creature of common law courts. Is this statement true?
Discuss with strong authorities.

25. Briefly but comprehensively write concise notes on any three of the following;
(a) Long term business
(b) Margin of solvency
(c) (i) Micro insurance in Tanzania
(ii) Ethical dimension of intermediaries
(d) Insurance contract sui generis

26. With aid of legal authorities account for the grounds where insurance brokers are obliged to
use their knowledge of the market and appropriate skills in acting as agent and not rely solely on
principal’s instructions

27. As with all contracts of service, the agent has an implied duty to carry out its services with
reasonable skill and care. Using both local and foreign case law, demonstrate how courts have
used the principle of “reasonable skills and care” to determine issues surrounding negligence and
breach of duty by insurance agents.

28. With aid of case law and statutory instruments determine the position of law with regard to
circumstances where the agent or broker acts in a dual capacity – i.e. for both the insurer and the
insured. For instance, where a broker is instructed by a customer to obtain cover from an insurer
and has a separate delegated authority from the insurer to effect the cover or where the broker is
instructed to obtain a survey or loss adjuster’s report for an insured he acted for.

29. An effective Insurance Sector requires continuous review of the legal and regulatory
framework impacting on the performance of the sector. Based on this spirit review the existing
legal and regulatory insurance framework in Tanzania with a focus on its incomprehensiveness
in addressing emerging issues
30. While tracing the evolution of insurance, account for the role played by social, economic,
political, legislative and judicial sectors in moulding today’s insurance systems.

31. “The promotion and sale of insurance products are no longer the exclusive province of the
businesses traditionally associated with them, such as insurers and insurance brokers. Many other
companies and organisations have recognised the potential of insurance products to make
money. There are some organisations that are involved in the sale and distribution of insurance
products, but whose main line of business is something else. These organisations are often
known collectively as the secondary market.” (Anonymous)
By citing local examples, demonstrate how secondary intermediaries operate in Tanzanian
Insurance market.

32. “Borderline cases – ie contracts that seem to fall between the two regimes. Some protection
policies operate rather as a hybrid. The substance of an arrangement, rather than its form, is more
important in deciding whether it is insurance. It is not enough simply to avoid the language of
insurance – terms such as ‘cover’ or ‘premium’. You have to think of what the arrangement
means.” (Anonymous)
In line of the above brief, illustrate how insurance and the following borderline cases have been
treated in law
(a) Warranties
(b) Discretionary Schemes
(c) Gambling

33. Insurance has always been argued to play a socio-economic role. Vindicate with vivid
examples from Tanzania

34. The process of ‘making better the loss’ in an indemnity policy is procedurally cumbersome
hence, the actual recoverable sum must be ascertained industriously by both parties. This takes
on board a number of considerations. Discuss with authorities.