Contract

  • 1979 Fall - AP - Explanation of the Aleatory Aspect of the Insurance Contract with Reference to Risk Theory, by Salama A. Salama, The Journal of Insurance Issues and Practices, Vol. 3, No. 1 (FALL 1979), pp. 61-76 (16 pages), Published By: Western Risk and Insurance Association

    • The problem

    • Almost all insurance textbooks and other literature, whether written for law, insurance, risk and insurance or other areas consider the insurance contract an aleatory contract, thus, classifying the insurance contract in the same category with wagering contracts.

      • However, these writers always emphasize the distinction between wagering and insurance.

      • It would be difficult for them, however, to deny the fact that the insurer which issues contracts for less than a large number" is issuing a wagering contract.

      • This means that the difference between a wagering contract and such an insurance contract is minimal.

  • Justice Holmes once declared “that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties’ having meant the same thing but on their having said the same thing.”
    • Oliver Wendell Holmes, The Path of the Law, 110 Harv. L. Rev. 991, 996 (1997) (reprint of address given at Boston University School of Law on January 8, 1897). 

ca4.uscourts.gov/opinions/201187.P.pdf - Rowlands v  - UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

  • As with all other contracts, the goal of insurance policy interpretation is to give effect to the mutual intention of the parties.1
    • 1  CAL. CIV. CODE § 1636 (West 1985).

2004 - LR - California's Approach to the Interpretation of Insurance Policies MacKinnon v. Truck Insurance Exchange, by Daniel Sanchez-Behar - 22p

  • California Civil Code $1638 declares the language of a contract to govern its interpretation when the language is clear and explicit and" does not involve an absurdity."
    • California Courts have consistently translated this section to mean that when a contract is reduced to writing, the intention of the parties is to be ascertained from the writing, if it is possible, " Leo F. 19 Piazza Paving Co. v . Foundation Constructors, Inc., (1981) 128 Cal. 20 App. 3d 583 , 591, 177 Cal . Rptr. 268.  (p22)

Case No. BO63999, LOS ANGELES COUNTY LAW LIBRARY, IN THE COURT OF APPEAL of the STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT DIVISION FOUR - MORAD B. NEMAN, Plaintiff and Appellant V. Myron Berliner, et al. Defendants and Respondents - CLERKIS BERIVE COURT OF APPEAL SECOND DIST RECEIVED, MAY 1 & 1993, JOSEPH A. LANE Appeal from the Los Angeles County Superior Court Los Angeles Superior Court Case No. C689378 - [Bonk: Not about Life Insurance]