해상보험의 담보(Warranty)에 관한 연구

Abstract

A warranty is defined as a promissory warranty, that is to say, a warranty by which the assured undertakes that some particular thing shall or shall not be done, or that some condition shall be fulfilled, or whereby he affirms or negatives the existence of a particular state of facts. A warranty may be express or implied. An express warranty is the one which is contained in the policy or in a document referred to by the policy, and is a condition which overrides anything in the policy with which it is inconsistent. An implied warranty does not appear in the policy. It is a warranty which is understood by law to exist in the contract without being expressly stated. Whether or not it is material to the risk, the assured must comply exactly with the terms of the warranty. The warranty must be taken literally and if the assured fails to comply exactly with the warranty, there is said to be a breach of warranty. In the event of a breach of warranty, the insurer is discharged from liability as from the date of the breach. As a result of this study. a few reasons to modify the strict fulfillment of a warranty would be suggested, these are : (1) the unfairness of the responsibility and liability between an insurer and an insured, (2) the inconsistency of the principle of indemnity under the proximate cause, (3) the poor identification of a warranty itself and a breach of a warranty. It is my conclusion that in the present time, the insurance warranty would be complied with not strictly or literally but with flexibility, and the limitation of an insurer's right of the breach of a warranty.