Legal effect of breach of warranty in construction insurance in Malaysia

Abstract

The English insurance law underwent some changes and development with regards to breach of warranty in insurance contracts. In the UK today, once the insured breaches a continuing warranty, the insurer is simply discharged from liability as from the date of the breach of warranty but the insurance policy remains in existence. However, court decisions in Malaysia seem to suggest that a breach of warranty in construction insurance policy entitles the insurer to repudiate liability and prevents the contract of insurance from coming into existence. This misunderstanding by Malaysian courts has resulted in a legal dilemma in insurance law in Malaysia with regards to breach of warranty. Also, The Malaysian Insurance Act 1963 mainly deals with regulations of the insurance business to ensure there is proper control but the Act does not seem to have covered the matter of breach of warranty in insurance policies. Therefore, in the light of the current developments in the insurance law in the United Kingdom, this research project examined the legal effect of breach of warranty in insurance contracts in Malaysia. In doing so, the required data and information were collected from various sources which included books, articles, seminar papers, journals, Malayan Law Journal Articles, etc. It was found out that the effect of breach of a continuing warranty will result in the contract of insurance remaining in existence and the risk is being treated as having incepted at the outset but automatically coming to an end as of the date of the breach. More so, the insurer is being discharged from any future liability, although any liabilities of the insurer before the date of the breach are unaffected.