As with all forms of contract between two parties, contract law applies. There are, however, specific laws appertaining to insurance contracts. It is essential that a company looking to purchase credit insurance to facilitate a factoring arrangement take legal advice so that they are aware of the legal framework within which the policy operates. Both the company seeking to sell its unpaid invoices and the factoring company willing to purchase the invoices need to understand the obligations a credit insurance policy places upon them, and the consequences of any breach in those obligations.
Utmost Good Faith
This is a legal term that refers to a contract where both parties are bound to act honestly and openly. To act in ‘utmost good faith’ is a high bar. Court rulings in credit insurance disputes will refer to this high standard of conduct, and are influenced by evidence showing participants acting in the utmost good faith.
Indemnity Principle
The indemnity principle applies to insurance policies. It states that the insurer agrees to indemnify the insured for a loss suffered to the insured. This means the insured party can only claim for the loss it has suffered. The indemnity principle is important because in a typical factoring arrangement the factoring firm will buy unpaid invoices. The factoring company gives a prepayment to their client and collects on the invoice when it is due to be paid. The legal problem is that the insured party no longer owns the invoices in question. Applying the indemnity principle would mean that the credit insurance policy would not pay out on such a claim as the party insured has not suffered a loss.
The solution to this problem is for the invoice financier to be co-assured on the policy or to take out a separate insurance policy.
Insurable Interest
Insurable interest refers to the principle that the insured must have a pecuniary interest in the matter being insured. I cannot take out insurance against the theft of my neighbour’s car because I do not have any pecuniary interest in my neighbour’s car. Similar to the indemnity principle, the problem arises of proving insurable interest on invoices that have been sold prior to the inception of a credit insurance policy.
Insurance Act 2015
Insurance policies for non-consumer matters is covered in English Law by the Insurance Act 2015. For invoice financiers operating in the UK this is the key piece of legislation to consider. It covers various aspects of insurance including disclosure, warranties and fraudulent claims.
A Closer Look at Credit Insurance Policies
Here is a list of key terms used in credit insurance policies. They refer to important aspects of English law.
The term scope of cover and eligibility requirements for insured receivables refers to what unpaid invoices in a company’s ledger are covered by the policy. The pool of receivables changes over the period of the policy as some are added and some are paid off. This term denotes the invoices that are eligible for insurance cover. The eligibility test requires the debtor to be eligible, the transaction must be from an eligible jurisdiction and the debt must be from a genuine trade transaction.
The legal term exclusions refer to the instances when a trade receivable is not eligible for an insurance pay out. These are connected to unforeseen events, a little like Force Majeure, such as radioactive contamination of the goods, earthquake destruction etc. It also covers goods that have been traded but there is a dispute about the delivery.
Fair presentation is a stipulation that the party seeking insurance must set out prior to formalising a credit insurance policy all the risks to the insurer. It is a principle of disclosure. This is also connected to the legal idea, mentioned earlier, of being in the utmost good faith. The Insurance Act 2015 sets out in detail what types of facts would be ‘material’ to fulfilling the fair presentation criteria.
For breaches of the fair presentation clause, the Act sets out a range of remedies that match the severity of the breach in question. These range from cancelling the liability of the insurer to requiring a re-wording of a policy to rectify the breach in fair presentation and allow for adjustments in the policy now that a previously unidentified risk has come to light.
If a warranty is breached, then the insurance company is not liable. Warranties are strict rules about the proper use, storage and transport of goods that prevent damage of those goods. Until breaches in warranty have been rectified the goods are not covered by an insurance policy.
Similarly, if a condition precedent is broken then the insurer is not liable. A condition precedent is a condition in a policy that is marked as a vital condition that takes precedent of other considerations.
It is the company selling their invoices for factoring that takes out an insurance policy on the payment of trade receivables. It is the role of the invoice financier to assess whether the company is fully cognizant of the risk of breaches to the policy caused by failure to take into consideration warranties and conditions precedent.
Dispute Resolution
It is common practice in England for disputes arising from a claim on a credit insurance policy to be resolved through arbitration. However, both the insurer and insured have the right to seek address through court proceedings. The issue for the invoice financier is that often the legal dispute will not directly involve him or her. It will be a dispute between the company taking out insurance and the insurance company. The company holding the policy might be reluctant to pursue a legal challenge in the courts as it can incur significant legal costs. An invoice financier might fund a legal challenge but will often want to have control of the legal challenge.
Making a Claim
There are a number of things to consider when a company is preparing to make an insurance claim.
Notification requirements have to be followed. An insurance claim can be invalidated if it is not made within a certain specified time frame. An event that doesn’t trigger a claim but could reasonably be considered as relevant to a later claim has also to be reported to the insurer within a specified time frame.
The party looking to make a claim against its insurance policy will need to make sure the claim fits one of the ‘triggers’ recognised in the policy so as to allow for the claim to proceed. One trigger might be a debtor’s insolvency.
First loss provisions are similar to waivers you find on car insurance policies. It specifies that the insured will have to pay for initial losses (up to a specified amount) before the provisions in the insurance policy can be invoked.
Mitigation of loss refers to the legally required actions the insured party has to take to prevent damage to a trade receivable. This will include regular monitoring of the trade receivables and the debtors and for reducing costs if there is an issue. Mitigation of loss clauses are designed to make sure the insured is doing everything it reasonably can to anticipate and avoid damage and losses.
More About the Process
The credit insurance policy will stipulate how a claim should be presented. The policy will also stipulate that the insured party provide all the documentation requested by the insurer.
It is the insured party seeking payment for damage who has to make the case that the damage is covered by the provisions of the insurance policy. The insurance company that will check the facts and consider if any exclusions set out in the policy apply.
If a policy claim clears these hurdles and the insurer accepts liability then it is common practice in England for a payment to be forthcoming in 180 days of the date of the initial loss. During that time if any money is recovered from the trade receivable under question, then that sum is deducted from the final pay out. Moreover, the insurance company will have a provision in the policy that the trade receivable has to be transferred to them before payment is possible.
Who Does What?
The broker who organised the insurance policy will act as the go-between in communications between the insurer and the insured. The broker will also provide advice to the invoice financier as this is the party in possession of the trade receivable involved in the claiming process.
The loss adjuster investigates the damage to assess whether there are grounds for a claim and that the facts pertaining to the claim are accurate. They make adjustments to the payment according to their findings.
In Summary
When Mr Bumble claimed that the law was an ass, he was seeking to escape the consequences of breaking the law by saying it was his wife’s actions that were illegal. At the time, the law stated that a wife is considered to be acting under the direction of her husband. Ignorance is no defence in law: responsibility is defined in law and the consequences of breaking a law are well set out in the law; and so it is with credit insurance policies.
The insurer and the insured have their rights and responsibilities set out in the contract. It is incumbent on the insured to make a timely and correctly presented claim for loss or damage to a trade receivable. The invoice financier is only indirectly connected to this process despite actually owning the trade receivable in question. This complicates a claim procedure, and clearly indicates that communication (especially through the broker) is key to a resolution that is deemed fair and acceptable by all parties involved. In reality, Mr Bumble was an ass for not knowing the law.
