CONTRA PROFERENTEM IN SOUTH AFRICAN LAW Have you ever found yourself puzzled by the language of a contract, questioning its true meaning? If navigating through legal jargon has left you perplexed, you're not alone. Fortunately, South African law employs a crucial principle known as contra proferentem to assist in protecting the party that did not draft the contract containing the ambiguous clauses. Origin of the Contra proferentem Rule: The contra proferentem rule has a long history in South African contract law, rooted in principles that date back to Roman law. South African law, influenced by Roman-Dutch law, adopted the contra proferentem rule. It has been consistently applied in various legal contexts, particularly in cases involving standard form contracts and insurance policies. Understanding Contra Proferentem: Contra proferentem (a Latin term), which translates to "against the one who proffers," is a legal rule applied as a last resort when interpreting unclear or ambiguous terms in a contract. This rule dictates that if a contract's wording is so obscure that the parties' intentions cannot be discerned, the contract may be deemed void by reason of vagueness. Essentially, it ensures that any unclear language in a contract is construed in favour of the party that did not draft it. A good example of this principle is contained in the case of Cairns (Pty) Ltd v Playdon & Co Ltd 1948 (3) SA 99 (A) at 121-123, where Grotius (a renowned a Dutch jurist, philosopher, and scholar) is quoted as giving the reason why there is a rule that works against the proferens, ‘for he has himself to blame for not speaking more plainly’. Significance of Contra Proferentem: The rationale behind contra proferentem is rooted in fairness and clarity. It aims to ensure that the party drafting the contract, typically the seller or service provider, does not exploit their control over the wording and must use clear and unambiguous language in expressing the contract terms. By encouraging clear and concise drafting, this rule safeguards the other party, often the consumer, from hidden meanings or unforeseen limitations. The contra proferentem rule underscores the importance of drafting clear, unambiguous, and precise contract terms as the consequences of not doing so, can have an unmiserable outcome. Mitigating the Risk: For businesses that frequently use standard form contracts, it is advisable to regularly review and update these documents to ensure clarity and avoid potential disputes and for other once off agreements legal advice should be sought to ensure the drafting of clear and unambiguous contract terms that succinctly encapsulate the intention of the parties. Read the full article at www.thomsonwilks.co.za. If you need assistance with contracts, feel free to give us a call on 011 784 8984. #ContraProferentem #LegalTerms #ThomsonWilksInc #ThomsonWilksAttorneys
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### Unlocking Enhanced Protection: The Advantages of Subscribing to Top-Up Professional Indemnity Takaful for Lawyers In the ever-evolving landscape of legal practice, safeguarding professional reputation and financial stability is paramount. While the mandatory professional indemnity scheme provides essential coverage, subscribing to a Top-Up Professional Indemnity Takaful can offer significant additional benefits that every lawyer should consider. #### **Why Consider Top-Up Professional Indemnity Takaful?** 1. **Increased Coverage Limits:** The mandatory scheme often has set limits. A top-up policy allows you to increase your coverage, ensuring protection against larger claims that could arise from complex cases. 2. **Comprehensive Protection:** Top-Up Takaful in collective with Cyber and Crime protection provides broader coverage options. This comprehensive approach ensures better protection against a wider range of potential claims. 3. **Peace of Mind:** With the added layer of protection, you can focus on delivering exceptional legal services without the constant worry of financial repercussions from unforeseen claims. This peace of mind is invaluable in maintaining your professional integrity and confidence. 4. **Tailored Solutions:** Top-Up Takaful policies can often be customized to meet the specific needs of your practice. Whether you specialize in corporate law, family law, or any other field, you can select coverage that aligns with your unique risk profile. 5. **Financial Resilience:** In the event of a claim, having a top-up policy can significantly reduce the financial burden on your practice. This resilience allows you to navigate challenges more effectively, ensuring the sustainability of your business. 6. **Ethical and Shariah-Compliant:** For those who prioritize ethical considerations, Takaful operates on principles of mutual assistance and cooperation, aligning with Shariah law. This ensures that your insurance practices are not only effective but also ethically sound. 7. **Enhanced Client Trust:** Demonstrating that you have comprehensive coverage can enhance client confidence in your services. Clients are more likely to trust a lawyer who is well-protected against potential liabilities, leading to stronger client relationships and referrals. #### **Conclusion** In a profession where risks are inherent, investing in a Top-Up Professional Indemnity Takaful is a strategic move for any lawyer looking to enhance their protection and ensure long-term success. By supplementing the mandatory scheme, you not only safeguard your practice but also reinforce your commitment to providing the highest standard of legal service. #LegalProfession #IndemnityTakaful #ProfessionalIndemnity #Lawyers #RiskManagement #LegalServices #ClientTrust
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When preparing to write a legal exam guide, starting with insurance law, the first step is to understand the structure of the statutes and their interrelationships. A comprehensive grasp, with cross-referencing between different sections, will enable a holistic approach to problem-solving, providing a thorough framework for answering questions. The second step involves becoming familiar with the legal provisions. Grouping related statutes together allows for easier memorization, ensuring that answers are complete and well-rounded. The third step is to delve into legal doctrines or case law. Understanding different perspectives—supporting, opposing, and considering both practical and theoretical views—enables a more nuanced and comprehensive answer. The fourth step is to use real-life cases to aid in memorization and explanation. This approach makes it easier to apply legal principles, allowing for a more flexible and illustrative explanation in the exam. #Legal Exam #Property Insurance #Insurance Law #Civil Law
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Don't miss a special plenary by Lee Jay Berman, Mediator at our Annual Fall Conference! Registration closes this Friday, October 18th. Register now at https://lnkd.in/geTs9mQ Mediating Through Different Lenses Mediators naturally walk into the room seeing and hearing everything through the lens of their own life experiences – most notably their training and education. One concept we hold dearly at the American Institute of Mediation is to help mediators become more complete in their skill sets. In this unique workshop, our trainer, Lee Jay Berman, takes the group through a single fact pattern of a business/commercial partnership dispute (easily accessible and translatable to family law and other areas of practice), and walks them through the “how to” of mediating that dispute through the four distinct lenses: - The evaluative, legal, risk analysis lens - The psychological and relationship lens - The practical, business lens - The creative problem-solving lens Paying homage to the movies RASHOMON and INSIDE OUT – the goal is to help us all see what we may be missing when we focus on just one perspective in our mediations. This workshop is intended to help seasoned mediators open their eyes more widely, see different layers, and view the dispute that’s in front of them through different lenses, allowing them to access more of their own creativity, and expand the possibilities for potential resolutions. What attendees will learn: Most lawyers and retired judges can analyze a case, and most insurance claims professionals and risk managers can calculate risk and probable outcomes, but many are not as effective as they could be at using that information and analysis to persuade people. And, those without those backgrounds will learn how to do that effectively. And, mediators who are not trained in the mental health professions will learn what to look for in the psychological and relationship issues that may be going on in front of them. All will learn what business ramifications to ask the parties about, from tax implications to what will happen with employees and customers. Combining all of this exploration, the creative problem solving lens will provide much more rich ground for being creative, and will help those mediators who ask how to transition a negotiation from one focused on numbers and compromise into one that is integrative and creative, and can produce a true win-win. Most mediators want to work in that kind of environment, but could learn more about how to make that transition so they can add more value and avoid being reduced to number carriers.
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"Legal research is just lawyers billing to look up things they should already know." To this, my general response is sharing a quote attributed to Mark Twain: "It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so." While a good litigation attorney should have a firm grasp of generally applicable legal principles that govern their case, careful legal research provides several indispensable benefits: 1. Making sure the law a lawyer thinks they know is *still* the law, and; 2. Where the state of the law is settled, determining whether the *facts* in dispute are being properly analyzed under the correct legal theory. Clients often believe, much as the general public, that "the law" is set forth in some immutable compendium and that the key to winning a case involves nothing more than pulling a page out of the book and handing it to a judge. And, unfortunately, there are far too many lawyers that litigate exactly this way -- that is, by feeding on the ignorance of clients while offering easy answers to complex questions. When a client approaches you with the mindset that your legal work is simple, rest assured that, more often than not, they are likely doing so after being burned by lawyers that promised them a simple solution -- and then lost. Take the time to educate such clients and help them understand that while "easy" work may cost less, the losses occasioned by poor lawyering will exceed the savings, often by orders of magnitude. Good lawyering, at the end of the day, is an investment in future value, and an insurance policy against future losses. So, do the work. Do the research. Most importantly, do it right. Clients will spend the rest of their lives in the future: make it worth their while.
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*4 Pullin, Fowler, Flanagan, Brown & Poe, PLLC Lawyers Recognized as Best Lawyers® Award Recipients* August 15, 2024 -- Pullin, Fowler, Flanagan, Brown & Poe, PLLC is pleased to announce that 4 lawyers have been included in the 2025 edition of The Best Lawyers in America®. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. "For more than 40 years, the rigorous methodology of Best Lawyers has ensured the integrity and esteem of our legal recognitions," said Best Lawyers CEO Phillip Greer. "It is with great pleasure that we continue to provide potential clients with the pinnacle measurement of credibility through our Best Lawyers awards as they search for counsel." Best Lawyers has earned the respect of the profession, the media and the public as the most reliable, unbiased source of legal referrals. Its first international list was published in 2006 and since then has grown to provide lists in more than 75 countries. Lawyers on The Best Lawyers in America list are divided by geographic region and practice areas. They are reviewed by their peers based on professional expertise and undergo an authentication process to make sure they are in current practice and in good standing. Pullin, Fowler, Flanagan, Brown & Poe, PLLC would like to congratulate the following lawyers named to 2025 The Best Lawyers in America list: Johnnie E. Brown - Employment Law - Individuals and Employment Law - Management Tiffany R. Durst - Appellate Practice, Insurance Law, and Personal Injury Litigation - Defendants J. Victor Flanagan - Litigation - Insurance and Personal Injury Litigation - Defendants Kevin Robinson - Insurance Law #wehavewvcovered #pffbp #bestlawyers #2025bestlawyers
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Don't Miss a Special Plenary by Lee Jay Berman, Mediator at the Annual Fall Conference Mediators naturally walk into the room seeing and hearing everything through the lens of their own life experiences – most notably their training and education. One concept we hold dearly at the American Institute of Mediation is to help mediators become more complete in their skill sets. In this unique workshop, our trainer, Lee Jay Berman, takes the group through a single fact pattern of a business/commercial partnership dispute (easily accessible and translatable to family law and other areas of practice), and walks them through the “how to” of mediating that dispute through the four distinct lenses: 1. The evaluative, legal, risk analysis lens 2. The psychological and relationship lens 3. The practical, business lens 4. The creative problem-solving lens Paying homage to the movies RASHOMON and INSIDE OUT – the goal is to help us all see what we may be missing when we focus on just one perspective in our mediations. This workshop is intended to help seasoned mediators open their eyes more widely, see different layers, and view the dispute that’s in front of them through different lenses, allowing them to access more of their own creativity, and expand the possibilities for potential resolutions. What attendees will learn: Most lawyers and retired judges can analyze a case, and most insurance claims professionals and risk managers can calculate risk and probable outcomes, but many are not as effective as they could be at using that information and analysis to persuade people. And, those without those backgrounds will learn how to do that effectively. And, mediators who are not trained in the mental health professions will learn what to look for in the psychological and relationship issues that may be going on in front of them. All will learn what business ramifications to ask the parties about, from tax implications to what will happen with employees and customers. Combining all of this exploration, the creative problem solving lens will provide much more rich ground for being creative, and will help those mediators who ask how to transition a negotiation from one focused on numbers and compromise into one that is integrative and creative, and can produce a true win-win. Most mediators want to work in that kind of environment, but could learn more about how to make that transition so they can add more value and avoid being reduced to number carriers. Register now at www.scmaconference.org
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Sofia, 22 May 2024 On 21st May 2024 Multinational law firm Pinsent Masons together with the Bulgarian law firm Djingov, Gouginski, Kyutchukov and Velichkov officially filed a Request for Arbitration against the Government of Romania with the International Centre for Settlement of Investment Disputes (ICSID) in Washington on behalf of one of the largest Bulgarian publicly traded companies, Eurohold, and its insurance business Euroins Insurance Group (EIG) - a leading insurance group with solid market presence in Central and Southeastern Europe. The claim amounts to appr. EUR 500 million. On 17 March 2023, ASF, the Romanian financial regulator, withdrew the license of Euroins Romania. Eurohold and EIG challenged this move arguing that the revocation of the license was arbitrary, discriminatory, and constituted an unlawful expropriation in breach of international law. On October 25 2023, Eurohold Bulgaria and Euroins Insurance Group (EIG) sent a Notice of Dispute to the Romanian government, which is the first formal step toward initiating an international investment arbitration under the investment treaty for protection of investments, signed between the governments of Bulgaria and Romania. The arbitration signals a step change in European investment treaty law as the insurer prepares to challenge the European Union’s clamp down on investment agreements made between member states. It concerns multiple breaches on behalf of a Romanian regulator in respect of the Solvency II regime, the EU’s ‘Gold Standard’ Insurance and Reinsurance Regulation that should ensure a sound regulatory framework and consistent supervisory practices in the sector across the EU. Such arbitration will set a precedent for other EU businesses operating across the EU and could ultimately prompt a wave of disputes as they grapple with the impact of the EU’s clamp down on investment agreements between EU states. The case will raise novel and cutting-edge issues of public international law such as the ability of investors to bring claims under a sunset clause of a terminated bilateral investment agreement between two EU countries. The team at Pinsent Masons and DGKV is being led by Pinsent Masons’ co-head of International Arbitration, Sylvia Tonova and the head of Dispute Resolution and Arbitration Angel Ganev at DGKV, and partner Gergana Monovska.
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There is a skill to litigation that we don't talk about a lot. When we talk about whether to sue a case or appeal a lower court decision, usually we are focused on the result of that specific case. I would argue that we should also at least consider the long terms effects of any potentially bad decision, especially if we have a case with bad facts combined with uncertain law. I see this in immigration all the time. Bad facts combined with uncertain law lead to decisions that go against immigrants in the future. Almost every written decision ends up in Lexis, Westlaw, or some other legal database, especially appellate decisions. And even if that case doesn't have precedential value, it could certainly have persuasive value which could turn into a precedential decision later. The ability to look ahead is even more valuable if we tend to litigate a lot in a specific area, e.g., immigration, insurance, personal injury. This isn't to say that you don't go ahead even with bad facts or bad law. You represent the client you have in front of you now, not some speculative client in the future. But, especially if you represent clients that frequently litigate, it is worth a conversation.
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So you want to work at an international law firm, but what does it actually mean in practice? It doesn't necessarily mean a jet setting lifestyle. For one thing travelling internationally isn't environmentally friendly and for another, travelling constantly is exhausting! Usually if you do fly to another country, you'll be trying to cram as many work meetings to justify the reason for you being out there. I would summarise some of my experience of working in an international law firm as: (1) You may need to coordinate getting advice from multiple jurisdictions if the client is doing an international deal or wanting to roll out a product or service in multiple jurisdictions. You will need to make sure the advice is consistent where there are similar or the same regulations in place as well as be on top of making sure all the pieces move on time. Working in an international law firm makes finding an office to give that advice easier. (2) You might be lucky to get to go on an international secondment as a trainee. I got to spend 6 months in our Hong Kong office. I would highly recommend! It's a chance to work in another country and soak up the culture, the food etc. Clyde & Co also has a global associate program which allows qualified solicitors to spend a week in one of our other offices to build on relationships with our international colleagues. (3) In my day to day at work, the insurance policies I look at are typically governed by New York law. Because of that, I work closely with my colleagues in our New York and New Jersey offices (although I also work with other US firms too). Over time, I've learnt quite a bit. The US has state and federal courts. There are different districts and circuits. The underlying lawsuits filed against the insureds are also mostly based state-side and the way litigation works there is different! If you thought English law likes Latin phrases, it also made its way to the US: motions in limine (a request to exclude or admit certain evidence) come to mind. Civil cases can also go in front of a jury and jury selection is an art. I am grateful to my colleagues for indulging me with my questions on judgments, the court systems, appeals processes, and questions of law. Most recently my brain has been taxed by looking at allocation of losses across multiple policy periods and whether this should be allocated on an all sums (i.e., the insurer should be liable for all losses with rights of contribution from other responsible parties) or a pro rata basis (i.e., insurers are liable for the portion of time they are on risk for which just means for the time they were insuring the insured). Many thanks to people like Harris Wiener, Leonard Sarmiento, Benjamin Rouder and Ryan Westerfield for their intellectual conversation and for making it easier to work across jurisdictions! #InternationalLawFirm #LawyerLife #TeamworkMakesTheDreamWork
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