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CHAPTER 4

THE LABYRINTH

4.10.6Investment : Active Concealment of Dishonest Intention
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When processed through Irish Life’s policy Provisions, Privileges and Conditions, the meaning of ‘Your Home-Way Endowment premiums are invested in the Home-Way Mortgage Fund’ mutates to ‘In the first year of the policy NONE of your Home-Way Endowment premiums are invested in the Home-Way Mortgage Fund, and in all subsequent years 96% of your Endowment premiums are invested in the Home-Way Mortgage Fund.’ (See Section 4.1, Section 4.6 and Section 4.7.)


(a)


This end meaning of Investment, as mutated by the policy Provisions, Privileges and Conditions, is denied legal effect for the following reasons:

(i)

It sets limits to the generally understood meaning of ‘invested’ and, consequently, to the value of the policy throughout the Mortgage loan period. In order that such a limiting clause should become binding it should have been brought to our attention before or at the time the contract was made. It was not.

(See Section 2.2.2: The Exemption Clause.)

(ii)

It is an onerous condition. For such a condition to be enforceable it should have been fairly brought to our attention and explained prior to or at the time the contract was made. It was not.

(See Section 2.2.3: The Standard Form Contract.)

(iii)

The clearly understood meaning of ‘invested’, both from the oral undertaking by First National when explaining the contract (see Section 4.10.1) and from the written undertaking by First National / Irish Life in their Mortgage Quotation (see Section 4.10.2), was that ALL premiums were invested in the Home-Way Mortgage Fund. As an Endowment Mortgage Contract is a standard form agreement, such express undertakings take priority over the printed terms of the contract.

(See Section 2.2.4: Other Limitations at Common Law to the Operation of Exemption Clauses, (a) Express Undertakings.)

(iv)

The representations of both First National and First National / Irish Life, prior to contract, were such that my wife and I were given the false impression that all premiums paid by us to Irish Life were invested in the Home-Way Mortgage Fund. The contents and effect of the ‘mutation of investment’ clause present in the contract, that exempted Irish Life from investing all the first year’s premiums and 4% of all subsequent years’ premiums, was therefore misrepresented.

(See Section 2.2.4: Other Limitations at Common Law to the Operation of Exemption Clauses, (b) Misrepresentation.)


(b)


The mutation of the generally understood meaning of ‘invested’, by the policy Provisions, Privileges and Conditions, also constitutes a material fact, which material fact is highly relevant to one’s decision when choosing between an Endowment Mortgage and a Repayment Mortgage.
The failure of both First National and Irish Life to disclose this material fact constitutes a Misrepresentation.


(See Section 2.3.4: The Duty to Disclose and Silence as a Misrepresentation. See also Section 2.8.1: The Right to Revoke the Contract, and Section 2.8.3: The Measure of Damages as a result of a successful Action based on the Common Law liability under Negligent Misrepresentation.)


(c)


As we have already shown, the representations of both First National and First National / Irish Life, prior to contract, gave the impression that all premiums paid to Irish Life were invested in the Home-Way Mortgage Fund. This impression was false.


The following rhetorical questions must therefore be posited:

Did First National know that they were giving a false impression when making oral representations and giving advice prior to contract?

Did First National / Irish Life know that they were giving a false impression when making written representations in their Mortgage Quotations prior to contract ?

Did First National wilfully shut their eyes to, or purposely abstain from inquiry into, the facts relating to the investment process pertaining to the Endowment Mortgage Contract, when making representations and giving advice prior to contract?

With respect to the pre-contract representations (oral and written) of Investment, do the facts withheld render those representations false?

Did Irish Life know that their agent would make representations, or would be likely to make representations, that give a false impression, and yet, deliberately, did not intervene?


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We have already (in Section 4.10.3) asserted that First National and Irish Life knew that they were giving a false impression of Investment prior to and at the time of contract. There was most certainly an absence of honest belief in their representations (both oral and written) of Investment.


But the Misrepresentation of Investment, and the foreknowledge that a false impression would be given, is most forcefully evidenced by the extraordinary measures taken to CONCEAL.


The ingenious Labyrinth used by the Life Assurance Company (in this case Irish Life) to conceal their intended meaning of Investment could only have been contrived to hide a shame.


Its very existence evidences guilt: it implies a foreknowledge that that which is concealed would be unacceptable if disclosed truthfully. It is male fide active concealment with intent to deceive.


It imparts, to the apparent disclosures of fact by both First National and Irish Life prior to contract, the status of a base Deceit.


(See Section 2.3.2: Fraudulent Misrepresentation, and Section 2.7: The Effect of Agency. See also Section 2.8.1: The Right to Revoke the Contract, and Section 2.8.2: The Measure of Damages as a result of a successful Action based on the Common Law liability under Fraudulent Misrepresentation.)

 

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