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CHAPTER 2

THE WEAPONS OF LAW

2.10.3The Contractual Relationships
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In the matter of the Contractual Relationships existing between my wife and I and both First National and Irish Life:

(a)

Irish Life / First National are the ones putting forward the Contract document; they are the proferens.

(b)

A fiduciary relationship exists between Irish Life (as principal) and First National (as agent), burdening Irish Life with a duty of care to First National.

(c)

A fiduciary relationship exists between the First National Building Society and my wife and I, burdening First National with a duty of care to my wife and I.

(d)

The representations made or information provided by Irish Life through their tied agent, First National, as conveyed to (and acted upon by) my wife and I, were such as to give rise to a 'special relationship' between Irish Life and my wife and I, burdening Irish Life with a 'duty of care and an attaching duty of disclosure' to us.

IF Irish Life made their representations or provided information, directly, to my wife and I, THEN a special relationship would exist giving rise to a duty of care. A duty of disclosure would attach to this duty of care.

It therefore follows that where Irish Life convey these representations or information through a party who is seen to represent them (either a direct employee or a tied agent) this special relationship duty of care, AND its incumbent duty of disclosure, follows.

(e)

But, Irish Life’s duty of care, with regard to all representations / information they have made / provided in their Mortgage Quotations, will extend to all persons to whom those representations were intended to be conveyed or to whom they might be reasonably expected to be conveyed. This will be the situation regardless of whether or not the party conveying the information acts as a tied agent of Irish Life (for example, when the party conveying the information is a free agent or an independent intermediary).

While Irish Life’s duty of care, to persons to whom their positive representations were intended to be conveyed or to whom they might reasonably be expected to be conveyed, may not be seen to generally incorporate a duty of disclosure to the end representee in cases outside the bond of tied agency, it must be remembered that the contract is still one Uberimmae Fidei (i.e. of the Utmost Good Faith).

A major element of an Endowment Mortgage Contract is a Life Assurance Contract; a Life Assurance Contract incorporates a Contract of Insurance. Therefore, there is a reciprocal duty on Irish Life / First National to disclose all material facts known to them that are likely to effect the decision of a prospective client to enter into an Endowment Mortgage Contract with them. However, as we have seen, a breach of this Uberimma Fides duty of disclosure does not, of itself, constitute a tort; it does not give rise to a liability to damages.

Therefore, of far greater importance to those not dealing with a tied agent of Irish Life, is the fact that: where the silence of Irish Life, on any matter relating to the positive representations they have conveyed in their Mortgage Quotations, distorts those positive representations, then, they will be guilty of a tortious misrepresentation; they will be liable to damages. Such liability to damages may come within the ambit of Fraudulent, Negligent, or even Statutory Misrepresentation.

 

 

NOTE !

The issues of the degree to which First National (or any free agent, or any independent intermediary) can place reliance on the representations made by Irish Life, and the extent to which First National, as a Financial Institution of high repute in their own right, have condoned and colluded with those representations, will be a matter of legal dispute between themselves. So too will be the apportioning of the various responsibilities (including proper explanation, advice and disclosure) pertaining to their respective duties of care. Let them have at it!

 

NOW! — Let us see just how UNTOUCHABLE
these Financial Institutions really are!

 

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