It is necessary to consider what constitutes an acceptance, the methods of acceptance, the methods of acceptance, the prohibition of discrimination on the grounds of sex or race.
A. WHAT CONSITUTES AN ACCEPTANCE
There cannot be an acceptance so long as the terms of the contract of insurance are still under discussion and the premium remains to be fixed, since there is no contract until complete agreement has been reached, and nothing remains to be done by either party except to perform what has been agreed.
The offer, therefore, must be complete on the face of it, and the acceptance must be in the very terms of the offer. If the acceptance departs from the offer by introducing a fresh term, or if it comes from insurers other than those to whom the offer was made, there is not contract between the parties, even though a policy may have been issued.
Such an acceptance is equivalent to a counter-offer, which must in its turn be accepted before the parties are bound. in the absence acceptance, the assured cannot be sued under the policy for the premium, nor can he enforce the policy against the insurers. Thus, if the policy introduces a condition requiring pre-payment of the premium, there may be contract until he accepts the offer contained in the policy and pays the premium.
On the other hand, the insurers may have finally accepted the offer of the assured before the policy is issued, in which case a departure in the policy from the terms of the offer does not affect the contract which has already come into existence.
B. THE METHODS OF ACCEPTANCE
The methods of accepting the offer will depend on whether the offer is made by the proposer as it normally will be, or whether it is made by the insurers as in the case of coupon insurance.
A Where the offer is made by the proposer
The acceptance of a proposal may be signified by the insurers in one or other of the following ways:
1 By a formal acceptance.
2 By the issue of a policy.
3 By acceptance of the premium.
4 By the conduct of the insurers.
1 By formal acceptance
If, however, the acceptance is subject to a condition, there is no contract until the condition is fulfilled.
2 By the issue of a policy
The issue of the policy is a conclusive intimation that the insurers have accepted the proposal. they are, therefore, bound by their acceptance, and from it they cannot recede. In the case of a policy under seal, the acceptance is completed by the execution of the policy. It is, therefore, immaterial that the policy is retained by the insurers in their possession, and never handed over to the proposer, inasmuch as no formal acceptance is required from him, nor need he take away the policy in order to complete the delivery.
The policy, as an enforceable contract of insurance, is complete as from the date of its issue, even though no premium has been paid at the time of the loss in respect of which the proposer seeks to enforce it. By the terms of the policy, however, he may be, in some cases, precluded from enforcing it in respect of any loss happening before he has complied with its conditions.
At the same time the insurers cannot refuse to allow him to comply with such conditions, and thereby discharge themselves from liability under the policy. The issue of the policy binds them to carry out their part, even though by their conduct they may have released him from the necessity of performing the conditions in question.
The issue of a policy is not, however, an acceptance in the following cases:
i Where the assured does not treat the policy as an acceptance, but continues the negotiations for the purpose of obtaining an alteration in its terms;
ii Where the policy, as issued, departs from the proposal by introducing a fresh term, and thus constitutes not an acceptance but a counter-offer. The introduction of the fresh term shows that the agreement is not yet complete, since something remains to be done by the proposer to declare his adoption of it.
3 By acceptance of the premium
Where no policy has been issued to the proposer before the loss, the receipt of the premium and its retention by the insurers, though by no means conclusive, may raise the presumption, in the absence of any circumstances leading to a contrary conclusion, that the insurers have definitely accepted his proposal.
In such a case they are not entitled to refuse to issue a policy to him, and they are, therefore, liable to him in the event of a loss.
4 By the conduct of the insurers
Even where the premium has not been paid, nor the policy issued, the facts may clearly show that the insurers have accepted the proposal, and that there is a binding contract between the parties, on the part of the proposer to pay the premium, and on the part of the insurers to issue a policy. Where this is the case, the insurers cannot refuse to accept the premium when tendered, or otherwise repudiate their contract, and will be liable for a loss happening even before a policy is issued or the premium is paid.
What facts constitute an acceptance on the part of the insurers will depend on the circumstances of the particular case. A mere demand for the premium is sufficient. But mere delay in dealing with an application for insurance does not constitute an acceptance, unless it is the duly of the insurers to intimate their rejection prompty.
B Where the offer is made by the insurers
In the case of coupon insurance the offer proceeds from the insurers, and the terms of the offer must be considered to ascertain what constitutes a sufficient acceptance. When the offer has been accepted, there is a contract binding on the insurers, the contract being, according to the form of the coupon, either a contract of insurance or a contract to issue a policy of insurance.
The offer contained in the coupon is accepted when the requirements of the coupon have been complied with. The acceptance usually takes one of two forms:
1 Signing the coupon or purchasing the coupon on the article to which it is attached.
2 Notifying the insurers that their offer has been accepted.
1 Mere signature of coupon or purchase of an article
The holder of the coupon may not be required to do any act to bring the fact of his acceptance to the knowledge of the insurers. All that he has to do is to purchase the article to which the coupon is attached, and carry it on his person, or sign and fill in the coupon with the details asked for, or do any other act which the terms of the coupon may prescribe. In this case the acceptance is complete when the holder has done whatever acts may be prescribed.
2 Notification to the insurers
The holder may be required to register himself with the insurers as the holder of the coupon, or to exchange the coupon for a policy, at the same time playing a prescribed registration fee. In this case, the acceptance is, perhaps, complete when the holder has posted a letter addressed to the insurers applying for registration or for a policy in accordance with the terms of the coupon; but it is, at any rate, complete when the letter is actually received by the insurers.
C. THE EFFECT OF ACCEPTANCE
On the acceptance of the proposal the negotiations come to an end and the duty of disclosure ceases. The assured, therefore, is under no obligation either to disclose any material facts which only come to his knowledge, or to correct any misrepresentation the inaccuracy in which is only discovered, after acceptance.
An acceptance once given binds the parties and cannot be withdrawn except by mutual consent; it is immaterial that the parties have misapprehended their position and have cancelled the policy on the assumption that no contract exists between them.
The parties are bound to each other as from the date of the acceptance, the assured to take the policy and to pay the premium, the insurers to issue the policy, to accept the premium when tendered, and to pay a loss when it happens.
After a final acceptance the insurers cannot depart from it by attempting to introduce fresh terms into the policy; the assured is entitled to insist upon a policy in the exact terms of the proposal. Moreover, any such attempt on the part of the insurers does not relieve the assured from the obligation of performing the contract into which he has, in fact, entered.
D. DISCRIMNATION
It is unlawful for ay person concerned with the provision of insurance facilities to the public or section of the public to discriminate against a woman who seeks to obtain or use those facilities:
a by refusing or deliberately omitting to provide her with them; or
b by refusing or deliberately omitting to provide her with facilities of the like quality, in the like manner and on the like terms are normal in his case in relation to male members of the public or other members of that section of the public.
But nothing renders unlawful the treatment of a woman in relation to an annuity, life assurance policy, accident insurance policy or similar matter involving the assessment of risk, where the treatment:
a was effected by reference to actuarial or other data from a source on which it was reasonable to rely, and
b was reasonable having regard to the data and any other relevant factors.
It is unlawful for any person concerned with the provision of insurance facilities to discriminate against a person who seeks to obtain or use those facilities:
a by refusing or deliberately omitting to provide him with any of them; or
b by refusing or deliberately omitting to provide him with facilities of the like quality, in the like manner and on the like terms as are normal in relation to other members of the public.