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Uberrimae Fidei:

Now there's a legal phrase whose time has come -- and gone. Apparently it's common in admiralty law, and it means "of the utmost good faith," as in "Marine insurance is a contract 'uberrimae fidei,' requiring the utmost good faith by both parties to the contract." I've been in law teaching for nearly 14 years, and had never heard of it until today. Use it at your own peril, unless you're using it in a field where it's firmly established.

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  1. Uberrimae Fidei, Back in the News:
  2. Uberrimae Fidei:
Egotistical Jerk:
The term is used frequently in the law of insurance contracts.
2.20.2008 12:03am
dude (mail):
Can I say, "this motion is brought uberrimae fidei"?
2.20.2008 12:07am
Dr. Weevil (mail) (www):
That's a rather odd phrase, at least to a Latinist. If you want to say 'of the utmost good faith', why not supremae fidei or ultimae fidei? The adjective uber (superlative uberrimus) means 'copious, abundant, fertile, rich, luxurious', and is related to the noun uber, which means 'breast, teat, udder; fertile soil' and is a cognate of 'udder'. What does an agricultural/anatomical/animal husbandry metaphor have to do with the law? The closest shade of meaning I could find in the unabridged lexicons is 'comprehensive', used once in the Digest. Is that where it comes from?
2.20.2008 12:09am
Just Saying:
How does one go about differentiating between mere garden-variety good faith and 'the utmost good faith'?
2.20.2008 12:28am
alias:
Can I say, "this motion is brought uberrimae fidei"?

If you have to say so, the judge will probably doubt it.
2.20.2008 12:29am
FantasiaWHT:
Never thought I'd see leet-speak in the law... uber... everything is uber these days. I never realized it was latin, though, I had always associated it with German
2.20.2008 1:44am
Jonathan F.:
Yes, this phrase has been around since 1337.
2.20.2008 2:02am
Dave N (mail):
When I was at my doctor's office yesterday, I realized that physicians use Latin more than attorneys do--though at least for the physicians, the Latin abreviations and phrases actually have some utility.
2.20.2008 2:19am
MarineCorpsVet (www):
The german Uber, or more correctly, with an umlaut over the "U" would actually be more appropriate. The general, literal meaning in german is "over". Uberleutnant is literally "over lieutenant". (meaning one who is over a leutnant)
2.20.2008 3:42am
martinned (mail) (www):
L.S.,

@Just Saying: The difference is, for example, caveat emptor. (Another glorious latin phrase.) The law defines what kinds of information the seller of something (say, a house that is haunted), has to give to the buyer, so as to act in good faith. Similar for most other contractual relations. (I'm not sure about the Common Law on this one, but my country's Civil Code states in several places that parties to a contract have to act in good faith towards one another.)

In the context of insurance contracts, on the other hand, the party buying insurance is under a legal obligation to act uberrimae fidei, with the utmost good faith. The customer has to answer each of the insurance company's questions truthfully, and has to volunteer material information if the insurer does not ask for it.
2.20.2008 4:58am
martinned (mail) (www):
L.S.,

And as for whether the phrase is still common, "uberrimae fidei" gets 36 hits on bailii. The first hit is even an ECHR precedent, concerning discrimination against transgendered individuals. (The insurance angle is that transgendered individuals may, on occasion, have to identify their former gender, for example when they take out life assurance.)

Less, reliable, but more jurisdictions: Worldlii gives 248 hits.

I suppose the phrase might be outdated in the US, but certainly not in the UK. It's in the textbooks and everything...
2.20.2008 5:08am
Chris Smith (mail):
All an umlaut does in German is compress a, i, o, or u followed by an e to the single vowel with a horizontal colon character for a hat.
So you should write "Ueberleutnant".
2.20.2008 6:53am
Positroll (mail):
The german Uber, or more correctly, with an umlaut over the "U" would actually be more appropriate. The general, literal meaning in german is "over". Uberleutnant is literally "over lieutenant". (meaning one who is over a leutnant)
Sorry, but first lieutenant is Oberleutnant in German (not to be confounded with Oberstleutnant [lieutenant colonel], not Überleutnant. Ober- usually has only the meaning of "higher" (rank, or location), whereas Über- can also simply mean "above" (or "more/over"), but tends to have a connotation of supremacy (as in the Übermensch of Nietzsche) or exaggeration (übermässig, übertrieben) ...
2.20.2008 7:46am
Erick R (mail):
Jonathan F clearly pwned this thread.
2.20.2008 8:39am
Happyshooter:
So if the good faith is violated then the carrier does not have to pay?

So it is really just good faith and disclosure by the insured.
2.20.2008 9:31am
martinned (mail) (www):
L.S.,

@Happyshooter: Yes. But since the degree to which the insured has to volunteer information (and generally: cooperate) is an order of magnitude greater than in any other contractual relation, the term is "the utmost good faith", or uberrimae fidei.
2.20.2008 10:17am
Bob The Lawyer:
The term is certainly current in English insurance law
2.20.2008 10:46am
rustonite (mail):
agricultural metaphors are common in late Latin with the word fides. It grows, it's cultivated, etc. I suspect it comes out of Luke 8:4-15 and Matthew 13:1-9, where faith is metaphorically a seed.
2.20.2008 11:46am
PaulK (mail):
Actually, I came across that phrase (at least the english translation -- there is an unfortunate paucity of legal latin nowadays) this (1L) year.
2.20.2008 11:57am
martinned (mail) (www):
L.S.,

Wikipedia writes:


A higher duty is exacted from parties to an insurance contract than from parties to most other contracts in order to ensure the disclosure of all material facts so that the contract may accurately reflect the actual risk being undertaken. The principles underlying this rule were stated by Lord Mansfield in the leading and often quoted case of Carter v Boehm (1766), 97 E.R. 1162 (K.B.) at 1164: Insurance is a contract of speculation... The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the under-writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist... Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary. See, generally, Parkington, ed., MacGillivray and Parkington On Insurance Law, 8th ed. (1988) para. 544; Brown and Menezes, Insurance Law in Canada, 2d ed. (1991) pp. 8-9; and 25 Halsbury's Laws of England, 4th ed. para. 365 et seq.
2.20.2008 12:06pm
fffff:
The term is used frequently in the law of insurance contracts.

Having the misfortune of practicing insurance law in the states once upon a time, I can say the term "good faith" has eclipsed uberrimae fidei almost completely.

Somebody posted above that the term is current in English insurance law: uberrimae fidei *is* frequently used in reinsurance law -- probably because of the strong Commonwealth presence that flavors reinsurance practice (which rationale, come to think of it, would apply to maritime law as well).
2.20.2008 12:30pm
JohnO (mail):
Just saying:

The difference is that regular old good faith only goes to ten, but utmost good faith goes to eleven.
2.20.2008 12:48pm
John Foster (mail) (www):
Presumbably you are referring to last week's decision by the Ninth Circuit in Certain Underwriters at Lloyd's v Inlet Fish Producers, 2008 US App Lexis 2951.

From an admiralty perspective it is an interesting decision for several reasons, e.g., the interplay between federal and state law, particularly in the area of marine insurance. See Wilburn Boat v Fireman's Fund, 348 US 310 (1955).
2.20.2008 1:02pm
Perplexo:
Is this term not also used in the context of English Trust law, with respect to the how the Trustee must behave with respect to the beneficiary's interests?
2.20.2008 7:19pm
Perplexo:
IIRC, the relation of trustee and beneficiary is described as being a situation requiring uberrimae fidei - which in turn requires that the Trustee must place the beneficiary's interests above his own, if they should come into competition or conflict.

Which also kind of describes what the purchaser of the insurance must do with respect to the material facts within his knowledge as to the risk being insured. His self-interest in not revealing such must yield to the Insurer's (and society's) interests in pricing risk correctly.

It does carry that element of self-denial or putting of self-interest in second place to the interests of others. In both cases it implies something beyond simple good faith , requiring more revelation or action against self-interest than is required in other contexts eg. contracts of P&S of goods where all representations are implicitly made in good faith (but a relation of uberrimae fides requires in addition to this that all material knowledge known is in fact represented - there can be no "caveat emptor" in such a relationship).

The phrase is useful and adds a layer of obligation requiring active self-abnegation to the usual "good faith". In insurance not just the facts useful to one party but ALL the facts especially those contrary to the party's interests. In Trusts it means that where Trustee and Beneficiary's interests compete or conflict the Trustee must do what is best for the Beneficiary, not herself.

Not knowing much about insurance law - does this also lay obligations as to the Insurer? Or is it one-way like in Trust (no obligations added to the Beneficiary, only the Trustee)? Or does reciprocity manifest in the strict interpretation of the words of the contract against the insurer's interests in case of (the slightest?) ambiguity at trial?
2.20.2008 8:04pm
Radish (mail):
I've occasionally seen the phrase used regarding settlement agreements in divorce law, and it means what Perplexo says it does -- not merely good faith (which really amounts to the absence of markers of bad faith), but full disclosure of all facts of concern to the other party. If you forget to mention your villa in Provence, don't be surprised if your property settlement gets opened up when the ex finds out about it.
2.21.2008 12:11pm