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CHAPTER FOUR

LEGAL PRINCIPLES OF
INSURANCE
Learning Objectives

After studying this chapter, you should


be able to:
Explain the fundamental legal principles that
are reflected in insurance contracts, including
principle to indemnity, principle of insurable
interest, principle of subrogation, principle of
utmost good faith
Explain how an insured might lose his or her
coverage because of concealment, a
misrepresentation, or a breach of warranty.
Describe the basic requirements for the
formation of a valid insurance contract
Introduction
Insurance is affected by legal
agreements known as contracts or
policies.
A contract, contrary to the
impressions of many, cannot be
compete in itself, but must be
interpreted in light of the legal and
social environment of the society in
which it is made.
The specific legal doctrines that
4.1. Principle of Indemnity

The principle of indemnity sates


that a person may not collect more
than the actual loss in the event of
damage caused by an insured peril.
The person cannot make a profit by
collecting more than the actual
loss, if the property is destroyed.
Only contracts in property and
liability insurance are subject to this
principle.
Cont…
Life and most health insurance policies are
not contracts of indemnity.
No money payment can indemnify for loss
of life or for bodily injury to the insured, and
that is why life insurance is an exception to
the general rule.
The principle of indemnity is closely related
to insurable interest.
The problem in insurable interest is to
determine whether any loss is suffered by a
person insured, whereas in indemnity the
problem is to obtain a measure of that loss.
Cont…
In the basic fire insurance contract, then
measure of “actual cash loss” is the current
replacement cost of destroyed property less
an allowance for estimated depreciation.
In liability insurance, the final measure of
loss is determined by reference to a court
action concerning the amount of legal.
Liability of the insured for negligence, any
event, the purpose served by the principle
of indemnity is to place the insured in the
same position as before the loss.
Cont…
 One of the important results of the principle of
indemnity is the typical inclusion in insurance
contracts of clauses regarding other insurance.
 The purpose of such clauses is to prevent the
insured from taking out duplicating policies
with different insurers in the expectation of
recovering more than the actual loss.
 Typically such clauses provide that all policies
covering the same risk will share pro rata in
the loss.
Example
 If Desta carries 4,000 birr fire insurance in
Company A and 6,000 birr in company B, the
two insurers will divide a 10,000 birr fire loss
40 & 60 percent, respectively.
Methods of Providing Indemnity
There are four basic methods of providing an
indemnity:
Cash: Many claims are settled by means of a
cash payment to insured.
The cash payment is the measure of
indemnity, or extent of the insurer’s liability
for any given loss.
Repair: An adequate repair constitutes an
indemnity.
This form of settlement is particularly common
in motor insurance, where the insurer settles
the repair bill direct with the garage
concerned.
Cont…
Replacement: It is sometimes
advantageous for the insurer to replace
an article rather than to pay cash. With a
very new item or with such things as
jewelry and furs, depreciation is likely to
be negligible and the insured may well be
content with a new replacement.
Reinstatement. They is a term usually
found in fire insurance and concerns the
restoration or rebuilding of premises (not
necessarily on the same site) to their
former condition.
5.2. Principle of Insurable Interest

An insured must demonstrate a personal loss or the


insured will be unable to collect amount due when a
loss due to the insured peril occurs.
The principle of insurable interest states that the
insured must be in a position to lose financially if a
covered loss occurs.
Insurable interest is always a legal requirement
because to hold otherwise would mean that an
insured could collect without personal loss.
Insurance contracts must be supported by an
insurable
interest for the following reasons:
To prevent gambling
To reduce moral hazard
To measure the amount of the insured’s loss in
property insurance
Cont…
The essentials of insurable interest are as follows:
Presence of subject matter to be insured.
Existence of monetary relationship between the
subject matter and the would be policyholder.
The relationship existing between the
policyholder and the subject matter need to be
legal.
The policyholder must be economically
benefited by the survival or suffer an economic-
loss from the damage of destruction of the
subject matter.
An insurable interest may be applied on life,
property, or potential liability.
Life

Self Insurance:
 An individual has an insurable interest in his own
life, and there is no limit to the sum for which a
man may insure his own life
Husband and Wife:
A wife may insure the life of her husband because
his continued existence is valuable to her and she
would suffer a financial loss upon his death.
Likewise, a husband may insure the life of his wife
because her continued existence is valuable to him
and he could suffer a financial loss upon her death.
A father may insure the life of a minor-child, but a
brother may not ordinarily insurance the life of his
sister.
Property

Insurable interest in property may arise as


follows:
Ownership:
This is the most obvious form and in addition
to full ownership, part or joint ownership
gives the right to insure.
With part ownership, the insurable interest is
strictly limited to the financial involvement,
but a part owner may insure the property for
the full value, as he will be deemed to be
acting as an agent for the other co-owners.
Any amount he receives from the insurance,
over and above his own interest, is to be held
in trust for the co-owners.
Cont…
 Husband and wife: A husband has an
insurable interest in his wife’s property as he is
legally entitled to share her enjoyment of it, and
a wife similarly has an insurable interest in her
husband’s property as their relationship is
reciprocal.
 Administrators, Executors and Trustees:
These are all persons entrusted with the estate
and affairs of others. They have a right to insure
the property for which they are responsible.
 Bailess: These are persons or entities legally
in possession of goods belonging to others, for
example, laundries, cobblers, and the like have
the right to insure for losses to goods in their
custody representing interest of the owner.
Cont…
Creditors and Debtors:
A creditor stands to loss if his debtor dies without
paying the debt. Thus, he has the right to insure
the debtor up to the amount of the loan.
Partners:
 The death of a partner could well cause financial
loss to the survivor(s), who therefore, have a
right to insure him.
This could arise with a professional firm or
perhaps with theatrical performers. The amount
of insurable interest would be difficult to
ascertain, but legally it is limited to the financial
involvement in the person insure.
Liability

Insurance of liability seldom


gives rise to any difficulty over
the existence of insurable
interest.
 A person clearly has an interest
in the sums he may be called
upon to pay to third parties as a
result of accident.
When the Insurable Interest Must Exist?

In property and liability insurance it is possible


to effect coverage on property in which the
insured does not have and insurable interest
at the time the policy is writer, but in which
such an interest is expected in the future.
In marine insurance a shipper often obtains
coverage on the cargo it has not yet
purchased in the anticipation of buying cargo
for the return trip.
As a result the courts generally hold that in
property insurance, insurable interest need
exist only at the time of the loss and not at
the inception of the policy.
5.3. Principle of Subrogation

Grows out of the principle of indemnity.


Under the principle of subrogation one who has
indemnified another’s loss is entitled to
recovery from any liable third parties who are
responsible.
Thus, subrogation in insurance is the transfer by
an insured to an insurer of any right to proceed
against a third party who has negligently
caused the occurrence of an insured loss.
For example, an automobile insurer that has
paid a collision insurance claim obtains the right
to collect reimbursement from any negligent
third party who caused the accident.
Cont…
Subrogation is a corollary of the principle of
indemnity and the right of subrogation
It applies only to policies which are contracts
of indemnity.
Thus it does not apply to personal accident or
life policies.
For instance, if the death of a life insured
should be caused by the negligence of a third
party, his legal personal representatives may
be able to recover damages in addition to the
policy moneys.
The insurers have no right of action against
the third party and cannot be benefit by any
damage sreceived.
5.4. Principle of Utmost Good Faith

Insurance is said to be a contract of utmost


good faith
This principle imposes a higher standard of
honesty on parties to an insurance
agreement than is imposed in ordinary
commercial contracts.
Insurance contracts are based upon mutual
trust and confidence between the insurer and
the insured.
The application of this principle may best be
explained in a discussion of representation,
concealments, and warrantees.
Representations

A representation is a statement made by an


applicant for insurance before the contract is
effects.
Although the representation need not be in writing,
it is usually embodied in a written application.
It is a statement in response to a question by the
insurer.
An example of representation in life insurance
would be “Yes” or “no” to a question
If a representation is relied upon by the insurer in
entering in to the contract, and
if it proves to be false at the time it is made or
becomes false before the contract is made, there
exists legal grounds for the insure to avoid the
contract.
Cont…
Avoiding the contract does not follow unless
the misrepresentation is material to the
risk.
That is, if the truth had been known, the
contract either would not have been issued
at all or would have been issued on
different terms.
If the misrepresentation is inconsequential,
its falsity will not affect the contract.
However, a misrepresentation of a material
fact makes the contract voidable at the
option of the insurer.
Cont…
The insurer may decide to affirm the
contract or to avoid it.
 Failure to cancel a contract after first
learning about the falsity of a material
misrepresentation may operate to defeat to
insurer’s rights to cancel at a later time,
under the doctrines of waver (Voluntary
relinquishment of a known right) or
estoppels (which prevents a person from
asserting a right because he has acted
previously in such a way as to deny any
interest in that right)
Concealments

Concealment is intentional failure of the


applicant for insurance to reveal a material fact
to insurer.
Concealment has approximately the same legal
effect as a misrepresentation of a material fact.
It is the failure of an applicant to reveal a fact
that is material to the risk.
 Because insurance is a contract of utmost good
faith, it is not enough that the applicant answer
truthfully all questions asked by the insurer
before the contract is affected.
The applicant must also volunteer material
facts, even if disclosure of such facts might
result in rejection of the application of the
payment of a higher premium.
Cont…
 The applicant is often in a position to know
material facts about the risk that the insurer does
not.
 To allow these facts to be concealed would be
unfair to the insurer.
 After all, the insurer does not ask questions such
as “Is your building now on fire?” or “Is your car
now wrecked?”
 The important, often crucial, question about
concealments lies in whether or not the applicant
knows the fact withheld to be material.
 The tests of concealment are:

(1) did the insured know of a certain fact?


(2) Was this fact material? And
(3) was the insurer ignorant of this fact?
Warrantees:
A warranty is a clause in an insurance
contract holding that before the insurer is
liable, a certain fact, condition, or
circumstance affecting the risk must exist.
 Warrantees may be expressed or implied:
◦ Express warranties are those stated in the
contract,
◦ Implied warranties are not found in the
contract, but are assumed by the parties
to the contract.
 Implied warranties are found in ocean
marine insurance
 For example, shipper purchases insurance
Cont…
Unless these conditions have been waived by
the insurer (legally cannot be waived), they
are binding upon the shipper.
A warranty may be promissory or affirmative:
A promissory warranty describes a condition,
fact, or circumstance to which the insured
agrees to be held during the life of the
contract.
An affirmative warranty is one that must exist
only at the time the contract is first put into
effect.
For example, an insured may warrant that a
certain ship left port under convoy affirmative
under convoy promissory warranty
Principle of contribution

 Contribution is the right of an insurer who has


paid under a policy, to call upon other insurers
equally or otherwise liable for the same loss to
contribute to the payment.
 Where there is over insurance because a loss is
covered by policies affected with two or more
insures, the principle of indemnity still applies.
Basis of Contribution
 At the time of a claim, insurers usually inquire
whether any other insurance exists covering
the loss. Where other insurances do exist and
each policy is subject to a valid claim,
contribution will apply so that the respective
insurers share the loss ratably. This term allows
two constructions, both of which are found in
Contribution According to
Independent
◦ Liability: means that the amount payable by each
insurer is assessed as if the other insurances do
not exist.
◦ If the aggregate of the amounts so calculated
exceeds the loss, each insurer’s contribution is
scaled down proportionately, so that an indemnity
is provided.
◦ This method is usually found where for some
reason one or more of the policies will not cover
the loss in full. This happens particularly in many
fire policy contributions.
Contribution According to the sums Insured:
◦ This is the normal method of contribution. Insurers
will pay proportionately to the cover they have
provided, in accordance with the following formula:
Cont…
 .

Example: Assume that Ato Beka has inured his house,


which is worth Birr 80,000 against fire insurances X, Y,
and Z for Birr 60,000, Birr 40,000, and Birr 20,000
respectively Ato Beka’s house was completely
destroyed by a fire caused by Ato Tigabu’s negligence.
The amount of indemnity that Ato Beka will be entitled to
receive would be Birr 80,000, the value of the actual
loss or the amount of insurance carried.
The amount that each insurer is entitled
to contribute would be as follows:
Solution
 .

Total indemnity
=Br.80,000
Requirements of Insurance Contracts

An insurance policy is based on the law of


contracts.
To be legally enforceable, insurance contracts
must meet four basic requirements: offer and
acceptance, consideration, competent parties,
and legal purpose.
Offer and Acceptance
In most cases, the applicant for insurance
makes the offer, and the company accepts or
rejects the offer.
 In property and liability insurance, the offer
and acceptance can be oral or written.
A binder is a temporary contract for insurance
and can be either written or oral.
Consideration

Consideration refers to the value that each


party gives to the other.
The insured’s consideration is payment of
the first premium (or a promise to pay a first
premium) plus an agreement to abide by the
conditions specified in the policy the insurers
consideration is the promise certain things
as specified in the contract.
This promise can include paying for a loss
from an insured peril, providing certain
services, such as loss prevention and safety
services, or defending the insured in a
liability lawsuit.
Competent parties

The parties must have legal capacity to


enter in to a binding contract.
Most adults are legally competent to
enter in to insurance contracts, but there
are some expectations.
Insane persons, intoxicated persons, and
corporations that act outside the scope of
their authority can not enter in to
enforceable insurance contract.
Minors normally are not legally,
competent to enter in to biding insurance
contract.
Competency

Every person is competent to contract:


 Who is of the age of majority according to the law
 Who is of sound mind and
 Who is not disqualified from contracting by any
law to which he is subject
Thus the competency to contract implies
that,
 A minor is not competent to contract
 A person of sound mind means, he/she is capable
to understand it and forming a rational judgment
about it and the effects upon his/her interests.
 A person of unsound mind occasionally can enter
into contract when he/she is in sound mind
 An alien enemy, undercharged insolvent and
criminals cannot enter into a contract
Legal Purpose

An insurance contract that encourages or


promotes something illegal or immoral is
contrary to the public interest and cannot
be enforced.
In order to make a valid contract, the
object of the agreement must be lawful.
An object is lawful if it is-
◦ Not forbidden by law, or
◦ Is not immoral, or
◦ Opposed to public policy, or
◦ Which does not defeat any provision of any
law
Distinct legal characteristics of insurance contracts

Insurance contracts have distinct


legal characteristics that make them
different from other legal contract.
 These characteristics are as follows:
◦Aleatory
◦Unilateral contract
◦Conditional Contract
◦Personal contract
◦Contract of adhesion
Aleatory contract:
An aleatory contract is one in which the value
exchanged may not be equal but depend on
an uncertain events.
Depending on chance, one party may receive
a value out of proportion to the value that is
given.
For example: Assume that Lorri pays a
premium of Birr 500 for birr 100,000 of home
owners insurance on her home. If the home
totally destroyed by fire shortly thereafter, she
would collect an amount that greatly exceeds
the premium paid. On the other hand, a home
owner may faithfully pay premiums for many
years and never have a loss.
Unilateral contract:
A unilateral contract means that only one party
makes a legal enforceable promise. In this case,
only the insurer makes a legally enforceable
promise to pay a claim or provided other
services to the insured.
Conditional Contract:
- An insurance contract is a conditional contract.
That is, the insurers obligation to pay a claim
depends on weather the insured or the
beneficiary has compiled with all policy
conditions.
- Conditions are provisions inserted in the policy
that qualify or place limitations on the insurers
promise to per form.
Personal contract:
In property insurance, insurance is a
personal contract, which means the
contract is between the insured and the
insurer.
Contract of Adhesion:
- A contract of adhesion means the
insured must accept the entire contract,
with all of its terms and conditions
ANALYSIS OF INSURANCE CONTRACTS

BASI C PARTS OF AN INSURABLE CONTRACT


Insurance contracts are complex legal
documents.
Despite their complexities, insurance
contracts generally can be divided into six
parts.
 Declarations
 Definitions
 Insuring agreement
 Exclusions
 Conditions
 Miscellaneous Provisions
Declarations

The first part of an insurance contract.


Declarations are statements that provide
information about the property or activity to
be insured.
Information contained in the declarations
section is used for underwriting and rating
purposes and for identification of the
property or activity to be insured.
The declarations in an insurance contract
typically constitute the first page or pages of
the contract, often taking the form of able in
which information identifying the insured
objects or situations is filled in.
Cont…
 In property insurance, the declarations page
contains information concerning the
identification of the:
insurer,
◦ name of the insured,
◦ location of the property,
◦ period of protection,
◦ amount of insurance,
◦ amount of the premium,
◦ size of the deductible ( if any), and
◦ other relevant information
In life insurance the first page of the policy usually
contains the insured’s name, age, premium
amount,
Definitions

Insurance contracts typically contain a


page or section of definitions.
Key words or phrases have quotation
marks (“…”) around them or are boldface
type. For example, the insurer is
frequently referred to as “we,” or “our,” or
“us.”
The insured is referred to as “you” and
“your.” The purpose of the various
definitions is to define clearly the meaning
of key words or phrases so that coverage
under the policy can be determined more
easily.
Insuring Agreement

The insuring agreement is the heart of an


insurance contract.
The insuring agreement summarizes the
major promises of the insurer.
The insuring agreement normally states what
the insurer agrees to do and the major
conditions under which it so agrees.
The insurer, in other words, agrees to do
certain things, such as paying losses from
insured perils, providing certain services (such
as loss-prevention services), or agreeing to
defend the insured in a liability lawsuit.
Cont…
The promises of the insurer and
the conditions under which losses
are to be paid are described in the
insuring agreement.
There are two basic forms of an
insuring agreement in property and
liability insurance:
1) named-perils coverage and
2) “all-risks” coverage.
Cont…
Under a named-perils policy,
only those perils specifically named in
the policy are covered.
If the peril is not named, it is not
covered. For example, in the home-
owners policy, personal property is
covered for fire, lightning,
windstorm, and certain other named
perils.
Only losses caused by these perils are
covered.
Flood damage is not covered, since flood
Under an “all-risks”
policy
(also called on open perils policy), all
losses are covered except those losses
specifically excluded.
If the loss is not excluded, then it is
covered. For example, the physical
damage section of the personal auto
policy covers physical damage losses to a
covered auto.
 Thus, if a smoker burns a hole in the
upholstery, or a monkey in a national park
tears up the convertible roof or a covered
auto, the losses would be covered
Exclusions
Exclusions are used to help define
and limit the coverage provided by
an insurer. Typically, exclusions are
used to restrict coverage of given
perils, losses, property, and
locations.
There are three major types of
exclusions:
 excluded peril,
 excluded losses, and

Cont…
Exclude Perils. The contract may exclude
certain perils, or causes of loss.
Excluded Losses Most insurance contracts
contain provisions excluding certain types of
losses, even though the policy may cover
the peril that causes these losses. For
example, commercial property policies
usually cover any direct loss for which
covered perils are the proximate cause.
Excluded Property A property insurance
policy may be written to cover certain perils
and resultant losses, but it will be limited to
certain types of property.
Cont…
Exclusions are necessary for the
following
reasons:
Uninsurable perils
Presence of extraordinary hazards
Coverage provided by other
contracts
Moral hazard
Coverage not needed by typical
insured
Conditions

Conditions are provisions in the policy


that qualify or place limitations on the
insurer’s promise to perform.
In effect, the conditions section
imposes certain duties on the insured
if he or she wishes to collect for a loss
Miscellaneous Provisions
deal with the relationship between
the insured and insurer, and the
relationship and responsibility of the
insurer toward third parties.
Cont…
In property and liability insurance,
some common provisions refer to
cancellation, subrogation, and
requirements if a loss occurs,
assignment of the policy, and
other-insurance provisions.
In life and health insurance, some
common provisions refer to the
grace period, the reinstatement of
a lapsed policy, and the
misstatement of age.
Endorsements and riders

These terms describe provisions that are


added to standard contracts.
In property and liability insurance, an
endorsement is a written provision that adds
to, deletes from, or modifies the provisions in
the original contract.
In life and health insurance, a rider is a
document that amends or changes the
original policy.
For example, a home owner’s policy excludes
coverage for earthquakes. However, an
earthquake endorsement can be added that
covers damage from an earthquake or from
earth movement.
Deductibles

A deductible is an amount subtracted from


the loss to determine the insured’s recovery.
 Under a typical flat Birr deductible, recovery
is not triggered until a loss exceeds the
deductible, in which case the recovery is the
amount by which the loss exceeds the
deductible,
For example, a policy with Birr 1000 flat
deductible provides no recovery for Birr 800
loss. For a loss of Birr 1,400, the policy
provides a birr 400 recovery.
 Deductibles are a partial retention device
used to determine the point at which the
financial consequences of loss become
Cont…
Deductibles have the following important
purposes:
 To eliminate small claims
 To reduce premium
 To reduce moral and morale hazard
The following deductibles are commonly
found in property insurance contract:
 Straight deductible
 Aggregate deductible
Cont…
Straight Deductible
◦ the insured must pay a certain amount of Birr
of loss before the insurer is required to make a
payment.
◦ It applies to each loss and is subtracted before
any loss payment is made.
Aggregate Deductible
◦ is often used in commercial property insurance,
◦ all covered losses during the year are added
together until they reach a certain level.
◦ If total covered losses are below the aggregate
deductible, the insurer pays nothing.
◦ Once the deductible is satisfied, all losses
thereafter are paid in full.
Example,
Assume that a property insurance contract
contains a Birr 1000 aggregate deductible
for the calendar year. If a loss of Birr 500
occurs in January, the insurer pays
nothing. If a Birr 2000 loss occurs in
February, the insurer would pay only Birr
1500. At this point, the aggregate
deductible of Birr 1000 has now been
satisfied for the year. If a Birr 5000 loss
occurs in March, it is paid in full. Any other
covered losses occurring during year
would also be paid in full.
Coinsurance

Coinsurance is a clause that requires


the insured to insure to value or share
the loss with the insurance company.
The typical coinsurance clause prorates
partial losses between the insurer and
the insured in the proportion that the
actual insurance carried bears the
amount required under the clause.
Usually 80 or 90 percent of the value of
the property is the amount required.
Cont…
Ifthere is a building with a value of
Birr, 100,000 written with a 90 percent
coinsurance clause, Birr 90,000 of
insurance is required. The insured that
carries at least this amount collects in
full for any partial loss. But the insured
that carries half of this amount, or Birr
45,000, collects only half of any partial
loss. The amount collected in any case
may be determined by the following
formula:
Cont…

Where Amount of insurance required =


(coinsurance percent) (value of property)
If the loss equals or exceeds the amount
required under the clause (if the loss is
nearly total), there is no penalty invoked
by the coinsurance clause. Thus, if in the
preceding case the loss was Birr 90,000 at
a time when the insured is carrying only
Birr 60,000 of insurance, substitution in
the formula yields
Solution

The recovery is Birr 60,000, the


amount of insurance carried, and there
is no penalty other than the fact that
the insured did not carry sufficient
insurance to cover the entire loss.
But if the losses were Birr 15,000, the
recovery would be only (Birr 60,000 ÷
Birr 90,000) × Birr 15,000 = Birr
10,000,
Cont…
Thus, the coinsurance clause places the
burden on the insured to keep the amount
of insurance equal to or above the
amount required by the clause, Failing
this, the insured becomes a coinsurer and
must bear part of any partial loss.
Illustration of the operation of the
Coinsurance
Clause
Building value = Birr 500,000
Coinsurance requirement = 80%
Insurance carried = Birr 300,000
Cont…

 Illustration2
 Building value = Birr 700,000
 Coinsurance requirement = 80%
 Insurance carried = Birr 600,000
 Loss = Birr 100,000
 Insurance required = .80 x Birr 700,000 =
Birr 560,000
 Because Birr 600,000 > birr 560,000, the
coinsurance requirement is met, and there is
no coinsurance penalty in the recovery of the
Cont…
In applying the coinsurance formula two
points
should be kept in mind:
First, the amount paid can never exceed
the amount of the actual loss even though
the coinsurance formula produces such a
result. This could happen if the amount of
insurance carried is greater than the
required amount of insurance.
Second, the maximum amount paid for
any loss is limited to the face amount of
insurance.
Coinsurance in Health Insurance

Health insurance contracts frequently


contain a coinsurance clause which is
technically called a percentage
participation clause.
 The purposes of coinsurance in health
insurance are:
◦ To reduce premiums and
◦ To prevent over utilization of policy benefits.
Other-insurance Provisions
Some important other-insurance provisions
in property and liability insurance include:
◦ The pro rata liability clause,
◦ Contribution by equal shares
Contribution by Equal shares

each insurer shares equally in the loss


until the share paid by each insurer
equals the lowest limit of liability under
any policy, or until the full amount of the
loss is paid.
 For example, assume that the amount
of insurance provided by companies A,
B, and C is Birr 100.000, Birr 200,000,
and Birr 300,000 respectively.
If the loss is Birr 150,000 each insurer
pays an equal share or Birr 50,000.
.

 .

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