A Comparative History of Insurance Law in Europe: A Research Agenda [1 ed.] 9783428554997, 9783428154999

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Comparative Studies in the History of Insurance Law Studien zur vergleichenden Geschichte des Versicherungsrechts Volume / Band 1

A Comparative History of Insurance Law in Europe A Research Agenda

Edited by

Phillip Hellwege

Duncker & Humblot · Berlin

PHILLIP HELLWEGE (ED.)

A Comparative History of Insurance Law in Europe

Comparative Studies in the History of Insurance Law Studien zur vergleichenden Geschichte des Versicherungsrechts Edited by / Herausgegeben von Prof. Dr. Phillip Hellwege

Volume / Band 1

A Comparative History of Insurance Law in Europe A Research Agenda

Edited by

Phillip Hellwege

Duncker & Humblot · Berlin

The project ‘A Comparative History of Insurance Law in Europe’ has received funding from the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No. 647019).

Bibliographic information of the German national library The German national library registers this publication in the German national bibliography; specified bibliographic data are retrievable on the Internet about http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2018 Duncker & Humblot GmbH, Berlin Printing: CPI buchbücher.de GmbH, Birkach Printed in Germany

ISSN 2625-638X (Print) / ISSN 2625-6398 (Online) ISBN 978-3-428-15499-9 (Print) ISBN 978-3-428-55499-7 (E-Book) ISBN 978-3-428-85499-8 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706

Internet: http://www.duncker-humblot.de

Preface The history of insurance law has fallen into neglect, and the state of research is for a number of reasons unsatisfactory. It is only recently that the topic has again received attention from legal historians. Nevertheless, the focus of today’s research is largely on the history of maritime insurance law. It is against this background that I have decided to initiate a project on the ‘Comparative History of Insurance Law in Europe’ (CHILE). CHILE is funded through a Consolidator Grant of the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme. I will fully expand on CHILE’s research agenda and on the objective of the present volume in my introductory chapter. Nevertheless, four points are worth highlighting in this preface. (1) Hitherto, research into the history of insurance had a clear focus on maritime insurance. CHILE will go beyond maritime insurance and will include other forms of insurance. (2) In the past, research on the history of insurance had a clear focus on insurance which is operated on a commercial basis. CHILE will go beyond mercantile insurance and will include forms of mutual assistance. (3) Up to now, research on the history of insurance has been led by economic historians and, consequently, legal developments have been neglected. CHILE will include legal developments. (4) Finally, in Europe there are distinct national narratives on insurance history. CHILE wants to go beyond these national narratives and analyse the history of insurance law in Europe from a comparative perspective. It is planned that this research agenda will be carried out over the coming years. In order to succeed with this agenda it is necessary to critically revisit the state of research on the history of insurance in Europe. That is what the present volume aims at. Thereby, the present volume seeks to map out the prospects for a comparative history of insurance law in Europe. For the purpose of the present volume, only a small number of jurisdictions have been selected: Italy, France, Spain (with some observations on Portugal), Belgium, the Netherlands, England and Scotland, Germany, and the Scandinavian countries. I will fully explain the choice of these jurisdictions in my introductory chapter. I have asked each author to map out the state of research and prospects for future research in approximately 20 to 25 pages. For the Belgian perspective I had contacted two authors, and due to imprecise communication on my side the two authors believed that they each had 20 to 25 pages. Thus, the

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Belgian paper is longer than the other contributions. As the paper on the developments in the Netherlands builds upon the Belgian paper, I was able to shorten my own paper on the Dutch perspective. The deadline for submitting the final papers was 31 March 2016. Some authors have taken the opportunity to update their respective contributions with respect to the latest literature on the subject before the volume went into print. Finally, I would like to thank Michael Friedman for correcting the English of the contributions of non-native speakers. The present volume is the first volume of CHILE and at the same time it is the inaugural volume of a new series launched by Duncker & Humblot carrying the title ‘Comparative Studies in the History of Insurance Law/Studien zur vergleichenden Geschichte des Versicherungsrechts’. It will be followed by further volumes which will present the results of CHILE. However, it is hoped that the present volume, and CHILE as a whole, will also stimulate research into the history of insurance law by others; the series is, of course, not restricted to publishing the results of the CHILE-project but is open to anyone. Augsburg, June 2018

Phillip Hellwege

Summary of Contents Phillip Hellwege Chapter 1: Introduction............................................................................................

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Maura Fortunati Chapter 2: Italy........................................................................................................ 27 Sophie Delbrel Chapter 3: France .................................................................................................... 45 Miguel Ángel Morales Payán Chapter 4: Spain ...................................................................................................... 67 Dirk Heirbaut Chapter 5 A: Belgium. Non-marine insurance ........................................................ 89 Dave De ruysscher Chapter 5 B: Belgium. Marine insurance ............................................................... 110 Phillip Hellwege Chapter 6: Netherlands ........................................................................................... 133 John MacLeod Chapter 7: England and Scotland ............................................................................ 149 Phillip Hellwege Chapter 8: Germany ................................................................................................ 171 Martin Sunnqvist Chapter 9: Scandinavia ........................................................................................... 199 Phillip Hellwege Chapter 10: A Comparative History of Insurance Law in Europe .......................... 223 Jerònia Pons Pons Chapter 11: The Economic Historian’s View........................................................... 231 Bernard Harris Chapter 12: The Social Historian’s View ................................................................ 239 List of Contributors....................................................................................................... 245 Index ............................................................................................................................ 246

Chapter 1: Introduction By Phillip Hellwege1 A. A comparative history of insurance law in Europe: two possible points of departure 9 B. The first point of departure: the history of insurance law in Europe in need of being re-told ............................... 11 C. The second point of departure: harmonizing insurance contract law in Europe ....... 16 D. A comparative history of insurance law in Europe: a research agenda ..................... 17 E. The objective and structure of the present volume ................................................... 20 I. The concept of ‘possible points of interaction’ ................................................. 21 II. Europe and beyond............................................................................................ 21 III. The development of insurance as an institution and the development of insurance law .................................................................................................... 22 IV. The time period covered.................................................................................... 23 V. An interdisciplinary approach: problems and necessities .................................. 23 VI. The concept of insurance .................................................................................. 25

A. A comparative history of insurance law in Europe: two possible points of departure By the time of its publication, the editor of a volume bringing together the contributions of different authors will have answered the same question again and again: why? The editor will have asked himself why he pursues the project. The funding body will have asked why it is worthwhile investing money into it. The contributors will have asked why they should put time into writing their papers. The publisher will have asked why anybody will buy the book. And colleagues will have asked why the project is so important to the editor. In his introduction the editor again needs to address a why-question: why is it worthwhile to read the volume? This time it is harder to develop the answer. As the editor has answered the why-question a great many times, he will be aware that he has presented his answer in variations even though its essence has always remained the same. The funding body, contributors, the publisher, and colleagues have different interests, and the editor will have tried each time to present the answer in such a way that it will catch the interest of the questioner. In his introduction the editor faces the problem that he has different types of readers in mind, ___________ 1 This chapter is a revised and extended version of Phillip Hellwege, A Comparative History of Insurance Law in Europe, (2015) 56 American Journal of Legal History 66–75.

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and he will be worried that each type of reader will need the one answer to be presented differently. This problem is always present in the kind of research into comparative legal history in which I am interested, and it is particularly so in the present project on a comparative history of insurance law in Europe. In a nutshell, there are two distinct starting points for developing an answer to the question of why it is worthwhile to read this volume: one could simply explain why the history of insurance law is in need of being re-told. This answer would be directed at legal historians. Or one could point to the project’s importance for today’s law. This answer would be directed at scholars of contemporary insurance law. When around 25 years ago comparative legal history gained prominence in the context of European private law, there was a debate on whether it is permissible to put historical research into a context such that it may help in solving contemporary problems. Many argued – and still argue today – that historical research can help to expose the common historical roots of the European private law systems.2 These common roots are to be found in the Roman-canon ius commune as it developed since the Middle Ages after the re-discovery of Justinian’s Digest. Historical research is able to uncover these roots where they exist and to reveal when and why the different legal systems developed in different directions. The findings can then help with the re-building of a common European legal science – the promoters of this approach spoke and speak of re-building because they say that a common European legal science in fact already existed during the time of the ius commune. Others forcefully disagreed.3 Their main argument was that the ius commune was not a single phenomenon but that it differed regionally and that it developed over time. Furthermore, they feared that historical research will fall short if it is embedded in a research programme that is inspired by solving present-day problems: scholars will look for common roots and disregard differences; they will reduce their research to the literature of the ius commune in order to produce quick results; and they will thereby disregard the law in practice, its complexity, and the socio-economic conditions in which the so-called ius commune functioned. Thus, if I had written this introduction 25 years ago, I would have had to decide: do I want to lose immediately the interest ___________ 2 From the rich literature see, e.g., Reinhard Zimmermann, Das römisch-kanonische ius commune als Grundlage europäischer Rechtseinheit, (1992) Juristenzeitung 8–20; idem, Roman law, contemporary law, European law. The Civilian Tradition Today (2001); idem, Roman Law and the Harmonization of Private Law in Europe, in: Arthur S. Hartkamp et al. (eds.), Towards a European Civil Code (4th edn., 2011), 27–53; idem, Roman law, in: Jürgen Basedow et al. (eds.), Max Planck Encyclopedia of European Private Law, vol. 2 (2012), 1487–1491; idem, Roman law in the modern world, in: David Johnston (ed.), The Cambridge Companion to Roman Law (2015), 452–480, 470. 3 From the rich literature see, e.g., Pio Caroni, Der Schiffbruch der Geschichtlichkeit, (1994) 16 Zeitschrift für Neuere Rechtsgeschichte 85–100.

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of scholars of today’s insurance law by omitting the importance of the present project for today’s law? Or do I want to provoke objections by some legal historians? The heated debates have faded away and the approach of comparative legal history in contemporary context has gained acceptance. Indeed, there is no antagonism between the two positions. Research on comparative legal history needs to be methodologically correct. If it is, it is only an extra step to point out whether and why the findings are of importance for present-day debates.

B. The first point of departure: the history of insurance law in Europe in need of being re-told In a first article on a comparative history of insurance law in Europe I have, mainly from a German perspective, reached a number of conclusions, and these are the initial starting point for the present project.4 In summary, I have argued that today’s state of research on the history of insurance law is, for a number of reasons, unsatisfactory. 1. There is hardly any detailed historical analysis of insurance law and there are hardly any works on the doctrinal or dogmatic history of insurance law.5 Instead we find, for example, histories of the idea of insurance, 6 a rich historical literature on individual insurance companies, 7 and studies which develop broad theories on the development of insurance as an institution and of insurance law without basing these theories on detailed research – as, for example, the theory that there is a clear, historically-based division between a European-continental and an Anglo-Saxon type of insurance.8

___________ 4 Phillip Hellwege, Die historische Rechtsvergleichung und das europäische Versicherungsrecht, (2014) 131 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Germanistische Abteilung) 226–265, 228–235. 5 Two rare exceptions are Johan P. van Niekerk, The Development of the Principles of Insurance Law in the Netherlands from 1500 to 1800, 2 vol. (1998) and Guido Rossi, Insurance in Elizabethan England. The London Code (2016). 6 This is the main focus of, e.g., Albert Schug, Der Versicherungsgedanke und seine historischen Grundlagen (2011). 7 See, e.g., Clive Trebilcock, Phoenix Assurance and the Development of British Insurance, 2 vol. (1985 and 1998). 8 See Heinrich Frommknecht, Gibt es eine westfälisch-lippische Versicherungsgeschichte?, in: Peter Koch, Geschichte der westfälisch-lippischen Versicherungswirtschaft und ihrer Unternehmen (2005), 7–11, 7. And see below the quotation to n. 21.

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2. Authors writing on insurance history often employ different concepts of insurance. Some authors focus on the history of mercantile insurance. 9 Consequently, they will not take into account forms of cooperative protection by guilds and early forms of state-run insurance as both were not operated on a commercial basis. Thus, these authors will write a different history than those scholars which do include such forms of protection.10 What is problematic is that many authors do not make explicit which concept they follow in their historical research. 3. The fact that different authors use different concepts of insurance may have something to do with the history of insurance being an interdisciplinary field of research: scholars of economic history will, for example, have a different concept of insurance in mind than legal historians.11 The former will focus on commercial insurance whereas the latter might include other forms of protection. Of course, there is nothing wrong with interdisciplinary research – quite the opposite is true. Yet, each discipline needs to define independently the object of research according to that discipline’s particular interests. And interdisciplinary research calls for an increased awareness of the methodological problems attached to it. 4. There are distinct national narratives of insurance (legal) history – the reason why I have put the word ‘legal’ into parentheses is that these national narratives often concern the history of insurance as an institution written by (economic) historians, but it is regularly assumed, and sometimes made explicit, that the development of insurance law followed the development of insurance as an institution. And these national narratives give the impression of insurance (law) being developed – with the exception of maritime insurance – differently in the single European countries. Let me first turn to the exception. There is consensus as to the genesis and development of maritime insurance.12 Its origins are to be found in the 14th century. It was first restricted to the Mediterranean. Moving forward into the 16th century, it spread from Italy to Portugal, Flanders, the Netherlands, England and Germany. In Flanders, the Netherlands, and in England the maritime insurance ___________ 9 This is the focus of, e.g., the contributions in Peter Borscheid and Niels Viggo Haueter (eds.), World Insurance. The Evolution of a Global Risk Network (2012). 10 See, e.g., Clemens von Zedtwitz, Die rechtsgeschichtliche Entwicklung der Versicherung (1999). 11 Indeed the volume cited in n. 9 has been edited by an economic historian and the book cited in n. 10 has been authored by a legal historian. 12 On maritime insurance compare Karin Nehlsen-von Stryk, Die venezianische Seeversicherung im 15. Jahrhundert (1986). In addition see David Ibbetson, Insurance: English Common Law, in: Stanley N. Katz (ed.), Oxford International Encyclopedia of Legal History, vol. 3 (2009), 252–254; Christoph M. Scheuren-Brandes, Insurance: Medieval and Post-Medieval Roman Law, in: ibid., 257–259; Guido Rossi, The Booke of Orders of Assurances: A Civil Law Code in 16th Century London, (2012) 19 Maastricht Journal European and Comparative Law 240–261.

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business was, at first, dominated by Italian merchants. In England, it was only in the middle of the 16th century that English insurers took over. Soon after, insurers in London gave up using the customs of the Italian insurance trade and leaned towards the customs which had been developed in Flanders and the Netherlands; these customs, too, had emancipated themselves from the Italian practices. The first maritime insurance contract in Hamburg dates back to 1588. In Hamburg, right from the outset the Flemish and Dutch customs were used as a model. Maritime insurance has been a truly international institution. This is also reflected in the national legislation on maritime insurance, which is said to have simply mirrored the international practices. A comparative approach to understanding the historical development of maritime insurance is, thus, straightforward and has been adopted in the past. The differences in the national narratives become obvious when going beyond maritime insurance. The German literature, for example, suggests that there are three distinct roots of modern insurance (law). 13 The first root is maritime insurance. It is said to be the origin of mercantile insurance. Life and fire insurance are said to have developed from the other two roots. There is, firstly, the cooperative protection provided by guilds against the risks of, for example, fire, ill health, and death dating again back to the Middle Ages. Secondly, there were, starting in the 17th century, state-run insurances. Most importantly they covered immoveable property against the risk of fire, and often these state-run insurances were compulsory and constituted a monopoly. By speaking of different roots, the literature suggests that commercially run insurances, cooperative protection, and state-run insurances developed independently from each other and that the threads of development merged together only relatively late, in the late 18th and early 19th centuries. By contrast, English scholars claim that life and fire insurance (law) developed from maritime insurance (law).14 Early on merchants insured the lives of a ship’s crew. This was the starting point for the development of the idea of life insurance. The first successful life insurance company was set up in 1762. The starting point for the development of fire insurance in England was the Great Fire of London in 1666. The law regulating life and fire insurance was based on maritime insurance. English scholars thus suggest that there is one root to insurance (law): maritime insurance (law). The literature on the developments in France, Italy, and the Netherlands follow similar patterns.15 ___________ 13 See, e.g., Peter Koch, Versicherungswesen, in: Adalbert Erler et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 5 (1998), 815–826, 815. 14 See, e.g., Ibbetson (n. 12), 253. 15 See, e.g., Van Niekerk (n. 5); Enrico Bensa, Il Contratto di Assicurazione nel Medio Evo (1884); Pierre Joseph Richard, Histoire des institutions d’assurance en France (1956).

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Both narratives – that of the three roots and that of the single root – are oversimplifications. Cooperative forms of protection were also known outside Germany. However, they are rarely taken into account in the literature on the history of insurance outside Germany. And it is simply unlikely that, in Germany, the different forms of protection developed isolated from each other. Linking this point to the last two observations, it might be the case that the lead of economic historians in, for example, the English literature on insurance history featuring a strong focus on mercantile insurance, may have resulted in an understanding which falls short. However, this does not mean that the German literature is correct: in Germany, maritime insurance had always been carried out on a commercial basis. In contrast, it is only in the late 18 th and early 19th centuries that we find commercially run fire and life insurance companies in Germany. Insofar, there might be some truth to the distinction of the said three roots – if this distinction is used only to describe the development of how insurances were operated. Yet, this distinction does not necessarily imply that the legal rules governing the different branches of insurance developed in complete separation, too. The problems which an insurance scheme faces are often more or less identical regardless of whether it is operated on a commercial or cooperative basis. In both commercial and cooperative life insurance schemes insurers will, for example, want to know the age of the insured; legal rules have to be included in such a scheme to oblige the insured to disclose his or her age; and legal rules have to be recognized in case the insured misrepresents his or her age. 5. The modern German literature still seems to follow an ideologically manipulated view of insurance history. The German literature has always believed there to be different roots of insurance, but in the 19 th century it was conceded that maritime insurance had been of utmost importance for the development of insurance in general, and it was stressed that there were no distinct streams of development. It was only in the 1930s that the three roots of insurance were thought apart for ideological reasons. A quotation from a 1936 work captures this:16 Während also die Gegenseitigkeitsversicherung und die auf ihrer Grundlage aufgebaute öffentlich-rechtliche Brandversicherung eigenes, urdeutsches Gewächs ist, eine Schöpfung, auf die wir mit Recht stolz sein können, ist der Gedanke der Erwerbsversicherung vom Auslande her zu uns gekommen. Mutual insurance and state-run fire insurance, which has been inspired by the former, are Germanic creations, something we ought to be proud of. By contrast, the idea of insurance operated on a commercial basis came from foreign countries upon us.

In his 1893 monograph on insurance law, Viktor Ehrenberg (1851–1929) did not mention this distinction, but, just like the English literature, states that the ___________ 16 Georg Helmer, Entstehung und Entwicklung der öffentlich-rechtlichen Brandversicherungsanstalten in Deutschland (1936), 95.

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contract of insurance as a whole has its origins in maritime law. 17 And Levin Goldschmidt (1829–1897) speaks of ‘sich mannigfach verschlingende[n] Wurzeln’ (‘in many ways interwoven roots’).18 Goldschmidt indeed speaks of different roots, but he does not allege that there were completely distinct developments. 6. Apart from maritime insurance, there is a focus on national or even regional developments and on the history of individual insurers. It seems as if this narrow focus often is the very agenda of modern research: 19 ‘Die Versicherungsgeschichte ist somit im Wesentlichen die Summe der Entwicklung zahlreicher einzelner Gesellschaften …’ (‘The history of insurance is basically the sum of the development of the individual insurance companies …’). The same author writes:20 Obwohl der Versicherungsgedanke als solcher weitgehend international ist, unterliegt seine Ausgestaltung im Einzelnen zahlreichen regionalen Besonderheiten … Ihr Gepräge fand die Versicherungswirtschaft dabei in dem lokalen Rahmen durch die Verbindung von außen übernommener Anregungen mit eigenständigen Ideen … Even though the idea of insurance is international, its implementation shows many regional peculiarities … The insurance business found its special characteristic features in a local setting by implementing the idea of insurance and combining it with independent local ideas …

And again other authors argue that any differences we see today have been a result of this development and thereby adopt the aforementioned broad theories, or clichés, on the development of insurance:21 Auch in der Versicherungswirtschaft ist die Globalisierung eine der großen Herausforderungen der Gegenwart. Dies sollte Anlass sein, die deutsche Versicherungswirtschaft in historischer Perspektive zu betrachten, denn schon ein flüchtiger Blick in die Geschichte lehrt, dass es zahlreiche nationale Prägungen gibt. So gilt die deutsche private Versicherungswirtschaft als Prototyp der ‚europäische-kontinentalen Assekuranz‘, die sich in vielen Punkten … z.B. vom Modell der ‚angelsächsischen Assekuranz‘ unterscheidet. Globalization is a great challenge to today’s insurance sector. In reaction we should try to understand the German insurance industry from a historical perspective. History teaches us that there are many national peculiarities. The German private insurance industry is looked upon as paradigm for ‘European-continental insurance’ which shows many differences … to, for example, ‘Anglo-Saxon insurance’.

In summary, the history of insurance law in Europe is in need of being re-told. ___________ 17

Viktor Ehrenberg, Versicherungsrecht (1893), 35. Levin Goldschmidt, Handbuch des Handelsrechts, vol. 1 (3rd edn., 1891), 40. 19 Peter Koch, Geschichte der Versicherungswirtschaft in Deutschland (2012), 7. 20 Koch (n. 19), 6 f. 21 Frommknecht (n. 8), 7. 18

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C. The second point of departure: harmonizing insurance contract law in Europe The harmonization of European insurance contract law is on the agenda of scholarship and on the political agenda.22 The reason is simple: insurance is a ‘legal product’.23 In the case of a contract for the sale of goods, the object of the contract is goods. Of course, in a contract for an international sale of goods the differences between national sale laws might have an impact on the contract terms with the result that the transaction costs are higher compared to a purely domestic sale. Nevertheless, the object of the contract remains the same. Admittedly, technical standards which need to be observed in certain markets may require the seller to adapt the goods to the requirements of that market and thereby to change the product which he is offering. However, within the European Union this is the exception. Consequently, the harmonization of national sale laws is in the case of sales not a prerequisite for a European Single Market, even though such harmonization is beneficial to it. The case of insurance contracts is different. The insurer receives a premium from the policy holder and promises in return to pay the insured sum when a specific risk eventuates.24 The right of the insured to the insured sum is determined in the contract, mainly in the insurer’s standard terms, and the details of when and under what circumstances this right exists will define the product which the insurer is offering. The national insurance contract laws in Europe differ, including the mandatory provisions. Consequently, insurers who want to enter another market have to adapt their standard terms to the requirements of each national legal system, and they thus have to change the product which they are offering:25 insurers cannot use their products throughout Europe and there is, as yet, no European Single Market in the insurance sector. In order to remedy this problem, insurance law scholars have started to work on harmonizing insurance law in Europe. Insurance scholars have worked out the

___________ 22 Jürgen Basedow, Der Versicherungsbinnenmarkt und ein optionales europäisches Vertragsgesetz, in: Manfred Wandt et al. (eds.), Kontinuität und Wandel des Versicherungsrechts. Festschrift für Egon Lorenz (2004), 93–110. 23 See the title of the monograph by Meinrad Dreher, Die Versicherung als Rechtsprodukt (1991) which translates as ‘Insurance as Legal Product’. 24 See with slight variations, e.g., Art. 1:201(1) Principles of European Insurance Contract Law (PEICL); Angus Rodger, An Introduction to Insurance and Insurance Law, in: Robert Merkin (ed.), Insurance Law – An Introduction (2007), 1–35, 1; Alexander Bruns, Privatversicherungsrecht (2015), para. 1.2. 25 See the analysis of Fritz Reichert-Facilides, Europäisches Versicherungsvertragsrecht?, in: Jürgen Basedow et al. (eds.), Festschrift für Ulrich Drobnig (1998), 119–134.

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‘Principles of European Insurance Contract Law’ 26 as a first step towards European insurance contract law legislation or, more specifically, as a first draft of an optional instrument on insurance contract law. 27 Thus far, it is only a comparative method that has been adopted. However, just as comparative legal history was able to create a historical basis for harmonizing general private law, it has the potential to create a historical basis for a European scholarship in the field of insurance law and can, thereby, create a historical basis for the process of harmonizing insurance law in Europe.

D. A comparative history of insurance law in Europe: a research agenda Let me return to the beginning of my introduction: it is argued that comparative legal history is able to disclose the common historical roots of the European private law systems in the Roman-canon ius commune, that it may uncover when and why the European legal systems developed apart, and that it thereby can help to re-build a European legal science. When this research agenda was formulated, the awareness of the existence of the ius commune which formed the common basis of the European private law systems was still vibrant. 28 In the case of insurance law the starting point is different: even though forms of protection against risks were already known in the ancient world, it is generally acknowledged that modern insurance is a creation of the Middle Ages. 29 Consequently, the Roman-canon ius commune was, prima facie, of no direct relevance for the development of insurance law – at a minimum the impact of the Roman-canon ius commune on the development of insurance law is an open research question. Furthermore, apart from the understanding that maritime insurance is a truly European phenomenon, the history of insurance law is told differently across Europe. Thus, there seem to be no signs of common historical roots. In addition, there is not even an independent historiography of insurance law, and the existing writings are often based on clichés. One could conclude that it is necessary to work out the history of insurance law in every single jurisdiction ___________ 26 Jürgen Basedow et al. (eds.), Principles of European Insurance Contract Law (2009). On these see, e.g., Helmut Heiss, Principles of European Insurance Contract Law (PEICL), in: Jürgen Basedow et al. (eds.), The Max Planck Encyclopedia of European Private Law, vol. 2 (2012), 1331–1334. 27 Helmut Heiss, Optionales Europäisches Versicherungsvertragsrecht, (2012) 76 Rabels Zeitschrift für ausländisches und internationales Privatrecht 316–338, 322, 335–338. 28 See, e.g., Paul Koschaker, Europa und das römische Recht (4 th edn., 1966); Helmut Coing, Europäisches Privatrecht, 2 vol. (1985 and 1989). 29 In addition to the references in n. 12 and 13 see, e.g., Bruns (n. 24), para. 3.17.

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from the beginning to today before one could even think about adopting a comparative approach to the history of insurance law. However, a different approach seems to be possible, too: an approach that aims to identify points of interaction between the different national developments and focus on them. 30 1. It is, for example, accepted that maritime insurance is a European phenomenon, and in some national writings on the history of insurance law it is suggested that maritime insurance law has been the starting point for the development of life and fire insurance law.31 The impact which maritime insurance law had on the early development of life and fire insurance law has never been assessed from a comparative perspective. 2. The importance of guilds for the development of insurance is stressed in German literature, yet guilds existed all over Europe, and in other countries they also had the function of protecting their members in case of fire or illness.32 For the north of France some authors, indeed, suggest that the protection provided by guilds was a forerunner to fire and life insurances.33 However, it seems that primarily in Germany their importance is stressed for the development of life and fire insurance. Again, the impact which guilds had on the early development of insurance law has never been assessed from a comparative perspective. 3. Tontines were ‘invented’ by the Italian Lorenzo Tonti (1602–1684) in 17thcentury France.34 For subscribers, tontines were an early form of a pension scheme. Their importance for the development of insurance law is stressed in German literature. However, tontines existed also outside Germany and France.35 Again their impact on the development of insurance law has never been explored from comparative perspective. 4. Starting in the late 18th century, English, French, and Belgian life and fire insurance companies were doing business in Germany.36 They used their standard terms when conducting their business in Germany, and it is said that the

___________ 30

See in detail Hellwege (n. 4), 235–242. See, e.g., the reference in n. 14. 32 See, e.g., Frank Schulz-Nieswandt, Gilden als ‘totales soziales Phänomen’ im europäischen Mittelalter (2000), 27 f. 33 Georges Hubrecht, Zur Geschichte der Versicherung in Frankreich, (1958) Versicherungswissenschaftliches Archiv 349–365, 359. 34 See, e.g., von Zedtwitz (n. 10), 138 ff. 35 See, e.g., Terence O’Donnell, History of Life Insurance in its Formative Years (1936), 163 ff. 36 See, e.g., Koch (n. 19), 61. 31

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newly founded German insurance companies of the early 19 th century were imitating the standard contract terms of especially their English competitors.37 Furthermore, the English literature claims that French life insurers were, in the early 19th century, very much under the influence of the practices of English life insurance companies.38 Again, just how the standard contract terms of internationally active insurers impacted legal developments outside their home countries has never been assessed from a comparative perspective. 5. The assumption that English insurers brought their standard contract terms to the continent, which then influenced the standard contract terms of their continental competitors, is of further importance: in Germany it is assumed that the first drafts on insurance legislation in the early 19th century reflected the insurers’ practices and standard terms.39 However, if the insurers’ practices and standard terms were themselves influenced by the practices and standard terms of those English insurers that were active on the German market, the latter would have had an indirect impact on early drafts on insurance legislation. 6. Insurance transactions are – with exceptions in the context of state-run insurance schemes as they existed, for example, in Germany since the 17th century – based on contracts. Insurance contract law did not develop independently from general contract law.40 The general contract laws in Europe were part of the ius commune. This may have had the effect that courts from different countries applied similar legal doctrines from general contract law to solve identical problems in insurance contract law. Again, this has never been explored from a comparative perspective. In national legal scholarship on insurance history these possible points of interaction often appear to be footnotes to a national development, and it would be possible to add many more such possible points of interaction. These interactions seem to have existed all along and it, thus, seems problematic to claim that the insurance business and insurance practices became internationalized only in the late 19th century.41 These interactions have, however, not yet been taken as the starting point for undertaking an in-depth research into the history of insurance law. That is what the present project aims at: focusing on and working out interactions between the national developments and working out their lasting impact on the development of insurance law. The focus on such points of interaction ___________ 37

See, e.g., Koch (n. 19), 49. See, e.g., O’Donnell (n. 35), 391 ff. 39 See, e.g., Ralph Neugebauer, Versicherungsrecht vor dem Versicherungsvertragsgesetz (1990), 56. 40 See, e.g., Guido Rossi, Civilians and insurance: approximations of reality to the law, (2015) 83 Tijdschrift voor Rechtsgeschiedenis 323–364. 41 This is, e.g., claimed by Tilmann J. Röder, Rechtsbildung im wirtschaftlichen ‘Weltverkehr’ (2006). 38

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can, in the long run, stimulate further detailed research on the national development of insurance law. How, then, may such a comparative historical approach help to create a basis for a European scholarship in the field of insurance law. Of course, nobody will want to propose that today’s insurance law should return to whatever we find in legal history. However, such research may be helpful in other ways:42 an optional instrument needs for its success the acceptance of the legal and business communities. Furthermore, in order to safeguard its harmonizing effect, lawyers have to interpret it free of any nationally coined preconceptions (Vorverständnis). Comparative historical research in the field of insurance law can be helpful in both respects. To give just one example: 43 the differences between a condition precedent in English law and an Obliegenheit in German law are looked upon by many as a hurdle to harmonizing European insurance contract law. 44 The observation that German courts, too, characterized such clauses as a condition precedent until 1865 and that it was only in the years between 1865 and 1870 that today’s approach was developed by the courts can help to bridge this gap. The reasons why German courts developed in a different direction may be used as arguments in today’s discussion. However, it is important to note that comparative historical research can do nothing more than show where we come from. The observation that English and German law had a common starting point is not an argument to return to this common position. Or to put it differently: comparative historical research will help us to understand the differences between the national insurance laws which we are able to observe today, and this in turn may be helpful in the process of harmonization.

E. The objective and structure of the present volume It is planned to carry out this research agenda over the coming years. In order to succeed with a research agenda that aims to focus on possible points of interaction between the national developments of insurance law it is, in a first step, necessary to identify such points. From a German perspective I have already done so elsewhere.45 However, it is important to have a broader understanding ___________ 42

Hellwege (n. 4), 263–264. See Phillip Hellwege, Obliegenheiten im Versicherungsvertragsrecht aus historischvergleichender Perspektive, Rabels Zeitschrift für ausländisches und internationales Privatrecht 76 (2012), 864–892; idem (n. 4), 242–262. 44 Arguing the contrary Giesela Rühl, Die englischen warranties – Stolpersteine auf dem Weg zum Europäischen Binnenmarkt für Versicherungen?, (2006) 14 Zeitschrift für Europäisches Privatrecht 607–629. 45 Hellwege (n. 4), 235–242. 43

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of the different national narratives in order to identify possible points of interaction. It is the objective of the present volume to do just this, and the present volume will thereby be the starting point and framework for future volumes. These will be published in the series which the present volume inaugurates. It is also hoped that the present volume will stimulate further research by others. As the present volume represents the starting point and framework of a broader research project, it is essential to reflect on some methodological questions. I. The concept of ‘possible points of interaction’ In this introduction I have repeatedly used the phrase ‘possible points of interaction’. This phrase needs explanation. It would be misleading to speak of ‘common roots’. We simply do not know the extent to which ‘common roots’ of insurance law exist in Europe. The term ‘common roots’ should, therefore, be avoided in order to signal that the project does not aim to discover commonalities where there might not be any. Nevertheless, there are clear signs that there are points of contact between the national developments of insurance law. In order to signal the project’s open ended approach it is best to speak of ‘possible’ points of interaction. There are three categories of such points. First, there is the outbound perspective: from the perspective of one national narrative we may find indications that it influenced another national development. Secondly, there is the inbound perspective: from the perspective of one national narrative we may find indications that it had been influenced by another national development. Both categories look at the same phenomenon from different perspectives. I have already mentioned an example: the activities of English insurers on the continent in the late 18th and in the 19th centuries. Thirdly, there may be the observation of parallel developments based on a common starting point. Again, I have already pointed out a possible example: if the development of life and fire insurance was based on maritime insurance, then this may have had the effect that they developed parallel in more than one country. The inclusion of parallel developments based on a common starting point suggests that the concept of ‘legal transplants’ is too narrow to be used in the present volume. II. Europe and beyond The contributions to the present volume will work out possible points of interaction from Italian, French, Spanish and Portuguese, Belgian, Dutch, English and Scottish, German, and Scandinavian perspectives. Thus, only a small number of jurisdictions have been selected to be covered in the present volume. These are the jurisdictions which appear in the literature as being most important for

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the development of insurance. Coverage of these jurisdictions should be sufficient to identify possible points of interaction. Future volumes of the present research project will then focus on one of the identified possible points of interaction, and these future volumes will, of course, include further jurisdictions in order to make the project truly European. With some points of interaction it will even be advisable to go beyond Europe and include other jurisdictions. The chapters of the present volume are put into an order which roughly follows the development of maritime insurance, which originated in the Mediterranean and spread from there to the north of Europe: Italy, France, and Spain (with some observations on Portugal); Belgium (maritime insurance first arrived in the Southern Netherlands, territories which today are part of Belgium), the Netherlands, Great Britain, Germany, and Scandinavia. Taking the borders of modern states to define the scope of historical papers is of course problematic, as the example of Belgium makes clear. And the followed order of the chapters is of course only one possible structure. However, on the basis of the present state of research it seemed to be the most sensible order because it is clear that maritime insurance is a type of insurance which appeared in all of the jurisdictions which are covered in the present volume and because in many of these jurisdictions maritime insurance is presented as the origin of insurance as a whole. III. The development of insurance as an institution and the development of insurance law The title of the overall project is: ‘a comparative history of insurance law in Europe’. This implies that its focus will be on legal developments. The contributions to the present volume, however, need to take a broader view. Or to put it differently: in the present volume there is less ‘history of insurance law’ and more ‘history of insurance as an institution’ than in the future volumes of the overall project. The reason is simple: the development of insurance law can only be understood against the background of the development of insurance as an institution. However, the history of insurance as an institution is, as has been pointed out above, told differently in the individual national narratives. Thus, the contributions first need to provide a critical assessment of the state of research into the history of insurance (without law) onto which a history of insurance law can then build upon. To give two obvious examples: before we can identify guilds as a possible point of interaction and as an institution which might have influenced the development of insurance and the development of insurance law, we need to point out in which jurisdictions guilds played a role. In the German literature their importance is stressed; in other national narratives they are neglected. And before we can ask ourselves the extent to which the development of national insurance laws was influenced by foreign insurance companies being active and using their practices and standard contract terms outside their home

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jurisdiction, we need to have an understanding about the international activities of insurers in the past. In other words: a project on a comparative history of insurance law is not possible without a clear understanding of a comparative history of insurance as an institution. Furthermore, there is, as yet, hardly any doctrinal or dogmatic history of insurance law in the individual national narratives which we could simply build upon. 46 And the historiography of insurance law often simply follows the narratives of economic history without questioning whether the findings of economic history are suitable for the purpose of research into the history of insurance law. The way we have gone forward in the present volume is that each author looked for notions in the history of insurance as an institution which other authors have previously found in their national historiographies. However, the contributors have gone a step beyond critically reflecting on the development of insurance in their national historical writings. Namely, they have linked their findings to the legal sphere by pointing out why these findings may have had an impact on legal developments. IV. The time period covered All contributions to the present volume cover the time between the Middle Ages and the late 19th century. A similar time frame in each paper is essential for the purpose of the present volume. To start in the Middle Ages is straightforward: even though institutions of mutual aid and mutual assistance have existed in the ancient world, it is acknowledged that modern insurance developed in the Middle Ages. To end with the late 19th century is simply explainable on the basis that the developments during the 20th century are fully covered by modern textbooks on insurance law. Where authors have covered a different time frame they have explained why they have done so. The French contribution, for example, extends to the early 20th century as there were some interactions with other jurisdictions which are of interest from a comparative perspective. V. An interdisciplinary approach: problems and necessities The German literature stresses that insurance law is a sub-discipline of the greater discipline of Versicherungswissenschaft (‘insurance science’), and ‘insurance science’ is said to be a Sammelwissenschaft. The word Sammelwissenschaft literally translates as an ‘accumulative field of science’. 47 Other sub-dis___________ 46 47

An exception is van Niekerk (n. 5). Peter Koch, Geschichte der Versicherungswissenschaft in Deutschland (1998), 4–10.

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ciplines are, for example, insurance economics, actuarial mathematics, and insurance medicine. I do have my doubts whether insurance law is in this respect any different than most other areas of law: medical law, banking law, financial market law, competition law, environmental law – all of these areas of law can only be truly understood in their relation to other, related, disciplines. The reason why the German literature looks upon ‘insurance science’ as a Sammelwissenschaft might simply be that in 1899 the Deutscher Verein für Versicherungswissenschaft (German Society for Insurance Science) was founded in Berlin, uniting different disciplines in their importance for insurance. Nevertheless, all of this reminds us of the fact that insurance law is closely related to other disciplines, and this, in turn, suggests the importance of interdisciplinary research. However, interdisciplinary research calls for an increased awareness of the methodological problems attached to it. Above I have argued that historical research in insurance law has not proven to be aware of these problems: the lead of economic historians in some national writings had the effect that legal historians, too, have restricted themselves to the history of mercantile insurance, leaving aside other forms of insurance. Yet, each discipline has its own research interest, and the interest of a research project in legal history is mainly about law. Nevertheless, it is important to acknowledge that writing on the history of insurance law is not possible without a careful understanding of the findings of related disciplines. To give just some obvious examples: if one looks at the development of the duty of disclosure in life insurance, it will become obvious that during the course of the 18th century detailed declarations on the state of the insured’s health developed. Such a finding would need to be linked to developments in medicine. When researching in the field of fire insurance, one has to take notice of the developments in the fields of fire prevention, fire protection, and firefighting. In maritime insurance the development of communication is relevant. In all fields of insurance law the development of actuarial mathematics is essential, as is how this development was transposed into defining the risk in insurance contracts. And most fundamentally, the need to seek protection from the consequences of risks by means of insurance can only be appreciated in the socio-economic context of a society. The necessity of an interdisciplinary approach is reflected in the present volume. It includes two contributions of scholars from other disciplines, one from economic history and the other from social history, whose task was to comment on the findings of the present volume from the perspectives of their fields of expertise. Scholars of related disciplines will also be included in future volumes.

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VI. The concept of insurance Finally, in a project on the history of insurance law it is, of course, essential and of utmost importance to reflect on the concept of insurance. Insurance is the research object of the present project. Thus, we need to know which institutions we have to include in our research and which institutions we may disregard. However, the task of developing a suitable definition of insurance for a historical project on insurance law is not without problems. Art. 1:201 Principles of European Insurance Contract Law (PEICL), for example, defines an insurance contract as ‘a contract under which one party, the insurer, promises another party, the policyholder, cover against a specified risk in exchange for a premium’. A number of elements can be gathered from this definition: (1) the PEICL cover insurance contracts; (2) the policyholder pays a premium; (3) the insurer in return promises to pay a sum (4) when a specified risk eventuates. The word risk implies some degree of uncertainty, most importantly, as to whether or when the event will happen. Similar definitions are to be found, for example, in the modern English literature.48 The modern German literature adds another element: the insurer will conclude a number of insurance contracts which concern the identical risk so that the risk will be spread among the entirety of policyholders.49 These modern definitions of insurance are, however, not apt to be the starting point for research into the history of insurance law. The restriction to insurance contracts would exclude all those institutions which have not been regulated by contract, as is, for example, the case with many staterun insurance schemes. The insistence on a premium to be paid by the insured would, if understood narrowly, exclude those institutions where the loss was simply apportioned among the insured after it had occurred. The restriction to those institutions which spread the risk among the entirety of the policyholders would exclude early forms of maritime insurance when it was the exception that a single insurer insured a great number of vessels. Instead of starting with an abstract definition of insurance one could also begin with its functions. The modern German legal literature, for example, discusses a number of such functions. 50 Foremost, two such functions are considered: (1) compensation for loss suffered and (2) coverage of special needs as consequence of a specified risk having eventuated. Again, these functions are not apt to define the object of a historical study in insurance law. Insurance shares, for example, the function of compensating for suffered loss with other legal institutions, as is most obviously the case with claims for damages. One could finally ___________ 48

See, e.g., Rodger (n. 24), 2 f.; Robert Merkin, Colinvaux’s Law of Insurance (9th edn. 2010), paras. 1-002–010. 49 See, e.g., Bruns (n. 24), para. 1.2. 50 On what follows see, e.g., Bruns (n. 24), para. 1.4–22.

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start by distinguishing insurance from related concepts: saving, betting, and public welfare. However, the abuse of life insurance for the purpose of betting on other peoples’ lives shows that, in the past, a clear cut division is again not possible. Starting off with modern definitions of insurance, with today’s discussions on its functions, or with present-day distinctions between insurance and other institutions is also flawed on a more general level: these definitions, functions, and distinctions are themselves the product of a historical development. And they have been developed to explain today’s law. Legal historians, too, have tried to define insurance. They add three further elements to the above definitions: (1) the risk must be calculable, (2) there must be a legally enforceable claim by the insured against the insurer, and (3) the insurance must be the sole purpose of the contract.51 The insistence on the risk’s calculability assumes the existence of actuarial mathematics. However, in early times the risk was guessed rather than calculated. The foenus nauticum of Roman law was a loan combined with an element of insurance: the loan to a ship-owner only had to be repaid if the ship successfully completed the journey for which the loan was given. The birth of maritime insurance is said to be when, in the Middle Ages, the insurance element was isolated and turned into an independent contract. Thus, the idea that insurance must be the sole purpose of the contract is of relevance. However, guilds which seem to have been of importance for the development of insurance served other purposes, too. That leaves us with two elements:52 first, the insured needs to have an enforceable claim against the insurer. Otherwise, we are outside the legal sphere. Second, the institution needs to involve the transfer of a risk. Most fundamentally, a project which wants to lay open the development of insurance law needs to consider all institutions which have influenced this development regardless of whether the institution itself counts as insurance according to any modern definition. 53 This means that the distinction between what needs to be included in the present volume and what may be disregarded cannot be made on the basis of a single abstract definition. Rather, it needs to be openly discussed anew for each case of doubt.

___________ 51

von Zedtwitz (n. 10), 23–26; Schug (n. 6), 52–59. Compare also Koch, Versicherungswesen (n. 13), 815; idem (n. 19), 4. 53 Similarly Koch (n. 19), 4; idem, Versicherungswesen (n. 13), 815, who argues that it is not necessary for research into the history of insurance law to exactly define the concept of insurance (‘Es erscheint nicht notwendig, für rechtshistorische Untersuchungen den Begriff der Versicherung genau zu definieren’). 52

Chapter 2: Italy By Maura Fortunati A. State of the research.................................................................................................. 27 B. The origins and development of insurance in Italy ................................................... 31 C. A comparative history of insurance law: an Italian perspective ............................... 33 I. Legal literature and case law between the Ancien Régime and the early 19th century ......................................................................................... 33 1. From the 15th century to the first half of the 18th century ............................. 34 2. From the second half of the 18th century to the early 19th century ............... 36 II. Legislation concerning insurance law ............................................................... 37 III. Standardized insurance practices and customs .................................................. 37 IV. Three further possible points of interactions: insuring lives, tontines, and mutual insurance companies ................................. 40

In the present paper, I will first analyse the development of research on the history of insurance law in Italy, starting from the first works published in the 19th century. In the second part I will give an overview of the development of insurance as an institution. And thirdly, I will pinpoint some aspects of insurance law that are worth examining from comparative perspectives.

A. State of the research In the first half of the 20th century, treatises on insurance law still included extensive historical introductions, and there was a significant coverage of the history of insurance law in encyclopaedic works. While this coverage obviously did not provide any original research, it nevertheless offered a summary of the history of insurance law and demonstrated an interest in historical research. In more recent years, works on insurance law have abandoned references to the history of the subject, leaving this job almost exclusively to legal, economic, and general historians. This trend is, of course, not only true for the study of insurance law. It is a general trend which needs to be critically assessed as it affects fundamental methodological aspects of the study of law – such a general assessment is, however, beyond the scope of the present paper. Nevertheless, this trend draws our attention to three characteristics of the state of research in the history of insurance law in Italy. (1) The number of authors involved in, or even interested

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at, in the topic is not very high. (2) These authors mainly are historians. (3) Research in the field of the history of insurance law was mainly done between the end of the 19th and the first half of the 20th century. Giuseppe Salvioli (1857–1928) – one of the most important 19th century authors on the history of insurance – described the method to be used as follows:1 … esaminare quello che di nuovo è entrato nella vigente legislazione, quello che è rimasto fuori e quello che si è mantenuto, fissare così gli elementi essenziali, prendendo tutti gli istituti alla loro radice, uno per uno, poi da questo stato primitivo seguendoli nel loro sviluppo successivo, analizzando le forme sporadiche e parassite, osservando come si sono formati sotto l’influenza di elementi nuovi e determinando infine la sfera in cui si debbono muovere … ... examining what has newly been enforced through legislation, what has remained outside the realm of legislation, and what has been retained; establishing the essential elements by following all legal concepts from their origins and, one by one, through their subsequent development, by analysing what has remained with lasting impact, by observing how these concepts were influenced by new ideas, and finally by determining the context in which they stand ...

Most of the scientific contributions dedicated to the legal history of insurance originally adopted this method: they make, with scientific rigour, a wide use of source books and, above all, they concern the origins and development of the insurance contract. These contributions identified a specific historical period in which insurance contracts developed, they claimed the Italian character of this development and, at the same time, the origin from Roman concepts.2 Having quite quickly abandoned the search for roots of insurance law in Roman times and having dated the birth of insurance transactions to the medieval world, Italian historiography between the late 19th and the 20th century especially highlighted the autonomous nature of the insurance contract, which derived from commercial customs and from needs requiring new contractual instruments to regulate and to enforce the reciprocal relations. At the same time researchers focussed on the historical sources that allowed them to locate the precise place and moment of the birth of insurance – in any case within Italy, which was considered the ideal cradle of the institution. The historical documents were collected and published in editions which were backed up by summaries on the development of insurance in medieval and modern Italy. 3 The focus of this research was almost ___________ 1 Giuseppe Salvioli, L’assicurazione e il cambio marittimo nella storia del diritto italiano (1884), 11. 2 See e.g. Giuseppe Valeri, Il ‘periculi pretium’ e i precedenti romani dell’assicurazione, in: Studi in onore di Salvatore Riccobono nel XL anno del suo insegnamento, vol. 4 (1936), 231–240. 3 In addition to Salvioli (n. 1): Enrico Bensa, Il contratto di assicurazione nel Medioevo. Studi e ricerche (1884); Francesco Shupfer, Dell’origine storica delle assicurazioni marittime e della loro legislazione, in: Adolfo Sacerdoti (ed.), Il contratto d’assicurazione, vol. 1 (1874), 115–121; Cesare Vivante, L’assicurazione delle cose. Evoluzione

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entirely dedicated to maritime insurance. Even in the rare cases of speaking about other insurance activities, these were considered to derive from maritime insurance. Still with a strong focus on source books, but with a different methodological perspective, there is some years later the important research of Federigo Melis (1914–1973).4 His works ‘by bringing to light a large number of documents for the first time … comes within an attempt to found a true theory of the economic roots‘ (‘portando per la prima volta alla luce un gran numero di documenti … s’inquadra in un tentativo di fondare una vera e propria teoria delle fonti economiche’).5 Starting from the 1950s and up to the current times, there have been several types of studies. In essence, it is possible to distinguish four types. First, there are works which highlight and summarize the basic trends in the evolution of insurance activity. Often they are authored by economic historians. They tend to reconstruct the evolution of insurance as an institution from its medieval origins into present days. They cover the history of both early maritime insurance contracts and the first legislation on maritime insurance. They mention early insurance companies created in Italy. They highlight the transformations following the industrial revolution, the role of friendly or mutual societies in the 19th century, and the expansion of the welfare sector in the 20th century. These works also include studies which use a comparative method, following the development ___________ storica, (1884) 32 Archivio giuridico 80–109; Antonio Brunetti, Lineamenti storici dell’assicurazione marittima, (1927) 6 Diritto e pratica commerciali 161–179; Valeri (n. 2); idem, I primordi dell’assicurazione attraverso il documento del 1329, (1928) 26/1 Rivista del diritto commerciale 601–640; Gian Piero Bognetti, Note per la storia del passaporto e del salvacondotto, (1931) 16 Studi nelle scienze giuridiche e sociali 269–322, (1932) 17 Studi nelle scienze giuridiche e sociali 125–210, (1933) 18 Studi nelle scienze giuridiche e sociali 247–481; Armando Sapori, Una compagnia di Calimala ai primi del Trecento (1932). Furthermore, there are several papers by Livio Piattoli, e.g., L’assicurazione dei trasporti terrestri nel Medioevo, (1934) 32/1 Rivista del diritto commerciale 422–438; L’assicurazione di schiavi imbarcati su navi e di rischi di morte nel Medioevo, (1934) 32/1 Rivista del diritto commerciale 866–874; Il contratto di assicurazione marittima a Venezia nel Medioevo, (1935) 8 Rivista di storia del diritto italiano 327–340; Ricerche intorno all’assicurazione nel Medioevo. I. L’assicurazione di una parte della cosa comune, (1937) 4/1 Assicurazioni 488–497; II. Una scritta di sicurtà veneziana del 1395, (1938) 5/1 Assicurazioni 357–364; III. La scritta di sicurtà genovese e una speciale scritta dei mercanti fiorentini in Genova attraverso i documenti dell’archivio Datini, (1939) 6/1 Assicurazioni 164–180; IV. L’assicurazione sulla vita attraverso due documenti fiorentini del 1422 e del 1515, (1939) 6/1 Assicurazioni 292–300; V. Disconoscimento di rischio e compromesso in arbitri del 1393, (1940) 7/1 Assicurazioni 160–164; VI. Due liti assicurative tra italiani in Londra del 1464–65, (1940) 7/1 Assicurazioni 165–176; Le leggi fiorentine sull’assicurazione nel Medioevo, (1932) 18 Archivio storico italiano 205–257. 4 Federigo Melis, Origini e sviluppi delle assicurazioni in Italia (secoli XIV – XVI), vol. 1 (1975). 5 Enrico Spagnesi, Aspetti dell’assicurazione medievale, in: L’assicurazione in Italia fino all’Unità. Saggi storici in onore di Eugenio Artom (1975), 22.

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of the different insurance sectors not only from Italian but also from European perspectives. However, they are mainly limited to illustrating the birth and development of insurance in different areas, without taking account of possible influences and interactions.6 Secondly, there are works with a specific local focus, for example on the developments in Liguria and Florence.7 In some cases these works consist of very original and interesting analyses mainly connected to maritime insurance. Foremost, these works focus on local standard practices and on this basis not only reconstruct the development of the concept of insurance, but also analyse the political-economic and social context of its development. There is, for example, a study on the interactions between political and economic power in Florence analysed in the light of the market trends of maritime insurance. 8 Thirdly, there are works focusing on reconstructing the history of individual insurance companies, enterprises, and certain insurance markets (above all Trieste, and, for example, Milan, Naples, and Genoa) in a period generally between the 19th and 20th centuries with a careful study of the documents. 9 ___________ 6

Giovanni Cassandro, Lineamenti storici dell’assicurazione, (1976) 1 Diritto e pratica dell’assicurazione 559–580; Ennio De Simone, Appunti di storia delle assicurazioni (1991); Roberto Baglioni, L’assicurazione in Italia dal medioevo ai giorni nostri (1996); Arnaldo Cherubini, Storia della previdenza sociale in Italia. 1860–1960 (1977); Enrico Gustapane, Le origini del sistema previdenziale: la Cassa Nazionale di Previdenza per l’invalidità e la vecchiaia degli operai (19 novembre 1898 – 28 luglio 1919) (1988); Salvatore Hernandez, Lezioni di storia della previdenza sociale in Italia (1972). 7 For Venice Giuseppe Stefani¸ L’assicurazione a Venezia dalle origini alla fine della Serenissima (1956); Guido Astuti, Le forme giuridiche della attività mercantile nel libro dei conti di Giacomo Badoer (1436–1440), (1968/69) 12/13 Annali di storia del diritto 110–115; Claudio Schwarzenberg, Ricerche sull’assicurazione marittima a Venezia dal dogado di Pasquale Cicogna al dogado di Paolo Renier (1969); Karin Nehlsen von Stryk, Aspetti dell’assicurazione marittima nella vita economica veneziana del Quattrocento (1980); idem, L’assicurazione marittima a Venezia nel 15o secolo (1988). For Trieste Dea Moscarda, Note storico-giuridiche sui contratti di assicurazione marittima a Trieste e a Venezia nella seconda metà del XVIII secolo, in: Filiberto Agostini (ed.), L’area altoadriatica dal riformismo veneziano all’età napoleonica (1998), 407–422. For Florence and the Tuscany in addition to Melis (n. 4): Giovanni Ceccarelli, Stime senza probabilità. Assicurazione a rischio nella Firenze rinascimentale, (2010) 135/3 Quaderni storici 651–702. For Liguria and Genoa Vito Piergiovanni (ed.), L’Italia e le assicurazioni nel secolo 19: casi giudiziari 1815–1877 (1981); Giulio Giacchero, Storia delle assicurazioni marittime: l’esperienza genovese dal Medioevo all’età contemporanea (1984). For Naples Giovanni Cassandro, Note storiche sul contratto di assicurazione, (1959) 13 Bollettino dell’Archivio storico del Banco di Napoli 6–62 (also in: idem, Saggi di storia del diritto commerciale (1974), 255–318). 8 Giovanni Ceccarelli, Un mercato del rischio: assicurare e farsi assicurare nella Firenze rinascimentale (2012). 9 On insurance companies in Trieste see Francesco Basilio, Le assicurazioni marittime a Trieste ed il centro di riunione degli assicuratori (1911); Giuseppe Stefani, Il centenario delle Assicurazioni Generali. 1831–1931 (1931); Giulio Sapelli, Uomini e capitali nella

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Finally, there are works which mainly concern legal aspects of insurance in the Middle Ages and in the modern era. These works present an overall picture of the institution’s legal development or they analyse individual concepts or specific factors which affected the development. Among the former are, for example, (1) the contributions to a 1975 volume which span from the Middle Ages to the middle of the 19th century with a careful analysis of source books, with a legal theory of insurance, and with an assessment of individual elements of the contract of insurance,10 (2) a summary by Giovanni Cassandro (1913–1989) in an encyclopaedic text,11 and (3) some more recent studies on the history of insurance in Italy.12 The latter include, for example, the ban on insuring foreign ships and the birth of mutual societies.13

B. The origins and development of insurance in Italy The idea of a continuous development of insurance and the idea of a thin thread linking the different forms of risk transfer already known to Roman law ___________ Trieste dell’Ottocento. La fondazione della Riunione Adriatica di Sicurtà, (1984) VII/26 Società e Storia 821–874; Tommaso Fanfani, Un modello di crescita economica: Trieste e le ‘Assicurazioni Generali’; in: Studi in onore di Mario Abrate, vol. 1 (1986), 411–425; Ugo Cova, Il ruolo decisivo delle società di assicurazione e del ceto mercantile di Trieste per la fondazione del Lloyd Austriaco, in: idem (ed.), Commercio e navigazione a Trieste e nella Monarchia asburgica da Maria Teresa al 1915 (1992); Francesco Balletta, Mercato finanziario e Assicurazioni Generali. 1920–1961 (1995); idem, Capitali, borse e assicurazioni in Italia nella seconda metà del Novecento (1997). For other cities see Tommaso Fanfani, Alleanza Assicurazioni. Cento anni di storia (1998); Franca Assante, Il mercato delle assicurazioni marittime a Napoli nel Settecento. Storia della Real Compagnia 1751– 1802 (1979); Otto Cima (ed.), Nel centenario della compagnia di assicurazione di Milano. 1825–1925 (1926); Giuseppe Annovazzi, I cento anni del Comitato delle Compagnie d’assicurazioni marittime di Genova (1961); Achille Danilo Taverna, Industria e assicurazioni: un secolo di sviluppo a Genova (1968). 10 L’assicurazione in Italia (n. 5). 11 Giovanni Cassandro, Assicurazione (storia), in: Enciclopedia del diritto, vol. 3 (1958), 420–427 (also in: idem, Saggi di storia del diritto commerciale (n. 7)). 12 Gian Savino Pene Vidari, Sulla classificazione del contratto d’assicurazione nell’età del diritto comune, (1998) 71 Rivista di storia del diritto italiano 113–137; Vito Piergiovanni, Assicurazione e finzione, in: Francesca Brunetta d’Usseaux (ed.), Le finzioni nel diritto (2002), 199–204; idem, Note per una storia dell’assicurazione in Italia, in: Giurisprudenza sistematica di diritto civile commerciale. Le assicurazioni private, (2006), 21–32; idem, I fondamenti scientifici del diritto di assicurazione, in: Serenella Rossi and Claudia Storti (eds.), Le matrici del diritto commerciale tra storia e tendenze evolutive (2009), 103–114. All of Piergiovanni’s essays quoted here and in the following notes are now collected in: idem, Norme, scienza e pratica giuridica tra Genova e l’Occidente medievale e moderno, 2 vol. (2012). 13 Vito Piergiovanni, Bartolomeo Bosco e il divieto genovese di assicurare navi straniere, (1977) 16 Annali della Facoltà di giurisprudenza 855–890; idem, Alle origini delle società mutue, in: Matteo Marrone (ed.), Imprenditorialità e diritto nell'esperienza storica (1992), 169–185.

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with those forms of insurance in later periods faded a long time ago. Modern authors are in agreement that the insurance contract as we know it today has its roots ‘in esperienze molteplici e diverse, sia per epoca che per collocazione geografica, ciascuna delle quali ha apportato un tassello alla costruzione di un risultato unitario’ (‘in various and different phenomena, both in terms of period and geographical location, each of which was a step on the path towards forming a uniform concept’).14 The idea, which had already been presented by Cassandro in the 1950s,15 was further developed by Antonio La Torre approximately twenty years ago in a complex volume entitled ‘L’assicurazione nella storia delle idee’ (‘Insurance in the history of ideas’) that, as the author makes clear, does not aim at ‘providing a history [of insurance] but … at presenting insurance from a historical perspective in the light of the ideas which had an impact on its development‘ (‘di fare la storia [della assicurazione] ma … solo presentarla in chiave storica cioè nella luce delle idee che ne hanno segnato il percorso’.16 According to La Torre, insurance in its most general meaning derives from the need for security. This need is satisfied in the various historical settings through different mechanisms which had different origins and which have gone through distinct developments. These mechanisms are: (1) the principle of mutuality, (2) contractual risk transfer, and (3) guarantee (securitas). The principle of mutuality implies splitting the risk among various individuals. It is the mechanism underlying mutual aid associations, which also include guilds or medieval corporations. Mutual aid is considered to be a parallel phenomenon to premium insurance, and institutions of mutual aid have led to modern mutual insurance companies and to the modern welfare system. However, La Torre claims that ‘il rischio reclama una forma di garanzia diversa rispetto al meccanismo mutualistico che è insufficiente perché opera e si esaurisce all’interno di una comunione di pericolo troppo chiusa e quindi non idonea ad assorbire gli effetti dell’evento dannoso’ (‘the principle of mutuality is insufficient for insuring risks because it operates solely within, and wears out, a group of joint risk bearers which is too locked up and which is, thus, not suitable to absorb the effects of a damaging event’).17 Modern forms of insurance are based on a contractual risk transfer and it was only possible for them to further develop when contracts which involved a transfer of risk gained importance. Under such contracts a contractually defined risk was transferred to another person on payment of a fee. Early examples are loans ___________ 14

Marco Rossetti, Il diritto delle assicurazioni, vol. 1 (2011), 7. See above the reference in n. 11. 16 Antonio La Torre, L’assicurazione nella storia delle idee (2nd edn., 2000), VII. 17 La Torre (n. 16), 7. 15

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against maritime barter or commenda. With these examples the transfer of risk was, however, not the sole purpose of the contract. It formed part of another contract, for example a maritime loan: under such a contract the insurer also gave a loan for a maritime enterprise and at the same time insured the ship and the cargo. As the next developmental step the insurance element became singled out and became the sole object of a contract: the insurance contract in the modern meaning was born. Insurance had become the object of an independent commercial activity. It was created in Italy, where it was linked with a maritime environment featuring more trade and a greater need for protection. During the course of the 18th century, the other insurance branches developed. This sometimes occurred through the transformation of the risks covered by maritime policies into independent insurance contracts: insurance against the risk of death of livestock developed, for example, from maritime insurance against the risk of death of livestock transported by sea. In other cases, new branches of insurance are said to have been created independently from maritime insurance, as happened for example with fire insurance, yet even these types of insurance were treated as analogous to maritime insurance. According to La Torre these new branches of insurance, which derived from (or which were at least treated as analogous to) maritime insurance, emancipated themselves from maritime insurance only in the second half of the 19 th century.

C. A comparative history of insurance law: an Italian perspective From what has been said it seems clear that Italian research on the history of insurance law has never adopted a comparative perspective or, if it has, then it has done so only superficially. Against the background of this state of research it is hard to identify external interactions and influences; it is, however, possible to identify aspects in the history of insurance law which are worth analysing from a comparative perspective. Three aspects seem to be of particular importance: (1) the legal literature and the case law between the Ancien Régime and the early 19th century, (2) legislation concerning insurance law, and (3) the standardized insurance practices and customs. I. Legal literature and case law between the Ancien Régime and the early 19th century The insurance contract was created by custom. Thus, when the first insurance legislation was enacted insurance contract law was already well defined. The insurance contract and the rules concerning such contracts were primarily created by practices and customs, but they were also formed by the legal literature of the

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centuries preceding the first insurance legislation, legislation which has in turn taken into account the practices and customs and also the case law, all of which were not necessarily exclusively local. Consequently, it is important to start with the legal literature and the case law of the time of the ius commune as both were fundamental for the legal developments in the Ancien Régime. 1. From the 15th century to the first half of the 18th century In the 15th century, insurance first started to attract the interest of legal authors. Between the 16th century and the first half of the 18th century, the legal literature, above all, concerned the definition of the concept and the description of some specific aspects of insurance. The famous names which come to mind are Benvenuto Stracca (1509–1578) and Sigismondo Scaccia (1564?–1634). However, other names must be added: Ansaldo Ansaldi (1651–1719) and Francesco Rocco (1629–1706).18 The latter was important as witness of the 15th century Ordinanze Barcellonesi in the Kingdom of Naples. For the Genoese area, there are authors who are less well known but equally important: Bartolomeo Bosco (1350?– 1437?), Carlo Targa (1614–1700), Giuseppe Lorenzo Maria Casaregi (1670– 1737), all of whom provided a fundamental contribution to forming the principles underlying the concept of insurance law. 19 Indeed, they moved on different ___________ 18 See the recent biography of these authors in: Italo Birocchi et al. (eds.), Dizionario Biografico dei giuristi italiani (XII–XX secolo), 2 vol. (2013). See also for Stracca Luigi Franchi, Benvenuto Stracca, giureconsulto anconitano del secolo XVI. Note bio-bibliografiche (1988); Charles Donahue Jr., Benvenuto Stracca’s De mercatura. Was there a Lex mercatoria in Sixteenth-Century Italy?, in: Vito Piergiovanni (ed.), From Lex Mercatoria to Commercial Law (1987), 69–120; Italo Birocchi, Alla ricerca dell’ordine. Fonti e cultura giuridica nell’età moderna (2002), 246–250; Vito Piergiovanni, Considerazioni comparative tra Benvenuto Stracca e Gerard Malynes, in: Richard H. Helmolz and Vito Piergiovanni (eds.), Relations between the Ius commune and English Law (2009), 185– 196; Gilberto Piccinini et al. (eds.), Benvenuto Straccha. Ex antiquitate rinasco (2013). For Scaccia see Rodolfo Savelli, Between Law and Morals: Interest in the Dispute on Exchanges during the 16th Century, in: Vito Piergiovanni (ed.), The Courts and the Development of Commercial Law (1987), 39–58; idem, Modelli giuridici e cultura mercantile tra XVI e XVII secolo, (1988) 18 Materiali per una storia della cultura giuridica 3– 24; Rodolfo De Laurentiis, Sigismondo Scaccia (1564?–1634) fra pratica e teoria giuridica agli inizi dell’età moderna, (1991) 64 Rivista di Storia del diritto italiano 233–339. 19 For these authors in addition to the biographical remarks in Dizionario Biografico dei giuristi italiani (n. 18) see also Enrico Bensa, Della vita e degli scritti di Bartolomeo Bosco giureconsulto genovese del secolo XV, in: Per il XXXV anno di insegnamento di Filippo Serafini. Studi giuridici (1892), 327–340; Piergiovanni, Bosco (n. 13); idem, La vita e l’opera di Bartolomeo Bosco giureconsulto genovese del secolo XV, in: idem, Lezioni di storia giuridica genovese. Il Medioevo, (1983), 181–188; idem, Diritto e giustizia mercantile a Genova nel XV secolo: i consilia di Bartolomeo Bosco, in: Ingrid Baumgärtner (ed.), Consilia im späten Mittelalter. Zum historischen Aussagewert einer Quellengattung (1995), 65–78; idem, Dottrina, divulgazione e pratica alle origini della scienza commercialistica: Giuseppe Lorenzo Maria Casaregi, appunti per una biografia, (1979) 9 Materiali per una storia della cultura giuridica 289–

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levels: sometimes on a theoretical level, more frequently with special attention towards practical issues (for example connecting their own analysis to local insurance practices) and with a didactical ambition. The case law of the central courts and particularly of the Genoese Rota Civile, too, was fundamental for developing insurance law, and the case law, especially that of the Rota, influenced the development beyond the ambit of its territorial jurisdiction.20 The Rota was created as the central court of the Republic of Genoa in 1529 following the political-institutional reform requested by Andrea Doria (1466–1560). It was a court with jurisdiction over civil matters including mercantile matters. The Rota ‘inherited’ the functions and the jurisdiction of the Gazaria for maritime matters, of the Mercanzia for commercial matters, and of the Banchi for the compere, paghe, and luoghi of the Commune and bankruptcy lawsuits. The Rota may be said to have ‘inherited’ these functions and jurisdictions because the laws of its constitution ordered that it must act in these matters on the basis of the laws which had been applied by these special magistrates that the Rota had replaced. The learned judges of the Rota, therefore, gained jurisdiction over mercantile matters even though mercantile law had mainly developed independently from the tradition in which these judges were trained – they were educated in the tradition of the ius commune. Mercantile law had, until then, been connected to customary forms and procedures which the new judges had to continue to comply with by order of the legislator. On the one hand, the judges of the Rota incorporated and merged some mercantile procedures of the old abolished courts with the new rules of the Rota and ___________ 326; idem, La ʻSpiegazioneʼ del Consolato del mare di Giuseppe Lorenzo Maria Casaregi, (2006) 36/1 Materiali per una storia della cultura giuridica 15–27; Maura Fortunati, La cultura giuridica ligure tra prassi, tribunali e commercio: l’età tardo medievale e moderna, in: Dino Puncuh (ed.), Storia della cultura ligure, vol. 1 (2004), 37–50; Maria Grazia Merello Altea, Carlo Targa giurista genovese del secolo XVII. I La vita e le opere (1967); Riccardo Ferrante, Il ‘governo delle cause’. La professione del causidico nell’esperienza genovese (XV–XVIII secolo), (1989) 62 Rivista di storia del diritto italiano 181–299; Manuel J. Peláez, Literatura juridica catalana, portuguesa y genovesa sobre seguros maritimos (siglos XV–XVIII), in: idem, Trabajos de historia del derecho privado (1993), 143–144; Lorenzo Sinisi, Formulari e cultura giuridica notarile nell’età moderna. L’esperienza genovese (1997), 259, 447 ff. 20 On the Genoese Rota and its importance in the systematization of commercial law the essential references are Vito Piergiovanni, Banchieri e falliti nelle ‘Decisiones de mercatura’ della Rota Civile di Genova, (1985) 31 Centro tedesco di studi veneziani. Quaderni 17–38; idem, The Rise of the Genoese Civil Rota in the XVIth Century. The ‘Decisiones de mercatura’ Concerning Insurance, in: idem (ed.), The Courts and the Development of Commercial Law (1987), 23–38; idem, Una raccolta di sentenze della Rota civile di Genova nel XVI secolo, in: Mario Sbriccoli and Antonella Bettoni (eds.), Grandi tribunali e Rote nell'Italia di antico regime (1993), 79–91; idem, Genoese Civil Rota and Mercantile Customary Law, in: idem (ed.), From Lex mercatoria to Commercial Law (2005), 191–206.

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progressively created a stylus that was to become a significant contribution to mercantile procedure and mercantile law. On the other hand, they used and interpreted the mercantile law in the light of the ius commune, thereby permitting an in-depth analysis of the doctrines of mercantile law. These two aspects made an important contribution to the science of commercial law: starting in the end of the 16th century, collections of decisiones of the Rota were published and started to circulate in Italy and across Europe.21 In the light of these general observations, it would be challenging but beneficial to analyse how the reception of the case law of the Genoese Rota has influenced the further development of insurance law in Europe and whether and how its case law has been observed by other European courts. 2. From the second half of the 18th century to the early 19th century The second half of the 18th century saw the first true treatise on insurance law in Italy. It was composed by Ascanio Baldasseroni (1751–1824) at almost the same time as the parallel work of Balthazard-Marie Emerigon (1716–1785) in France. From a doctrinal perspective, the works of Emerigon and Baldasseroni reveal an important change: insurance finally became a contract in itself, with its own independent characteristics. The Traité des assurances et des contracts à la grosse by Emerigon in 1783 is undoubtedly the first great treatise on insurance law – a work that goes well beyond its title, providing an overall presentation of all the fundamental principles and legal rules of the maritime trade in force in Europe and its colonies.22 The Trattato delle assicurazioni marittime by Baldasseroni was printed in 1786.23 Baldasseroni was convinced of the universality of mercantile law. Consequently, he wanted to give an overall picture of insurance law and attempted to establish a common nucleus for the many laws on the subject of insurance, using several examples of concrete cases, above all those of Livorno (Leghorn), the city where he operated. And he compared the provisions ___________ 21 The first edition was: Decisiones Rotae Genuae De Mercatura et pertinentibus ad eam. Cum indice locupletissimo (Genova 1582). 22 Balthazard-Marie Emerigon, Traité des assurances et des contrats a la grosse (Marseille 1783); on the author see the entries in Dictionnaire de biographie francaise, vol. 12 (1970); Patrick Arabeyre et al. (eds.), Dictionnaire historique des juristes français. 12–20 siécle (2007), 308 f. 23 Ascanio Baldasseroni, Trattato delle assicurazioni marittime, 2 vol. (Firenze 1786). He was also the author of the Dizionario ragionato di giurisprudenza marittima e di commercio (Livorno 1810–1813). For biographical remarks see Renato Mori, Baldasseroni, Ascanio, in: Dizionario biografico degli italiani, vol. 5 (1963), 446 f; M. Chiaudano, Baldasseroni, Ascanio, in: Novissimo Digesto italiano, vol. 2 (1958), 203 f.; Andrea Addobbati, Commercio, rischio, guerra. Il mercato delle assicurazioni marittime di Livorno. 1694–1795 (2007), 123–125; Maura Fortunati, Baldasseroni, Ascanio, in: Birocchi et al. (n. 18), vol. 1, 146 f.

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in force in the various European countries. Nevertheless, his work has never been studied in depth, and it may, thus, be an interesting starting point for comparative study – even a comparison to the work of Emerigon would seem worthwhile. In this way we could understand whether in the 18th century there was a perception of differences or similarities between the different local laws. II. Legislation concerning insurance law With respect to legislation, research needs to go beyond the Napoleonic laws and their influence and should also take into account subsequent European and Italian legislation: that of the Restoration period and the post-unification period. For earlier periods it is, furthermore, of interest which pieces of legislation had an impact on foreign insurance practices and legislation. An obvious candidate for such research is the Ordinanze Barcellonesi. III. Standardized insurance practices and customs For the Middle Ages and the Early Modern Era, the study of the standardized Italian insurance practices must take into consideration the methodological problems connected with such a study. There is the dissemination and variety of the sources. In many places having a lively insurance trade, the policies were drawn up by brokers following established schemes, patterns, and customs. These policies are, by their very nature, difficult to recover and to reconstruct. In other places, for instance in Genoa, notarial documents were used. They were drawn up to give the deed official value, but the insurance contract was often hidden under the form of a contract of loan or sale. These contracts were basically ‘the transcription of the insurance policy in notarial language’.24 It was the 19th and 20th centuries which first witnessed the use of standardized insurance policies with extensive standard contract terms. In Italy, these had the function of filling the gaps in insurance legislation, integrating the existing legislation, and aligning it with the standard practices. The importance of these standardized insurance policies needs to be reflected in the research on insurance law of the 19th and 20th centuries. Two examples will make my point clear. The first example concerns a problem which was widely discussed between the end of the 19th century and the first half of the 20th century: suicide by the insured party. It is widely known that the strict condemnation of suicide which characterized the laws both in lay and in ecclesiastic environments during the long period from the Middle Ages to the Modern Era started to decline in large ___________ 24

Cassandro (n. 6), 14.

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parts of continental Europe in the 18th century until the point when suicide was completely decriminalized.25 Once suicide had been decriminalized, remodelling non-criminal legislation and legal rules on suicide became inevitable, too. A prime example of such a debate concerned the regulation of suicide in standard contract terms of the insurance trade: the question arose whether the insurer in a life insurance contract was obliged to pay the amount agreed ‘on death’ even if the insured party had committed suicide. The pre-unification codes had not addressed the problem. The Codice di commercio (Italian Commercial Code) of 1882 adopted a decidedly ambiguous and rather disappointing formulation which was entirely inspired by Art. 41 of the Belgian Law on Insurance Companies of 1874 (Loi 11 juin 1874 sur les assurances): it did not talk about suicide in general, but introduced the concept of voluntary suicide. The concept of voluntary suicide had been discussed in France for quite some time. It raised great problems of interpretation in Italy, both in academic writing and in the case law. Voluntary suicide was to be distinguished from pathological suicide. With pathological suicide the person committing suicide acts in a moment of mental disturbance. But how were the two forms to be distinguished from each other? It was accepted that the concept of intent was decisive for the distinction. However, this concept itself left room for interpretation. 26 In academic writing different theories were developed. Some authors drew on the concept of premeditation. Others believed that it was necessary to take inspiration from the same criteria used for determining fraud. Again others excluded only cases of mental illness. And some authors went further and also took account of emotional and passionate malaise. The case law interpreted non-intent in a very wide sense and consequently often ordered the insurer to pay the amount due. ___________ 25 The literature on suicide in its different ethical, sociological, and legal aspects is almost endless. See, e.g., Émile Durkheim, Le suicide: étude de sociologie (1897), still fundamental in spite of the several critical remarks and the large debate that followed its publication. A thorough critical review is presented for example in the volume of Realino Marra, Suicidio, diritto e anomia. Immagini della morte volontaria nella civiltà occidentale (1987); William S. F. Pickering and Geoffrey Walford (eds.), Durkheim’s Suicide. A Century of Research and Debate (2000); Philippe Besnard, La destinée du ‘Suicide’. Réception, diffusion et postérité, in: Massimo Borlandi and Mohamed Cherkaoui (eds.), Le ‘suicide’ un siécle après Durkheim (2000), 185–218. For historical-juridical aspects see, for the Roman age, E. Volterra, Sulla confisca dei beni dei suicidi, (1933) 6 Rivista di storia del diritto italiano 393–416; for the medieval and Modern Age Gian Paolo Massetto, Il suicidio nella dottrina dell’età di mezzo, (2004) 12/1 Acta Histriae 139–176; Alexander Murray, Suicide in the Middle Ages, 2 vol. (1998–2000); Lieven Vandekerckhove, On Punishment. The Confrontation of Suicide in Old-Europe (2000). 26 On the different approaches to interpreting this concept see Maura Fortunati, ‘La pietosa ingiustizia dei magistrati’. Il dibattito sul suicidio dell’assicurato in Italia tra Ottocento e Novecento, (10/2016) Historia et ius, paper 30.

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Italian insurance companies addressed the resulting problems in the standard terms of their policies. They wanted to overcome the ambiguous concept of intent, and they thereby tried to regain legal certainty. The standard terms expressly granted insurance coverage in many cases of suicide, although only through very specific clauses defining precise conditions. Eventually, the solution offered by insurers in their standard terms was expressly acknowledged by the current Codice civile (Civil Code) of 1942. These findings raise a number of questions: were the solutions which were adopted by Italian insurers in any way original? Or did Italian insurers simply imitate and copy solutions which were developed by other, perhaps foreign companies? Standard terms in life insurance contracts on the suicide of the insured party offer a good basis for exploring these questions. And one could add a more general question: is there uniformity and reciprocal influence in insurance markets in which foreign insurers work alongside domestic ones? This brings me to the second point which I wish to make in this section. In the period immediately following the Restoration, insurance companies were, with their own agencies and branches, regularly present in several parts of the Italian peninsula and in states other than the one where they were incorporated. This was the case, for example, for Assicurazioni Generali of Trieste, which obtained privileges in various Italian states and which also operated in the Kingdom of Sardinia. As Genoa was part of the Kingdom of Sardinia, Generali of Trieste consequently entered the insurance market of Genoa, which had a centuries-old tradition in insurance and which had long been considered to have a leading role in maritime affairs.27 Genoese insurance companies tried to hinder foreign competitors from gaining ground in Genoa, but they were not able to stop the incorporation of prestigious companies like Compagnia di Assicurazioni Generali of Paris or Generali of Trieste. The latter soon became aware of the business opportunities offered in the area around Genoa and in Piedmont: it started to operate in insurance sectors in these areas which were hitherto partially underdeveloped, such as life insurance, river and land transport insurance, and fixed premium insurance against hail.28 In 1840 Generali of Trieste obtained authorization from King Carlo Alberto to operate in the Sardinian states in these fields. From a legal point of view the presence of insurance companies in the different Italian states resulted in problems: in the Sardinian states Generali of Trieste was exposed to Savoy laws. The case law of Savoy courts demonstrated the difficulties deriving from the ‘clash’ between the uniform standard contractual terms and the insurance regulations of the different Italian states, which were ___________ 27 28

On the development of Genoese insurance companies see Giacchero (n. 7). Stefani (n. 9), 120.

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often fragmentary and imperfect and which operated within legal systems which were different in terms of tradition and culture. The situation did not improve with the Italian unification: Austrian legislation was repealed in Lombardy and Veneto, both having now become Italian, but it stayed in force in Trieste and the other Littoral territories. The situation also did not improve when, for example, Trieste became Italian; the problems of coordination instead became even more complicated. It was the case law and the insurers’ standard terms that solved the complex situations of the international and transitional law.29 IV. Three further possible points of interactions: insuring lives, tontines, and mutual insurance companies In the preceding three sections my focus was on the sources of insurance law: standardized insurance practices and customs, legislation, and the interplay between the case law and the legal literature. In this last section I would like to change the focus to one doctrinal question concerning life insurance, a specific form of insurance, and a specific corporate form common in the insurance sector in order to explore some further possible interactions. In the past I have had the opportunity to work on slave insurance, and this inevitably led me to work on freedom and life insurance.30 If one analyses the interactions between these three types of insurance and if one assesses the developments concerning the admissibility of life insurance in France and Italy, both in the legal literature and in legislation, then one is able to observe a gradual convergence. Furthermore, the French development may, in summary, be characterized as being progressive whereas the Italian development may be characterized as being regressive. I will attempt to illustrate these points briefly. Although some have claimed that ‘the life of men cannot and must not be the object of trade and the life of a free man has no price which can give rise to a contract’ (ʻla vita degli uomini non possa né deva essere un oggetto di commercio

___________ 29

See Maura Fortunati, Tra l’Austria, l’Italia e l’Europa: diritto marittimo e assicurazioni a Trieste alle soglie dell'annessione, in: Giuseppe De Vergottini et al. (eds.), Fenomenologia di una macro regione. Sviluppi economici, mutamenti giuridici ed evoluzioni istituzionali nell'alto Adriatico tra età moderna e contemporanea (2012), 460–501. 30 Maura Fortunati, ‘Non potranno essere gettati’. Assicurazione e schiavitù nella dottrina giuridica del XVIII secolo, in: Grazia Biorci and Pierangelo Castagneto (eds.), Mentalità e prassi mercantili tra Mediterraneo e Atlantico (XV–XVIII sec.), (2008) 1 RiMe. Rivista dell’Istituto di Storia dell’Europa Mediterranea 51–66; eadem, Captivi, riscatti ed assicurazione alla vigilia dei Codici, in: Vito Piergiovanni (ed.), Corsari e riscatto dei captivi. Garanzia notarile tra le due sponde del Mediterraneo (2010), 113–134.

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e che la vita di un uomo libero non ha prezzo che possa formar soggetto di contratto’),31 life insurance policies on one’s own life or on other peoples’ lives had appeared in various parts of Italy early on. Both the legal literature and legislation had progressively distinguished life insurance from betting – the latter being forbidden – by developing the concept of interesse assecurari. Accordingly, the party taking up insurance had to have an actual interest in the object of insurance. Thus in Genoa, for instance, the statute of 1588 (translated into vernacular in 1613) established that no insurance could be taken out on the life of the pope, the emperor, the king, cardinals, dukes, princes, bishops or other ecclesiastic or secular people without the licence of the senate. 32 If there was an interesse assecurari, then a policy stipulated on the life of a specific person was valid.33 In Genoa it was thus possible for the Compagnia di assicurazioni marittime, which started operating in 1742, to engage in slave and life insurance. 34 By contrast, in other European countries life insurance was forbidden. This was, for example, the case in France. Nevertheless, people may have taken up insurance against the risk of being captured and sold into slavery during a specific voyage, with a creditor or a family member as the beneficiary.35 In a period characterized by piracy and privateering, this risk was anything but minor. From the 17th century onwards, being enslaved was no longer attached to reasons of faith, but had become a question of money. It had turned into a profitable business to sell captives into slavery or to receive a payment of ransom. Consequently, those who ventured out to sea tried to protect themselves from the possible damage to their person and assets caused by reduction to slavery through instruments that were usually used to cover risks connected to shipping: first and foremost through insurance. This type of insurance came to be called freedom insurance, which covered all the risks connected to imprisonment or reduction to slavery. Both Italian and French lawyers drew up various distinctions regarding this type of insurance.36 Three risks could be covered with freedom insurance. First, ___________ 31

Baldasseroni (n. 23), vol. 1, 301. ʻNon possano senza licenza del senato farsi sigortà … sopra la vita del Pontefice, né sopra la vita dell’Imperatore, né sopra la vita del re né de’ cardinali né de’ Duchi, principi, Vescovi né d’altri Signori o persone Ecclesiastiche o Secolari costituiti in dignitàʼ. Degli statuti civili della Serenissima Repubblica di Genova libri sei, tradotti in volgare da Oratio Taccone (Genova 1613), libro IV, cap. 17, 143. 33 Gian Savino Pene Vidari, Il contratto di assicurazione nell’età moderna, in: L’assicurazione in Italia (n. 5), 252. 34 Giacchero (n. 7), 144. 35 See e.g. Cassandro (n. 7), 290. 36 Both Baldasseroni and Emerigon recalled the ʻassicurazione sulla libertàʼ and the correlated risks. See Baldasseroni (n. 23), vol. 1, 304 ff.; Emerigon (n. 22), vol. 1, 199 ff. On this issue see also the entry ʻAssicurazioneʼ in: Domenico Alberto Azuni, Dizionario 32

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the person travelling by sea could contract for a certain sum to be paid to the family so that it could pay the ransom. Secondly, the insured could contract for a certain sum to be paid to his heirs if he died while enslaved. Thirdly, there was the so-called insurance on the return of the slave. It resulted from a combination of the two previous ones, so that people could insure both the freedom and the life of those travelling by sea. With respect to the death of the insured, freedom insurance was a true life insurance, but death was considered to be a purely secondary or ancillary event which did not generate the obligation of payment. The primary focus was on the loss of the status of being a free man. Obviously, this was a stopgap solution, a construction that allowed those travelling by sea to protect themselves and their family against the risk of death and one that made it possible to put an economic value, and thus an insurable value, on a life: the price of the ransom. This was to be a first step towards overcoming the ban on insuring life. At this point it may be interesting to briefly observe what happened to freedom insurance with the advent of the codes and how, in the same period, the life insurance policy developed. The insurance on personal freedom was recognized in the project on a maritime code which Domenico Alberto Azuni (1749–1827) prepared in 1791 for the King of Sardinia Vittorio Amedeo III. This type of insurance was again discussed in the early 19th century when the legislative projects for the Italian Kingdom began to be prepared.37 The Sardinian expert gave only little coverage to freedom insurance in his project of 1791. The second book of the project was dedicated to maritime contracts and its Chapter I concerned insurance. Art. 12 of this chapter listed the elements to be specified in a freedom insurance policy, it established the moment when the responsibility of the insurer arises, and it stated the reason why this type of insurance was introduced. 38 A ___________ universale ragionato della giurisprudenza mercantile (3rd edn., 1834); Luigi Piantanida, Trattato della giurisprudenza marittima – commerciale antica e moderna, vol. 2 (1807), 366–367; Carlo Targa, Ponderazioni sopra la contrattazione marittima (Genova 1750), cap. LII, § 19, 128; more recently Gian Savino Pene Vidari, Assicurazione e sequestri di persona. Note storiche, (1983) 19/2 Clio 177–187. 37 On the author and his project see Luigi Berlinguer, Domenico Alberto Azuni giurista e politico (1749–1827). Un contributo bio-bibliografico (1966); idem, Sui progetti di codice di commercio del Regno d’Italia. 1807–1808. Considerazioni su un inedito di D.A. Azuni (1970). 38 ʻLa polizza d’assicuranza per la libertà delle persone dovrà contenere il nome, la patria, l’età e le qualità personali di colui che si farà assicurare, ed inoltre il nome della nave, del porto d’onde ha da partire, di quello ove sarà destinata, la somma che dovrà pagarsi in caso di preda tanto per il prezzo del riscatto, che per le spese di ritorno, a chi dovrassi sborsare il danaro, e sotto qual pena: vogliamo quindi che la somma fissata nella polizza di tale assicuranza sia dagli assicuratori dovuta dal momento istesso che la persona sarà fatta schiava ed avrà perduta la sua libertà, sotto pena di soccombere ai danni, interessi e speseʼ. ʻQuesta specie d’assicuranza stata introdotta in favore de’ cristiani che ri-

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much more detailed coverage can be found in the project on a commercial code prepared by Pompeo Baldasseroni (1743–1807) in 1806.39 Times had, fortunately, changed, and starting with the Napoleonic Code de commerce, freedom insurance was no longer recognized in legislation. By contrast, in academic writing the possibility of contracting for freedom insurance was still discussed, but it was acknowledged that the problem which had triggered the invention of this type of insurance was no longer pressing. And as for life insurance? The Napoleonic Code de commerce does not mention it – neither forbidding nor permitting it – and thus leaves room for party autonomy to create a life insurance. This approach had a strong influence on Italian legal writing. At a time when the French literature started to rethink the ban on life insurance, even the Genoese expert Luigi Emanuele Corvetto (1756– 1821), who was deeply rooted in a legal tradition which was favourable to life insurance, omitted mentioning it during the course of his speech when presenting the second book of the code to the legislative body. Therefore, while French lawyers started to recognize the possibility of insuring lives, in Italy the legislative lacuna did not favour its establishment. Furthermore, the introduction of the Napoleonic code to the Italian peninsula, accompanied by the importation of the French interpretative methods, led to an interpretation that, by renouncing the preceding traditions, remained rooted in the silence of the code. Therefore, while the first life insurance company in France was created in 1819, Gaetano Marrè (1771–1825), the first Italian commentator of the Napoleonic Code de commerce, had no hesitation in teaching his students at more or less the same time in his Genoese lectures that ‘you cannot insure the life, but the freedom of men, because the former cannot be given a price, but the latter can’ (ʻsi può assicurar non la vita, ma la libertà degli uomini, perché non la prima è apprezzabile in denaro, ma la secondaʼ).40 Still in the wider context of life insurance, it might furthermore be worthwhile to analyse tontines from comparative perspectives, so as to examine their establishment, operation, importance, and development, and also to verify any points ___________ schiavano d’essere presi dai barbareschi merita che si prendano tutte le precauzioni disposte in questo paragrafo ad oggetto di procurare un pronto riscatto a quelli che abbiano la disgrazia di cadere in schiavitù nelle mani degli infedeli. Serve pure essa in tempo di guerra onde garantirsi dai corsariʼ. Codice della legislazione marittima per i porti di S.M. compilato d’ordine regio dal senatore Domenico Alberto Azuni giudice nel Consolato di Nizza l’anno 1791 conserved in the Library of the University of Sassari. 39 Arts. 1021–1032 of the project. See Alberto Sciumè (ed.), I progetti del codice di commercio del Regno Italico. 1806–1808 (1999), 10. See also idem, I tentativi per la codificazione del diritto commerciale nel Regno italico (1982); Berlinguer, Sui progetti (n. 37); Antonio Padoa Schioppa, La legislazione commercialistica nell’Italia preunitaria, in: idem, Saggi di storia del diritto commerciale (1992), 137 ff. 40 Gaetano Marrè, Corso di diritto commerciale (1840), 223.

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of contact with dowry insurance and life annuities. For Italy I am not aware of any detailed studies on these points. However, an analysis of these questions may be fruitful: Monti delle Doti, for example, were first established in the 15 th century in Florence and they spread across Italy. It was a kind of insurance: a sum was paid which had to be returned with interest on the wedding day, but only if the young girl had not died in the meantime. 41 Its operation recalls tontines, which were invented in the 17th century and which became popular across Europe in the 18th century. A further possible research question concerns mutual insurance companies: the Italian historical literature does not discuss in depth the relation between insurance and the principle of mutuality. Nevertheless, the principle of mutuality seems to have been of importance for the development of welfare institutions. And it could be made use for reconstructing insurance enterprises. While a possible origin from the phenomenon of medieval corporations has been excluded (any forms of corporative assistance are equated to forms of charity rather than to means of welfare and mutual aid) it has been highlighted how, above all in the 18th century, means of risk splitting and reciprocal solidarity were created – means which distance themselves from the original world of maritime trade by covering different risks.42 However, it has, as yet, not been clarified how much influence foreign ideas had on these developments.

___________ 41 See e.g. Julius Kirshner, Pursuing Honor While Avoiding Sin. The Monte delle Doti of Florence (1978); Julius Kirshner and Anthony Molho, The Dowry Fund and the Marriage Market in early Quattrocento Florence (1978); G. Delille, Un esempio di assistenza privata: i Monti di maritaggio nel Regno di Napoli (secoli XVI – XVIII), in: Giorgio Politi et al. (eds.), Timore e carità. I poveri nell’Italia moderna (1982), 275–282; Anthony Molho, Marriage Alliance in Late Medieval Florence (1994), 27–127; Mauro Carboni, Le doti della ʻpovertàʼ. Famiglia, risparmio, previdenza: il Monte del Matrimonio di Bologna. 1583–1796 (1999). 42 For mutual insurance in Italy see Vincenzo Porri, Lo sviluppo delle imprese assicuratrici in Italia nei rami elementari, in: Giuseppe Prato et al. (eds.), Lo sviluppo e il regime delle assicurazioni in Italia (1928), 114 ff.; Ageo Arcangeli, Le cooperative di mutua assicurazione e il loro regolamento giuridico, in: idem, Scritti di diritto commerciale ed agrario, vol. 2 (1936), 315 ff.; Arnaldo Cherubini, Dottrine e metodi assistenziali dal 1789 al 1849. Italia, Francia, Inghilterra (1958); idem (n. 6); Luciano Martone, Le prime leggi sociali nell’Italia liberale. 1883–1886, (1974–1975) 3–4 Il socialismo giuridico. Ipotesi e letture, Quaderni per la storia del pensiero giuridico moderno 103–144; Piergiovanni, Alle origini delle società mutue (n. 13).

Chapter 3: France By Sophie Delbrel A. The concept of, and the sources and literature on, insurance: from the Ancien Régime to the 20th century .............................................................. 46 I. The concept of insurance .................................................................................. 46 1. The mercantile dimension of insurance ........................................................ 47 2. The social dimension of insurance ............................................................... 47 II. The sources and literature on the history of insurance ...................................... 49 1. A short guide to insurance history sources ................................................... 49 2. A short guide to insurance history literature ................................................ 50 B. The evolution of insurance: from adaptation to generalization ................................. 52 I. The Ancien Régime ........................................................................................... 53 II. From the Revolution to the Second Empire ...................................................... 55 III. The Third Republic ........................................................................................... 58 C. A history of insurance law in France in a European context .................................... 63 I. Mercantile insurance ......................................................................................... 63 II. Social insurance ................................................................................................ 64 III. The case of Alsace-Moselle .............................................................................. 65

Today’s French legislation refrains from defining the concept of insurance.1 The lack of such a definition is surprising and does not reflect the importance of the insurance sector in France, which prides itself on being, in terms of annual premiums, one of the top four insurance markets in the world. 2 It has been argued that the lack of such a definition signals the importance of party autonomy in insurance law: if the legislator defined the concept of insurance, this would restrict the parties’ freedom of contract.3 Alternatively, the lack of a definition has been analysed from a historical perspective: due to the changing needs of society, insurance as an institution went through many transformations. And in answer to the growing demand for protection against risks, various actors – both private and public – have been active in the insurance sector.4 Furthermore, the activities of public actors are closely linked to the emergence of the welfare state, and it ___________ 1 See the entry ‘Assurances’, in: Denis Alland and Stéphane Rials (eds.), Dictionnaire de la culture juridique (2003). 2 Bertrand Venard, L’histoire du marché de l’assurance en France, (2013) 81 Assurance et gestion des risques 85–101. 3 Bernard Beignier (ed.), Droit des assurances (2015), 31. 4 François Couilbault and Constant Eliashberg, Les grands principes de l’assurance (2009), 19.

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has proven difficult to draw this multitude of developments and the activities of these various actors together under one uniform concept. Yet these explanations address only the question of why legislation refrained from defining insurance. They do not help to unravel how insurance was conceptualized in the different historical periods. Moreover, historical discussions have often reduced the development of insurance to the different practical techniques of insuring against risks: until World War II, the approach taken towards insurance seems to have been pragmatic, with resulting theoretical discrepancies.

A. The concept of, and the sources and literature on, insurance: from the Ancien Régime to the 20th century In the following section, the historical evolution of insurance will be analysed by focusing on, and through the lens of, the literature on insurance. However, before turning to the historical development of the literature on insurance, I will first reflect on the very concept of insurance in the various relevant contexts. I. The concept of insurance According to Georges Hamon (1855–1942), ‘insurance, association, and assistance are the Holy Trinity whose mission just begins’ (‘Assurance, Association, Assistance sont une sainte Trinité dont la mission à peine commence’).5 This remark reveals contemporary thinking: at a time when diverse forms of protection were refined, insurance was defined on a very general level in order to include these diverse forms. And 19th century authors were interested both in insurance operated on a commercial basis and social insurance. Albert Chaufton (1845–1923), for example, stated that ‘l’assurance est la compensation des effets du hasard sur le patrimoine de l’homme par la mutualité organisée suivant les lois de la statistique’6 (‘insurance is a means to provide for compensation of the effects on a person’s assets resulting from an eventuating risk on the basis of the principle of mutuality and according to actuarial theory’). Yet, this broad approach to understanding insurance did not persist: the 20 th century instead saw a strict distinction between commercially run insurance and the sphere of social insurance.

___________ 5

Georges Hamon, Histoire générale de l’assurance en France et à l’étranger (1897), 10. Albert Chaufton, Les assurances, leur passé, leur présent, leur avenir en France et à l’étranger – Etudes théoriques et pratiques, vol. 1 (1884), 347. 6

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1. The mercantile dimension of insurance The term insurance has often been equated to insurance operated on a commercial basis because the term was first used in the context of maritime insurance and because maritime insurance was operated on such basis. Accordingly, in the 18th century the insurance contract was defined as a contract by which an insurer sees to the risks of loss and damage to a ship or to transported merchandise in a maritime undertaking in return for the payment of a premium representing a portion of the insured value. 7 The 19th century then saw a diversification of the insurance sector with a more generalized approach to the concept of insurance. The focus shifted to the security which is resulting from insurance. And indeed, the terms assurance and security were used interchangeably already in the Middle Ages as ‘to assure’ meant nothing other than to put into security.8 Consequently, insurance was now understood in broader terms as a means to receive coverage against the consequences of a fortuitous event befalling persons or assets and as a means to transfer a risk from the insured to the insurer by paying a premium which corresponded to the insured risk. 9 Furthermore, the 19th century saw a pedagogical impetus aimed at promoting insurance, this being a consequence of the bad reputation from which insurance as an institution and from which some individual insurers suffered. Life insurance, for example, was tainted by tontines which, according to many contemporaries, blurred the line between insurance and gambling. And some insurance schemes were looked upon as dubious means of speculation. Consequently, commercial insurers had to convince potential customers of the actuarial and financial soundness of their undertakings. They had to distance themselves from any form of gambling and betting. Both objectives implied that insurers had to exclude the possibility of windfall profits. Finally, insurance had to be distinguished from simple saving plans: insurance implies compensation for the effects of an occurred risk. 10 2. The social dimension of insurance The social dimension of insurance, and the development of social insurance schemes, turns on the notion of risk, too. Whereas in the course of the 19 th century ___________ 7 See the entry ‘Assurances’, in: Nicolas Baudeau, Encyclopédie méthodique. Commerce, vol. 1 (Paris 1783). 8 See the entry ‘Assurer’, in: Alain Rey (ed.), Dictionnaire historique de la langue française (1992). See also Jean-Louis Halpérin, La prohibition de l’usure et la naissance de l’assurance, (2003) Finance et Bien commun 68–74. 9 See the entry ‘Assurances’, in: Edouard Fuzier-Herman, Répertoire général alphabétique de la langue française, vol. 5 (1889). 10 See the entry ‘Assurances’, in: Fuzier-Herman (n. 9).

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it became possible to buy insurance coverage for all sorts of risks on a commercial basis, the social dimension of insurance gained prominence only – and especially – during the Third Republic (1870–1940). Of course, it was the industrial revolution and the societal changes which it brought about that led to the necessity of new collective schemes of protection against certain risks and which, in turn, resulted in the emergence of social insurance schemes. And these schemes, too, were dependent on the concept of risk understood as an uncertain event that has the potential of resulting in a loss on the side of the insured. 11 Today, the Code de la Sécurité sociale (Code on Social Security) refers, in essence, to the insured’s inability to earn his or her reasonable maintenance. However, every clear definition, although promoting legal certainty, has the disadvantage of being potentially too narrow – and indeed, the definitional element requiring the insured to have suffered a real loss was looked upon as being problematic in the case of life insurance. Today, it is the principle of solidarity which is fundamental to the sphere of social insurance, and it is this principle which is the feature distinguishing it from all insurances operated on a commercial basis. The same does not hold true for the 19th century and for the time of the Third Republic. These times saw the emergence of a number of provident societies, and the principle of solidarity was thought to underlie insurance in its entirety. Even insurance operated on a commercial basis was thought to be rooted in the idea of mutuality. Of course, the elites of the republic were aware of the fact that insurance had the potential of being a profitable undertaking. Nevertheless, they were of the opinion that the state should regulate insurance businesses rather than act itself as an insurer. The fact that the principles of solidarity and mutuality were thought to govern commercially run insurances, too, had consequences for the internal organization of insurance companies.12 Furthermore, in the 19th and early 20th centuries social insurance schemes were linked to the idea of remedying the socio-economic inequalities from which society suffered. Finally, insurance has to be distinguished from all forms of assistance even though insurance and assistance complement one another with respect to both the principles underlying them and the techniques which they employ.13

___________ 11 Jean-Pierre Laborde, La notion de risque en droit des assurances et en droit de la sécurité sociale, in: Etudes offertes à Hubert Groutel – Responsabilité civile et assurances (2005), 235–245. 12 Chaufton (n. 6), 218. 13 François Ewald, Histoire de l’Etat providence (1996), 44–48.

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II. The sources and literature on the history of insurance Recent times have seen a large number of publications on the history of insurance.14 The research has a national focus. A comparative approach is missing even though it is clear that insurance as an institution did not develop isolated from the developments in other European countries. A disciplinary compartmentalization is in general symptomatic of today’s French legal science: in the field of insurance the research adheres, for example, to the split between insurance operated on a commercial basis and the sphere of social insurance. 1. A short guide to insurance history sources In 2007 the Comité scientifique (Scientific Committee) of the Fédération Française de l’Assurance (French Federation of Insurers) published a guide to sources on the history of insurance.15 It may be looked upon as a first step towards a renewal of the history of insurance as a field of research. It gives a short introduction detailing key dates in the history of insurance and contains a bibliography on the subject, but first and foremost it lists public and private archives and collections possessing materials on insurance history. In 2011 a volume by Didier Pouilloux16 followed, compiling materials and texts on the history of insurance.17 It includes some texts on provident societies ‘even though [they] do not entirely fall within the subject matter … of the book’ (‘bien qu’[elles] ne rentrent pas entièrement dans l’objet … de l’ouvrage’) as they, too, ‘manage risks just like insurers do’ (‘gèrent des risques comme les entreprises d’assurances’). 18 By contrast, historical research has not neglected the different forms of social protection, including the history of social insurance. Consequently, there is rich literature on social protection. This in itself is important as it proves again the split which governs research into the history of insurance, its falling squarely between insurance operated on a commercial basis and social insurance. An indispensible tool is the ‘Guide for Researchers on the History of Social Protection’

___________ 14 Gérard de la Martinière, Avant-propos, in: Comité scientifique pour l’histoire de l’assurance (ed.), Guide des sources sur l’histoire de l’assurance (2007), 6. 15 Comité scientifique (n. 14). 16 Didier Pouilloux, Mémoires d’assurances – Recueil de sources françaises sur l’histoire des assurances du XVIe au XIXe siècle (2011). 17 See e.g. Daniel Jousse, Recueil chronologique des Ordonnances, Edits et Arrêts de Règlements cités dans les Commentaires sur les Ordonnances des mois d’Avril 1667, Août 1669, Août 1670 et Mars 1670 (Paris 1757). 18 Pouilloux (n. 16), 711.

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published in 1997.19 However, first and foremost, there is a series of books starting in 198820 published under the aegis of the Comité d'histoire de la Sécurité Sociale (Committee on the History of Social Security). 21 From the perspective of comparative legal history, the volume on the history of international social security law by Guy Perrin (1926–1992) is worth mentioning.22 Perrin had been appointed to the International Labour Office in 1957, where he became responsible for the European programme on social security. 23 Finally, it is worth noting that in France many primary sources (such as notarial documents) which are essential for research on the history of insurance law and insurance practices – practices which may be analysed from a comparative perspective – have been preserved in the municipal archives and are today to be found in the departmental archives. 2. A short guide to insurance history literature The development of insurance is closely linked with the evolution of the industrial society. It is characteristic of the industrial society that it aimed at transferring the effects of those risks which followed from its evolution. It is, thus, not surprising that until the 18th century one finds relatively little literature on insurance and that the number of publications increased in the course of the 19 th century and then especially during the Third Republic. The principal work on 18th-century insurance is the treatise by BalthazardMarie Emerigon (1716–1785).24 Furthermore, authors on mercantile law25 and commentators on the codes of Jean-Baptiste Colbert (1619–1683) covered insurance.26 In general, the texts of the 18th century had a strong focus on maritime ___________ 19

Jean Imbert, Guide du chercheur en histoire de la protection sociale, 2 vol. (1997). Michel Guillaume (ed.), La Sécurité Sociale. 1780–1870 (1988). 21 Guillaume (n. 20), VIII. 22 Guy Perrin, Histoire du droit international de la sécurité sociale (1993). 23 Perrin (n. 22), 2–3. 24 Balthazard-Marie Emerigon, Traité des assurances et des contrats à la grosse (Marseille 1783). 25 Œuvres de Pothier contenant les Traités du droit français, vol. 3 (new ed. by M. Merlin, 1830), 235–282; Philémon-Louis Savary, Dictionnaire universel de commerce, 4 vol. (Paris 1726–1732); Nicolas Baudeau, Encyclopédie méthodique. Commerce, 3 vol. (Paris 1783–1784). 26 René-Josué Valin, Nouveau commentaire de l’Ordonnance de la marine de 1681, 2 vol. (Paris 1760); Daniel Jousse, Nouveau Commentaire sur l’Ordonnance du commerce (Paris 1761). For the preceding period Estienne Cleirac, Us et costumes de la mer (Bordeaux 1647). 20

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insurance.27 In the course of the 19th century and during the Third Republic, the literature started to overcome this focus and began to cover insurance in general.28 Works on specific insurers29 or specific types of insurance were published, too.30 These contributions often took a historical approach. Finally, there were handbooks of little academic value which were written for insurance sector practitioners.31 In conclusion, insurance became a subject of interest for both lawyers and economists.32 It was only in the 1930s that the literature started to separate mercantile insurance33 from social security. For the time after World War II, the contributions of two authors became reference works on the history of insurance, and furthermore both works went beyond national developments and adopted a comparative approach: Chaufton34 and Hamon.35 Apart from these works, the literature on insurance became more technical;36 the split between insurance operated on a commercial basis and social insurance was fully perpetuated, and there were a number of studies on the

___________ 27 Philippe Bornier, Conférences des ordonnances de Louis XIV, vol. 2 (new edn., Paris 1719), 727, seems to be an exception: ‘On peut assurer non seulement les denrées et les marchandises, mais encore les navires, le corps, la liberté, même la vie des personnes’ (‘not only foodstuffs and merchandise can be insured, but also ships, bodies, liberty, even the life of persons’). 28 Charles de la Prugne, Traité théorique et pratique de l’assurance en général (1895); Etienne Buisson, La nationalisation des assurances (1920); Frederick B. Artz, La crise des assurances en 1830 et les compagnies d’assurances, (1929) Revue d’histoire moderne 96– 105; Bellecour, La prévoyance (1958). 29 V. Senès, Les origines des compagnies d’assurances, soit à primes, soit mutuelles, fondées en France depuis le XVIIe siècle à nos jours (1900); Edouard Brisebarre, Les compagnies d’assurances sur la mort (1864). 30 Isidore Alauzet, Traité général des assurances maritimes, terrestres, mutuelles et sur la vie (1843); Martial Bosredon, Histoire des assurances sur la vie, origines, développements en France (Thèse droit Bordeaux, 1900). 31 See Paul-Hilarion Philouze, Manuel du contrat d’assurance. Assurances contre l’incendie. Assurances sur la vie. Principes et jurisprudence (1879). 32 Ferdinand Gros, Les fondements psychologiques de l’assurance. Son sens historique et social (1920). 33 Paul Sumien, Le régime et le contrôle des sociétés d’assurances et de capitalisation: les réformes de 1938 (1939). 34 Albert Chaufton, Les assurances, leur passé, leur présent, leur avenir en France et à l’étranger– Etudes théoriques et pratiques, 2 vol. (1884–1886). 35 Hamon (n. 5). 36 René Delmas, Les taxes sur les polices d’assurance (1939); Michel Dangibeaud, L’assurance et la croissance économique (1964); Jean Fourastié, Les assurances au point de vue économique et social (1946).

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many types of insurance contracts.37 Furthermore, we see numerous studies on the history of the different insurers.38 In conclusion, the development of insurance’s treatment in the literature mirrors, in a certain way, the evolution of insurance. 39 What we begin to find today is research into the history of insurance law. 40 It seems that legal historians and research centres having a specialization in legal history did not take an interest in insurance history for a long time. 41 In addition, there are only few research centres in France with a specialization in insurance law, and they do not promote historical research. However, there are hopes that today’s focus on the legal developments in a European context will initiate new studies. 42

B. The evolution of insurance: from adaptation to generalization The origins of insurance in France are based on several European institutions, especially on maritime insurance. The further evolution of insurance in France also has to be analysed in a European context: in the 17 th century, for example, the idea of tontines, which were considered by contemporary authors as the very reverse of life insurance, came to France from Italy; tontines remained important until the end of the 19th century. For an account of the history of insurance in France it is best to distinguish three periods. This tripartite periodization is based on the factual importance that insurance began to assume as well as its substantial refinement. The first period covers the Ancien Régime. The later phase of the Ancien Régime proved to be favourable for the development of insurance, but with the Revolution of 1789 this development came abruptly to a halt. The second period covers the time to (and including) the Second Empire (1852–1870). Especially during the time of the First Empire (1804–1814/15), the idea of insur-

___________ 37 Jacques Pannier, L’assurance litiges (1943); Charles Pineau, Assurance et Placement (1939); Jean Bourdiol, Le risque de guerre dans l’assurance vie (1941). 38 Michèle Ruffat, Edouard-Vincent Caloni and Bernard Laguerre, L’UAP et l’histoire de l’assurance (1990); Caroline Desaegher, L’histoire d’AXA (1996). 39 See, e.g., Michèle Ruffat, French insurance from the ancien régime to 1946: shifting frontiers between state and market, (2003) 10 Financial History Review 185–200. 40 See the recent works of Claire Bellenger, Histoire de l’assurance de dommages en France (Thèse droit Paris II, 2011) and Charlotte Broussy, Histoire du contrat d’assurance (XVIe–XXe siècle) (Thèse droit Montpellier, 2016). 41 See, however, Pierre-Joseph Richard, Histoire des institutions d’assurance en France (1956). 42 See, e.g., the encouraging doctoral thesis of Alix Rodet-Profit, Le contrat d’assurance maritime à Rouen dans l’Ancien Droit (Thèse droit Paris II, 2015).

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ance resurged. And later in the second period, the development of insurance companies ran parallel to the development of banking institutions. The third period starts with the Third Republic (1870–1940). I. The Ancien Régime The history of insurance, or more precisely the history of maritime insurance, begins in the Middle Ages, but it remains difficult to identify a precise date when the first insurance transaction was concluded.43 It has been alleged that the French maritime insurance business first emerged at the Atlantic coast and that the Rôles d’Oléron of 1266 covered insurance transactions. The Rôles had a lasting impact on the further development of maritime law. And Oléron was at the time a part of the Angevin Empire. Thus, one could raise the question as to English influences on the Rôles.44 Nevertheless, Estienne Cleirac (1583–1657) claimed that it was mostly of French character, exhibiting some English affinities.45 Moreover, it is doubtful that the Rôles covered maritime insurance and that maritime insurance existed in France as early as the 13 th century. By contrast, it is clear that French maritime insurance was under the influence of Italian and Spanish practice. Marseille played a key role in the development of maritime insurance, and the maritime practice in Marseille followed the Spanish Consolat de Mar (Consulate of the Sea).46 Later, maritime insurance was covered by Le Guidon de la mer, an influential text of unknown authorship. It originates from Rouen, was addressed to traders of that city, and dates most probably back to the 16th century. It was published by Cleirac, who reviewed and corrected it with resort to foreign rules and legislation, especially from Genoa, Ancona, Barcelona, Portugal, Castile, Antwerp, and Amsterdam.47 Cleirac’s revision and corrections make it hard to assess which parts of the text resemble the original Guidon. The second half of the 16th century marks the beginnings of royal legislation on, interference with, and restrictions on maritime commerce and maritime insurance. This legislation had the effect of harmonizing maritime commerce and ___________ 43 André Straus, Histoire de l’assurance en France jusqu’à la Deuxième Guerre mondiale, in: Instituto de Ciencias del Seguro (ed.), Encuentro International sobre la Historia del Seguro (2010), 69–96, and Bellenger (n. 40) cover this period only very briefly; see also Broussy (n. 40), 10–30. 44 Hamon (n. 5), 23–24, who was probably inspired by Jean-Marie Pardessus, Collection de lois maritimes antérieures au XVIIIe siècle, vol. 1 (1828), 38. 45 Cleirac (n. 26), 2–4. 46 Pierre B. Boucher, Consulat de la mer ou Pandectes du droit commercial et maritime, 2 vol. (1808). See also Jules Valéry, Contrats d’assurance maritime du XIIIe siècle (1916), 6. 47 Cleirac (n. 26), 120.

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maritime insurance. Legislative activities reached their climax in the 17 th century with the codifications which were realized under Colbert. Two ordinances are of importance for insurance: the Ordonnance du commerce of 1673 and the Ordonnance de la marine of 1681. Both texts went beyond maritime insurance as they covered land insurance. And they remained of relevance until the 19 th century.48 Furthermore, under the reign of Louis XIV a first initiative was taken to found a general insurance company in Paris.49 The 18th century saw the first French fire insurance offices, and an English influence gained prominence. The first fire offices were founded in Paris in 1717, to be followed by a mutual fire association in 1750. Some years later the first insurance companies were founded. The Ordonnance de la marine of 1681 prohibited ‘de faire aucune Assurance sur la vie de personnes’ (‘the making of any insurance on the life of persons’). The ban on life insurance seems to be clear-cut and unambiguous. However, we have to remember that life insurance in the modern sense was unknown at the time. The drafters of the ordinance, rather, had wagers on lives in mind.50 Furthermore, the ordinance expressly allowed insuring the liberty of mariners and passengers of a sea journey. In any case, the express prohibition interfered for a long time with the development of life insurance in France. It was only in 1787 that Louis XVI authorized the proposal of a life insurance scheme. At the same time, legislation started to focus on how to regulate insurance. Thus, modern life insurance began to develop only shortly before the French Revolution. And its beginnings are closely linked to the general history of France: it was the prominent political figure Étienne Clavière (1735–1793) who promoted life insurance and who was a co-founder of the Compagnie royale d’assurances sur la vie in 1788.51 Clavière was advised by Richard Price (1723–1791), who was involved with the Equitable Life Assurance Society.52 Furthermore, the actuarial science and practice advanced, with contributions of people like Blaise Pascal (1623– 1662), Emmanuel-Étienne Duvillard (1755–1832),53 and Antoine Deparcieux (1753–1799).54 At the same time when modern life insurance gained prominence, guilds lost their importance. Guilds had offered assistance to members in need and to widows and orphans. However, they were looked upon as institutions of ___________ 48 Chaufton (n. 6), 352; on maritime insurance see also Christian Pfister-Langanay, L’assurance maritime à Dunkerque au XVIIIe siècle, (2007/1) 369 Revue du Nord 43–60. 49 Hamon (n. 5), 41–42. 50 Bosredon (n. 30), 40–51. 51 Pierre-François Pinaud, Clavière: Ministre des Contributions et revenus publics, agioteur et réformateur, (1993) Revue Historique 361–382. 52 Bernard Gibaud, Mutualité, assurances (1998), 7–9. 53 Guy Thuillier, Le premier actuaire de France: Duvillard (1755–1832) (1997). 54 Gibaud (n. 52), 7–9, adds to these names Claude Piarron de Chamousset (1717–1773).

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the Ancien Régime; moreover, they had never developed the actuarial techniques and modern structures that could have guaranteed their future. 55 II. From the Revolution to the Second Empire The last years of the Ancien Régime proved to be favourable for the development of life and fire insurance. However, with the Revolution this development came to an abrupt halt. Already in 1787, Mirabeau (1749–1791) had opposed the idea of insurance and its speculative elements. On the eve of the Revolution, arguments against insurance were also misapplied in order to get rid of competitors. The Revolution brought a financial crisis. Consequently, speculative transactions came under attack, and these attacks also aimed at the newly founded insurance companies.56 In 1793, the Convention Nationale placed a ban on insurances companies. According to Pierre-Joseph Cambon (1756–1820):57 Il existe en ce moment un combat à mort entre tous les marchands d’argent et l’affermissement de la République. Il faut donc tuer toutes ces associations destructrices du crédit public, si nous voulons établir le règne de la liberté. Today we witness a battle between actors in the financial market and those working to consolidate the Republic. It is necessary to exterminate all those associations which are ruinous to the public credit if we want to establish the reign of liberty.

The prohibition of insurance companies cleared the way for mutual associations. In 1798, under the Directoire, a mutual fire society was established in Paris. Under the Consulat, a mutual insurance against hail was founded in Toulouse. Its founder, Pierre Bernand Barrau (1767–1843), initiated in 1805 further types of mutual insurance, a mutual fire insurance for real property and a mutual livestock insurance.58 In 1810 a commission was created at the Interior Ministry’s suggestion to supervise these societies. 59 Beyond mutual associations, it became difficult to find insurance coverage and to provide for risks: the Décret d’Allarde and the Loi Le Chapelier of 1791 introduced freedom of contract and freedom of trade, and at the same time they prohibited any form of trade associations as they were thought to put freedom of trade at risk. In the form of guilds, these traditional trade associations were, however, a means of mutual protection and assistance in case of illness, old age, or death. People had to look for new forms of protection. Consequently, the number ___________ 55

Yann Delbrel, L’essentiel du droit social (2006), 16–17. See Herbert Lüthy, La Banque protestante en France, vol. 1 (1959), 425–426, cited by Pinaud (n. 51), 368. 57 Cited by Gibaud (n. 52), 12. 58 Bellenger (n. 40), 113. 59 Bellenger (n. 40), 134–135. 56

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of tontines increased. A tontine was an early form of a pension scheme. However, they were mismanaged, and the public lost trust in them and subsequently also trust in life insurance companies and mutual insurances. Nonetheless, the Revolution is likely to have had a positive effect on the development of insurance. Indeed, the Revolution inspired in the long run a number of insurance-like projects as well as projects which at least partially served insurance-like functions, such as saving funds and saving banks. Soon, two forms were clearly thought apart: saving banks that also offered products to provide for risks on the one hand and insurance companies on the other hand. The former were popular among the general public. The products which were offered by the latter were affordable only to the rich. The first French saving bank (caisse d’épargne) was founded in 1818 in Paris. And it was not until 1840 that primarily these saving banks offered financial products to the working class in order to provide for risks.60 However, the time of the French Restauration beginning in 1814/15 proved to be fruitful for the development of mercantile insurance, too. New insurance companies were established: in 1818/19 the Compagnie d’assurances générales maritimes (General Maritime Insurance Company), in 1819 the Compagnie d’assurances générales contre l'incendie (General Fire Insurance Company), and also in 1819 the Compagnie d’assurances générales sur la vie des hommes (General Life Insurance Company).61 For the development of maritime insurance, the transfer of the headquarters of the Belgian Bureau Veritas to Paris in 1832 marked an important step in the renewal of the insurance practice.62 Furthermore, the political and financial elites were closely linked, and it was especially bankers who dominated the mercantile insurance sector. The situation in England was similar. However, there the development was far more advanced. The links between these elites become most obvious when looking at who were members of the board of directors of insurance companies. Finally, mutual insurance societies remained relevant despite the fact that they had since 1806 been prohibited from recruiting their members on a professional basis. This prohibition was based on fears of strikes and social claims. 63 Turning to legislation, the Code civil of 1804, one of five codes which were created under Napoleon I (Bonaparte), touched upon insurance only in Art. 1694

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Ewald (n. 13), 163–166. Patricia Toucas-Truyen, Histoire de la mutualité et des assurances: l’actualité d’un choix (1998), 24. 62 Toucas-Truyen (n. 61), 25. 63 Jean Bigot (ed.), Traité de droit des assurances, vol. 1 (2011), 15. 61

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on aleatory contracts.64 The Code de commerce (Commercial Code) of 1807 integrated the maritime law of Colbert’s Ordonnance de la marine of 1681. However, the code of 1807 went beyond maritime insurance and regulated mercantile insurance in general. Mercantile insurance was also governed by some fiscal legislation of 1816 and 1824. 65 Legislative projects on fire insurance and maritime insurance of 1834 and 1837 were never carried through. 66 On the suggestion of Louis-Emmanuel Corvetto (1756–1821) – a member of the Conseil d'État (State Council) under Napoleon I and Minister of Finances under Louis XVIII – the prohibition of life insurance was renewed. Only in 1819 did life insurance again become legal in France, yet the mistrust remained; 67 and as late as 1864 the highest magistrates continued to express moral reservations against life insurance. 68 Towards the middle of the 19th century the sociétés de secours mutuels (provident societies) became more prominent. They seemed to be an answer to the growing pauperism as they allowed the poor to make modest retirement arrangements. In 1848, at the beginning of the Second Republic, the requirements of establishing such a society were liberalized. Beginning in 1850 it became possible for them to take advantage of certain fiscal benefits if they submitted themselves to administrative supervision, but most societies decided against doing so. The principle of mutuality was further promoted by a Decree of 28 March 1852 by Louis-Napoleon Bonaparte, who from 1848 to 1852 was President of the Second Republic and who became Napoleon III during the Second Empire. A friendly society was to be established in every municipality if the respective council gave its approval. The Decree of 1852 thus distinguished between mutual societies which had received public approval and those which had not. The public hand still feared professional guilds and associations and the risk of strikes and, thus, tried to detach mutual societies from professional activities. 69 In total, the promotion of these societies was a success: during the reign of Napoleon III (1852–1870) their number at least doubled.

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See e.g., Bellenger (n. 40), 142, and Broussy (n. 40), 573–593. Albert Chaufton, Les assurances, leur passé, leur présent, leur avenir en France et à l‘étranger – Etudes théoriques et pratiques, vol. 2 (1886), 4. 66 Chaufton (n. 65), 5–20. 67 Gibaud (n. 52), 16–17. 68 See Jean Bigot (n. 63), 12, with reference to the Director of Public Prosecution named Dupin. See also Michèle Ruffat, L’assurance française et sa tutelle; structures administratives et modes de regulation de l’ancien régime à la Seconde Guerre mondiale and Peter Borscheid, L’assurance-vie et l’établissement de la retraite aux XIXe et XXe siècles, both in: Peter Borscheid et al. (eds.), Insurance in industrial societies: economic role, agents and market from 18th century to today (1998), 57–75 and 91–99. 69 Gibaud (n. 52), 34. 65

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At the same time, insurance companies operating on a commercial basis, although well established, were still of a modest size. At the beginning of the Second Empire in 1852, tontines had a more important role to play than life insurance companies, of which there were only four. Insurance companies still had to fight against the distrust of the general public and legislators. This distrust was reflected in an Act of 24 July 1867, which liberalized the requirements for establishing joint-stock companies but which still held on to restrictive provisions for the establishment of life insurance companies. Only a year later, on 11 July 1868, a public death fund was established which served the same functions as life insurance but avoided calling itself life insurance because life insurance was still looked upon as being morally dubious.70 The same piece of legislation which founded the death fund created public accident insurance.71 Furthermore, a public agricultural insurance had been planned already since 1857. This project failed, however. Strong views were expressed that the public hand should not act as an insurer and that the insurance business should be left to private initiatives. The end of the Second Empire saw an evolution and expansion of the mercantile insurance business and its catching up with the general industrial and economic development of the 19th century. This expansion was primarily dependant on two factors. First, actuarial science became more refined and risks calculable. Secondly, satisfying the financial requirements for founding an insurance company became possible through the manifold links between the banking and insurance sectors – links which remained characteristic for the French insurance industry beyond the 19th century. However, these links did not exclude ties to mutual insurances.72 It was especially actuarial science, with men like the Belgian Adolphe Quételet (1796–1874), initiator of the first international congress of statistics in Brussels in 1853, Emile Cheysson (1836–1910), and Paul Guieysse (1860–1914), that tied both together.73 III. The Third Republic The political and economic conditions of the early Third Republic (1870– 1940) remained favourable for establishing insurance companies which were operated on a commercial basis. This was made possible through a further liberalization, with the aforementioned Act of 24 July 1867 being only a first step. 74 Regulatory hurdles were removed. In the United Kingdom, a similar relaxation ___________ 70

Toucas-Truyen (n. 61), 30. Gibaud (n. 52), 43. 72 Toucas-Truyen (n. 61), 26. 73 Toucas-Truyen (n. 61), 38. 74 Anne Lefebvre-Teillard, La Société Anonyme au XIX e siècle (1985), 419. 71

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had already begun with the Joint Stock Companies Act 1856. The Anglo-French free trade agreement of 1860, the so-called Cobden-Chevalier Treaty, was followed in 1862 by a treaty between the two countries which allowed limited companies that were established in the United Kingdom to open a branch in France; Belgian companies had similar rights beginning in 1857.75 And in 1869 Alfred de Courcy (1816–1888), a director of the Compagnie d’assurances générales (General Insurance Company), predicted that insurance companies would take the form of a limited company, 76 as had already been the case with maritime insurance companies.77 The regulatory regime concerning life insurance societies changed in the early 20th century after a life annuity society had to file bankruptcy. Pursuant to an Act of 17 March 1905, such companies had to provide guarantees; additionally, a new system for their registration and new regulatory institutions for their supervision were introduced. 78 Both the mercantile insurance sector and insurance run on the principle of mutuality expanded during the times of the Third Republic. From the perspective of the insured, both complemented one another, and the choice between the two depended on socio-economic factors rather than on technical questions.79 And indeed, at the time the common idea of both sides of the insurance sector was stressed. The aforementioned de Courcy, for example, personifies the links between the two: besides being director of the Compagnie d’assurances générales, he was also active in the field of mutual insurance undertakings. 80 And both mercantile insurance and mutual insurance were at the time not looked upon as true competitors, as becomes clear from the foundation of the Ligue nationale de la prévoyance et de la mutualité (National League of Mutuality) in 1890, from the writings of authors like Chaufton and Hamon, and from ideas expressed by Léon Say (1826–1896), who was several times finance minister of the Third Republic.81 Later on, the idea of mutuality as an inherent element of both social protection and the social economy was successfully defended. Léopold Mabilleau (1853–1941) – first president of the Fédération nationale de la mutualité française (National Federation of French Mutuality), which was founded in 1902 – asserted the Roman and French character of mutual assistance. 82 Consequently, the French system of insurance has for a long time retained its original character, ___________ 75

Lefebvre-Teillard (n. 74), 424–425. Lefebvre-Teillard (n. 74), 448. 77 Lefebvre-Teillard (n. 74), 67. 78 Straus (n. 43), 85. 79 Toucas-Truyen (n. 61), 32–33. 80 Toucas-Truyen (n. 61), 32–33. 81 Toucas-Truyen (n. 61), 36–37. 82 Straus (n. 43), 84. 76

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neither giving way to a system favouring insurance operated on a purely commercial basis nor entirely favouring state intervention. With the ongoing urbanization, traditional forms of social protection disappeared, and this made the different forms of insurance all the more important. 83 A reformed framework was thought to be necessary to react to these challenges. On the occasion of the 1889 World’s Fair/World Exposition in Paris, the Ministry of Interior commissioned an expert group to work out new mortality tables taking into account up-to-date statistical data of French insured and pensioners and the experience of the French insurers.84 These new tables replaced those by Duvillard and Duparcieux, and they were in use until 1914. The legislative framework was reformed, too. The Charte de la mutualité (Charter of Mutuality) of 1 April 1898 marked the end of the development towards more liberalization. The Third Republic offered more freedom to mutual societies even if an administrative supervision was officially maintained. Indeed, the 1894 revision of the Decree of 1852 had – on the initiative of Cheysson and to the advantage of mutual societies – reduced the administrative supervision to technical questions. And already since the 1880s a strengthening of the principle of mutuality had been discussed. However, it was only in 1898 that an act finally came into force.85 Hippolyte Maze (1839–1891), who was to become president of the Ligue nationale de la prévoyance et de la mutualité, was the first to propose the idea of the Charter to the National Assembly. In the subsequent debates some saw the opportunity to align the practice of mutual societies to the techniques of mercantile insurance. However, the interests of a strengthened working-class had to be taken into consideration, too. Nevertheless, the republican elites remained sceptical of mutual societies with their alleged imperfections. A consensus was found in early 1898. The Charter of 1 April 1898 simplified the process of constituting a mutual society, it removed hurdles and obstacles, it thereby applied the principle of freedom of association to such societies, and it made some necessary changes for mutual life insurance. In particular it opened the possibility of creating unions which were more efficient than single societies.86 Finally, the Charter opened the possibility for mutual societies to offer more products: in addition to traditional health insurance, life insurance, and pension schemes, they were now able to offer unemployment insurance schemes.87 The Charter stated: ___________ 83 André Gueslin, L’invention de l’économie sociale – Idées, pratiques et imaginaires coopératifs et mutualistes dans la France du XIX e siècle (1998), 226–227. 84 Straus (n. 43), 84. 85 Yann Delbrel, La mutualité à Bordeaux au XIX e siècle (2006), 295–308. 86 Delbrel (n. 85), 295–308. 87 Toucas-Truyen (n. 61), 58.

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Les sociétés de secours mutuels sont tenues de garantir à tous leurs membres participants les mêmes avantages sans autre distinction que celle qui résulte des cotisations fournies et des risques apportés … Le législateur interdit absolument la contrefaçon du principe mutualiste: il s’oppose à ce que des spéculateurs se targuant d’idées philanthropiques ne drainent à leur profit les économies des travailleurs en faisant miroiter à leurs yeux des avantages irréalisables. The provident societies have to guarantee the same advantages to all their participating members, without any other distinction but the one which results from contributions and risks … The legislator absolutely prohibits the distortion of the principle of mutuality: he opposes that some speculators boasting about philanthropic ideas drain the savings of workers for themselves, painting for them in glowing colours some unrealizable advantages.

This was directed against the practice of life insurance providers offering tontines.88 In all, the Charter aimed at liberalizing mutual societies, thereby strengthening the idea of insurance, encouraging all individuals to take up insurance, and distinguishing it from ancillary assistance provided by the state. A separate Act of 9 April 1898 dealt with insurance for worker’s compensation in the event of a work accident.89 Again here, the discussions which led to this piece of legislation started already in the 1880s. Parliament member Martin Nadaud (1815–1898) filed an initial draft bill in 1880. The subsequent parliamentary discussions were heavily influenced by insurers and employers in the metal trade. In the end, it was decided that worker’s compensation should not be covered by workers’ mutual societies as was the case with health insurance; instead, it fell upon the employers to seek insurance coverage, and this regime was favourable to mercantile insurers.90 Under the new regime, the employer was strictly liable to the employee if the latter suffered from a work accident. Even though employees were not compensated for their full loss, the new regime meant an improvement for them.91 The Act left it to employers to decide whether they wanted to cover the resulting financial risk through insurance. And the Act left it to employers whether they wanted to seek insurance coverage with a mutual insurance society or with a mercantile insurer. Nevertheless, the new regime benefited primarily commercial insurers.92 1919 saw a further reform: the regime no longer covered solely work accidents, but all work-related illnesses.93 Originally, a distinction had to be drawn between work accidents and work-related

___________ 88

Toucas-Truyen (n. 61), 58. Ewald (n. 13), 278–279. 90 Toucas-Truyen (n. 61), 58. 91 Jean-Pierre Laborde, Droit de la sécurité sociale (2005), 34–35. 92 Toucas-Truyen (n. 61), 60–61. 93 Laborde (n. 91), 36. 89

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illnesses; and the latter were covered by health insurance schemes which were operated on a mutual basis.94 An Act of 5 April 1910 introduced a pension scheme. The enactment completed discussions and parliamentary work going back more than fifty years. In 1850, a national pension fund was initiated by act of Parliament; it was supervised by the state.95 The 1910 Act introduced a compulsory old-age and invalidity insurance. It was an obligatory social insurance and its payments were guaranteed by the state.96 In 1918 Alsace-Moselle became French again. This initiated discussions on introducing a compulsory social insurance. The discussions were based on the French experience with the Act of 1910 and with the German model that had been introduced in Alsace-Moselle. Many contemporaries believed that it was mainly the social legislation with its compulsory social insurance schemes which had allowed Germany to become so powerful. In 1920, Paul Jourdain (1878– 1948), at the time minister of labour and deputy of the département Bas-Rhin, was commissioned to draft an act to introduce compulsory social insurance. A first draft was finished in early 1921. It was an amalgam of the legislation which had been in force in Alsace-Moselle and other foreign models. The draft bill aimed at covering all workers whose earnings were so low that they themselves could not provide for the financial risks and consequences arising from illness, maternity, occupational disability, old age, and death.97 According to the draft bill, both the employer and the employee had to contribute to the insurance scheme. The draft bill did not, however, cover unemployment insurance:98 the United Kingdom was suffering from an economic crisis and many contemporaries believed that it had been intensified, if not caused, by the fact that the United Kingdom had unemployment insurance. These considerations removed unemployment from the political agenda for a long period. An initial Act of 5 April 1928 introduced a social insurance scheme for workers in the industrial arena, in commerce, and in the agricultural sector. Only two years later, on 30 April 1930, a first reform was enacted. 99 The Act of 1930 applied to workers in the sectors of industry and commerce whose income was below a certain sum. It covered the financial risks and consequences arising from ___________ 94 Olivier Faure and Dominique Dessertine, La maladie entre libéralisme et solidarités. 1850–1940 (1994), 32–34. 95 Delbrel (n. 55), 113–115. 96 Delbrel (n. 55), 113–115. 97 Delbrel (n. 55), 113–115. 98 On the long history of the discussion see Christine Daniel and Carole Tuchszirer, L’Etat face aux chômeurs – L’indemnisation du chômage de 1884 à nos jours (1999), 54–76. 99 Delbrel (n. 55), 113–115.

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illness, maternity, occupational disability, old age, and death.100 The insured had the choice whether he wanted to seek insurance from a mercantile or a mutual insurance provider. And the contribution to the social insurance scheme was split equally between the insured and the employer.101 Even if the Act of 1930 applied to a clearly defined class of workers, insurers started to imitate the products and to offer, for example, occupational disability insurance to the general public. 102 Finally, it took until 13 July 1930 for France to enact an Insurance Contract Law Act which went beyond maritime insurance. And it was only a Decree of 14 June 1938 that generalized and harmonized insurance regulation and supervision.103

C. A history of insurance law in France in a European context The French development of insurance as an institution and of insurance law has to be analysed in a European context: there are numerous possible points of interaction between the French development and that of other European countries. Furthermore, the case of Alsace-Moselle is worth special attention. I. Mercantile insurance Obviously, the legal history of maritime insurance can be analysed only from a comparative perspective. What needs to be stressed is that the development of maritime insurance in France retained an important European dimension even after the 18th century and after the fall of Napoleon Bonaparte. From the Ancien Régime to the First Empire, France was involved in numerous wars, which had negative effects on maritime commerce. Consequently, it was only after the Restauration that maritime insurance companies of a larger size were able to develop.104 In the 19th century a number of organizations made up of maritime insurers were established in Paris and French seaports. Foreign insurers were able to join these organizations if they had an office in France. As maritime commerce and maritime insurance has always been an international undertaking, one focus

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Delbrel (n. 55), 113–115. Laborde (n. 91), 38–39. 102 Straus (n. 43), 91. 103 Beignier (n. 3), 31. 104 See Christian Rietsch and Fabrice Duneau, Les compagnies d’assurances sur le marché boursier parisien jusqu’en 1870, in: Georges Gallais-Hamonno (ed.), Le marché financier français au XIXe siècle, vol. 2 (2007), 507–555. 101

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of these organizations was on international question. 105 The impact of these organizations on the development of maritime insurance law has never been the object of research, and it would be a fruitful undertaking to put their impact into comparative perspective. Some insurance companies which were operated on a commercial basis were active on the fire and life insurance markets, too. However, since the early 19th century the fire and life insurance sectors had been dominated by mutual insurers. Step by step, both the mercantile insurance companies and the mutual insurance societies expanded their activities into areas such as accident insurance, liability insurance, theft insurance, and agricultural insurance like hail insurance. It seems that these new insurance products in France owe their existence to English influences,106 which seem to have been mediated also through actuarial science,107 an international field of study. Finally, the re-insurance business seems to have affected the development of insurance and insurance law, and here again the reinsurance market was international. The impact of actuarial science and the reinsurance business on the development of French insurance and French insurance law has never been studied from comparative perspectives. French literature has repeatedly argued that French legislation had a lasting impact on the developments in other European countries. Chaufton, for example, claimed:108 ‘Le droit français, en matière d’assurance, a eu une grande influence sur toutes les nations de l’Europe au dix-septième, au dix-huitième et au commencement du dix-neuvième siècle.’ (‘French insurance legislation has had great influence on all the nations of Europe in the 17th, 18th, and at the beginning of the 19th centuries.’). However, there is an immediate problem with such broad propositions: often they are not based on an in-depth research of primary sources. And indeed, Chaufton himself also asserts that France remained immune to foreign influences in the first half of the 19 th century. However, it seems unlikely that any influence was exclusively unidirectional. In all, it is necessary to revisit these broad allegations and test them against an in-depth analysis of primary sources. II. Social insurance On the occasion of the 1889 World’s Fair/World Exposition, the first Congrès international des accidents du travail et des assurances sociales (International congress on workplace accidents and social insurance) was held in Paris. It ___________ 105

Hamon (n. 5), 57–58. Hamon (n. 5), 228. 107 Hamon (n. 5), 77–78. 108 Chaufton (n. 65), 21. 106

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marked the start of a European discourse on social insurance. A Comité permanent international (Permanent International Committee) was created and further conventions were organized – the second one being 1891 in Bern. The work of the Committee and the conventions were financed by French entrepreneurs and insurers. Their aim was to limit the influence of the German system of compulsory social insurance.109 It was looked upon as a model based on constraint whereas the French mutual insurance system was regarded as a model based on liberty. Despite this ideological starting point, these conventions stimulated a lively international discourse on social insurance. The many active French members on the Committee showed great interest in a truly comparative understanding of social insurance.110 However, prior to the end of World War I this academic interest did not have any impact on legislation. Finally, between 1925 and 1927 a compulsory social insurance scheme was introduced following the German model.111 III. The case of Alsace-Moselle As a result of the Treaty of Frankfurt of 10 May 1871 which was signed to end the Franco-German War of 1870, most parts of Alsace and most parts of the departments of Moselle and Meurthe were ceded to Germany. They formed Alsace-Lorraine within the newly founded German Empire.112 The German experience had a lasting impact even when after World War I Alsace-Moselle returned to France. First, based on the principles of a French act of 30 May 1857, the German authorities banned foreign, including French, mercantile insurance companies from doing business in Alsace-Lorraine.113 This ban had negative practical effects on the business of French insurers, but it had also severe legal effects as existing contracts were challenged. Secondly, and more importantly, the case of Alsace-Moselle had a great impact on the development of social insurance. The Bismarckian social insurance schemes were introduced in AlsaceLorraine, too, starting in 1883 with the national social health insurance system.

___________ 109 Patricia Toucas-Truyen, L’internationalisation de la protection sociale, in: Michel Dreyfus (ed.), Les assurances sociales en Europe (2009), 209–259, cites at 213 Emile Cheysson, a former factory manager and organizer of the Congress: ‘A la race germanique, la solution autoritaire basée sur le socialisme d’Etat; à la race latine, la solution libérale basée sur le patronage et la liberté’. 110 Toucas-Truyen (n. 109), 215. 111 Toucas-Truyen (n. 109), 229. 112 See the entry ‘Allemagne’, in: Edouard Fuzier-Herman, Répertoire général alphabétique du droit français, vol. 1 (1886), n. 145. 113 See the entry ‘Assurances’, in: Fuzier-Herman (n. 9), n. 1686.

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Compared to France, the German social insurance schemes were far more advanced.114 Then, in 1914 the Reichsversicherungsordnung (Imperial Code on Social Insurance) came into force.115 The inhabitants of Alsace-Lorraine favoured these schemes and legislative provisions. Consequently, when Alsace-Moselle returned to France, these schemes were not challenged. Two acts of 17 October 1919 and 1 June 1924 reinforced these schemes and the Reichsversicherungsordnung as a law of Alsace-Moselle.116 Furthermore, Alexandre Millerand (1859–1943), who was the first general commissioner for the administration of Alsace-Moselle, even argued in favour of extending these schemes to all of France, albeit unsuccessfully. In Alsace-Moselle they remained in force until World War II.

___________ 114 French authors generally stress that Bismarck had been inspired by the pension scheme created in France in 1850: see, e.g., Toucas-Truyen (n. 109), 209–259; Jacques Brasseul, La genèse de l’Etat providence et la naissance de la social-démocratie Bismarck et Bernstein, in: Droit et économie de l’assurance et de la santé – Mélanges en l’honneur de Yvonne Lambert-Faivre et Denis-Clair Lambert (2002), 37–88. 115 Francis Kessler and Nicole Kerschen, L’assurance maladie en Alsace-Moselle: des origines à nos jours (2013), 18. 116 Kessler and Kerschen (n. 115), 25–26.

Chapter 4: Spain By Miguel Ángel Morales Payán A. Introduction .............................................................................................................. 67 B. The different roots of insurance in Spain .................................................................. 70 I. The ecclesiastical origins of insurance in medieval Spain ................................ 70 II. Guilds and the first development of mutual insurance in Spain ........................ 71 III. Maritime and commercial insurance ................................................................. 73 1. The origins of maritime insurance in Spain ................................................. 73 a) The Mediterranean area: Barcelona’s influence ...................................... 73 b) The Atlantic area: Burgos, Bilbao, and Seville ....................................... 74 c) Maritime insurance in Spanish America ................................................. 76 d) Public intervention in insurance law ....................................................... 77 e) The financial dimension of maritime insurance ...................................... 79 2. The unique origins of life insurance ............................................................. 80 3. Insurance on slaves ...................................................................................... 80 C. From individual insurers to insurance companies ..................................................... 81 I. The first commercial insurers: merchants, bankers, insurance brokers, and notaries ......................................... 81 II. The origins of insurance companies in Spain (16th and 17th centuries) ............. 83 III. The first stock companies (18th century) ........................................................... 84 IV. The development of limited liability insurance companies in 19th-century Spain ....................................................................... 84 1. A time of continuity (1800–1829) ................................................................ 84 2. The first deregulation and the expansion of limited liability companies (1829–1848) ................................................................................................. 85 3. Regulation comes back (1848–1869) ........................................................... 85 4. A new deregulation period (1869–1908)...................................................... 86 a) The impact on Spanish insurance companies .......................................... 86 b) The arrival of multinational companies (1869–1908) ............................ 87

A. Introduction An interest in the history of insurance in Spain is relatively recent. The most complete study thus far has been published only in 2014, but it has been written mainly from the perspective of economic history. 1 There is no equivalent study ___________ 1 Gabriel Tortella Casares, Leonardo Caruana de las Cagigas, Jose Luis García Ruiz, Alberto Manzano Martos and Jerònia Pons Pons, Historia del seguro en España (2014), 9. For another overview: Jerònia Pons Pons and Maria Ángeles Pons Brias, Investigaciones históricas sobre el seguro español (2010); Alberto Manzano Martos, Claves del Seguro español: Una aproximación de la historia del seguro en España (2012).

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for the history of insurance law. Thus far, Spanish legal historians have only addressed individual aspects of insurance legal history. Many studies focus on legislative sources.2 Those authors who undertake archival research have also analysed specific insurance contracts.3 Only a few studies are exclusively based on academic/learned sources,4 and even fewer focus on the procedural aspects of ___________ 2 See Arcadi García I Sanz, Estudios sobre los orígenes del derecho marítimo hispanomediterráneo, (1969) 39 Anuario de Historia del Derecho Español 213–316; idem, Ordinacions inèdites de Barcelona I Perpinyà sobre assegurances maritimes, in: Estudis d’Història Medieval, vol. 4 (1971), 121–141; Gustavo Romanelli et al., Le ordinanze di Barcellona del XV secolo sulle assicurazioni marittime, (1973) 185/2 Archivio Giuridico 121–143; Santos Manuel Coronas González, Los orígenes de la regulación consular burgalesa sobre el seguro marítimo, (1981) 2/2 Revista de Historia del Derecho 269–318; Manuel J. Peláez Albendea, La legislación histórica barcelonesa de seguros marítimos en su proyección italiana, (1981) 1 Anuario de Derecho marítimo 95–129; idem, La normativa de seguros más antigua de España: la ordenanza de seguros marítimos de Barcelona de 1432, in: Homenatge a la memoria del prof. Dr. Emilio Sáez (1989), 171– 180; Bruno Aguilera-Barchet, Un formulario de contrato de seguro de 1546. Contribución al estudio del derecho marítimo consular burgalés, in: Derecho Marítimo Europeo. Diritto Marittimo Europeo. Tribute to F. Valls Taberner, vol. 4 (1987), 1135–1176; Jerònia Pons Pons, La normativa aseguradora mallorquina de 1492 i la influencia de les ordinacions barcelonines, (1999) 55 Bolletí de la Societat Arqueològica Llulliana 145–162. 3 Guillermo Céspedes del Castillo, Seguros marítimos en la Carrera de Indias, (1948– 1949) 19 Anuario de Historia del Derecho Español 57–102; José María Madurell Marimón, Los seguros de vida de esclavos en Barcelona (1453–1523). Documentos para su estudio, (1955) 25 Anuario de Historia del Derecho Español 123–188; idem, Los antiguos seguros de vida en Barcelona (1427–1764), (1957–1958) 27–28 Anuario de Historia del Derecho Español 889–1134; idem, Los seguros marítimos y el comercio con las islas de la Madera y Canarias (1495–1506), (1959) 5 Anuario de Estudios Atlánticos 485–567; Manuel Basas Fernández, Contribución al estudio del seguro marítimo en el siglo XVI, (1958) 143 Boletín de la Institución Fernán González 157–177; idem, El seguro marítimo en Burgos (siglo XVI) (1963); Manuel J. Peláez Albendea, Las relaciones económicas entre Cataluña e Italia desde 1472 hasta 1516 a través de los contratos de seguro marítimo (1980); idem, Els contractes d’assegurança marítima a Catalunya els anys 1476–1478, in: Catalunya desprès de la guerra civil del segle XV. Institucions, formes de govern i relacions socials i economiques (1981), 213–233; idem, Cambios y seguros marítimos en Derecho catalán y balear (1984); Arcadi García I Sanz and Maria Teresa Ferrer Mallol, Assegurances i canvis marítims medievals a Barcelona (1983); Jerònia Pons Pons, Compañías de seguro marítimo en España (1650–1800), (2007) 67 Hispania. Revista Española de Historia 271–294. 4 Moses Bensabat Amzalak, Pedro de Santarem, jurisconsulto portugués do seculo XVI. Notas bio-bibliographicas (1914); Manuel J. Peláez Albendea, Literatura jurídica catalana, portuguesa y genovesa sobre seguros matítimos, (1982) 29 Revista española de seguros 21–55; Bernardo Guimarâes Fisher de Sá Nogueira, A evoluçâo do contrato de seguro marítimoe a importancia do trabalho de Pedro de Santarém, considerado como ‘pai do seguro de risco marítimo’ para seu enquadramento jurídico, in: Communication in the Portuguese Maritime Academy (2012), 1–22: http://docplayer.com.br/1199536Introducao-comunicacao-apresentada-na-academia-de-marinha-pelo-academicobernardo-guimaraes-fisher-de-sa-nogueira-em-17-de-julho-de-2012.html (last visited January 2016); Santos Manuel Coronas González, El concepto de seguro en la doctrina

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insurance law.5 Most studies concern maritime insurance, which indeed played the most prominent role since the Middle Ages. However, is insurance law in its entirety rooted in maritime insurance law? The answer seems to be in the affirmative. Indeed, one of the most famous Spanish legal dictionaries of the 19 th century deals exclusively with maritime insurance when discussing insurance. 6 This explains why most secondary sources concerning the history of insurance law in Spain address maritime insurance, only. Nevertheless, in the 20 th century some legal historians also took a broader approach to the history of insurance. 7 In the present paper I will examine the legal history of insurance from a wider perspective, I will not restrict myself to insurance operated on a commercial basis, and I will, thus, include forms of insurance other than maritime insurance. My analysis will span from the medieval period to the first general insurance regulation of 15 May 1908. I will start off with the role of the Church and the importance of guilds and unions, which developed a mutual insurance model at a very early stage. I will then turn to the origins and development of maritime insurance. In Spain there were three major centres for the development of maritime insurance. The practice of insuring goods transported by sea originated in Barcelona before gradually spreading to other areas under the Crown of Aragon. In medieval times maritime insurance existed also in the areas of the Cantabrian Sea and the North Atlantic, especially in two places: Burgos and Bilbao. The latter became the most important commercial port in the Iberian Peninsula during the 16 th and 17th centuries, boasting the Iberian Peninsula’s most important trade legislation prior to the Commercial Codes of 1829 and 1885, including the Ordinances of the Consulado of Bilbao of 1737. In my analysis, I will examine two aspects in relation to commercial insurance and, more specifically, maritime insurance: first the involvement of public authorities in regulating maritime insurance and its financial nature. Secondly, I will look at other forms of insurance, such as some peculiar life ___________ mercantilista de los siglos XVI y XVII, in: Orlandis 70. Estudios de derecho privado y penal romano, feudal y burgués (1987), 243–254. 5 Jerònia Pons Pons, El pago del seguro marítimo y los conflictos ante el tribunal consular, (1992) 12 Pedralbes. Revista d’Historia moderna 71–94. 6 Joaquín Escriche, Diccionario razonado de legislación y jurisprudencia (1863), 1451: ‘El contrato en que una de las partes se obliga mediante cierto precio á responder á la otra del daño que podrían causarle ciertos casos fortuitos á que está espuesta [sic]. Asi es que hay seguros contra el incendio, contra el granizo, contra los riesgos del mar, aunque entre nosotros están circunscritos por ahora á estos últimos en las operaciones mercantiles.’ (‘A contract by which one of the parties undertakes, for a certain price, to cover the costs which certain damages suffered could entail. Thus, there is insurance against fire, against hail, against risks at sea, though among us they are for now circumscribed to the latter in commercial operations.’). 7 See, e.g., Jesús Lalinde Abadía, Iniciación histórica al derecho español (1970), 695.

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insurance policies designed to guarantee the payment of debts and slave insurance, both of which first appeared in medieval times. Finally, I will focus on the professionalization of insurance after the shift from individual insurers to insurance companies, which made their first appearance in Spain in the 18th century. Of special importance will be the expansion of the use of insurance in the 19th century following the foundation of the first limited liability companies and the enactment of the Commercial Code of 1829. This legislation brought about a first wave of companies, with another coming in the wake of the Revolution of 1868, when foreign companies were authorized to be set up in Spain. These developments led to foreign insurers controlling most of the insurance market in Spain.

B. The different roots of insurance in Spain I. The ecclesiastical origins of insurance in medieval Spain It seems that, chronologically, the Church was the first to develop ways of covering risks run by individuals, 8 perhaps the most interesting practice being the medieval institution called familiaritas: a contract that enabled individuals without descendants, couples, or unmarried women with old parents to donate their real estate to ecclesiastical institutions (monasteries or convents, essentially) in exchange for protection in their final days, or if they became sick or disabled.9 The ecclesiastical institution promised to furnish donors with accommodations, food, clothing, and even the right to a proper burial at the end of their lives. Persons with heirs could give away only one-fifth of their property to ecclesiastical institutions through these kinds of agreements. This practice was truly ancient. In Visigoth Spain, in the 7th century, some monastic community rules permitted the inclusion of lay men and women (Rule of Saint Fructuosus). The incorporation of women into monastic communities made up of men, however, generated problems, and eventually this practice was proscribed by the Pope in order to prevent scandals (like that which occurred at the Ripoll Monastery in Catalonia).10 ___________ 8 See Antonio Rumeu de Armas, Iglesia y beneficencia a través de los tiempos, in: XIX semana social de España (1960), 381–402. 9 José Orlandis Rovira, Traditio corporis et animae. La ‘familiaritas’ en las iglesias y monasterios españoles en la Alta Edad Media, (1954) 24 Anuario de Historia del Derecho Español 95–279. 10 See a 1478 agreement in which a widow offers herself and her son and all her property to a monastery in exchange for accommodation, food, clothing, the right to be buried properly, and for receiving prayers after their death: María Asunción Vilaplana, La Colección diplomática de Santa Clara de Moguer. 1280–1483 (1975), 57.

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The properties that the Church acquired through familiaritas also had broader social uses, and it is important to note that it was through familiaritas that many ecclesiastical hospitals were created in medieval Christian Spain. The practice of familiaritas peaked in the 12th and 13th centuries. There were different sorts of familiaritas agreements. At times married couples donated several properties to their bishops in exchange for lifelong pensions. In other cases farmers gave away their land to a monastery, retaining usufruct rights in exchange for ecclesiastical aid in the event weather conditions ruined crops. It is significant that the law effectively protected the donors. In some cases donors suffered long illnesses and monasteries, considering their care too onerous, decided to interrupt it. When the donors sued the monasteries the courts annulled the contracts, returning their properties to them.11 II. Guilds and the first development of mutual insurance in Spain With all the attention Spanish legal historians have paid to maritime insurance, it is a paradox that the first serious legal studies on the history of insurance law actually focused on social insurance. This was due to the fact that during the first decades of the Franco regime social insurance (protection for the unemployed, disabled, and retired) was one of the priorities. The first attempt to develop a system of social protection in Spain had been initiated by Eduardo Aunós (1894– 1967) during Primo de Rivera’s dictatorship (1923–1930), imitating similar schemes in Italy under Mussolini. The Franco regime was extremely concerned with social protection and, because of its longevity, was able to develop Spain’s first state-run social insurance system. It is understandable, therefore, that social protection was an important research topic for legal historians of that period. The most important studies are those by Antonio Rumeu de Armas (1912–2006) published between 1943 and 1945. They focused on how guilds provided social protection to their members. And his research paved the way for a new wave of studies in the 1980s, when historians began studying the history of social insurance more systematically.12 ___________ 11

Orlandis Rovira (n. 9), 220–221. For an overview of the history of social insurance prior to 1900–1945 in Spain: Francisco Comín Comín, Los Seguros sociales y el Estado del bienestar en el siglo XX, in: Jerònia Pons Pons and Javier Silvestre Rodríguez (eds.), Los orígenes del estado de bienestar en España. 1900–1945: los seguros de accidentes, vejez, desempleo y enfermedad Zaragoza (2010), 17–50, 19–23; Francesc Andreu Martínez-Gallego and Rafael Ruzafa, Los socorros mutuos y la cooperación en la España del siglo XIX: actitudes de los poderes públicos y soluciones populares, in: Santiago Castillo and Rafael Ruzafa (eds.), La previsión social en la historia (2009), 101–136. For sources of the period Santiago Castillo (ed.), Reformas Sociales. Información oral y escrita publicada de 1889 a 1893, 5 vols. (1985). For a general approach to the history of social insurance in Spain: 12

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Besides the Church, the brotherhoods (cofradías) and guilds (gremios) were also concerned with social insurance under Spain’s Ancien Régime.13 It is essentially thanks to the studies of Rumeu that we know about the history of social care institutions14 and guilds15 in Spain. The first brotherhoods appeared in the 12th century, as religious institutions, though they did not originate in Spain. Rather, Rumeu suggests a foreign origin: France, which exported them via the influence of the Camino de Santiago (Way of St. James), the pilgrimage route to Santiago de Compostela, where the body of the apostle is purportedly buried. This pilgrimage route was Europe’s most popular religious destination, as of the 9th century, which explains why one of the first brotherhoods was one of bankers for pilgrims, operating in Santiago in the 12 th century. The brotherhoods in Spain started out as religious congregations for charitable purposes, but they soon tended to draw together persons sharing the same profession. Over time they evolved into guilds. 16 There was a merchant guild in Soria by the middle of the 12th century,17 a shoemaker’s guild in Barcelona some decades later,18 a guild of notaries in Salamanca in the 13th century,19 and maritime guilds 20 too. These kinds of institutions, especially the latter, were created to protect a group of professionals through the establishment of concrete rules governing the exercise of their profession. It was precisely these sorts of restrictions that spurred the kings of Castile and Aragon to prohibit them, or at least to establish strict limitations on the creation of guilds, which ultimately required royal authorization.21 As far as the history of insurance is concerned, the guilds developed what could be called a sort of insurance, as their members had to pay a fee that entitled them to later receive social assistance. The money collected from fees, and also fines, was used to aid sick members by paying them a salary when they could not ___________ Antonio Rumeu de Armas, Los seguros sociales en nuestro pasado histórico (1943). Also Margarita Vilar Rodríguez and Jerònia Pons Pons, Economic Growth and Demand for Health Coverage in Spain. The Role of Friendly Societies (1870-1942), in: Bernard Harris (ed.), Welfare and Old Age in Europe and North America (2013), 65–88. 13 Cristina Segura Graiño, ¿Previsión social en la Edad Media?, in: Castillo and Ruzafa (n. 12), 21–34. 14 Antonio Rumeu de Armas, Historia de la previsión social en España. Cofradías, gremios, hermandades, montepíos (1944). 15 Antonio Rumeu de Armas, Los gremios españoles. Su origen y vicisitudes, (1945) Revista del Trabajo 23–32. 16 On the differences between brotherhoods and guilds, see Rumeu (n. 14), 49–54. 17 Rumeu (n. 14), 45. 18 Rumeu (n. 14), 208. 19 Rumeu (n. 14), 71. 20 Rumeu (n. 14), 137–159. 21 Rumeu (n. 14), 56–63.

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work, by paying for medical assistance, 22 and, even later, as of the 15th century, by providing a pension after retirement. 23 After 1750 the guilds tended to disappear in Spain and were replaced by montepíos. This was not a professional organisation for the protection of its members, but essentially a sort of charitable fund that received deposits and gave low-interest loans to help people in need. They first appeared in the late 16 th and early 17th centuries, but they essentially developed in the 18 th century.24 They were based on the principle of mutuality. The first ones were created by the king for public servants and professional soldiers,25 but soon there were private montepíos for the different professions. Montepíos differed from guilds in that they lacked any regulations or restrictions on the exercise of a profession. During what historians have called the ‘Spanish Revolution’ of the 18 th century,26 professional limitations were banned in an effort to encourage competition and promote economic expansion. The only aspect that was spared was social insurance for members through the principle of mutuality. This would be the state of affairs until the creation of the social security system in Spain during the first decades of the Franco Regime.27 III. Maritime and commercial insurance 1. The origins of maritime insurance in Spain a) The Mediterranean area: Barcelona’s influence The area of the history of insurance law that has drawn most interest from legal historians in Spain has been, without any doubt, maritime insurance. Maritime insurance developed in Spain very early. The oldest surviving contract dates from 1347. It covered a vessel travelling from Genoa to Mallorca.28 The first surviving insurance policy was issued in Barcelona in 1377.29 And it was ___________ 22

Rumeu (n. 14), 131. Rumeu (n. 14), 111–112. 24 Fernando Díez Rodríguez, La previsión social en la España del siglo XVIII. Realidad, reforma e historia comparada, in: Castillo and Ruzafa (n. 12), 67–100. 25 Rumeu (n. 14), 422–423. 26 Richard Herr, The Eighteenth Century Revolution in Spain (1958). 27 Antonio Rumeu de Armas, Antecedentes históricos de la Seguridad Social en España, (1968) 74 Boletín de Estudios económicos 239–310. 28 García I Sanz, Ordinacions (n. 2), 125. 29 Manzano Martos (n. 1), 2. 23

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Barcelona that saw in 1432 the first legislation on maritime insurance,30 forbidding Barcelona merchants and bankers from insuring vessels – and their contents – from Venice, Florence, Genoa, Pisa, Lucca, and Sienna.31 Maritime insurance quickly flourished in the trading ports of the Crown of Aragon, especially in Barcelona. In the Catalonian capital the rise of maritime insurance in the first years of the 15th century was extraordinary. A single notary, Bartolomé Masons, issued 380 insurance contracts for 104 vessels between July 1428 and December 1429.32 This boom explains why conflicts arose that prompted public powers to step in and regulate these types of contracts. This is why the first piece of legislation concerning maritime insurance was passed by the city magistrates of Barcelona on 12 April 1432 via an edict. It was revised in 1435, 1458, 1461, 1471, 1484, 1494, and 1513, 33 before it was included in the Consulado of Barcelona’s Book of the Sea (Llibre del Consolat de Mar) one of the most extensive maritime law codes in the Mediterranean. Barcelona’s maritime insurance regulation had a major influence on other trading centres, like Mallorca, Naples, Sicily, and Messina.34 And it remained valid in all trading places under Catalonian influence until the enactment of the first Spanish Commercial Code in 1829.35 b) The Atlantic area: Burgos, Bilbao, and Seville Beginning in the Late Middle Ages, maritime insurance also developed in Castilian cities. The flourishing maritime trade with Flanders and, after 1492, especially with the Americas led to voyages no longer by isolated vessels, but rather fleets that exceeded the Mediterranean’s organisational model. Initially, the most important city was Burgos. Here a consulado was created in 1494. It immediately generated a great number of maritime insurance operations, culminating in the 16th century36 with a pair of ordinances governing maritime insurance, issued in 1538 and 1572 respectively. These ordinances took into account

___________ 30

Peláez Albendea, La normativa (n. 2). García I Sanz, Ordinacions (n. 2), 127. 32 Tortella et al. (n. 1), 29. 33 Manuel J. Peláez Albendea Tres estudios de historia del derecho marítimo catalán en su proyección italiana (1980), 19–36. 34 The most influential of Barcelona’s Ordinances was that of 1484: Pons Pons (n. 2), 146. 35 Pons Pons (n. 2), 145. 36 Basas Fernández, El seguro marítimo (n. 3). On the origins of Burgos’s maritime insurance regulations: Coronas González, (n. 2); Aguilera-Barchet (n. 2). 31

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the maritime insurance practices followed in Italian locations,37 Flanders,38 France, England, Portugal, and Seville, but not Barcelona.39 Over the course of the 16th century Burgos stood at the regulatory forefront. This development was situated rather in an Atlantic context (Bruges) than a Mediterranean one.40 In the 17th century, however, Burgos would surrender its primacy in the North Atlantic to Bilbao, where a consulado was created in 1511. Bilbao featured commercial practices that were less rigid and showed greater respect for private initiative than those of Burgos. This made it the leading commercial centre in Spain, especially after the ordinances of the consulado of Bilbao in 1737. Beginning in 1520 the consulado of Bilbao passed special ordinances governing maritime insurance. After 1503 Seville became another vital site in the maritime insurance business in Spain. Spanish legal historians have concentrated their interest on maritime insurance in the 16th century.41 This focus is explainable with reference to the significant number of contracts existing in the Notarised Records Archive of Seville (Archivo de Protocolos). Seville had a trade monopoly through its House of Trade (Casa de Contratación). The Casa was the official institution overseeing all operations concerning colonial trade until the final years of the 18th century, when commerce with the New World territories was liberalized. 42 The monopoly guaranteed the Crown’s control over American trade, as had occurred in ___________ 37 The maritime insurance contracts initially signed in Burgos stand out for the large number of insurers of Italian origin (especially Genoese, Florentines, and Venetians). Thus, it is safe to say that Italian practices influenced the development of Burgos-based maritime insurance contracts: Santos Coronas González (n. 2), 280. 38 The maritime insurance practices followed in Burgos were also clearly influenced by the customs of Bruges, an important trading city that harboured a consulado of Burgos merchants: Coronas González (n. 2), 279. On the 1569 Ordinance of Maritime Insurance of the Spanish Nation in Bruges see Santos Coronas González, La ordenanza de seguros marítimos del consulado de la nación de España en Brujas, (1984) 54 Anuario de Historia del Derecho Español 385–407. 39 Ordinance No. 67, of the 90 Ordinances issued by the Burgos Consulado in 1538, Basas Fernández, Contribución (n. 3), 159. Along the same line: Coronas González (n. 2), 291–292. 40 Burgos was the centre of the Castilian wool trade, exporting this raw material to manufacturers in Flanders, making it Spain’s most important insurance hub in the 16th century. See Basas Fernández, El seguro marítimo (n. 3), 17. Also Hilario Casado Alonso, El mercado internacional de seguros de Burgos en el siglo XVI, (1999) 219 Boletín de la Institución Fernán González 277–306. 41 Céspedes del Castillo (n. 3), 57–102; Manuel Maestro, De los riesgos y seguros en la Carrera de Indias. Orígenes del Seguro español e iberoamericano (1991); Oscar Cruz Barney, El riesgo en el comercio hispano-indiano: préstamos y seguros marítimos durante los siglos XVI a XIX (1998). For a general overview: Antonio Miguel Bernal, La financiación de la Carrera de Indias (1492–1824). Dinero y crédito en el comercio colonial español con América (1992). 42 The Casa de Contratación operated in Seville from 1503 to 1717, when it was moved by royal order to Cádiz. Cádiz became Spain’s wealthiest harbour until the independence

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Portugal since the end of the 14th century through the Companhia das naus (a sort of insurance cooperative that provided Portuguese vessels with some coverage and bolstered the development of the Portuguese navy). 43 Seville’s regulation of maritime insurance initially relied on traditions that had been observed in Catalonia and Burgos. But soon after the foundation of Seville’s own commercial consulado in 1543,44 it developed its own practices, establishing its own regulations in 1556.45 By the end of the 18th century, Cádiz had become one of the main trading ports as far as maritime insurance was concerned.46 Trade with the American colonies became a crucial issue for Catalonian businessmen, especially after the integration of Catalonia into Castile in 1716 through the Nueva Planta Decree issued by Philip V. The Decree abolished all self-governing institutions in the Catalonian Principate.47 c) Maritime insurance in Spanish America Commercial trade with the colonies was initially regulated through the consulates of Burgos and Seville, particularly after 1543. Hence, the ordinances issued ___________ of the Spanish colonies in the 1820s. In 1765 and 1778, Charles III liberalized trade between Spain and its colonies. Thereafter, every port in Spain could organize commercial expeditions with any port in Spanish America. 43 The Companhia das naus was created in 1380 by Ferdinand I. Every Portuguese ship had to be recorded in a public registry. And the owner of each vessel had to pay a certain sum for every voyage. This applied to ships loaded in Portugal and in foreign harbours by Portuguese merchants. This money went to a fund used to compensate ship owners and merchants in the event of shipwrecks or losses. The Companhia das naus was essential to Portugal’s maritime expansion in the 15th century and was the model for the Castilian Casa de Contratación established in Seville in 1503: Céspedes del Castillo (n. 3), 65. 44 Antonio Miguel Bernal, Seguros marítimos en la Sevilla del siglo XVII: sobre la creación del oficio público de escribano de seguros y la compra del mismo por portugueses, (1993) 1 Anuario de Investigación Hespérides 43–53, 45. 45 On this aspect of the ordinances of the consulado of Seville of 16 July 1556 see María Guadalupe Carrasco González, Los seguros en el comercio marítimo español durante la Edad Moderna, in: Economía Marítima. Actas de los XIII Encuentros de Historia y Arqueología (1999), 64. 46 María Guadalupe Carrasco González, El negocio de los seguros marítimos en Cádiz a finales del siglo XVIII, (1999) 59 Hispania. Revista española de historia 269–304. 47 Traditionally, Catalonia and the rest of the ports of the Crown of Aragon were not allowed to trade directly with the Indies. This trade was reserved to Castilian merchants, until the enactment of the Nueva Planta Decree. It opened up Spanish America to Catalonian traders. On Catalonian maritime insurance and colonial trade see the classic work by Carlos Martínez Shaw, Cataluña en la Carrera de Indias. 1680–1756 (1981) and, more recently, Mario Sala, Un siglo de seguros marítimos barceloneses en el comercio con América (1770–1780) (2012).

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by the consulado of Seville in 1556 were applicable to most of the Spanish Empire.48 The expansion of Spain’s presence in the Americas led to the development of commercial consulates in Las Indias, as the region was referred to. The consulado of Mexico (universidad of Merchants) was created in 1592. In Peru the court of the consulado of Lima was founded in 1613. Nevertheless, the Official Compilation of Laws of the Indies (Recopilación de leyes de los Reynos de las Indias) of 1680 still declared the application of the maritime insurance regulations of the consulates of Seville and Burgos to be of subsidiary application. And the ordinances of the consulado of Veracruz, issued in 1795, considered the regulation of the 1737 ordinances of Bilbao to be subsidiary, too.49 By the end of the 18th century, the most thriving Spanish port for trade with the American colonies was, by far, Cádiz.50 This explains the significant number of maritime insurance contracts executed in the city. By the 1790s there were over 100 maritime insurance providers operating in Cádiz alone, though most of them would disappear during the Peninsular War (1808–1814).51 d) Public intervention in insurance law Insurance in Spain was a private matter until the 20 th century. At Spain’s different trading sites and ports there was no attempt to develop any sort of staterun insurance, as was the case in Portugal, a country whose very survival depended on maritime trade, spurring Denis, the 6th king of Portugal, to found the Portuguese Royal Navy.52 In 1293 he created the first common fund to compensate Portuguese merchants for losses and damages suffered in foreign harbours. 53 ___________ 48

Tortella et al. (n. 1), 33. Cruz Barney (n. 41), 130–131. 50 For an overview of the commercial relevance of Cádiz in the 18 th century see Antonio García Baquero, Cádiz y el Atlántico. 1717–1778 (1976); Antonio Luis López Martínez, Cádiz y el comercio entre Europa y América a finales del siglo XVIII. Una aproximación a partir de las pólizas de seguros marítimos, (2010) 47 Jahrbuch für Geschichte Lateinamerikas 213–246. 51 Jerònia Pons Pons, A history of insurance companies in Spain until 1936, in: Leonardo Curuana (ed.), Encuentro internacional sobre la Historia del Seguro (2010), 141–173, 141. 52 In 1317 he signed a contract in Genoa to organize the royal fleet under the command of Admiral Manuel Pessanha: K.M. Mathew, History of Portuguese Navigation in India (1988), 69. 53 Denis established a fund (bolsa) for mutual protection and insurance, the first of its kind documented in Europe. In 1293 the Portuguese king approved this agreement, which stipulated that all vessels of 100 tonnes or more loaded in Portugal for Flanders, England, Normandy, Brittany, or La Rochelle were to pay a tax of 20 soldos sterling. Vessels of less tonnage were charged 10 soldos. With this money a fund was to be created for the 49

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To this end merchants were to render a certain portion of their profits to provide coverage for shipwrecks and losses. 54 Also important was the policy of Ferdinand I, who undertook three important initiatives: he created a fund to help maintain ships in good condition; in 1383 he produced the first legislation on insurance to regulate Portuguese trade with harbours in Flanders, England, and France; finally, in 1380 he created the Companhia das naus, a public institution that had a monopoly on the extension of maritime insurance contracts. 55 Though insurance practice was left in private hands in Spain, commercial authorities intervened quite soon to regulate different aspects of insurance law, generally to prevent conflicts and, as we shall see below, fraudulent insurance contracts. Public intervention through insurance legislation was quite prominent in 15th-century Barcelona. In contrast, the intervention by Italian republics like Genoa and Florence was scarce. Here commercial concerns prevailed. Barcelona’s maritime insurance regulations were clearly influenced by political concerns. They were manifestly protectionist. 56 The 1492 ordinances of Mallorca declared void any clauses in maritime insurance contracts that contravened official regulations.57 At the Burgos consulado there was even an official contract imposed by the commercial authorities, and every contract was registered by its public notary.58 This formal rigidity contrasted with the freedom recognised by the consulado of Bilbao in its 1520 maritime insurance regulation. Contracts could be executed in any written form, requiring only the signatures of the insurer and two witnesses. Under Bilbao’s regulations these kinds of private documents had the same validity as public instruments validated by a notary and were directly enforceable before consulado judges.59 In Seville, prior to the enactment of the con___________ mutual protection of Portuguese merchants at the different trading ports in Northern Europe: Bailey W. Diffie and George D. Winius, Foundations of the Portuguese Empire. 1415–1580 (1977), 21–22. 54 Eduardo Vera-Cruz Pinto, Os seguros marítimos nas rotas portuguesas do ultramar: uma perspectiva histórico-jurídica (séculos XV–XVI), (1998) 39 Revista da Faculdade de Direito da Universidade de Lisboa 257–290, 265. 55 Christopher Ebert, Between Empires. Brazilian Sugar in the Early Atlantic Economy. 1550–1630 (2008), 118; Teotonio R. De Souza, Marine Insurance and IndoPortuguese Trade History: An Aid to Maritime Historiography, (1977) 14 The Indian Economic and Social History Review 377–384, 377 f.; Céspedes del Castillo (n. 3), 65. 56 Peláez Albendea (n. 33), 20–21. 57 Pons Pons (n. 2), 146. 58 Basas Fernández, Contribución (n. 3), 163; Aguilera-Barchet (n. 2), 1145–1146. 59 Chapters 5 and 9 of the Bilbao Ordinances on Maritime Insurance of 1520, in: Teófilo Guiard Larrauri, Historia del Consulado y Casa de contratación de Bilbao y del comercio de la villa (1972), 581–582.

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sulado ordinances of 1556, there was no special form required to enter into maritime insurance contracts. Contracts were entered into in fide, orally, trusting the other’s word and recording the operation directly in the insurer’s books.60 The 1556 ordinances of the consulado of Seville imposed the rigid, formal system established in Burgos with mandatory forms. 61 e) The financial dimension of maritime insurance It was possible for insurance to gain importance as a business because the ban on usury, which applied to loans, did not prohibit insurance. The same was true for bills of exchange, which became the basis for the credit system in Spain in the 14th century.62 Insurers were paid because they were vulnerable to losses, and this made profits acceptable in the Church’s view. 63 Consequently, maritime insurance became, together with bills of exchange, a financial transaction conducted by Barcelona bankers in the Late Middle Ages.64 Maritime insurance was in Barcelona so predominant that still in the 17 th and 18th centuries the term ‘maritime insurance’ (canvi maritim) was used to refer to insurance in general. 65 This is extremely significant. The essentially financial nature of maritime insurance led to many purely speculative transactions. In Seville the increase of commercial transactions with the American colonies in the first half of the 16th century produced a high number of insurance contracts for purely speculative purposes. As there were no official records of insurance policies, it became a common practice for multiple parties to insure the same shipment for its full value. Thus, in the event of a shipwreck the owner of the vessel received several times the amount due for the goods insured. This practice was so lucrative that in some cases goods were actually thrown overboard. The 1552 ordinances of the consulado of Seville sought to prevent this type of abuse. 66 The legislation required that maritime insurance contracts had to be recorded in public records, that they had to be registered by ___________ 60

This practice is called the ‘seguro de confianza’: Céspedes del Castillo (n. 3), 67. Céspedes del Castillo (n. 3), 71. 62 Bruno Aguilera-Barchet, Historia de la letra de cambio en España (1988), 410–416. 63 On this question see Bruno Aguilera-Barchet, Una pragmática de Felipe III sobre los cambios secos dada para la ciudad de Valencia. Notas acerca de la influencia de la teoría de la usura sobre el derecho histórico español, (1986–1987) 72 Revista de la Facultad de derecho de la Universidad Complutense de Madrid 39–74, 45–49. Also Coronas González (n. 4), 243–249. 64 García I Sanz and Ferrer Mallol (n. 3); Peláez Albendea, Cambios (n. 3). 65 Martínez Shaw (n. 47), 32–33. 66 Céspedes del Castillo (n. 3), 67–68 n. 34. 61

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notaries, and that they were voided if their premiums were not paid.67 The first treatise on insurance, the Tractatus de assecurationibus et sponsionibus mercatorum by Pedro de Santarém (Pedro de Santerna) (1460–1521), published in Venice in 1552,68 included a whole chapter on insurance fraud.69 2. The unique origins of life insurance In the Late Middle Ages, a peculiar form of life insurance appeared: in 15thcentury Barcelona it was common practice to insure debts by acquiring guarantees under which, in the event of the debtor’s death, the insurer would cover the sum owed. Life insurance took the form of a loan payment guarantee. Creditors took out insurance in case their debtors died before completing their payments. This practice survived until the second half of the 18 th century.70 Another form of life insurance covered the lives of slaves, extending to cases of illness, especially when they were transported.71 This kind of insurance also covered the risk of pregnant female slaves and the possibility of the child’s or mother’s death. 72 3. Insurance on slaves Slaves were undoubtedly a valuable form of property under the Crown of Aragon (which included the Principate of Catalonia and the kingdoms of Aragon, Valencia, and Mallorca; and, later, Sicily and Naples). This explains the appearance of another peculiar form of insurance in the 15 th century. The owners of a slave could seek coverage against the risk of his slave running away. The number ___________ 67

Peláez Albendea, (n. 3) (1984), 138. Pedro de Santarem’s treatise was published one year before Benvenutto Stracca, Tractatus de mercatura (1553) and prior to Stracca, De assecurationibus tractatus (1569), both of which were also published in Venice. 69 Pedro de Santarem’s treaties on insurance included the first definition of an insurance contract (‘conventio qua unus infortunium alterius in se suscipit, pretii periculi conventus’) and stated that good faith was essential to insurance contracts. This is why he asserts that only contracts that aim to cover navigation risks are valid, but not those for speculation or financial gain. The first part of the treatise is dedicated to this aspect. The second part deals with the legitimacy of aleatory contracts; the third part examines the sources and objects of insurance contracts; the fourth discusses the notion of risk; and the fifth and last part concentrates on fraud in its application to insurance contracts. See Céspedes del Castillo (n. 3), 64–65. 70 Madurell Marimón, Los antiguos seguros (n. 3), 889–1134. 71 Madurell Marimón, Los seguros (n. 3), 123–188. 72 For an example of an insurance contract taken out in 1467 by a doctor from Barcelona who wished to insure a female slave that was in her fourth month of pregnancy see Robert Sidney Smith, Life Insurance in Fifteenth-Century Barcelona, (1941) 1 The Journal of Economic History 57–59. 68

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of fugitive slaves increased so dramatically73 that the government of Catalonia, the Generalitat, in 1421 decided to require slave owners to pay a fee to create a common fund to compensate the owners of escaped slaves. 74 In Valencia this kind of insurance was established voluntarily through the creation of a private association of slave owners in 1445, who paid a fee or contribution to establish a reserve fund to compensate the owners of runaway slaves. 75 However, ultimately this form of insurance proved unsuccessful. The contributions of the slave owners to the reserve funds were insufficient to cover the costs generated by the increasing numbers of fugitive slaves, forcing the government to cover many of these losses with public revenue drawn from taxpayers. 76

C. From individual insurers to insurance companies I. The first commercial insurers: merchants, bankers, insurance brokers, and notaries For a long time the Crown’s intervention and extreme protectionism prevented Spain’s merchants from developing powerful private companies. The merchants formed small companies for single voyages, following the model of the medieval commenda or societas. This explains why insurance became essential: merchants could be financially ruined if something went wrong, as they regularly invested all their capital in a single venture.77 By the mid-15th century the insurance business in Seville had become extremely attractive for private investors. In fact, by 1550 it had become so important that Seville’s archives contain an abundance of notarial documents recording powers of attorney which investors signed in favour of merchants and insurers, authorising them to invest their money, up to a given amount, in maritime insurance. 78 As we know, maritime insurance was a ___________ 73 On the problem of fugitive slaves in Catalonia and the origin of this extremely peculiar form of insurance, see Charles Verlinden, Esclaves fugitifs et assurances en Catalogne (XIVe–XVe siècles), (1950) 62 Annales du Midi 301–328. 74 Joaquim Miret I Sans, La esclavitud en Cataluña en los últimos tiempos de la Edad Media, (1917) 41 Revue Hispanique 1–109. 75 Miguel Gual Camarena, Un seguro contra crímenes de esclavos en el siglo XV, (1953) 23 Anuario de Historia del Derecho Español 247–258. 76 Madurell Marimón, Los seguros (n. 3), 141. 77 Céspedes del Castillo (n. 3), 60–61. The 1556 ordinances of the consulado of Seville still indicated that without an insurance contract an individual merchant was not to trade with the American colonies. See Clarence Henry Haring, Comercio y navegación entre España y las Indias en la época de los Habsburgos (1939), 427. (Spanish translation of his 1918 work: Trade and Navigation between Spain and the Indies. In the Time of the Hapsburgs). 78 Céspedes del Castillo (n. 3), 62.

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highly profitable investment at a time when interest-bearing loans were still openly prohibited, due to the ban on usury. Who were the first insurers? Essentially, they were bankers issuing bills of exchange (who were called changers, cambistas, or canviadors) as well as wealthy merchants. In common practice different insurers were needed to cover risks. Hence, merchants looking to insure their commercial transactions depended on professional insurance brokers. Normally they acted as intermediaries for the contracting of bills of exchange.79 The insurance broker profession became so lucrative that foreign investors were actually interested in buying positions. In the 17th century it became a common practice for Portuguese merchants and bankers to invest their money in insurance broker positions in Seville.80 Portuguese bankers and merchants were also very much involved in the maritime insurance business in Burgos in the 16th century.81 Another important figure in the development of insurance law was that of the notary. Notaries greatly influenced the shaping of insurance contracts. They were also essential to the development of bills of exchange – instruments that were, as noted, originally closely linked to insurance contracts. 82 Besides playing an essential role in the drafting of insurance contracts, they were very much involved in the development of royal statutes concerning commercial law, as of the last third of the 14th century under the Crown of Aragon.83 The influence and impact of notaries declined, however, in the 17th century. Though the number of insurance contracts rose, Spanish ordinances only required the involvement of a broker for their execution, a practice that began in Seville and then spread along with the substantial increase in the number of commercial operations related to trade with the American colonies.84

___________ 79 Bruno Aguilera-Barchet, Un protesto castellano del siglo XV, (1987–1988) 73 Revista de la Facultad de Derecho de la Universidad Complutense 433–452, 441. 80 To the point that Portuguese insurance brokers almost ended up controlling the maritime insurance business in 17th-century Seville, Bernal (n. 41), 52. 81 Hilario Casado Alonso, Los seguros marítimos de Burgos. Observatorio del comercio internacional portugués en el siglo XVI, (2003) III/4 Revista da Faculdade de Letras. Historia 213–242. 82 On this crucial aspect of notaries’ involvement in the development of commercial law see Bruno Aguilera-Barchet, Los notarios y la configuración histórica del intituto cambiario en España, in: Homenaje a Juan Berchmans Vallet de Goytisolo, vol. 4 (1988), 7–97, 11–24. 83 García I Sanz, Estudios (n. 2), 229–230. 84 See Manuel Ravina Martín, Participación extranjera en el comercio indiano: el seguro marítimo a fines del siglo XVII, (1983) 172 Revista de Indias 481–513.

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II. The origins of insurance companies in Spain (16th and 17th centuries) Initially, insurer was not a profession in itself. People whose main professions were in trade, banking, or the artisanal industries may also have been active as insurers. It was the norm that numerous insurers underwrote a single insurance contract in order to distribute the risk. Underwriters may have acted for themselves or as representatives of trading companies. Initially, companies specializing in insurance, like the one established in Barcelona in 1500, were the exception.85 Over the course of the 16th century the insurance market in Spain remained in the hands of individual insurers. It would not be until the 17th century that mercantile companies specializing in insurance began to develop. In the first half of the 1600s the first companies appeared in Barcelona and Mallorca, and the practice became more widespread during the second half of that century in Mallorca.86 These were not isolated cases. After the mid-17th century the organization of maritime insurance in Spain changed substantially. Individual insurers were progressively replaced by companies. At first, these companies were not organized as joint stock companies, but as partnerships: individual insurers had simply merged together. This resulted in significant changes. Intermediaries (insurance brokers) between insurers and the insured disappeared. Furthermore, the amounts that could be insured increased substantially. And finally, insurance became a professional business, distinct from other financial practices. These first 17th-century partnerships shared some common features: there was no capital stock, and their liability was unlimited. The insurer normally acted through two executive officers: the underwriter and the treasurer. The insurance contracts from this period, however, retained some features from medieval times. There were some curious customs, such as the practice of discounting a percentage of the premium for paying for masses at the local church to ensure divine protection for the business. A religious element was also prominent in the fact that the names of the first insurance companies always included a reference to a saint as the business’s patron.

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García I Sanz and Ferrer Mallol (n. 3), 166. Jerònia Pons Pons presents a very precise chronology of the development of professional insurance companies, known as security funds (caixes de seguretat). The first reference dates from 1645, but this kind of institution became widespread after 1650, first among Jews on Mallorca (chuetas), from 1650–1670, and, after the Inquisition moved against them, by Old Christians (cristianos viejos). After 1693 most insurance contracts on Mallorca were entered into with insurance companies: Pons Pons (n. 3), 275 f. 86

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III. The first stock companies (18th century) The first bona fide insurance companies in Spain appeared in the 18th century. A progressive liberalization of maritime trade with America was decisive in this development following decrees in 1765 and 1778. These stock companies appeared in the main Spanish ports, mainly in Cádiz (which prior to 1765 was the nerve centre of Spanish trade with colonies) and Barcelona (which after the abolition of the Catalonian Public Law in 1716 became very much involved in transatlantic trade). These first stock companies invited people to invest their money, in exchange granting them shares entitling them to receive a portion of profits. In Cuba the first insurance company was created in 1795 and was essentially dedicated to maritime insurance, while Mexico’s first insurance company, also for maritime insurance, was founded in Veracruz in 1789.87 With regards to liability it is important to note that shareholders did not enjoy limited liability until the second half of the 18th century.88 The limitation of liability made possible the expansion of stock-based insurance companies by the end of the 18th century. During the 1790s in Cádiz, over 100 maritime insurers were operating.89 IV. The development of limited liability insurance companies in 19th-century Spain 1. A time of continuity (1800–1829) In the early 1800s, legislation restricted the foundation of limited liability companies. This prevented the development of large insurance companies prior to 1829. There were again individual insurers following the traditional practice of many insurers (underwriters) for single policies. New mutual societies were also founded in the 19th century. They had been, as we have seen, common under the Ancien Régime in what we today call social insurance. They did not require a large amount of capital, and constituting them was simple as far as the legal requirements were concerned. The first of these 19 th-century mutual societies was created in Madrid in 1822. It specialized in fire insurance. In the 1830s mutual fire insurance societies popped up all across Spain.90 ___________ 87

Cruz Barney (n. 41), 131. María Jesús Matilla, Los comienzos de la Compañía mercantil por acciones en Barcelona (1770–80), in: Primer Congrès d’Història Moderna de Catalunya (1984), 737– 746, 742; García Baquero (n. 50), 420–425. 89 Carrasco González (n. 46), 269–304. 90 With companies appearing in Seville (1832), Barcelona (1836), and Málaga (1840). See Pons Pons (n. 51), 147. 88

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2. The first deregulation and the expansion of limited liability companies (1829–1848) The situation changed with the introduction of the Spanish Commercial Code of 1829, the only liberal measure adopted by the absolutist government of Fernando VII, who approved it in an effort to compensate for the economic loss of the Spanish-American colonies by fostering trade and economic activity. This explains why the first Spanish commercial code permitted the creation of joint stock companies without administrative authorization by the state. Its success, however, was limited. Despite the disappearance of legal restrictions on the constitution of limited liability companies, only 17 companies were formed between 1836 and 1848: eleven in Madrid, three in Barcelona, two in Malaga, and one in Bilbao. They followed the model of 18th-century companies, though they modernized certain aspects. They engaged primarily in maritime insurance, but also in new types of insurance like agricultural insurance and an insurance taken out by parents in order to ensure that their children would be exempt from the military draft: the seguro de quintas.91 The companies during this period that dealt with insurance contracts were not specialized in insurance. They were financial institutions in the Spanish tradition which engaged in both the insurance with banking business. 3. Regulation comes back (1848–1869) In 1848 the conservative wing of the Liberal Party was in power, led by General Narvaez (1800–1868). His aim was to consolidate a strong and unified Spanish state with a centralized public administration. Consequently, he reintroduced restrictive legislation on insurance companies. Foremost, the creation of limited liability companies required government permission. As a result, only one-third of the existing companies survived.92 Administrative restrictions pushed the insurance business back to where it was prior to the creation of limited liability insurance companies, and insurance was again placed in the hands of traditional mutual societies, which developed the

___________ 91 This insurance was offered by mutual societies, financially backed by leading military, financial, or political figures. On it see Nuria Sales, Servei militar i societat a l’Espanya del segle XIX, (1970) 1 Recerques: Història, economia i cultura 145–181. 92 Esperanza Frax and María Jesús Matilla, Los seguros en España 1830–1934, (1996) 2/14 Revista de Historia Económica, Journal of Iberian and Latin American Economic History 183–203, 187.

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tontine model,93 with partnerships and groups of underwriters94 following the English model pioneered by Lloyd’s of London.95 The legal obstacles to the constitution of limited liability companies meant that in 1860 there were only 13 limited liability companies operating in the insurance sector in Spain, and they were usually specialized. This was also the case with the most famous one: the Catalonian fire insurance company Sociedad catalana de seguros contra incendios a prima fija, best known as La Catalana. Until 1939 it was solely engaged in fire insurance. Created in 1864, it initially operated only in Catalonia, but by 1876 it had expanded to Valencia, Navarre, and Castile.96 4. A new deregulation period (1869–1908) a) The impact on Spanish insurance companies The economic crisis from which Spain suffered in 1866 was one of the main causes leading to the September 1868 Revolution in which Isabella II was deposed. In addition to the regeneration and democratization of the political regime, one of the primary objectives of the new government led by General Juan Prim (1814–1870) was to overcome the economic crisis by deregulating the Spanish economy. From this perspective a crucial measure was the decree of 28 October

___________ 93 The years 1857–1862 have been considered the ‘golden age of tontines’ in Spain. The crisis of Spanish public debt in the period between 1863 and 1866 then brought about the bankruptcy of tontine societies: Ángel Bahamonde Magro, El horizonte económico de la burguesía isabelina: Madrid 1856–1866 (1981), 138–171. 94 These groups of underwriters were made up of ship owners, merchants, and private businessmen of unquestionable solvency. Each member signed the insurance contract on his own behalf without any kind of joint liability. They were coordinated by a lead underwriter who managed the operation. Insurance contracts were often signed by more than 100 insurers. They were individually liable for their portion and entitled to profits in the same amount: Pons Pons (n. 51), 146. 95 To the point that they frequently adopted the same name: Lloyd’s vascongado (1848), Lloyds gaditano (1850), Lloyds malagueño (1851), Lloyd’s español (1860), Lloyd’s bilbaíno (1861) and Lloyd’s andaluz (1864). This collective insurer model did not require any capital for participation in the insurance business and was exempt from the legal requirements imposed by Spanish legislation on limited liability companies: Amedeo Lepore, Commercio e assizurazioni a Cadice tra etá moderna e contemporanea, (2008) 120 Rivista storica italiana 272–293. 96 ‘La Catalana’ was initially a family business. Founded by the Catalonian businessman Fernando de Delàs y de Gelpí, it originally increased its business by insuring some of the region’s most important public buildings. For 10 years the company’s management was linked to the Delàs family.

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1868, which liberalized the creation of limited liability companies by Spanish and foreign investors. This decree was needed as in 1868 only two insurance companies had survived the financial turmoil of 1866: one from Madrid (La Unión y El Fénix) and another from Barcelona (La Catalana). The newly founded insurance companies specialized in maritime insurance (El seguro mallorquín in 1871) or fire insurance (La Balear in 1876 and Seville’s Previsión española). Financially, they were not very solid and thus very few survived. In 1884 only 11 limited liability insurance companies remained in business. 97 Because of their financial fragility, very few Spanish companies dealt in life insurance during that period.98 Only three of the Spanish companies would make it into the 20 th century: La Unión y El Fénix, the Banco Vitalicio, and La Catalana. b) The arrival of multinational companies (1869–1908) The decree of 1868 initiated a revolution in the insurance business by opening the market to multinational companies. A group of French, British, and U.S. multinationals began doing business in Madrid, Malaga, and Barcelona in 1870. By 1884, 20 foreign insurance companies were doing business in Spain. They were mainly French (13), some were British, and a few were American. The latter became very strong in life insurance. 99 In the mid-1880s foreign insurance companies outnumbered Spanish insurance companies and dominated in life, accident, and maritime insurance.100 It was only the fire insurance sector which remained dominated by Spanish insurers. Spanish insurers held over 63% of the market. It was a market traditionally dominated by mutual companies and some limited liability companies. Further, it required smaller reserves and less actuarial know-how.101 The Spanish insurance market was attractive to foreign investors because it was not overregulated, there were limited requirements with regards to capital, ___________ 97 This fragility was due to the fact that they lacked sufficient capital, their financial investments were highly speculative, and, above all, they distributed high dividends. For an example of the insolvency experienced by maritime insurance companies in Barcelona during the 1857 crisis see Josep Fontana Lázaro, La vieja bolsa de Barcelona 1851–1914 (1961), 20–25. 98 In the 1880s there were only three: La Unión y El Fenix in Madrid and La Previsión and the Banco Vitalicio from Catalonia: Pons Pons (n. 51), 151. 99 Jeronia Pons Pons, Large Corporations in the Spanish American Life Insurance Market in Spain 1880–1922, (2005) 34 Journal of European Economic History 467–481. 100 Jerònia Pons Pons, Multinational Enterprises and Institutional Regulation in the Life Insurance Market in Spain 1884–1935, (2008) 82 Business History Review 87–114. 101 Pons Pons (n. 51), 158.

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deposits, and reserves, and there was little domestic initiative. Things changed, however, when in 1893 the Spanish government approved legislation that imposed higher taxes on foreign insurance companies and obliged them to keep part of their reserves in Spain, following the example of other countries like Switzerland, Austria-Hungary, Prussia, and Russia. Regulation would become even more important after the Insurance Act of 1908.102 Although the conditions were tougher, most of the insurance multinationals would remain in Spain until 1914.

___________ 102 Esperanza Frax Rosales and María Jesús Matilla Quiza, Centenario de la Ley de Seguros de 1908. I. La legislación sobre el sector asegurador en España. 1908–1935, (2008) 133–134 Revista española de seguros 85–114.

Chapter 5: Belgium A. Non-marine insurance ............................................................................................ 89 by Dirk Heirbaut I. Mutual assistance .............................................................................................. 91 1. The older mechanisms of mutual assistance................................................. 91 2. Mutual assistance within the craft guilds ..................................................... 94 II. Offshoots of marine insurance ........................................................................ 101 1. Insurance covering transport over land ...................................................... 101 2. Life insurance............................................................................................. 101 3. Fire insurance ............................................................................................. 106 4. Other types of insurance............................................................................. 108 III. Non-marine insurance in Belgium: a conclusion ............................................ 109 B. Marine insurance .................................................................................................. 110 by Dave De ruysscher I. General average, risk allocation, and the dispersal of premium insurance (14th to early 16th century)................................................ 113 II. Dispersal, standardization, and professionalization (16th to 18th centuries) ..... 118 III. Codification of marine insurance and standardization of practice (1795 to c. 1850) .................................................. 127 IV. Marine insurance in Belgium: a conclusion .................................................... 132

A. Non-marine insurance By Dirk Heirbaut* Whereas the history of marine insurance in Belgium/the Southern Netherlands has been well studied, non-marine insurance is a different matter. Historians have researched several aspects, but they never brought all these together to come to a general history of insurance. Sometimes companies commissioned a work on

___________ * The author would like to thank Gerard Sinnaeve, Matthias Van der Haegen, and Amélie Verfaillie for their remarks.

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their own history. Examples are AG (Fortis),1 ASLK,2 Securitas,3 Les Propriétaires réunis4 and P & V.5 Some of these works are of a high quality, and their authors enjoyed the advantage of a unique access to a company’s archives, which, however, also means that they did not enjoy complete freedom6 and that their names may not even be mentioned. Another problem is that these books do not cover insurance on land in Belgium before the second half of the 18th century.7 Insurance lawyers in their handbooks and in a small book on insurance history8 may pay more attention to insurance before 1800, but their references are mostly to events in other countries. 9 It is not always clear whether these authors are aware that Belgium did not necessarily follow trends in other countries. Thus, some authors even find forms of insurance which did not exist in the Southern Netherlands, e.g. dowry insurance by the mounts of piety,10 thereby forgetting that, in the Southern Netherlands, the latter were very different from their Italian counterparts.11 In addition, Belgian authors have been unaware of foreign literature, which expressly dealt with their country, like Ernst Holthöfer’s remarks on 19th century Belgian legislation on insurance. 12 Charles Trenerry awarded a central role in his Origin and early history of insurance to insurance in Belgium during the High Middle Ages.13 In his opinion, there was already a well-developed system of insurance in Belgium at a very early date, which also influenced England.14 Although Trenerry saw Belgium as a cradle of early insurance, Belgian historians and lawyers did not notice his research. Finally, whether ___________ 1 René Brion and Jean-Louis Moreau, Van AG tot Fortis. 175 jaar verzekering in België (1999). 2 Gedenkboek 1865–1965 van de Algemene Spaar- en Lijfrentekas van België (1965). 3 Juul Hannes, Securitas: honderdvijftigste verjaardag, 1819–1969 (1969). 4 P.R. 150 ans d’assurances. 1821–1971 (1971). 5 Luc Peiren, Eric Geerkens, Anne Vincent and Hubert Van Humbeeck, Honderd jaar P & V. 1907–2007. Het unieke verhaal van een coöperatieve verzekeringsmaatschappij (2007). 6 Brion and Moreau made a profession out of it, as they wrote several books on companies belonging to the same network as AG (see n. 1). 7 E.g. Brion and Moreau (n. 1), 12–13. 8 Jan Van de Ryck, De geschiedenis van het verzekeren (1978), a book which can only be useful for a very ignorant reader. 9 E.g. Luc Schuermans and Caroline Van Schoubroeck, Grondslagen van het Belgische verzekeringsrecht (2015), 3–9; Marcel Fontaine, Verzekeringsrecht (2011), 29–33. 10 Félix Monette, Albert De Villé and Robert André, Traité des assurances terrestres, vol. 1/1 (1949), 27. 11 Paul Soetaert, De Bergen van Barmhartigheid in de Spaanse, de Oostenrijkse en de Franse Nederlanden (1618–1795) (1986). 12 Ernst Holthöfer, Handelsrecht: Belgien, in: Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol. 3/3 (1986), 3276– 3395, 3324–3326. 13 Charles Trenerry, The origin and early history of insurance (1926), 243–278. 14 Trenerry (n. 13), 1–2, 244.

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Belgian or foreign, specialists are unaware of some documents which shed a new light on the history of fire insurance in Europe, not just in Belgium. 15 As many issues still remain unexplored, this article can only be a first foray into a largely uncharted territory, and it will pay more attention to the pre-1800 period, which has been the most neglected.16 I. Mutual assistance 1. The older mechanisms of mutual assistance What is now Belgium used to be the heartland of the Carolingian Empire. In 779 Charlemagne issued the capitulary of Herstal. One of its regulations dealt with the oath, a key concept of his government.17 Charlemagne wanted to reserve the oath for obligations towards him or the church. Therefore, he forbade the formation of guilds by oaths, but he did not object to his subjects forming unions for assistance in the event of fire or a shipwreck.18 As more details are lacking, we cannot know who the members of these guilds were and what their rights and obligations consisted of,19 but some kind of mutual insurance was present. A few charters from the 12th century offer more details, but by then so much time had passed that one cannot say to what extent they remained faithful to older practices. An 1188 charter by Philip of Alsace, Count of Flanders, for the burgesses of Aire,20 confirms the law granted to their ‘Friendship’, i.e. their commune, by his predecessors Count Robert II and Countess Clemence around 1100.21 This charter is somewhat of an anomaly, as Philip did not like autonomous cities and had curtailed their power. Looking at the obligations of the commune’s members, one also has the impression that the form of insurance they mention had become outdated. The citizens of the commune had to help one another like brothers. When someone’s house burnt down or he was imprisoned, ___________ 15

See below, 106–109. See, however, Philippe Godding, Le droit privé dans les Pays-Bas méridionaux du 12e au 18e siècle (1987), 492–495 with the usual sharp insights of the author. 17 Owen Phelan, The formation of Christian Europe. The Carolingians, baptism and the imperium christianum (2014), 32. 18 Alfred Boretius (ed.), Capitularia regum francorum (1883), no. 20, 46–51, c. 16. 19 Hans-Werner Goetz, Social and military institutions, in: Rosamond McKitterick (ed.), The New Cambridge Medieval History, vol. 2 (1995), 451–480, 477–478. 20 On Aire, see Paul Bertin, Aire-sur-la-Lys des origines au XVIme siècle. Une commune flamande-artésienne (1946). 21 Thérèse de Hemptine, Adriaan Verhulst and Lieve De Mey, De oorkonden der graven van Vlaanderen (juli 1128–september 1191), vol. 2/3 (2009), no. 740, 308–311 (DiBe ID 5552; the DiBe ID refers to the number of this charter in the online database of Belgian charters up to 1250, to be found at: www.diplomata-belgica.be). 16

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every member of the commune had to give the impoverished friend one penny. To help to put this into perspective, Philip had introduced in Flanders 60 pounds fines and one pound was 240 pennies.22 The case of imprisonment also appears in the charter of the count of Hainaut for the fraternity of the Lower Hall of Valenciennes,23 though not in the charter itself, but in additional articles added in the early 12th century.24 They make clear that the members of the fraternity only paid for someone whose goods or person had been taken without any fault of his own. This allows us to interpret the reference to imprisonment in the Aire charter. The Aire charter did not provide for hostages taken in battle, but addressed a problem of collective liability.25 If a burgess from Aire had not fulfilled his obligations in another city, any other member of the commune who went there could be arrested and held until the payment of the debt. In this case, the members of the commune showed their solidarity towards one of their own, who would not have been imprisoned had he not been a member of the commune. Trenerry refers to the Aire and Valenciennes charters, 26 but he did not truly understand that the forms of insurance they mention very soon thereafter disappeared from the cities in the Southern Netherlands.27 Mutual assistance in case of damage by fire survived a little longer in the Flemish countryside, together with livestock ‘insurance’. Both its tenacity in the countryside and the link with damage to animals indicate that they were relics from the past, rather than pioneers of a new future. Trenerry offers an overview of 13th and early 14th century documents referring to fire insurance.28 However, he did not wonder why they only concern the countryside and only the western part of Flanders. 13th century Flanders was home to the biggest concentration of large cities north of the Alps. This meant a lot of fire hazards and, yet, fire insurance did not exist here, as the Flemish cities relied on preventive measures. 29 In the countryside of Western Flanders the problem was not fire as such, but arson. ___________ 22 Raoul Van Caenegem, Geschiedenis van het strafrecht in Vlaanderen van de XIe tot de XIVe eeuw (1954), 216–219. 23 Henri Caffiaux, La charte de la halle basse à Valenciennes, in: Coutumes du pays et du comté de Hainaut, vol. 3 (1878), 311–325, 315–325 (DiBe ID 9977). 24 Henri Caffiaux, Mémoire sur la charte de la frairie de la halle basse de Valenciennes (XIe et XIIe siècles) (1877), 1–41, 23; Henri Platelle, Histoire de Valenciennes (1984), 25–28. 25 Cf. Godding (n. 16), 492. 26 Trenerry (n. 13), 252-253. 27 Even charters shortly after 1188 no longer refer to this mutual assistance: e.g. Louis Gilliodts-Van Severen, Coutumes des petites villes et seigneuries enclavées, vol. 1 (1890), no. 2, 534–526 (DiBe ID 8071). 28 Trenerry (n. 13), 253–256. In my analysis of Trenerry’s work, I will leave aside minor details such as his errors in dating charters. 29 See e.g. Albert Janssens, Over brand, blussen en brandpreventie in Brugge tijdens de laatbourgondische tijd (1450–1500) (2010), 219–238.

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That part of Flanders seems to have been crime-ridden, though one must see this in context. Reports of crime in high medieval Flanders do not reflect a growing crime rate, but rather a growing intolerance of crime.30 By 1164, the already mentioned count Philip had brought unheard peace to his lands. 31 A tough nut to crack had been Western Flanders, where his father even had to establish special courts of so-called coratores (lords of the charter) in the castellanies of Veurne, Bourbourg, and Bergues Saint-Winoc.32 By 1240, the situation had become normal and Philip’s successors could declare that henceforth the aldermen of the castellany would also serve as coratores.33 Arson during the night remained a problem. The 1240 charter for Veurne declared that if the arsonist could be found, the damage would be paid from his goods. If not, the whole village had to indemnify the victim.34 The rationale behind this was mutual assistance, but it had been twisted into an incentive for the community to betray the arsonist. This could have developed into a kind of premium insurance as events one year later show. In return for contributing in proportion to its possessions, the Saint Nicolas abbey of Veurne acquired a right to claim the same compensation as lay victims for fires which had ‘secretly’ happened.35 Already one generation later, this mutual assistance was no longer attractive to abbeys. At Hazebrouck, also in Western Flanders, the 1327 law of a meeting of local benches of aldermen still made the whole village pay for fire from outside. 36 A preparatory document explains that mutual assistance was only a remedy after it had become clear that the arsonist could not be identified.37 Even more interesting is a 1277 privilege for the abbey of Meesen that it no longer had to contribute to compensation for damage by fire ___________ 30 See for an example Paulo Charruadas, Principauté territoriale, reliques et Paix de Dieux. Le comté de Flandre et l’abbaye de Lobbes à travers les Miracula S. Ursmari in itinere per Flandriam facta (vers 1060), 2007 Revue du Nord, 703–728. 31 Lambert of Wattrelos, Annales Cameracenses (ed. Georg Pertz), in: Monumenta Germaniae Historica, vol. 16 (1859), 509–555, 536. 32 Anton Koch, De rechterlijke organisatie van het graafschap Vlaanderen tot in de 13e eeuw (1952), 87–94. 33 Mina Martens, Recueil de textes d’histoire urbaine belge des origines au milieu du XIIIe siècle, in: Elenchus fontium historiae urbanae, vol. 1 (1967), 279–404, no. 65, 397– 404 (DiBe ID 21440). 34 See n. 33. 35 Ferdinand Van de Putte and Charles Carton, Chronicon et cartularium abbatiae Sancti Nicolaï Furnensis (1849), 97–99 (DiBe ID 21728) and 195 (DiBe ID 21736); confirmed in 1277 ibid., 106–109. 36 Paul Verbraeken, De Hoop van Hazebroek, 1327. Kritische uitgave en commentaar, vol. 2 (unpublished licentiate thesis 1978), § 55, 36; Edmond de Coussemaker, Sources du droit public et coutumier de la Flandre maritime, Annales du Comité flamand de France 1873, 183–290, no. 4, § 55, 262–263. 37 Verbraeken (n. 36), vol. 2, Annex 1, § 1, 48; De Coussemaker (n. 36), no. 3, § 1, 234–235.

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in the Hazebrouck area.38 Not surprisingly, after the 14th century this fire insurance disappeared.39 The same also happened with the crime of ‘hamelinghe’, the mutilation of someone’s animals.40 In 1292 the aldermen of Furnes castellany declared that it had been an old custom that everyone would have to contribute to the owner’s compensation. However, in 1292 the local population no longer seems to have been satisfied with this rule.41 Once again, this kind of insurance disappeared. Hamelinghe remained a crime, but only the criminals themselves had to pay for the damage they caused.42 In short, the fire insurance and livestock insurance mentioned by Trenerry were evolutionary dead-ends, not progenitors of modern insurance. Trenerry also erred in finding non-mutual insurance in the Low Countries. Some great lords and ladies took merchants and their goods under their protection in return for paying certain taxes. Trenerry interpreted their obligation to render justice as an insurance; the persons under protection would be indemnified for their losses.43 However, the texts only say that the lords or ladies concerned would see justice done.44 They promised only that they would make others pay. There was no further obligation if they failed to do so.45 In that case the risk still remained with the other party. 2. Mutual assistance within the craft guilds Mutual assistance in the Southern Low Countries was very important within the craft guilds, but Belgian jurists do not refer to it, whereas historians have not thought of bringing their research to the jurists’ attention. Research into the his-

___________ 38 Ignace de Coussemaker, Documents inédits relatifs à la ville de Bailleul en Flandre, vol. 1 (1877), 20. 39 Verbraeken (n. 36), vol. 1, 120. 40 On this word, see Victor Gaillard, Hamelinghe, Verslagen en mededelingen van de Koninklijke Vlaamse Academie voor Taal- en Letterkunde (1911), 726. 41 Van de Putte and Carton (n. 35), 195–196. 42 See, e.g., de Coussemaker (n. 38), vol. 3, no. 35, 57. See already in the 13th century, Louis Gilliodts-Van Severen, Coutumes des petites villes et seigneuries enclavées, vol. 3 (1891), no. 11, 56–59, art. 24. 43 Trenerry (n. 13), 261-263. 44 In one 1228 charter even within three days (Leopold August Warnkönig and Albert Gheldolf, Histoire de la Flandre et de ses institutions civiles et politiques, jusqu’à l’année 1305, vol. 5 (1864), no. 21, 347–351 (DiBe ID 18278)), which merchants will have appreciated. 45 Cf. Konstantin Höhlbaum, Hansisches Urkundenbuch, vol. 1 (1874), no. 282, 285– 286 (DiBe ID 24070).

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tory of craft guilds in Belgium was important in the early 20th century, but revived only in the 1990s.46 The renaissance of craft guild studies has, so far, not led to great new studies on their mutual assistance. 47 Some articles are excellent, but they are too short to go beyond the basics. Apart from older individual case studies, e.g. for Brussels by Guillaume Des Marez (1870–1931),48 the main literature consists of a student’s thesis (albeit a very good one) on solidarity within some 18th century craft guilds49 and a more general book by Emiel Huys from 1926.50 The latter is not just outdated, but also partisan. Huys has naive ideas of the craft guilds as paragons of Catholic charity, which his book reflects (for example on p. 63: ‘Let us cheer the craft guilds’). One can only hope that someone will pick up this subject in earnest. Offering a general survey of mutual assistance within the craft guilds is not easy. Every guild had its own regulations, which also evolved over time, making it impossible to offer a full picture of the historical complexity. 51 The following pages can only hope to offer a broad overview of some general tendencies. A specific problem is that research, so far, has been mainly on Flanders and Brabant. This means that the important principality of Liège is left out of the picture. Liège, a clerical principality, did not take part in the unification of the Low Countries under the dukes of Burgundy and the Habsburgs. It was held directly from the Holy Roman Empire, and the craft guilds of the city of Liège played an important role in its administration. A comparative analysis of their mechanisms for mutual assistance would be interesting, as it may reveal other patterns than in Flanders and Brabant.52 A key element of the guilds’ system of social security was its exclusivity. The guilds did not practice charity. They looked after a ‘targeted public’ and only helped their own members and relatives and left others out in the cold. 53 Only ___________ 46 Catharina Lis and Hugo Soly, Voorwoord, in: idem (eds.), Werelden van verschil. Ambachtsgilden in de Lage Landen (1997), 7–9, 7. 47 Cf. Harald Deceulaer, Pluriforme patronen en een verschillende snit. Sociaaleconomische, institutionele en culturele transformaties in de kledingsector in Antwerpen, Brussel en Gent, ca. 1585 – ca. 1800 (2001), 364. 48 Guillaume Des Marez, L’organisation du travail à Bruxelles au XVe siècle (1904). 49 Cilia Willem, Ambachtelijke zekerheid. Sociale voorzieningen bij negen ambachten in het achttiende-eeuwse Gent (unpublished licentiate thesis 1995). 50 Emiel Huys, Duizend jaar mutualiteit bij de Vlaamsche gilden (1926). 51 Catharina Lis and Hugo Soly, Ambachtsgilden in vergelijkend perspectief: de Noordelijke en de Zuidelijke Nederlanden, 15de–18de eeuw, in: idem (n. 46), 11–42, 11. 52 On the Liège craft guilds, see Emilie Toussaint, Métiers, in: Sébastien Dubois et al. (eds.), Les institutions publiques de la principauté de Liège (980–1794), vol. 2 (2012), 846–867. 53 Jelle Haemers and Wouter Ryckbosch, A targeted public: public services in fifteenthcentury Ghent and Bruges, 2010 Stadsgeschiedenis 203–225, 220–221.

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those who had contributed profited from the guild’s mutual assistance. To avoid free riders, regulations could stipulate that assistance only became possible after a waiting period.54 Guild members who did not pay their membership dues could not call upon mutual assistance,55 or were even banned from the profession. 56 In short, a guild member could count on his peers if he had already shown himself to be deserving of their help. Guild solidarity did not just want to protect the members against risks of disease, old age, and poverty, but also to keep a distance between guild members who had fallen upon hard times and the lower classes. Thanks to guild solidarity an impoverished member of the middle class was still better off than the truly poor. This was even more appreciated from the end of the Middle Ages when poverty became more important as a social problem. Guild assistance helped the ‘shamefaced poor’57 guild members to still keep their heads high, and it protected the social standing of their guild in general.58 Therefore, accepting the guild’s help barred guild members from engaging in activities which would have demeaned them and their guild, like begging, accepting alms from poor relief, or any other form of scandalous behaviour.59 Whereas the guilds wanted to draw a sharp line between their members and outsiders, there was a tendency to avoid this within the guild. Guild members who reproached a colleague for accepting guild help could be fined.60 In some guilds, recipients of payments remained anonymous, so that it would be impossible to know who was actually calling in the guild’s help.61 Other guilds paid all members who could no longer work, even those who were rich enough that they could easily do without guild assistance.62 In these guilds mutual assistance was not meant for poor relief, but rather as a pension and disabilities fund.63 Thus, guild members could show a common front towards the outside world, which helped to strengthen their shared identity as guild members.64 ___________ 54 Hadewych Masure, ‘Eerlycke huisarmen’ of ‘ledichgangers’? Amrenzorg en gemeenschapsvorming in Brussel, 1300–1640, 2012 Stadsgeschiedenis 1–21, 8. 55 Des Marez (n. 48), 449. 56 Deceulaer (n. 47), 367. 57 On this and other terms to distinguish the ‘deserving’ poor from others, see Katherine Lynch, Individuals, families and communities in Europe, 1200–1800. The urban foundations of Western society (2003), 104–105. 58 Cf. Masure (n. 54), 8–9. 59 Huys (n. 50), 61; Deceulaer (n. 47), 367. 60 Des Marez (n. 48), 446. 61 Willem (n. 49), 90. 62 Cf. Masure (n. 54), 8. 63 Willem (n. 49), 150. 64 Which was, of course, strengthened if the guild had its own hospices and chapels (cf. Thibault Jacobs, Des hôpitaux de métiers à Bruxelles? Nouvelles perspectives sur la

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Mutual assistance within the guild could take two forms: the guild hospice on the one hand, and material and financial support on the other. Rich and/or big guilds could afford to establish their retirement homes. The first of the guild hospices appears already in the first half of the 13th century.65 They provided retired guild members with housing, care, clothes, meals, and other services.66 Although the guests of the guild hospices were called ‘poor’, one should not take this at face value. First of all, the hospices accepted only masters, and entrance required handing over all one’s possessions to the hospice67 or other payments.68 In return, the benefits the guests received thereafter put them in a relatively comfortable position.69 Given the waiting lists for entering the hospices, the latter could turn away persons who could not offer them enough. Though there were always a few persons who beat the odds and remained in the hospice for decades, most of its guests survived only a few years. Thus, the guild hospice was a retirement home for masters who gambled that they would survive long enough to make their initial investment worth the trouble. Remarkable is that the guild hospices accepted only men. Their wives and children could not join them. However, in that case the new guest’s property would not completely go to the hospice, as his wife and children would receive a share.70 Guilds could also support their members by providing for monetary and material help. Originally the guild coffers themselves funded guild solidarity. However, this posed a problem for local authorities in the 13th and 14th centuries when craft guilds broke through. The guild coffers could easily serve as a ‘strike fund’, financing political and social unrest. Therefore, official recognition of the craft guilds seems to have gone hand in hand with a growing control by local authorities.71 The next step was a separate box for mutual assistance within the guild with its own administrators, finances, and regulations. By the 16th century this separation of the assistance box from the guilds’ finances had become well established,72 though some guilds would still not have a specialized administration for guild solidarity in the 18th century.73 The separate boxes were not necessarily ___________ charité et la bienfaisance en milieu urbain à la fin du Moyen Age, 2013 Revue belge de philologie et d’histoire 215–255). 65 Carlos Wyffels, De oorsprong der ambachten in Vlaanderen en Brabant (1951), 133. 66 E.g. Willem (n. 49), 58. 67 E.g. Willem (n. 49), 87. 68 A.M. De Vocht, Het Gentse antwoord op de armoede: de sociale instellingen van wevers en volders te Gent in de middeleeuwen, Annalen van de Belgische vereniging voor hospitaalgeschiedenis (1982), 3–32, 15. 69 Cf. De Vocht (n. 68), 31–32. 70 Willem (n. 49), 62. 71 Wyffels (n. 65), 97–99, 142. 72 Willem (n. 49), 31. 73 Willem (n. 49), 69.

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established by guild officers; they could also be the result of a spontaneous initiative, later taken over by the guild.74 The boxes financed themselves in different ways. The most frequent contribution was a regular payment by the guild members, though a box could also have an income from entrance fees, annuities and rents, gifts, and special taxes.75 As one may expect, many guild members were unwilling to contribute to the boxes, so that contributions had to become obligatory with sanctions for guild members who did not pay their dues. All this meant that the guilds had to call in local authorities to approve and enforce their boxes’ regulations.76 The help from the box could consist of a weekly allowance, a delivery of food, drink or fuel, or payment for housing and sick care. 77 The box intervened in several situations, mainly illness, accidents, and old age. One can summarize these situations as the inability to continue to work. 78 In general, the allowance from the box did not provide a full income but still left the guild member in a better position than outsiders facing similar difficulties.79 The box could also pay for the funeral of poorer members.80 Unlike the hospices,81 the boxes also helped women, though sometimes indirectly. Married men could receive more because the box took their family situation into account.82 Some boxes paid wives directly, though sometimes only because separate contributions to the box had previously been made in their name.83 Widows were, of course, the largest group of women to receive guild assistance.84 Two elements ensured that not all widows had to call upon the box. First of all, a general principle of private law in the Southern Netherlands was a favourable treatment of surviving spouses. Exceptionally, they would receive all of the couple’s property; though most commonly the survivor would have a usufruct in the predeceased’s goods.85 In line with this, craft guilds allowed widows to continue their husband’s business. 86 Although law-books may give another impression, a craftsman’s enterprise completely involved his wife,87 which made ___________ 74

Masure (n. 54), 12–14. See, e.g., Huys (n. 50), 30, 34, 39, 42, 47, 52. 76 Des Marez (n. 48), 409–410, 443. 77 Willem (n. 49), 164. 78 Des Marez (n. 48), 450–452. 79 Deceulaer (n. 47), 367. 80 E.g., Huys (n. 50), 46, 62. 81 E.g., Willem (n. 49), 50. 82 Willem (n. 49), 154–155, 164. 83 Deceulaer (n. 47), 367. 84 Willem (n. 49), 158. 85 Godding (n. 16), 259–314. 86 Marianne Danneel, Weduwen en wezen in het laat-middeleeuwse Gent (1995), 349–353. 87 Kaat Cappelle, ‘In de macht, plicht en momboorije van heuren man’. De rechtspositie van de getrouwde vrouw in Antwerpen en Leuven (16de eeuw), (2016) 18 75

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it easier for her to continue running it after his death. Moreover, guilds allowed widows to have journeymen do the actual work. 88 Widows who had trouble making ends meet could sometimes also count on the guild to hire and pay them for small jobs.89 Nevertheless, the widow was somewhat of an anomaly. As soon as she remarried she lost her rights towards the guild and its box. 90 The guilds of the Southern Low Countries did not take care of orphans. The box regulations did not provide for them. At best, the right for the widow to continue the business may have helped the children of a deceased craftsman, because this would guarantee that they would find an ongoing business when they reached majority.91 An apprenticeship had to be paid for, which could eat up an orphan’s inheritance, if he had one. Parents or guardians putting an apprentice with a master had to negotiate for compensation in the event of accidents.92 In fact, as the apprentices sometimes paid fees to the guild box,93 orphans were more likely to be a source of income than a source of expenditure for the guild box. Journeymen were a special case. At first, they also benefited from the guild’s assistance, but in the 16th century the masters managed to exclude the journeymen from the boxes’ benefits.94 In response, the journeymen in some professions managed to establish their own boxes. 95 Their original intention was to help in case of illness, but in the 17th and 18th centuries journeymen boxes also served as strike funds.96 Notorious were the journeymen hatters who almost acquired a stranglehold on their profession. By 1786 journeyman boxes had become such a force to reckon with that the Austrian emperor Joseph II, as prince of the Southern Netherlands, would forbid them, though to no avail. 97 As already indicated, mutual assistance within the guild depended on local circumstances. In general, the craft guilds in the Southern Netherlands lagged ___________ Pro memorie 48–68; Shennan Hutton, Women and economic activities in late medieval Ghent (2011), 60. 88 Marc Jacobs, De ambachten in Brabant en Mechelen (12de eeuw – 1795), in: Raymond Van Uytven et al. (eds.), De gewestelijke en lokale overheidsinstellingen in Vlaanderen en Brabant, vol. 2 (2000), 558–624, 594. 89 Willem (n. 49), 93. 90 Danneel (n. 86), 353. 91 Danneel (n. 86), 349–350. 92 Danneel (n. 86), 72–85. 93 Deceulaer (n. 47), 364. 94 Cf. Masure (n. 54), 14. 95 Huys (n. 50), 85–108. 96 Huys (n. 50), 85–86, 93. 97 Catharina Lis and Hugo Soly, ‘An irresistible phalanx’: journeymen associations in Western Europe, 1300–1800, in: Catharina Lis et al. (eds.), Before the unions. Wage earners and collective action in Europe, 1300–1850 (1994), 11–52, 48.

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behind their counterparts in neighbouring countries as far as mutual assistance is concerned.98 Not only were mechanisms of mutual assistance less common, the number of people actually receiving help could be quite low. 99 Two factors seem to have been responsible for this. The Habsburgs Netherlands remained Catholic, meaning that their guilds spent a lot of money on churches which could have gone to mutual assistance.100 Moreover, craft guilds had been the driving force behind social unrest in the Late Middle Ages and the 16th century. Central and local authorities retaliated. They confiscated guilds’ possessions and abolished their mutual assistance,101 but this could backfire if it led to larger demands on public poor relief.102 In 1795 the French annexed the Southern Netherlands and introduced the legislation of the Revolution there, including the d’Allarde decree which abolished the guilds and the Le Chapelier law which forbade new coalitions. Belgian legislators did not lift this prohibition until 1867. However, mutual assistance amongst workers continued to exist. 103 It is not clear as to how far these mutual benefit societies were based on and perpetuated older organizations. Exceptionally, some local organizations survived in spite of abolitionary legislation.104 The organization amongst the hatters also showed remarkable resilience.105 The authorities feared that the mutual societies were strike funds in disguise, though that was mainly a problem in big factories, not in smaller enterprises. 106 Factory owners in Wallonia took a more positive approach. They established factory funds to help their workers. In the mid-19th century the Belgian government enacted some major changes. An 1851 act awarded legal personality to mutual societies in return for control by local authorities. One year earlier the government had also established a state pension fund to encourage workers to put money aside for their old age.107 In 1894 the policy changed completely. Henceforth, the ___________ 98 For a comparison with the (Northern) Netherlands, see Sandra Bos, A tradition of giving and receiving: mutual aid within the guild system, in: Maarten Prak et al. (eds.), Craft guilds in the early modern Low Countries. Work, power and representation (2006), 174–193. 99 See, e.g., Deceulaer (n. 47), 366. 100 Bos (n. 98), 189. 101 Huys (n. 50), 44–45. See also Marc Boone, Gent en het Bourgondische staatsvormingsproces, ca. 1385 – ca. 1453, vol. 1 (unpublished PhD-thesis 1988). 102 Johan Dambruyne, Corporatieve middengroepen. Aspiraties, relaties en transformaties in de 16de-eeuwse Gentse ambachtswereld (2002), 143. 103 Dirk Heirbaut, Een beknopte geschiedenis van het sociaal, het economisch en het fiscaal recht in België (2013), 29–31, 59. 104 For examples, see Huys (n. 50), 63–66, 106. 105 Lis and Soly (n. 97), 48. 106 Kathlijn Pittomvills, De Gentse maatschappijen van onderlinge bijstand in de eerste helft van de negentiende eeuw. Solidariteit, staking en segmentering?, 1994–1995 Belgisch tijdschrift voor nieuwste geschiedenis 433–479, 444–457. 107 Heirbaut (n. 103), 59–69.

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government stimulated mutual assistance funds, but this would only bear fruit in the following century.108 In the end, the guilds’ mutual assistance came back with a vengeance as a general social security.109 II. Offshoots of marine insurance 1. Insurance covering transport over land In the 16th century, two types of insurance appear which have their origin in marine insurance. As transport over land (including transport over rivers) also entails risk, inevitably insurance covering it followed in the slipstream of marine insurance. A 1537 statute of Charles V also mentions insurance for non-marine transport risks.110 Its importance must have been negligible, as the next insurance statutes remained silent about it.111 It was only from 1570 forward that non-marine transport insurance returned in the statutes and the Antwerp customs.112 Legislators did not make any special effort and largely left contracting parties free to do as pleased them, because the risks on land were smaller than at sea (premiums were indeed lower for transport over land.)113 Merchants saw no need to be very creative. Insurance policies show that merchants largely copied the standard contract imposed for marine insurance with some necessary amendments, given the difference between sea and land.114 Even in the late 19th century, given the lack of a separate statute on insurance for transport over land, many parties opted for applying the rules of marine insurance. 115 2. Life insurance Life insurance was another offshoot of marine insurance. Mediterranean merchants brought this kind of insurance to Antwerp in the 16th century. A merchant ___________ 108 Hendrik Moeys, Subsidiary social provision before the welfare state. Political theory and social policy in nineteenth-century Belgium (PhD thesis KU Leuven). 109 On the further history of Belgian social security, see Heirbaut (n. 103), 60–80. 110 Ordinance of Emperor Charles V of 25 May 1537 (Jules Lameere and Henri Simont (eds.), Recueil des ordonnances des Pays-Bas, second series, vol. 4 (1907), 34–35). 111 Xavier Mullens, Verzekeren in de tijd van Rubens (1977), 99. 112 Mullens (n. 111), 99. 113 Johan Van Niekerk, The development of principles of insurance law in the Netherlands from 1500–1800, vol. 1 (1998), 420–421; Mullens (n. 111), 100. 114 Henry De Groote, Onuitgegeven zestiende-eeuwse Antwerpse polissen, 1974 Bijdragen tot de geschiedenis inzonderheid van het oud hertogdom Brabant 153–170, 154. 115 ‘Assurances maritimes’, in: Edmond Picard and Napoléon d’Hoffschmidt (eds.), Pandectes belges. Encyclopédie de législation, de doctrine et de jurisprudence belges, vol. 10 (1883), 688–879, 706.

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could insure himself for his voyage overseas, paying a premium proportionate to his fortune.116 Life insurance is already hinted at in a 1563 statute,117 and at least one new company planned to sell life insurance.118 A life insurance policy became possible also without a voyage.119 Unfortunately, Antwerp notaries very soon became aware that this new market without much oversight created possibilities for fraud and crime. Elderly or sick people were presented as young and healthy to prospective insurers. In a few cases notaries took insurance on someone’s life and then killed him, so that they could make their claims. Nevertheless, the local authorities did not react.120 When the Spanish governor, the duke of Alba, temporarily banned all insurance contracts in 1569,121 fraud in the life insurance sector played an important role. Nevertheless, when the city of Antwerp wrote its new customs in 1570, it inserted a title on insurance contracts which expressly mentioned life insurance.122 Given that the victims of fraud had been mostly poor people (as insured) or foreigners (as insurers),123 the city magistrates did not care that much.124 The central authorities, however, had another opinion.125 They had lifted the ban on transport insurance by either sea or land already in 1570, but they did not do so for life insurance 126 even though the practice seems to have continued for some years.127 The 1582 customs of Antwerp, almost a codification,128 repeated the earlier defence of life insurance. 129 Interestingly,

___________ 116 Jan Goris, Études sur les colonies marchandes méridionales (portugais, espagnols, italiens) à Anvers de 1488 à 1567 (1925), 385. 117 Charles Reatz, Ordonnances sur les assurances maritimes de 1569, 1570, 1571 (1877), 29. 118 De Groote (n. 114), 163–164. 119 Goris (n. 116), 386, 392. 120 Goris (n. 116), 385–392. 121 Reatz (n. 117), Annexes, no. 1, 43–51. 122 Title 29 of the Antiquae (Guillaume De Longé, Coutumes de la ville d’Anvers (1870–1874), vol. 1, 598–605). 123 Cf. De Groote (n. 114), 164 f. 124 Goris (n. 116), 392. 125 It may also be that they were more open to lobbying for centralized brokering, which exaggerated reports of fraud to advance its own case (cf. Dave De ruysscher, Antwerp 1490–1590. Insurance and speculation, in: Adrian Leonard (ed.), Marine insurance. Origins and institutions, 1300–1850 (2016), 96). 126 Reatz (n. 117), Annexes, no. 2, 51–67, art. 33; see also no. 3, 68–80, art. 32. 127 Cf. De Groote (n. 114), 165. 128 Johan Van Niekerk, The law and customs of marine insurance in Antwerp and London at the end of the sixteenth century, in: Caroline Van Schoubroeck et. al. (eds.), Over grenzen: liber amicorum Herman Cousy (2011), 301–314, 305. 129 Art. 3 of Title 54 of the Impressae (De Longé (n. 122), vol. 2, 400–401).

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the Antwerp city magistrates at that time were Calvinists, 130 fighting their Spanish overlords, whereas previous loyal Catholic magistrates had allowed life insurance. This proves that Catholicism as such was not necessarily irreconcilable with life insurance contracts. In the last Antwerp customs (1608) the ban on life insurance was well entrenched,131 though with one exception. In case of a long voyage, a merchant could take out a policy against captivity, so that the ransom and other costs could be paid.132 In order to avoid a moral hazard, the insured would still have to cover one-third himself, so that he would have an incentive to escape.133 Thus, life insurance still survived, but only in this small niche. The local population had not embraced life insurance because it had enough alternatives. Perpetuities were a very popular form of investment. Cities and estates sold life annuities with an even higher yield.134 The tontine was already known in the Southern Netherlands in the 1670s,135 but it did not catch on in the 17th and 18th centuries because investors did not trust this mechanism. Authorities therefore had to offer conditions which were to their disadvantage. Thus, the estates of Flanders had to alter a 1747 tontine because its instalments had become too costly.136 Private issuers of tontines appear from 1769,137 but the government did not like tontine societies,138 whereas jurists remained uninterested in this phenomenon.139 In the meantime people had come to see life insurance as contrary to the Catholic religion. In 1815, a new era in Belgium’s history started, which also led to a ___________ 130 Dave De ruysscher, ‘Naer het Romeinsch recht alsmede den stiel mercantiel’. Handel en recht in de Antwerpse rechtbank (16–17de eeuw) (2009), 56–57. 131 Compilatae, Title 11, art. 316 (De Longé (n. 122), vol. 4, 330–331). 132 Compilatae, Title 11, art. 317 (De Longé (n. 122), vol. 4, 330–331). 133 Compilatae, Title 11, art. 318 (De Longé (n. 122), vol. 4, 330–331). 134 Godding (n. 16), 480–485; Nicolas De Vijlder and Michael Limberger, Als een goede huisvader beleggen in stedelijke schuld te Antwerpen (16de–18de eeuw), in: Jaco Zuijderduijn and Dries Raeymaekers (eds.), Publieke financiën in de Lage Landen (2015), 87–109. 135 Nicolas De Vijlder, Voor vorst, voor vrijheid en voor recht. Een comparatieve analyse van het stedelijke fiscale en financiële beleid in de zeventiende eeuw, 2012 Tijdschrift voor sociale en economische geschiedenis 47–73, 65. 136 Claude Bruneel, La tontine émise par les États de Flandre en 1747, in: Erik Aerts et al. (eds.), Studia historica oeconomica. Liber amicorum Herman Van der Wee (1993), 75–92. 137 Bruneel (n. 136), 91–92. 138 Evelyn Willemse, Het ontstaan en de ontwikkeling van het Belgische verzekeringswezen. 1819–1873 (unpublished licentiate thesis 1974), 11, 20–24. 139 An indication is the number of columns in the Pandectes Belges, an encyclopaedia on Belgian law published around 1900. The terms tontine and société tontinière received a little more than four columns of text (Pandectes belges, vol. 101 (1911), 356–358; vol. 108 (1913), 897 f.), which is nothing in this giant undertaking of almost 200,000 columns.

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breakthrough for the insurance contract. Belgium and the Netherlands found themselves bound together in the United Kingdom of the Netherlands. 140 King William I actively stimulated insurance, in which he had taken up a personal interest thanks to a long stay in England.141 However, life insurance still met too much resistance, because religious and moral objections remained strong. Moreover, insurance contracts were not always that advantageous to subscribers, a fact which also helps to explain their lack of success. Life insurance existed in two forms: insurance for the risk of death and insurance for the risk of survival. The former was mainly meant for gentlemen, who made their living by their own work and not by the revenue of their properties. The insurance had to provide for their widow and children in case of a premature death. Given that Napoleon’s Civil Code had abolished the rights of the surviving widow in the estate of her deceased husband, the insurance contract could, for them, mean the difference between destitution and a comfortable life. The other variant of the life insurance covered the case of survival. It had to ensure that the insured would have an income if he reached such an old age that he could no longer work. However, both forms of the life insurance contract had in common that all accumulated capital was forfeited if the risk did not occur. Thus, if one survived until a certain age in the case of the insurance against the risk of death or died prematurely in the case of its counterpart, the insurance company gained everything. 142 Changes in life insurance contracts finally enabled a greater popularity in the second half of the 19th century. Beginning in 1853 an insurance company offered mixed insurance, covering both survival and death. The insurer henceforth always paid monetary benefits either to the insured himself when he was still alive, or to his family if he died. Other companies had to follow and the older forms of life insurance disappeared. Nevertheless, the public at large still hesitated. The turning point was an 1889 Act of Parliament, which made it possible for labourers who had taken a mortgage loan to finance the construction of their house to take out life insurance with the Belgian state’s General Savings and Pensions Bank. This finally broke the dam and insurance became popular, with the General Savings and Pensions Bank for the common man and private insurance companies for the well to do.143 By then, the Catholic Church had changed its opinion.

___________ 140 Companies established between 1815 and 1830 still dominated the Belgian insurance market in the 20th century (Jules Hannes, Het verzekeringswezen in België 1819– 1914, een inleiding, 1991 NEHA-Bulletin 85–95, 85–86). 141 The king was by far the biggest investor in the new insurance companies (Hannes (n. 140), 87). 142 Brion and Moreau (n. 1), 104–117. 143 Heirbaut (n. 103), 138; Brion and Moreau (n. 1), 130 f.

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Belgium’s Archbishop de Méan had even enthusiastically endorsed life insurance.144 Due to its late popularity, Belgian legislators were originally not very active in the field of insurance. As Napoleon’s 1807 Commercial Code only dealt with maritime insurance, insurers had to apply the rules of maritime insurance by analogy145 and also looked to foreign countries for inspiration, especially England. 146 This was helped by the great number of foreign companies 147 and foreigners active in Belgian companies.148 Insurance companies also had their own agreements on tariffs and other elements of insurance contracts. 149 Parliament, however, for a long time failed to enact legislation on insurance, even though in 1841 a commission had been charged with, inter alia, preparing a statute on insurance.150 Belgium, the second country in the world to industrialize, completely revised its commercial legislation in the second half of the 19th century in order to stimulate its economy.151 Insurance law was caught up in this and Parliament enacted the first legislation for non-maritime insurance in 1874.152 The new title on non-maritime insurance in the Commercial Code was not innovative. It mainly codified existing practices in Belgium (and France), though at times it also followed Dutch and German legislation.153 Its central idea was the autonomy of the contractual partners, who were seen as equals. In reality, this amounted to putting the interests of the insurers before those of their customers. Thus, the 1874 Act crusaded against fraud by the insured parties and paid a lot of attention to the problem of suicide, distinguishing intentional suicide from suicide that was non-intentional (e.g. due to mental illness).154 Until the end of the 20th century, ___________ 144

Brion and Moreau (n. 1), 103. Gabriël Ballon, Landverzekering in de 19e eeuw tussen de Code de commerce en de wet van 11 juni 1874, in: Caroline van Schoubroeck et al. (eds.), Over grenzen: liber amicorum Herman Cousy (2011), 349–358, 353–358. 146 Heirbaut (n. 103), 138. 147 From 1821 until 1830, however, foreign companies were banned from the market: Hannes (n. 140), 87, 92. 148 Jules Hannes and Julienne Laureyssens, De verzekeringsmaatschappijen en hun beheerders te Antwerpen (1819-1873), 1966 Bijdragen tot de geschiedenis 95–136, 106. 149 Hannes (n. 140), 87, 92; Willemse (n. 138), 118-136. 150 Dirk Heirbaut, Het ‘civiel beleid’: een stiefkind van de ministers van Justitie, in: Margo De Koster et al. (eds.), Tweehonderd jaar justitie. Historische encyclopedie van de Belgische justitie (2015), 164–189, 171. 151 Heirbaut (n. 150), 172–173. 152 Holthöfer (n. 12), 3324–3326. Somehow, François Laurent, Belgium’s greatest law professor of the era, missed the 1874 statute, as he wrote three years later that Belgium still did not have a statute for fire and other types of insurance: François Laurent, Principes de droit civil, vol. 27 (1877), 210. 153 Holthöfer (n. 12), 3326. 154 Heirbaut (n. 103), 138. 145

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the main goal of new legislation was not to protect the customer, but rather to serve big insurance companies by eliminating alternatives (e.g. the traditional tontine, which was forbidden in 1930),155 hindering the growth of smaller Belgian competitors, and closing off the market for foreign intruders. Only from 1992 would the legislator truly become interested in protecting the insured. 156 3. Fire insurance The history of fire insurance in the Southern Netherlands after the 14th century is still largely unclear. Jan Van de Ryck mentions fire guilds from the Late Middle Ages, but all of their examples concern foreign countries,157 whereas no sources from the Southern Netherlands themselves indicate that this kind of association had been active there. It seems that after the old mutual solidarity in case of arson disappeared from the Southern Netherlands, it took some time for fire insurance to make a comeback. The new fire insurance was linked to Antwerp, so that one can consider it to be an offshoot of marine insurance. This does not necessarily mean that the new fire insurance was just an adaptation of marine insurance, but rather that Antwerp already had experts who could easily extend their operations to fire insurance. Already in the first half of the 17th century, an Antwerp broker, Jérôme Pichille,158 came up with a plan to establish a system of fire insurance for the city of Antwerp. Although the sources concerning his and another proposal have been published,159 they have largely gone unnoticed so far, in spite of their undeniable importance for the history of fire insurance in Europe. Pichille’s plan did not lack in ambition. In his scheme, damage by fire would be insured whatever its cause.160 On the other hand, the insurance would only cover the damage to buildings, not the furniture or other valuables. 161 Pichille assumed in his proposal that thousands of Antwerp citizens would take out insurance.162 That may well have ___________ 155 Art. 8, 2° of the Statute of 25 June 1930 on the control of life insurance companies (Moniteur belge, 18 July 1930). The tontine is currently still common in Belgium for purchases of real property by couples, see e.g. Dirk Michiels, Overzicht van rechtspraak tontine en aanwas (2006). 156 Heirbaut (n. 103), 138–139. 157 Van de Ryck (n. 8), 46–47. 158 On him and the other Antwerp brokers, see Emile Dilis, Les courtiers anversois sous l’ancien régime (1910). 159 Emile Dilis, La question des assurances contre incendie à Anvers au XVIIe siècle, 1911 Annales de l’Académie royale d’archéologie de Belgique 67–114, 82–114. 160 Dilis (n. 159), no. A/I, 83 § 2. 161 Cf. Dilis (n. 159), no. A/I, 83 § 2. 162 Dilis (n. 159), no. A/IV, 93.

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been possible given the conditions he envisioned. The victim of fire would receive compensation already on the next day,163 and the premium was only one per cent of the value of the buildings insured. The premium had to be paid at once, and the insurer would even make a refund after 25 years, whereas the insurance would still continue.164 Pichille calculated that in those first 25 years the capital of the premium would have accrued so much interest that the latter would suffice to fund the insurance system on its own.165 To the modern reader, his proposal sounds too optimistic, also because Pichille wanted to fund other plans, abolish the taxes for fire-fighting,166 make payments for other damage,167 and engage all kinds of staff who would also have to be paid.168 Nevertheless, in spite of some initial doubts,169 the central authorities were not unfavourable towards Pichille’s plans, but because of wars they could not put up the money for an initial investment.170 In 1637, Cornelis van Wassenaer, a Dutchman, put forward another proposal, which was more realistic, featuring an annual premium, conditions to prevent fraud, and exclusions of certain risks, like war.171 Yet van Wassenaer did not lack in ambition either, as he did not think just of Antwerp but, from the start, of the whole Southern Netherlands. 172 Pichille, who heard of van Wassenaer’s plan, accused him of having copied his proposal,173 but that seems unlikely given the many differences between the two proposals. Harder to believe, however, are van Wassenaer’s protests that what he planned was unrelated to projects in neighbouring countries. 174 Whatever the truth of that, once again, a proposal for a fire insurance did not become reality. In the 18th century fire insurance resurfaced thanks to English immigrants. When James Dormer (1708–1758) founded the Chambre impériale et royale d’assurance aux Pays-Bas (Royal and Imperial Chamber of Insurance) in 1754, the government privilege concerned both marine and fire insurance. For marine insurance the company’s monopoly was limited: it only extended to the province of Brabant and did not exclude private initiatives. For fire insurance, however, ___________ 163

Dilis (n. 159), no. A/I, § 2, 83. Dilis (n. 159), no. A/I, §§ 3-4, 83; §§ 8–10, 85. 165 Dilis (n. 159), no. A/III, 92; no. A/IV, 93. 166 Dilis (n. 159), no. A/I, §§ 13–14, 86; no. A/IV, 93–94. 167 Dilis (n. 159), no. A/IV, 94. 168 Dilis (n. 159), no. A/I, §§ 6–7, 84; no. A/IV, 94. 169 Cf. Dilis (n. 159), no. A/II, 88–90; cf. no. A/III, 91–92. 170 Dilis (n. 159), no. B/I, 95–96. 171 Dilis (n. 159), no. B/VII, 105–107. 172 Dilis (n. 159), no. B/III, 99; no. B/V, 102; no. B/VII, 105. Pichille had plans for the rest of the country only in a second stage: Dilis (n. 159), no. A/I, § 11, 85–86. 173 Dilis (n. 159), no. B/I, 95–96. 174 Dilis (n. 159), no. B/VIII, iv, 111–114. 164

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the new company’s monopoly was total and covered the whole Southern Netherlands.175 This was only possible because there were no existing competitors who could have made objections. However, in 1782 the government awarded a new company, the Compagnie d’assurance de la Flandre Autrichienne, the right to sell fire insurance policies too. Once again, the new company’s driving force was an Englishman.176 Both in 1754 and in 1782 the example of their homeland and not a demand in the Southern Netherlands explains the attention given to fire insurance. Thus, it does not come as a surprise that fire insurance did not immediately become popular.177 The breakthrough of insurance on land in the 19th century also included fire insurance. The names of a few new companies expressly mentioned fire insurance.178 As early as 1821 a banker required buildings and machines serving as collateral to be protected by insurance. 179 Soon the Belgian government turned greedy eyes to the fire insurance market. Under French influence the Belgian Parliament seriously started to debate a state monopoly on fire insurance. The insured would gain, as the state would be a more reliable insurer than private companies. The state on the other hand, would, thanks to the profits of its insurance business, levy lower taxes. The government appointed a commission to prepare the nationalization of fire insurance, but the commissioners’ lack of expertise led to an unclear text. By 1848 a state monopoly on fire insurance was no longer seen as feasible.180 4. Other types of insurance Once the principle of premium insurance has taken hold, one can apply it to anything one wishes, provided the demand is present or can be created. The 1874 statute singles out fire and life insurance, but also harvest insurance.181 Farmers ___________ 175 Ludo Couvreur, De eerste zeeverzekeringscompagnie te Antwerpen (1754–1793?), 1936 Tijdschrift voor economie en sociologie 146–174; idem, De Antwerpsche verzekeringsbeurs in de 18e eeuw, 1936 Beknopte handelingen van het Vlaams philologencongres, 37–40; Erika Meel, De firma James Dormer tussen traditie en vernieuwing: een ‘Englishman abroad’ in het achttiende-eeuwse handelskapitalisme te Antwerpen (unpublished licentiaat thesis 1986). 176 Ludo Couvreur, De zeeverzekeringsmarkt der Oostenrijkse Nederlanden op het einde van de 18de eeuw, 1937 Handelingen van het genootschap Société d’Émulation 58– 86; Meel, (n. 175). 177 Couvreur, De eerste zeeverzekeringscompagnie (n. 175), 169. 178 Hannes and Laureyssens (n. 148), 113–115. 179 Hannes (n. 140), 87. 180 Hannes (n. 140), 88–89. 181 Evelyn Willemse, Het ontstaan en de pogingen tot monopolisering van het verzekeringswezen in België (1830–1850), 1976–1977 Rechtskundig weekblad, 2637–2652.

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had been forming cooperatives to insure their risks, but these forms of insurance only took off in earnest from the end of the 19th century, thanks to the Farmers Association, which was established in 1890. Inspired by the Rhineland, the Farmers Association and the government stimulated local mutual organizations for livestock insurance. For other types of insurance, the Farmers Association acted as an agent of French, German, and British companies.182 A popular insurance from the first half of the 19th century was draft insurance. Parents could during the first 20 years of their son’s life pay premiums for this insurance. If their child was drafted, the insurer paid for a substitute who would serve in the army.183 This type of insurance was no longer useful from 1909 when Belgium imposed personal military service.184 The industrial revolution should have stimulated the growth of liability insurance, but prevailing doctrine stood in the way. The famous Art. 1382 of the Napoleonic Civil Code had pronounced the principle of fault liability in tort. An insurance against liability led to a moral hazard, which was deemed to be contrary to this sacred principle. It would shift the burden of an indemnity from the insured to the insurance company, so that the insured would no longer be stimulated to act cautiously. The French court of cassation led the way for a paradigm shift with an 1845 judgment, which influenced Belgium’s 1874 new insurance law, though lawmakers still excluded liability insurance for gross negligence.185 In 1903 legislators imposed obligatory insurance for workplace accidents.186 III. Non-marine insurance in Belgium: a conclusion Non-marine insurance in Belgium is, to some extent, a history of missed opportunities. In the 12th to 14th centuries early forms of mutual assistance could have become the starting point for modern fire (and livestock) insurance, but instead they turned into evolutionary dead ends in the history of insurance. In the 16th century the central authorities nipped life insurance in the bud, and they failed to stimulate fire insurance in the following century. Only in the second half of the 18th century was fire insurance revived and then only as a secondary activity for companies specialized in maritime insurance. Fire and life insurance only broke through in the 19th century, and the main impetus came from the Dutch ___________ 182 Leen Van Molle, Ieder voor allen. De Belgische Boerenbond 1890–1990 (1990), 76–78, 110–111. 183 Brion and Moreau (n. 1), 119. 184 On military service in Belgium, see Luc Devos, Het effectief van de Belgische krijgsmacht en de militiewetgeving, 1830–1914 (1985). 185 Heirbaut (n. 103), 140 f. 186 See Bruno Debaenst, Een proces van bloed, zweet en tranen! Juridisering van arbeidsongevallen in de negentiende eeuw in België (2011).

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during the 1815–1830 United Kingdom of the Netherlands. The Dutch legacy proved so strong that companies founded in that era remained the most profitable Belgian insurance companies for a long time.

B. Marine insurance By Dave De ruysscher The history of marine insurance in the Southern Netherlands, later Belgium, has been the subject of many studies. Economic historians such as Jan Goris (1899–1984), Wilfrid Brulez (born 1927), Henry De Groote (1900–1986), and Eddy Stols (born 1938) have paid much attention to the development of marine insurance as a mercantile technique, mapping insurance practices in 15th-century Bruges and – foremost – 16th-century Antwerp.1 Already in the later 19th century, some in-depth publications on 16th-century Antwerp marine insurance saw the light of day.2 Since the middle of the 20th century, legal historians, too, have studied the marine insurance of the Southern Netherlands in the early modern period, and they have published legal texts that have remained unknown.3 In 1998, Johan van Niekerk wrote a voluminous – now standard – monograph on insurance law in the Low Countries, which mainly addresses marine insurance. 4 Marine insurance, as it was in use in Antwerp during the 1500s, has continued to yield studies from both economic and legal historians. 5 ___________ 1 Wilfrid Brulez, De firma della Faille en de internationale handel van Vlaamse firma’s in de 16de eeuw (1959); Henry L.V. De Groote, De zeeassurantie te Antwerpen en te Brugge in de zestiende eeuw (1975); Jan Goris, Études sur les colonies marchandes méridionales (portugais, espagnols, italiens) à Anvers de 1488 à 1567 (1925); Eddy Stols, De Spaanse Brabanders of de handelsbetrekkingen der Zuidelijke Nederlanden met de Iberische wereld, 1596–1648, 2 vol. (1971). 2 Charles Reatz, Ordonnances sur les assurances maritimes de 1569, 1570, 1571 (1877); Pierre Génard, Jean-Baptiste Ferrufini et les assurances maritimes à Anvers au XVIe siècle, (1882) 7 Bulletin de la Société de Géographie d’Anvers 193–268. 3 Charles Verlinden, Code d’assurances maritimes selon la coutume d’Anvers, promulgué par le consulat espagnol de Bruges en 1569, (1949) 16 Bulletin de la Commission royale des anciennes lois et ordonnances de Belgique 38–142. 4 Johan Van Niekerk, The development of principles of insurance law in the Netherlands from 1500–1800, 2 vol. (1998). 5 Santos Manuel Coronas González, Carlos V, asegurador: una propuesta original de los comerciales de Amberes (1551), in: Aquilino Iglesia Ferreirós and Sixto SánchezLauro Pérez (eds.), Centralismo, Autonomismo en los Siglos XVI–XVII. Homenaje al Professore Jesús Lalinde Abadía (1989), 121–130; Henry De Groote, Onuitgegeven zestiende-eeuwse Antwerpse polissen, 1974 Bijdragen tot de geschiedenis inzonderheid van het oud hertogdom Brabant 153–170; Dave De ruysscher, Antwerp 1490–1590: Insurance and Speculation, in: Adrian B. Leonard (ed.), Marine Insurance: Origins and Institutions, 1300–1850 (2016), 78–105; idem, Normative Hybridity in Antwerp Marine Insurance (c.

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However, in spite of a wealth of material, historiography on the topic still suffers from gaps, which concern both the economic and legal history. Antwerp was the focal point of marine insurance in the Southern Netherlands from the 16th century onwards, and remains so even until the present day, and therefore this city has been studied the most. Yet, in the 1500s, 1600s, 1700s, and 1800s, marine insurance was also practised elsewhere in the Southern Netherlands, for example in Ghent, Mechelen, and Brussels, but this remains obscure.6 But even for Antwerp, some periods have not been examined fully. Developments during the 17th and 18th centuries can only partly be inferred from monographic studies of Antwerp merchant houses, some of which continued to engage in marine insurance long after the city’s Golden Age. 7 Dutch scholars studying the history of ___________ 1650 – c. 1700), in: Sean Donlan and Dirk Heirbaut (eds.), The Law’s Many Bodies. Studies in legal hybridity and jurisdictional complexity c. 1600 – 1900 (2015), 145–168; idem and Jeroen Puttevils, In Search for the Political in Political Economy. Legislative Talks for Marine Insurance Institutions in Antwerp (c. 1550 – c. 1570), (2015) 130/3 BMGN-Low Countries Historical Review 25–49; Emile Dilis, La question des assurances contre incendie à Anvers au XVIIe siècle, 1911 Annales de l’Académie royale d’archéologie de Belgique 67–114; Xavier Mullens, Verzekeren in de tijd van Rubens (1977); Guido Rossi, Insurance in Elizabethan London. The London Book of Order (2016); Louis Sicking, Les marchands espagnols et portugais aux Pays-Bas et la navigation à l’époque de Charles Quint: gestion de risques et législation, in: Jean-Marie Cauchies (ed.), Diplomates, voyageurs, artistes, pèlerins, marchands entre pays bourguignons et Espagne aux XVe et XVIe siècles (2011), 253–274; idem, Los grupos de intereses marítimos de la Peninsula Ibérica en la ciudad de Amberes: la gestión de riesgos y la navegación en el siglo XVI, in: Jésus Ángel Solórzano Telechea et al. (eds.), Gentes de mar en la ciudad atlántica medieval (2012), 167–199; idem, Stratégies de réduction de risque dans le transport maritime des Pays-Bas au XVIe siècle, in: Simonetta Cavaciocchi (ed.), Ricchezza del mare, ricchezza dal mare, secc. XIII-XVIII (2006), 795–808; Fred Stevens, The Contribution of Antwerp to the Development of Marine Insurance in the 16th Century, in: Marc Huybrechts (ed.), Marine Insurance at the Turn of the Millennium, vol. 2 (2000), 15–20; Johan P. van Niekerk, The Law and Customs of Marine Insurance in Antwerp and London at the End of the Sixteenth Century: Preliminary Thoughts on the Background to and some of the Sources for a Comparative Investigation, (2011) 17 Fundamina 144–163; idem, Law and customs (n. 128); Carlos Wyffels, Een Antwerpse zeeverzekeringspolis uit het jaar 1557, (1948) 113 Bulletin de la Commission royale d’Histoire 95–103. 6 Some hints: in 1844, Ghent had thirteen brokers, two of which dealt in insurance. See Rapport sur l’administration et la situation de la ville de Gand (1844), 132. For a glimpse of marine insurance as being applied in 16th-century Mechelen, see J. Briels, De emigratie uit Mechelen naar de Noordelijke Nederlanden omstreeks 1572–1630, (1985) 89 Handelingen van de Koninklijke Kring voor Oudheidkunde, Letteren en Kunst van Mechelen 67. 7 For example, Helma Houtman-De Smedt, Charles Proli. Antwerps zakenman en bankier, 1723–1786 (1983). Most merchant houses were only occasionally involved in marine insurance. However, some merchants were main underwriters and some of them have been given much attention. See, e.g., Ludo Couvreur, James Dormer (1708–1758), (1937) 28 Bijdragen tot de geschiedenis, bijzonderlijk van het aloude hertogdom Brabant 11–46, and largely building on this study, idem, De zeeverzekeringsmarkt der Oostenrijkse Nederlanden op het einde van de 18de eeuw, 1937 Handelingen van het genootschap Société d’Émulation 58–86; idem, Recht en zeeverzekeringspractijk in de

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maritime law and marine insurance for these periods have analysed only the North.8 Comprehensive studies on marine insurance in the Southern Netherlands of the 1700s, which are available for the Northern Netherlands, 9 are lacking. A major lacuna concerns the 19th century. Historical observations on marine insurance law and practice during the French occupation (1795-1815) and under the Dutch (1815-1830) and Belgian regimes (1830) are dispersed across contributions and articles of limited scope. Moreover, most attention has been paid to marine insurance as an economic activity, in particular to the establishing, financing of, and the return yielded by marine insurance corporations. 10 Analyses of lawyers have focused on the legal contents of the 1807 Commercial Code and 19th-century standard marine insurance policies without taking context into account.11 Maritime histories sometimes contain relevant information, but they remain – quite understandably – rather general about the subject of marine insurance. Marine insurance practice in the 1800s is a black box. It is as of yet not clear to what extent commercial custom, judicial approaches, or the contents of the Commercial Code were applied in lawsuits on marine insurance that were brought in the commercial courts. The mentioned bias towards Antwerp also concerns the 19th century but is for that period rather one-sided given a context of marine insurance companies that were active in many ports and had an international customer base. Moreover, as is the case for non-marine insurance, some ___________ 17de en 18de eeuwen, (1938) 16 Tijdschrift voor Rechtsgeschiedenis 184–214. See also Erika Meel, De firma James Dormer tussen traditie en vernieuwing: een ‘Englishman abroad’ in het achttiende-eeuwse handelskapitalisme te Antwerpen (unpublished licentiaat thesis 1986). 8 Marin Theodor Goutsmit, Geschiedenis van het Nederlandsche zeerecht (1882); Jan Pieter Vergouwen, De geschiedenis der makelaardij in assurantiën hier te lande tot 1813 (1945). 9 Sabine Go, Marine insurance in the Netherlands, 1600–1870. A Comparative Institutional Approach (2009); Frank Spooner, Risks at Sea. Amsterdam Insurance and Maritime Europe, 1766–1780 (2002). 10 Jules Hannes, Het verzekeringswezen in België 1819-1914, een inleiding, 1991 NEHA-Bulletin 85–95; idem, Verzekeringen en economische groei. Antwerpen 1819– 1831, in: idem (ed.), Economie in veelvoud. Huldeboek Piet Frantzen (1991), 259–272; idem and Julienne Laureyssens, De verzekeringsmaatschappijen en hun beheerders te Antwerpen (1819-1873), 1966 Bijdragen tot de geschiedenis 95–136; Lucien Van Acker, De Westvlaamse zeeverzekeringsmaatschappijen. Laatste jaren en likwidatie 1807–1812, (1966) 67 De Biekorf 257–265; Karel Veraghtert, Zeeverzekeringen te Antwerpen (1814– 1860), (1995) 14 Tijdschrift voor Zeegeschiedenis 9–22; Evelyn Willemse, Het ontstaan en de ontwikkeling van het Belgische verzekeringswezen. 1819–1873 (unpublished licentiate thesis from 1974); idem, Het ontstaan en de pogingen tot monopolisering van het verzekeringswezen in België (1830–1850), 1976–1977 Rechtskundig weekblad, 2637–2652. 11 Pierre Hollenfeltz du Treux, Portrait d’une très grande dame, restée jeune et séduisante malgré son âge: la police maritime d’Anvers de 1859, in: J. Blockx et al. (eds.), Liber amicorum Tricot (1988), 293–323.

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studies concern the history of individual insurance companies12 and not the interactions existing between different corporations. For all these gaps mentioned, this text offers explorative notes at best, and hopefully more research will follow from it. I. General average, risk allocation, and the dispersal of premium insurance (14th to early 16th century) The first traces of premium insurance of freights in Bruges date back to 1369.13 Merchants transferred portions of the risks of marine transport to multiple underwriters, men who were not involved in the trade that was insured. During the 15th century, leading resident Genoese and Castilian merchants, as well as Florentines, Catalans, Venetians, and Portuguese trading in Bruges, often insured the cargo they shipped to and from the Low Countries by this method.14 Premium insurance was a mercantile transplant. It had developed in Italian cities in the first half of the 14th century, and after some time it came to be applied in mercantile ports across the continent. Even in these early stages, insurance of cross risks was common. Marine insurance was signed at locations which were not on the route of the vessel carrying the insured merchandise. As a result, Genoese merchants insured freights travelling to Bruges-dependent ports, such as Sluis, in Genoa.15 It is possible that in the beginning of the 14th century a Chamber of Insurance existed in Bruges. However, the only source mentioning this institution, the Chronycke van Vlaenderen by Nicolas Despars (1522–1597) (written c. 1562 – c. 1592), has not been corroborated by other evidence, thus making it unlikely that such a Chamber existed.16 It is generally difficult to tell to what extent mutual insurance techniques for maritime transports applied in Bruges before premium insurance became ubiquitous. It seems that early premium insurance still bore some mutualistic characteristics, at least among the Genoese. Engaging in marine insurance, one time as insured and another time as underwriter, ___________ 12

Juul Hannes, Securitas: honderdvijftigste verjaardag, 1819–1969 (1969). De Groote (n. 1), 9. 14 De Groote (n. 1), 13–18; Bart Lambert, De Genuese aanwezigheid in laatmid-deleeuws Brugge. Een laboratorium voor de studie van instellingen en hun rol in de econo-mische geschiedenis (unpublished doctoral dissertation Ghent University 2011), 124–129. 15 See the many examples in Léone Liagre-De Sturler, Les relations commerciales entre Gênes, la Belgique et l’Outremont d’après les archives notariales génoises (1320– 1400) (1969), for example vol. 2, 654–655 (no 499, 2 Jan. 1388), 825 (no 623, 8 Oct. 1398), and also in Renée Doehaerd and Charles Kerremans, Les relations commerciales entre Gênes, la Belgique et l’Outremont d’après les archives notariales génoises (1400– 1440) (1952). 16 van Niekerk (n. 4), vol. 1, 201. 13

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was considered a fraternal duty of compatriots, all of whom were member of the same nation.17 The rules of general average (gross average) allowed for some sharing of risk before premium insurance came in use. If the captain had been forced to jettison cargo to save the vessel, the merchants who had suffered losses on their freight could claim compensation from all those participating in the transport and from the captain as well. General average had been developed in the High Middle Ages. Recent research by Edda Frankot has demonstrated how in the later Middle Ages basic rules relating to jettison migrated along the Western European shores, but also how their concrete implementation differed from one place to the next. The enactment of brief written rules made them vulnerable to copying mistakes. Some manuscripts containing both the Vonnisse van Damme (late 13th to early 14th century), which was a compilation of maritime rules that were applied in Bruges and its dependent ports (for example Sluis and Damme), and the Ordonnantie (mid-14th century), which served for other Dutch ports,18 mention that the captain had to contribute in the damages by way of general average, with ‘ship and freight’.19 This was clearly a copyist’s slip; the rules of the Rôles d’Oléron (before 1286), which had served as basis for both the Vonnisse and the Ordonnantie, held that the captain chose whether the value of his ship or the freight received would be added to the mass of value from which the compensation for damages was to be derived. Later on, it became customary that the choice between freightage and the value of the ship was made by the merchants, and not by the captain.20 Moreover, many of such changes were due to developments in naval transport. At first, merchants commonly had proprietary interests in the ship that was used to carry their merchandise; the captain was considered a representative or their peer. But following the intensification of over-sea traffic during the 13th century, the interests of ship-owners, skippers, and merchants started to diverge. The shift towards the contribution of the captain for general average, which up to that time had been a risk for merchants only, is a case in point. 21 Discussions about risk allocation among the parties mentioned would continue long after the 16th century. The legal history of premium marine insurance in late medieval Bruges remains to a large extent unclear, which is mostly due to the available sources. ___________ 17

Lambert (n. 14), 124 f. On both compilations, see Goutsmit (n. 8), 52–96; Dirk Van den Auweele, Het Brugse zeerecht, schakel in een supranationaal geheel, in: Valentin Vermeersch (ed.), Brugge en de zee (1982), 145–155. 19 Edda Frankot, ‘Of Laws of Ships and Shipmen’. Medieval Maritime Law and its Practice in Urban Northern Europe (2012), 40 n. 90. 20 Frankot (n. 19), 39–41. 21 Frankot (n. 19), 7 f. 18

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Traces of marine insurance can be found in ledgers of judgments of the Bruges Municipal Court of Aldermen, dating mostly from the 15th century. Such references are usually not explicit as to the contents of insurance contracts, and often not even as to the rules that were imposed when disputes were being settled. It is probable, though, that marine insurance in Bruges was subject to a myriad of rules during its first stages. When marine insurance was first in use in Bruges in the later decades of the 14th century, each sea-faring nation of merchants that frequently applied this mercantile technique, in particular the Florentine, Genoese, and Castilian nations, may have upheld ‘customs’ of their own. This was the case, apparently, in 15th-century England as well.22 But over time it seems that there was some convergence. In the first decades of the 15th century, the Florentine style of drawing up insurance contracts became the most dominant. This style was straightforward in stipulating risks, and it did not aim at circumventing usury prohibitions by means of opaque formulations, as was the case in other contracts.23 At the same time, differing rules that were applied found a common ground in a set of basic principles. These principles were shared among the Italian merchants that were active in the Bruges market, and they were imposed by the Bruges municipal government. The process of modest convergence had ended by the third quarter of the 15th century. Indications thereof are lawsuits before the court of Bruges aldermen in which insurance underwriters of several Italian nationalities were involved, and which did not concern the rules to be applied.24 One exception was the Castilian nation, which managed to keep a set of rules that were slightly different from the ‘common’ Bruges insurance law.25 Besides the municipal authorities, princely institutions were equally important. In February 1459, Duke Philip of Burgundy imposed that for any appeal against judgments of the Bruges aldermanic court before the Council of Flanders, when concerning marine insurance, the sums due had to be deposited in the court before the start of the trial.26 ___________ 22

Rossi (n. 5), in manuscript, 12–15. Typical for the Florentine policies were exhaustive, yet concise, provisions such as ‘the ship may call at any place and sail forward, backward, rightward and leftward at the discretion of the shipmaster’ and insurance against ‘all perils of the sea’. See Rossi (n. 5), in manuscript, 65–67. 24 For example, Louis Gilliodts-Van Severen, Cartulaire de l’ancienne Estaple de Bruges, vol. 2 (1904), 92 (no. 1016, 2 June 1459, mentioning Michele Arnolfini (Lucchese), Carlo Lomelino (Genoese) and Angelo Tori (Florentine) as insurers). 25 Louis Gilliodts-Van Severen, Cartulaire de l'ancien consulat d'Espagne à Bruges: Recueil de documents concernant le commerce maritime et intérieur, le droit des gens public et privé, et l'histoire économique de la Flandre, vol. 1 (1901), 111 (23 March 1472). This concerned a dispute on average adjustment, in which Castilians invoked a different rule than their opponents, Genoese merchants. 26 Gilliodts-Van Severen (n. 25), 88–90 (15 February 1459 (n.s.)). 23

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When from around 1490 members of the Bruges merchant community increasingly transferred their commercial activities to Antwerp, they brought with them their expertise in marine insurance. However, in Antwerp premium insurance was not immediately widely offered or embraced. This followed from path dependence in practices of naval transport in that city and from a relative lack of facilitating practices, foremost being broking. In the first two decades of the 16th century, Antwerp merchants trading back and forth between Arnemuiden (Middelburg) or Flushing (Vlissingen), both of which were Antwerp-dependent ports, on the one hand, and Iberian or French destinations on the other, typically allocated marine risks through provisions in the charter or carriage contract. Ship owners, charterers, and masters could use these contracts to transfer to the counterparties the financial risk of cargo losses arising from wreck, capture, or arrest. To further manage risk, convoys with other ships were sometimes organized. 27 In the early 1500s disputes in Antwerp that related to freight damaged during naval transport were often framed in terms of general average or the captain’s liability. According to the rules that were imposed by the Antwerp aldermen, general average applied when losses had been inflicted deliberately in order to save a vessel (such as by cutting away an anchor or when cargo was jettisoned).28 If only merchants of one nationality were owners of the merchandise, then the consuls of their nation administered the case. Adjusters calculated the mass and distributed the damages rateably among the merchants and the skipper. However, if the owners were of different nationalities, the Antwerp Municipal Court of Aldermen resorted to experts for average calculations. 29 Particular average was applied when losses were accidental or weather-related. Rather than dividing the cost, in that case the owners of the lost or damaged cargo received no compensation, unless the loss could be attributed to the conduct of the captain. 30 For cargo owners, risk transfer clauses in contracts of charter or carriage could ensure more cover for their risks. In the first two decades of the 16th century, this was commonly done for transits to and from the Scheldt estuary. Moreover, many shipments to the Low Countries, even though they were delivered to or sent from Antwerp, were still insured by underwriters of Southern-European origins in Bruges.31 The transition from Bruges to Antwerp, which started around 1490, was a gradual one; even in the third quarter of the 16th century, Bruges residents had a part in the maritime trade that was directed towards Antwerp as well as in

___________ 27

For references to archival sources: De ruysscher, Antwerp 1490–1590 (n. 5), 80 f. De ruysscher, Antwerp 1490–1590 (n. 5), 80. 29 De ruysscher, Antwerp 1490–1590 (n. 5), 80. 30 De ruysscher, Antwerp 1490–1590 (n. 5), 80 f. 31 De Groote (n. 1), 17. 28

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the marine insurance in that city. 32 Insurance was also taken out abroad: in the 1490s and 1500s, alum shipped from Mazarrón and Cartagena to Antwerp was commonly insured in Burgos, as were cargoes of wool and wood that were shipped from Bilbao and Bordeaux, respectively, to ports in the Southern Netherlands.33 These developments persisted until around 1530. Conventional insurance underwriting remained very exceptional in Antwerp. Traders with roots in southern Europe acquired premium insurance in Bruges, also in Burgos, and most probably in Italian cities as well. By contrast, French, Dutch, and German merchants continued to rely on the contractual liability of charterers and shipmasters. 34 Furthermore, also structural factors had their part. In the 1500s in Antwerp, trade at fairs and overland imports had been dominant. Still in the 1510s and 1520s, and for a long time thereafter, merchants trading in Antwerp mostly relied on shipmasters from other cities, often Dutch, and they rented ships rather than owning them.35 Yet, mostly from around 1530, premium insurance started to gain more attention in Antwerp. This went together with the concentration of commerce at a new Bourse building (Beurs) and with the opening up of broking. 36 In the 1530s and 1540s, the slow spreading of the technique of premium insurance was mostly restricted to groups of immigrant Southern-European merchants. Netherlanders occasionally bought insurance, but they did not act as underwriters. Moreover, the profile of these Southern-European underwriters was that of successful businessmen, being involved in prominent merchant houses. 37 The Florentine style of writing contracts was copied from Bruges, but some differences in contents remained among contracts that were drawn up in Antwerp. For example, of the few Antwerp contracts that were made in the 1540s, 1550s, and 1560s and which have been preserved, some include barratry (insurance of damage-inducing conduct by the skipper and crew) and/or negligence as risks covered, others did not. 38 ___________ 32 For example, in the later 1550s and in the 1560s Antonio del Rio was involved in the debates surrounding the Ferrufini proposal in Antwerp. He was active as marine underwriter in Antwerp and was consul of the Castilian nation in Bruges. See De ruysscher and Puttevils (n. 5), 37, 42; Verlinden (n. 3), 43. Another example is Juan Henricquez, Antwerp’s leading marine insurance broker in the early 1560s, who was born and lived for a long time in Bruges. See De Groote (n. 1), 152–154. 33 Hilario Casado Alonso, Comercio internacional y seguros marítimos en Burgos en la época de los Reyes Católicos, in Bartolomeo Dias e a sua época (1989), 606–608. 34 De ruysscher, Antwerp 1490–1590 (n. 5), 82. 35 De ruysscher, Antwerp 1490–1590 (n. 5), 82. 36 De ruysscher, Antwerp 1490–1590 (n. 5), 82 f. 37 De ruysscher and Puttevils (n. 5), 31 f.; Adolf Hofmeister, Eine Hansische Seeversicherung aus dem Jahre 1531, (1886) 5 Hansische Geschichtsblätter 169–177. 38 De Groote (n. 1), 129 f.

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Due to a lack of sources produced by merchant nations, it is not possible to tell whether such differences reflected differences in customs or rules upheld within nations. II. Dispersal, standardization, and professionalization (16th to 18th centuries) When marine insurance became popular in Antwerp, the Antwerp judges were confronted with more and more cases in which underwriters invoked fraud by the insured. The judges responded by devising basic rules, mostly of a procedural nature, and sometimes concerning the contents of the insurance contracts as well. Procedural norms related to the prescribed terms of compensation payment by the underwriters (e.g., two months or one year). A rare rule on the contents of insurance policies stated that insurance after loss was legitimate only if the insured had been unaware of the loss.39 Interventions from the princely government were, as they had been in Bruges, aimed at avoiding protraction of lawsuits. In 1537, the prince, Emperor Charles V, imposed that any trial on marine insurance had to be preceded by deposit of the claimed amounts in the court.40 But in spite of this core set of rules, certain confusion remained as to which provisions of contract were lawful. When in the 1560s the Castilian nation of Bruges advocated their own ordinance for marine insurance, its leaders emphasized that no one knew what the marine insurance customs of Antwerp were,41 this notwithstanding the fact that at around that time Antwerp insurance contracts more commonly referred to the ‘customs of the Antwerp Bourse’. However, this formula did not refer to an elaborate or exhaustive set of customs, but rather to some generalized insurance practices, say the Florentine style of drawing up policies, and to the few rules imposed by the Antwerp Municipal Court. 42 Most often, the phrase was accompanied with a reference to the customs of the London Strada (Bourse).43 Some convergence had developed, but as mentioned, as to some provisions of contract differences remained in practice and in views regarding their legal force. Around the end of the 1540s, the situation became urgent. Starting in the middle of 1547 there was a steep rise in lawsuits brought in the Antwerp courtrooms concerning marine insurance. This followed from attacks of Scottish and French ___________ 39

De ruysscher and Puttevils (n. 5), 39, n. 41. Charles Laurent et al. (eds.), Recueil des Ordonnances des Pays-Bas, 2nd series, vol. 4 (1893), 34 f. (princely ordinance, 25 May 1537); Oskar De Smedt, De keizerlijke verordeningen van 1537 en 1539 op de obligaties en wisselbrieven. Eenige kanttekeningen, (1940) 3 Nederlandsche Historiebladen 15–21. 41 Coronas González (n. 5), 390, n. 18; Verlinden (n. 3), 60. 42 De ruysscher and Puttevils (n. 5), 40, n. 43. 43 De Groote (n. 1), 126–129. 40

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privateers, which increased the number of claims for insurance compensation. In response, underwriters chose to filibuster the trials, as they had done so often before. The princely government decided to step in and to issue new legislation on marine insurance. In 1549, it invited merchants residing in Antwerp – but also in Bruges – as well as captains and seamen of different ports in the Low Countries for their views, and they commented on draft ordinances. 44 In January 1550, a princely law was enacted that pursued a policy of convoys. The arming of ships received more attention than insurance. It was even thought that insured ships were less armed and thus more prone to capture. Nevertheless, rules determining the contents of marine insurance contracts were imposed as well. For example, any marine insurance of cargo encompassed a maximum of nine-tenths its value.45 It seems that opinions of consulted merchants had been taken into account. A draft version of the law, dating from June 1549, had limited the portion of merchandise that could be insured to one-third for ships that did not sail to the Mediterranean and it had also ruled out hull insurances, both of which the 1550 law allowed under certain conditions.46 The ordinance did not solve the crisis that had begun at the end of the 1540s, and the problems lasted well into the 1550s. They were caused by a sudden shock in naval trade, but underlying deficiencies were more fundamental. Since the 1530s, many more merchants had been willing to take out insurance on their freight. Because marine insurance became a common product that was offered at the Antwerp Bourse, the vital exchange of information among the parties concerned was often flawed. Antwerp marine insurance had speculative features. Underwriters wagered on the premium, whereas insurance buyers only insured small portions of their merchandise, just in case. It can be assumed that around the middle of the 16th century most parties to marine insurance contracts were not well versed in risk calculation. Yet this did not prevent a profusion of underwriting. Marine insurance became popular, and in this period of the middle of the 1500s, Netherlanders and local merchants were more frequently signing marine insurance contracts as insurer as well. 47 ___________ 44

Sicking, Los grupos de intereses marítimos (n. 5), 169 and 177. For the ordinance, see: Jean Lameere (ed.), Recueil des Ordonnances des Pays-Bas, 2nd series, vol. 6 (1922), 3–13 (19 January 1550 n.s.). On the history of this ordinance, see additionally Sicking, Los grupos de intereses marítimos (n. 5), also idem, Stratégies de réduction de risque (n. 5), 797 f. and Jan Craeybeckx, De organisatie en de konvooiering van de koopvaardijvloot op het einde van de regering van Karel V: bijdrage tot de geschiedenis van de scheepvaart en de admiraliteit, (1949) 3 Bijdragen voor de geschiedenis der Nederlanden 188–193. 46 Sicking, Los grupos de intereses marítimos (n. 5), 197. 47 Goris (n. 1), 641 f. (August 1543, mentioning Jacques de Cordes, Balthazar de Cordes, and Aert Nieulant) 45

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The 1550 princely ordinance, and another one dating from 1551 which was drafted along similar lines,48 did not tackle the questions as to which provisions in marine insurance contracts were valid. The Florentine style was generally embraced in practice. Insurance contracts were therefore concise, and risks were described broadly and in general terms, but questions remained. For example, it was not clear as to whether merchandise such as victuals, leaky goods, weapons, and valuable cargo had to be made explicit in the contract; the same was true as to the name of the ship and the skipper. It also remained unsure – as was mentioned – whether barratry and/or negligence were insurable. Some of these questions concerned differences in insurance practices among groups/nations of foreign merchants. Barratry, for example, was considered a risk that could be addressed in insurance among Dutch, French, and Florentine merchants. However, most Spanish traders were reluctant in this regard.49 Starting from 1555, almost 17 years were spent debating how the Antwerp insurance market, and its rules regarding marine insurance, were to be organized. In October 1555, Giovanni Battista Ferrufini (died around 1562) proposed to eradicate the then-daily discussions and lawsuits in Antwerp concerning marine insurance by way of making broking centralized and mandatory. Ferrufini was a merchant who had probably come from Piedmont but who by that time resided in Antwerp. According to him, all marine insurance contracts had to be drawn up by one official broker in the ‘best form possible’. Ferrufini was most probably an outsider to the insurance business, and he sought to create an office for himself, while conflating practices and rules on marine insurance that were practised in other merchant cities. He pretended that his proposal would end the practices of brokers inventing contract provisions and presenting them as customs. In 1557, when Ferrufini’s proposal seemed to stall, he presented a draft standard insurance policy. Ferrufini’s aim of centralizing the Antwerp insurance market triggered resistance from within large groups of traders. From October 1557 onwards, different nations of merchants were involved in the strife. Italian nations urged the appointment of several brokers, representatives of the nations, and they later advocated freedom of choice of broker. Ferrufini also proposed to draw up a new ordinance for the Antwerp insurance market, and several nations tried to ascertain that they would have a say in its contents. All merchants were in favour of regulation, but they were equally anxious of being confronted with rules that were not congruent with practice or with their convictions as to what were appropriate contract provisions. Ferrufini exaggerated the existence of a ‘common style’ of insurance and proposed strict rules on controversial provisions, which ___________ 48 49

Recueil des Ordonnances des Pays-Bas (n. 45), 163–177 (19 July 1551). Rossi (n. 5), in manuscript, 173–176.

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added to the opposition. A compromise text, which was presented in 1558 and which had been written under the supervision of four representative merchants, softened Ferrufini’s strict approaches, which had been revealed in his standard policy of the preceding year. Insurance after loss was acknowledged, for example, and in spite of Ferrufini’s plan to prohibit it. A new draft ordinance was formulated in 1559, and even though it confirmed the more lenient stances of the previous year, it was still met with opposition, and therefore it was not issued as law.50 When Ferrufini retreated or passed away, around 1562, the princely government took the initiative of promulgating a law that did not take into consideration what had been drawn up as compromises in the years before. Insurance after loss, as well as barratry, were banned. The law imposed the use of a standard insurance policy that was attached to the law, and it inhibited both interpretation beyond its contents as well as the addition of new provisions.51 After a temporary princely ban of all insurance in March 1569,52 which with regard to marine insurance was nonetheless ignored in mercantile practice, the Antwerp aldermen submitted to the princely councils a project of municipal legislation. In this draft, many parts of the 1558 compromise were included.53 It seems that this text influenced the officials in Brussels. In January 1571 a new princely law on marine insurance was issued that mostly followed the views of the Antwerp administrators. 54 This ordinance was never revoked or changed thereafter, and it would in general remain the legal backbone for marine insurance in Antwerp and the Low Countries for more than two centuries.55 In 1582 a new compilation of Antwerp municipal law was made, this time under the Calvinist and anti-Spanish regime within the city, and it confirmed the 1571 rules. Even though it did not gain princely support, not even after the 1585 re-integration of Antwerp in the Spanish empire, it was a prolific law book that served as reference to Antwerp law until the end of the 18th century. The 1582 compilation was very popular and was applauded for its quality, but it was not ___________ 50

De ruysscher and Puttevils (n. 5), 41–45. Ordonnantien … Placcaerten van Vlaenderen, vol. 2, Antwerp 1662, 307–334 (princely law 31 October 1563). 52 Reatz (n. 2), Annexes, no 1, 43–51. 53 Guillaume De Longé, Coutumes de la ville d’Anvers (1870–1874), vol. 1, 429–705. The text of the compilation was submitted in July 1570; the ban on insurances lasted until October of that year. See for a detailed analysis Dave De ruysscher, ‘Naer het Romeinsch recht alsmede den stiel mercnatiel’. Handel en recht in de Antwerpse rechtbank (16–17de eeuw) (2009), 51–55. 54 Jean-Marie Pardessus (ed.), Collection de lois maritimes antérieures au XVIIIe siècle, vol. 4 (1838), 103–119 (princely law, 20 January 1571 n.s.). 55 Charles Verlinden, De zeeverzekeringen der Spaanse kooplui in de Nederlanden gedurende de XVIe eeuw, (1948) 2 Bijdragen voor de Geschiedenis der Nederlanden 199. 51

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homologated as princely law.56 The 1582 rules on marine insurance received approval from the community of merchants. 57 Summarizing all of the above, it can be stated that the 1571 princely law was the first consistent marine insurance law in the Low Countries, which also addressed the contents of contracts. However, in Bruges some corporatist tendencies remained, and it is unsure whether the city maintained a separate position with regard to marine insurance after the 1570s. In 1551 the Castilian nation of Bruges attempted to establish a sister-nation in Antwerp as well. The Castilians in Bruges received support for their claims from the Antwerp magistrate of aldermen, but the city government of Bruges vehemently opposed the plan. With the support of the Estates of Flanders, Governess Mary of Hungary was pressured into rejecting the proposal in 1565.58 But in spite of this setback, the consuls of the Castilian nation in Bruges managed to extend their jurisdiction over maritime affairs considerably, and even to the detriment of the Antwerp Municipal Court and other merchant nations in Antwerp. In January 1569, the Castilian nation of Bruges obtained princely acknowledgement for an ordinance containing rules on marine insurance (106 articles) that were signed by its members and also by others who submitted themselves to the nation’s authority. To the ordinance five insurance forms were added. Even though the ordinance stipulated that it applied to insurance that was taken out in Bruges, it seems that any marine insurance contract signed by a member of the Castilian nation – even in Antwerp, and also when non-Castilians were involved – would fall under the nation’s jurisdiction.59 Registration of the insurance contract by consular officials was imposed as mandatory.60 The Castilian ordinance was enforced within the Bruges nation, at least early in the 1570s,61 but it is unsure whether it was perceived as legally applicable outside the nation. The ordinance was granted in January 1569 and was projected as entering into force beginning in 1570, but two months later, in March 1569, all types of insurance were outlawed by a princely law. When in October 1570 the ban was revoked, a new ordinance containing rules on marine insurance contracts was adopted, for the entire Low Countries, without formal exception for the Bruges’ Castilians.62 As for its contents, the Castilian ordinance reflects a considerable influence of legislation enacted in Burgos in 1538 and, to some extent, legislation issued in ___________ 56

De ruysscher (n. 53), 55–68. De ruysscher and Puttevils (n. 5), 46. 58 Goris (n. 1), 65 f.; Verlinden (n. 3), 40. 59 Coronas González (n. 5), 388. Contra: De Groote (n. 1), 54. 60 Verlinden (n. 3), 59. 61 Coronas González (n. 5), 398. 62 De Groote (n. 1), 56 f. 57

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Seville in 1556.63 This notwithstanding, and even though the ordinance established separate jurisdiction, the ordinance demonstrates high similarities with Antwerp rules as they had been devised in the 1558 and 1559 compromises. This does not necessarily betray direct influence from Antwerp as it may also be due to a general convergence of rules that were more or less following the Florentine example.64 In Antwerp, the most concrete result of the new princely and municipal laws was that the standard policy that was attached to the princely ordinance of 1571 was quickly adopted among merchants. Before 1560, marine insurance contracts had usually been written in notarial deeds. But already by 1590, printed insurance policies, which contained the 1571 form, served as a basis for almost every Antwerp marine insurance contract. However, in spite of the use of printed contracts, it remained customary to add clauses in writing below the printed provisions of the contract forms, and these handwritten parts of the insurance policy still reflected negotiations between the insured (or his agent) on the one hand and the underwriters of the contract on the other.65 In the meanwhile, starting in the early 1580s, the river Scheldt was sealed off from the sea, first by the Spanish and thereafter by the rebellious Northern state which had gained control of the Scheldt estuary. In spite of a truce between the North and the South in 1609, and the end of the conflict in 1648, this situation remained the same until the later years of the 18th century. Marine insurance continued to be practised in Antwerp in the 1590s, but it declined steadily from the first decades of the 17th century onwards.66 In a new effort to obtain the princely stamp, a new version of the Antwerp municipal law was drafted, which was finished in 1608. It contained no less than 323 articles on insurance, most of them dealing with marine insurance. However, in sharp contrast to the 1582 law book, the Antwerp municipal law version of 1608 imposed more formalistic requirements and compulsory mentions onto marine insurance contracts. In so doing, the Antwerp aldermen separated mercantile practice and the official law of the city. The 1608 text was generally imbued with ___________ 63 Coronas González (n. 5) 395; De Groote (n. 1), 46 f.; Henry L.V. De Groote, Zeeverzekering, in Maritieme geschiedenis der Nederlanden, vol. 1 (1976), 207; Rossi (n. 5), in manuscript, xix and 79. 64 Telling is the inclusion of barratry for cargo policies. This was denounced in all Spanish territories until the middle of the 1500s. In 1546 Burgos allowed it. However, many Spanish cities stuck to the old position well after Burgos’s shift of policy (e.g. Seville, Bilbao). Florence and Venice acknowledged barratry, but Genoa did not. The 1569 Bruges ordinance allowed barratry, as did the 1558 and 1559 Antwerp compromise texts. See Rossi (n. 5), in manuscript, 173–175. 65 See De ruysscher, Normative Hybridity (n. 5), 153 for references to insurance forms. 66 De ruysscher, Normative Hybridity (n. 5), 151–153.

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distrust towards marine insurance. The new law stated, for example, that when bringing a lawsuit regarding marine insurance, the insured had to confirm his good faith. The insured had to acknowledge that the terms and data mentioned in the insurance contract were correct and that no other agreement had been made for insuring the same ship or merchandise. 67 Fraud in insurance was prosecuted as theft, which was a capital offence, 68 and notaries and brokers who drew up insurance contracts containing forbidden clauses were fined. 69 As a result of all this, and also because the 1608 law compilation was not well-known – and even though it received princely approval to have its mercantile sections printed – the new rules received little support from merchants remaining in Antwerp. As a result, provisions in insurance policies that were signed in Antwerp after 1608 did not differ from those that had been made before that time. 70 But marine insurance in Antwerp had dwindled in the meanwhile. However, after 1650, when the Munster Treaty ensured more security at sea than before, marine insurance in Antwerp regained some traction. As had already been the case in the first half of the 16th century, naval traffic could be insured even when the route did not concern the place where the contract was drafted and signed. The closing off of the river Scheldt thus did not pose a problem in that regard. In the second half of the 17th century, the practice of using printed insurance contract forms continued as did the use of handwritten additions, but the latter became increasingly stereotyped. This went together with a hollowing-out of insurance obligations, especially with regard to the disclosure of information between the insured and the underwriter(s).71 The structural deficiencies of the 1608 Antwerp insurance law became problematic in this period. When a dispute arose over pay out of an insurance contract, sections of the 1608 compilation could provide arguments in the Antwerp municipal court against pleas for compensation. This was the more so because most insurance policies had moved away from the official norms by that time, and even from provisions in the 1571 princely law and the 1582 municipal Antwerp compilation, which had been accepted as fair when they had been imposed. Merchants anticipated confrontation with the official law in their contracts by providing that no law could be held against the contract and by inserting mandatory mediation by peers as a provision in the insurance policy. 72 The Antwerp aldermen-judges, when being confronted with the new style of drawing up insurance ___________ 67

Compilatae, Title 11, s. 266 (De Longé (n. 53), vol. 4, 310). Compilatae, Title 11, s. 24 and 97 (De Longé (n. 53), vol. 4, 208 and 240). 69 Compilatae, Title 11, s. 58 (De Longé (n. 53), vol. 4, 224). 70 De ruysscher, Normative Hybridity (n. 5), 152 f. 71 De ruysscher, Normative Hybridity (n. 5), 157–161. 72 De ruysscher, Normative Hybridity (n. 5), 161–163. 68

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contracts, pushed the boundaries of the law further. For example, in the first decade of the 18th century, they accepted that a general clause ‘perishable or not perishable’, covering transports of valuables, even of gold and silver, was sufficient to hold the underwriters accountable. 73 Insurance after loss, as well, was broadened. In 1571, the princely law had imposed as a presumption that any loss that had occurred before the contract was signed rendered the contract null and void if news of the loss could have reached Antwerp when the contract was being signed. In order to fix the date as to when tidings had arrived, it was held as a rule that news travelled at the speed of one and a half mile per hour. In the 1660s and 1670s, the Antwerp Municipal Court decided not to adhere to this calculation, but instead to impose an oath of abjuration on the claimant (the insured) that he had not been aware of the loss when signing the contract. 74 During the Early Modern period, jurisdiction over marine insurance was vested in the courts and in the bylaws of municipal governments, to the extent that the prince did not intervene. Princely laws were deemed possible and were in fact – as mentioned – issued, most probably because naval trade was considered de regalibus. Because marine insurance was a subject that until the later 1540s did not receive much attention from government officials in Mechelen, after 1531 Brussels admiralty courts at the princely level of government most probably did not decide disputes in marine insurance cases. Since 1540, the admiral of the princely fleet had jurisdiction. Because his tasks were broadly defined in the abovementioned princely laws of 1550 and 1551, jurisdiction over marine insurance contracts would have been possible, but this opportunity seems not to have been seized upon. This judgment is based foremost on an absence of references in 16th-century Antwerp and princely source materials to such a jurisdiction. However, because no records of the admiralty courts predating 1596 have been preserved and because little research has been devoted to the matter, it remains difficult to be sure.75 In 16th- and 17th-century France, occasionally the admiralty courts, and sometimes the commercial courts, heard cases of marine insurance.76 In the middle of the 18th century, when the Southern Low Countries were under Austrian rule, and notwithstanding the closed-off Scheldt, some merchant ___________ 73

De ruysscher, Normative Hybridity (n. 5), 164. De ruysscher, Normative Hybridity (n. 5), 165–167. 75 On the jurisdiction and archives of admiralty courts, see Gustaaf Asaert, Admiraliteiten (tweede helft 14de eeuw – 1794), in: Erik Aerts et al. (eds.), De centrale overheidsinstellingen van de Habsburgse Nederlanden (1482–1795) (1994), 486–494; Jacques Bolsée, Inventaire des archives des Conseils et Sièges d’amirauté (1932), 6–22. 76 Pardessus (n. 54), vol. 4 (1837), 226 (Rouen, juridiction consulaire, 1550s); Alexandre Saint-Léger, La Flandre maritime et Dunkerque sous la domination française (1659–1789) (1900), 148–149 (Admiralty of Dunkercque, since 1671). 74

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houses in Antwerp still ventured in marine insurance. However, the volume of contracts that were taken out was nothing compared to when marine insurance had been at its heyday in the city, between 1550 and 1600. As was mentioned above, in 1754 James Dormer established a Royal and Imperial Chamber of Insurance. In the 1720s the Bruges Chamber of Commerce had already recommended the establishment of such a national company.77 Among other types of insurance, Dormer’s corporation handled marine insurance. It was active in the Duchy of Brabant and operated from Antwerp. It was in fact a corporation, which received a monopoly for its business. 78 Some of the contracts that were handed out have been preserved, and they show large continuity with the contractual style of the 16th and 17th centuries.79 The Compagnie d’assurance de la Flandre Autrichienne, which as mentioned was established in 1782, was a corporation comparable to Dormer’s. It seems that these insurance companies were now involved in actuarial activities. They weighed the premium on the basis of a careful consideration of risks,80 and this was a novelty compared to the standardized insurance contracts of the second half of the 17th century. The more conscientious approach towards risk explains why such companies were more viable than they had been in the 16th century. An Antwerp-based partnership, established and reestablished by Christopher Pruynen (died around 1568) in 1553, 1559, and 1563 went bust in 1564. It had minimal leverage capital and was quickly drained by the compensation claims of insured.81 By contrast, the mentioned 18th-century corporations raised stock capital on shares and had a broad geographical scope, with directors and commissioners signing contracts in different locations. 82

___________ 77

Meel, (n. 7), 424. On the Chamber, see Ludo Couvreur, De eerste zeeverzekeringscompagnie ten Antwerpen (1754–1793?), 1936 Tijdschrift voor economie en sociologie 146–174; Meel, (n. 7), 416–469; Houtman-De Smedt (n. 7), 61–68. 79 Couvreur, Recht en zeeverzekeringspractijk (n. 7), 212–214. 80 Couvreur, Recht en zeeverzekeringspractijk (n. 7), 213 (exclusion of victuals); idem, De eerste zeeverzekeringscompagnie (n. 78), 170 (premiums of 30–40%); Journal de commerce: journal de commerce et d’agriculture, Brussels, September 1760, 178: ‘Mais il se présente souvent dans le Commerce des risques extraordinaires pour lesquels il est heureux que les Négocians puissent avoir recours à des Compagnies d’Assurance. La Chambre d’Anvers calcule cette sorte de risque, & les accepte, pourvu que la prime soit proportionnée au danger. …’; Meel, (n. 7), 439–441. 81 De Groote (n. 1), 164–167. 82 Couvreur, De eerste zeeverzekeringscompagnie (n. 78), 163–165, 166. 78

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III. Codification of marine insurance and standardization of practice (1795 to c. 1850) The French occupation of the Southern Low Countries had a profound impact on its insurance markets. Following the consolidation of the new French rule in 1795, the river Scheldt was reopened. However, for some time this was mere principle. Protectionist measures hampered the re-development of the Antwerp port. Moreover, at the end of the first decade of the 1800s, the English-French war resulted in a complete breakdown of the still hesitant naval traffic going to and from Antwerp.83 The imprint of the French regime on ‘Belgian’ marine insurance concerned foremost the issuance of new legislation. In January 1808, the new Code de commerce was imposed on all parts of the French Empire, including the Southern Netherlands. It was through a strange twist of history that many of the rules that had applied in Antwerp in 1571 and 1582 were now brought back to its port, under the guise of French law. In fact, many of the maritime sections of the Code de commerce had been copied from the 1681 French Ordonnance de la marine. The drafters of this latter ordinance had closely followed many of the European maritime and insurance regulations of their day. As a result, they had drawn on Dutch municipal bylaws and treatises written by Dutch authors. It seems that in 1679 there even were contacts between a delegate of the French compilation committee and the Dutchman Adriaan Verwer (1655–1717), who was the author of a wellknown monograph on average.84 The Dutch ideas were in fact for a large part older than the 17th century, and many of them can be traced back to the mentioned 1571 and 1582 laws regulating the Antwerp insurance market. A clear example is the clause ‘on good and bad tidings’, which had developed in Antwerp by the 1580s. It served to avoid discussions on insurance after loss even if the ‘two hours three miles’ test – which had been imposed in the 1571 princely law – failed. If the mentioned provision had been inserted into the insurance contract, the underwriter could only have the insurance contract annulled if he was able to ___________ 83 Karel Veraghtert, De havenbeweging te Antwerpen tijdens de 19de eeuw: een kwantitatieve benadering, vol. 1 (unpublished PhD-dissertation KU Leuven 1977) 9 and annex 25. 84 Bernard H.D. Hermesdorf, Adriaen Verwer (1655–1717) en de Ordonnance de la Marine (1681), Rotterdams Jaarboekje 7th series, vol. 5 (1967), 227–261; Olav Moorman van Kappen, L'interpénétration historique des droits maritimes de la France et de la Hollande: l'exemple de l'ordonnance de la Marine, in: Willem Frijhoff (ed.), Les Pays-Bas et la France des guerres de religion à la création de la République Batave (1993), 105–113; Margarita Serna Vallejo, La ordenanza francesa de la marina de 1681: unificación, refundición y fraccionamiento del derecho Marítimo en europa, (2008–2009) 78–79 Anuario de historia del derecho español 248–249; René Warlomont, Les sources néerlandaises de l’ordonnance maritime de Colbert (1681), (1955) 33 Revue belge de philologie et d’histoire 333–344.

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prove that the insured had heard about the damage at the time when he engaged in the insurance contract.85 It was this rule that migrated to the North from the later 16th century onwards,86 and it was then later copied into the Ordonnance sur la marine (book 3, ch. 6, s. 40-41). The compilers of the Code de commerce had revised rules of commercial law that had been laid down in late-17th-century French laws. Occasionally they deviated from the contents of the 1673 Ordonnance sur le commerce, but with regard to maritime affairs they copied the mentioned Ordonnance sur la marine almost verbatim. As had been the case in 16th-century Antwerp, therefore, the Commercial Code provided general cover for ‘tous accidents et fortunes de mer’ (s. 350). The Code stated that victuals could be insured, provided that – as had been the case in the 16th century – they were mentioned in detail in the insurance contract (s. 365). Moreover, the Commercial Code imposed that the provision ‘on good and bad tidings’ rebuked the presumption of fraud in case the ‘two hours three miles’ test failed (s. 365–367). Therefore, all in all, there were minor differences with the marine insurance rules that had been applied in late 16thcentury Antwerp. But, in some instances, both the Ordonnance sur la marine and the Code de commerce were conservative: barratry for example was excluded, at least if no express provision of contract included it as covered risk (s. 353). One may suspect that this legislative framework was welcomed in the Southern Netherlands. However, it is not possible to be sure about this. Mercantile practice, and how it responded to the new French legislation, has received little scholarly attention, unfortunately. Moreover, it seems that insurance contracts for the French period have scarcely been preserved. Still, there are indications that the reopening of the river Scheldt had the effect of substantively re-launching marine insurance in Antwerp. However, this was only after the French had left and when in 1815 the Southern Low Countries had become re-united with the North after some 330 years of separation. In the years leading up to Napoleon’s defeat, Antwerp’s marine insurance business struggled, and foreign marine insurance companies stepped into the void that was left by Antwerp merchants that retreated from insuring freight and vessels. 87 In 1812, two official marine insurance brokers were appointed, but to little avail. 88 Under the United Kingdom of the Netherlands (1815–1830), the Scheldt no longer crossed borders as had been the case for centuries. At first, foreign marine insurance companies tried to occupy the Antwerp market further. But in January ___________ 85 Compilatae, Title 11, s. 13–22 (De Longé (n. 53), vol. 4, 204–208); De ruysscher, Normative Hybridity (n. 5), 159 f. 86 van Niekerk (n. 4), vol. 2, 867–878. 87 Hannes and Laureyssens (n. 10), 98; Veraghtert (n. 10), 10. 88 Hannes and Laureyssens (n. 10), 98; Veraghtert (n. 10), 10

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1821 the offices of foreign insurers were closed, in order to stimulate local initiatives.89 King William I sought to promote trade as much as possible. State-controlled universal banks such as the Société Générale acquired substantial equity and board positions in the companies in which they invested. Many of these firms acquired the status of a corporation after government approval, and a large share of them were marine insurance corporations.90 More than half of the corporations in the southern part of the United Kingdom that between 1815 and 1830 received official acknowledgment were insurance companies, most of them being specialized in marine insurance.91 The strong ties existing between national governments and these marine insurance corporations did not prevent them from attracting clients from neighbouring countries; most of them had agents signing insurance policies on their behalf in all major neighbouring ports. 92 But, even with Antwerp’s lift-off, the Dutch government favoured taking out marine insurance in Amsterdam, where some 28 marine insurance corporations were active in 1828.93 Belgian independence (1830) ended this unfavourable policy. Even though in 1831 the river Scheldt was again closed with tax barriers, by 1840 around 10 corporations were selling marine insurance in Antwerp. Not all of them lasted long, but the oldest managed to survive well into the 20th century.94 In the 19th century, when Belgium was considered as being the most dense in insurance companies of all European countries,95 this was foremost due to its marine insurance industry. Antwerp remained the focal point within the country and was internationally considered as one of the leading marine insurance centres in the world. However, in Brussels as well some general insurance companies were involved in marine insurance, among other types of insurance, through agents working in Antwerp and in other ports (i.e. Compagnie de l’Union belge et étrangère (1824), Compagnie d’assurances réunies (1830)).96 ___________ 89

Willemse, Het ontstaan en de ontwikkeling (n. 10), 27 f. Willemse, Het ontstaan en de ontwikkeling (n. 10), 31. 91 Hannes and Laureyssens (n. 10), 98; Willemse, Het ontstaan en de ontwikkeling (n. 10), 31 f. 92 Raymond-Balthasar Maiseau, Annuaire du commerce maritime. Manuel du négociant, de l’armateur et du capitaine, vol. 2 (1834), 523–524. 93 Willemse, Het ontstaan en de ontwikkeling (n. 10), 44–47, 48–50. 94 Hannes, Het verzekeringswezen in België (n. 10), 85–86. 95 Peter Borscheid, Europe: overview, in: idem and Niels Viggo Haueter (eds.), World Insurance. The Evolution of a Global Risk Network (2012), 37–66, 39. 96 Julienne Laureyssens, De naamloze vennootschappen en de ontwikkeling van het kapitalisme in België (unpublished PhD-dissertation Ghent University 1970), 25; Willemse, Het ontstaan en de ontwikkeling (n. 10), 33. Laureyssens states that only one (Belgian) company established in Brussels was involved in marine insurance (i.e. the Compagnie d’assurances réunies), but in fact also Union belge insured against naval risks. See 90

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Beginning in the 1820s, insurance brokers and underwriters in Antwerp started to join efforts, and the different corporations that sold insurance in 1824 drafted a communal general marine insurance policy for the Antwerp harbour. 97 This standard contract filled a legislative gap: the Code de commerce did no more than provide a basic blueprint for marine insurance. With hundreds of contracts being signed, it became lucrative to use a policy form. The Antwerp 1824 policy addressed issues that had not been detailed in the Commercial Code (it excluded insurance for contraband for example), but it also sought to deviate from the Code’s sections. A clear example is abandonment (délaissement). Upon presumed loss, or when upon an incident the extent of damages was still uncertain, the insured could forfeit his ownership rights in cargo in order to swiftly claim compensation. According to the Napoleonic Commercial Code, this was possible irrespective of which portion of the shipped merchandise was lost (s. 369). However, the 1824 policy restricted abandonment to a minimum loss of three-fourths in certain cases (s. 4).98 Yet in other regards, the 1824 policy was more lenient than the law. For example, the 1824 policy was ‘on good and bad tidings’ (s. 13), whereas the Commercial Code considered this an optional term (s. 367).99 In 1828, insurance broker August Morel (1803–1865) established Veritas (later Bureau Veritas) in Antwerp. In doing so, he followed the example of the London bureau and insurance association Lloyd’s. At Lloyd’s, objective information as to the state of ships was registered and disclosed. Bureau Veritas was more ambitious than Lloyd’s in that it also provided data on ships sailing all across Europe, and not just those in the British territories. Moreover, Veritas made public information on marine insurance premiums elsewhere, and in its first years received commission for insurance policies sold on behalf of foreign underwriters.100 Morel also established several marine insurance companies himself, which however quickly went bankrupt.101 It is unclear how Bureau Veritas interacted with the Nautical Committee, which was a body of experts assessing ___________ Louis François Bernard Trioen, Collection des statuts de toutes les sociétés anonymes et en commandite par actions de la Belgique. Recueilles et mis en ordre d’après les renseignements fournis par les sociétés elles-mêmes; suivies de tableaux synoptiques et d’une notice sur les emprunts et les fonds publiques cotés dans toutes les bourses de l’Europe, vol. 1 (1839), 173. 97 Gabriel Lafond de Lurcy, Guide de l’assureur et de l’assuré en matière d’assurances maritimes (1837), 97–101. 98 Victor Jacobs, Étude sur les assurances maritimes et les avaries faite en vue du Congrès de Droit commercial d’Anvers (1885), 48 f. 99 Jacobs (n. 98), 30. 100 Hannes, Het verzekeringswezen in België (n. 10), 88; Willemse, Het ontstaan en de ontwikkeling (n. 10), 58, 61. 101 Hannes (n. 12), 30 f.; Willemse, Het ontstaan en de ontwikkeling (n. 10), 65–77.

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the state of ships and which was linked to the Antwerp commercial court. 102 All in all, the aura of Antwerp marine insurance did not suffer from the regular bankruptcies of insurance corporations. The 1824 policy was regularly applied, and also elsewhere, for example in French ports.103 Authors commenting on marine insurance in the middle of 19th century, even foreign ones, commonly referred to its provisions.104 In 1844, 1859, and 1867, the Antwerp policy was updated, to a limited extent. The 1859 policy remained the core version, and this was so even late in the 20th century, when it was still in use. 105 As was mentioned in the first part on non-marine insurance, in 1874 Belgian legislation on insurance was issued. This concerned insurance in general, not marine insurance in particular, even though it applied as well to marine insurance in the absence of more specific laws. In 1879, the sections on maritime affairs in the Code de commerce, which had remained in force under the Belgian regime, were revised, as well as its paragraphs on marine insurance. 106 The 1879 lawmakers refined some of the articles of the Code de commerce but also copied a great many of them. As a result, many of these ‘new’ articles of law can be traced back to the 16th century (e.g. the rule stating that ‘victuals have to be mentioned in the contract’: s. 208). Moreover, the new Belgian law had been influenced by the Antwerp policies. A remarkable change – as compared to the 1807 Code de commerce but in accord with a change in the Antwerp policy in 1859 – was that the risk of war became optional, and not assumed, 107 as had been the case throughout the history of marine insurance to that point. The history of the 1879

___________ 102 Louis Baudez, Ontstaan van de Nautische Commissie bij de Rechtbank van Koophandel te Antwerpen, in: Liber amicorum Tricot (n. 11), 51–60. 103 Encyclopédie du commerçant. Dictionnaire du commerce et des marchandises …, vol. 1 (1839), 155 ‘Nous transcrivons la formule de la police d’Anvers, qui est suivie dans beaucoup de nos ports français …’. 104 For an English version, see J. Vaucher, A Guide to Marine Insurances Containing the Policies of the Principal Commercial Towns in the World (1834), 16–20. 105 ‘Assurances maritimes’ (n. 115), 850, nos 592–593; Robert De Smet, Les assurances maritimes. Traité théorique et pratique de droit comparé (1934), 727–734; Alfred Goemaere, Place d’Anvers. Assurances maritimes. Guide pratique pour le négociant contenant le résumé des conditions d’Anvers (1882), 2–7; Hollenfeltz du Treux (n. 11), 293; Erik Van Hooydonk, Transportverzekering in historisch perspectief, in: Marc De Decker et al. (eds.), Handboek Transportverzekeringen. Karakteristieken, wettelijk kader en documenten (1995), 1.1.5/2, 55. 106 Ernst Holthöfer, Handelsrecht: Belgien, in: Helmut Coing (ed.), Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol. 3/3 (1986), 3276–3395, 3324–3332. 107 ‘Assurances maritimes’, in: Edmond Picard and Napoléon d’Hoffschmidt (eds.), Pandectes belges. Encyclopédie de législation, de doctrine et de jurisprudence belges, vol. 10 (1883), 688–879, 854 no 607; Jacobs (n. 98) 32.

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law has yet to be studied, and the question of how marine insurance practice was a factor in the debates leading up to the legislative reform remains open. The same questions regard general average, which saw a similar private ordering as marine insurance, but of more international scope. Starting from 1860, efforts were made to draw up rules regarding general average that would be implemented across the world. In 1864, the so-called ‘York Rules’ were drawn up, and in 1877 the project was revised at a conference held in Antwerp. Since 1881 bills of lading, charter parties, and insurance contracts have been referred to as the York-Antwerp Rules.108 Again, to what extent the Antwerp practices contributed to these rules, and how their crafting related to the contemporary efforts to revise the Belgian legislation, needs to be studied further. IV. Marine insurance in Belgium: a conclusion The history of marine insurance in the Southern Netherlands, later Belgium, is a theme that needs further study. Antwerp was most certainly the most important centre of marine insurance, from around 1530 until the present day. What marine insurance looked like in other places in the Southern Netherlands is mostly unknown. Moreover, the interactions between different sources of insurance law have not fully been explored, but all available evidence points to complex relations. Hints found throughout secondary literature yield arguments for tensions between insurance practice and legislation, foremost in the 17th and 19th centuries. Moreover, there was partial convergence of rules and provisions that were used in wider markets, but also in combination with corporatist and protectionist tendencies. It is evident that not only laws but also practice, and in particular the contents of contracts, must be studied in order to come to a full understanding of how marine insurance functioned in the past.

___________ 108 Geoffrey N. Hudson and Michael D. Harvey, The York-Antwerp Rules: The Principles and Practice of General Average (2010), 2.01–2.05.

Chapter 6: Netherlands By Phillip Hellwege A. Maritime insurance ................................................................................................. 133 B. Fire insurance ......................................................................................................... 137 C. Life insurance, funeral insurance, and health insurance ......................................... 144 D. The Dutch history of insurance law in a European context .................................... 147

It proved impossible to find a Dutch colleague who was willing to cover the (Northern) Netherlands in the present volume. The reason is simple: there is the monumental work titled ‘The Development of the Principles of Insurance Law in the Netherlands from 1500 to 1800’ by the South African scholar Johan P. van Niekerk, spanning over two volumes and more than 1,500 pages. 1 In my introductory chapter I have claimed that the history of insurance law in Europe is in need of being re-told and that there is hardly any detailed doctrinal analysis of the history of insurance law; instead, we find, for example, histories of the idea and institution of insurance and a rich body of historical literature on single insurance companies. For the Netherlands, van Niekerk presents a doctrinal history of insurance law which is missing for other European countries. Thus, the Dutch history of insurance law is, prima facie, not in need of being re-told. Furthermore, one could argue that van Niekerk’s two volumes could be the proper starting point for a comparative legal history of insurance law in Europe. In all, it is obvious that a critical assessment of the state of research on the history of Dutch insurance (law) has to start with van Niekerk’s monograph.

A. Maritime insurance Van Niekerk primarily focuses on one particular yet very important aspect of the history of insurance law: the history of the law of maritime insurance. To point out the limited scope of his work is not to criticise him. Van Niekerk himself explains the particular focus of his study: 2 Researching the history of the insurance contract, its practice and law, is a completist’s nightmare. Emerging in its modern form in the thirteenth century in Italy, but having

___________ 1 Johan P. van Niekerk, The Development of the Principles of Insurance Law in the Netherlands from 1500 to 1800, 2 vol. (1998). 2 Van Niekerk (n. 1), vol. 1, xxix.

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even older roots, the development of the insurance contract, and with it insurance law, spans many centuries and occurred in many different countries in parallel and largely analogous, but by no means identical, fashion. The history of that development, in completo, has yet to be written. I had often wondered why the work of Reatz on the history of the European law of marine insurance, never proceeded beyond volume 1 ... Now I know. The study of the history of the law of insurance indeed demands the dogged perseverance of a long-distance runner.

Van Niekerk thus saw the necessity to limit his research and the scope of his book. His focus is on a specific time frame: 1500–1800. And he limits himself to maritime insurance and premium insurance, as well as to private insurance law and, more specifically, insurance contract law:3 The type of insurance with which this work is concerned, was largely determined by the period it investigates. The main form of insurance which occurred in the Netherlands prior to the end of the eighteenth century was insurance for profit, and more specifically marine insurance. I have concentrated, furthermore, on private insurance law and on insurance contract law.

He adds that he largely excludes the historical development of insurance regulation and mutual insurance, and that he only briefly touches upon fire insurance. The way how van Niekerk explains why he limits his study to the history of maritime insurance law reveals a clear understanding of how insurance as an institution and insurance law has developed: from 1500 to 1800 maritime insurance was the predominant insurance transaction in the Netherlands. By contrast, mutual insurance, fire insurance, and all other forms of non-maritime insurance were of only little relevance. Van Niekerk stresses that insurance arrived in the Netherlands only by the middle of the 15 th century, and its legal development started in the 16th century.4 [T]he development of insurance law in the Netherlands occupies ... a central position in the historical development of European ... insurance law. ... [T]his development ... was arguably one of the most important and influential in the history of insurance generally. The development of insurance law in Europe passed through the Netherlands and there, especially but not only in the seventeenth and eighteenth centuries, the fundamental principles which had evolved before were settled and refined, and from there

___________ 3

Van Niekerk (n. 1), vol. 1, xxxi. Van Niekerk (n. 1), vol. 1, xxxv. Most authors, however, claim that the first insurance contract in Bruges in the Southern Netherlands dates back to 1369/70: see above De ruysscher, 113; Thomas Dreyer, Die ‘Assecuranz- und Haverey-Ordnung’ der Freien und Hansestadt Hamburg von 1731 (1990), 21; G. Arnold Kiesselbach, Die wirtschafts- und rechtsgeschichtliche Entwickelung der Seeversicherung in Hamburg (1901), 3; Friedrich Plaß and Friedrich Robert Ehlers, Geschichte der Assecuranz und der hanseatischen Seeversicherungs-Börsen (1902), 26; Willem L.P.A. Molengraaff, Leidraad bij de beoefening van het Nederlandse Handelsrecht, vol. 3 (9th edn. 1955), 603. 4

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they were taken over in other systems and in turn in different ways influenced the subsequent position elsewhere.5

At the outset Dutch insurance law was influenced by Mediterranean customs, and its evolution was connected especially with the development of insurance law in England and Hamburg. Finally, van Niekerk explains the geographical coverage of his monograph:6 The geographical terms and description employed in this work require some explanation. The ‘Netherlands’ or the ‘Low Countries’ include, in the period under investigation, the southern Netherlands (comprising first the Burgundian principalities, then the Southern Provinces, and then the present Belgium) and the northern Netherlands (the present Netherlands or Holland). The northern part was comprised of the seven provinces which seceded from the Southern Provinces and declared their independence from Spain in 1581 and which combined … to form the Republic of the United (Northern Provinces of the) Netherlands … In this work the accent is on the legal position up to the end of the sixteenth century, in the undivided Netherlands, and on the position thereafter in the northern provinces and, more specifically, in the more important maritime centres.

On the basis of this – geographical, temporal and in terms of subject matter – circumscription of his work, van Niekerk unravels the development of insurance contract law in the Netherlands: he discusses the genesis of the insurance contract, its classification in the Roman system of contracts, its relation to the phenomena of gaming and wagering, questions concerning the chambers of insurance, and the numerous legal details concerning the insurance contract. With its focus on maritime insurance – which Van Niekerk regards to be the foundation for the development of insurance (law) as a whole – and with the work’s ideas on the development of the history of maritime insurance, Van Niekerk’s monograph is firmly rooted in the historiography on the development of maritime insurance (law) of the Netherlands.7 Furthermore, there is rich literature by economic historians on the development of maritime insurance in the ___________ 5 Van Niekerk (n. 1), vol. 1, xxxiii. See also idem, Sources of Insurance Law, in: Robert Feenstra and Reinhard Zimmermann (eds.), Das römisch-holländische Recht. Fortschritte des Zivilrechts im 17. und 18. Jahrhundert (1992), 305–327, 306. 6 Van Niekerk (n. 1), vol. 1, xxxiii f. 7 In addition to the literature cited by De ruysscher, 110–132, see from the rich literature the accounts of Violet Barbour, Marine Risks and Insurance in the Seventeenth Century, (1928) 1 Journal of Economic and Business History 561–596; Tjalling J. Dorhout Mees, Schadeverzekeringsrecht (4th edn. 1967), 10–29; J. Witkop, De ontwikkeling van het Verzekeringswezen, in: E.O.H.M Ruempol (ed.), 1328–1928. Gedenkboek uitgeven ter gelegenheid van het 600-jarig bestaan van de stad Rotterdam (1928), 335–370; Ludo Couvreuer, Recht en zeeverziekeringspractijk in de 17de en 18de eeuwen, (1939) 16 Tijdschrift voor Rechtsgeschiedenis 184–214; Charles Verlinden, De zeeverzekeringen der Spaanse kooplui in der Nederlanden gedurende de XVIe eeuw, 1948 Bijdragen voor de geschiedenis der Nederlanden 191–216; Johannes Petrus Vergouwen, De geschiedenis der Makelaardij in Assurantiën hier te lande tot 1813 (1945); W.H.A. Elink Schuurman, Korte aanteekeningen betreffende verzekering in de dagen der Republiek, (1917) 3

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Netherlands.8 Finally, the legislation on maritime insurance, which van Niekerk analyses, is well documented.9 The geographical delimitation applied in the present volume differs from that used by van Niekerk. Above, Dirk Heirbaut and Dave De ruysscher cover those areas of the Southern Netherlands which today belong to Belgium. The present chapter covers those areas which today belong to the Netherlands and which historically comprised the Northern Netherlands. Consequently, for the time until 1581 I can refer the reader to Dave De ruysscher’s analysis of the development of maritime insurance in the Southern Netherlands. 10 For the time thereafter, De ruysscher’s critical assessment of the state of research for the Southern Netherlands is, in parts, equally valid for the Northern Netherlands: the research has primarily focused on the two centres of maritime insurance in the Northern Netherlands, Rotterdam and Amsterdam. Furthermore, apart from van Niekerk’s account, legal developments have largely been neglected. Finally, the research has thus far focused primarily on premium insurance. However, maritime insurance did appear also in the form of mutual insurance. Examples are found in the first half of the 17th century in Groningen and in ___________ Economisch-Historisch Jaarboek. Bijdragen tot de Economische Geschiedenis van Nederland 107–123; P.J. Blok, Het plan tot oprichting eener compagnie van assurantie, 1900 Bijdragen voor vaderlandsche geschiedenis en oudheidkunde 1–41; Den Dooren de Jong, De practijk der Amsterdamsche zeeverzekering in de 17e eeuw, (1927) 8 Het Verzekerings-archief 1–22; F.W. Stapel and Den Dooren de Jong, Bijdragen tot de geschiedenis der zeeverzekering, (1928) 9 Het Verzekerings-archief 81–108; Karel Davids, Zekerheidsregelingen in de scheepvaart en het landtransport. 1500–1800, in: Jacques van Gerwen and Marco H.D. Leeuwen (eds.), Studies over Zekerheidsarrangementen. Risico’s, risicobestrijding en verzekeringen in Nederland vanaf de Middeleuwen (1998), 183–202; Siegbert Lammel, Die Gesetzgebung des Handelsrechts, in: Helmut Coing (ed.), Handbuch der Quellen und Literatur der Neueren Europäischen Privatrechtsgeschichte, vol. 2/2 (1976), 571–1083, 772–776, 786 f.; Fritz Kracht, Die Rotterdamer Seeversicherungs-Börse (1922), 1–75; Dreyer (n. 4), 20–24; Winfried M. Hammacher, Die Grundzüge des allgemeinen Seeversicherungsrechts in der deutschen Gesetzgebung des 18. Jahrhunderts vor dem Hintergrund der älteren europäischen Seeversicherungsgesetzgebung (1982), 17–30; Markus A. Denzel, Die Seeversicherung als kommerzielle Innovation im Mittelmeerraum und in Nordwesteuropa vom Mittelalter bis zum 18. Jahrhundert, in: Simonetta Cavaciocchi (ed.), Ricchezza del mare – ricchezza dal mare (2006), 575–609, 592–599; Harold E. Raynes, A History of British Insurance (2nd edn. 1964), 16–37; Molengraaff (n. 4), 602–608. 8 In addition to the references in n. 4 and n. 7 Frank C. Spooner, Risks at Sea: Amsterdam insurance and maritime Europe. 1766–1780 (1983); Sabine Go, Marine Insurance in the Netherlands 1600–1870. A comparative institutional approach (2009); idem, Amsterdam 1585–1790: Emergence, Dominance, and Decline, in: A.B. Leonard (ed.), Marine Insurance. Origins and Institutions, 1300–1850 (2016), 107–129. 9 M.Th. Goudsmit, Geschiedenis van het Nederlandsche zeerecht, vol. 1 (1882), 313– 359, 392–403, 452–454; van Niekerk (n. 5), 311–314; Lammel (n. 7), 772, 786; Kracht (n. 7), 11–28; Dreyer (n. 4), 21–24; Hammacher (n. 7), 40–50. 10 See above De ruysscher, 113–127.

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the second half of the 17th century in the area of the river Zaan (Zaanstreek). Both examples, however, have only been studied as independent and isolated phenomena and have not been put into a greater context.11

B. Fire insurance In my introductory chapter I have pointed out that authors writing on insurance history often use different concepts of insurance: some focus on the history of mercantile insurance and do not take into account forms of cooperative protection by guilds or early forms of state-run insurance as neither were operated on a commercial basis. These scholars write a different history than those authors who do include such forms of protection. Both van Niekerk and the Dutch historiography are firmly rooted in this tradition: they focus on premium insurance and neglect other forms of protection. Consequently, they understand premium life insurance and premium fire insurance as simple spin-offs or by-products of maritime insurance.12 With respect to fire insurance, van Niekerk claims that it first appeared in the 17th century.13 He refers to a scheme of the 1640s under which a Rotterdam brewer sought insurance against fire, and he identifies this transaction to be an individual fire insurance contract. Mutual fire insurance contracts between the owners of oil-mills existed, according to van Niekerk, traceable in the area of the river Zaan (Zaanstreek) in the province of Noord-Holland as early as 1663. The 18th century then saw the first insurance companies engaging in fire insurance for a premium, with the Rotterdam Maatschappij van Assurantie (Insurance Company) taking the lead in 1720, even though the main focus of this company was on maritime insurance.14 Other authors see the beginning of fire insurance in the 18th century, without even mentioning the earlier forms of fire insurance. 15 It was not until the end of the 18th century that fire insurance became established ___________ 11

See the text corresponding to n. 31 and n. 57, below, as well as the cited references. See, e.g., M.H. Pimentel, Zur Geschichte der Feuerversicherung in den Niederlanden, 1883 Mitteilungen für die öffentlichen Feuerversicherungs-Anstalten 9–13 (a German translation of an article by a Dutch author). See also the text corresponding to n. 17 and n. 22, below. 13 Van Niekerk (n. 1), vol. 1, 423 f. See also Dorhout Mees (n. 7), 24; Vergouwen (n. 7), 68 f.; Hendrik Gerrit Schuddebeurs, Onderlinge Brandverzekeringsinstellingen in Nederland van 1663 tot 1948 (1948), 1 (who provides a list of fire insurance schemes between 1663 and 1948). 14 A list of insurance companies founded between 1720 and 1926 is provided by Hendrik Gerrit Schuddebeurs, Het Nederlandsche verzekeringsbedrijf gedurende de laateste twee eeuwen, (1928) 14 Economisch-Historisch Jaarboek. Bijdragen tot de Economisch Geschiedenis van Nederland 1–178. 15 See, e.g., Vergouwen (n. 7), 68 f. 12

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on a large scale with the establishment of insurance companies specializing in fire insurance.16 With respect to the law regulating fire insurance it is believed that it was largely shaped by the legal rules on maritime insurance.17 Finally, with respect to insurance legislation, fire insurance was briefly mentioned in Art. 18 of the Amsterdam Ordonnantie van Assurantie en Avaryen (Ordinance on Assurance and Average)18 of 1744.19 From an external perspective, this account of the development of fire insurance (law) raises doubts. The British author Charles F. Trenerry claimed that fire insurance schemes existed in the Southern Netherlands, more specifically in Flanders, as early as the 13th century, developing from earlier forms of guilds and continuing to exist until the late Middle Ages.20 It was not a premium insurance. Rather, the loss was apportioned among the members of the community, or each had to pay a fixed sum in case of loss. However, in the preceding chapter on developments in Belgium, Dirk Heirbaut shows that Trenerry erred in some of his assertions and, more importantly, that the ‘fire insurance and livestock insurance mentioned by Trenerry were evolutionary dead-ends, not progenitors of modern insurance’.21 Heirbaut concludes that it took some time before fire insurance made a comeback in the 17th century following its disappearance subsequent to the 14th century. Finally, Heirbaut believes that in the Southern Netherlands ‘one can consider it [the new fire insurance] to be an offshoot of marine insurance’ without implying that it ‘was just an adaptation of marine insurance’. 22 The orthodox account of the development of fire insurance raises doubts also from a German perspective: the German literature has, again and again, discussed the question whether the fire guilds in Schleswig-Holstein were based on the fire guilds of Flanders and whether the Feuerkontrakte (fire contracts) in the city of Hamburg emerging in 1591 were similarly based on the fire guilds in Flanders

___________ 16

Van Niekerk (n. 1), vol. 1, 424 f. See also Kracht (n. 7), 57, 66; Spooner (n. 8), 40 f. On the mutual fire insurance scheme in the area of the river Zaan see also Go (n. 8), 51; Karel Davids, The Transformation of an Old Industrial District: Firms, Family, and Mutuality in the Zaanstreek between 1840 and 1920, (2006) 7 Enterprise & Society 550–580, 562. 17 Jean Gédéon Lambertus Nolst Trenité, Nederlandsch Assurantie-Recht. Brandverzekering (1902), 88; Lammel (n. 7), 772. 18 Reproduced in: Nicolaus Magens, Versuch über Assecuranzen, Havereyen und Bodmereyen (Hamburg, 1753), 620–666. 19 Pimentel (n. 12), 10 (‘Until 1744 there is no trace of fire insurance in this country.’); Lammel (n. 7), 775. 20 Charles Farley Trenerry, The Origin and Early History of Insurance Including the Contract of Bottomry (1926), 252–260. 21 See above Heirbaut, 94. 22 See above Heirbaut, 106.

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or on similar Dutch contracts. 23 The predominant view holds such influence to be unlikely and stresses that fire contracts similar to those in Hamburg have never been proven to have existed in the Netherlands.24 For the fire guilds in Flanders the German literature relies exclusively on the research of Trenerry. 25 And the German literature assumes that with respect to fire insurance there is a time gap between, on the one hand, the remnants which are identified by Trenerry for the 13th and 14th centuries and, on the other, the newly established Dutch insurance companies of the 18th century that engaged in the fire insurance business, 26 a time gap which makes it unlikely that in the 16th century the people of SchleswigHolstein and the people of Hamburg resorted to these older examples. However, are the mutual fire insurance contracts between the owners of oilmills in the Zaanstreek starting in 1663 and the scheme under which a Rotterdam brewer sought insurance against fire in the 1640s evidence of a missing link? The mutual fire insurance schemes in the Zaanstreek are referred to as brandcontract (fire contracts).27 The practice of concluding such fire contracts was continued up into the 19th century, and these contracts went through a considerable development.28 The first of these contracts was concluded in 1663 between the owners of eight oil mills, with the notarial deed having the following text: 29 Op Huyden den 21 May Ao 1663 Comprd voor Cornelis Dircxsz Kleyn tot Sanerdam, present de odergen getuygen, Ende bekennen end verclaren de voorsz. Comparanten mitsdesen met malkanderen ingegaen te sijn contract van adsistentie van schade die in de Coopmanschappen bij ende ande voorsz. Molens berustende sal mogen vallen, Ende dat in manieren ende op conditien hier naer volgt: Te weten

___________ 23 Wilhelm Ebel, Die Hamburger Feuerkontrakte und die Anfänge des deutschen Feuerversicherungsrechts (1936), 31–33; Wilhelm Schaefer, Urkundliche Beiträge und Forschungen zur Geschichte der Feuerversicherung in Deutschland, vol 1 (1911), 163; Georg Helmer, Entstehung und Entwicklung der öffentlich-rechtlichen Brandversicherungsanstalten in Deutschland (1936), 10–18; idem, Die Geschichte der privaten Feuerversicherung in den Herzogtümern Schleswig und Holstein, vol. 1 (1925), 193–203; Ludwig Maas, Die Brandgilden insbesondere in Schleswig-Holstein (1909), 16; Dorhout Mees (n. 7), 24. On these fire guilds and these fire contracts see below, Hellwege, 175–178. 24 W. Ebel (n. 23), 31–33. See also Cornel Zwierlein, Der gezähmte Prometheus. Feuer und Sicherheit zwischen Früher Neuzeit und Moderne (2011), 35. 25 W. Ebel (n. 23), 31–33; Helmer, Entstehung und Entwicklung (n. 23), 10–18; Hans Knoll, Aus der Entwicklungsgeschichte des Versicherungswesens von den Anfängen bis zur Gegenwart (1934), 9 f. 26 Helmer, Entstehung und Entwicklung (n. 23), 12; idem, Geschichte (n. 23), 193 f. 27 Davids (n. 16), 562. 28 Davids (n. 16), 564–569. 29 A transcript of the contract is prepared by Schuddebeurs (n. 13), 2.

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Off ’t gebeurde (’t welck God almachtich gelieve te verhoeden) Dat een of meer van de bovenbenoemde Olymoolens by ongeluck van hun eijgen vuyr ofte van vreemt vuyr, ofte door aenstekinge van blixem en donderslagen ofte op eenige andere manieren quame te verbranden, bij welck ongeluck eenige schade mocht sijn gefallen in ’t Slachsaet Oly ende koecken bij deselve berustende (zaeijzaet exempt) dat alsdann in sulcken cas, elx van voorsz. Comp. Ten gehouden sullen sijn tot adsitentie ende vergoedinge van schade te dragen, ende uyt te reijcken ter somme van tweehondert ene vijftich gul. Doch de schade minder bedragende als tweeduysent gul. Sal van elx portie de minderinge pro rate afgeslagen werden, in sulker voegen dat elx van hun comparanten niet meer als de gerechte achtste part in soodanige schade sal hebben te dragen. Maer de schade meerder begragende als twee duysent gul. Sullen alsdan elx van den Comparanten evenwel niet meer tot vergoedinge van dien betalen as 250 gu: - ende sal in ’t voorsz. Cas dÄoverige schade gelden werden alleen bij diegene die sodanich ongeluck sal hebben geraeckt. Welverstaende nochtans dat het verongeluckte Zaet oly ende koecken een van hun comparanten met hun jegenw consorten sal toebehoren. Maer so bij yemants Olymolen mocht quamen to verongelucken eenigh Zaet Oly off koecken dat yemant anders het sij in ’t geheel in comp.e met den Eijgenaer of huyrder van moeln was aengaen, sullen in ’t selve cas den comp. Ten in ’t minste niet gehouden sijn saeraen eenige adsistentie ofte schadeboet to doen. Verders is in desen besproocken ende expressel. Bevoorwaert Of ’t gebeurde dat yemant van comparanten sijne bovengenoemde molen quam te verkoopen, veraliereneren ofte van de huyr aff te staen Ende een ander in plaetse van dien te koopen ofte te huyren, dat alsdan soodanige verkochte veralieneerde ofte te huyr afgetane molen hier aff sal sijn exempt ende buyten gehouden, Ende sal de op nieuw gekochte ende gehuyrde Molen in plaetse van affgetane in dit jedenwoordich contract sijn ingesloten. Item bij aldien tusschen Comparanten nopende de taxatie van geledene schade ofte anderssints eenige differente ofte geschille mogt komen te rijsen, soo is versproocken dat soodanigh different ende geschil sal werden gestelt in de uytspraecke van vier neutrale ende onpartijdige Mannen hun geapprobeert ende van volkomen waerden gehouden sonder yemant sich sal mogen addreseren aen eenich recht of rechteren om den anderen voor deselve te betrecken. Tgunt voorsz. Staet hebben de Comp. Ten belooft ende aengenommen ende belooven mits desen in alle sijne clausulen ende poincten te onderhouden ende naer to komen sonder ter contrarie ijts te doen ofte gedogen gedaen te worden directel. off indirectel. in geenerhande manieren.

Let us in a first step compare this contract to the policies and practices in the maritime insurance business of the same time. What becomes obvious is the use of a different language. Whereas maritime insurance policies30 explicitly speak of insurance (‘verseekeren’, ‘geasseureerde’) and risk and peril (‘resicque’, ___________ 30

See, e.g., an Amsterdam policy of 1672 reproduced in van Niekerk (n. 1), vol. 2, 1425.

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‘perijckel’), the fire contract of 1663 speaks of assistance (‘adsistentie’) and misfortune (‘ongeluck’). What is, however, similar is the insertion of the phrase that God shall prevent the misfortune or risk from eventuating (‘‘t welck God almachtich gelieve te verhoeden’). Furthermore, there are differences in substance. Foremost, the fire contract of 1663 is a mutual insurance. Van Niekerk observes that there were other examples of mutual insurance in the Netherlands. He mentions mutual maritime insurance for whalers – again especially in the Zaanstreek. The oldest surviving exemplar of these contracts dates back to 1677. And van Niekerk claims that this example of mutual insurance was based on the mutual insurance practice in the oil mill industry.31 The fact that the mutual fire insurance of 1663 was for a specific insured sum finds its parallel in maritime insurance: so-called valued policies.32 And maritime insurance, too, addressed the problems of partial loss and cases where the real damage was lower than the insured sum. 33 However, in the context of the fire contract of 1663, stipulating a fixed insured sum seems to be based rather on the principle of mutuality: each contracting partner was obliged to contribute the same sum and, consequently, each contracting partner should be entitled to the same maximum amount. Furthermore, what is notable is that the contract partner who suffered the misfortune had to carry his portion of the damage himself: the contract was formed between eight owners of oil mills, the insured value was stipulated at 2,000 gulden, and each owner had to pay 250 gulden in case of fire. And if the real damage was below 2,000 gulden, each contracting party was obliged to pay oneeighth of the damage. Thus, the contract partner who suffered the misfortune was not indemnified for the full loss, instead having to carry one-eighth of the loss himself. This aspect, which carries the idea of mutuality to an extreme, does not find its parallel in maritime insurance even though one could argue that this kind of contribution of the person who suffered the misfortune is a transposition of compulsory under-insurance and the prohibition of full-value insurance34 into the language of mutuality. Finally, disputes were settled by four impartial men. In the context of maritime insurance, insurance matters were decided by insurance chambers that, in the ___________ 31 Van Niekerk (n. 1), vol. 1, 637. See also the text corresponding to n. 11, above, and to n. 57, below. And see Den Dooren De Jong and S. Lootsma, Bijdragen tot de geschiedenis der zeeverzekering, (1935) 16 Het Verzekerings-archief 5–40, 14. 32 Van Niekerk (n. 1), vol. 2, 1032–1156. 33 Van Niekerk (n. 1), vol. 2, 1166–1174. 34 See on compulsory under-insurance in the context of maritime insurance van Niekerk (n. 1), vol. 2, 1231–1252.

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middle of the 17th century, consisted of three, and not four, commissioners. 35 However, the clause in the fire contract of 1663 does, loosely, remind one of the arbitration clauses which were common in insurance contracts throughout the 17th century.36 In conclusion, the different language of the fire contract of 1663 in comparison to the maritime insurance policies from the same time suggests that the fire contract was not simply a by-product of premium maritime insurance. The different language suggests that the parallels between the fire contract of 1663 and the practices of the maritime insurance business cannot be explained on the basis of a simple borrowing by the former from the latter. The fire contract of 1663 instead seems to be based on a different tradition. However, it seems that soon after 1663 the language in the fire contracts of the Zaanstreek assimilated to that of the maritime insurance business. A fire contract of 1727 speaks explicitly of a ‘Contract van assurantie’.37 Van Niekerk claims that the fire contracts from the Zaanstreek followed the example of the well-known fire contracts in the city of Hamburg 38 which were first concluded in the year of 1591 between 100 brewers and which became common in Hamburg throughout the 17th century until the first public fire insurance scheme was initiated in 1676: the General Feur-Cassa.39 The chronology of the contracts – Hamburg: 1591; Zaanstreek: 1663 – supports van Niekerk’s assertion. Furthermore, the fact that both are mutual fire insurance schemes among members of a certain profession supports this assumption. However, if we compare the contract of 1663 from the Zaanstreek with a fire contract from Hamburg from about the same time, we observe that the Hamburg contract is far more sophisticated:40 a contract from the year 1664 was no longer restricted to brewers and was, instead, open to all landowners. The contract was concluded between 105 landowners. It contained 15 lengthy articles. In case of fire each member had to pay 10 imperial taler. The aggrieved was to receive 1,000 taler. The remainder was to be used for settling further expenditures. Each member had to pay the 10 taler within one month. The concept that each member had to pay a fixed sum and the concept that the aggrieved party was to receive a ___________ 35

Van Niekerk (n. 1), vol. 1, 209, 220. Van Niekerk (n. 1), vol. 1, 230–233. 37 The contract is reproduced in A.B. van der Vies, Bijdragen voor de Geschiedenis der Verzekering in Nederland voornamelijk de Brandverzekering (1904), 3–10. See also those contracts which are reproduced in Jan Adriaan Laan et al. (eds.), Gedenkboek van het olieslagers-contract (contract van verzekering tegen brandschade aan oliemolens en derzelver ladingen aan de Zaan). 1727-1912 (1912). 38 Van Niekerk (n. 1), vol. 1, 636. 39 On these fire contracts and the Cassa see, below Hellwege, 175–181. 40 The contract is reproduced in Schaefer (n. 23), vol. 1, 210–217. 36

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fixed sum correlates with the contract of 1663 from the Zaanstreek. However, the contract of 1664 from Hamburg does not suggest that the aggrieved party, too, was burdened with an equal share of the damage worth 10 taler. Furthermore, the contract contained provisions on fire prevention, provisions that are missing in the contract of 1663 from the Zaanstreek. Finally, the mutual fire insurance scheme was run by five elected members. It was their task to collect payments and to oversee compliance with the contract. Here again, equivalent provisions are missing in the contract of 1663 from the Zaanstreek. The Dutch contract of 1663 in fact recalls – albeit very loosely – the Hamburg contract 1591.41 The two contracts have a similar structure: both start out with rules on full loss, both stipulate the value of the loss, and both then contain provisions on partial loss. Further, both contracts are restricted to the members of a certain profession, even though the number of contracting partners was in the case of the Hamburg contract of 1591 much higher. The second example mentioned by van Niekerk – that of the fire insurance involving a brewer in Rotterdam in the 1640s – is less fruitful. It is evidence of a scheme under which the Rotterdam brewer sought insurance against fire in the 1640s (which in itself is important) but nothing more. A protocol of the Rotterdam notary Balthasar Bazius dating from 8 and 9 January 1646 records the details of a conflict between the merchant Olivier Couwijn and the brewer Adriaen France Pieck without describing the details of the insurance scheme. 42 In conclusion, both examples prove that fire insurance was not simply re-introduced to the Northern Netherlands in the early 18th century, but that fire insurance existed in the Northern Netherlands already in the 17 th century. If we consider the fact that fire insurance is said to have been ‘in the air’ throughout Europe in the 17th century, these findings are of little surprise. However, it is unlikely that the mutual fire contract from the Zaanstreek of 1663 is a spin-off of maritime insurance contracts. Furthermore, it is unlikely that the mutual fire contract from the Zaanstreek of 1663 is based on the fire contracts of the same time from the city of Hamburg. As observed above, the Dutch contract of 1663 loosely recalls the Hamburg contract of 1591. However, why should the oil-millers in the Zaanstreek have fallen back on a contract which had been concluded more than 70 years earlier instead of taking inspiration from a more sophisticated contract as had developed in Hamburg by the 1660s? A possible answer is that the

___________ 41

The contract is reproduced in Schäfer (n. 23), 202–205 and in W. Ebel (n. 23), 66–68. Stadsarchief Rotterdam: 18 Notarissen te Rotterdam en daarin opgegane gemeenten (ONA – Oude Natariele Archief), Inventarisnummer 438, Balthasar Bazius te Rotterdam, 01-Jan-1646 t/m 27-Okt-1648, folio 27 t/m 28. A transcript of the the protocoll is prepared by Witkop (n. 8), 341. 42

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Dutch contract of 1663 is not the first contract of its kind but instead evidence of a much older tradition in the Zaanstreek. Mutual fire insurance schemes in the Netherlands need further research. However, such research is dependent on relevant archival materials, which seem to be lacking. Furthermore, the proposition that the law regulating fire insurance was largely shaped by the legal rules on maritime insurance (a mono-causal explanation for the evolution of the law regulating fire insurance) is one needing further research – research which again has to take notice of mutual fire insurance schemes, their practice and customs, and their impact on later developments.

C. Life insurance, funeral insurance, and health insurance In 1571 life insurance was forbidden in the Southern Netherlands, in particular in Antwerp. Trenerry stresses that this prohibition is a clear sign that life insurance was common and, in addition, he also refers to the so-called Antiquis43 of 1570.44 The beginning of its Title 29 states:45 Men is, naer costuyme hier van allen ouden tyden geobserveert, gewoonelyck contracten van asseurantien op schepen, coopmanschap ter zee ofte lande gesonden wordende, ende oock leven vande persoonen, te maecken ende aen te gaene, ende op alsulcke contracten doet men recht. It is, according to custom observed since all ancient times, common to contract for insurance on ships, goods sent by sea or by land, and on the lives of persons, and such contracts are done legally.

Art. 32 of the Ordonnantie ... op’t feyt vande Contracten vande Asseurantien ende verseeckeringen in dese Nederlanden (Ordinance … on Assurance Contracts and Insurance in the Netherlands)46 of 1570 then prohibited life insurance contracts with reference to ‘abuysen, frauden, bedroch ende crimen’ (‘abuse, fraud, swindle, and crime’) and with reference to ‘weddingen van reysen oft voyagien, ende dierghelijcke inventien’ (‘wagering on voyages and similar events’).47 The prohibition was repeated in Art. 2 of Title 54 of the Impressae of

___________ 43 Costumen van Antwerpen die men noempt in Antiquis/Coutumes d’Anvers dites in Antiquis (The Custom of Antwerp called Antiquis), Coutumes du Pays et Duché de Brabant. Quartier d’Anvers, vol. 1 (1870), 438–705, 598. 44 Trenerry (n. 20), 276 f. See also Kracht (n. 7), 17 f. 45 Coutumes (n. 43), 598 and 600. 46 Groot Placaet-Boeck, Vervattende de Placaten, Ordonnantien ende Edicten, vol. 1 (Graven-Hage 1658), 828–841, 836. 47 Van Niekerk (n. 1), vol. 1, 111; Kracht (n. 7), 17 f., 26; Lammel (n. 7), 774.

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1582.48 Article 24 of the Amsterdam Ordonnantie op ‘t stuck vande Asseurantie (Ordinance on Assurance) of 159849 and legislation in Rotterdam contained similar provisions.50 It was only in 1744 that Arts. 14–16 of the Amsterdam Ordonnantie van Assurantie en Avaryen (Ordinance on Assurance and Average)51 again expressly allowed, in the narrow context of maritime insurance, taking out life insurance for seamen and passengers.52 Building upon this narrative van Niekerk concludes:53 Legislative reaction to wagers of this kind was so sweeping that for a very long time it prevented and stifled the undisguised development of life insurance in Roman-Dutch law.

Thus, life insurance seems to have developed relatively late in the Netherlands.54 However, this narrative, again, seems to neglect phenomena which, for a modern commentator, belong to the development of insurance and insurance law even though they do not count as premium insurance contracts. Mutual funds which assisted their members especially in the case of ill health but which also paid out money on death are said to have existed in the forms of guilds since the 15th century.55 Otto Pringsheim, who discusses the development of craft guilds in the Netherlands and Holland, mentions these functions. He also notes that for those workmen who were not organized in a craft guild, local authorities set up – starting in the early 17th century, but especially in the 18th century – obligatory funds to support them. Other funds could be joined voluntarily. 56 In a similar ___________ 48 Coutumes de la Ville d’Anvers dites Impressae (The Custom of the City of Antwerp called Impressae), Coutumes du Pays et Duché de Brabant. Quartier d’Anvers, vol. 2 (1871), 2–597, 400. See also Lammel (n. 7), 775. 49 Groot Pacaet-Boeck (n. 46), 846–859, 852. 50 Van Niekerk (n. 1), vol. 1, 123–125, 169–172; Trenerry, 156, 276 f.; Kracht (n. 7), 36; Terence O’Donnell, History of Life Insurance in its Formative Years (1936), 89. 51 Reproduced in: Magens (n. 18), 620–666, 628 f. 52 Lammel (n. 7), 775. 53 Van Niekerk (n. 1), vol. 1, 111. 54 See also G.L. Janssen Perio, Het Levensverzekeringsbedrijf te Rotterdam, in: Ruempol (ed.), Gedenkboek Rotterdam (n. 7), 371–375; Dorhout Mees (n. 7), 24 f. 55 Hendrik Gerrit Schuddebeurs, Onderlinge Levensverzekeringsinstellingen in Nederland (1950), 7–12 (who provides a list of 1,298 guilds, funds, mutual societies etc. which functioned as, in a wide sense, life insurance and which were founded between 1550 and 1948); Heinrich Braun, Geschichte der Lebensversicherung und der Lebensversicherungstechnik (2nd edn. 1963), 197. And see especially Sandra Bos, ‘Uyt liefde tot malcander’. Onderlinge hulpverlening binnen de Noord-Nederlandse gilden in internationaal perspectief (1570–1820) (1998). Most recently see Marco H.D. van Leeuwen, Mutual Insurance 1550-2015. From Guild Welfare and Friendly Societies to Contemporary Micro-Insurers (2016), 17–82. 56 Otto Pringsheim, Beiträge zur wirtschaftlichen Entwicklungsgeschichte der vereinigten Niederlande im 17. und 18. Jahrhundert (1890), 40–59, especially at 57–59. See

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vein, Sabine Go briefly mentions mutual marine insurance in the form of guilds in the province of Groningen in the early 17th century which covered not only the risk of the loss of a ship (and thus predating the mutual maritime insurance in the Zaanstreek), but which also assisted its members in ill health as well as the widows and orphans of its members.57 Life annuities, tontines, and widow assurances were common in the Netherlands.58 A life annuity was, for the annuitant, an early form of a pension scheme, and the issuer could utilize them to raise capital; tontines could be employed for similar purposes. In the 16th and 17th centuries the life annuity business for the purpose of public funding reached its apex in Holland before it was replaced by tontines.59 An important result of the dominant life annuity business was advances in the calculation of annuity values in the 17th and 18th centuries60 – findings which were discussed throughout Europe. Furthermore, in the 18th century funeral funds became widespread, which usually operated only in a local setting. The German author Heinrich Braun (1878– 1949) identifies the 1724 Vrijwillige Dood-bos in Haarlem, Noord-Holland, as the first of such funeral funds, but there were earlier examples.61 And, here again, guilds which supported their members in case of ill health also supported widows of their members so as to provide for funeral costs.62 Widow assurances seem to have existed in Holland at least since 1638: in a 1776 essay on widow assurances, the German author Christian Jacob Baumann

___________ also Albert Buursma, ‘Dese Bekommerlijke Tijden’. Armenzorg, armen en armoede in de stad Groningen 1594–1795 (2009), 304–307. 57 Go (n. 8), 36–60. See also the text corresponding to n. 11 and n. 31, above. 58 Richard Ehrenberg, Das Zeitalter der Fugger. Geldkapital und Creditverkehr im 16. Jahrhundert, vol. 2 (1963), 282; Werner Ogris, Der Mittelalterliche Leibrentenvertrag. Ein Beitrag zur Geschichte des deutschen Privatrechts (1961), 132; Étienne Laspeyres, Geschichte der volkswirthschaftlichen Anschauungen der Niederländer und ihrer Literatur zur Zeit der Republik (1863), 248–256; Gerald Schöpfer, Sozialer Schutz im 16.–18. Jahrhundert (1976), 144; Janssen Perio (n. 54), 372; D. Houtzager, Enkele perioden uit de geschiedenis der levensverzekering, (1959) 36 Het Verzekerings-archief 178–204 (drawing on parallels to Antiquity); Buursma (n. 56), 307–312. 59 Braun (n. 55), 51–53, 81–92, 197–200; Vergouwen (n. 7), 70. Compare also Directie van de Algemeene Maatschappif van Levensverzekering in Lijfrente (ed.), Bouwstoffen voor de geschiedenis van de levensverzerkingen en lijfrenten in Nederland (1897), 264–281. 60 J. van Schevichaven, Vom Leben und Sterben. Das Gestern und Heute der Lebensversicherung (1898), 14–16, 20–22 (a German translation of a monograph by a Dutch author); Braun (n. 59), 193–196; idem, Vom Rentenwesen im Mittelalter bis zur Berechnung des Rentenbarwertes, (1921) 2 Het Verzekerings-archief 209–237. 61 Braun (n. 55), 197 f. See also Dorhout Mees (n. 7), 25; van Schevichaven (n. 60), 182 f. 62 Pringsheim (n. 56), 59.

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mentions an assurance of 360 preachers in Holland founded in 1638.63 In the 18th century they became as popular as in Germany. 64 Like in Germany, they were founded for certain professions in local settings, and they were promoted, initiated, supervised, or even run by local authorities. They were operated on a similar basis as the earlier life annuities, yet with the difference that the insured did not have to make a single payment but had to pay annual premiums. 65 The first life insurance companies operating on a commercial basis were founded in the early 19th century, with the Societeit van Levensverzekeringen of 1807 making the start. In summary, Dirk Heirbaut’s summary on the state of research in the field of mutual assistance within guilds in the Southern Netherlands holds equally true for the Northern Netherlands: ‘Mutual assistance in the Southern Low Countries was very important within the craft guilds, but Belgian jurists do not refer to it, whereas historians have not thought of bringing their research to the jurists’ attention.’66 And similarly, the impact of the practice of life annuities, tontines as well as widow and orphan assurances on the development of life insurance (law) remains to be assessed.

D. The Dutch history of insurance law in a European context The purpose of the present volume is to identify possible points of interaction between the national developments of insurance law. In the context of maritime insurance the narrative acknowledges that such interactions have taken place:67 The development of insurance law in Europe passed through the Netherlands and there, especially but not only in the seventeenth and eighteenth centuries, the fundamental principles which had evolved before were settled and refined, and from there they were taken over in other systems and in turn in different ways influenced the subsequent position elsewhere.

___________ 63 Christian Jacob Baumann, Abhandlung von Wittwenverpflegungs-Gesellschaften, in: Johann Peter Süßmilch, Die göttliche Ordnung in den Veränderungen des menschlichen Geschlechts, aus der Geburt, dem Tode und der Fortpflanzung desselben, vol. 3 (4th edn. prepared by Christian Jacob Baumann, Berlin 1776), 432–619, 434. See also H.A. Poelman, Een onderling weduwenfonds in de zeventiende eeuw, (1918) Groningsche volksalmanak 60–63. H.T. Hoven, Het waarborg-genootshap voor weduwen onder directie van J. Te Winkel en H.J. Rietveld, (1921) 2 Het Verzekerings-archief 23–43, dates the first widow assurance to the 18th century. 64 Braun (n. 55), 220–222, 294. 65 Braun (n. 55), 197–200. 66 See above Heirbaut, 94. 67 Van Niekerk (n. 1), vol. 1, xxxiii.

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It is generally accepted that the Dutch practices and customs influenced the development of insurance law in England and Germany. However, it seems as if the Dutch literature has, as yet, not gone beyond this assertion and has, as yet, not analysed in detail the lasting impact which Dutch maritime insurance law had on developments elsewhere. Furthermore the mutual protection provided by guilds, life annuities, mutual fire insurance schemes in the 17th century, tontines, widow assurances, and funeral funds are all phenomena which have occurred in other countries in the same timeframes and it would, thus, be worthwhile to study them from the perspective of comparative legal history. Furthermore, the French influence in the early 19th century goes without saying. Finally Dirk Heirbaut points out for the Southern Netherlands that in ‘the 18 th century fire insurance resurfaced thanks to English immigrants’.68 A similar, but not identical development occurred in Germany in the early 19th century:69 the founders of German fire and life insurance companies in the early 19th century had previously worked for English insurance competitors that were active on the German market. For Germany the question has been asked what impact this had on the development of the practice and customs of the newly founded German insurance companies: did they simply copy the standard contract terms, the policies, and the practices and customs of their English competitors? Considering that English fire and life insurance companies had been founded since the late 17 th century, and then especially in the 18th century,70 and considering that these English insurance companies thus preceded the foundation of such companies not only in Belgium and Germany but also in the Netherlands, the same questions should be asked with respect to the Netherlands.

___________ 68

See above Heirbaut, 106–109. See below Hellwege, 197. 70 See below MacLeod, 166–169. 69

Chapter 7: England and Scotland By John MacLeod A. Gaps and fragments ................................................................................................ 149 B. The edges of the subject ......................................................................................... 152 I. The dominance of marine insurance ............................................................... 153 II. The courts, the arbitrators, and the parliament ................................................ 155 III. The policy ....................................................................................................... 156 C. Insurance comes to Britain ..................................................................................... 156 D. Making insurance English ...................................................................................... 158 I. Jurisdictional conflict ...................................................................................... 158 II. Custom and the London Code ......................................................................... 160 III. The Common Law’s adjustment: case law, treatises and the legislation ......... 161 IV. Institutional change and the rise of fire and life insurance .............................. 165 V. 19th and early 20th century legislation ............................................................. 168

A. Gaps and fragments The City of London is the home to many a proud financial institution. Not the least of these is Lloyd’s, a name synonymous with insurance, with deep roots and continuing influence in insurance and related fields. Insurance contracts concluded in London have covered risks from many parts of the world 1 and the associated advice and litigation have provided and continue to provide a significant source of work for London’s solicitors and barristers, as the many volumes of the insurance section Lloyd’s Law Reports bear witness. Similarly, Edinburgh’s reputation as a financial centre is closely tied to the fortunes of life insurers such as Standard Life,2 Scottish Widows3 and Scottish Provident. The uncodified nature of law in both jurisdictions means that the past is of considerable importance. Carter v. Boehm,4 the 18th-century case which established that insurance was a contract uberrimae fidei is still taught to students, discussed in leaflets which solicitors produce to impress their clients, 5 and the ___________ 1 For a somewhat poetic account of this reach, see Godfrey Hodgson, Lloyd’s of London: A reputation at risk (1984). 2 Originally the Life Insurance Company of Scotland and now Standard Life Aberdeen plc. 3 Originally the Scottish Widows’ Fund and Life Assurance Society. 4 (1766) 3 Burr. 1905, 97 E.R. 1162. 5 Brodies LLP, Utmost Good Faith in Insurance Contracts, 1 January 2011: https://perma.cc/5ZRQ-46BW (last accessed 10 October 2017).

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occasion for academic events and collections. 6 Pre-1900 cases continue to be cited before the courts as a matter of course in insurance litigation. 7 In light of these factors, it might be expected that the literature on the history of insurance law would be extensive. In fact, it is remarkably sparse and it remains somewhat fragmented. A general monograph on the history of insurance law in England is notable by its absence. Until recently, as Guido Rossi has pointed out, ‘the early history of insurance in England has traditionally received poor attention by legal historians.’8 The position is not altogether different in the later period. Rossi himself has done a good deal to address the gap9 but treatments from legal historians are, on the whole, brief and tend to be restricted to particular, often rather narrow topics.10 Elsewhere the literature is even more scarce: the sum total of modern Scottish legal historical writing on insurance appears to be two articles by Angelo Forte (1949–2012),11 one article by Scott C. Styles12 and, ___________ 6 E.g. Yong Qian Han and Gregory Pynt, Carter v. Boehm and Pre-Contractual Duties in Insurance Law: A Global Perspective after 250 Years (2018). 7 E.g. Gard Marine & Energy Ltd. v. China National Chartering Co. Ltd. (The Ocean Victory) [2017] 1 W.L.R. 1793; Atlasnavios Navegaco Lda. v. Navigators Insurance Co. Ltd. (The B Atlantic) [2016] E.W.C.A. Civ. 808, [2017] 1 W.L.R. 1303; Comlex Ltd. (in Liq) v. Allianz Insurance plc. [2016] C.S.O.H. 87, [2016] Lloyd’s Rep. I.R. 631; Connect Shipping Inc. v. Sveriges Anfgartygs Assurans Forening (The Renos) [2016] E.W.H.C. 1580 (Comm), [2016] Bus. L.R. 1184. 8 Guido Rossi, Insurance in Elizabethan England: The London Code (2016), 1. See also David Ibbetson, Law and Custom: Insurance in Sixteenth-Century England, (2008) 29 Journal of Legal History 291–307, 291. 9 In addition to the work just cited see Guido Rossi, The Booke of Orders of Assurances: A Civil Law Code in 16th Century London, (2012) 19 Maastricht Journal of European and Comparative Law 240–261; idem, Florence and the Great Fire: New Sources on English Commerce in the Late Sixteenth Century, (2012) 33 Journal of Legal History 93– 100; idem, England 1523–1601: The Beginnings of Marine Insurance, in: A.B. Leonard (ed.), Marine Insurance: Origins and Institutions, 1300–1500 (2016), 131–150. 10 William Reynolds Vance, The Early History of Insurance Law, in: Association of American Law Schools, Select Essays in Anglo-American Legal History, vol. 3 (1909), 98–116; W.S. Holdsworth, The Early History of the Contract of Insurance, (1917) 17 Columbia Law Review 85–113; idem, A History of English Law, vol. 8 (1925), 273–300; W.J. Jones, Elizabethan Marine Insurance, (1960) 2 Business History 53–66; Robert Evans, The Early History of Fire Insurance, (1987) 8 Journal of Legal History 88–91; Ibbetson (n. 8); idem, Insurance: English Common Law, in: Stanley N. Katz (ed.), Oxford International Encyclopedia of Legal History, vol. 3 (2009), 252–254; Michael Lobban, The Law of Insurance, in: William Cornish et al (eds.), The Oxford History of the Laws of England, vol. 12 (2010), 674–727; J.P. van Niekerk, The Law and Customs of Marine Insurance in Antwerp and London at the End of the Sixteenth Century: Preliminary thoughts on the background to and some of the sources for a comparative investigation, (2011) 17 Fundaminia 144–163. 11 Angelo Forte, Marine Insurance and Risk Distribution in Scotland before 1800, (1987) 5 Law & History Review 393–412; idem, Insurance, in: Kenneth Reid and Reinhard Zimmermann (eds.), A History of Private Law in Scotland, vol. 2 (2000), 333–368. 12 Scott C. Styles, Scottish Marine Insurance before the Mid-Eighteenth Century, in: Andrew R.C. Simpson et al. (eds.), Continuity, Change and Pragmatism in the Law: Essays in Memory of Professor Angelo Forte (2016), 237–279.

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if the term modern may be stretched somewhat, a discussion in John Millar’s (1760–1795) Elements of the Law Relating to Insurances.13 I have found nothing discussing Wales. This means that the task of providing a more general view of insurance in the British Isles has fallen to others, particularly to social and economic historians. Harold E. Raynes’ History of British Insurance remains the closest thing to a modern general treatment of the subject. However, the preface of that work warns that ‘no attempt has been made to include the history of social insurance, or what may be regarded as related thereto, industrial life assurance.’ 14 This comment draws attention to a central tendency in insurance history, and perhaps in the broader attitude to insurance amongst lawyers and even the general public. There is a cleavage between commercial insurance on the one hand and so-called industrial insurance on the other. It should be noted that this distinction maps only imperfectly onto the division of insurance by typical subject, namely marine, fire and life. Commercial insurers offered life insurance and the story of the emergence of life insurance is complicated by the interaction between separate stories for life insurance in the industrial and commercial contexts. Commercial insurance has attracted considerably more scholarly and legal attention than industrial insurance and, within commercial insurance, maritime insurance has dominated the field. Alongside, Raynes’ work stand institutional and company histories, which vary in scholarly ambition from Clive Trebilcock’s monumental history of Phoenix Assurance15 to M.D. Steuart’s very brief account of the first century of Scottish Provident,16 works which focus on friendly societies and industrial life insurance17 and those which deal with particular phases of development, in particular areas.18 Many of these works offer invaluable treatments of key aspects of

___________ 13

John Millar, Elements of the Law Relating to Insurances (Edinburgh 1786), 3–18. Harold E. Raynes, A History of British Insurance (1948), v. 15 Clive Trebilcock, Phoenix Assurance and the Development of British Insurance, 2 vol. (1985–1998). 16 M.D. Steuart, The Scottish Provident Institution 1837–1937 (1940). Other examples are P.G.M. Dickson, The Sun Insurance Office 1710–1960 (1960); Ronald George Garnett, A Century of Co-operative Insurance (1968); Murray Ross, The Royal London: The First Years (2011). 17 A. Fingland Jack, An Introduction to the History of Life Assurance (1912); Dermot Morrah, A History of Industrial Life Assurance (1955). 18 Geoffrey Wilson Clark, Betting on Lives: The Culture of Life Insurance in England, 1695–1775 (1999); Robin Pearson, Insuring the Industrial Revolution: Fire Insurance in Great Britain, 1700–1850 (2004); Christopher Kingston, Marine Insurance in Britain and America, 1720–1844: A Comparative Institutional Analysis, (2007) Journal of Economic History 379–409; A.B. Leonard (ed.), Marine Insurance: Origins and Institutions, 1300– 1500 (2016) (a collection of essays which pick out phases of particular significance in marine 14

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the subject. They do, however, have a tendency to focus on aspects distinct from the core of insurance law as understood by the lawyer. There is extensive treatment of the business and institutional context which gave rise to and met the demand for insurance business, of regulatory matters such as registration, permission to engage in insurance business and jurisdiction. Of course, jurisdictional disputes are the bread and butter of the English legal history (thanks to the historic split between the courts of Law and of Equity) but there is less treatment of the development and treatment of the central doctrines of insurance law. To a large extent, this is because the authors of these works are primarily concerned with other aspects of insurance. It is no more an exclusively legal phenomenon than property, succession or any other contract. Only lawyers look at these things and see nothing besides the law. Furthermore, the standard raw materials for analysis of the law’s development, case reports, are somewhat scarce in this area thanks to the widespread use of dispute resolution mechanisms other than the courts. Finally, England may be said to have a general law of contract and a special law of torts in contrast to the general law of delict or tort and the special law of contracts which tends to dominate Civilian legal thought. Therefore, there may be a bit of a tendency to consider insurance matters to be governed simply by the general law of contract and what the parties have agreed. This may have lessened the attraction of insurance for the doctrinal legal historian when compared with topics such as the emergence of the trust or the fundamental aspects of contract law.

B. The edges of the subject The value of a project such as the present one is thus in the opportunity to provide an insight into how the law of insurance developed with a general scope. Such a focus involves giving priority to those phenomena which have shaped lawyers’ understanding of insurance as a practice and have thus shaped the law of insurance as it presents in these jurisdictions. The lawyer’s view constrains the scope of our enquiry. In the British context (and here it is fair to treat Scotland and England together) that constraint has two main features: the dominance of marine insurance and the dominance of formal sources of law.

___________ insurance from an international perspective). Christopher Kingston, Governance and Institutional Change in Marine Insurance, 1350–1850, (2014) 18 European Review of Economic History, 1–18 is something of an exception but it is broader in geographical focus.

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I. The dominance of marine insurance As other contributions to this volume attest, the tendency of marine insurance to dominate perceptions of the broader subject is not unique to Britain. 19 It is, however, remarkably pronounced in this case as attested by the fact that the Marine Insurance Act 1906 is treated as codifying key aspects of the common law even where the subject of the insurance is not marine. 20 Further, marine insurance arrived on British shores in the hands of foreign (largely Italian) merchants at a comparatively late stage in its development. Thus, while Raynes discusses pre-insurance risk-management devices such as the commenda or the bond of bottomry when considering the origins of marine insurance in Italy,21 his chapter on ‘Early Marine Insurance in England’ begins with the process by which continental commercial acumen made its way to England, bringing with it the idea of insurance.22 Similarly Rossi’s essay on the origins of marine insurance in England begins, not with the development of the idea in England but with a discussion of the respective influence of the various Italian nationes on insurance as it was understood in England.23 This is not to say that devices such as the bond of bottomry were not known in England, 24 merely that the story here was not of insurance’s development from them but of its reception alongside them. In Scotland, the position is more extreme: there is little evidence of domestic insurance practice before the 18th century. As in England, other devices were known in Scotland, but the pattern of development is once again closer to legal transplant than local development.25 In the case of Scotland, the initial stimulus seems to have been Scottish merchants’ activity in the Netherlands, 26 followed by significant English influence as the legal and commercial effects of the Union

___________ 19 E.g. Luisa Piccinno, Genoa, 1340–1620: Early Development of Marine Insurance, in: Leonard, (n. 18), 25–46, 27–30. 20 E.g. A.X.A. Versicherung A.G. v. A.R.A.B. Insurance Group (B.S.C.) [2015] E.W.H.C. 1939 (Comm), [2016] Lloyd’s Rep. I.R. 1, at para. 112; Pan Atlantic Insurance Co. Ltd. v. Pine Top Insurance Co. Ltd. [1995] 1 A.C. 501, 517 per Lord Mustill; Howard Bennett, The Marine Insurance Act 1906: Reflections on a centenary, (2006) 18 Singapore Academy of Law Journal 669, paras. 8–9. 21 Raynes (n. 14), 5–6. 22 Raynes (n. 14), 22–35. 23 Rossi, England 1523–1601 (n. 9), 131–137. See similarly, Vance (n. 10); Holdsworth, (n. 10). 24 See, for instance, Reginald Godfrey Marsden (ed.), Select Pleas in the Court of Admiralty, vol. 2 (1897), 75. 25 Forte, Marine Insurance and Risk Distribution (n. 11). 26 Forte, Marine Insurance and Risk Distribution (n. 11), 412.

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of the Scotland and England and Wales in 1707 began to be felt. 27 In the modern law, the distinctions between Scots and English law are very marginal. Three implications may be said to flow from this state of affairs. First, with respect to marine insurance it makes less sense to talk about the emergence of the concept of insurance in Britain than to speak of its arrival. Secondly, as a result the early history of the concept of insurance in Britain is the history that happened somewhere else: on the continent of Europe. The distinctive part of the story is of how the particular continental influences combined and were modified in response to conditions in Britain. Third, marine insurance was a highly developed institution right from the start: complete with ideas of scope of risk, premium and disclosure. This sophistication may go some way to explaining its dominance in the lawyer’s understanding of insurance. It set a template which was relatively easy to adapt to other kinds of risks and, perhaps gave rise to a tendency from lawyers to dismiss, neglect or disregard risk management institutions which did not match the marine insurance model, even where similar institutions were influential in the development of mainstream insurance elsewhere in Europe. 28 In areas like life insurance, the friendly society and its forerunners and successors, together with contributorships, mortuary tontines and reversionary annuities present a pattern and context quite distinct from the variable premium model characteristic of marine insurance. However, it was the latter paradigm which dominated the thinking of lawyers and courts and of legal historians. A similar preference was shown by other historians of insurance. Geoffrey W. Clark notes that, Historians of insurance have consistently minimized the importance in the early insurance market both of reversionary annuity societies and of redistributive insurance schemes, whose fees were equal for all members. They have preferred instead to locate the origins of the modern life insurance business in companies offering premium insurance.29

Clark suggests that this enables them to identify ‘an institutional genealogy’ which leads to modern insurance practice. He rejects ‘this whiggish preoccupation with privileged historical lineage’30 and goes on to examine a wider range of friendly societies and related institutions which go beyond the variable premium model. ___________ 27

Forte, Marine Insurance and Risk Distribution (n. 11), 396. E.g. see Robin Pearson, Introduction: Towards an International History of Insurance, in: idem (ed.), The Development of International Insurance (2010, repr. 2016), 1– 23, contrasting ‘insurance of lives’ with other methods for ‘the pooling of funds to provide compensation for the costs of death’; Kingston, Governance and Institutional Change (n. 18), 1–2. 29 Clark (n. 18), 72. 30 Clark (n. 18), 72. 28

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However, Clark himself locates the origins of life insurance, both in general and in England, in the outgrowth from marine insurance. 31 Further, he explains such an approach is fruitful because, the originality in structure and operation of the nascent life insurance industry might have made it develop very differently had the commercial ferment of that period not led to a fever of speculation and the South Sea Bubble, which ended such financial experiments.32

The priority given to the premium insurance may well be mainly explained by survivorship bias and whiggish preoccupation but it is at least plausible that the pattern developed in the context of marine insurance represented something of an ideal type which dominates the minds of those considering insurance. Further, in the context of legal history, survivorship bias is perhaps less problematic than it might be elsewhere because it is that central line which played the greatest role in shaping the doctrines of which the law of insurance is composed. The multiplicity of schemes which formed alternatives to premium based insurance are no doubt of great intrinsic interest. However, it appears that they neither established the idea of life insurance, nor played a persistent agenda-setting role for the later development of the law because they were cut off at the knees in the 18th century. II. The courts, the arbitrators, and the parliament Millar began the preface to his Elements of the Law Relating to Insurances by observing that ‘[t]here is no branch of law in which a compilation, uniting theory with practice, appears to be so much wanted as in that which relates to Insurance.’ Two paragraphs later, he continues, In a work of this nature, the primary object, no doubt, is to illustrate the practice by a collection of real cases. Nothing complete in this view could be expected from our early writers, because it is principally from the abilities of an eminent Judge still living, and from the multiplicity of insurance-questions, arising from the extensive commerce of a recent period that we have acquired any great number of systematic decisions.33

Millar’s assumption is clear, and, we may say, representative of the general tendency: no matter that insurance had been practiced in England for over two hundred years by the time he wrote, what mattered was the law as it came from the courts and that had only reached maturity in the 18 th century.

___________ 31

Clark (n. 18), 13–17. Clark (n. 18), 72. 33 Millar (n. 13), v–vi. 32

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This matters because so much dispute resolution in insurance took place outside the formal court structures, often by means of private arbitration.34 That tendency can make it difficult to find out a great deal about the substance of these disputes. More significantly, however, it restricts the impact that these disputes and their resolution had on the development of insurance law because those who formed it were not likely to consider them as sources of law. III. The policy One major source of rules for insurance does stand outside the strictures of the formal sources of law: the insurance policy. On a very strict reading, this might be considered to be beyond the bounds of the law, since it simply reflects the terms of the bargain struck by insurer and insured. It cannot be denied, however, that it has played a central role in insurance disputes and litigation. Furthermore, because, at least before standardisation, the policy was responsive to the parties’ wishes, so it is one place where the otherwise opaque experience of disputes resolved by arbitration can be expected to have fed into the further development of the law. As will be seen below, it was also a forum for self-conscious borrowing from other European contexts. What is most remarkable about the policy is its stability. As Rossi observes, the standard policy changed little between 1570 and the passage of the Marine Insurance Act 1906.35 This consistency is testament to remarkable conservatism and to the flexibility which the document allowed. It is also evidence of the clear and enduring influence of the early formative period of insurance practice in England in the 16th century on the later law. Of course, this formative period is also the time in which developments in England were most open to continental influences.

C. Insurance comes to Britain As noted above, the common account of the origins of insurance accepted in modern scholarship in Britain locates the origin of insurance in Italy, where it emerged from other devices which combined transfer of risk with what we might call venture finance for merchant voyages. 36 To simplify this account, we may say that the basic concept of insurance came to Britain with the Italian merchants in the context of maritime trade and this model came to be applied to the other major risks: fire, death (in the context of life insurance) and survival (in the case ___________ 34 David Ibbetson, Law and Custom: Insurance in Sixteenth-Century England, (2008) 29 Journal of Legal History 291–307, 292. 35 Rossi, England 1523–1601 (n. 9), 131; idem, (n. 8), 27. 36 Raynes (n. 14), ch. 1; Piccinno (n. 19); Christoph M. Scheuren-Brandes, Insurance: Medieval and Post-Medieval Roman Law, in: Katz (n. 10), 258; Pearson (n. 28), 23.

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of pensions: survival being properly considered a risk since it creates a need for resources which death would obviate). This contrasts with the approach of some historians of life insurance, who see its roots in institutions like Roman collegia, early funerary associations in other place and mediaeval guilds and build a lineage from them through to friendly societies and industrial life insurance providers.37 Clearly, some of these institutions existed, even in Britain prior to the development of marine insurance in late mediaeval Italy. It is clear, however, that these institutions did not give rise to the development of other types of insurance and that the premium-based model owes more to marine insurance as developed in Italy than it does to them. Therefore, they cannot be considered as a plausible alternative origin for the idea of insurance in the British context. As noted above, marine insurance arrived in a fairly developed state. There is evidence of Italian maritime trade with England as early as the late 13 th century.38 However, the earliest known examples of insurance policies in English date from the early part of the 16th century.39 There is little direct evidence to cover this gap, but Rossi suggests growing familiarity with insurance customs in the 15 th century.40 He has identified records held in Italy which evidence insurance policies being made in London (in Italian) as early as the 1430s. 41 Further, some cases concerning insurance came before the Court of the Lord Mayor in London in the late 15th century.42 Initially, English policies were fairly brief: specifying the insured, the cargo and the voyage and making reference to the Lombard Street customs. After the 1560s, they start to become more elaborate, reaching something like their final form in the 1570s. Rossi shows a number of linguistic features and particularities (especially the consistent inclusion of barratry among the insured risks) which bear close parallels to the practice in Florence.43 As Italian commercial influence in England waned and that of the Dutch grew in the course of the second half of

___________ 37 Fingland Jack (n. 17); Morrah (n. 17). See also Robert M. Merkin, Colvinaux’s Law of Insurance (2016), para. 1-002, which rather confusingly, presents the two accounts in consecutive sentences. The author, however, seems to proceed on the assumption that the example of maritime insurance is the more meaningful precedent. 38 Rossi, England 1523–1601 (n. 9), 132. 39 Rossi (n. 8), 28. 40 Rossi, England 1523–1601 (n. 9), 133–134. 41 Rossi (n. 8), 41–43. 42 Rossi (n. 8), 45. 43 Rossi (n. 8), 28–30.

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the 16th century,44 a rise in adoption of Dutch usages, particularly from Antwerp.45 By this time, however, the basic insurance concepts were well established in England.

D. Making insurance English As well as establishing itself in England, insurance would integrate itself into English law: moving from a foreign institution administered according to foreign rules to a local one. Central to this process, which ran broadly contemporaneously with the establishment of the terms of the policy was that most characteristically English of legal phenomena: the jurisdictional conflict. I. Jurisdictional conflict As might be expected for disputes between 16th century merchants, insurance disputes were initially a matter for arbitration.46 However, by the mid-16th century cases were being heard before the Court of Admiralty (administered by Civilians), the London Mayor’s Court 47 and the Common Law courts (applying English Common Law) while some merchants sought to resist this tendency by appeal to governmental authority: seeking special commissions appointed by either the Privy Council or Chancery (the office of the Lord Chancellor).48 As David Ibbetson puts it, ‘The situation in the early 1570s was thoroughly anarchic.’49 Overlapping and conflicting jurisdictional claims are a recipe for delay and expense and that was the case here as much as anywhere else. Rossi goes as far as to suggest that such delays may sometimes have been the point for one of the parties.50 Into the mix was thrown a new Assurance Chamber, established by the City of London’s Court of Aldermen. This court, made up of merchants appointed by the mayor and aldermen, was established alongside a register of assurances and by registering, parties agreed to submit themselves to the court’s jurisdiction. 51 There are parallels with specialised mercantile courts in continental Europe and the court looks like an attempt to free parties to insurance contracts from the procedural strictures and delays associated with other courts in England. It is also ___________ 44

Motivated, at least in part, by the reformation: Rossi, England 1523–1601 (n. 9), 136. Rossi (n. 8), 56–60. 46 A.B. Leonard, London 1426–1601: Marine Insurance and the Law Merchant, in: idem (n. 18), 151–178, 151 and 160–161; Rossi (n. 8), 64–66. 47 Ibbetson (n. 8), 293 48 Rossi (n. 8), 67–71; idem, England 1523–1601 (n. 9), 140. 49 Ibbetson (n. 8), 296. 50 Rossi (n. 8), 67. 51 Ibbetson (n. 8), 297. 45

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worth noting that, while appointed from the merchant class, it appears that few of those appointed had much expertise in insurance matters. 52 However, the position was further complicated by a special commission under an Admiralty judge, appointed by the Crown with powers to hear maritime matters including insurance two days after the first judges of the Assurance Chamber were sworn in.53 This gave rise to a fresh round of jurisdictional disputes, managed by various fudges (such as the appointment of the Admiralty judge at the head of the Commission to the Assurance Chamber) and intervention from the Privy Council.54 The creation of the new courts were not, however, effective to oust the jurisdiction of the Common Law courts.55 Further, there is some evidence which suggests that merchants were reluctant to submit themselves to the Assurance Chamber.56 In response to these problems, jurisdiction was addressed by statute in 1601. That act made provision for another new court with representatives from Common and Civil Law backgrounds, as well as merchants and it was to have exclusive jurisdiction in insurance matters. 57 The surviving evidence of the Assurance Chamber is not extensive, which makes it difficult to form a view of its effectiveness. What is clear, however, is that the Assurance Chamber had ceased activity by the end of the 17th century and that the Common Law courts were ultimately successful in securing jurisdiction over insurance matters. 58 At one level, these jurisdictional disputes are clearly about the practitioners in the various courts defending their turf and their fees but they also represent something of a conflict about the rules which should decide insurance disputes: English Common Law, the Civilian tradition or the aequitas of the merchants. In the context of insurance, the differences were perhaps not so stark as in other areas, where there were well-developed Common Law or Civilian rules. There is evidence, for instance, of reference to the customs of London and Antwerp in disputes before the Court of Admiralty. 59 Further, even in the Common Law courts, there was a role for merchant juries, sitting alongside the judges well into the 18 th century.60 Nonetheless, a professional lawyer whether operating from a Civilian

___________ 52

Rossi (n. 8), 78–79. Ibbetson (n. 8), 298. 54 Ibbetson (n. 8), 298–299 and 72–75. 55 Leonard (n. 46), 168–169. 56 Rossi (n. 8), 83–85. 57 Leonard (n. 46), 168–170; Rossi (n. 8), 86–87. 58 Leonard (n. 46); Rossi (n. 8), 87–88. 59 Leonard (n. 46), 156–157. 60 For instance, the seminal case Carter v. Boehm (1766) 3 Burr. 1905, 97 E.R. 1162 was tried before Lord Mansfield sitting with a merchant jury. 53

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or a Common Law background had mental constraints and patterns of expectation which did not apply in a purely mercantile context. 61 Insurance law in Britain is a large structure but it is built on narrow foundations. Of course, this does not mean that important links do not exist between the law as it developed in Britain and the Continent. First, it is clear that the very idea of insurance represents a borrowing from the European tradition. Secondly, English lawyers were aware of this background. The central case law development to which Millar refers in the passage quoted above involved a concerted effort to reflect that background. Thirdly, even where the pattern of development is different, that very difference offers an opportunity to reflect on the significance of the factors of variance. II. Custom and the London Code As noted above, the latter part of the 16th century also saw the setting up of the Assurance Chamber, under the care of one Richard Candler.62 Alongside this, Candler was granted a monopoly on writing insurance policies. Candler’s role was created with the intention of curbing insurance fraud and reflects the example of Antwerp, where a similar registration office was established. 63 Unsurprisingly, other interested parties such as merchants and brokers attacked the monopoly. Despite these efforts, Candler retained his monopoly: it played a significant role in establishing English as dominant language of insurance policies and in standardising the language of policies, 64 although it is likely that a large number of policies continued to be unregistered, since other courts continued to be willing to enforce unregistered policies.65 The notional monopoly fell away as the Assurance Chamber lost its significance and the registrar became a standard broker alongside the others.66 In addition to the standardisation of language (in both senses of that word) of the policy, the other great development of the late 16th century was the compilation of custom found in the London Code. Rossi contends that this was significant because Lord Mansfield’s (1705–1793) catalogue of significant decisions (viewed by Millar as the foundation-stone of Common Law insurance) 67 did not ___________ 61 The formalistic nature of the Common Law in this period is legendary. For reflections on the constraint that Civilian thinking could bring to bear on insurance questions, see Guido Rossi, Civilians and insurance: approximations of reality to the law, (2012) 83 Tijdschrift voor Rechtsgeschiedenis 323–364. 62 Rossi (n. 8), 89. 63 Rossi (n. 8), 89. 64 Rossi (n. 8), 93 and 98. 65 Rossi (n. 8), 102. 66 Rossi (n. 8), 107. 67 See text at n. 33, above.

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involve direct borrowing from foreign insurance customs but rather ‘he channelled English insurance customs into the Common law.’ 68 Rossi places the London Code within the broader context of European ordinances such as those of Bruges, Seville, and Burgos and the Guidon of Rouen. Rossi’s analysis suggests that the influence of Bruges was the most significant, 69 alongside existing customs which were established in London reflecting earlier influences from Italy or the Netherlands or local experience.70 It is not clear that the Code was ever officially ratified. 71 What is clear, however, is that it amounted to a significant consolidation of custom and the close structural parallels between the London Code and the Bruges Ordinances suggest that its compilation represents a second moment when European influence played a major systematising role in the conception of the law of insurance in England. III. The Common Law’s adjustment: case law, treatises and the legislation The 16th century, therefore, was the period during which insurance practice and custom became established in England. The 17 th century is something of a dark period, due in part to the loss of records in the Great Fire of London in 1666. The 18th century, however, is established as the period of insurance law’s establishment in the Common Law. On the traditional view, this is clearly associated, with the career of William Murray, Lord Mansfield, a Scot whose whole career (and much of his education) took place in England.72 He has been characterised as the ‘father of insurance law’ in England.73 Recent scholarship has sought to rebalance this impression, emphasising the role of legislation in the same period74 and emphasising the role of treatise writers who began to address insurance in the 18 th century.75 The recent corrective is welcome but the importance of the 18 th-century case law should not be underestimated. As has been observed above, much of the 18thcentury development involved the establishment of custom (or indeed earlier ___________ 68

Rossi (n. 8), 430. Rossi (n. 8), 148. 70 Rossi (n. 8), 157. 71 Rossi (n. 8), 146–148. 72 James Oldham, Murray, William, first earl of Mansfield (1705–1793), Oxford Dictionary of National Biography, (2004). 73 E.g. Arthur C. Schreiber, Lord Mansfield – The Father of Insurance Law, (1960) Insurance Law Journal 766–770. See also, Raynes (n. 14), 163; James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (1992), 450; Kingston, Governance and Institutional Change, (n. 18), 7–8. 74 Philip Rawlings, Bubbles, Taxes, and Interests: Another History of Insurance Law, 1720–1825, (2016) 36 Oxford Journal of Legal Studies 799–827. 75 Lobban (n. 10), 677–678; Kingston, Governance and Institutional Change (n. 18), 8. 69

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cases) within the system of stare decisis. Further, significant as the legislation was, it was often quite terse, leaving room for clarification and elaboration in the case law. The growing body of case law mattered in terms of the confidence with which lawyers would regard these rules. It also mattered because, once a rule was established within the Common Law sources, there was less incentive to go behind that to other materials. Thus, establishment of local authorities for rules with clear parallels elsewhere can serve to insulate a legal system from continuing dialogue with the foreign sources. One of the most striking aspects of the period, however, is the protracted agony felt over central concepts. Clearly, it is not appropriate in the context of the present volume to discuss the development of each doctrine of the law of insurance. Two, however, merit some attention because they are central to the understanding of what a contract of insurance was: the requirement of insurable interest and the insured’s obligations to the insurer when the policy was made. Of course neither of these ideas is a product of the 18 th century. There was a case from the Court of Admiralty in 1562 about the requirement of insurable interest and it was a requirement known across Europe and recognised by custom.76 However, the 18th century saw repeated litigation and indeed legislation which attempted to get to grips with the concept.77 The position was perhaps complicated somewhat by the fact that it was not clear that wagering contracts were unenforceable in England (although they were in Scotland) 78 and by the courts’ desire to show flexibility with respect to established practices of insuring on behalf of third parties in the context of marine insurance. The earlier legislation, was limited to requiring interest in marine insurance.79 However, lack of insurable interest was also used as grounds to deny recovery in fire insurance cases.80 Philip Rawlings criticises the tendency in some 18th-century case law to blur the distinction between the requirement of insurable interest and the principle of indemnity: that the insured should only recover the loss sustained.81 There is, however, a clear link. If the insured has no interest in the object of the insurance then damage to it will cause him no loss and so the indemnity principle would mean that there was nothing to recover. This argument works well in the British context because of the expansive manner in which courts were willing to interpret insurable interest. Difficulties continued to be felt. Arguments ___________ 76 Ridolphie c. Nonez (1565), in: Marsden (n. 24), 132–133. See further, Rossi (n. 8), 229–230. 77 Rawlings (n. 74), 808–810; John Birds, Ben Lynch and Simon Milnes, Macgillivray on Insurance Law (11th edn., 2015), paras. 1-021–1-037. 78 Birds, Lynch and Milnes (n. 77), paras. 1-021–1-022; William W. McBryde, The Law of Contract in Scotland (3rd edn., 2007), paras. 19-49–19-53. 79 The Marine Insurance Act 1745. 80 Sadlers’ Company v. Badcock (1743) 1 Wils. K.B. 10, 95 E.R. 463. 81 Rawlings (n. 74), 807.

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about the subject continue to rage in debates around recent statutory reform of the law of insurance.82 However, outlines of the issue had been framed clearly by the end of the 18th century. The requirement of insurable interest can, therefore, legitimately be seen as an application of the idea that insurance is a contract of indemnity and attempts at its clarification crucial to the very idea of insurance in Britain. In 1774, the famous Life Assurance Act made provision requiring an insurable interest in life insurance. This Act and the case law was crucial to the development of insurance in a slightly different sense. First, because in Britain the legislative response to concerns about the possibility of using insurance to gamble on people’s lives was not, as in some other jurisdictions, to ban life insurance but to try to draw a line between insurance and gambling in the life context. 83 This may in part be because it is much later than the comparable measures elsewhere. However imperfectly, the courts had been handling the idea of insurable interest for some time and therefore it presented a plausible tool with which to draw the line between gambling and insurance. The second crucial aspect of the 1774 Act for the general concept of insurance comes from the way that the 1774 Act’s requirement of an insurable interest was understood. Whereas the Marine Insurance Act 1745 prohibited insurance to be made ‘interest or no interest, or without further proof or interest than the policy’ and declared such policies null and void, the 1774 Act, on the other hand, provides that ‘no insurance shall be made by any person or persons … wherein the person or persons for whose use, benefit or on whose account such policy or policies shall be made shall have no interest.’ On first reading, and perhaps even on later readings, the difference between the two formulations may not be that obvious but the courts would take different views of them. The 1745 Act was interpreted as requiring an insurable interest at the time of the law and to limit the scope of recovery according to the indemnity principle.84 This position has persisted in the case of marine insurance and other indemnity insurance.85 The 1774 Act, on the other hand would eventually be understood as only requiring insurable interest at the time when the contract was concluded and that life insurance contracts were not necessarily contracts of indemnity.86 The conclusion that life insurance fell outside the indemnity principal opened the way for its use as an investment vehicle. ___________ 82 Gary Meggitt, Insurable Interest – The doctrine that would not die, (2015) 35 Legal Studies 280–301. 83 Clark (n. 18), 14–16 and 22. 84 Birds, Lynch and Milnes (n. 77), at para. 1-031 85 Marine Insurance 1906, s. 6; Macaura v. Northern Insurance [1925] A.C. 619. 86 Dalby v. The India and London Life-Assurance Company (1854) 15 C.B. 365, 139 E.R. 465, overruling Godsall v. Boldero (1807) 9 East. 72, 100 E.R. 500.

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Alongside insurable interest and the related indemnity principle, clarification of the insured’s duties to the insurer stands as a central development of insurance. The most cited authority in this area is certainly Carter v. Boehm.87 The case concerned an insurance against the fall of Fort Marlborough on Sumatra and the insurers objected that the insured had failed to make various disclosures about the situation on the ground, particularly the state of the fort and the condition of the nearby French force. Crucially, these were matters about which the insured had not been asked by the broker. It is worth bearing in mind that the insured was successful before the court. Further, Lord Mansfield appears to have sought to address the question in terms of the general law of contract: The governing principle is applicable to all contracts and dealings. 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 to the contrary. 88

A large portion of the rest of the judgment is devoted to explaining why that principle did not apply in the instant case, essentially because of the absence of fraudulent intent on the part of the insured. Further, English law has proved famously resistant to a general principle of good faith in contract. However, Carter has come to be understood through the later case law (largely from the 19 th century) as the foundation of the idea that insurance was a contract uberrimae fidei (of the utmost good faith), the most important application of which is that a failure to disclose a relevant fact known to the insured renders the policy liable to avoidance by the insurer.89 The process of development was completed by the Marine Insurance Act 1906, which provided expressly that, A contract of maritime insurance is a contract based upon the utmost good faith and, if the utmost good faith is not observed by either party, the contract may be avoided by the other party.

This is striking because, in contrast to the prior case law, the duty of good faith is not restricted to the pre-contractual phase.90 Like insurable interest, this aspect of the law of insurance has proved something of a running sore, leading to legislative reform in the form of the Consumer Insurance (Disclosure and Representations) Act 2012 and the Insurance Act 2015. As well as being a point of difficulty, it is a field where the process of development shows some reference ___________ 87

(1766) 3 Burr. 1905, 97 E.R. 1162. Carter (n. 87), 1910. 89 E.g. Robert M. Merkin, Colinvaux and Merkin’s Insurance Contract Law (Looseleaf, with bi-annual updates, September 2017 update), para. A-0651. The process is traced, with a critical eye, in R.A. Hasson, The Doctrine of Uberrima Fides in Insurance Law – A Critical Evaluation, (1969) 32 Modern Law Review 615–637. 90 Merkin (n. 89), para. A-0652. 88

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to a key Civilian concept, albeit one from general contract law rather than from the law of insurance in particular. IV. Institutional change and the rise of fire and life insurance The other major changes arising at the end of the 17th and the beginning of the 18th century were the development of alternatives to private underwriting and the spread of fire and life insurance. To some extent these changes are intermingled. At the start of the 18th century, marine insurance in Britain was undertaken by private individuals with unlimited liability for losses. 91 In Britain, as elsewhere, when it first became established maritime insurance was generally practiced by merchants with other interests and activities. 92 By the early 18th century, however, insurance had developed considerably from a side-activity of a closed class to a widespread means of speculation within a broader culture of what might charitably described as financial experimentation. 93 This experimentation involved not only new objects of insurance (the development of fire and life provision but also other eventualities such as marriage and childbirth94 and bespoke events such as a military loss as in Carter v. Boehm) but also innovation in form: a move away the model of individual underwriters undertaking liability for a risk to the formation of associations, partnerships and a desire for corporations. It is perhaps not surprising that the new organisations were more open to offering insurance with respect to new objects. Life insurance had long been recognised in England: it is regulated in the London Code.95 Raynes suggests that policies of life insurance, operating in a manner very similar to marine insurance policies, ‘seem not to have been uncommon’ in the late 16th century.96 Interest in life insurance, swelled as part of a growth in interest in collective schemes in the late 17th and early 18th century, a time when the term insurance was being used with less discrimination that would be the case today.97 While some of these associations were formed with a view to mutual aid, others were commercial and it is difficult to draw a single thread of development from early mutual aid societies which accounts for life assurance in all its varieties. ___________ 91

Kingston, Marine Insurance (n. 18), 383. J.P. van Niekerk, Fragments from the History of Insurance Law, (2001) 12 South African Mercantile Law Journal 102–120, 106; Rossi (n. 8), 66–67. 93 Rawlings (n. 74), 801. 94 Albeit that these were quickly met with specific legislative prohibition: Rawlings (n. 74), 801. See also, Clark (n. 18), 71. 95 Rossi (n. 8), ch. 14. 96 Raynes (n. 14), 117. 97 Raynes (n. 14); Clark (n. 18), 71; Rawlings (n. 74), 801. 92

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Fire insurance similarly caught public attention in the second part of the 17th century. As with marine insurance, it is possible to identify attempts to control fire risk prior to this: through mutual support in guilds and ‘briefs’, collections made by churchwardens in response to various charitable exigencies including fires.98 Neither of these, however, can properly be understood as anything close to insurance. The Great Fire of London in 1666 has obvious attractions as a spark for this. The position is not however, all that clear cut. Schemes were being proposed in the 1630s and the first fire offices did not appear until the 1680s. 99 Whatever the precise causal relationship between the Great Fire and the growth of fire insurance business in this period, more confidence can be shown regarding the form of business, which was resolutely commercial. At the outset, the fire insurance market was relatively unregulated and funded by private capital. As Robin Pearson observes, ‘This contrasted sharply with continental Europe, where state and municipal insurance monopolies or small local mutual and cooperative societies were predominant well into the nineteenth century.’ 100 This is not to say that modern commercial fire insurance was born fully formed. In the initial phase, many associations were mutual and managed the difficulties in pricing risk by requiring members to make a contribution towards claims made while they were members. 101 Thus, the picture at the turn of the 18th century was one where marine insurance was generally an undertaking by individuals, often acting together while other forms dominated the provision for other risks. Their diversity of forms also reflected a diversity in business models in which the simple premium-risk exchange formed but one part. It was there, however, and thus played an important role in linking these schemes with established insurance practice. The 18th century saw the establishment of the first corporate insurers in Britain: the London Assurance Corporation and the Royal Exchange Assurance Corporation in the early part.102 In 1720, these corporations received a partial monopoly in maritime insurance under section 12 of the Bubble Act, which prevented other corporations or partnerships from offering it and in 1721 their charters were

___________ 98

Raynes (n. 14), 76–78. Robin Pearson (n. 18), 62. Pearson does attribute the latter to ‘the shock of 1666’: ibid., 4. 100 Pearson (n. 18), 4. 101 Pearson (n. 18), 62; Trebilcock (n. 15), vol. 1, 6; Ron Harris, Industrializing English Law: Entrepreneurship and Business Organization, 1720–1844 (2000), 100 f. 102 Van Niekerk (n. 92), 108. 99

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extended to life and fire insurance.103 It did, however, leaving existing market participants, such as the Sun Fire Office, untouched.104 In some ways, the most surprising thing about the Bubble Act was that it did not have greater effects. The diversity of form in insurance persisted: individual underwriters continued to operate and new insurance ‘companies’ (the term is apt to mislead given its modern association with the incorporated company) continued to be formed by combining partnerships with trusts. 105 Indeed, the end of the 18th and beginning of the 19th saw the formation of a large number of insurance ventures, whether unincorporated companies trading for profit or mutual associations.106 Of course, the very existence of the Bubble Act (which also restricted the formation of new share corporations) prevented the corporate model from being used more widely. In terms of business history, this period was crucial in establishing insurance business in provincial England and in Scotland. In terms of legal development, this spread was perhaps less significant because the models were already established in the context of London. One other significant advance is perhaps worthy of note: the first sustained efforts towards life insurance schemes based on sound actuarial principles. By the time life insurance societies began to take off in the late 17th century, statistical study was underway and continued to progress, most notably through Edmund Halley’s (1656–1742) mortality tables.107 The reason for the initial neglect of these resources by life insurers has been a point of debate among social and economic historians.108 They did, however, get there in the end and the first example of an actuarially based scheme was set up in 1744, for the benefit of the widows of Scottish ministers.109 Clark suggests that the scheme succeeded in deploying such an approach because its organisers possessed reliable (and cheaply obtained) information about scheme members and a freedom from the disruptive influence of the wider (and rather tumultuous) market. 110 Strictly, the actuarial model does not imply a legal change. As noted above, premium based life insurance was being offered in London in the 16th century. ___________ 103

6 Geo. I, c. 18. Rawlings (n. 74), 803. 105 These are sometimes referred to in the literature as deeds of settlement, this term referring to the document by which the trust was established. Pearson (n. 18), 235; Rawlings (n. 74), 804–805. 106 See Raynes (n. 14), ch. 13. 107 Clark (n. 18), 115 f.; David J.P. Hare and William F. Scott, The Scottish Ministers’ Widows’ Fund of 1744, in: A. Ian Dunlop (ed.), The Scottish Ministers’ Widows’ Fund 1743–1993 (1992), 56–76, 56–57. 108 Clark (n. 18), 117–118. 109 For a detailed account of the actuarial efforts, see Hare and Scott (n. 107). 110 Clark (n. 18), 146. 104

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However, the rise of statistically reliable models did make pricing of risk economically plausible and thus reduced the need to rely on self-correcting models such as contributorships and tontines.111 V. 19th and early 20th century legislation The Bubble Act was repealed in 1825.112 This repeal was followed by an extensive period of parliamentary activity in which parliament wrestled with concerns around the solvency of both companies (including corporate insurers) and friendly societies who were among the major providers of so called industrial (i.e. large scale, low cost) life insurance and had developed into national businesses by the mid-19th century.113 Much of this legislation and the associated parliamentary debate was essentially regulatory in nature, concerned in particular with the rules for administering the relevant bodies, requirements of registration, capital, the publication of annual returns and so forth. As far as corporate insurers were concerned, the end result was to apply general company law to them, albeit with some specific accounting requirements designed to separate the various classes of insurance from one another and from a company’s other business. The Assurance Companies Act 1909 may fairly be regarded as the end point of this process. It applied, in terms of section 1, to life, fire, accident, and employers’ liability insurance as well as to bond investment business (essentially endowment schemes which did not fall within life insurance). This catalogue provides a fair view of the range of major insurance activities which operated alongside marine insurance by the turn of the 20th century. Like the 19th century legislation, much of the act’s content is regulatory in nature. 114 Besides that, the most significant provision was section 36, which sought to clarify the requirement of insurable interest as it applied to friendly societies and industrial life assurance: insuring that funeral expenses for close relations were considered to provide an insurable interest and validating all policies entered into with such insurers in good faith to cover funeral expenses prior to the act’s passing. In these policies, as in other life insurance policies, the insurable interest was assessed at the time of the contract rather than at the time of the loss. 115 The provision is worthy of note because it confirms the application of the doctrine of insurable interest to industrial life insurance (a question which appears to have been the ___________ 111

See Clark (n. 18), 144. 6 Geo. IV, c. 91. 113 For the former, see Raynes (n. 14), 249–260 and 353–365. For the latter, see Morrah (n. 17), 37. 114 For a thorough summary and contemporary discussion, see Arthur Rhys Barrand, The Assurance Companies Act 1909, (1911) 45 Journal of the Institute of Actuaries 257–335. 115 Barrand (n. 114), 309. 112

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occasion of some doubt prior to the act). 116 As such, it confirms the tendency to see industrial insurance as a branch of broader life insurance and for it to develop in line with the principles established elsewhere. Marine insurance is notable for its absence from that catalogue of activities regulated by the 1909 Act, a point on which the legislation has been criticised. 117 It was not, however, without attention from parliament in this period. The Marine Insurance Act was passed in 1906. It was part of a broader suite of late-Victorian statutes which sought to codify (albeit not in the sense the term would be understood in continental Europe) the main areas of commercial law. 118 The act sought to restate the law as it had developed up to that point rather than to innovate. When commenting on the general codification project, the draftsman, Mackenzie Chalmers (1847–1927), suggested that this was a matter of principle: In legislation, as in other sciences, the a priori road is a dangerous one to tread. When the principles of the law are well settled, and when the decided cases that accumulate are in the main mere illustrations of accepted general rules, then the law is ripe for codification.119

Others have suggested that the motive was less to do with the settled nature of the law than with the likely political resistance which any innovation would face.120 The act was not entirely without novelty, as its provisions on the utmost good faith show but it is generally accepted to have presented the settled law. This, indeed, is part of the reason for its being accepted as authority beyond the sphere of marine insurance. As such, its passage can be taken to represent the end point of the maturation of the central concepts of insurance law in Britain, the most striking aspect of which is perhaps how similar it looks to the law as it was borrowed from the Italian merchants in the late Middle Ages.

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Barrand (n. 114), 309; Morrah (n. 17), 74. Raynes (n. 14), 364. 118 The others were the Bills of Exchange Act 1882, the Sale of Goods Act 1893, and the Partnership Act 1890. 119 M.D. Chalmers, Codification of Mercantile Law, (1903) 73 Law Quarterly Review 10–18, 11. 120 Bennett (n. 20), paras. 3–6. 117

Chapter 8: Germany By Phillip Hellwege A. The tale of the three roots of modern insurance (law) ............................................ 172 I. The first root: maritime insurance ................................................................... 172 II. The second root: the cooperative protection by guilds .................................... 174 III. The third root: public insurances ..................................................................... 177 IV. The merging of the three distinct developments ............................................. 180 B. The tale of the three roots as an oversimplification ................................................ 182 I. Other classes of insurance ............................................................................... 182 II. Insurance legislation: insurance contract law and insurance regulation .......... 183 III. The case of social insurance ............................................................................ 184 IV. Further problems with the tale of the three roots ............................................. 185 C. The tale of the three roots and the history of insurance law ................................... 186 I. The regulations of the Hamburg General Feur-Cassa of 1676 ....................... 187 II. The development of the duty of disclosure in life insurance ........................... 189 D. The German history of insurance law in a European context ................................. 194

The German narrative on the history of insurance (law) differs from other national narratives:1 German literature identifies three roots of modern insurance (law),2 and it gives the impression that there were three distinct lines of development which merged together only relatively late in time (below A). In the present chapter I will challenge this narrative: it is incomplete and an oversimplification (below B). Furthermore, it is not apt to be the basis for a doctrinal history of insurance law (below C). Finally, I will identify possible points where the development of insurance law in Germany interacted with developments occurring in other national settings (below D).

___________ 1 See the analysis of Phillip Hellwege, Die historische Rechtsvergleichung und das europäische Versicherungsrecht, (2014) 131 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Germanistische Abteilung) 226–265, 228–235. 2 Peter Koch, Versicherungswesen, in: Adalbert Erler et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 5 (1998), 815–826, 815; idem, Geschichte der Versicherungswirtschaft in Deutschland (2012), 5; idem, Ansätze zum Versicherungsgedanken in deutschrechtlichen Quellen bis zur Hamburgischen Assekuranz- und Havareiordnung von 1731, in: Ursula Floßmann (ed.), Rechtsgeschichte und Rechtsdogmatik. Festschrift für Hermann Eichler (1977), 367–385, 367.

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A. The tale of the three roots of modern insurance (law) I. The first root: maritime insurance The first root is said to be maritime insurance. It is thought to be the origin of insurance transactions which were operated on both a commercial and a contractual basis.3 The first surviving maritime insurance contract which was concluded in Germany (more specifically: in Hamburg) dates back to 1588.4 However, German merchants had entered into maritime insurance agreements outside Germany before 1588, at least as early as 1531.5 The origins of maritime insurance are to be found in the 14 th century, when the insurance element in sea loans was singled out in order to form an independent contract, and maritime insurance was initially restricted to the Mediterranean.6 It later spread to the Netherlands and England,7 where the insurance business was, at first, dominated by Italian merchants and their practices.8 However, the Dutch customs in respect of the insurance trade emancipated themselves ___________ 3

Koch, Versicherungswirtschaft (n. 2), 6. Thomas Dreyer, Die ‘Assecuranz- und Haverey-Ordnung’ der Freien und Hansestadt Hamburg von 1731 (1990), 25; Walther Heyn, Das schaffende Hamburg (1950), 12; Georg Arnold Kiesselbach, Die wirtschafts- und rechtsgeschichtliche Entwicklung der Seeversicherung in Hamburg (1901), 15; Peter Koch, 800 Jahre Hamburger Hafen, in: Heinz Leo Müller-Lutz and Karl-Heinz Rehnert (ed.), Beiträge zur Geschichte des deutschen Versicherungswesens (1995), 268–284, 272; idem, Versicherungswirtschaft (n. 2), 44; idem, Versicherungswesen (n. 2), 818. 5 Koch, Versicherungswirtschaft (n. 2), 43 f.; Kiesselbach (n. 4), 4. 6 Sebastian Lohsse, Vom Seedarlehen zur Versicherung in der mittelalterlichen Rechtswissenschaft, (2016) 133 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Romanistische Abteilung) 372–399; Markus A. Denzel, Die Seeversicherung als kommerzielle Innovation im Mittelmeerraum und in Nordwesteuropa vom Mittelalter bis zum 18. Jahrhundert, in: Simonetta Cavaciocchi (ed.), Ricchezza del mare – ricchezza dal mare (2006), 575–609; Alberto Tenentini, Versicherung, in: Lexikon des Mittelalters, vol. 8 (1997), 1582–1584; Bruno Dini, Seeversicherung, in: ibid., vol. 7 (1995), 1691–1692; Panayotis Perdikas, Die Entstehung der Versicherung im Mittelalter (1966); idem, Versicherung in den Dokumenten des Notars Rustico de Rusticis in Palermo, in: Fritz ReichertFacilides et al. (eds.), Festschrift für Reimer Schmidt (1976), 325–353; Friedrich Plaß and Friedrich Robert Ehlers, Geschichte der Assecuranz und der hanseatischen Seeversicherungs-Börsen (1902), 19; Kiesselbach (n. 4), 1–14; Clemens von Zedtwitz, Die rechtsgeschichtliche Entwicklung der Versicherung (1999), 84–89. 7 With slight variations in the details: Koch, Versicherungswirtschaft (n. 2), 42–44; Winfried M. Hammacher, Die Grundzüge des allgemeinen Seeversicherungsrechts in der deutschen Gesetzgebung des 18. Jahrhunderts vor dem Hintergrund der älteren europäischen Seeversicherungsgesetzgebung (1982), 17–30; Ralph Neugebauer, Versicherungsrecht vor dem Versicherungsvertragsgesetz (1990), 12; Denzel (n. 6), 592–599. 8 David Ibbetson, Insurance, in: Stanley N. Katz (ed.), Oxford International Encyclopedia of Legal History, vol. 3 (2009), 252–254, 252; Christoph M. Scheuren-Brandes, Insurance: Medieval and Post-Medieval Roman Law, in: ibid. 257–259, 258. 4

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from the Italian usages soon thereafter, and the English insurance trade followed.9 It seems as if Hamburg received maritime insurance from the Netherlands as it was the Dutch language and Dutch customs, especially those of the city of Antwerp, that dominated the maritime insurance market in Hamburg until the early 18th century.10 Accordingly, the first surviving insurance contract to be concluded in Hamburg in 1588 was drafted in the Dutch language, and it is rooted in the Dutch insurance customs.11 Academic literature has in the past focused on a number of key aspects in the development of maritime insurance: (1) One focus has been on surviving insurance contracts which were drafted by Italian notaries in the 14th and 15th centuries. Foremost, the question has been discussed as to when it is possible to speak of an insurance contract,12 and in addition the law as it is reflected in the Italian notarial practice has been analysed. 13 (2) Furthermore, the law and practices of maritime insurance in the Netherlands have received some attention. 14 (3) Finally, literature has discussed the legislation on maritime insurance, especially the German legislation of the 18th century: the Königlich-Preußisches See-Recht (Royal Prussian Maritime Act) of 1727, the Assecuranz- und Haverey-Ordnung (Assurance and Average Act) of the city of Hamburg of 1731, and the Assekuranz- und Havarie-Ordnung für die Königlich-Preußischen Staaten (Assurance and Average Act for the Royal Prussian Territories) of 1766.15 It has been stressed that these acts can only be understood in a European context: on the one hand, the European legislation on maritime insurance to a large extent reflected the European customs of the maritime insurance sector. 16 On the other hand, the individual national acts on maritime insurance were of European importance and influenced the development of such insurance (law) outside their immediate ___________ 9 Guido Rossi, The Booke of Orders of Assurances: A Civil Law Code in 16th Century London, (2012) 19 Maastricht Journal European and Comparative Law 240–261. 10 Kiesselbach (n. 4), 109; Dreyer (n. 4), 25–30; Koch, Versicherungswesen (n. 2), 818; idem, Versicherungswirtschaft (n. 2), 43 f.; idem, Geschichte der Versicherungswissenschaft in Deutschland (1998), 23. On terms used internationally in the maritime insurance sector see, e.g., Siegbert Lammel, Rechtsbildung durch Verträge und Vertragsbedingungen, in: Karl Otto Scherner (ed.), Modernisierung des Handelsrechts im 19. Jahrhundert (1993), 89–117, 90–92. 11 The text of the contract is reproduced in: Plaß and Ehlers (n. 6), 30–32. 12 See the references in n. 6. 13 Karin Nehlsen-von Stryk, Die venezianische Seeversicherung im 15. Jahrhundert (1986). 14 F. Kracht, Die Rotterdamer Seeversicherungs-Börse (1922). 15 Dreyer (n. 4); Neugebauer (n. 7), 39–41; Peter Koch, Zur Geschichte der Versicherungsrechtlichen Kodifikationen in Deutschland und Österreich, in: Festschrift für Reimer Schmidt (n. 6), 299–323, 301 f.; Kiesselbach (n. 4), 123–134; Hammacher (n. 7), 56–68. 16 Kiesselbach (n. 4), 131–134.

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scope of application: the aforementioned Act of the city of Hamburg of 1731 is thought to have had a great international impact, especially on the development of marine insurance (law) in the cities and countries of the Baltic Sea.17 II. The second root: cooperative protection by guilds The second root is said to be the cooperative protection provided by guilds against the risks of fire, ill health, and death, including covering the means for a Christian funeral.18 This form of protection is presented as the origin of life and fire insurance. Guilds were a means of mutual assistance, aid, and protection. They existed in Germany as early as the 8 th century19 and served a number of different purposes. In fact, mutual assistance and protection was, in the beginning, not the sole purpose of such guilds. And they existed in great many forms and had great many names: Gilde, Zunft, Innung, and Bruderschaft to name just some. The English translation for Gilde, Zunft, and Innung is simply guild. The English word for Bruderschaft is fraternity. On the one hand there were guilds which were formed voluntarily, which often admitted only a small number of members and which served different religious and social functions: sociability, charity, and the protection of its members. 20 These guilds were primarily called Gilde or Bruderschaft. Similar associations existed already in the ancient world.21

___________ 17 Dreyer (n. 4), 204–211; Kiesselbach (n. 4), 133; Peter Koch, Entwicklung der versicherungsvertraglichen Rechtsquellen in Deutschland, in: Manfred Wandt et al. (eds.) Kontinuität und Wandel des Versicherungsrechts. Festschrift für Egon Lorenz (2004), 411–426, 421. 18 Knut Schulz, Zunft, -wesen, -recht, in: Lexikon des Mittelalters, vol. 9 (1998), 686– 690, 687; Jürgen Brand, Zunft, Zunftwesen, in: Adalbert Erler et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 5 (1998), 1792–1803, 1796; Dieter Schewe, Geschichte der sozialen und privaten Versicherung im Mittelalter in den Gilden Europas (2000); Koch, Versicherungswesen (n. 2), 815; idem, Versicherungswirtschaft (n. 2), 5– 6, 15–19, 26–29; idem, Rechtsquellen (n. 17), 413; idem, Der geistesgeschichtliche Hintergrund der Versicherungswirtschaft, in: Müller-Lutz and Rehnert (n. 4), 151–163, 153. There is a rich body of literature on guilds in Germany. 19 Koch, Versicherungswesen (n. 2), 815. 20 Frank Theisen, Bruderschaft, in: Albrecht Cordes et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 1 (2nd edn., 2008), 686–689; H. Stradal, Gilde, in: Adalbert Erler et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 1 (1971), 1687–1692; Gerhard Fouquet, Gilde, in: Albrecht Cordes et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 1 (2nd edn., 2012), 383–386. 21 Marina Elisabeth Pfeffer, Einrichtungen der sozialen Sicherung in der griechischen und römischen Antike (1969), 104–122; von Zedtwitz (n. 6), 41–45.

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On the other hand, those who engaged in certain business in cities could only do so if they were members of the respective guild. 22 With respect to guilds of merchants the term Gilde is primarily used, and with respect to guilds of craftsmen the word Zunft is predominant; the latter are sometimes also called Innung.23 These guilds were primarily directed at regulating a certain trade sector, but mutual assistance and mutual protection, which they granted to their members and their members’ dependants, were equally characteristic for them. 24 Let me start by dealing with the first form of guilds: the importance of fire guilds (Brandgilden) which were voluntarily founded in villages in the first half of the 16th century in the territory which is today part of Schleswig-Holstein is stressed by many.25 The first of these guilds is said to have been founded in 1537 in the village of Süderau.26 The aspect of sociability was less important in these fire guilds of the 16th century. Primarily, the members granted mutual assistance to each other in the event that the house of one of its members was destroyed or damaged by fire.27 It has been observed that similar institutions existed in Germany in medieval times and also in the Netherlands and in Scandinavia. A direct influence of these foreign institutions on the development of the fire guilds in Schleswig-Holstein has, however, not been proven. 28 Whereas the fire guilds in Schleswig-Holstein were characterized by the fact that their members were part of a small rural community but came from diverse social backgrounds, Feuerkontrakte (fire contracts) in the city of Hamburg were organized differently.29 The first of these contracts was formed in 1591 between 100 beer brewers. It was a private contract, the purpose of which was simply mutual protection in case of fire. The aspect of sociability was no longer inherent in these associations. Even though the village of Süderau is less than 35 miles ___________ 22

Brand (n. 18), 1792; Stradal (n. 20), 1687–1692; Fouquet (n. 20), 383–386. R. Luther, Innung, in: Adalbert Erler et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 2 (1978), 368–370; Brand (n. 18), 1792. 24 Brand (n. 18), 1794; Koch, Versicherungswesen (n. 2), 815 f. 25 See on these guilds Ludwig Maass, Die Brandgilden insbesondere in Schleswig Holstein (1909); Julius Kähler, Die Gilden in den Holsteinischen Elbmarschen. Mit besonderer Berücksichtigung des Versicherungswesens (1904); Georg Helmer, Die Geschichte der privaten Feuerversicherung in den Herzogtümern Schleswig und Holstein insbesondere die Geschichte der Entstehung und Entwicklung der Brandgenossenschaften oder ‘Brandgilden’ in Schleswig-Holstein, 2 vol. (1925 and 1926). 26 Koch, Versicherungswirtschaft (n. 2), 26; Helmer (n. 25), vol. 1, 216. 27 Helmer (n. 25), vol. 1, 216. 28 Helmer (n. 25), vol. 1, 191–203; idem, Entstehung und Entwicklung der öffentlichrechtlichen Brandversicherungsanstalten in Deutschland (1936), 10–18. 29 On the Feuerkontrakte in Hamburg Wilhelm Ebel, Die Hamburger Feuerkontrakte und die Anfänge des deutschen Feuerversicherungsrechts (1936), 5–30; Koch, Geschichte der Versicherungswirtschaft (n. 2), 29–30; von Zedtwitz (n. 6), 126–131; Helmer (n. 28), 32–43. 23

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outside of Hamburg and even though the first fire contract of Hamburg specifically refers to earlier models of similar means of mutual assistance, the fire guilds of Schleswig-Holstein, on the one hand, and the fire contracts of Hamburg, on the other hand, only show little resemblance; consequently it has been doubted that the fire guilds served as a model for the fire contracts of Hamburg. 30 German academic literature presents these voluntarily formed fire guilds in Schleswig-Holstein and the Hamburg fire contracts as the origins of modern fire insurance in Germany. In contrast, trade guilds, and this brings me to the second form of guilds which I have mentioned above, were of special importance for the development of the idea of health and life insurance.31 The need for protection against these risks varied for the different professions. According to the rules of many guilds the widow of a master craftsman who had been proprietor of a craftsman’s business was allowed to run the business herself after her husband’s death.32 Consequently, there was no need to protect the craftsman’s wife against the economic risks caused by her husband’s death. However, with some professions this would not do, as is obviously the case with a shipmaster’s widows: if the husband and the ship were lost, she would not be able to generate any income. Furthermore, the protection of a master craftsman’s orphans had to be organized differently, too. The same was true, for example, for the protection of a craftsman’s employees against the risk of illness. For these purposes the members of guilds or the employees of the members of guilds developed different forms of protection. The employees working for a guild member, for instance, were allowed, or even bound, to create a fund for their mutual protection. 33 Again, the German-language literature has in the past focused on a number of key aspects in the development of cooperative protection by guilds: there is rich

___________ 30 W. Ebel (n. 29), 31–43; Cornel Zwierlein, Der gezähmte Prometheus (2011), 35, 226 f. In support of an influence of the fire guilds of Schleswig-Holstein, e.g., Helmer (n. 28), 32–43. In support of a Dutch influence Wilhelm Schaefer, Urkundliche Beiträge und Forschungen zur Geschichte der Feuerversicherung in Deutschland, vol. 1 (1911), 163. See further Fritz Morstein Marx, Zur Entstehung der Hamburger Feuerkasse, (1927) Hanseatische Rechtszeitschrift 641–656. 31 Koch, Versicherungswirtschaft (n. 2), 16; idem, Versicherungswesen (n. 2), 815. 32 Brand (n. 18), 1794; Sigrid Fröhlich, Die Soziale Sicherung bei Zünften und Gesellenverbänden (1976), 108–111. On the parallel phenomenon in the Southern Netherlands see above Heirbaut, 98. 33 Brand (n. 18), 1796; Fröhlich (n. 32), 97 f.

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literature on the fire guilds of Schleswig-Holstein and on the Hamburg fire contracts.34 The literature on the historical development of trade guilds and their different functions is vast; however, the focus is only rarely on the protective function of these guilds.35 III. The third root: public insurance From the late 17th century onwards, the different German states started to run and initiate fire and life insurance. These initiatives have to be seen in a greater context:36 a fire could destroy a family’s economic basis. In societies without any schemes of social protection, begging was the natural consequence. Begging was, however, unwanted:37 since, the 15th century many states introduced legislation forbidding begging. In the event of poverty resulting from a fire, one could apply for an exemption from the prohibition against begging. Such exemptions were granted with clearly defined time limits. However, even in these narrowly defined limits, begging was seen as problematic. The interrelation between curtailing begging and promoting fire insurance is, by way of example, revealed in the title of two acts dating from the first half of the 18th century: the Saxon Mandat wider das Bettel-Wesen und wegen Errichtung einer allgemeinen BrandCasse (Act against Begging and on Introducing a General Fire Fund) of 172938 and in Saxon-Merseburg the Mandat wieder das Bettel-Wesen, wie nehmlich in Dero Erb-Landes-Portion Die einheimischen Armen zu versorgen, die auswärtigen Bettler und Land-Streicher aber wegzuweisen und zu bestraffen, Sowohl insoderheit, Wegen Abschaffung alles Bettelns dererjenigen, welche durch Brand, Wetter und Wasser beschädiget worden, Und Wegen Errichtung einer Allgemeinen Brand-Casse (Act against Begging, on the Supply of the Poor, on the Expulsion of Foreign Beggars and Vagabonds, on the Prohibition of all Begging caused by Damage by Fire, Weather, and Water, and on Introducing a General Fire Fund) of 1730.39 However, as Peter Koch stresses, both funds were not, as yet, full insurances.40 Furthermore, and closely related to the first point, with the ___________ 34

See the references in n. 25, n. 28, n. 29, and n. 30. Fröhlich (n. 32); Schewe (n. 18); Gerald Schöpfer, Sozialer Schutz im 16.–18. Jahrhundert (1976); Volker Martens, Toten- und Knochenbruchgilden im Herzogtum Schleswig (1967). 36 Koch, Versicherungswesen (n. 2), 817; idem, Versicherungswirtschaft (n. 2), 2–6. 37 Franz Irsigler, Bettlerwesen. Das Bettlerwesen in der spätmittelalterlichen Stadt, in: Lexikon des Mittelalters, vol. 2 (1983), 2–3; Thomas Fischer, Städtische Armut und Armenfürsorge im 15. und 16. Jahrhundert (1979); Claudia Schott, Armenfürsorge, Bettelwesen und Vagantenbekämpfung in der Reichsabtei Salem (1978). 38 Fortsetzung des Codicis Augustei, Erste Abtheilung (Leipzig 1772), 537–554. 39 Merseburg 1730. 40 Koch, Versicherungswirtschaft (n. 2), 4. 35

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upcoming Kameralismus, the German version of mercantilism,41 the German states began to promote the general welfare.42 Furthermore, the states began to realize that fire insurance was a means to promote credit systems relying on real property securities. And finally, the states began to realize that those who have lost their economic basis through fire were no longer able to pay taxes: it was thus in their own interests to introduce schemes of relief and protection. In 1676 the first public fire insurance was founded in Hamburg, the General Feur-Cassa.43 The city of Hamburg was able to draw on experiences with the fire contracts which had been regularly concluded since 1591.44 It is generally thought that the Great Fire of London in 1666 was one impulse for founding this public fire insurance,45 but this has recently been contested. 46 The Cassa served as a model for a great number of similar public fire insurances which were founded in Germany starting in the late 17th century and throughout the 18th century.47 The idea of public fire insurance is said to have been greatly promoted by the influential philosopher and mathematician Gottfried Wilhelm Leibniz (1646– 1716).48 The first insurance to follow the Hamburg model is thought to be the ___________ 41 See on the distinction between the two concepts Thomas Simon, Merkantilismus und Kamerlismus. Zur Tragfähigkeit des Merkantilismusbegriffs und seiner Abgrenzung zum deutschen ‘Kameralismus’, in: Moritz Isenmann (ed.), Merkantilismus. Wiederaufnahme einer Debatte (2014), 65–82. 42 On the writings of the ‘Kameralisten’ on insurance see Koch, Versicherungswissenschaft (n. 10), 43–58; Hans Schmitt-Lermann, Der Versicherungsgedanke im deutschen Geistesleben des Barock und der Aufklärung (1954). 43 W. Ebel (n. 29), 51; Koch, Versicherungswesen (n. 2), 816 f. Hans Knoll, Aus der Entwicklungsgeschichte des Versicherungswesens (1934), 12–13, believes that the first public fire insurance was founded in Königsberg in 1627; contra Egid Fleck, Die Anfänge der öffentlich-rechtlichen Brandversicherung in den früheren Gebieten des heutigen Landes Baden-Württemberg (1958), 6. Proposals to introduce such public fire insurance are said to have first been made in the beginning of the 17th century in Oldenburg: Schaefer, (n. 30), vol. 2, 104–129; Wilhelm Dursthoff, Die Entstehung, Entwickelung und Reform der oldenburgischen Brandkasse (1904), 13 f. Critical of the private-public-dichotomy in the present context Morstein Marx (n. 30), 641–656. 44 Koch, Versicherungswesen (n. 2), 816. 45 Koch, Rechtsquellen (n. 17), 417–418; idem, Versicherungswirtschaft (n. 2), 30; idem, Große Katastrophen der Versicherungsgeschichte, in: Müller-Lutz and Rehnert (n. 4), 26–55, 50 f.; Helmer (n. 28), 44, 55; Harald von Waldheim, Das Versicherungswesen in seiner Entwicklung (1928), 10; Scheuren-Brandes (n. 8), 257. Phrasing it more carefully: Alexander Müssener, Die Entwicklung der Aachener Feuer-Versicherungs-Gesellschaft im 19. Jahrhundert (2008), 25 (an influence is not verifiable, but probable). 46 Zwierlein (n. 30), 226. 47 On the spreading of public fire insurance see Koch, Versicherungswesen (n. 2), 817; idem, Versicherungswirtschaft (n. 2), 31–42. A chronological table of the foundations is provided by Zwierlein (n. 30), 370–372. 48 Koch, Versicherungswesen (n. 2), 816 f.

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General Feur-Cassa of the city of Magdeburg in 1685.49 The public fire insurances existed with variations. Some were mandatory; others could be joined voluntarily; and with yet others it was not possible to leave it once it was joined on a voluntary basis. Often they had a monopoly. With some, premiums had to be paid; with others the loss was simply apportioned among all insured after it had occurred. All of these public fire insurances were restricted to insuring immovable property. The movables in a house were not covered. The German states also initiated widow and orphan assurances (Witwen- und Waisenkassen) as an early form of life insurance 50 and tontines as an early form of a pension scheme.51 The former seem to have been of importance especially in those sectors in which there were no guilds: there were widow and orphan assurances initiated by states for protestant pastors, school teachers, for university professors, and later for all civil servants. Koch and Friedrich Wilhelm Ponfick refer to the Pfarr-Wittwen-Kasten (Pastor-Widow’s Fund) of 1636 for the Duchy Braunschweig-Lüneburg as the first of these assurances;52 Gerald Schöpfer mentions a similar fund in Leipzig which was founded already in 1618.53 The creation of such pastors’ widow and orphan assurances is obviously linked to the reformation; the development of school teachers’ widow and orphan assurances is connected to the expansion of the public school system throughout Germany in the 18th century.54 These widow and orphan assurances, here again, were at times mandatory, especially when they were restricted to a certain profession. However, the 18th century also saw widow and orphan assurances which were open to anybody and which could be joined on a voluntarily basis. In the ___________ 49

Koch, Versicherungswirtschaft (n. 2), 31. Wilhelm Ebel, Die Professoren-Witwen- und -Waisenkasse, in: idem, Memorabilia Gottingensia. Elf Studien zur Sozialgeschichte der Universität (1969),73–100; Schöpfer (n. 35), 143–152; Schmitt-Lermann (n. 42), 30 f.; Albert Schug, Der Versicherungsgedanke und seine historischen Grundlagen (2011), 247 f.; Koch, Versicherungswirtschaft (n. 2), 19. 51 On tontines see Heinrich Braun, Geschichte der Lebensversicherung und der Lebensversicherungstechnik (2nd edn., 1963), 68 f., 153–162; Schöpfer (n. 35), 132–143; Schmitt-Lermann (n. 42), 57–69; Schug (n. 50), 245 f.; Peter Koch, Zum Tontinengeschäft in versicherungshistorischer Sicht, in: Verlag Versicherungswirtschaft (ed.), Beiträge zur Geschichte des deutschen Versicherungswesens, vol. 2 (2005), 27–30, 28 f.; von Zedtwitz (n. 6), 138–143. 52 Koch, Versicherungswirtschaft (n. 2), 19; Friedrich Wilhelm Ponfick, Geschichte der Sozialversicherung im Zeitalter der Aufklärung (1940), 56. See Verordnung, wegen des Pfarr-Wittwen-Kastens, Chur-Braunschweig-Lüneburgische Landes-Ordnungen und Gesetze. Erster Theil, Göttingen 1739, 840–842. 53 Schöpfer (n. 35), 143, n. 303. 54 On the expansion of compulsory schooling in the 18th century see Albrecht Mors, Die Entwicklung der Schulpflicht in Deutschland (1986); James Van Horn Melton, Absolutism and the eighteenth-century origins of compulsory schooling in Prussia and Austria (1988). 50

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19th century, public insurance schemes began to find use in further insurance branches, in particular mobile property, hail, and livestock insurance.55 At times, the cooperative protection provided by guilds, on the one hand, and public insurance, on the other, are not understood as two roots of modern insurance; rather, the literature gives the impression of fire insurance and life insurance finding their roots in the cooperative protection of guilds alone, with public insurance being an intermediate step in the process of development. 56 Authors advancing this view recognize only two distinct roots of modern insurance. However, the differences between the two narratives are only slight. IV. The merging of the three distinct lines of development The German-language literature suggests that the aforementioned three roots of modern insurance (law) developed apart from each other and that the three streams of development merged together only in the late 18th and early 19th centuries.57 Until then only the maritime insurance business was operated on a commercial basis. In contrast, the cooperative protection by guilds and the state-run insurances in the fire and life insurance sectors were operated on a purely mutual basis. And the merging of the three distinct lines of development in the late 18th and early 19th centuries is attributed to a foreign impulse. This impulse can only be fully understood against the background of development of insurance in Britain. The English-language literature proposes that in Britain insurance developed along different lines than in Germany. 58 The literature gives the impression that cooperative protection by guilds did not play the same role as it did in Germany. Public insurance schemes are hardly ever mentioned even though initiatives for

___________ 55

Koch, Versicherungswesen (n. 2), 817. Sonja Heiss, Die Institutionalisierung der deutschen Lebensversicherung (2006), 43. See similarly Wilhelm Ebel, Glücksvertrag und Versicherung, in: idem, Probleme der deutschen Rechtsgeschichte (1978), 101–122, 102; Franz Büchner, Geschichtliche Betrachtungen zum Begriff der Versicherung, in: Reimer Schmidt and Karl Sieg (ed.), Grundprobleme des Versicherungsrechts. Festgabe für Hans Möllers (1972), 111–134, 112; idem, Zum Begriff und zum Beginn der Versicherung, in: Horst Baumann et al. (ed.), Festschrift für Karl Sieg (1976), 111–125, 114. 57 Koch, Versicherungswesen (n. 2), 816: in the 19th century older forms of mutual protection were replaced by modern mutual insurance societies. 58 For the text that follows Ibbetson (n. 8), 252 f.; Harold E. Raynes, A History of British Insurance (2nd edn., 1964); Terence O’Donnell, History of Life Insurance (1936), 78 f.; Maurice Edward Ogborn, The Story of Life Assurance in the Experience of the Equitable Life Assurance Society (1962), 19. 56

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such schemes did exist.59 Instead the focus is exclusively on the development of insurances which were operated on a commercial basis. And indeed, in Britain fire insurance was successfully operated on such a basis beginning in the late 17th century, with life insurance subsequently starting in the 18 th century. In the late 18th century these British insurance companies expanded to the continent.60 The Phoenix Assurance Company which was founded in 1782, for example, opened a branch in Hamburg in 1786, and Sun Fire Insurance expanded to Germany in 1836. In Germany, these companies had to find their niches in a fragmented market: the German market was dominated by cooperative insurance schemes and public insurance. And in each of the many German states the insurance market had developed slightly differently. The focus of British fire insurance companies operating in the German market was on the insurance of movable property because in many of the German states the insurance of immovable property against the risk of fire was monopolized by public insurance schemes. Many contemporaries viewed the expansion of British insurers to the German market critically: the profits were transferred to Britain; there was among the insured the widely shared fear that the British insurers would decline to pay on the basis of their strict standard contract terms; British insurers operated with a clause under which disputes were submitted to courts or tribunals in London; the costs involved in litigation were regarded as being enormous; and contemporaries expressed their worries that such tribunals would not be impartial in respect of foreign plaintiffs.61 These fears were spurred by a famous case in the 1820s: 62 in 1822 Duke August of Sachsen-Gotha-Altenburg died, leaving considerable debts which he owed to the Herzogliche Landesbank. His successor, Duke Frederick IV, agreed in 1824 to pay these debts by instalments within five years. In the same year the creditor entered into a life insurance contract with English insurers on the Duke’s life. The Duke passed away in 1825. Some of the insurers ___________ 59 Barry Supple, The Royal Exchange Assurance (1970), 7; Jean-Marie Hangartner, Versicherungsgeschichte. Außerdeutsche Länder, in: Erwin von Beckerath et al. (eds.), Handwörterbuch der Sozialwissenschaften, vol. 11 (1961), 217–222, 218; David Jenkins and Takau Yoneyama (eds.), History of Insurance, vol. 1 (2000), 29–69. 60 On this development Koch, Rechtsquellen (n. 17), 423; idem, Versicherungswesen (n. 2), 819; idem, Versicherungswirtschaft (n. 2), 47–49, 62; Heiss (n. 56), 40; Müssener (n. 45), 32 f.; Zwierlein (n. 30), 324–329; Raynes (n. 58), 257–258; Peter George Muir Dickson, The Sun Insurance Office (1960), 163–187; Supple (n. 59), 156–157; Clive Trebilcock, Phoenix Assurance and the Development of British Insurance, vo. 1 (1985), 162–196; Hugh A.L. Cockerell and Edwin Green, The British Insurance Business (1976), 24–25. 61 E.A. Maius, Systematische Darstellung des gesammten Versicherungswesens (1857), 52. Compare also Neugebauer (n. 7), 24; Braun (n. 51), 213; Hans Erkenbrecher, Ernst Wilhelm Arnoldi (1995), 55. 62 Lindenau v. Desborough (1828) 172 E.R. 453–455, (1828) 108 E.R. 1160–1162.

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declined to pay, relying on the fact that the Duke’s creditor had concealed material facts as to the Duke’s health. The claimant – Baron Bernhard von Lindenau, who was director of the Landesbank and at the same time minister in the Cabinet of, and acting for, the diseased Duke – lost the case, and it is said that the costs of litigation exceeded the insurance sum by far. As a consequence, in the early 19th century the first German companies operating fire and life insurance businesses on a commercial basis were founded. 63

B. The tale of the three roots as an oversimplification The tale of the three roots of modern insurance (law) reduces the history of insurance (law) to the contrast between insurance operated on a commercial basis and all forms of mutual protection. It is, however, oversimplifying and incomplete as it tends to ignore everything that does not fit into this dichotomy. I. Other classes of insurance German-language literature has focused especially on the development of maritime insurance, fire insurance, and life insurance. In the 17th and 18th centuries, these three classes of insurance ideally represent the dichotomy between insurance operated on a commercial basis and mutual protection. Other classes of insurance are analysed only rarely. There were, for example, agricultural insurances like hail and livestock insurance. Livestock insurance is said to have early roots, and in Germany these roots are again linked to a mutual protection provided by cooperative associations.64 In modern times both classes of insurance are said to have been (re-)established in the 18th century.65 Two contracts which could be utilized as a pension scheme are regularly discussed by, or at least referred to in, historical research. These are life annuities

___________ 63

Heiss (n. 56), 42–99; Koch, Versicherungswirtschaft (n. 2), 61–82. Hermann Ehrlich, Die Viehversicherung im Deutschen Reiche und ihre geschichtliche Entwicklung (1901), 26 f.; Otto Fröhlich, Die Viehversicherung (1906), 20 f. 65 Hans Schmitt-Lermann, Der Hagel und die Hagelversicherung in der Kulturgeschichte (1984), 225–268; Heinz Ammon, Geschichte der süddeutschen Hagelversicherung (1937), 7–9; Koch, Versicherungswirtschaft (n. 2), 27; Paul Hauser, Geschichte der Hagelversicherung in der Schweiz (1925), 36–38. 64

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(Leibrente) on the one hand66 and tontines on the other hand.67 Even though their importance for the development of life insurance (law) is stressed by many, the interplay between the developments of life annuities, tontines, and life insurance has never been the object of detailed research. II. Insurance legislation: insurance contract law and insurance regulation A modern German lawyer distinguishes between two distinct branches of insurance: private insurance (Privatversicherung) and social insurance (Sozialversicherung):68 with the former, the insurer and the insured enter into a private law contract; with the latter, we are entirely in the sphere of public law, and the relationship between both parties is not regulated by a private law contract. The distinction between private and social insurance is not to be confused with that between compulsory and non-compulsory insurance:69 there is, for example, a statutory obligation for a holder (not necessarily the owner) of a motor vehicle to obtain motor car insurance. It is an example of compulsory private insurance: the motor car insurance is based on a private law agreement. The law governing private insurance (Privatversicherungsrechts) falls into four disciplines: insurance contract law (Versicherungsvertragsrecht), insurance regulation law (Versicherungsaufsichtsrecht), the law concerning the corporate organization of insurance companies (Versicherungsunternehmensrecht) and insurance competition law (Versicherungskartellrecht).70 These distinctions are of limited use for research into the history of insurance as they are themselves the product of a long historical development. Thus, they rightly play only a little role in the literature on the history of insurance law. However, the distinction between insurance contract law and insurance regulation is taken as a basis for the research into insurance legislation in the 19 th century. I have already mentioned that German-language historical research has ___________ 66

Werner Ogris, Der Mittelalterliche Leibrentenvertrag (1961), 112–114; idem, Leibrente, in: Albrecht Cordes et al. (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, vol. 3 (2nd edn., 2014), 793–796; Koch, Festschrift Eichler (n. 2), 378; Walter Fiedler, Die Geschichte des Versicherungswesens der Reichsstadt Nürnberg (1958), 3–9; Schewe (n. 18), 154–158. See also Hans-Georg Hermann, §§ 759–761. Leibrente, in: Joachim Rückert et al. (eds.), Historisch-kritischer Kommentar zum BGB, vol. 3 (2013). 67 See the references in n. 51, above. 68 See on the distinction Egon Lorenz, Einführung, in: Roland M. Beckmann and Annemarie Matusche-Beckmann (eds.), Versicherungsrechts-Handbuch (2nd edn., 2009), 1– 34, 16 f.; Alexander Bruns, Privatversicherungsrecht (2015), 15; Christian Armbrüster, Privatversicherungsrecht (2013), 60–62. 69 Lorenz (n. 68), 17; Rainer Heß and Bernd Höke, Kraftfahrtversicherung, in: Beckmann and Matusche-Beckmann (n. 68), 1540–1719, 1550. 70 Armbrüster (n. 68), 2 f.

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focused on 18th century Prussian and Hamburg insurance legislation in the context of maritime insurance. Furthermore, the pioneering provisions on insurance law in the Allgemeines Landrecht für die Preußischen Staaten (Prussian territorial Law) of 1794 have received some attention. 71 It is the research on insurance law legislation in the 19th century that fully mirrors the divide between insurance contract law and insurance regulation. There is on the one hand research on the development of insurance contract law legislation, beginning with draft legislation in the early 19th century and up until the enactment of the Versicherungsvertragsgesetz (Insurance Contract Act) of 1908.72 The research on the history of insurance regulation legislation, on the other hand, usually begins with the Prussian Wiederholtes Verboth aller und jeder Collecten, wozu keine Königl. Approbation ertheilet ist (Repeated Prohibition of all Collections without Royal Approval) of 178173 and analyses developments up to the Gesetz über die privaten Versicherungsunternehmungen (Act on Private Insurance Companies) of 1901, which is also referred to as the Versicherungsaufsichtsgesetz (Insurance Regulation Act).74 The focus is on the legislative measures for supervising insurance, especially on the development of the concession requirement. III. The case of social insurance The narrative on the history of social insurance usually begins only in the second half of the 19th century:75 starting in 1883 Otto von Bismarck (1815–1898) introduced a statutory health insurance scheme, a statutory accident insurance scheme, and a statutory pension scheme. The introduction of these insurance schemes is usually seen in the context of von Bismarck’s internal politics, and this is the main focus of today’s research. However, these statutory insurance ___________ 71 Peter Koch, Die Behandlung des Versicherungsvertrages im preußischen Allgemeinen Landrecht, 1994 Zeitschrift für Versicherungsrecht (VersR) 629–633. 72 See especially Neugebauer (n. 7); Angela Duvinage, Die Vorgeschichte und die Entstehung des Gesetzes über den Versicherungsvertrag (1987). 73 Novum Corpus Constitutionum Prussico-Brandenburgensium Praecipue Marchicarum, vol. 7 (1786), 181–186. 74 See especially Michael Tigges, Geschichte und Entwicklung der Versicherungsaufsicht (1985); Hans Christoph Atzpodien, Die Entwicklung der preußischen Staatsaufsicht über das private Versicherungswesen im 19. Jahrhundert (1982). 75 Michael Stolleis, Geschichte des Sozialrechts in Deutschland (2003), 52–87; Koch, Versicherungswesen (n. 2), 818; Eberhard Eichenhofer, Die Sozialversicherung – Hinterlassenschaft Bismarcks, in: idem (ed.), Bismarck, die Sozialversicherung und deren Zukunft (2000), 15–41; Gerhard A. Ritter, Soziale Frage und Sozialpolitik in Deutschland seit Beginn des 19. Jahrhunderts (1998); Andreas Hänlein and Florian Tennstedt, Geschichte des Sozialrechts, in: Bernd Baron von Maydell et al. (eds.), Sozialrechtshandbuch (5th edn., 2012), 67–111, 67– 73. See also the contributions in: Hans F. Zacher (ed.), Bedingungen für die Entstehung und Entwicklung von Sozialversicherung (1979).

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schemes had forerunners in the cooperative protection provided by guilds.76 Nevertheless, the influence of cooperative protection by guilds on these schemes has never been the object of thorough research. IV. Further problems with the tale of the three roots There are further problems with the tale of the three roots. Maritime insurance, cooperative protection by guilds, public insurance: there is no coherency in the list. Maritime insurance is a class of insurance, the concept of cooperativeness focuses on the internal organization of the insurer, and the notion of public insurance looks at who is operating an insurance. The list is incoherent, yet the distinction is based on the division between insurance operated on a commercial basis on the one hand and mutual insurance on the other hand:77 Während also die Gegenseitigkeitsversicherung und die auf ihrer Grundlage aufgebaute öffentlich-rechtliche Brandversicherung eigenes, urdeutsches Gewächs ist, eine Schöpfung, auf die wir mit Recht stolz sein können, ist der Gedanke der Erwerbsversicherung vom Auslande her zu uns gekommen. Mutual insurance and state-run fire insurance, which has been inspired by the former, are Germanic creations, something we ought to be proud of. By contrast, the idea of insurance operated on a commercial basis came from foreign countries upon us.

I have quoted the same passage, which is taken from a 1936 monograph, in my introductory chapter in a different context:78 the tale of the three roots is based on an ideologically manipulated view of insurance history. German literature has always believed there to be different roots of insurance. Nevertheless, it had been conceded that maritime insurance was of utmost importance for the development of insurance in general, and it had been stressed that there were no distinct streams of development. In his 1893 monograph on insurance law, Viktor Ehrenberg (1851–1929) stated that the insurance contract as a whole has its origins in maritime law, without even mentioning the other two roots. 79 Levin Goldschmidt (1829–1897) spoke of ‘sich mannigfach verschlingende[n] Wurzeln’ (‘in many ways interwoven roots’).80 Yet while Goldschmidt indeed spoke of ___________ 76 Stolleis (n. 75), 2, 10 f., 76 f.; Sandrine Kott, Sozialstaat und Gesellschaft. Das deutsche Kaiserreich in Europa (2014), 32–37; Walter Vogel, Bismarcks Arbeiterversicherung. Ihre Entstehung im Kräftespiel der Zeit (1951), 20–34; Ulrike Haerendel, Die Anfänge der gesetzlichen Rentenversicherung in Deutschland (2001), 33–43; Ponfick (n. 52); Hänlein and Tennstedt (n. 75), 68, simply note that the health insurance was built upon ‘traditional structures’. 77 Helmer (n. 28), 95. 78 See above Hellwege, 14 f. 79 Viktor Ehrenberg, Versicherungsrecht (1893), 35. 80 Levin Goldschmidt, Handbuch des Handelsrechts, vol. 1 (3rd edn., 1891), 40.

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different roots, he did not allege that there were separate developments. It was only in the 1930s that the three roots of insurance were strictly thought apart. Even though the distinction between mutual insurance and insurance operated on a commercial basis is important, the division is, as it is presented in the German literature, an oversimplification: public fire insurances were based on the principle of mutuality. However, not all public insurance schemes were based on this principle: tontines were – in Germany, too – initiated by states, yet they were an instrument to raise capital.81 Life annuity contracts (Leibrente) have a long standing history in Germany; however, the issuer may have again used it to raise capital, or it may have been used to circumvent the problem of usury. 82 Mutual insurance and state-run insurance are not a Germanic creation: the ancient world knew instruments of cooperative protection,83 and in the early modern period there existed a statutory maritime insurance in Portugal.84

C. The tale of the three roots and the history of insurance law The tale of the three roots of modern insurance is, thus, incomplete and oversimplifying. Furthermore, it is not apt to be the basis for a doctrinal history of insurance law: Goldschmidt spoke of ‘in many ways interwoven roots’, 85 and he thus did not allege that there were completely separate lines of development. Indeed, the legal institutions which appear in the different roots seem to be related to each other. Maritime insurance was, for example, of a contractual nature: the insured and the insurer concluded a contract. In contrast, compulsory public fire insurance was not of a contractual nature: the relationship between the insured and the insurer was regulated by statutory provisions. Yet, the fire guilds in Schleswig-Holstein were formed voluntarily by agreement, and the Hamburg fire contracts were contracts. Furthermore, if an owner of a building wanted to join a non-compulsory public fire insurance scheme, he had to do so by voluntary act. If somebody wanted to join a non-compulsory life insurance or pension scheme, he equally had to do so by voluntary act. In addition, the legal problems were similar in the different roots: the insurer would want to know any material facts influencing the insured risk regardless of ___________ 81

Braun (n. 51), 69, 151; Schöpfer (n. 35), 133; Schmitt-Lermann (n. 42), 65; Koch (n. 51), 28 f.; von Zedtwitz (n. 6), 140. 82 Ogris, Leibrentenvertrag (n. 66), 114; Koch, Festschrift Eichler (n. 2), 378; Fiedler (n. 66), 8; Schewe (n. 18), 157; Hermann (n. 66), §§ 759–761, para. 19. 82 See above the references in n. 51. 83 von Zedtwitz (n. 6), 37–48; Pfeffer (n. 21), 104–122. 84 See above Morales Payán, 77. 85 Goldschmidt (n. 80), 40.

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whether an insurance scheme was operated on a commercial basis or whether it was a non-compulsory scheme run by the state or by a guild, and regardless of whether it was maritime, fire or life insurance. Only in the context of compulsory insurance did this legal problem not arise. Equally, questions as to how an insured could prove his loss, what steps he had to take in order to notify the insurer of the loss, and how the insurer could prevent fraud on the side of the insured arose regardless of whether an insurance scheme was operated on a commercial basis or whether it was a scheme of cooperative protection or a public insurance. The German literature does not explore whether institutions, rules, or solutions to legal problems which developed in the one context had any impact on any of the other contexts. The three roots are treated as having developed strictly apart. Or to put it differently: it is thought that modern insurance has three distinct historical roots, and consequently it is taken for granted that modern insurance law, too, has three distinct roots. Even though it is true that fire insurance first developed from the cooperative protection provided by guilds, this does not necessarily imply that the legal rules which were adopted to regulate early fire insurance developed totally separate from the rules of, let us say, maritime insurance. Thus, even though the tale of the three historical roots focuses on one important characteristic of the development of insurance in Germany, it is nevertheless only a very specific feature which is not apt to be the basis for a doctrinal history of insurance law. I. The regulations of the Hamburg General Feur-Cassa of 1676 I will clarify this point with two examples. The first example focuses on the Hamburg General Feur-Cassa of 1676. According to the tale of the three roots of modern insurance, the Cassa marks a new era in the development of insurance in Germany: it is the first public insurance and it is, thus, the beginnings of the third root of modern insurance in Germany. Cornel Zwierlein speaks of an important turning point marking the beginning of a new era of fire security, with Hamburg and London being the two ‘laboratories’. 86 Yet there is also continuity with respect to the legal rules governing the General Feur-Cassa. The regulations87 of the Cassa of 1676 are to a large extent based on the fire contracts of Hamburg as they developed since the late 16th century.88 This becomes obvious,

___________ 86

Zwierlein (n. 30), 198. They are reproduced in W. Ebel (n. 29), 83–85. 88 The texts of the fire contracts of 1591, 1622, and 1640 are reproduced in W. Ebel (n. 29), 66–83. The text of 1591 is reproduced from a printed version from 1636. Further examples are reproduced in Schaefer (n. 30), vol. 1, 202–217. 87

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for example, when looking at the procedure for assessing the loss. The regulations of the Cassa of 1676 stated: Solte einem sein Hauss durch Feurs-Brunst … beschädigt werden / so sol derselbe Schade durch die verordneten Herrn und Bürgere der Feur-Ordnung / mit zuziehung einiger Zimmer- und Maur-Leuten / so absonderlich dazu beeidigte / getaxiret, und alsdann der Schade aus der Feur-Ordnungs-Cassa auch bezahlet werden. If a house is damaged by fire / then the damage shall be assessed by those alderman and town citizens who are appointed on the basis of the fire regulation / and who shall consult carpenters and masons / who shall be especially sworn in / and the damage shall then be regulated by the Cassa.

It did not fall on the insured to give notice to the Cassa and to prove his loss. It seems to have been an official procedure in the hands of the Cassa. Similarly, but not identically, the contract of 1591 stated: … up düsen fall schölen de Oldesten und Vornembsten disser Consorten … den erledenen Brandschaden … in Gegenwart des Erbahren Rahtes dieser Stadt beeideten Timmer: und Mawrmennere ahne affecten besichtigen / taxiren und na befindung und billicher ermessunge dem … bschedigten Eigendöhmer … die erstatting des Schadens … bejegnen lahten. ... in this case the Eldest and Most Distinguished of this contract shall inspect and assess the suffered damage in the presence of carpenters and masons who are sworn in by the Respectable Town Council / and shall regulate the damage with reason and equitable discretion.

Between 1591 and 1676 the procedure was further developed, but it did not undergo a fundamental change. Thus, the legal rules governing the Cassa of 1676 cannot be fully appreciated if they are simply looked upon as the starting point of a distinct development in the history of insurance law in Germany. Rather, these rules are embedded in the earlier development of the Hamburg fire contracts even though those fire contracts belong, according to the traditional narrative, to a different root – that of cooperative protection. With respect to the regulations governing the General Feur-Cassa of 1676, Zwierlein has pointed out another important aspect which has hitherto gone unnoticed:89 the regulations of the Cassa of 1676 are phrased in a language which suggests an influence of maritime insurance. This becomes most obvious in the use of the Italian term risico (risk). The term was not used in the contracts of 1591, 1622, and 1640, but it then appears in the regulations of the Cassa of 1676. It was, however, commonly used in the context of maritime insurance. Furthermore, Zwierlein points to the fact that it was unusual that a member of guild had to pay a premium, as was required under the regulations of the Cassa of 1676.

___________ 89

Zwierlein (n. 30), 35, 227.

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On the basis of these findings Zwierlein comes to the conclusion that the General Feur-Cassa of 1676 was of a hybrid nature.90 En passant, it is worth noting that the General Feur-Cassa of 1676 was concerned not only with damage to immovable property by fire. If a workman was injured when fighting the fire, he was compensated for his loss: medical expenses were covered. The workman could also request the compensation of his losses caused by not being able to work. If his injury was incurable, he could request a pension. And if he was killed, the costs of the funeral and, in some cases, recompense to the wife and children were provided for by the Cassa. Thus, the Cassa included elements of health and life insurance. Similar provisions were not included in the fire contracts of 1591, 1622, and 1640. II. The development of the duty of disclosure in life insurance The second example focuses on the duty of disclosure in life insurance, and I will compare English and German developments in the 18th century. The first English life insurance company, the Equitable Life Assurance Society, was founded in 1762.91 However, it had forerunners, e.g. the Amicable Society of 1706.92 And even earlier there were assurances for widows and orphans. The statutes of the Assurance for Widows and Orphans of 1699 stated:93 That every Subscriber shall, within Six Months after his Subscribing these Presents, appear before Three or more of the Trustees, at their Court to be held for this Society, to have his Policy Approv’d; and shall, if requir’d by the Trustees, or Master of the Office, produce a Certificate of his Age, as also an Affidavit, that he believes himself to be under the Age of Fifty, and in good state of Health.

The subscriber had to produce a certificate to prove his age, and he had to certify that he believed himself to be in good health. The statutes were silent on the legal consequences if the subscriber was in breach of the duty. Nevertheless, the statutes burdened the subscriber with a duty to disclose his age and state of health. In contrast, the scheme of a Friendly Society for Insuring Lives of 1700 simply stated:94 That the Person or Persons for whose Life or Lives any one subscribes, shall be healthful, and be above the Age of Twelve Years, and under the Age of Fifty.

___________ 90

Zwierlein (n. 30), 227. On the Equitable Life Assurance Society see Ogborn (n. 58). 92 Siegbert Lammel, Die Gesetzgebung des Handelsrechts, in: Helmut Coing (ed.), Handbuch der Quellen und Literatur der Neueren Europäischen Privatrechtsgeschichte, vol. 2/2 (1976), 571–1083, 1074. 93 They are reproduced in: Jenkins and Yoneyama (n. 59), vol. 3, 311–314, 313. 94 The scheme is reproduced in: Jenkins and Yoneyama (n. 59), vol. 3, 315–321, 316. 91

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Here the subscriber was not burdened with a duty to disclose his age and state of health. Rather, it was simply a condition for subscribing that the subscriber be of a certain age and in good health. In the 100 years that followed the rules became more detailed with respect to both the material facts which had to be disclosed and the legal consequences of a breach of the duty. The statutes of the Equitable Life Assurance Society of 1762 stated:95 Every person desiring to make assurance with the Society, must sign a Declaration, setting forth the age, state of health, profession, occupation, and other circumstances of the persons, whose lives are proposed to be assured. This declaration is the basis of the contract between the Society and the person desiring to make such assurance; and if any artful, false, or fraudulent representation shall be used therein, all claim on account of any policy so fraudulently obtained shall cease, determine, and be void.

The profession and occupation was added to the list of material facts. If the subscriber was in breach of the duty to disclose, he forfeited all claims under the insurance. In 1795 the Equitable Life Assurance Society clarified that all premiums which had been paid were lost, too:96 Every person desirous to make assurance with the society must sign a declaration by himself or agent, setting forth the age, state of health, profession, occupation, and other circumstances of the persons whose lives are proposed to be assured … This declaration is the basis of the contract between the society and the person desirous to make such assurance; and if any artful, false, or fraudulent representation shall be used therein, all claim on account of any policy so obtained, shall cease, determine, and be void, and the monies which shall have been paid upon account of such assurance, shall be forfeited to the use of the society.

In the beginning of the 19th century insurance companies started to ask for specific diseases and provided the insured with declarations which he had to fill out. The declaration used by the Rock Life Assurance Company in 1809 stated:97 I ... by profession or occupation, ... born in the parish of ... in the county of ... in the month of ... in the year ... and now resident at ... in the ... county of ... being desirous of making an Assurance for the term of ... on my own Life, to the amount of £ ... with the Rock Life Assurance Company: DO DECLARE, that my Age does not exceed ... years; that I have ... had the small pox and ... the gout; that I have ... had a rupture; have ... suffered a spitting of blood; ... and that I am not afflicted with any disorder tending to shorten life; and I do hereby agree that this DECLARATION be the ground of the Contract between me and the said Company, and that if it be not true, all money paid to the Society by me, on account of the Assurance, shall be forfeited.

___________ 95

They are reproduced in: Jenkins and Yoneyama (n. 59), vol. 3, 361–387, 381. A short account of the Society for Equitable Assurances on Lives and Survivorships established by deed Inrolled in his Majesty’s Court of Kings’ Bench at Westminster (1795), 9 f. 97 The principles of life assurance explained: together with new plans of assurance and annuities adapted to the prudent of all classes civil and military by the Rock Life Assurance Company (1809), 45. 96

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Finally, insurance companies started to ask for a medical certificate, as exemplified by the statutes of the Provident Institution for the Insurance of Lives and the Grant and Purchase of Annuities of 1809:98 Persons desiring insurance on lives, or on survivorship, must state the name, residence, and occupation of the party, on whose life the insurance is proposed to be made, the precise age of such party, the place of birth, whether employed in any military or naval service, and whether afflicted with any ailment tending to the shortening of life; they must give a reference to some medical or other person whose evidence may be satisfactory on these points:– They must also sign a declaration, verifying the above particulars, forming the basis of the contract between the insured and this Institution, in which, if any artful, false, or fraudulent representation shall be used, all claim, on account of any policy so obtained, shall cease, determine, and be void, and the monies which shall have been paid upon account of such insurance, shall be forfeited to the use of the Institution.

The statutes of the Albion Fire and Life Insurance Company of the same year provide us with an example of the required medical certificate: 99 We, A D, and C D, Physicians, or Surgeons, or Apothecaries, residing in the city of Gloucester, having considered the above proposition for an Insurance of 1,000l. on the Life of Edward Johnson, do hereby certify, that we are acquainted with the state of health and with habits of life, or that we have … enquired into the state of health and habits of life, of the said Edward Johnson; and we declare it to be our opinion and belief, that the said Edward Johnson seems present in a sound state of body, and that he is not subject to any disease, ailment, or infirmity, nor accustomed to habits, which tend to shortening of life, or to the prejudice of health.

In Germany, life insurance companies which were operated on a commercial basis were founded in the 19th century.100 However, there were predecessors: life insurance schemes initiated and run by the state, some of which could be joined voluntarily. According to the traditional narrative these schemes belong to the third root of modern insurance.101 However, the legal problem that the insurer would want to know of any material facts arose with these schemes, too. The statutes of a Berlin Sterbe-Kasse (Death Fund) of 1710 stated:102 Von der Eigenschafft derer Interessenten / und ihrem Alter. Derjenige / so ein MitGlied dieser Societät werden will / soll sich mit einer ehrlichen Profession und BeruffsArbeit nähren / auch eine gute Nachrede eines ehrbaren Wandels und Christlichen Lebens haben ...; So soll auch / bey Anfang dieser Cassa, keiner / so über 56. Jahr alt ist / eingenommen werden / es sey männlichs oder weibliches Geschlechts; dafern aber

___________ 98 A Short Account of the Provident Institution, specially empowered by Act of Parliament for the Insurance of Lives, and the Grant and Purchase of Annuities (1809). 99 Proposals from the Albion Fire and Life Insurance Company, of London, instituted 1805; and empowered by Act of Parliament (1809). 100 See the text corresponding to n. 63, above. 101 See the text corresponding to n. 50, above. 102 The statutes are reproduced in: Schöpfer (n. 35), 213–219, 214.

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jemand so höheren Alters / mit eingeschrieben seyn wolte / so soll derselbe gleich bey der Angabe / jegliches Jahr / als älter er ist / mit einem Thaler vergüten. Of the qualities of those who are interested to join / and of their age. Those / who want to become a member of the society / shall pursue an honest profession and occupation / and shall also have a good reputation of respectful conduct and Christian life ...; And nobody shall / from the outset of this fund / of over the age of 56 years / be admitted to this society / be they male or female; however, if somebody of higher age / has been admitted / he shall / for each year / which he is older / pay an extra taler.

Just like in the early English examples, there were only a limited number of material facts: age, profession, and a respectful lifestyle. Prima facie, the insured was not burdened with a duty to disclose. The statutes are instead phrased as setting up conditions of being admitted to the society. And those who did not fulfill the age requirement had to pay an additional sum. However, with respect to the age the statutes later introduced a duty of disclosure, and they also introduced a legal consequence in the event of non-disclosure:103 Wie ... diejenige zu bestraffen / so ihr rechtes Alter verschweigen. ... Es sollen auch diejenigen / so dem Cassa-Register wollen einverleibet werden / bey dem ältesten Vorsteher erscheinen / damit er sehen könne / ob sie noch frisch und gesund seyn / ... welcher aber sein rechtes Alter nicht angezeigt / und also beym einschreiben schon über obgenannte Jahr alt ist / bey dessen Absterben soll zur Straffe 10. Thlr. weniger als andern gezahlet werden … How ... those are to be punished / who conceal their true age. ... Those / when they are enrolled into the register of the society / shall appear at the master of the society / so that he can see / whether they are still fresh and healthy / those, however, who have not disclosed their true age / who, thus, are above the aforementioned age / at their death shall, as penalty, be paid out 10 taler less than with others ...

There is some further resemblance to statutes of the English Assurance for Widows and Orphans of 1699: those who wanted to be insured had to appear before some officials of the insurance provider. The legal consequence of a nondisclosure under the statutes of the Sterbe-Kasse was mild compared to later developments. However, already in the middle of the 18 th century we can observe the stricter legal consequence of the insurer losing his coverage, as exemplified by the statutes of the Herzoglich-Würtembergische Ordnung für die allgemeine freywillige Wittwen- und Waysen-Cassa (Regulations for the General Voluntary Widow and Orphan Assurance of the Duchy of Württemberg) of 1756:104 Wer in diese Gesellschafft eintretten will, muß beybringen: 1. Einen Original-TauffSchein, oder anderen eben so gültigen Beweis, wann er gebohren seye; so dann 2. Ein Attestat von seinem ordentlichen Medico, oder der Obrigkeit seines Orts, daß er noch bey guter Gesundheit seye: Sollte sich aber nachhero äußeren, daß ein solches Attestat nicht der Wahrheit gemäß gewesen; ist nicht nur der Einleger seiner Einlage und der

___________ 103

Cited from Schöpfer (n. 35), 216. Herzoglich-Würtembergische Ordnung für die allgemeine freywillige Wittwenund Waysen-Cassa von 1756 (1756), 5. 104

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Gesellschafft verlustig, sondern es werden auch Seine Hoch-Fürstliche Durchlaucht dergleichen Ungebühr auf unterthänigste Anzeige nachdrücklich ahnden. Those who want to join the society have to present: 1. the original certificate of baptism or an equally valid proof of when they were born; then 2. a certificate by a medical practitioner or by the local authority that they are still of good health: if, however, it is later discovered that the certificate did not meet the truth the member will lose his rights in the society and he will face criminal proceedings.

The regulations show that a medical certificate became common in Germany by the middle of the 18th century. Finally, assurance providers in Germany also began, just like English insurers, to ask for specific diseases. The regulations of the Königlich Preußischen Allgemeinen Witwen-Verpflegungs-Anstalt (Royal Prussian General Widow Subsistence Institution) of 1775 stated:105 § 3. Dergleichen gänzlich ausgeschlossene Personen sind: a) Männer über Sechzig Jahre, b) Seefahrer von Metier, c) Männer, welche mit Schwindsucht, Wassersucht, oder einem andern morbo chronico behaftet sind, der einen nahen Tod befürchten läßt. ... § 7. Es hat also zuförderst ein jeder der Theil nehmen will, in Ansehung des Alters, für sich ... einen Taufschein beyzubringen. ... § 9. Endlich muß er ein Attest eines approbirten Medici Practici beybringen, worinn derselbe auf seine Pflicht und an EidesStatt versichert, daß nach seiner besten Wissenschaft, der Recipiendus weder mit der Schwindsucht, Wassersucht, noch einem andern Morbo chronico, so ein baldiges Absterben befürchten ließe, behaftet, auch überhaupt zur Zeit nicht krank noch bettlägerig, sondern gesund … Dieses Attest des Medici muß von Vier Mitgliedern WittwenSocietät, oder wenn solche nicht zu haben sind, von Vier andern bekannten redlichen Männern unterschrieben werden, welche bezeugen: daß ihnen der Recipiendus bekannt sey, und sie das Gegentheil von dem, was der Medicus attestiret, nicht wissen. ... § 3. The following persons are excluded: a) men above the age of 60, b) seamen, c) men who have phthisis, dropsy or some other morbus chronicus which may cause death in the near future. ... § 7. Every person who wants to participate has to, with respect to his age, present a certificate of baptism. ... § 9. Finally, he must present a certificate of an approbated medical practitioner wherein he certifies in lieu of an oath that, according to his best scientific abilities, the person who wants to join the society does not suffer from phthisis, dropsy or some other morbus chronicus which may cause death in the near future and that he is currently not inflicted with any disease and not bedridden, but that he is healthy ... This medical certificate must be signed by four members of the society or, if members are not available, by four men of known good reputation who testify, that they know the person who wants to join the society and that they do not know of any facts which contradict the medical certificate. ...

What we can gather from these few examples 106 is that the developments in England and Germany ran parallel. For the purpose of the present volume this observation is important as it suggests that the differentiation of the three roots of modern insurance is of only little importance when it comes to the doctrinal ___________ 105 Patent und Reglement für die Königlich Preußische allgemeine Witwen-Verpflegungs-Anstalt, Novum Corpus Constitutionum Prussico-Brandenburgensium, Bd. V/E, Sp. 383–387. 106 For a fuller account see Hellwege (n. 1), 243–251.

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history of insurance law. The duty to disclose material facts developed along similar lines in Germany and in England despite the fact that, according to the tale of the three roots of modern insurance, these lines of development should be attributed to distinct roots: in England life insurances were, starting in the middle of the 18th century, operated on a commercial basis whereas in Germany life insurances were run by guilds and by the states.

D. The German history of insurance law in a European context In my introductory chapter I have pointed out that it is the objective of the present volume to work out and understand the different national narratives on the history of insurance (law) and to identify possible points of interaction between the developments occurring in different national settings. 107 These points of interaction are then to be taken as starting points for future research. In the present chapter I have introduced the reader first to the traditional German narrative on the history of insurance; thereafter I have critically assessed this narrative and pointed out that it is not apt to be the basis for a doctrinal history of insurance law. In this last section I will, from a German perspective, identify possible points where the German development of insurance law might have interacted with developments in other countries. In other national writings the importance of maritime insurance for the development of insurance law as a whole is stressed. The German literature seems to suggest that this importance is less significant. However, for a very simple reason this is unlikely: Hamburg is the city which saw the first maritime insurance in 1588; starting in 1591 Hamburg saw fire contracts, subsequently leading to the General Feur-Cassa of 1676 as the first state-run fire insurance; and in the 19th century Hamburg was one of the first cities in Germany with commercially run life and fire insurance. It seems unlikely that the citizens of Hamburg did not perceive the link between these different forms of insurance. And indeed, Zwierlein’s observation that the regulations of the Cassa of 1676 use the Italian term risico – a term commonly used in the context of maritime insurance but not in the context of the cooperative protection provided by guilds, on which the idea of the Cassa is said to rest – suggests that there might have been some borrowing from the context of maritime insurance. 108 For our present purpose this observation is of importance as it is generally accepted that Hamburg received maritime insurance and its customs and practices from the Netherlands. It follows that we should not analyse the creation of the Cassa of Hamburg in a purely regional or national context. ___________ 107 108

See above Hellwege, 20. See the text corresponding to n. 89 and n. 90, above.

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It is said that the starting point for the development of fire insurance in England was the Great Fire in London of 1666. German literature states that exactly the same fire was an impulse for the creation of the Hamburg General FeurCassa of 1676.109 By contrast, in England the Great Fire in London led to the establishment of the first private fire insurance companies. Nevertheless, the City of London wanted to establish a public fire insurance in 1681, too.110 Thus, we have two identical initiatives in Hamburg and London within five years. The London initiative was a failure, but other European countries are said to have seen successful public fire insurance. Again, it follows that we should not analyse the evolution of public insurance schemes in a purely regional or national context. The importance of widow and orphan assurances for the development of life insurance is stressed in the German academic literature. 111 In contrast, the English literature stresses that life insurance is derived from maritime insurance. However, widow and orphan assurances existed in other jurisdictions including England, too.112 Here again, their origins, importance, and impact on national legal developments need to be assessed from a comparative perspective. Tontines, an early form of a pension scheme, were invented by the Italian Lorenzo Tonti (1602–1684) in 17th century France. They are said to be an adaptation of life annuities, they were initiated across Europe, including Germany, and they are said to have had an influence on the development of life insurance.113 Again, it seems that tontines, particularly their relation to life annuities and life insurance, are a candidate for further comparative research in the history of insurance law. Especially English – but also French, and Belgian – life and fire insurance companies were doing business in Germany in the 19 th century.114 They used their standard terms when doing their business in Germany, and it is said that the newly founded German insurance companies of the early 19 th century were imitating the standard contract terms of their English competitors, for example those of the Phoenix Assurance Company.115 In Germany, further points of interaction may be seen in the protagonists of the development of life and fire insurance in the early 19th century, when the first ___________ 109

See the text corresponding to n. 45 and n. 46, above Supple (n. 59), 7; Hangartner (n. 59), 218; Jenkins and Yoneyama (n. 59), 29–69. 111 See the text corresponding to n. 50, above. 112 See, e.g., the text corresponding to n. 93, above. 113 See the text corresponding to n. 51 and n. 81, above. 114 See above the references in n. 60. 115 Koch, Rechtsquellen (n. 17), 423 f.; idem, Versicherungswirtschaft (n. 2), 49; Lammel (n. 10), 103; Trebilcock (n. 60), 194. 110

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commercially run life and fire insurance companies were founded in Germany. Many of the persons involved in the process of founding such insurance companies were before that time working for English insurers.116 One may assume that the German insurers were, as a consequence, influenced by the practices of their English competitors. Again, the lasting impact of these interactions has never been assessed. Early on, national legislatures passed laws on maritime insurance. These acts are well known to modern research. Modern research believes that these acts reflected the European maritime insurance practices and that the individual national acts were often influential in other countries. 117 For other insurances the picture is different. Legislators became active only relatively late. In Germany, one exception is the Prussian Land Law of 1794, which codified the whole of insurance contract law. Furthermore, there is legislation concerning the many state-run insurances. Legislation on insurance contract law developed, at least in Germany, only during the 19th century, and first drafts were drawn up in the early 19th century.118 The authors of these drafts are said to have been inspired by the practices of insurance companies, in particular by their standard contract terms.119 If this is correct and if it is furthermore correct that German insurance companies imitated the standard contract terms of, for example, English insurers, then the practice of English insurance companies would have had an indirect influence on the first drafts on German insurance legislation in the 19 th century. Furthermore, legislation on the administrative regulation of insurance companies (Versicherungsaufsicht) evolved slowly from the end of the 18 th century forward.120 Legislators are said to have applied a comparative method when drafting such legislation in the 19th century.121 The interactions which I have already identified may have also influenced the case law. If the practice of the insurers was similar throughout Europe, then this may have affected the case law, too. It might have been the situation that the insurance companies – on the basis of similar practices and their similar standard ___________ 116

Koch, Versicherungswirtschaft (n. 2), 62–64; Heiss (n. 56), 46, 52. See the text corresponding to n. 16 and n. 17, above. 118 See the text corresponding to n. 71, above. 119 See, e.g., Neugebauer (n. 7), 56. 120 See the text corresponding to n. 73 and n. 74, above. 121 Peter Koch, Der Weg zur einheitlichen Staatsaufsicht über Versicherungsunternehmen in Deutschland, in: Bundesaufsichtsamt für das Versicherungswesen (ed.), 100 Jahre materielle Versicherungsaufsicht in Deutschland, vol. 1 (2001), 5–24, 16; Werner Ogris, Zur Entwicklung des Versicherungsaufsichtsrechts und des Versicherungsvertragsrechts in Österreich von der Mitte des 19. Jahrhunderts bis zum Ende der Monarchie, in: Wolfgang Rohrbach (ed.), Versicherungsgeschichte Österreichs, vol. 2, (1988), 1–152, 16 f.; Hans Peter Ipsen, Zur Entwicklung der Versicherungsaufsicht in Hamburg, 1939 Hanseatische Recht- und Gerichtszeitschrift 89–118. 117

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contract terms – pleaded on similar grounds before the different national courts. However, German research has as yet never gone before the time of the end of the 19th century when researching the case law on insurance.122 When researching the case law, we furthermore have to be aware of the fact that standard contract terms often contained arbitration clauses or that appeals were often excluded. 123 Finally, insurance transactions are often based on insurance contracts.124 Insurance contract law did not develop independently from general contract law. The general contract law regimes in Europe were part of what is called the Roman-canon ius commune. This may have had the effect that courts from different countries applied similar legal instruments from general contract law to solve parallel problems in insurance contract law.

___________ 122

Tobias Prang, Der Schutz der Versicherungsnehmer bei der Auslegung von Versicherungsbedingungen durch das Reichsgericht (2003). 123 Müssener (n. 45), 139. 124 See the text following n. 85, above.

Chapter 9: Scandinavia By Martin Sunnqvist A. Introduction ............................................................................................................ 199 B. State of research ..................................................................................................... 200 I. The six volumes published by the Wesmann Foundation ............................... 200 II. Individual insurance companies ...................................................................... 202 III. Economic-historical research and other newer research.................................. 202 IV. The state of research in summary .................................................................... 203 C. Outline of the legal development of insurance in the Nordic countries .................. 204 I. Fire insurance before insurance companies ..................................................... 204 1. Early history of the so-called ‘fire help’ (‘brandstod’) ............................... 204 2. ‘Fire help’ in Swedish legislation from the mid-13th century ..................... 205 3. Contractual ‘fire help’ through guilds ........................................................ 207 4. Begging and exemption from taxes ............................................................ 208 II. Fire insurance companies ................................................................................ 208 1. Denmark-Norway, 18th century .................................................................. 209 2. Sweden-Finland, 18th century..................................................................... 211 3. Freedom of trade in the mid-19th century ................................................... 213 III. Maritime insurance ......................................................................................... 214 1. The Dutch roots of the maritime law codes of the 17th century .................. 214 2. Maritime insurance companies ................................................................... 216 3. Development of maritime insurance law .................................................... 216 IV. Life and income insurance .............................................................................. 218 1. Tontines ..................................................................................................... 218 2. Income insurance for widows and children ................................................ 219 3. Contractual rights and judicial review ........................................................ 220 V. State supervision of insurance companies ....................................................... 221 D. Some interesting questions for further research ...................................................... 221

A. Introduction A history of Nordic insurance law was written in the 1930s and 1960s in the framework of a project started by a research foundation, set up by the Norwegian Johan Wesmann (1870–1941). He had donated money for research on Nordic insurance and insurance history, and the foundation was established in 1920. This project resulted in six well-researched volumes, which still represent the state of research. Besides these volumes, there is some literature on specific companies and – more recently – increasingly more research within the field of economic history.

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In this chapter, I will provide an overview of the research on the legal history of insurance in the Nordic countries. I will present the state of research and discuss the literature that is available (below B). Then, I will give an outline of the legal history of insurance in Scandinavia. I will try to identify the roots of Scandinavian insurance law and the connections between the laws of the Nordic countries and also between the laws of these countries and other jurisdictions (below C). I will summarize some questions that – from a Nordic perspective – are interesting for further research (below D). Some remarks about the countries involved should be made. In the Nordic countries we now include the three kingdoms of Denmark, Norway, and Sweden and the two republics of Finland and Iceland. The three kingdoms Denmark, Norway, and Sweden existed already in the Middle Ages. Finland was at that time a part of Sweden. Under parts of the reign of King Magnus Eriksson in the 14th century, he ruled not only Sweden, but also Norway, and Scania, which was otherwise part of Denmark. In 1387, Denmark, Norway, and Sweden formed the Kalmar Union under Queen Margaret. Sweden left the union in 1523, but Denmark and Norway remained in union until 1814. Legislation for Denmark and Norway was separate but most often very similar. Until 1864, Schleswig and Holstein were duchies under the King of Denmark, but they were not part of the Danish kingdom. Finland was part of the kingdom of Sweden until 1809. At that time – in the context of the Napoleonic wars – Sweden lost Finland to Russia, and Denmark lost Norway to Sweden. Thus, from 1814 to 1905, Sweden and Norway formed a union of two separate states having a common king. Finland was from 1809 a grand duchy with the Russian emperor as grand duke; it became an independent republic in 1918. In what follows, the main focus will be on the development of insurance law in Denmark, Sweden, and Norway. When relevant, legal developments in Finland and Iceland will be referred to.

B. State of research I. The six volumes published by the Wesmann Foundation One of the first tasks of the Wesmann Foundation was to publish research on Nordic insurance history. Firstly, the time up to c. 1814 was to be covered. In 1935, three extensive volumes – one for Denmark, one for Sweden, and one for Norway – were published.1 Author of the Danish volume was J.O. Bro Jørgensen ___________ 1 J. O. Bro Jørgensen, Forsikringsvæsenets historie i Danmark indtil det 19. aarhundrede (1935); Tom Söderberg, Försäkringsväsendets historia i Sverige intill Karl Johanstiden (1935); Karsten T. Lorange, Forsikringsvesenets historie i Norge inntil 1814 (1935).

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(1902–1988), an economic historian and archivist at the Danish National Archives. Author of the Norwegian volume was Karsten T. Lorange (1879–1947), captain and sometime secretary of the Norwegian Insurance Association. Author of the Swedish volume was D.Phil. Tom Söderberg (1900–1991). Söderberg was famous not only as an economic historian but also because he was a son of the Swedish author Hjalmar Söderberg and active in the resistance against Nazism. In that context it may be mentioned that in the German insurance history from the same time, there are some texts that are clearly influenced by national socialist ideology; they highlight Germanic heritage and disparage transfers from other countries.2 It is therefore interesting to compare this type of German research to Söderberg’s research, which can be assumed to be free of that particular ideological bias. These three volumes were to be followed up with three additional volumes on the rest of the 19th century. They were published in the 1960s, thus with some delay. The Danish volume was published in 1963 and the Norwegian and Swedish volumes in 1967.3 New authors had been contracted. Main author of the Danish volume was Alfred Thomsen (1892–1960), who was deputy director of an insurance company. Author of the Norwegian volume was Karl Færden (1882–1977), former administrative director of the Insurance Council. Bengt Bergander (1924–), who was responsible for the Swedish volume, holds a licentiate degree (Lic.Phil.) and is a retired lecturer. Through these six volumes, the history of insurance in Denmark, Norway, and Sweden (including Finland until 1809) had received a thorough presentation for which many new sources had been used. Söderberg’s volume distinguishes itself from the rest of the volumes through an extraordinarily thorough analysis of extensive source material. The history, as described in the six volumes, ends in 1914. This was made specifically clear since the editors in 1967 considered that the time period after 1914 was too close in time to be treated as history.4 Perhaps it is less clear to which type of history the six volumes belong. As for the oldest time period, the analysis can be described as primarily legal-historical, because the sources are primarily laws and, subsequently, case law. Increasingly, ___________ 2 See Phillip Hellwege, Die historische Rechtsvergleichung und das europäische Versicherungsrecht, (2014) 131 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Germanistische Abteilung) 235, with reference to Georg Helmer, Entstehung und Entwicklung der öffentlich-rechtlichen Brandversicherungsanstalten in Deutschland (1936), 95. 3 Alfred Thomsen, Forsikringsvæsenets historie i Danmark i det 19. Århundrede (1963); Bengt Bergander, Försäkringsväsendet i Sverige 1814–1914 (1967); Karl Færden, Forsikringsvesenets historie i Norge 1814–1914 (1967). 4 Bergander (n. 3), 6.

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however, economical-historical approaches gained space, particularly as regards the 19th century. II. Individual insurance companies In Sweden, many local, and also some national, fire insurance companies were established during the second half of the 18th century and the first half of the 19th century. In the first half of the 20th century, many of them published volumes in connection with corporate anniversaries. Because these insurance companies had evolved from local fire insurance organizations (the so-called ‘brandstod’, see below C.I and II), these books are often introduced by shorter or longer presentations on the history of fire insurance in Sweden.5 More recently, in 1996, the fire insurance company established in 1746 for Stockholm published a book to commemorate its 250 year anniversary. 6 In Denmark7 and Norway,8 there are some books published about the companies offering fire insurance for buildings in towns. III. Economic-historical research and other newer research In recent decades, the economic-historical approach has gained in impact in insurance history. This is particularly noticeable in Sweden, where Associate Professor at Södertörn University College Mikael Lönnborg, in his thesis in 1999, analysed the internationalization of Swedish insurance companies during the period between 1855 and 1913.9 A glance at his list of publications shows that after his dissertation, he has continued his research and published substantially in this subject area.10

___________ 5 See for an overview of this literature Söderberg (n. 1), 13–14 and Bergander (n. 3), 140. In particular, Karl Åmark, Allmänna brandförsäkringsverket 1782–1932 Minnesskrift (1932), provides a very good overview of fire insurance in Sweden. 6 Mats Wickman, För all framtid. Stockholms stads brandförsäkringskontor 250 år (1996). Also published here: http://www.brandkontoret.se/media/1171/for_all_framtid.pdf. 7 See e.g. Mette Frisk Jensen, Ved ulykkelig Ildebrand (2010) and Carlo M. Pedersen, Om Broders Huus Vorder Brent. Købstædernes almindelige Brandforsikring gennem to hundrede år (1961). 8 Oscar Albert Johnsen, Norges brannkasse 1767–1942. Opprinnelse og utvikling, 2 vol. (1942/1956). 9 Mikael Lönnborg, Internationalisering av svenska försäkringsbolag. Drivkrafter, organisering och utveckling 1855–1913 (1999). 10 See https://www.sh.se/p3/ext/content.nsf/aget?openagent&key=sh_personal_publ_ sv_417171 (last accessed 30/6/2017).

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In Denmark, a volume providing an overview of insurance history has recently been published. It starts with the insurance law of the Middle Ages and ends with the most recent questions about insurance in the welfare state. 11 IV. The state of research in summary The previous research has focused either on the national legal development of insurance in the Nordic countries or on the development of individual businesses. Increasingly, economic-historical research has gained in importance. Legal-historical approaches have first and foremost been applied for the oldest time periods, mainly because of the lack of sources other than legal ones. An international, comparative perspective is not completely missing; on the contrary, it is recurring in the six volumes published by the Wesmann Foundation. Such a perspective is, however, mainly used to explain national legal developments. One would wish that the editors of the six volumes had also published a seventh volume with a comparative analysis of the legal development of insurance in the Nordic countries in the light of its development in other European legal systems. Such a volume was, however, not in the plan for the project. Thus, the state of research is now as follows: Nordic insurance history is written for each country, in the Nordic languages, but a Nordic comparative legalhistorical analysis in the strict sense has not been performed. Nor has a comparison been made between Nordic legal history and the legal history of insurance in other European legal systems. Already an overview of the emergence and development of the different types of insurance in the various countries suggests, however, that there are connections and interactions. This means that there are interesting research questions, related to the transfer of legal ideas, that are so far unanswered. A comparative legal-historical research project can, thus, throw new light on the legal history of insurance in the Nordic countries. This chapter is primarily based on the six volumes published by the Wesmann Foundation. Where necessary, additional sources and literature have been used. The focus has been on what is relevant for comparative legal-historical research.

___________ 11

Ole Feldbæk, Anne Løkke and Steen Leth Jeppesen, Drømmen om tryghed (2007).

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C. Outline of the legal development of insurance in the Nordic countries I. Fire insurance before insurance companies 1. Early history of the so-called ‘fire help’ (‘brandstod’) In parts of today’s Sweden, we find a precursor to fire insurance, or an early form of fire insurance, in the 12th and 13th centuries. It is the so-called brandstod, which literally means fire help or fire support. Its main characteristic is that the other people in the local community had to help a person whose house had burnt down to rebuild it, either because they were legally obliged to do so or because there was a custom to that effect. Söderberg has thoroughly analysed the development of the brandstod. His conclusion is that it is a unique Nordic phenomenon. It first developed in Scania (today in south Sweden, until 1658, however, part of Denmark) in the mid-12th century at the latest. It was defined in chapter 226 of the Scanian law book, which was recorded in written form in about 1200.12 The brandstod was applied in cases where no one could be held responsible for the spread of fire. If the fire had caused damage to a certain minimum value, the owner of the burnt house could bring the matter to the county Thing (local court assembly). The other inhabitants of the rural district would have to contribute a penny, a bushel of grain, or two bushels of oats to the house owner. The system of brandstod spread – albeit with differences in details – to Östergötland in the first half of the 13th century and to Västmanland-Dalarna at the latest in the second half of the 13th century. These provinces are in mid-Sweden.13 In parallel, a similar legal institution developed in Iceland. In a law book from about 1200, Grágás,14 there are rules about support from the other inhabitants of a rural district to a person who lost cattle through diseases or buildings through fire. The owner had to pay half the cost himself and prove the value of the burnt house.15 As regards the origins of the brandstod, Söderberg has convincingly argued that it was a custom which was transferred into law. His main argument is that the similar Icelandic institution was not developed through transfer from Scania or the other way around. These two legal institutions seem to have developed independently, a conclusion to which Jørgensen also has come. Jørgensen ___________ 12

Erik Kroman and Stig Iuul (eds.), Skaanske Lov og Jyske Lov (1968), 76–78. Söderberg (n. 1), 21–46. 14 Grágás, ed. Odense 1974. 15 Jørgensen (n. 1), 18–19; Lorange (n. 1), 189–191. 13

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pointed out that some differences, especially the fact that the amount to be paid in Iceland depended on an estimate of the loss but in Scania was fixed in the law for each payer, show that there was not a transfer of legal rules. However, according to both Söderberg and Jørgensen, both the Scanian and the Icelandic rules derive from a common Nordic custom which developed into two similar legal institutions with some differences in detail.16 As already pointed out by Jørgensen, it may be questioned, whether this custom is uniquely Nordic. Jørgensen briefly referred to a similar ancient custom in Elbmarsken, Ditmarsken, and Eiderstedt – all three areas are located in Schleswig-Holstein – as well as in Eastern Prussia.17 A similar legal institution also existed in Flanders. In the 12th and more clearly in the 13th century there were rules in the law books of towns and villages in Flanders to the effect that people in towns or villages should contribute certain amounts to the victims of a fire. Also there, an ancient custom underlying the rules has been identified.18 What has been discussed so far raises the question whether there is a similar ancient custom in other jurisdictions as well. The evidence points in the direction of a common north European custom of mutual help in cases of fire in buildings in the countryside. The reason behind the custom is probably not more complicated than that there was an understanding in rural communities and in early urban society that mutual help was in the long run to the advantage of the whole, especially since the other villagers probably had in any event to take responsibility for those who had become homeless and lost the opportunities to support themselves. As regards Iceland, Lorange has explicitly referred to the fact that there was a duty of the local community to support the poor and to prevent people from becoming poor.19 It may be that the custom in some areas evolved into statutory fire insurance while in other areas it was not sustained and eventually was replaced by other mechanisms. 2. ‘Fire help’ in Swedish legislation from the mid-13th century The brandstod in the law books of Östergötland and Västmanland-Dalarna was modified and transferred to King Magnus Eriksson’s law code for the countryside, dating from about 1350. Magnus Eriksson was also the king of Norway ___________ 16

Söderberg (n. 1), 29–30; Jørgensen (n. 1), 18–19. Jørgensen (n. 1), 20, cf. 245–248, referring to Georg Helmer, Die Geschichte der privaten Feuerversicherung in den Herzogtümern Schleswig und Holstein, 2 vol. (1925/1926) and Franz Steer, Verbreitung und Ursprung der kleinen Feuerversicherungsvereine in den östlichen Provinzen Preussens (1922). 18 C. F. Trenerry, The Origin and Early History of Insurance Including the Contract of Bottomery (1926), 252–256. 19 Lorange (n. 1), 189. 17

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and Scania, but the law code did not affect, nor was it influenced by, the law of these jurisdictions. The rule was such that the person who owned the burnt houses, according to this law code, should report the matter to the Thing, and the judge would appoint six men who would assess the damage. The payment should be half a bucket of grain or four Swedish pennies. If the loss was estimated at a value of 20 marks or more, the owner should be paid by the inhabitants of the whole district; if it was worth 10 marks, from half the district; and if it was worth five marks, from a quarter of the district. In the 1442 law code of King Christopher the rules were similar.20 The rules about brandstod fell partly into desuetude in some parts of Sweden. However, they were successively reinforced. During the reign of Charles XI, rules about the types of houses which a peasant should build and maintain, enacted in 1681 (Husesynsordning),21 and about a reorganization of the brandstod through the provincial governors, made clear that the state wanted the system of brandstod to work properly.22 In 1734, a law code for Sweden was enacted, which replaced both the law code for the countryside of 1442 and a law code for the towns from c. 1350, which had been written at the same time as the first law code for the countryside. The rules on the brandstod were kept with some alterations. The duty to pay was differentiated according to the value of the property, and in each district the peasants should at the local court assembly in the presence of the provincial governor (landshövding) agree in advance about the sums of compensation for different types of fire accidents. When a fire had taken place, the district court under the presidency of the district judge (häradshövding) would decide which of these sums of compensation the owner of the burnt house had the right to claim. 23 The rules in the law code of 1734 about brandstod were in force until 1853. The rule that the peasants should meet at the local court assembly in the presence of the provincial governor and agree in advance about the sums of compensation for different types of fire accidents facilitated the organization of local brandstod companies. From 1766, these did not have to comprise an entire district and ___________ 20

Ch. 28 § 6 book on buildings in the law code of the countryside of King Magnus Erikssons (Åke Holmbäck and Elias Wessén (ed.), Magnus Erikssons landslag i nusvensk tolkning (1962), 120), and Ch. 37 § 2 book on buildings in the law code of the countryside of King Christopher (Johan Henrich Werner (ed.), Swerikes Rijkes Lands-Lag (1726), 510–512); Söderberg (n. 1), 22–23 and 42–45. 21 See Joh. Schmedeman (ed.), Kongl. stadgar, förordningar, bref och resolutioner…, vol. 1 (Stockholm, 1706), 738–746. 22 Söderberg (n. 1), 66–71. 23 Ch. 24 §§ 4–6 book on buildings in the 1734 law code of the realm (ed. 1780, reprint 1984, Rättshistoriskt bibliotek vol. 37); Söderberg (n. 1), 38.

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could, instead, be formed for a single parish. Some of these also insured some types of chattels.24 3. Contractual ‘fire help’ through guilds The brandstod was legally enforced and was based on ancient custom. Another way of organizing ‘fire help’ was through mutual contracts, such as the membership in a guild where the members promised to support each other in certain situations. In 1256, there was a meeting in Skanör, at that time in Denmark, now in Sweden, between eighteen aldermen of different guilds in the Danish kingdom. 25 They met to draft some common rules for the charters of their guilds. A rule on ‘fire help’ was drafted, which was then introduced in the charters of the guilds of St. Canute in Malmö (now in Sweden) and Store Heddinge (in Denmark) and of St. Eric in Kallehave (in Denmark, now Kalvehave). If a member of the guild suffered losses through fire in his kitchen, room, or barn with grain, all other members should help him by paying him three pennies each. In the charter of the guild of St. Canute in Malmö from about 1350, the rule was less detailed, but the word brandstod was used to describe the amount of three pennies.26 The probable reason for the use of the word brandstod is, according to Söderberg, an influence from the surrounding province of Scania.27 In Norway, there was a guild for the peasants of Sunnhordland in western Norway, near Bergen. In a charter which probably relates to that guild, the members promised to help each other to rebuild burnt down houses and to replace burnt grain.28 In the towns in Norway and in Sweden, there were, as far as we know, no guilds through which ‘fire help’ was organized.29 There is however an example from 1314 of an organization similar to a guild in the countryside of Sweden, when the clergy in the districts of Västanstång and Kinda in the diocese of Linköping agreed about mutual help in the form of a fixed sum of money in case of fire.30

___________ 24

Söderberg (n. 1), 392–436; Bergander (n. 3), 15–21. Christoph Anz, Gilden im mittelalterlichen Skandinavien (1998), 237–239. 26 Jørgensen (n. 1), 53–54. 27 Söderberg (n. 1), 38. 28 Lorange (n. 1), 186–189. 29 Lorange (n. 1), 201–207; Söderberg (n. 1), 38. 30 Söderberg (n. 1), 40–41. 25

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4. Begging and exemption from taxes In Norway, there was no statutory ‘fire help’, and there is no evidence that there was a custom to the same effect. Instead, the support to people who had lost their property through fire came through the right to beg and to be exempted from taxes. The right to put a beggar’s bowl outside the church door was given to people who had lost their assets; people in the countryside received this right only if they had lost their assets at sea. Peasants who lost their assets through fire had to apply for exemption from taxes or for an authorization to walk around in the area during, for example, three months and ask people for help. Such exemptions and authorizations were regularly granted. The main reason why exemption from taxes was granted was that the taxes could not be collected anyway when people had suffered a fire.31 Although Sweden had rules about compulsory ‘fire help’, also there we find begging and exemption from taxes. In 1642, a statute about begging was enacted (tiggarordning) and begging for ‘fire help’ was prohibited. A person who had lost assets through fire should, according to the law, apply for brandstod at the local court and not travel around and beg for money.32 The enactment of this rule shows that the system of brandstod did not work properly and needed to be reinforced. In the statute about begging, there was a rule to the effect that the six men administering the tithes in each parish should enforce the right to brandstod and deliver the brandstod to the person who had suffered the loss.33 From the late 16th century, there are examples of the state granting exemption from taxes to peasants whose houses had burnt down. The relationship between such measures and the brandstod is not fully clear, but there seems to be an interaction between them; in some parts of the country the legal brandstod had come close to desuetude before being reinforced by the state.34 II. Fire insurance companies In the Nordic countries, the Great Fire of London in 1666, the establishment of the General Feur-Cassa in Hamburg in 1676, and the establishment of an insurance company in Altona in 1714 were well known.35 As will be seen in the ___________ 31

Lorange (n. 1), 191–207. See art. XVIII of the tiggarordning: A. A. von Stiernman, Samling utaf kongl. bref, stadgar och förordningar &c. angående Sweriges rikes commerce, politie och oeconomie…, vol. 2 (Stockholm 1750), 327–334. 33 Söderberg (n. 1), 52–53. 34 Söderberg (n. 1), 48 and 56–66. 35 Lorange (n. 1), 207; Söderberg (n. 1), 310–312; Jørgensen (n. 1), 248–249, 258. 32

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following discussion, the first half of the 18th century was the time period when insurance companies for the towns in the Nordic countries were established. As regards the question whether the London fire or the establishment of the General Feur-Cassa in Hamburg was the prototype for Nordic commercial fire insurance, Söderberg has found that there were Swedish proposals both before and after 1676 and that fire insurance in towns may have had its roots in the part of maritime insurance covering storage on land. His conclusion is that the thought about organizing fire insurance was in the air in the 1670s in many parts of Europe and that ideas were transferred and connected to each other in complicated ways.36 1. Denmark-Norway, 18th century In 1725, an initiative to establish a fire insurance company was taken in Halden (at that time Fredrikshald) in Norway, but it did not succeed. Further initiatives were taken in the 1730s and 1740s. Finally, a fire insurance company was established in 1753 for Christiania (now Oslo, Norway), and it could start its work on 1 January 1754. The first year, 175 insurance contracts were signed, and in 1765 there were 380 insurance contracts. The company also dealt with lending money.37 In 1728, the Great Fire of Copenhagen destroyed two-fifths of the town. The fire made it relevant for the Danish government to investigate the insurance issues. In 1731, a fire insurance company was established, Københavns brandforsikring. It was formally an independent company but with close connections to the mayor and magistrates of the town. In 1795, there was another great fire in Copenhagen. In total 983 buildings burnt down. The company’s economic gains and gains in independence over the recent decades were lost as a result. The compensation to be paid was double the assets of the insurance company, and most of these assets were lent to house owners. The insurance company was in reality bankrupt, but the state arranged loans, reduced and postponed the right to compensation, and made the insurance compulsory. The state also partly took control over the board of the insurance company. 38 After the Great Fire of Copenhagen in 1728, the Danish government also investigated the insurance issues in the duchies Schleswig and Holstein, which were subject to the Danish King but not part of the Kingdom of Denmark. In Schleswig and Holstein, there was a network of small fire insurance associations which stretched into each other’s districts. These associations were too small to cover the losses, which led house owners to insure their houses in several of ___________ 36

Söderberg (n. 1), 311. Lorange (n. 1), 207–238. 38 Jørgensen (n. 1), 258–269. 37

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them, leading to more compensation than the value of the house. The government wanted to replace these small associations with a central state-run insurance. In the 1730s and 1740s, the government organized the fire insurance for different counties and towns. Before the government had centralized the fire insurance for the duchies, there were fires, e.g. in 1747 in Bornhøved and in 1759 in Haderslev. In 1759, after the Haderslev fire, the government decided to merge all fire insurance associations in Schleswig, the King’s part of Holstein, Pinneberg, the county of Rantzau, and Altona. This general fire insurance for these provinces was governed by an office, which was part of the College of Commerce in Copenhagen.39 Also in the countryside of the Kingdom of Denmark, the Copenhagen fire in 1728 had the consequence that proposals for better fire insurance were put forward. In 1730, a provincial governor suggested fire insurance similar to the brandstod for each diocese. However, no such fire insurance was established. In 1748, the government had given up on the idea, but a town bailiff secured royal permission to establish an insurance company for the towns in northern Jutland. Some other fire insurance companies were established at this time, e.g. in 1749 an insurance company for manors on the isle of Fyn was established (it lasted until 1822), and in 1752 an insurance company for manors and farms on the isle of Sealand was established (it lasted until 1768).40 The state eventually decided to organize insurance in Denmark. That the state organized insurance was considered necessary by the Kameralisten, the at the time dominant school of economy thought. Thus, in 1761, a general fire insurance company was established in Denmark, Købstædernes forsikring. Participation was compulsory for buildings in the towns and was possible for other buildings. In this way, the fire insurance companies in the countryside could continue working, as could also the insurance companies in Copenhagen and the duchies. The insurance company for the towns in northern Jutland was dissolved. From 1761 to 1788 the general fire insurance company increased its business in insuring buildings in the countryside; in 1788, the insured rural buildings represented for the first time a higher value than the insured buildings in the towns. In 1792, the insurance company of 1761 was to handle insurance only for buildings in towns, whereas the voluntary insurance for buildings in the countryside was transferred to a new company, Landbygningernes almindelige brandforsikring.

___________ 39 40

Jørgensen (n. 1), 249–257. Jørgensen (n. 1), 270–295.

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The two companies of 1761 and 1792 were closely tied to the state administration, both centrally and locally. 41 In the late 18th century, two insurance companies for chattels were established.42 In 1767, a similar ordinance as the 1761 one for Denmark was enacted for Norway. At first, this ordinance met opposition from most towns, and it was difficult to get the regime to succeed. Eventually, it started working, and beside it worked the already-mentioned company for Christiania (Oslo). In 1814, Norway was transferred from Danish rule to a union with Sweden, and in 1827, the insurance company for Christiania decided to dissolve the company and merge the insurance business with the general insurance company for buildings in towns, Norges brannkasse. In Norway, the close connection between the insurance company and the state was kept well into the 20th century.43 2. Sweden-Finland, 18th century The first suggestion for a fire insurance company for Stockholm can be traced to 1676 or 1677, but this initiative led to nothing. In 1742, a group of Stockholm burghers took a new initiative to establish a fire insurance company. The at that time active maritime insurance company (see below III.2) took a similar initiative. Competition between the two – which would have worked if the example from London had been followed – was not in the mind of the Swedish officials. It was understood as self-evident that one of the companies would be granted a monopoly. In 1746, the King granted a charter to the fire insurance company for which the group of burghers had taken the initiative.44 Before this, however, a fire insurance company was established in 1733 in Jönköping, and later, in 1760, 1768, and 1772 respectively, fire insurance companies were established in Karlskrona, Gothenburg, and Borås.45 In 1782, the General Fire Insurance Fund (Allmänna brandförsäkringsfonden) was established.46 It insured buildings in towns and in the countryside, and participation was – in contrast to the Danish and Norwegian companies of 1761 and 1767 – voluntary. The established local fire insurance companies, based on the brandstod system, were kept. In 1808, the fund was split into two; one for the ___________ 41

Jørgensen (n. 1), 296–306; Thomsen (n. 3), 237–259. Thomsen (n. 3), 202–227, 261–291. 43 Lorange (n. 1), 244–263; Færden (n. 3), 227–252. 44 See Reinhold Gustaf Modée, Utdrag utur alle publique handlingar…, vol. 3 (Stockholm 1749), 2302–2313. 45 Söderberg (n. 1), 311–351. 46 Its charter is printed in Reinhold Gustaf Modée, Utdrag utur alle publique handlingar…, vol. 12 (Stockholm 1799–1802), 266–281. 42

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towns and one for the countryside, with the General Fire Insurance Office (Allmänna brandförsäkringsverket) as a common organization. When Sweden lost Finland in 1809, the Finnish insurances were to be dissolved, and in 1816, a similar fund was established in Finland. The fire insurance company that had been established in Borås in 1772 had been merged with the General Fire Insurance Fund and was then part of the fund for towns. In 1827 most of Borås burnt down, as well as huge parts of Åbo (though in Finland, still mostly insured by the Swedish town fund) and parts of Uddevalla. The town fund was bankrupt. In 1828, a new fire insurance company for towns was established, Städernas allmänna brandstodsbolag. Additionally, some regional fire insurance companies for towns were established. The General Fire Insurance Office’s fund for the countryside lived on, and in 1818 the rules about brandstod were no longer to be applied on property insured in this fund. 47 Phoenix Assurance Company, which was established in London in 1782, started an office in Hamburg in 1794 also for its Swedish business. It was the most important of the foreign insurance companies working in Sweden. In the period 1805–1830, Phoenix concluded about 9,000 insurance contracts in Gothenburg, according to Bergander’s research.48 However, an important part of fire insurance was organized through the local companies based on the brandstod communities. An example of how such a fire insurance company was organized is provided by the history of the fire insurance company of Rönneberg and other districts (Rönnebergs m.fl. härads brandstodsbolag). It was set up in 1834 on the initiative of a local landowner, Baron Gustaf Coyet of Rönneholm. Baron Coyet wrote to the provincial governor, who requested the district judge S. T. Cassel to convene the inhabitants of the districts of Rönneberg, Onsjö, and Luggude to deliberate on the issue. During these discussions, it appeared that the inhabitants of Luggude district disagreed with the inhabitants of the districts of Rönneberg and Onsjö about the desirability of the creation of the company. The result was that the inhabitants of Rönneberg and Onsjö districts as well as the inhabitants of the parish of Ottarp in Luggude district formed the company. Every owner or possessor of a house had to take part, unless he could show that he had some other fire insurance. The insurance was mutual, and the compensation amount was levied from the participants in proportion to the amount of the insurance. In each parish a committee was elected at the parish assembly under the presidency of the vicar. Above these committees was a board, which was elected under the supervision of the district judge by electors appointed by each parish. 49 This example shows that in the 19th century ___________ 47

Söderberg (n. 1), 352–391; Bergander (n. 3), 26–41. Bergander (n. 3), 21–25. 49 Erik Forslid, Rönnebergs m.fl. härads brandstodsbolag 1834–1934 (1935), XV–XXIV. 48

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fire insurance in the countryside was closely connected to the local community – the landowning noblemen, the district judge, the clergy, and the peasants who owned or rented their farms. It was not until the 20th century that the large-scale insurance companies came to dominate the fire insurance market also in the countryside. 3. Freedom of trade in the mid-19th century To this point, the insurance companies in the Nordic countries had needed permission from the King or a state authority to be established. They were based on the principle of mutuality, and the extent to which they had been able to build up a fund of money varied. Most of them had gone bankrupt as a result of some great fire. In 1849, absolutism was abolished in Denmark and the separation of powers was established. This also meant that the state no longer governed various trades as strictly as before. The three fire insurance companies were transformed into private companies, and at the turn of the 20th century two new fire insurance companies were founded.50 The insurance company of 1761 for buildings in towns stills exists as a mutual insurance company under the name Købstædernes forsikring,51 and the insurance company of 1792, Landbygningernes almindelige brandforsikring, exists under the name of Alm. Brand.52 In 1853, it was decided in Sweden that the brandstod was to be abolished in 1856, and here one sees a close temporal connection with the establishment of freedom of trade in 1864 and other liberal reforms. 53 Brandkontoret, the fire insurance company for Stockholm established in 1746, still exists. 54 Städernas allmänna brandstodsbolag of 1828 is part of the insurance company TryggHansa. The fire insurance fund of 1782, which after 1828 dealt only with insurance in the countryside and was called Brandförsäkringsverket, was dissolved in 2008, but its archives – which contains important documents about the history of buildings in Sweden – were transferred to a foundation, Stiftelsen för bebyggelsehistorisk forskning.55 From the 1850s onwards, many commercial insurance companies were established, starting with Skandia in 1855, and also foreign insurance companies did business in Sweden.56 ___________ 50

Thomsen (n. 3), 237–261, 302–337. See www.kfforsikring.dk. 52 See www.almbrand.dk. 53 Bergander (n. 3), 41–44. 54 See www.brandkontoret.se. 55 See www.brandverket.se. 56 Bergander (n. 3), 59–137. 51

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In Norway, there was still a state-run insurance company, Norges brannkasse. From 1816 and onwards, however, local fire insurance companies were established. They were small and resembled the local Swedish fire insurance companies for only a single parish.57 Insurance of chattels was made first through foreign companies, then from 1838 by various local companies.58 III. Maritime insurance There are in the Swedish law books of the Middle Ages rules to the effect that if merchandise is thrown overboard for the purpose of lightening a ship, the loss is compensated by the rest of the merchants in proportion to the value. Such rules, based on the lex Rhodia de iactu, were common in Europe and are looked upon as predecessors of insurance.59 1. The Dutch roots of the maritime law codes of the 17th century The law of maritime insurance in Scandinavia has Dutch roots, quite simply because Dutch insurers were the first to insure the goods of Nordic merchants. 60 In Sweden, Dutch maritime insurance rules were taken into a maritime law code in 1667, and these rules were then transferred to Denmark and Norway, where the Dutch rules were already applied. The focus here is on the transfer of rules from the Netherlands to Sweden – a topic which has been thoroughly analysed by Söderberg – and on the further transfer of these rules to Denmark and Norway. In 1667, Swedish maritime law was codified: the Maritime Act (Sjölagen).61 One of its parts, with 18 chapters, dealt with maritime insurance. This part of the code was based on the Amsterdam Maritime Insurance Act of 1598 with additions and changes made until 1662. The man who formulated the first draft of the law code was the Swedish councillor of commerce Henrik De Moucheron (1612– 1670), a member of a Dutch family which is famous both in art and trade. His draft was later revised by others, and there have been discussions in Swedish

___________ 57

Lorange (n. 1), 200; Færden (n. 3), 360–399. Færden (n. 3), 272–359. 59 Söderberg (n. 1), 91–93. 60 Söderberg (n. 1), 97–123. 61 See Joh. Schmedeman (ed.), Kongl. stadgar, förordningar, bref och resolutioner…, vol. 1 (Stockholm 1706), 478–539. 58

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legal history about who was the most influential drafter, but under all circumstances Moucheron’s knowledge of Dutch law was important.62 In the first chapter, there was a rule that contracts that were not consistent with the code were invalid. The second chapter was about how insurance contracts were to be made. They had to be made in writing in accordance with a form which was to be printed in the Swedish and German languages. Only the names of the ship and of the captain, the itinerary, and a specification of the goods were to be added. The specification ‘perishable or not perishable goods’ (‘förderfwelige och oförderfwelige Wahror’) could include all kinds of goods, but if someone wanted to insure coined or uncoined gold and silver, pearls, jewels, and other valuable things or munitions, the relevant kind of goods had to be specified explicitly.63 As of 1935, the details of Dutch maritime insurance in the 17th century had, according to Söderberg, not been examined in depth. Recently, however, Dave De Ruysscher has discussed the contents of maritime insurance contracts in Antwerp in the second half of the 17th century. The use of the phrase ‘perishable or not perishable goods’ is well in line with the standardized specifications which occurred in Antwerp. The reason behind the vague specification is that trade secrets should be kept. Also in Antwerp, weapons and particularly valuable goods, such as gold, coins, and diamonds, had to be specified explicitly. Towards the end of the 17th century, however, also these assets were increasingly insured under the more vague specifications. 64 The Swedish law on maritime insurance was transferred to the town law of Riga of 1672–1673, to the Danish Law Code of 1683, and to the Norwegian Law Code of 1687.65 In Denmark and Norway, these provisions seem not to have been applied. The rules were taken into the law codes more for the sake of completeness than because the rules were needed. The maritime insurance contracts there ___________ 62 See Söderberg (n. 1), 133–138; Bo Palmgren, Återfunna förarbeten till 1667 års sjölag, 1960 Svensk juristtidning 25–29; Kjell Å Modéer (ed.), 1667 års sjölag i ett 300-årigt perspektiv (1984), 1 (referring to an unpublished lecture by Stig Jägerskiöld) and 130–133. 63 See the Maritime Act, Maritime Insurance Part, in: Schmedeman (n. 61). 64 Dave De ruysscher, Normative Hybridity in Antwerp Marine Insurance (c. 1650 – c. 1700), in: Seán Patrick Donlan and Dirk Heirbaut (eds.), The Laws’ Many Bodies. Studies in Legal Hybridity and Jurisdictional Complexity, c. 1600–1900 (2015), 144–168, esp. 156–158. See also J. Th. De Smidt, Niederländisches Seerecht vom 15. Jahrhundert bis zur Seerechtskodifikation 1955. Eine Übersicht, in: Modéer (n. 62), 206–217; Kjell Å Modéer, Hendrick de Moucherons bokauktionskatalog 1664. Ett rättshistoriskt aktstycke, in: Modéer (n. 62), 128–147. 65 Söderberg (n. 1), 142–145; Jørgensen (n. 1), 140–141; Lorange (n. 1), 47–56. See the Danish Law Code, Book 4 Ch. 6, in: Stig Iuul (ed.), Kong Christian den femtes Danske lov (1949), 207–209 and the Norwegian Law Code, Book 4, Ch. 6, in: Kong Christian den femtes Norske lov, (ed. 1982), 179–181.

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seem to have in any event followed Dutch law, partly a more modern version thereof.66 Also as regards Sweden, Söderberg has concluded that the Maritime Act has been influenced by the formally valid Dutch rules rather than the law that was actually used and applied. This means that in the maritime insurance business, deviations from the statutory law were foreseen and accepted.67 2. Maritime insurance companies Chambers of insurance had been established in Amsterdam in 1598 and in Paris in 1668. The Paris chamber had been reorganized into a company in 1686, and in 1700 councillor of commerce Johan Mathiesen Leers suggested that a similar company should be established in Copenhagen. The suggestion was not successful at that time, but in 1726 a company for maritime insurance was established in Copenhagen (Søassurancekompagniet). It followed international maritime insurance principles.68 In Norway, some maritime insurance companies were working in the early 19th century.69 In 1739, a Swedish maritime insurance company (Svenska sjöassuranskompaniet) was established on the initiative of some Stockholm merchants. It was granted a monopoly, which was successively renewed until 1766. The company was active until 1866. Some other companies were active in the 1780s and 1790s, but it was not until the 1840s that more companies were established.70 A special type of insurance related to the risk of sailors being taken as hostages for ransom by people in Turkey or in what was then called the Barbary Coast. A first initiative was taken in 1684 by the judge Henrik Kock in Bergen, Norway. In 1715 the Danish-Norwegian state set up a fund for this purpose. It cooperated with the banker Pommer in Venice.71 3. Development of maritime insurance law In 1750, the rules on insurance in the Swedish Maritime Act of 1667 were replaced by a Statute on Insurance and Shipwrecks (Försäkrings- och haveristadga).72 Among the sources of the new legislation were the rules of maritime ___________ 66

Jørgensen (n. 1), 140–141; Lorange (n. 1), 49. Söderberg (n. 1), 136–137; De ruysscher (n. 64), 156–158. 68 Jørgensen (n. 1), 168–206. 69 Lorange (n. 1), 119–141. 70 Söderberg (n. 1), 146–273; Bergander (n. 3), 151–233. 71 Jørgensen (n. 1), 157–167. 72 See Reinhold Gustaf Modée, Utdrag utur alle publique handlingar…, vol. 5 (Stockholm 1756), 2965–3008. 67

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insurance from Hamburg of 1731 and from Amsterdam of 1744, which had been translated into Swedish and printed. While the new Swedish legislation was influenced by these laws, especially the Hamburg rules, the British Maritime Insurance Act of 1746 seems not to have been used, perhaps it was not even known to the Swedish drafters. The new statute adapted Swedish law to the customs used in trade.73 In Denmark, a special insurance appeal court (Assurancekammerretten) was established in 1746 and was again abolished in 1771 when the insurance cases were referred to the ordinary courts. 74 In 1861, a Maritime and Commercial High Court (Sø- og handelsretten) was established in Denmark. Also in 1750, a special court of law (Sjöförsäkringsöverrätten) was established for cases about maritime insurance contracts concluded in Sweden. This court was abolished in 1866, and jurisdiction for disputes of this nature was transferred to the ordinary courts. In 1752, an office of average adjuster (dispaschör) connected to the Swedish maritime insurance company was given formal status as an office of the state. The average adjuster was responsible for the first investigation in maritime insurance and shipwreck cases. The first average adjuster had his office in Stockholm, and in 1813 a second average adjuster was appointed for Gothenburg.75 At the turn of the 20th century, there were average adjusters also in Härnösand and Malmö, but since 1975 there is only one average adjuster for Sweden (Sveriges dispaschör), and the office is in Gothenburg.76 An independent office of average adjuster was established in Denmark in 1775.77 In 1864, a new Swedish Maritime Act was enacted.78 It was influenced by the German Handelsgesetzbuch of 1861 and the Norwegian Maritime Act of 1860.79 This statute was soon, in 1891, replaced by a new Maritime Act. 80 This time, legislation had been prepared jointly by the Danish, Norwegian, and Swedish governments. As regards maritime insurance, the rules had been very detailed in the Maritime Act of 1864, which was a result of the transfer of rules from the German Handelsgesetzbuch of 1861. In 1891, the rules were made less detailed and more room was given to parties to write suitable clauses into their contracts. The rules about insurance that were taken into the Maritime Act were general rules about maritime insurance, rules about issues that the parties should not have ___________ 73

Söderberg (n. 1), 204–228. Jørgensen (n. 1), 229–236. 75 Söderberg (n. 1), 221–228. 76 See www.dispaschor.se. 77 Jørgensen (n. 1), 233. 78 Svensk författningssamling (SFS) 1864:22. 79 Ivar Afzelius, Sjölagen den 12 juni 1891, (1891) Nytt juridiskt arkiv, avd. II, 1. 80 Svensk författningssamling (SFS) 1891:35, 1. 74

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the right to agree upon, and rules about issues that the parties were likely not to include in their contracts.81 IV. Life and income insurance 1. Tontines The Italian Lorenzo Tonti (1602–1684) launched an idea of insurance known as tontines. The concept was that many people paid an amount of cash to a fund, and the interest was then paid to the still-living participants. The interest payments to the remaining participants grew as participants died. The fund was the property of the state, and the tontines were thus a way for the state to raise money if it guaranteed the payments to the still-living participants. In 1652-1653, Tonti’s idea reached Poul Klingenberg (1615–1690), merchant and director general of the Danish Royal Mail, through the agency of two other merchants. Klingenberg managed to interest King Frederick III in the concept. In 1653, tontines were organized under the name Det frugtbringende Selskab (The Advantageous – literally: fruit-bearing – Company). The attempt failed, however, because of too few participants. Also new attempts in the 1690s failed. At this time, calculation of the probability of the length of the participants’ lives was possible but not used. In 1757, an attempt was made which succeeded, and the last participant died in 1840. Also in 1792, a successful attempt was made, and that tontine (which was private, not state-owned property) was dissolved in 1880 when the remaining twelve participants decided to divide the fund amongst themselves. The last tontine was established in 1800 and still existed in 1892. According to membership lists, it was not only Danes that participated in these tontines.82 In Sweden, there was in the mid-18th century the idea to use tables on the size and composition of the inhabitants, which were based on the population register, to calculate tontines and annuities. Tontines were at this time a type of insurance ‘yet unknown in Sweden’.83 Despite attempts at the earliest in the 1660s and lastly in the 1820s, a tontine was never set up in Sweden. 84

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Afzelius (n. 79), 1–9; Bergander (n. 3), 217. Anon., Tontiner i Danmark, (1892) Ny række 10 Nationaløkonomisk Tidsskrift 366–373. 83 August Hjelt, Det svenska tabellverkets uppkomst, organisation och tidigare verksamhet (1900), 39 84 Söderberg (n. 1), 441–446 and 500–501. 82

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2. Income insurance for widows and children In the Nordic countries, funds were established in the 18th century for the widows and children of, for instance, priests and civil servants. If the father of the household died, his widow and children should have some income. In Sweden, Söderberg thought that the origin of these funds was the fund for priests’ widows in the Duchy of Gotha, established in 1645, and the fund for priests’ widows in Sealand in Denmark, established in 1659.85 In Denmark, Jørgensen thought that the idea came from the guilds and from the fact that people in various groups in society solved their problems internally. 86 Jørgensen referred to an author in economics J.J. Hertel, who in a book87 published in Sorø in 1765 concluded that such funds were of no use for the wealthy or for craftsmen but suited people who were employed by the state and were paid in cash. 88 In Denmark, funds for priests’ widows were established in the 17th century, in Flensburg (not in the Kingdom of Denmark, but in the Duchy of Schleswig) in 1640, and for Sealand in 1659. This development continued in the 18th century.89 Then, similar funds were also made for the widows of civil servants, burghers, and others, both in Denmark and Norway. Also children were included. In 1707, the state took the initiative to establish a fund for widows of military officers in Denmark (Officersenkekassen). A similar fund was established in Norway in 1721. In Denmark, a general fund for widows and orphans was set up in 1775. 90 In Sweden, the development was similar but came a little later. Priests in the district of Harjager in Scania started a fund in 1729. Whereas many Danish funds were set up in the 1730s, the same thing happened in Sweden in the 1740s. The fund for widows and orphans of civil servants was established in 1740, and it was followed by similar funds for priests and military officers in the same decade. These three funds were, however, bankrupt in the 1780s. In 1784, a general fund for widows and orphans was set up (Allmänna änke- och pupillkassan). Beside it, smaller funds were set up for various state authorities and trades. 91 Both Allmänna änke- och pupillkassan92 and several smaller funds still exist.

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Söderberg (n. 1), 448. Jørgensen (n. 1), 332. 87 ‘Gedanken von einer allgemeinen u. beständigen pensionscasse für die witwen und unmündige’. 88 Jørgensen (n. 1), 113. 89 Jørgensen (n. 1), 113–122. 90 Jørgensen (n. 1), 332–357, 372–386; Lorange (n. 1), 278–305. 91 Söderberg (n. 1), 447–501. 92 See www.ankepupillkassan.se. 86

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3. Contractual rights and judicial review It is of fundamental importance that those who have paid their fees will also receive the compensation promised in the insurance contract. When substantial damages occur, such as great fires in towns, or when the risks have been assessed too incautiously, the result may be that the insurance company goes bankrupt. I have mentioned examples of that above. The Swedish funds for widows and orphans had charters granted by the King. One of the earliest Swedish Supreme Court cases relating to constitutional issues dealt with the constitutionality of an amendment of such a charter. In this case from 1907,93 the vicar C.H. Levin had acquired a right for his daughter Elma to receive a pension from the fund for widows and orphans of priests. At the time when he had acquired that right, there was a right to a pension for a child who after the age of 21 because of ill-health could not earn a living. Elma Levin had had an income but became ill and could no longer support herself. Before she applied for a pension, the rules were made stricter, and such a pension could only be granted if the child suffered from ill-health and an impossibility to earn a living at the age of 21. Elma Levin claimed that the charter should be applied as it was when her father paid the fees to the insurance, and thus she should have the right to a pension. The fund argued that the new version of the charter should be applied. The Supreme Court sustained the judgment of the court of first instance, which had held that the right to pension which C. H. Levin had acquired for his daughter according to the charter in force at that time could not legally have been repealed (‘icke lagligen kunde anses hafva blifvit upphäfd’)94 by the amendment. Thus, the Supreme Court did not accept ex post facto legislation by the King alone in the form of administrative legislation, at least not in a case where the relationship between the parties was so close as to be contractual. According to the constitutional law of the time, the charter could probably have been legally amended through legislation by King and parliament, since such legislation could change rights and duties between parties to a contract. 95

___________ 93 NJA 1907, 188. (The Swedish Supreme Court cases are published in the series Nytt juridiskt arkiv, NJA.) 94 NJA 1907, 188 at 190. 95 Martin Sunnqvist, Konstitutionellt kritiskt dömande. Förändringen av nordiska domares attityder under två sekel (2014), 329–330.

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V. State supervision of insurance companies After freedom of trade was introduced, the role of the state changed. Instead of running the fire insurance companies and/or granting them charters, the state gradually took over a supervisory function. In Sweden in 1886, an inspector of insurances was appointed to assist one of the ministries with the supervision of the insurance business. The office of the inspector developed in 1904 into an administrative authority, the Royal Inspectorate of Insurances (Kungl. Försäkringsinspektionen), which in 1991 was merged with the Inspectorate of Banks into the Inspectorate of Finance (Finansinspektionen, Swedish Financial Supervisory Authority).96 In Norway and Denmark, similar authorities were established in 1912 and 1922 respectively, under the names Forsikringsrådet and Forsikringstilsynet respectively.97 In both countries these authorities are now, after mergers with other financial supervisory authorities, called Finanstilsynet.

D. Some interesting questions for further research The approach of comparative legal history gives reason to review research questions that were, so far, not possible to answer definitively. I will mention some of the most obvious as regards Nordic law. The roots of fire insurance in the countryside can, in parts of the Nordic countries, particularly Scania and Iceland, be traced back to a custom of mutual fire help. Such a custom can also be traced in other parts of northern Europe. We are here dealing with early law, where sources are incomplete and conclusions have to be drawn from traces in later history. Such research questions require caution, but a wider geographical perspective may provide a better basis for solid conclusions. Guilds were a common European phenomenon, and it is therefore interesting to investigate how widespread help within guilds was when a member of the guild had suffered losses because of, for example, fire. Fire insurance in the cities was not regulated in the same way as in the countryside, since fire in a town often spread to the entire town or a large part of it. One example is the Great Fire of London of 1666. This fire is said to have given rise to both the modern fire in___________ 96

Bergander (n. 3), 91–92; http://www.fi.se/Om-FI/Vart-uppdrag/Historia/. See Sverre Knutsen and Gunhild J. Ecklund, Vern mot kriser. Norsk finanstilsyn gjennom 100 år (2000), 21–23, 49–54 and as regards Denmark, the encyclopedia Den store Danske, Finanstilsynet; http://denstoredanske.dk/Samfund%2c_jura_og_politik/%C3%98konomi/Pengeinstitutter_mv./Finanstilsynet (last accessed 2.5.2016). 97

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surance business in the United Kingdom and the foundation in 1676 of the Hamburg General Feur-Cassa. In Swedish research, however, Söderberg considered that the business of fire insurance in the cities evolved out of maritime insurance and that Swedish proposals for fire insurance in towns existed both before and after the establishment of the Hamburg General Feur-Cassa. Also here, a wider geographical perspective may provide a better basis for solid conclusions. In 1935, Söderberg wrote that the details of Dutch maritime insurance law in the 17th century had not been examined in depth. There were according to Söderberg, Jørgensen, Lorange, and De Ruysscher differences between statutory provisions and the law actually used and applied in the 17th century. This gives reason to undertake new comparisons in light of new research. The concept of tontines spread to Denmark and Norway but not to Sweden. This gives reason to compare which European countries this very special type of insurance spread to – and the reasons for this – as well as the question of why it did not succeed in the other countries. As regards the funds for widows and children, the Swedish and Danish authors have drawn different conclusion about the details on the transfer of these schemes to the Nordic countries. Finally, an important part of insurance history is the history of the individuals who had new ideas, or brought with them ideas, that formed the basis for the development of insurance schemes and insurance law. Through research into the life and history of such individuals, it is possible to analyse how ideas spread from one jurisdiction to another.

Chapter 10: A Comparative History of Insurance Law in Europe By Phillip Hellwege The starting point of the present volume was the observation that, hitherto, research on the history of insurance had a clear focus on maritime insurance and on insurance operated on a commercial basis. Furthermore, the existing research has primarily been conducted by economic historians and, consequently, legal developments have largely been neglected. Finally, research into the history of insurance has developed distinct national narratives. The research project on a comparative history of insurance law in Europe, to which the present collection of essays is the inaugural volume, wants to go beyond these national narratives and analyse the history of insurance law in Europe from comparative perspectives. It seeks to do so by focusing on possible points of interaction between the different national legal developments.1 In order to succeed with this research agenda it is necessary, first, to critically revisit the state of research on the history of insurance and to map out the prospects for a comparative history of insurance law in Europe. This is what the present volume aims at. Accordingly, the authors of the different chapters were asked to give an overview of the state of research as regards the diverse national historiographies. Consequently, the chapters in this volume have different focal points: whereas Sophie Delbrel,2 for example, looks in detail into the history of social insurance in France, Miguel Ángel Morales Payán focuses on the development of insurance companies in Spain,3 and Dirk Heirbaut on the early history of mutual assistance in the event of fire in Flanders.4 To some extent, these various focal points simply reflect the divergent states of research in the different national historiographies. However, they also reflect distinct developments in the evolution of insurance. This is an important point which needs to be stressed: even where we find points of interaction between more than one national narrative in, for example, parallel institutions these institutions may have appeared in the different European countries with a time lag. Furthermore, their development ___________ 1

Above Hellwege, 9–25. Above Delbrel, 47. 3 Above Morales Payán, 84–87. 4 Above Heirbaut, 91–94. 2

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in the different countries will have depended on the different socio-economic settings therein. Finally, Morales Payán and Heirbaut, for example, even remind us of regional differences in the development of insurance in Spain and Belgium.5 In addition, each contributor was asked to look for themes in the history of insurance which other authors have identified in their national historiographies. And each author was asked to go beyond reflecting on the development of insurance as an institution and link the findings to the legal sphere by pointing out why these findings may have had an impact on legal developments. As the present volume marks the starting point of a project on the comparative history of insurance law in Europe, these findings are, of course, of a preliminary nature only. They need to be fully researched and put into perspective. Even though, the purpose of the present volume is to work out prospects for a comparative history of insurance law in Europe and, thus, to identify starting points for future research, the different contributions have already confirmed the observation that the history of insurance is mostly in the hands of (economic) historians and that research on the history of insurance law has fallen into neglect. Yet, there are exceptions: for the Netherlands there is the work by Johan P. van Niekerk titled ‘The Development of the Principles of Insurance Law in the Netherlands from 1500 to 1800’;6 for England there is the recent study by Guido Rossi, of which John MacLeod makes extensive use;7 and also in other countries, as for example in Italy, we find studies on the development of insurance law. 8 Delbrel has stressed with respect to France that there is again a rising interest in the history of insurance law in recent times,9 and the same is true for other countries as well. In addition, there is in the different national narratives a clear focus on maritime insurance.10 Yet again, there are exceptions. Delbrel and Morales Payán, for example, show that in France and Spain the history of social insurance has received considerable attention. 11 Furthermore, it is generally thought that other types of insurance, like fire and life insurance, were derived from, or were at least treated analogously to, maritime insurance. Finally, it seems that a comparative approach to the history of insurance has, with the exception to maritime insurance, played only a minor role in the different national narratives. However, ___________ 5

Above Morales Payán, 77–79; Heirbaut, 94 f. Above Hellwege, 134. 7 Above MacLeod, 150–169. 8 Above Fortunati, 31. 9 Above Delbrel, 50–52. 10 Above Fortunati, 27–31; Heirbaut, 89; MacLeod, 154. 11 Above Delbrel, 49–50; Morales Payán, 71. 6

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what are the prospects for a comparative history of insurance law in Europe? What are the possible points of interactions? 12 Maritime insurance has already in the past been studied from comparative perspectives, and Morales Payán even looks beyond Europe and includes in his contribution American developments.13 However, Dave De ruysscher reminds us of shortcomings of modern research.14 He identifies these shortcomings with respect to the Southern Netherlands, but they hold equally true for other national historiographies. The research has primarily focused on specific centres of maritime insurance. Furthermore, legal developments have often been neglected. The research that has taken account of legal developments has either focused on the developments in legislation or on the developments in respect of insurance practices and customs. The interplay between these two lines of development is under-researched. And, the research has focused on specific time frames. Moreover, the research has thus far focused primarily on premium insurance, yet maritime insurance appeared also in the form of mutual insurance. In addition, Maura Fortunati reminds us of the importance of the case law of the Genoese Rota Civile for the evolution of commercial law in Europe, and she rightly poses the question as to ‘how the reception of the case law of the Genoese Rota has influenced the further development of insurance law in Europe and whether and how its case law has been observed by other European courts’. 15 Fortunati also draws our attention to the literature as an object of comparative research: 16 the treatise written by Balthazard-Marie Emerigon (1716–1785) was of great importance beyond France. Yet she reminds us of the work by the Italian Ascanio Baldasseroni (1751–1824) which appeared only three years after Emerigon’s work and which took notice of European developments. Fortunati stresses that Baldasseroni’s work needs to be studied in detail, that it needs to be put into a European context, that it needs to be compared to Emerigon’s treatise, and that its impact needs to be analysed. Finally, for the 19th century, Delbrel points to the role of associations of maritime insurers and mentions those located in Paris: these association had an international agenda, but their impact on the development of maritime insurance law in France and beyond has thus far not been the object of research.17 Thus, Delbrel suggests that there were still points of interactions between the national insurance laws as late as the 19th century. By contrast, MacLeod works out the Italian and Dutch origins of insurance law in England, but he argues that ___________ 12

Above Hellwege, 21. Above Morales Payán. 76. 14 Above De ruysscher, 110–113. 15 Above Fortunati, 34–36. 16 Above Fortunati, 36–37. 17 Above Delbrel, 63–64. 13

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English law became insulated ‘from the continuing dialogue with foreign sources’ in the 18th century.18 Associations which, among other purposes, aimed at providing mutual assistance to its members are mentioned in all the papers of the present volume: 19 these include guilds, such as craft guilds and fire guilds, as well as fraternities. However, it becomes obvious from the different contributions that in many national historiographies they have received only little attention. And where they are covered by modern research, it is the aspect of mutual assistance that has been mostly ignored, as Heirbaut reminds us.20 Furthermore, it appears that where they have been put into a comparative context, the research has been flawed: Heirbaut challenges Charles Trenerry’s findings on guilds in Flanders.21 However, German, English, and Scandinavian research conducted in the past relied on the findings in Trenerry’s work. The mutual assistance granted by the different forms of guilds needs further research. And it is worthwhile to put this research into comparative perspective: Morales Payán, for example, draws attention to the Spanish literature alleging that the concept of guilds came to Spain via the Way of St. James.22 The 17th century saw three innovations. First, there were assurances for widows and orphans. In the 17th century such assurances were initiated by some states for specific professions, foremost for civil servants and in protestant countries for pastors. They are mentioned in the chapters on Germany, the Netherlands, Spain, and Scandinavia.23 These assurances gained importance in the 18th century. This finding does not suggest that there was any uniformity in their development. It may have been a mere parallel development or it may have been a transfer of institutions. The developments may have occurred with a time lag. Assurances for widows and orphans may have played a different role depending on the different socio-economic settings in the single countries. Nevertheless, it is again worthwhile to put widow and orphan assurances into a comparative context and to assess their importance for the development of life insurance (law). The second 17th-century innovation which is mentioned in all the contributions is tontines.24 Tontines are pooled life annuities which served a number of ___________ 18

Above MacLeod, 162–163. Above Fortunati, 31–33; Delbrel, 53–55; Morales Payán, 71–73; Heirbaut, 91; Hellwege, 145–148; MacLeod, 158; Hellwege, 175–178; Sunnqvist, 208–209, 220–221. 20 Above Heirbaut, 89. 21 Above Heirbaut, 91–94. 22 Above Morales Payán, 71–73. 23 Above Sunnqvist, 220–221; Morales Payán, 71–73; Hellwege, 145–148; idem, 178–181. 24 Above Fortunati, 40; Delbrel, 47, 52; Morales Payán, 85; Heirbaut, 102–106; MacLeod, 154–156, 166–169; Hellwege, 145–148; idem, 178–181, 183–184; Sunnqvist, 219–220. 19

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purposes. For investors they could function as a pension scheme. They were ‘invented’ by Lorenzo Tonti (1602–1684) in 17th-century France. Most tontines were issued between the 17th and the 19th centuries. The third 17th-century innovation is modern fire insurance. For the 17th century, fire insurance, or at least plans for fire insurance, is mentioned in the chapters on Belgium, the Netherlands, England, Germany, and Scandinavia.25 Their origins are contested in each national historiography. Heirbaut points out that in the Southern Netherlands it is unlikely that they were in any way connected to the Flemish institutions of mutual assistance in the Middle Ages. Similarly, the Dutch historiography assumes that modern fire insurance is rather a spin-off from maritime insurance. The narrative for Germany presents itself slightly differently:26 the Hamburg General Feur-Cassa of 1676 was based on the Hamburg fire contracts which were first concluded in 1591. Nevertheless, it is doubted that the Hamburg fire contracts derived in any way from the fire guilds in 16th-century Schleswig-Holstein. In most national historiographies on the history of insurance it is thought that life insurance and fire insurance derive from maritime insurance.27 In contrast, modern German literature speaks of three distinct roots of insurance. 28 Tentatively, it seems most plausible to speak, in the words of Levin Goldschmidt (1829–1897), of ‘sich mannigfach verschlingende(n) Wurzeln’ (‘in many ways interwoven roots’).29 In the chapters on Germany and on the Netherlands it became obvious that both the early Hamburg fire contracts and the Zaanstreek fire contract of 1663 did not apply those technical terms which are familiar from maritime insurance contracts. This could be an indication that fire insurance was in both countries initially based on a different tradition than maritime insurance. These technical terms were only in the late 17th and early 18th centuries adopted in the context of fire insurance – even though the respective schemes can at that point of time not be characterized as commercially run premium insurance. 30 This is an indication that the distinction between a cooperative style of insurance and mercantile insurance is, even though of great importance for economic historians, of less importance when analysing the regulations of the different insurance schemes. There was a borrowing between the different schemes. And this borrowing could have taken place also with respect to the legal rules. A similar point has been made in the chapter on Germany when the development of duties ___________ 25

Above Heirbaut, 106–109; Hellwege, 138–145; idem, 175–181; Sunnqvist, 209–215. Above Hellwege, 175–181. 27 Above Fortunati, 27–33; Morales Payán, 67–70; Heirbaut, 101–110; Hellwege, 134–145. 28 Above Hellwege, 173. 29 Levin Goldschmidt, Handbuch des Handelsrechts, vol. 1 (3rd edn., 1891), 40. 30 Above Hellwege, 138–145; idem, 189–190. 26

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of disclosure in commercial life insurance in England was contrasted with the development of duties of disclosure in non-commercial, state-run widow and orphan assurances in Germany.31 For the further development of fire insurance and life insurance, two points are worth noting. Both in Germany and in Denmark state-run fire insurance was predominant in the 18th century. For Denmark, Martin Sunnqvist points to the influence of the writings of the so-called Kameralisten – Kameralismus was the German version of mercantilism – for the establishment of state-run fire insurance.32 The second point worth noting for the further development of fire and life insurance relates to international ties on a personal level and internationally active insurers. In Belgium it was Englishmen who were the driving force behind establishing fire insurance in the 18th century.33 But it was only in the 19th century that fire insurance had its break-through, and this time there was a strong Dutch influence.34 Similarly for France, Delbrel identifies English influences when in the 18th century fire insurance became established in France, and during the 19 th century both English and Belgian insurers were active on the French market. 35 In Germany, too, English, Belgian, and French insurers were active since the late 18th century,36 and Sunnqvist points to English insurers who were active in Sweden.37 According to Morales Payán, international insurers became active on the Spanish market only in the second half of the 19 th century.38 Consequently, it needs to be analysed whether these international insurers used the practices, customs, and standard contract terms from their home markets and whether these practices, customs, and standard contract terms had any lasting impact on the development of insurance law outside their home market. The customs, practices, and standard contract terms of the insurance trade are also for other reasons an interesting point of research. Fortunati draws our attention to the treatment of suicide in the standard terms of life insurance contracts, and she puts this treatment into an intriguing Italian-French-Belgian context. She rightly poses a number of questions: ‘were the solutions which were adopted by Italian insurers in any way original? Or did Italian insurers simply imitate and copy solutions which were developed by other, perhaps foreign companies? ___________ 31

Above Hellwege, 190–195. Above Sunnqvist, 210–212. 33 Above Heirbaut, 106–109. 34 Above Heirbaut, 110. 35 Above Delbrel, 53–55, 58–63. 36 Above Hellwege, 181–183, 195. 37 Above Sunnqvist, 212 f. 38 Above Morales Payán, 87. 32

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Standard terms in life insurance contracts on suicide by the insured party are a good example for exploring these questions.’39 Furthermore, Delbrel points to the importance of the international of re-insurance trade which might, early on, have produced a convergence of standard contract terms. 40 As is the case with many other areas of law, it is also in the context of insurance law that it is worthwhile to study the impact of the Napoleonic laws which were enforced in many European states. Fortunati exemplifies the interplay between Italian and French law in her discussion on the prohibition of life insurance.41 Finally, Delbrel points to an interesting chapter in the development of social insurance:42 in France, there was a German influence. First, France tried to suppress the adoption of German social insurance schemes. However, via AlsaceMoselle the German model gained importance in France. And the German social insurance schemes were partly based on earlier layers of development, most importantly the mutual protection offered by guilds.43

___________ 39

Above Fortunati, 37–40. See also Heirbaut, 106. Above Delbrel, 63–64. 41 Above Fortunati, 40 ff. 42 Above Delbrel, 65. 43 Above Hellwege, 186–186. 40

Chapter 11: The Economic Historian’s View By Jerònia Pons Pons A. Legislation and practice of marine insurance ......................................................... 232 B. The industrial revolution and economic development: the expansion of the insurance business ................................................................. 235 C. The regulatory models of the insurance business before 1914 ............................... 236

Insurance is one of the few financial activities that have been strictly regulated from the outset. Therefore, in any historical or geographical context, when economic historians have undertaken an analysis of an insurance market in order to study its functioning, its characteristics, and the role of the actors participating in the market, they need to be familiar with its institutional environment and, above all, the legal framework. Thus, economic historians have resorted to the works of legal historians and, where these have been inexistent, approached the legal framework directly as part of their analysis of the institutionalisation of this financial instrument. Consequently, legal historians and economic historians have availed themselves of each other’s works. This has resulted in a positive relationship that has contributed to the advancement of the history of insurance. In my view, scholars of both disciplines should take three factors into account with regard to private insurance: the internationalisation of insurance activity, the contrast between insurance legislation and actual insurance practice in certain historical contexts, and the diversity of the origins of insurance legislation and regulation in present-day states.1 Social insurance – of great interest to the economic historian due to its weight in the social expenditures of contemporary states and for its significance in the creation of the welfare state in industrialised countries – is excluded here as it is considered from the social historian’s perspective in this volume. ___________ 1 In some countries early insurance legislation and regulation had a continuous impact well into the 19th century, see especially the above chapters on the developments in Italy, Germany, and Spain. In the case of Spain a clear division occurred: Jean-Marie Pardessus, Collection de lois maritimes antérieures au XVIIIe siècle (1828 ff.), pointed to the division of Spanish maritime legislation into two large blocks of different origins and traditions, that of the Crown of Aragon and that of the Crown of Castile, a division that was confirmed in subsequent studies, as can be seen in the chapter written by Morales Payán, 67 ff., above.

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From the economic historian’s point of view, there were two great phases of intense legislation on and regulation of insurance between its origins and the first decades of the 20th century. The first phase was in the medieval period, especially in the 15th century when marine insurance ordinances were drawn up which persisted in the following centuries with few changes. The second phase was after the industrial revolution had spread throughout Europe, at a time when insurance business expanded to other types of products in the context of the first globalisation: fire insurance, life insurance, industrial accidents insurance, death insurance, re-insurance, etc. In the late 19th and early 20th centuries, states started to intervene due to protectionist policies and economic nationalism, something that was done with several aims: to favour national companies over foreign multinationals, to control the destination of insurers’ deposits and reserves (many of them being obliged to invest in public debt or other reliable securities) and to protect domestic policyholders. All of these goals were underpinned by the fiscal objective of boosting the state’s coffers, which would benefit from taxes levied on insurance activity. Greater or lesser state intervention was a result of the historical legislative tradition of each country, as the studies contained in this volume demonstrate, and different insurance regulation models evolved.

A. Legislation and practice of marine insurance The first legal historians to take an interest in insurance, some as early as the 18th century, concentrated on the origins of this commercial instrument and in particular on early insurance legislation and regulation and its diffusion in the Mediterranean region in the first centuries after its creation. They did not only study early insurance legislation and regulation, but also outlined insurance practice. The first writers of treatises on this subject included Carlos Targa (Carlo Targa, 1614–1700) and Balthazard-Marie Emerigon (1716–1785) as well as many more who are cited in the present book, especially in Maura Fortunati’s chapter on Italy and Sophie Debrel’s chapter on France.2 Targa brought together insurance practice, insurance contracts, decisions of the most important commercial courts of Mediterranean ports, especially of the Genoese courts, and the influence of those ordinances which were included in the Barcelona Consulado’s Book of the Sea (Llibre del Consolat de Mar) on court decisions. By contrast, Emerigon analysed the different forms of insurance contracts in the French area. In the late 19th and early 20th centuries, legal historians continued to study the geographical and temporal origins of marine insurance and of different contract ___________ 2 Carlos Targa, Reflexiones sobre los contratos marítimos, sacadas del derecho civil y canónico del Consulado de Mar, y de los usos marítimos (Madrid 1753), published first in Italian as: Ponderationi sopra la contrattatione Maritima (Genoa 1692); BalthazardMarie Emerigon, Traité des assurances et des contrats à la grosse (Marseille 1783).

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models, and also the institutions that regulated this practice. Noteworthy among these historians are Enrico Bensa (1848–1931) and Guido Bonolis.3 In his sixvolume work, Jean-Marie Pardessus (1772–1853) included almost all known insurance legislation in medieval and modern times. This tradition was perpetuated by several legal historians, and many of the results of this research can be consulted in the journal Assicurazioni. In many of these early works, a study of insurance legislation was combined with a study of insurance practice. This initial research into the history of insurance from a legal perspective was later joined by studies that also included more economic aspects. In 1928, Bensa dedicated some space to insurance practice in his work on medieval Italy.4 In the 1930s, Paul Masson contributed to the study of the origins of insurance in France.5 As from 1945, authors such as Florence Edler de Roover, Mario del Treppo, Giuseppe Stefani, Jacques Heers, Louis-Augustin Boiteux, Federigo Melis, and Alberto Tenenti rescued the subject of insurance for the discipline of economic history, without neglecting the study of its regulatory framework. 6 Thus, these studies were the product of collaboration and proved the proximity of both disciplines; further, they established the Italian origins of insurance and the importance of Italian city-states in the international dissemination of insurance legislation as well as in the practice and formulation of marine insurance contracts.7 ___________ 3 Enrico Bensa, Il contratto di assicurazione nel Medio Evo. Studi e Ricerche (1884); Guido Bonolis, Svolgimento Storico dell’assicurazione in Italia (1901). 4 Enrico Bensa, Francesco di Marco di Prato. Notizie e Documenti sulla mercatura italiana del secolo XIV (1928). Chapter seven, entitled ‘L’assicurazione e gli altri contratti mercantili’, studies the participation of Florentines in insurance in the 14th century, both as policyholders and as insurers. 5 Paul Masson, L’origine des assurances marítimes, spécialement en France et à Marseille, (1921–1922) Bulletin des Sciences Socials du Comité des Travaux Historiques et Scientifiques 205–218. 6 Florence Edler de Roover, Early Examples of Marine Insurance, (1945) 5 The Journal of Economic History 170–200; Mario del Treppo, Els mercaders catalans i l’expansió de la Corona Catalana-aragonesa al segle XV (1976); Giuseppe Stefani, L’Assicurazione a Venezia dalle origini alla fine della Serenissima (1956); Jacques Heers, Le Prix de l’assurance maritime à la fin du Moyen Age, (1959) 37 Revue d’historie économique et sociale 7–19; Louis-Augustin Boiteux, La fortune de mer. Le besoin de sécurité et les débuts de l’assurance maritime (1968); Federigo Melis, Origini e sviluppi delle assicurazioni in Italia (secoli XIV-XVI) (1975); Alberto Tenenti, Il prezzo del Rischio. L’assicurazione mediterranea vista da Ragusa (1563–1591) (1985). 7 For the insurance ordinances in Barcelona in the 15th century, see Manuel J. Peláez, Cambios y seguros marítimos en el derecho catalán y balear (1984) 138. In idem, La legislación histórica barcelonesa de seguros marítimos en su proyección italiana, (1981) 1 Anuario de Derecho Marítimo 105–116, there is an analysis of the repercussions of these ordinances on Valencia, the Consulado in Burgos, and the French trade law of 1673. Moreover, according to this author, the Venetian laws of 1586, 1602, and 1624 served as a

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There was a generational leap until economic historians again tackled the subject of medieval and modern marine insurance, e.g. works by Frank C. Spooner on the Amsterdam market and by Franca Assante on Naples.8 Recent studies bring together the advances in the fields of history and economic history in the development of modern insurance, with the legal framework always taken into account. It would be impossible to cite everything published to date here, but nevertheless a sample can be found in the work recently edited by Leonard B. Adrian.9 In that volume, eleven authors compile the history of medieval and modern insurance as a financial instrument that provided merchants with protection and favoured the development of trade, following the institution from its 14 th century invention in Italy forward to the 19 th century. These authors, in their analysis of insurance activity, review the customs, laws, and organisational structures that developed from their Italian origins and spread by practice throughout Europe and America in the modern period. As well as Italy, they study private corporate structures and state intervention in the great European insurance centres – such as Amsterdam, Antwerp, London, and Cádiz. However, the recent historiography is still lacking with regard to one of the events that we consider fundamental for the development of the insurance business: the transition from a business that was dominated by individual insurers up to the 17th century to the commercialisation of insurance through joint-stock companies that began in the 18th century. Some works on small markets, such as a study looking at the island of Majorca, show that this transformation could have taken place already in the 17th century.10 This transformation did not only modify the insurance business but also entailed changes in insurance practice that clashed with contemporary legislation. The predominance of insurance companies on the insurance market led, for example, to a reduction in transaction costs by eliminating the role of intermediaries (notaries and brokers). However, the old ordinances which were still in force required that an insurance policy had be authorised by a notary. On the one hand, legislation thus needed to be adapted in order to reflect these changes. On the other hand, insurance practice and insurance policies simply deviated from, and ignored, the law in force. Examples include accepting total coverage of the value of the insured product, not having to present the charter party in the event of claims, or leaving the quantity, cost, and value of the insured merchandise blank. This evolution of mercantile customs, ___________ reference for Florence. Peláez points out that where the influence can really be detected is in the Sicilian and Neapolitan regulations. 8 Frank C. Spooner, Risks at sea. Amsterdam insurance and maritime Europe, 1766– 1780 (1983); Franca Assante, Il mercato delle assicurazioni marittime a Napoli nel settecento. Storia della ‘Real Compagnia’ 1751–1802 (1979). 9 Adrian B. Leonard (ed.), Marine Insurance. Origins and Institutions, 1300–1850 (2016). 10 Jerònia Pons, Companyies i mercat asegurador a Mallorca (1650–1715) (1996).

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without an accompanying modification of the legislation, must have led to complex problems when disputes between insurers and insured were brought before a court. In order to analyse these problems, the case law has to be studied by historians of both disciplines.

B. The industrial revolution and economic development: the expansion of the insurance business As shown in the contributions in this volume, fire, life, and death insurance were practised in a variety of forms prior to the 18 th century, especially based on the principle of mutuality. However, the great transformation of insurance activity with the growth of coverage, diversification, and specialisation was determined by the Industrial Revolution and the resulting increase in production, mass consumption, and marketing. In my view, two works by contemporary economic historians reflect the transformation generated by the insurance activity that arose from the new industrial economy: ‘Insuring the Industrial Revolution’ by Robin Pearson and ‘Betting on Lives’ by Geoffrey Clark,11 both of which are also included by John MacLeod in his chapter. Pearson and Clark identify the economic, social, cultural, and also legal moment at which the two most significant types of contemporary insurance started to expand. In the case of fire insurance, the relationship between insurance companies and their agents in the marketing of policies is highlighted and, even more importantly, the insurers’ risk control mechanisms. With respect to life insurance, Clark analyses how its prohibition was overcome and how it was transformed from a form of betting into a business based on a scientific methodology, a transformation that resulted in its subsequent expansion. In the 18th century, there was also a phenomenon that was to dominate the evolution of insurance business for an entire century, until well into the 19th century: the Bubble Act of 1720. The act restricted the creation of insurance companies in the form of stock companies. MacLeod highlights that it encouraged associations of individual insurers, such as Lloyd’s. The act influenced legislation in other European countries. Few countries permitted the creation of joint-stock companies without authorisation or privileges during the 18 th century, and in the 19th century many states prolonged their restrictions until well into that century. This legislation stimulated the creation of mutual insurance companies, with a long tradition being found in countries such as France or Spain (see the corresponding chapters in this book), not only as a way of providing sickness insurance coverage (friendly societies), but also for fire and life insurance. A large number of life insurance mutuals sprang up at a later date in non-European ___________ 11 Robin Pearson, Insuring the Industrial Revolution: Fire Insurance in Great Britain 1700–1850 (2004); Geoffrey Clark, Betting on lives: The Culture of Life Insurance in England, 1695–1775 (1999).

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countries, such as the United States or Australia. 12 The election of mutual forms was initially induced by the restrictive regulations on stock companies, but their use was prolonged due to many other factors. 13 The 19th century experienced a growth of insurance business; new insurance products were introduced, coverage was extended, new social groups bought insurance coverage, and further risks were covered. Above all, the spread of the insurance industry from Europe to the rest of the world was initiated with the globalisation of national economies in the 1880s. The expansion of multinationals, the agency system, and re-insurance was linked to the increase of trade flows, demographic growth, and cultural factors, all of which determined the rapid diffusion of insurance. The authors of the different chapters to the work ‘World Insurance: The Evolution of a Global Risk Network’ which is edited by Peter Borscheid and Niels Viggo Haueter analyse the evolution of insurance markets in some twenty countries at a global level and identify in all of these markets the key aspects of regulatory frameworks that have accompanied the economic and social transformations associated with insurance. 14

C. The regulatory models of the insurance business before 1914 Throughout the 19th century, as national insurance markets grew, insurance companies were developing their activities and considering the possibility of expanding their business into other markets. This expansion escalated from 1880 onwards with the first globalisation and with increasingly widespread trade and capital flows. During the entire century, different countries regulated the insurance operations of national and foreign companies in their territory. Pearson and Mikael Lönnborg15 provide numerous examples of certain countries demanding licences from companies in order to operate in the country, or requiring ‘proof of demand’ (Bedürfnis) if companies wanted to appoint additional agents (Prussia before 1859, Austria and Baden). Other countries prohibited reinsurance with

___________ 12 Peter Borscheid and Niels Viggo Haueter (eds.), World Insurance: The Evolution of a Global Risk Network (2012). The role of these mutuals can be seen through their history. For example, see S.B. Clough, A Century of American Life Insurance: A History of the Mutual Life Insurance Company of New York (1946); Monica Keneley, Business Strategies under Conditions of Uncertainty: The Rise of Mutual Life Insurers in Colonial Australia, in: Robin Pearson and Takau Yoneyama (eds.), Corporate Forms and Organizational Choice in International Insurance (2015), 169–192. 13 These factors have been studied by Pearson and Yoneyama (n. 12). 14 Peter Borscheid, Introduction, in: idem and Haueter (n. 12), 1–34. 15 Robin Pearson and Mikael Lönnborg, Regulatory regimes and multinational insurers before 1914, (2008) 82 Business History Review 59–86.

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unlicensed foreign companies: New York, Massachusetts, and Kansas in the 1870s. In other cases, company activity was limited to a single line of business. All these, and many more restrictions and demands, were incorporated into the regulatory regimes of European countries and the United States, which were then modified over time. On the basis of the information they have accumulated, Pearson and Lönnborg establish a very useful classification for regulatory approaches prior to 1914, which I imagine will also be beneficial to the comparative history of insurance law. Pearson and Lönnborg identify three models: the liberal model, the monitorial model, and the prohibitive model. States modified the adopted model on many occasions, with a general convergence towards monitorial systems in the early 20th century. The explanation for this convergence lies with the international standardisation underway at the time. The first model was developed in countries with a liberal tradition which did not establish state supervision or which had minimal regulation and taxation. This was the case of Belgium, France, Germany (some states before unification), Japan (1861–1900), the Netherlands (1880–1920), Spain (1829–1893), Sweden (until 1904), and Great Britain. Another group of countries opted for the monitorial model. This group contains countries that had standing insurance commissions or inspection departments. Furthermore, these countries had established general requirements for licences and deposits. This model includes a large number of countries that passed their first state legislation from the 1850s onwards: Canada (from 1854), Massachusetts, U.S.A (1855), Prussia from 1859 joined by Austria from 1873, Switzerland (from 1885), and then around 1900 Brazil, Denmark, Finland, France, Germany, Italy, Japan, Norway, and Spain. Finally, a prohibitive model is included for countries that excluded particular categories of foreign insurers or exercised strict bureaucratic or police controls over companies, agents, or policyholders, which made it difficult for certain operators to enter that market. This group includes Austria, Bavaria, Hanover, Hesse, Hesse-Darmstadt, the Netherlands, Prussia, Russia, Saxony, and Switzerland (until 1885). In most cases, these countries late abandoned the prohibitive model and adopted the liberal model (the Netherlands) or the monitorial model (Switzerland). The spread of insurance market regulations in Europe and other developed countries in the first decades of the 20th century was marked by the economic nationalism of the interwar period and the interest of states in protecting domestic markets from foreign capital, as well as the increasing desire of governments to collect taxes. These factors, along with monetary instability and increasing bureaucratic requirements for companies with regard to balance sheets, investments of deposits and reserves, etc., prompted the withdrawal of multinational companies from some markets.16 These findings by economic historians need to be ___________ 16

In the case of Spain, regulation of the sector after the law of 1908 had the effect of increasing deposit and reserve requirements for all companies. Growing bureaucratisation

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taken into account when analysing national legislative changes given that economic, political, and social factors are of special importance when explaining legislative reforms in insurance-related matters. These findings thus need to be observed when analysing the comparative legal history of insurance law in Europe. In conclusion, the works contained in this volume constitute an important contribution to the study of the history of insurance. They will become indispensable for economic historians, as well as for legal historians, and will help explain the institutional context of one of the key financial instruments in economic development. As Phillip Hellwege points out in his introductory chapter, this study is a starting point for current attempts to harmonise European insurance contract law. We economic historians of insurance are content that our work is useful for establishing the roots as well as the common and differentiating elements of the development of insurance and, along with the work of legal historians, contributes to the achievement of this goal.

___________ and tougher demands with respect to the destination of the reserves in Spanish public debt contributed to a withdrawal from the market by American and British companies that practised life insurance: Jerònia Pons, Multinational Enterprises and Institutional Regulation in the Life Insurance market in Spain, 1880–1935, (2008) 82 Business History Review 87–114.

Chapter 12: The Social Historian’s View By Bernard Harris This book is about the ways in which people use insurance to protect themselves against the adverse consequences of future events. It identifies a wide range of potential risks, including those associated with maritime travel, trade, fire and death, and explores the different kinds of legal and regulatory frameworks which existed to protect the interests of both insurers and insurees. It also covers a number of different kinds of insurance, including those provided by both mutual and commercial organisations. My own particular interests are associated most closely with the history of mutual organisations and social welfare more generally. I have therefore paid particular attention to the history of friendly societies and their relationship to the origins of the British welfare state.1 I have also used some of the statistics collected by these organisations to investigate long-term changes in sickness and morbidity.2 As I have already suggested, the primary function of insurance is to provide protection against future misfortune. However, both the offer of insurance and the decision to take out insurance pose risks of their own. The insurer wishes to protect themselves against ‘bad risks’ and the insuree needs to be confident that the insurer will be able to provide the protection they promise. Economic and social historians – in common with other students of insurance history – have characterised the risks associated with insurance under a number of headings, including those associated with information asymmetry, adverse selection, moral hazard, and correlated risk.3 Information asymmetry refers to situations in which one party – either the insurer or the insuree – possesses more ___________ 1

Bernard Harris, Social policy by other means? Mutual aid and the origins of the modern welfare state in Britain during the nineteenth and twentieth centuries, (2018) 30 Journal of Policy History. 2 Bernard Harris, Martin Gorsky, Aravinda Guntupalli and Andrew Hinde, Long-term changes in sickness and health: further evidence from the Hampshire Friendly Society, (2012) 65 Economic History Review 719–745. 3 Bruce Smith and Michael Stutzer, A theory of mutual formation and moral hazard with evidence from the history of the insurance industry, (1995) 8 Review of Financial Studies 545–577; Marco van Leeuwen, Historical welfare economics in the nineteenth century: mutual aid and private insurance for burial, sickness, old age, widowhood and

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information about the likelihood of an event than another. Adverse selection occurs when an insurer recruits too many ‘bad risks’, such as when a health insurer recruits too many clients whose health is already poor. The term moral hazard refers to circumstances in which an insured party is encouraged to behave in ways which increase the likelihood of the event they are insuring against. Risks are said to be correlated if there is a high probability of all insurees needing to claim at the same time. Many of the laws and regulations described in this book seem to have been designed to protect insurance organisations against these risks and, especially, against the risks associated with information asymmetry and moral hazard. 4 In early-modern Belgium, guild members had to serve a waiting period before qualifying for assistance and had to demonstrate that they merited their fellow-members’ aid.5 In Antwerp, an insuree had to confirm that the information provided in their insurance contract was correct and that no other arrangements had been made to insure the same items.6 They could only claim for insurance after loss if they were unaware of the loss when establishing the contract.7 In 17th-century Hamburg, individuals who contracted for fire insurance were also obliged to make suitable arrangements for fire prevention.8 In England and Germany, candidates for life insurance had to supply proof of both age and good health,9 and the Swedish Maritime Act of 1667 required all insured valuables to be properly itemised.10 Many of the preceding chapters have also highlighted the role played by medieval and early-modern guilds in providing insurance against such risks as fire, ill-health, ‘retirement’ and death. 11 These organisations declined during the 16th and 17th centuries, although it has often been argued that they provided a foundation for the emergence of a new kind of mutual organisation – the friendly society – in the 18th and 19th centuries.12 Friendly societies offered insurance

___________ unemployment in the Netherlands, in: Bernard Harris and Paul Bridgen (eds.), Charity and mutual aid in Europe and North America since 1800 (2007), 89–130. 4 Above Heirbaut, 106. 5 Above Heirbaut, 96. 6 Above De ruysscher, 124. 7 Above De ruysscher, 118, 128. 8 Above Hellwege, 143 f. 9 Above Hellwege, 190–195. 10 Above Sunnqvist, 215 f. 11 Above Hellwege, 13; Delbrel, 55 f.; Morales Payán, 71–73; Heirbaut, 94–101; Hellwege, 146; idem, 175–178; Sunnqvist, 222 f. 12 E.g. Joseph Maria Baernreither, English associations of working men (1889), 158.

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against the ‘social’ risks of sickness, old age and death.13 Similar organisations also developed in other parts of Europe, including sociétés de secours mutuels (in France),14 Hilfskassen (in Germany),15 and società di mutuo soccorso (in Italy).16 As membership organisations, British friendly societies introduced a wide range of rules to govern their members’ access and behaviour. For example, one of the largest societies, the Ancient Order of Foresters, threatened to expel any member who divulged any of its secrets, ‘and most especially the grip, password, sign, countersign or travelling [password]’. 17 The Foresters suspended any member who ‘attempt[ed] to defraud a fellow-member’ and expelled members who were convicted of a felony.18 They also sought to protect themselves in other ways. They denied membership to anyone who was ‘unhealthy, of bad character, lives an idle or dissolute life, frequents bad company, is guilty of excess drinking, or is of a quarrelsome behaviour’. 19 They also debarred applicants from joining before the age of 18 and charged higher fees to applicants over the age of 37. 20 They protected themselves against the risk of over-insurance by prohibiting dual membership.21 Other friendly societies introduced rules which were designed to limit liability and reduce ‘avoidable’ claims. The Hampshire Friendly Society, a so-called ‘patronised’ society,22 excluded married women and limited the benefits paid to unmarried women and widows to a maximum of ten shillings a week or less than their average earnings, with no provision for ‘any sickness connected with pregnancy or childbearing’. It operated a waiting period of six months and denied sickness benefits to any member who was suffering from a disease or infirmity ___________ 13 Bernard Harris, The origins of the British welfare state: society, state and social welfare in England and Wales, 1800–1945 (2004), 79–84. 14 Allan Mitchell, The function and malfunction of mutual-aid societies in nineteenthcentury France, in: Jonathan Barry and Colin Jones (eds.), Medicine and charity before the welfare state (1991), 172–189. 15 Peter Hennock, The origin of the welfare state in England and Germany, 1850–1914: social policies compared (2007), 151–165. 16 Paolo Tedeschi, A new welfare system: friendly societies in the Eastern Lombardy from 1860 to 1914, in: Bernard Harris (ed.), Welfare and old age in Europe and North America (2012), 65–88. 17 General Laws for the Government of the Ancient Order of Foresters (1846), Rule 12. 18 General Laws (n. 17), Rule 15. 19 General Laws (n. 17), Rule 16. 20 General Laws (n. 17), Rule 18. 21 General Laws (n. 17), Rule 20. 22 ‘County’ or ‘patronised’ societies were established in a small number of southern English counties at the end of the Napoleonic Wars and were usually run by members of the clergy or local gentry. See Eric Hopkins, Working-class self-help in nineteenth-century England (1995), 15.

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which had been concealed at the time of admission. It also disallowed claims which could be attributed to ‘any disease or injury contracted by profligacy, drunkenness, quarrelling, or any act contrary to law’, and reserved the right to remove benefits from any members who behaved inappropriately whilst claiming sick pay by doing any work, attending a public house or beer shop, or ‘be[ing] from home later than half an hour after sunset or before sunrise, without the consent of the Medical Officer’.23 Although there are references to friendly societies from the late-17th century onwards, the earliest legislation appears to date from the mid-18th century. An Act of 1757 required coalheavers working on the River Thames to join a society run by the City of London, and the Friendly Societies Act of 1792 attempted to impose a similar obligation on shippers and keelmen employed in the coal trade on the River Wear. These measures were designed to reduce the likelihood that such men might become a charge on the Poor Law and were criticised as a form of unfair taxation.24 Subsequent legislation was more concerned to provide a legal basis for the societies’ own regulations, grant exemptions from certain taxes, and enable them to borrow at preferential rates of interest. These later Acts also led to the gradual creation of a national system of registration, culminating in the appointment of a Registrar of Friendly Societies in 1846.25 Although friendly societies were insurance organisations, they also performed an important cultural role. They introduced membership rituals, invented ‘mythical’ histories for themselves and provided members with a rich social life. 26 These features were also designed to cement the bonds of trust which existed between members and thereby acted as a further disincentive to various forms of abuse or malingering.27 However, by the end of the 19th century, the attractions of this kind of membership were beginning to fade, and the societies faced increasing competition from more impersonal and commercially-minded organisations, such as deposit societies and industrial insurance companies. 28 The history of the friendly societies therefore provides a good illustration of the different ways in which individuals have sought to protect themselves against ___________ 23 Hampshire Friendly Society, Rules 1868 (Hampshire Record Office, 18M89/4/3). See especially Rules 43, 46. 24 Peter Gosden, The friendly societies in England, 1815–75 (1961), 5 f. 25 Baernreither (n. 12), 302–337. 26 See e.g. Daniel Weinbren, Beneath the all-seeing eye: fraternal order and friendly societies’ banners in nineteenth and twentieth century Britain, (2006) 3 Cultural and Social History 167–191. 27 Martin Gorsky, Mutual aid and civil society: friendly-societies in nineteenth-century Bristol, (1998) 25 Urban History 302–322, 321. 28 Timothy Alborn, Senses of belonging: the politics of working-class insurance in Britain, 1880–1914, (2001) 73 Journal of Modern History 561–602.

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different kinds of risk over time. During the 20 th and 21st centuries, their role diminished in the face of competition from both commercial and statutory welfare providers. However, many of the challenges faced by the societies, such as the need to establish rules of access and entitlement and protect the interests of both insurers and insurees, remained.

List of Contributors Dave De ruysscher is Professor of Legal History at Tilburg University, the Netherlands, and at the Vrije Universiteit Brussel, Belgium. Sophie Delbrel is Associate Professor of Legal History at the University of Bordeaux, France. Maura Fortunati is Associate Professor of Medieval and Modern Legal History at the University of Genoa, Italy. Bernard Harris is Professor of Social Policy and Head of the School of Social Work and Social Policy at the University of Strathclyde, Scotland. Dirk Heirbaut is Professor of Legal History at the University of Ghent, Belgium. Phillip Hellwege is Professor of Private Law, Commercial Law, and Legal History at the University of Augsburg, Germany. John MacLeod is a Lecturer in Commercial Law at the University of Glasgow, Scotland. Miguel Ángel Morales Payán is Professor of Legal History at the University of Almería, Spain. Jerònia Pons Pons is Professor of Economic History at the University of Seville, Spain. Martin Sunnqvist is Adjunct Senior Lecturer in Legal History and Civil Procedural Law at the University of Lund, Sweden.

Index Åbo 212 Accident insurance 58, 64, 87, 184, 189 Actuarial science 46, 58, 64 Adrian, Leonard B. 234 Adverse selection 239 AG (Fortis) 89 Agricultural insurance 58, 64, 85, 108, 182 Aire 91 Albion Fire and Life Insurance Company 191 Algemene Spaar- en Lijfrentekas van België 89, 104 Allgemeines Landrecht für die Preußischen Staaten 184, 196 Allmänna änke- och pupillkassan 219 Allmänna brandförsäkringsfonden 211 Allmänna brandförsäkringsverket 212 Alm. Brand 213 Alsace-Lorraine 65 Alsace-Moselle 62, 63, 65, 229 Altona 208, 210 Amicable Society 189 Amsterdam 53, 129, 136, 145, 214, 217, 234 Amsterdam Ordonnantie van Assurantie en Avaryen 138 Ancient Order of Foresters 241 Ancona 53 Angevin Empire 53 Ansaldi, Ansaldo (1651–1719) 34 Antwerp 53, 101, 102, 106, 73–81, 144, 158, 159, 160, 173, 215, 234, 240 Aragon 69, 74, 80, 82 Arbitration 155 Assante, Franca 234 Assecuranz- und Haverey-Ordnung 173

Assekuranz- und Havarie-Ordnung für die Königlich-Preußischen Staaten 173 Assicurazioni Generali 39 Assurance Chamber 158, 159, 160 Assurance Companies Act 1909 168 Assurance for Widows and Orphans 189, 192 Assurancekammerretten 217 August of Sachsen-Gotha-Altenburg 181 Aunós, Eduardo (1894–1967) 71 Austria 40, 88, 236, 237 Azuni, Domenico Alberto (1749– 1827) 42 Bad debts insurance 70, 80 Baden 236 Baldasseroni, Ascanio (1751–1824) 36, 225 Baldasseroni, Pompeo (1743–1807) 43 Baltic Sea 174 Ban of life insurance 163 Banco Vitalicio 87 Barcelona 53, 69, 72, 73–74, 75, 78, 79, 83, 84, 85, 87 Barrau, Bernand (1767–1843) 55 Bas-Rhin 62 Baumann, Christian Jacob 146 Bavaria 237 Begging 177, 208 Belgium 18, 21, 38, 56, 58, 59, 89– 132, 135, 136, 138, 148, 195, 225, 227, 228, 237, 240 Bensa, Enrico (1848–1931) 233 Bergander, Bengt 201, 212 Bergen 207, 216 Bergues Saint-Winoc 93 Berlin 191 Bern 65 Betting 26, 41, 47, 54, 119, 135, 144, 145

Index Bilbao 69, 74–76, 77, 78, 85, 117 Bismarck, Otto von (1815–1898) 65, 184 Boiteux, Louis-Augustin 233 Bonolis, Guido 233 Borås 211, 212 Bordeaux 117 Bornhøved 210 Borscheid, Peter 236 Bosco, Bartolomeo (1350?–1437?) 34 Bottomry 153 Bourbourg 93 Brabant 95 Brandförsäkringsverket 213 Brandkontoret 213 brandstod 204–7 Braun, Heinrich (1878–1949) 146 Braunschweig-Lüneburg 179 Brazil 237 Bruges 75, 110, 113, 114, 116, 117, 118, 122, 126, 161 Brulez, Wilfrid (born 1927) 110 Brussels 111, 121, 125, 129 Bubble Act of 1720 167, 168, 235 Bureau Veritas 56, 130 Burgos 69, 74–76, 76, 77, 78, 82, 117, 122, 161 Burgundy 135 Cádiz 77, 84, 234 Caisse d'épargne 56 Cambon, Pierre-Joseph (1756–1820) 55 Cambre impériale et royale d'assurance aux Pay-Bas 126 Campagnie d'assurances générales contre l'incendie 56 Canada 237 Candler, Richard 160 Carlo Alberto 39 Cartagena 117 Casa de Contratación 75 Casaregi, Giuseppe Lorenzo Maria (1670–1737) 34 Cassandro, Giovanni (1913–1989) 31, 32 Castile 53, 76, 86, 113, 115, 118, 122 Catalonia 76, 80, 84, 86, 113 Chalmers, Mackenzie (1847–1927) 169 Chambre impérial et royale d'assurance aux Pays-Bas 107

247 Chambre of insurance (Bruges) 113 Chancery 158 Charlemagne 91 Charles V 101, 118 Charles XI 206 Charte de la mutualité 60 Chaufton, Albert (1845–1923) 46, 51, 59, 64 Cheysson, Emile (1836–1910) 58, 60 Christiania 209, 211 Clark, Geoffrey W. 154, 167, 235 Clavière, Étienne (1735–1793) 54 Cleirac, Estienne (1583–1657) 53 Clemence of Burgundy 91 Cobden-Chevalier Treaty 59 Code civil 56, 104, 109 Code de commerce 43, 57, 105, 112, 127, 128, 130, 131 Code de la Sécurité sociale 48 Codice civile 39 Codice di commercio 38 Colbert, Jean-Baptiste (1619–1683) 50, 54 Comité d'histoire de la Sécurité Sociale 50 commenda 33, 81, 153 Commercial Code (Spain) 69, 74, 85 Compagnia di Assicurazioni Generali 39 Compagnia di assicurazioni marittime 41 Compagnie d'assurance de la Flandre Autrichienne 108, 126 Compagnie d'assurances générales 59 Compagnie d'assurances générales maritimes 56 Compagnie d'assurances générales sur la vie des hommes 56 Compagnie d'assurances réunies 129 Compagnie de l'Union belge et étrangère 129 Compagnie royale d'assurances sur la vie 54 Companhia das naus 76, 78 Comparative legal history 10–11, 33, 63, 133, 147, 148, 194, 203, 221, 223, 224 Concept of insurance 12, 25, 30, 34, 45, 46 Condition precedent 20

248 Congrès international des accidents du travail et des assurances sociales 64 Consolat de Mar 53, 74, 232 Consumer Insurance (Disclosure and Representations) Act 2012 164 Contract of insurance 13, 15, 16, 19, 22, 25, 26, 28, 29, 31, 32, 33, 36, 83, 104, 133, 134, 135, 172, 173 Copenhagen 209, 210, 216 Correlated risk 239 Corvetto, Luigi Emanuele (1756– 1821) 43, 57 Courcy, Alfred de (1816–1888) 59 Court of Admiralty 158 Court of Aldermen 158 Cuba 84 Customs of insurance 28, 33, 34, 37, 40, 101, 144, 148, 173, 194, 225, 228 Damme 114 Danish National Archives 201 De Groote, Henry (1900–1986) 110 De Moucheron, Henrik (1612–1670) 214 De Roover, Florence Edler 233 Décret d'Allarde 55, 100 Denis 77 Denmark 200, 201, 202, 203, 204, 207, 209, 210, 211, 213, 214, 215, 217, 218, 219, 221, 222, 228, 237 Deparcieux, Antoine (1753–1799) 54 Despars, Nicolas (1522–1597) 113 Det frugtbringende Selskab 218 Deutscher Verein für Versicherungswissenschaft 24 Ditmarsken 205 Doctrinal history of insurance law 11 Doria, Andrea (1466–1560) 35 Dormer, James (1708–1758) 107, 126 Dowry insurance 44, 90 Draft insurance 85, 109 Duty of disclosure 24, 189 Duvillard, Emmanuel-Étienne (1755– 1832) 54, 60 Economic history 12 Edinburgh 149 Ehrenberg, Viktor (1851–1929) 14, 185 Eiderstedt 205 El seguro mallorquín 87

Index Elbmarsken 205 Emerigon, Balthazard-Marie (1716– 1785) 36, 50, 225, 232 England 12, 13, 18, 20, 21, 25, 53, 54, 56, 64, 75, 78, 90, 104, 115, 135, 148, 149–69, 172, 180, 181, 189, 192, 193, 195, 196, 226, 227, 228, 240 Equitable Life Assurance Society 54, 189, 190 Færden, Karl (1882–1977) 201 familiaritas 70–71 Fédération Française de l'Assurance 49 Fédération nationale de la mutualité française 59 Ferdinand I 78 Fernando VII 85 Ferrufini, Giovanni Battista (died around 1562) 120, 121 Finansinspektionen 221 Finanstilsynet 221 Finland 200, 211, 237 Fire contract 138, 143, 175, 176, 177, 178, 186, 187, 194, 227 Fire help 204–7, 221 Fire insurance 13, 18, 21, 33, 54, 55, 64, 84, 86, 87, 90, 91, 92, 93, 94, 106–8, 106–8, 109, 134, 106–8, 148, 151, 162, 165, 166, 174, 175, 177, 180, 181, 182, 186, 187, 195, 202, 106–8, 222, 224, 227, 228 Fire prevention 240 Flanders 12, 74, 75, 78, 92, 93, 95, 103, 138, 205, 223, 226, 227 Flensburg 219 Florence 30, 44, 74, 78, 113, 115, 117, 118, 120, 123, 157 foenus nauticum 26, 33, 172 Försäkrings- och haveri-stadga 216 Forsikringsrådet 221 Forsikringstilsynet 221 Forte, Angelo (1949–2012) 150 France 13, 18, 21, 36, 38, 40, 41, 43, 45–66, 72, 75, 78, 87, 100, 105, 108, 109, 112, 116, 117, 118, 120, 127, 131, 148, 195, 223, 224, 225, 227, 228, 229, 232, 237, 241 Frankot, Eddy 114 Fraternity 72, 92, 174, 226 Frederick III 218

Index Frederick IV 181 Fredrikshald 209 Freedom insurance 40, 41, 42, 43, 54, 103 Friendly Societies Act 242 Friendly society 57, 151, 154, 157, 168, 235, 239, 240, 242 Friendly Society for Insuring Lives 189 Funeral costs 98, 146, 174, 189 Funeral fund 146 Funeral insurance 144–47, 148 Furnes 94 Fyn 210 Gambling 47, 163 Gaming 135 General Feur-Cassa 142, 178, 187, 194, 195, 208, 222, 227 General Juan Prim (1814–1870) 86 General Narvaez (1800–1868) 85 Genoa 30, 34, 35, 37, 39, 43, 53, 73, 74, 78, 113, 115, 225, 232 Germany 12, 18, 19, 20, 21, 22, 23, 25, 62, 65, 105, 109, 117, 138, 146, 148, 171–97, 201, 215, 226, 227, 228, 229, 237, 240, 241 Ghent 111 Go, Sabine 146 Goldschmidt, Levin (1829–1897) 15, 185, 186, 227 Goris, Jan (1899–1984) 110 Gotha 219 Gothenburg 211, 217 Grágás 204 Great Britain 237 Great Fire of Copenhagen (1728) 209 Great Fire of London (1666) 13, 161, 166, 178, 195, 208, 221 Groningen 136, 146 Guidon de la mer 53, 161 Guieysse, Paul (1860–1914) 58 Guilds 12, 13, 18, 22, 26, 32, 54, 55, 57, 69, 71–73, 91, 71–73, 106, 137, 138, 145, 146, 147, 148, 166, 71– 73, 174, 176, 180, 185, 186, 187, 188, 194, 71–73, 219, 221, 226, 227, 229, 240 Haarlem 146 Haderslev 210 Hail insurance 39, 64, 180, 182 Hainaut 92

249 Halden 209 Halley, Edmund (1656–1742) 167 Hamburg 13, 135, 138, 142, 143, 172, 173, 175, 176, 177, 178, 186, 187, 194, 195, 208, 212, 217, 222, 227, 240 Hamon, Georges (1855–1942) 46, 51, 59 Hampshire Friendly Society 241 Handelsgesetzbuch 217 Hanover 237 Harjager 219 Harmonization of European insurance contract law 16, 20 Härnösand 217 Harvest insurance 108 Haueter, Niels Viggo 236 Hazebrouck 93, 94 Health insurance 60, 61, 62, 63, 96, 144–47, 174, 176, 184, 189 Heers, Jacques 233 Herstal 91 Hertel, J.J. 219 Herzoglich-Würtembergische Ordnung für die allgemeine freywillige Wittwen- und Waysen-Cassa 192 Hesse 237 Hilfskassen 241 Holland 145, 146 Holstein 200, 209 Holthöfer, Ernst 90 Hospice 97, 98 Husesynsordning 206 Huys, Emiel 95 Ibbetson, David 158 Iceland 200, 204, 205 Indemnity insurance 163 Indemnity, principle of 162, 163 Industrial Revolution 235 Information asymmetry 239 Insurable interest 41, 162 Insurance Act (Spain) 88 Insurance Act 2015 164 Insurance brokers 81 Insurance Contract Law Act (France) 63 Insurance covering transport over land 101 Insurance regulation 63, 69, 74, 85, 134, 184, 221 Interdisciplinary research 12, 23

250 Interest or no interest 163 Internationally active insurers 19, 22 Invalidity insurance 62 Isabella II 86 Italy 12, 13, 21, 27–44, 52, 75, 90, 117, 120, 133, 153, 157, 161, 169, 173, 225, 228, 232, 233, 237, 241 ius commune 10–11, 17, 19, 35, 36, 197 Japan 237 Joint Stock Companies Act 1856 59 Jönköping 211 Jørgensen, J.O. Bro (1902–1988) 201, 204, 205, 219, 222 Joseph II 99 Jourdain, Paul (1878–1948) 62 Jutland 210 Kalmar Union 200 Kalvehave 207 Kameralismus 178, 210, 228 Kansas 237 Karlskrona 211 Kinda 207 Klingenberg, Poul (1615–1690) 218 Københavns brandforsikring 209 Købstædernes forsikring 210, 213 Koch, Peter 177, 179 Kock, Henrik 216 Königlich Preußische Allgemeine Witwen-Verpflegungs-Anstalt 193 Königlich-Preußisches See-Recht 173 Kungl. Försäkringsinspektionen 221 La Balear 87 La Catalana 86, 87 La Torre, Antonio 32 La Unión y El Fénix 87 Landbygningernes almindelige brandforsikring 210, 213 Legislation in insurance law 19, 29, 33, 37, 40, 53, 68, 74, 78, 105, 119, 127–32, 136, 183, 196, 127–32, 217, 225, 231 Leibniz, Gottfried Wilhelm (1646– 1716) 178 Leipzig 179 Les Propriétaires réunis 90 Liability insurance 64, 109 Liège 95 Life annuity 44, 59, 103, 146, 147, 148, 182, 186, 195, 226 Life Assurance Act 1774 163

Index Life insurance 13, 18, 21, 24, 38, 40, 41, 42, 43, 47, 52, 54, 55, 56, 57, 58, 59, 60, 64, 70, 80, 87, 101–6, 109, 101–6, 149, 151, 154, 155, 163, 165, 174, 176, 177, 179, 180, 182, 186, 187, 189, 195, 101–6, 224, 227, 228, 240 Life Insurance Company of Scotland 149 Ligue nationale de la prévoyance et de la mutualité 59, 60 Liguria 30 Lima 77 Linköping 207 Livestock insurance 33, 55, 92, 94, 109, 180, 182, 204 Livorno 36 Lloyd’s 86, 130, 149 Loi Le Chapelier 55, 100 Lombardy 40 London 13, 118, 130, 149, 157, 159, 161, 166, 167, 178, 181, 187, 195, 208, 221, 234, 242 London Assurance Corporation 166 London Code 160, 165 London Mayor’s Court 158 Lönnborg, Mikael 202, 236 Lorange, K. (1879–1947) 201, 205, 222 Lord Mansfield (1705–1793) 160, 161, 164 Louis XIV 54 Louis XVI 54 Louis XVIII 57 Lucca 74 Luggude 212 Maatschappij van Assurantie 137 Mabileau, Léopold (1853–1941) 59 Madrid 84, 85, 87 Magdeburg 179 Magnus Eriksson 200, 205 Majorca 73, 74, 78, 80, 234 Malaga 85, 87 Malmö 207, 217 Marez, Guillaume Des (1870–1931) 95 Margaret I 200 Marine Insurance Act 1745 163 Marine Insurance Act 1906 153, 156, 164, 169 Maritime Act (Norway) 217

Index Maritime Act (Sweden) 216, 217, 240 Maritime insurance 12, 13, 17, 18, 21, 22, 29, 30, 33, 42, 47, 51, 52, 53, 57, 59, 63, 69, 72, 73–81, 82, 83, 85, 87, 101–6, 109, 73–81, 73–81, 135, 137, 138, 140, 141, 142, 143, 144, 147, 151, 152, 153, 157, 162, 163, 165, 168, 73–81, 180, 182, 186, 187, 188, 194, 195, 196, 211, 73–81, 222, 223, 224, 225, 227 Maritime Insurance Act 1746 217 Marrè, Gaetano (1771–1825) 43 Mary of Hungary 122 Masons, Bartolomé 74 Massachusetts 237 Masson, Paul 233 Maternity 62, 63 Mathiesen Leers, Johan 216 Mazarrón 117 Maze, Hippolyte (1839–1891) 60 Mechelen 111, 125 Mediterranean 12 Meesen 93 Melis, Federigo (1914–1973) 29, 233 Mercantile insurance 12, 13, 46, 47, 48, 49, 51, 56, 57, 58, 59, 60, 61, 63, 64, 69, 73–81, 110, 134, 137, 147, 172, 180, 182, 185, 194, 223 Mercantilism 178, 210, 228 Messina 74 Meurthe 65 Mexico 77, 84 Middelburg 116 Milan 30 Millar, John (1760–1795) 151, 155, 160 Millerand, Alexandre (1859–1943) 66 Mirabeau (1749–1791) 55 montepíos 73 Monti delle Doti 44 Moral hazard 239 Morel, August (1803–1865) 130 Mortuary tontines 154 Munster Treaty 124 Mutual assistance 91–101, 174, 175, 205, 221, 223, 226, 227 Mutual insurance 14, 29, 44, 54, 55, 56, 60, 61, 63, 64, 65, 69, 71–73, 84, 85, 91, 113, 134, 136, 139, 141, 144, 145, 146, 148, 180, 182, 185, 207, 225

251 Mutuality, principle of 32, 44, 46, 48, 57, 59, 60, 73, 213 Nadaud, Martin (1815–1898) 61 Naples 30, 34, 74, 80, 234 Napoleon I (Bonaparte) 56, 57, 63 Napoleon III 57 Navarre 86 Netherlands 12, 13, 21, 104, 105, 107, 109, 112, 114, 117, 120, 127, 129, 133–48, 157, 161, 172, 173, 175, 194, 214, 216, 222, 226, 227, 228, 237 New York 237 Niekerk, Johan P. van 110, 133, 134, 135, 136, 137, 141, 142, 143, 145, 224 Noord-Holland 137, 146 Norges brannkasse 211, 214 Norway 200, 201, 202, 205, 207, 208, 209, 211, 214, 215, 216, 219, 221, 222, 237 Norwegian Insurance Association 201 Nueva Planta 76 Obliegenheit 20 Occupational disability 62, 63 Occupational disability insurance 189 Officersenkekassen 219 Oléron 53 Onsjö 212 Ordinanze Barcellonesi 34, 37 Ordonnance de la marine 54, 57, 127, 128 Ordonnance du commerce 54, 128 Ordonnantie van Assurantie en Avaryen 145 Orphan 54, 97, 99, 104, 146, 176, 179, 189, 195, 219, 222, 226 Oslo 209, 211 Östergötland 204, 205 Ottarp 212 P & V 90 Pardessus, Jean-Marie (1772–1853) 233 Paris 39, 54, 55, 56, 63, 64, 225 Pascal, Blaise (1623–1662) 54 Pearson, Robin 235, 236 Pension scheme 56, 60, 62, 96, 104, 146, 179, 184, 186, 189, 227 Perrin, Guy (1926–1992) 50 Peru 77 Pfarr-Wittwen-Kasten 179

252 Philip of Alsace 91 Philip of Burgundy 115 Philip V 76 Phoenix Assurance Company 151, 181, 195, 212 Pichille, Jérôme 106 Piedmont 120 Pinneberg 210 Piracy 41 Pisa 74 Policy of insurance 37 Ponfick, Friedrich 179 Portugal 12, 21, 53, 75, 76, 77, 82, 113, 186 Pouilloux, Didier 49 Practices of insurance 28, 30, 33, 34, 35, 37, 40, 120, 121, 127–32, 128, 132, 133, 140, 144, 148, 173, 194, 196, 225, 228, 231 Premium insurance 25, 32, 47, 93, 113, 117, 134, 136, 137, 138, 145, 188, 225 Previsión española 87 Price, Richard (1723–1791) 54 Principles of European Insurance Contract Law (PEICL) 17, 25 Pringsheim, Otto 145 Privateering 119 Privy Council 158 Provident Institution for the Insurance of Lives and the Grant and Purchase of Annuities 191 Prussia 88, 173, 184, 193, 196, 205, 236, 237 Pruynen, Christopher (died around 1568) 126 Quételet, Adolphe (1796–1874) 58 Rantzau 210 Rawlings, Philip 162 Raynes, Harold E. 151, 153, 165 Reatz, Charles 134 Reichsversicherungsordnung 66 Re-insurance 64, 229 Reversionary annuity 154 Riga 215 Robert II (Flanders) 91 Rocco, Francesco (1629–1706) 34 Rock Life Assurance Company 190 Rôle d'Oléron 53, 114 Roman law 28, 31, 135 Rönneberg 212

Index Rönnebergs m.fl. härads brandstodsbolag 212 Rossi, Guido 150, 156, 157, 158, 160, 161 Rota Civile 35, 225 Rotterdam 136, 137, 139, 143, 145 Rouen 53, 161 Royal Exchange Assurance Corporation 166 Rumeu de Armas, Antonio (1912– 2006) 71, 72 Russia 88, 200, 237 Salamanca 72 Salvioli, Giuseppe (1857–1928) 28 Santerna, Pedro de (1460–1521) 80 Santiago de Compostela 72 Sardinia 39, 42 Savoy 39 Saxony 177, 237 Saxony-Merseburg 177 Say, Léon (1826–1896) 59 Scaccia, Sigismondo (1564-1634) 34 Scandinavia 21, 175, 199–222, 226, 227 Scania 200, 204, 206, 207, 219 Scanian law book 204 Scheldt 123, 124, 125, 129 Schleswig 200, 209, 219 Schleswig-Holstein 138, 175, 176, 177, 186, 205, 227 Schöpfer, Gerald 179 Scotland 21, 118, 149–69 Scottish Provident 149 Scottish Widows’ Fund and Life Assurance Society 149 Sealand 210, 219 Securitas 89 Seville 74–76, 76, 77, 78, 81, 82, 87, 123, 161 Sicily 74, 80 Sienna 74 Sjöförsäkringsöverrätten 217 Sjölagen 214 Skanör 207 Slavery 40, 70, 80–81 Sluis 113, 114 Søassurancekompagniet 216 Social insurance 46, 64–65, 49, 51, 62, 63, 64–65, 65, 71, 72, 73, 84, 95, 101, 183, 184, 223, 224, 229, 231

Index Social welfare 239 Società di mutuo soccorso 241 Société Générale 129 Societeit van Levensverzekeringen 147 Sociétés de secours mutuels 57, 241 Söderberg, Tom (1900–1991) 201, 204, 207, 209, 214, 215, 216, 219, 222 Solidarity, principle of 48 Soria 72 Sorø 219 Spain 21, 53, 67–88, 103, 116, 120, 121, 123, 223, 224, 226, 228, 237 Speculative element 79, 119 Spooner, Frank C. 234 Städernas allmänna brandstodsbolag 212, 213 Standard contract terms 18, 19, 22, 37, 38, 39, 101, 120, 123, 126, 130, 148, 195, 228 Standard Life Aberdeen plc. 149 State-run insurance 12, 13, 19, 25, 48, 77, 108, 137, 177–80, 180, 186, 187, 194, 195, 196, 210, 214, 228 Stefani, Giuseppe 233 Sterbe-Kasse 191 Steuart, M.D. 151 Stiftelsen för bebyggelsehistorisk forskning 213 Stockholm 202, 211 Stols, Eddy (born 1938) 110 Stracca, Benvenuto (1509–1578) 34 Süderau 175 Suicide 37, 228 Sun Fire Insurance 167, 181 Sunnhordland 207 Svenska sjöassuranskompaniet 216 Sweden 200, 201, 202, 204, 206, 207, 208, 211, 212, 213, 214, 215, 216, 217, 218, 219, 221, 222, 228, 237, 240 Switzerland 88, 237 Targa, Carlo (1614–1700) 34, 232 Tenenti, Alberto 233 Theft insurance 64 Thomsen, Alfred (1892–1960) 201 Tonti, Lorenzo (1602–1684) 18, 195, 218, 227

253 Tontine 18, 43, 47, 52, 56, 58, 61, 86, 103, 146, 147, 148, 168, 179, 183, 186, 195, 218, 222, 226 Toulouse 55 Transport insurance 39, 102 Trebilcock, Clive 151 Trenerry, Charles 90, 92, 94, 138, 144, 226 Treppo, Mario del 233 Trieste 30, 39 Trygg-Hansa 213 uberrimae fidei 149, 164 Uddevalla 212 Unemployment insurance 60, 62 United Kingdom 58, 87, 109, 222, 239 United States of America 87 Valencia 80, 86 Valenciennes 92 Van de Ryck, Jan 106 Västanstång 207 Västmanland-Dalarna 204, 205 Veneto 40 Venice 74, 113, 216 Veracruz 77, 84 Veritas 130 Versicherungsaufsichtsgesetz 184 Versicherungsvertragsgesetz 184 Verwer, Adriaan (1655–1717) 127 Veurne 93 Vittorio Amedeo III 42 Vlissingen 116 Vrijwillige Dood-bos 146 Wagering 162 Wassenaer, Cornelis van 107 Way of St. James 72, 226 Welfare state 231 Welfare, public 26, 29, 32, 44, 45, 178 Wesmann Foundation 200, 203 Wesmann, Johan (1870–1941) 199 Widow 54, 97, 98, 104, 146, 148, 176, 179, 189, 195, 219, 222, 226 Wiederholtes Verboth aller und jeder Collecten, wozu keine Königl. Approbation ertheilet ist 184 William I 104, 129 Work accident 61, 109 Württemberg 192 York-Antwerp Rules 132 Zaanstreek 137, 139, 141, 142, 143, 146, 227 Zwierlein, Cornel 187, 188, 194