Principles of European Insurance Contract Law (PEICL) [2nd rev. ed.] 9783504384753

Citation preview

Principles of European Insurance Contract Law (PEICL)

s |e| l | p

sellier european law publishers

Principles of European Insurance Contract Law (PEICL) 2nd Expanded Edition

Edited by

Jürgen Basedow • John Birds • Malcolm Clarke Herman Cousy • Helmut Heiss • Leander Loacker Prepared by the Project Group

Restatement of European Insurance Contract Law Chairman: Helmut Heiss

The Deutsche Nationalbibliothek lists this publication in the Deut­sche Na­tio­nalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. Verlag Dr. Otto Schmidt KG Gustav-Heinemann-Ufer 58, 50968 Köln Tel. +49 221 / 9  37  38-01, Fax +49 221 / 9  37  38-943 [email protected], www.otto-schmidt.de ISBN (print)  978-3-504-08002-0 ISBN (eBook)  978-3-504-38475-3

© 2016 by Verlag Dr. Otto Schmidt KG, Köln All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior per­mis­sion of the publisher. The paper used is made from chlorine-free bleached materials, wood and acid free, age resistant and environmentally friendly. Typesetting: fidus Publikations-Ser­­­vice GmbH, Nördlingen Printing and binding: Friedrich Pustet, Re­gens­burg Printed in Germany.

Preface to the Second Edition This volume contains an expanded and partly updated version of the “Principles of European Insurance Contract Law (PEICL)” produced by the Project Group “Restatement of European Insurance Contract Law”. While the first edition published in 2009 essentially dealt with rules applicable to all classes of insurance, this edition also includes provisions on liability insurance, life insurance and group insurance. The overall draft of the PEICL is now ready for political consideration by the institutions of the European Union in view of eventual legislation. We owe thanks to the publisher, sellier european law publishers Munich, for high quality service in the production of the present book. We also want to express our gratitude to Ms. Mandeep Lakhan and Mr. Sascha Drobnjak for their valuable support. Finally, we want to thank the translators of the PEICL for their very helpful contribution to the further dissemination of our draft. Cambridge, Hamburg, Innsbruck, Leuven, Sheffield, Zurich December 2014

Jürgen Basedow John Birds Malcolm Clarke Herman Cousy Helmut Heiss Leander D. Loacker

v

Preface to the First Edition This volume contains the “Principles of European Insurance Contract Law (PEICL)” produced by the Project Group “Restatement of European Insurance Contract Law”. The Project Group started its work in September 1999. It joined the European Network of Excellence on European Contract Law (CoPECL), which was set up by the European Commission in 2005, and drafted its Principles as a contribution to the Common Frame of Reference of European Contract Law. However, the PEICL go beyond a Frame of Reference and are intended to provide a Draft Optional Instrument of European Insurance Contract Law. The founding father and first chairman of the Project Group, the late Professor Fritz Reichert-Facilides, University of Innsbruck, died in 2003. His academic life was strongly devoted to comparative and especially European insurance contract law. It is a source of great satisfaction to the Members of the Project Group to be able to present the completed Principles of European Insurance Contract Law as Fritz Reichert-Facilides would have wanted them to be. We owe thanks to the publisher, sellier.elp Munich, for high quality service in the production of the present book. The Project Group’s assistants have prepared the layout of the book. In this respect, we want to express our gratitude especially to Dr. Marlene Danzl, Ms. Mandeep Lakhan, Mr. Manuel Sacchetto and Mr. Golo Wiemer. Cambridge, Hamburg, Innsbruck/Zurich, Leuven, Manchester June 2009

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Table of Contents Preface to the Second Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Preface to the First Edition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi Our Sponsors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxix Members of the Project Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xl Former Members of the Project Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xli Corresponding Members of the Project Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xli Members of the Drafting Committee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xli List of Rapporteurs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xlii List of Translators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xlv Publications on the PEICL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xlvii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1

Principles of European Insurance Contract Law (PEICL): Rules . . . . . . . .

31

Part One: Provisions Common to All Contracts Included in the Principles of European Insurance Contract Law (PEICL) . . . . . . . . . . . . . .

32

Chapter One: Introductory Provisions Section One: Application of the PEICL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section Two: General Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Section Three: Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Chapter Two: Initial Stage and Duration of the Insurance Contract Section One: Applicant’s Pre-contractual Information Duty . . . . . . . . . . . . . . . . Section Two: Insurer’s Pre-contractual Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Three: Conclusion of the Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Four: Retroactive and Preliminary Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Five: Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Six: Duration of the Insurance Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Seven: Post-contractual Information Duties of the Insurer . . . . . . .

35 36 37 38 39 40 40

Chapter Three: Insurance Intermediaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Chapter Four: The Risk Insured Section One: Precautionary Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Section Two: Aggravation of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Section Three: Reduction of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

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Chapter Five: Insurance Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Chapter Six: Insured Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Chapter Seven: Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Part Two: Provisions Common to Indemnity Insurance Chapter Eight: Sum Insured and Insured Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Nine: Entitlement to Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Ten: Rights of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter Eleven: Insured Persons other than the Policyholder . . . . . . . . . . . . . . Chapter Twelve: Insured Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

46 46 47 47 48

Part Three: Provisions Common to Insurance of Fixed Sums Chapter Thirteen: Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Part Four: Liability Insurance Chapter Fourteen: General Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Chapter Fifteen: Direct Claims and Direct Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Chapter Sixteen: Compulsory Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Part Five: Life Insurance Chapter Seventeen: Special Provisions for Life Insurance . . . . . . . . . . . . . . . . . . . Section One: Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Two: Initial Stage and Duration of the Contract . . . . . . . . . . . . . . . . . . . . . Section Three: Changes during the Contract Period . . . . . . . . . . . . . . . . . . . . . . . . . . Section Four: Relation to National Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Five: Insured Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Six: Conversion and Surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

51 51 52 54 55 55 56

Part Six: Group Insurance Chapter Eighteen: Special Provisions for Group Insurance . . . . . . . . . . . . . . . . . . Section One: Group Insurance in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Two: Accessory Group Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Section Three: Elective Group Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Principles of European Insurance Contract Law (PEICL): Rules, Comments and Notes Part One: Provisions Common to All Contracts Included in the Principles of European Insurance Contract Law (PEICL) Chapter One: Introductory Provisions Section One: Application of the PEICL Article 1:101 Substantive Scope of Application

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Substantive Scope: Substantive Private Insurance Contract Law . . . . . . . . . . . . . . . . . . . . . Mutual Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Social Insurance Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law of Insurance Supervision and Other Public Law on Insurance . . . . . . . . . . . . . . . . . . International Insurance Contract Law (Conflict of Laws) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law of Insurance Intermediaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marine Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reinsurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

60 60 60 60 60 61 61 61 62

Notes Application to Private Insurance Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mutual Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Marine Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reinsurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Specific Branches of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

62 62 62 63 63

Article 1:102 Optional Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Nature of Opting-in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Priority over Conflict Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Domestic Insurance Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No Partial Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect on Intermediaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

64 64 64 64 65 65 65

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Article 1:103 Mandatory Character

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Focus on Mandatory Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Technique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mandatory Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Single Mandatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minimum Protection Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

68 68 68 69

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Single Minimum Protection Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Beneficiaries of Mandatory and Minimum Protection Rules . . . . . . . . . . . . . . . . . . . . . . . . . 70 Article 1:104 Interpretation

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation and Development . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Textual Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Good Faith and Fair Dealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certainty in Contractual Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Uniform Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of Policyholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

71 71 71 72 72 72 72 73 73

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Article 1:105 National Law and General Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mandatory National Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supervisory Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Internationally Mandatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptional Recourse to Mandatory National Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . Filling Gaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Principles of Contract Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74 74 74 74 75 75 75 75

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 Section Two: General Rules Article 1:201 Insurance Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance Contract (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insured Event (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indemnity Insurance (para. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance of Fixed Sums (para. 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability Insurance (para. 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Life Insurance (para. 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

76 76 77 77 78 78 78

Group Insurances: Accessory Group Insurance, Elective Group Insurance (paras. 7-9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Notes The Pros and Cons of Defining the Insurance Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Standard Elements of Definitions of the Insurance Contract . . . . . . . . . . . . . . . . . . . . . . . . . The Insurer’s Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Uncertain Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions of Other Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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79 80 80 80 81

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Article 1:202 Further Definitions

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insured (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Beneficiary (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Person at Risk (para. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Victim (para. 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance Agent (para. 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premium (para. 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contract Period (para. 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance Period (para. 8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability Period (para. 9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compulsory Insurance (para. 10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

81 81 82 82 82 82 83 83 83 83 84 84

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Article 1:203 Language and Interpretation of Documents . . . . . . . . . . . . . . . . . . . . . . . . 84

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relationship to the Principles of European Contract Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Language of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

85 85 85 85 86

Notes Transparency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 In dubio contra stipulatorem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 Article 1:204 Receipt of Documents: Proof

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Notes General Law of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Specific Rules of Insurance Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Article 1:205 Form of Notice

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consensual and Formal Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Persons Favoured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No Particular Form Being Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notices by the Insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

89 89 89 89 90 90 91

Notes Community Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 The Kind and Context of the Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

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General Principle: No Formal Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 An Example: Notice of an Insured Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Article 1:206 Imputed Knowledge

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Imputation and Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Persons Whose Knowledge May Be Imputed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

93 93 93 93

Notes General Law of Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specific Provisions for Insurance Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowledge of the Policyholder’s Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . When Policyholder and Insured are Not Identical . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

94 94 95 95

Article 1:207 Non-Discrimination

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance and Differentiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Equal Treatment of Men and Women . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-Discrimination on Grounds of Nationality, Racial or Ethnic Origin . . . . . . . . . . . . Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

96 96 98 98 99 99

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Article 1:208 Genetic Tests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subject of Prohibition (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

100 100 100 100 100

Section Three: Enforcement Article 1:301 Injunctions

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Enforcement of Mandatory Rules by Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Measures by Qualified Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Note Background in Community Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Article 1:302 Out-of-court Complaint and Redress Mechanisms . . . . . . . . . . . . . . . . . 102

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Out-of-court Complaint and Redress Mechanisms under National Law . . . . . . . . . . . . 103 Relationship to the Principles of European Insurance Contract Law . . . . . . . . . . . . . . . . 103 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 xii

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Chapter Two: Initial Stage and Duration of the Insurance Contract Section One: Applicant’s Pre-contractual Information Duty Article 2:101 Duty of Disclosure

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information Imbalance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Timing of the Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Questionnaires . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relative Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inside Knowledge: the Alter Ego . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Outside Knowledge: The Knowledge of Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enquiry or Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

104 104 104 105 105 105 105 106

Notes Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty of Spontaneous Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to Answer the Insurer’s Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approximation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

106 107 107 108

Article 2:102 Breach

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Remedies Available to Insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination (Article 2:102 paras. 2 (second sentence), 3 and 4) . . . . . . . . . . . . . . . . . . . . Variation (Article 2:102 para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice (Article 2:102 para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge (Article 2:102 para. 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

109 109 109 109 109 110

Notes The All-or-Nothing Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Proportional Reduction of the Insurance Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Approximation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Innocent Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

110 111 112 112

Article 2:103 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unanswered Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Immaterial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Reasonable Insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information Known to Insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effects of the Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

113 113 113 113 114 114 114

Notes Obvious Defects of the Policyholder’s Answer, Article 2:103(a) . . . . . . . . . . . . . . . . . . . . . 114 Immaterial Information, Article 2:103(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 The Insurer’s Knowledge and Behaviour, Article 2:103(c) and (d) . . . . . . . . . . . . . . . . . . . 115

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Article 2:104 Fraudulent Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Range of Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Impact of Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Avoidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Position of Policyholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

116 116 116 116 116

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Article 2:105 Additional Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Article 2:106 Genetic Information

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Section Two: Insurer’s Pre-contractual Duties Article 2:201 Provision of Pre-contractual Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pre-contractual Documents in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to Provide an Applicant with a Pre-contractual Document . . . . . . . . . . . . . . . . . . . . Pre-contractual Documents in Special Branches of Insurance . . . . . . . . . . . . . . . . . . . . . . Right to a Copy of the Completed Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

119 119 119 120 120 120

Notes European Directives and their Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Kind of Information to Be Given . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stricter Requirements under National Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information Duty Drafted in General Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application Form Provided by the Insurer, Article 2:201 para. 3 . . . . . . . . . . . . . . . . . . . .

120 121 121 122 122

Article 2:202 Duty to Warn about Inconsistencies in the Cover

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to Assist the Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consequences of Failure to Assist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

122 122 123 124 124 124

Notes Community Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 National Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

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Article 2:203 Duty to Warn about Commencement of Cover . . . . . . . . . . . . . . . . . . . . . 126

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Problems of Commencement of Cover in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Duty to Warn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Notes Community Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 The Sanction of Immediate Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Incomplete and Unclear Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

Section Three: Conclusion of the Contract Article 2:301 Manner of Conclusion

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Principles of European Contract Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Ways of Concluding an Insurance Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mandatory Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

128 128 129 129 129 130 130

Notes A Matter of General Contract Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Consensual Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Article 2:302 Revocation of an Application for Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 131

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . An Application for Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation by the Applicant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time for the Arrivals of Revocations and Acceptances Sent Electronically . . . . . . . . . . Effectiveness of Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

132 132 132 132 133

Notes The Roles of Offeror and Offeree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 The Binding Nature of an Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 Article 2:303 Cooling-off Period

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Structure of the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Avoidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement of the Cooling-off Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Timeliness of Notice to Withdraw . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Exceptions to the General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

135 135 135 135 136 136 136

Notes Community Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Implementation for Life Assurance and Similar Products . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

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General Right of Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exception for Short-Term Insurance Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exception for Prolongation of Pre-Existing Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exception for Preliminary Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

138 138 139 139

Article 2:304 Abusive Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unfair Contract Terms Directive (93/13/EEC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Persons Protected under Article 2:304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Core terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Individually Negotiated Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fairness Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Grey List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burden of Proof: Unfairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

140 140 140 140 141 141 142 142 142

Notes Implementation of EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional and Broader Provisions on the Fairness of Insurance Terms . . . . . . . . . . . . . Non-Negotiated Contracts, Article 2:304 paras. 1 and 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions from Judicial Review, Article 2:304 para. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consequences of Invalidity of a Clause, Article 2:304 para. 2 . . . . . . . . . . . . . . . . . . . . . . .

145 146 147 147 148

Section Four: Retroactive and Preliminary Cover Article 2:401 Retroactive Cover

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Issues of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowledge of the Insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Knowledge of the Policyholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

148 148 149 149

Notes General Permission for Retroactive Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 Sector-Specific Permission for Retroactive Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Article 2:402 Preliminary Cover

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preliminary Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidencing the Preliminary Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exclusion of Articles 2:201 to 2:203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

151 151 152 152

Notes Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form and Information Requirements: Germany, Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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152 152 153 153 154

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United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Terms of the Cover Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 Article 2:403 Duration of Preliminary Cover

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Duration of the Preliminary Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Notes Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Section Five: Insurance Policy Article 2:501 Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Parol Evidence Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preliminary Insurance Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

156 157 157 157 157 157

Notes Issue of a Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information to Be Provided – Detailed Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mixture: General Provision with Some Details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Means of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Constitutive Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Issue of General Contract Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cover Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Written Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

158 158 158 159 159 159 160 160

Article 2:502 Effects of the Policy

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Presumption of Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Term for Contradiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Preconditions for Presumption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signature as Means of Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Presumption of Contract in Accordance with Application . . . . . . . . . . . . . . . . . . . .

160 161 161 162 162 162 163

Section Six: Duration of the Insurance Contract Article 2:601 Duration of the Insurance Contract

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Structure of the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duration of the Contract Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effects of Violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

163 163 164 164 164 165

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Notes Maximum Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Personal Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Article 2:602 Prolongation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for Prolongation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prolongation and Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjustment of Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Term of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

167 167 167 167 167 168

Notes Statutory and Contractual Prolongation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168 Period of Prolongation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Prolongation and Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Article 2:603 Alteration of Terms and Conditions

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for a Rule for Alteration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for a Special Rule for Insurance Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Concept Underlying Article 2:603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Minimum Standards for an Alteration Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

170 170 170 170 171

Notes Article 2:603 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 2:603 para. 1(a) – Commencement of Alteration . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 2:603 para. 1(b) – Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 2:603 para. 1(c) – Right of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

171 172 172 172

Article 2:604 Termination after the Occurrence of an Insured Event

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Statutory and Contractual Rights to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Rights to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to Group Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

173 173 173 173 174 174

Notes Article 2:604 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 2:604 para. 2 – Reasonableness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 2:604 para. 3 – Expiration of the Right of Termination . . . . . . . . . . . . . . . . . . . . . . Article 2:604 para. 4 – End of Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Section Seven: Post-contractual Information Duties of the Insurer Article 2:701 General Information Duty

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for Information During the Period of Insurance Cover . . . . . . . . . . . . . . . . . . . Information to Be Given in All Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information about Changes in the Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Updating Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manner of Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

176 176 176 177 177 177

Notes Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Life Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Expenses Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Post-contractual Information Duties under National Law . . . . . . . . . . . . . . . . . .

177 178 178 179

Article 2:702 Further Information upon Request

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information on Changes in Standard Terms of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . Manner of Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

180 180 180 180 181 181

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Chapter Three: Insurance Intermediaries Article 3:101 Powers of Insurance Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal and Contractual Authority of the Insurance Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . Minimum Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Imputation of the Agent’s Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liability of the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

181 182 182 182 183 183

Notes First Sentence of Article 3:101 para. 1 – Statutory Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . Second and Third Sentences of Article 3:101 para. 1 – Contractual Limitations . . . . . Article 3:101 para. 2 – Minimum Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 3:101 para. 3 – Imputation of the Agent’s Knowledge . . . . . . . . . . . . . . . . . . . . . . . .

183 184 184 184

Article 3:102 Agents of Insurers Purporting to Be Independent

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Actual Authority of “Pseudo-brokers” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

185 185 185 185

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186

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Chapter Four: The Risk Insured Section One: Precautionary Measures Article 4:101 Precautionary Measures: Meaning

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 The Concept of Precautionary Measure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Notes General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Finland and Sweden . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Austria, Germany, Switzerland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Belgium, Luxembourg and the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Spain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Poland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Greece . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

187 188 188 188 188 189 189 189 189

Article 4:102 Insurer’s Right to Terminate the Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination and Non-Prolongation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination under Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Manner of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to Group Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

190 190 190 190 190

Notes Ipso iure Avoidance or Declaration of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination ex tunc or ex nunc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causation: France and United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causation in Other Member State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fault: France, the Netherlands and United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fault: Other European Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Written Notice and Time Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . End of Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Peculiarities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

190 191 191 192 192 192 192 193 193

Article 4:103 Discharge of the Insurer’s Liability

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

193 193 194 194

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

194 194 195 195 195

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Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Belgium and Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Austria and Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Objective Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Finland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Austria . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Belgium and Luxembourg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

195 196 196 196 196 196 197 197 197 197

Section Two: Aggravation of Risk Article 4:201 Clauses Concerning Aggravation of Risk

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Allocation of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for Rules of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggravation of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

198 198 198 199 199

Notes Information Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Material Aggravation of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Aggravation Specified in the Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 Article 4:202 Duty to Give Notice of an Aggravation of Risk

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Manner of Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

200 200 201 201

Notes Notice in Reasonable Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Insurer’s Duty to Pay Insurance Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Article 4:203 Termination and Discharge

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reconsideration of the Risk by Insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time for Policyholders to Find Alternative Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to Group Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

202 202 203 203 203

Notes Expiry of Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204

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Section Three: Reduction of Risk Article 4:301 Consequences of the Reduction of Risk

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Purpose and Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Materiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Policyholder’s Initiative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

204 204 205 205

Notes Reduction of the Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 Termination of Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206 Exceptions for Personal Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207

Chapter Five: Insurance Premium Article 5:101 First or Single Premium

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulatory Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . First and Single Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prerequisites for Giving Effect to a Condition which is Subject to Article 5:101 . . . . . Consequences of Payment or Non-Payment within the Two Week Period . . . . . . . . . .

207 207 207 208 209 209

Notes Postponement of Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Protection of the Applicant’s Expectations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 Article 5:102 Subsequent Premium

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulatory Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Subsequent Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prerequisites for Giving Effect to a Clause which is Subject to Article 5:102 . . . . . . . . . Consequences of Payment or Non-Payment within the Period of Grace . . . . . . . . . . . .

211 211 211 212 212 212

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213 Article 5:103 Termination of the Contract

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulatory Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination in Case of Non-Payment of a First or Single Premium . . . . . . . . . . . . . . . . . Termination in Case of Non-Payment of a Subsequent Premium . . . . . . . . . . . . . . . . . . . Notice of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effects of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Automatic Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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214 214 214 215 215 215 215 215

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Notes Article 5:103 para. 1: The Right to Terminate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 Form of Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216 Article 5:103 para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Article 5:104 Divisibility of Premium

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 The Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Abolition of a Principle of Indivisibility of Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 Article 5:105 Right to Pay Premium

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Obligation of the Insurer to Accept Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent of the Policyholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legitimate Interest of Third Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

219 219 219 219 220

Chapter Six: Insured Event Article 6:101 Notice of Insured Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Channels of Communication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Balancing Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contents of the Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breach of Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

221 221 221 222 222 222

Notes Article 6:101 para. 1: Duty to Notify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Who Owes The Duty to Notify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 6:101 para. 2: Time Allowed for Notification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contractual Derogations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Article 6:101 para. 3: Sanction – Reduction of Insurance Money . . . . . . . . . . . . . . . . . . . . Contractual Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

223 223 223 224 224 225

Article 6:102 Claims Cooperation

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information about the Occurrence of the Insured Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reasonable Requests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Breach of Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

226 226 226 226

Notes Article 6:102 para. 1: Duty to Cooperate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227 Article 6:102 paras. 2 and 3: Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

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Article 6:103 Acceptance of Claims

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Prompt Settlement of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 Article 6:104 Time of Performance

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Importance of Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Undue Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Amount Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

229 229 230 230

Notes Article 6:104 paras. 1 and 3: Rules on the Time of Payment . . . . . . . . . . . . . . . . . . . . . . . . . 230 Article 6:104 para. 2: Partial Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 Article 6:105 Late Performance

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Conceptual Basis of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Assessment of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Instances of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

232 232 232 233 233 233

Notes General Rules on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Specific Interest Rules for Insurance Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 Punitive Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

Chapter Seven: Prescription Article 7:101 Action for Payment of Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Notes Community Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Rules for All Claims Arising from Insurance Contracts . . . . . . . . . . . . . . . . . . . . Specific Rules on Prescription of Premiums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General Rules of the Law of Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparison of Prescription Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

235 235 235 236 236

Article 7:102 Action for Payment of Insurance Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . 236

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 General Period of Prescription and its Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Absolute Period of Prescription and its Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

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Notes Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Single Rule without Any Requirement of Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Double Standard: Knowledge plus Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Insurer’s Decision on the Claim as Starting Point of Prescription . . . . . . . . . . . . . . . The Duration of the Prescription Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exception for Life Assurance Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

238 239 239 239 239 240

Article 7:103 Other Issues Relating to Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prescription of Claims Not Covered by Articles 7:101 and 7:102 . . . . . . . . . . . . . . . . . . . . Unregulated Issues of Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contractual Derogations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

241 241 241 241

Notes General Remark . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contractual Derogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension in Case of Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension when Notice or Claim is Lodged . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional Reason for Suspension or Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

241 242 242 242 243

Part Two: Provisions Common to Indemnity Insurance Chapter Eight: Sum Insured and Insured Value Article 8:101 Maximum Sums Payable

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Indemnity Principle and the Sum Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mitigation Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Sum Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Valued Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

243 243 244 244 244

Notes The Indemnity Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Value Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of Value Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fraud or Misrepresentation on the Part of the Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

244 245 245 246

Article 8:102 Underinsurance

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic Principle: First Loss Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Permitted Derogation: Proportionate Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

246 246 246 247

Notes The Principle of Proportionate Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247

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Contractual Derogations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 Article 8:103 Adjustment of Terms in Case of Overinsurance

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic Principle: Adjustment of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Overinsurance Caused by Multiple Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Determination of Insurance Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alternative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

248 248 249 249 249

Notes General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 The Claim for Reduction, Article 8:103 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 Termination, Article 8:103 para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 Article 8:104 Multiple Insurance

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Key Elements of Multiple Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Insured’s Choice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contributions by Different Insurers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

250 250 251 251 252

Notes General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indemnity Principle, Article 8:104 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Full Liability of Each Insurer, Article 8:104 para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recourse against Other Insurer(s), Article 8:104 para. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

252 253 253 254

Chapter Nine: Entitlement to Indemnity Article 9:101 Causation of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limits on Recovery of Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recklessness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to Avert or Mitigate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty and Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Persons Prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

254 255 255 255 255 255 256 256

Notes Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intention and Gross Negligence, Article 9:101 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intention and Recklessness of Third Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contractual Derogations in Case of Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Failure to Avert and Mitigate Loss, Article 9:101 para. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . .

256 257 257 258 259

Article 9:102 The Costs of Mitigation

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 Establishment of a Right to Recover Certain Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 xxvi

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Scope of the Right of Recovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Underinsurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260

Notes General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260 Reasonable Mitigation Costs, Article 9:102 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 The Sum Insured as Limit, Article 9:102 para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261

Chapter Ten: Rights of Subrogation Article 10:101 Subrogation

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Need for Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection for Insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Third Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of Third Parties in a Close Relationship with the Insured . . . . . . . . . . . . . . . .

262 262 263 263 264 264

Notes General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic Principle, Article 10:101 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of Subrogation Rights, Article 10:101 para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of the Insured’s Entourage, Article 10:101 para. 3 . . . . . . . . . . . . . . . . . . . . . . . . No Subrogation Rights against the Insured, Article 10:101 para. 4 . . . . . . . . . . . . . . . . . .

265 265 266 266 267

Chapter Eleven: Insured Persons other than the Policyholder Article 11:101 Entitlement of the Insured

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of the Insured and Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Basic Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Third Party Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation of Cover . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effects of Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

267 267 268 268 268 268 269 269

Notes Article 11:101 para. 1: General Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Artikcle 11:101 para. 2: Revocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Acceptance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurance for Whom It May Concern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

269 270 270 271

Article 11:102 Knowledge of the Insured

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relation with Article 1:206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elements of the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

271 271 272 272 272

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Notes Imputation to the Policyholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Direct Notification Duties of the Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 Article 11:103 Breach of Duty by One Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale and Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope: the Policyholder as an Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope: Group Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relation to Article 1:206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Joint Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

274 274 274 275 275 275 276

Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 276 Chapter Twelve: Insured Risk Article 12:101 Lack of Insured Risk

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Structure and Position of the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-Existence of Insured Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cessation of Insured Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

277 277 278 278 278

Notes General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Initial Absence of Risk, Article 12:101 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Subsequent Cessation of Risk, Article 12:101 para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 Article 12:102 Transfer of Property

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Need for a Rule concerning Transfer of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Underlying Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Non-Mandatory Character of the Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicability to Transfer of Title by Inheritance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Fiction of an Insurance Contract for the Benefit of a Third Party . . . . . . . . . . . . . . . Application to Group Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

280 280 281 281 281 281 282 282

Notes General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Termination Approach, Article 12:102 para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Substitution Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transferable Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Passing of Insurance Cover, Article 12:102 para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions, Article 12:102 para. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xxviii

282 283 283 283 284 284

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Part Three: Provisions Common to Insurance of Fixed Sums Chapter Thirteen: Admissibility Article 13:101 Insurance of Fixed Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 284 Notes General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286 Relationship to Personal Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

Part Four: Liability Insurance Chapter Fourteen: General Liability Insurance Article 14:101 Defence Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Underlying Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope of Defence Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reasonableness of Defence Costs (Article 9:102) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reasonableness and Sum Insured . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Free Choice of Defence Lawyer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Costs of Criminal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

286 287 287 287 287 287 288 288 288

Article 14:102 Protection of the Victim

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Underlying Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Agreement on Defence Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

288 288 289 289

Article 14:103 Causation of Loss

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Underlying Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Specific Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relation to Article 6:102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

289 289 290 290

Article 14:104 Acknowledgement of Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Acceptance of the Victim’s Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Insurer’s Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Article 14:105 Assignment

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Interests Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291 Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

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Article 14:106 No-Claims-Bonuses / Bonus-Malus-Systems

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Transfer of Bonuses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claims Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

292 292 292 293

Article 14:107 Insured Event

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background: Triggers for the Insurer’s Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . New Arrangements for the Insurer’s Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Different National Solutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Basic Rule (Article 14:107 para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consumer Liability Insurance – Mandatory Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commercial and Professional Risks – Default Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Claims Made Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Other Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

293 293 294 295 296 297 297 298 298

Article 14:108 Claims Exceeding the Sum Insured

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proportionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Multiple Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Protection of the Insurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

299 299 299 300 300

Chapter Fifteen: Direct Claims and Direct Actions Article 15:101 Direct Claims and Defences

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Compulsory Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Liquidation or Winding up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Personal Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Law Governing Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limits to the Direct Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

301 301 302 302 303 303 303 303 304

Article 15:102 Information Duties

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information Duty of the Policyholder and the Insured (para. 1) . . . . . . . . . . . . . . . . . . . . Information Duty of the Insurer (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information Duty of the Policyholder (first sentence of para. 3) . . . . . . . . . . . . . . . . . . . . Information Duty of the Insured (second sentence of para. 3) . . . . . . . . . . . . . . . . . . . . . . Period for the Provision of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Analogous Application of para. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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304 304 305 305 305 306 306 306 306

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Article 15:103 Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

307 307 307 307

Article 15:104 Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Prescription Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exception: Defence Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

308 308 308 308 308

Chapter Sixteen: Compulsory Insurance Article 16:101 Scope of Application

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The duty to insure and the applicable contract law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Origins of Duties to Insure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The priority of national requirements, para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

309 309 310 310 311

Part Five: Life Insurance Chapter Seventeen: Special Provisions for Life Insurance Section One: Third Parties Article 17:101 Life Insurance on the Life of a Third Party

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent requirement: General aspects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent in Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Informed Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application to Substantial Changes and Other Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

312 312 313 313 314 314 314 314

Article 17:102 Beneficiary of the Insurance Money

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Designation and Change of Designation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form of Designation (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Beneficiary in the Absence of Effective Designation (para. 3) . . . . . . . . . . . . . . . . . . . . . . . Death or Revocation of One of Multiple Beneficiaries (para. 4) . . . . . . . . . . . . . . . . . . . . . Effects of Insolvency Proceedings (para. 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge (para. 6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

315 315 316 316 316 317 317 317 318

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Article 17:103 Beneficiary of the Surrender Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Revocation and change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Default Rule (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cross-references (para. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

319 319 319 319 320

Article 17:104 Assignment or Encumbrance

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action of the Policyholder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action of the Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of Assignment and Encumbrance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

320 320 320 321 321 321

Article 17:105 Renunciation of Estate

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rule of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Relationship with Insolvency Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

321 321 322 322

Section Two: Initial Stage and Duration of the Contract Article 17:201 Applicant’s Pre-contractual Information Duties

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information about the Person at Risk (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Indisputability (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

322 322 322 323

Article 17:202 Insurer’s Pre-contractual Information Duties

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional Information Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information on Risks Underlying the Contract (para. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . Model Calculation (para. 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

324 324 325 325 326

Article 17:203 Cooling-off Period

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 Rationale and Object of para. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 326 Rationale and Object of para. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Article 17:204 Policyholder’s Right to Terminate the Contract

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unequal Regulation for Both Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The One-Year Waiting Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Single Premium Insurance (second sentence of para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Exclusion of Termination Rights under National Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 Form and Effect of Termination (third sentence of para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . 329 Article 17:205 Insurer’s Right to Terminate the Contract . . . . . . . . . . . . . . . . . . . . . . . . . . 329

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination for Breach of Pre-contractual Disclosure Duties . . . . . . . . . . . . . . . . . . . . . . . Termination for Aggravation of Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination for Non-payment of Premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Modalities and effect of termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

330 330 330 331 331 331

Section Three: Changes during the Contract Period Article 17:301 Insurer’s Post-contractual Information Duties

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

332 332 332 332

Article 17:302 Aggravation of Risk

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

333 333 333 333

Article 17:303 Adjustment of Premium and Benefits Payable

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . National Laws as Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope (paras. 1 and 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exceptions (para. 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Form and Time of Effectiveness (para. 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premium Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Premium Stability (para. 7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Adjustment Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

334 334 335 335 335 336 336 337 337 337

Article 17:304 Alteration of Terms and Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements for Alteration Clauses (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limited Reasons for Alterations (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alteration of Supervisory Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pension Schemes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tax Privileges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Replacement of Invalid Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further Requirements for an Alteration (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

338 338 338 338 338 339 339 339 339 340

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Retroactive Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 340 Minimum Standards for Alteration Clauses in Life Insurance . . . . . . . . . . . . . . . . . . . . . . 340

Section Four: Relation to National Laws Article 17:401 Pension Plans

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Illustration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Precedence of National Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

340 340 341 342 342

Article 17:402 Tax Treatment and State Subsidies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 342

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Legal consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

343 343 343 343

Section Five: Insured Event Article 17:501 Insurer’s Investigation and Information Duty

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to Investigate the Occurrence of the Insured Event (para. 1) . . . . . . . . . . . . . . . . . . Duty to Investigate the Identity and Address of the Beneficiary (para. 2) . . . . . . . . . . . Duty to Inform the Beneficiary (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions (para. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

344 344 344 345 345 346

Article 17:502 Suicide

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mental Incapacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

346 346 347 347 347 348

Article 17:503 Intentional Killing of the Person at Risk

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Intention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Self-Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Mandatory Character . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

348 348 349 349 349 349 349

Section Six: Conversion and Surrender Article 17:601 Conversion of the Contract

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 xxxiv

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Policyholder’s Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Information Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 Form of Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 Article 17:602 Surrender of the Contract

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right of Surrender (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Termination by the Insurer (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Insurer’s Information Duty (para. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . With-profits Policies (para. 4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time of Payment (para. 5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

351 351 352 352 352 352

Article 17:603 Conversion Value; Surrender Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Home Country Principle (first sentence of para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Established Actuarial Principles (second sentence of para. 1) . . . . . . . . . . . . . . . . . . . . . . . Deduction of Costs of Contract Conclusion (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Deduction of Costs of Payment of the Surrender Value (para. 3) . . . . . . . . . . . . . . . . . . . .

353 353 353 353 354

Part Six: Group Insurance Chapter Eighteen: Special Provisions for Group Insurance Section One: Group Insurance in General Article 18:101 Applicability

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Classification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Applicability of the PEICL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

354 354 354 354 355

Article 18:102 General Duty of Care of the Group Organiser

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty under Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

355 355 356 356 356

Section Two: Accessory Group Insurance Article 18:201 Application of the PEICL

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Group Insurance and Protection of Group Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Straightforward Application of the PEICL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Application of the PEICL mutatis mutandis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contract Terms and the mutatis mutandis Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Need for Special Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

357 357 357 358 358 358

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Article 18:202 Information Duties

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information Duty when a Person Joins a Group . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Time when Information has to be Provided . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Person Obliged to Provide Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information after Joining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

358 358 359 359 359 359 360 360

Article 18:203 Termination by the Insurer

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360 Termination after Occurrence of the Insured Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 Termination for Non-Compliance with Precautionary Measures or Aggravation of Risk (para. 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 Termination by Transfer of Property (para. 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361 Article 18:204 Right to Continue Cover – Group Life Insurance . . . . . . . . . . . . . . . . . . 361

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cover in Transitional Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Right to Individual Cover (para. 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contents of the Individual Insurance (paras. 1 and 3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Individual Insurance as a New Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Group Organiser’s Information Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions for Breach of the Information Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

362 362 362 363 363 363 363 364

Section Three: Elective Group Insurance Article 18:301 Elective Group Insurance: General

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Elective Group Insurances as Framework Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Applicability of the PEICL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364 Article 18:302 Alteration of Terms and Conditions

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Rationale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Alteration of Terms and Conditions of the Framework Contract . . . . . . . . . . . . . . . . . . . Requirements of Article 2:603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Requirements of Articles 17:303 and 17:304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

365 365 365 365 365

Article 18:303 Continuation of Cover

Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possible Consequences of the Termination of the Framework Contract . . . . . . . . . . . . . Comparison with Article 18:204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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366 366 366 366

Table of Contents

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic) Chinese version: 㶶㿁≬棸⚗⚛㽤☮⒨ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369 Czech version: Zásady evropského pojišťovacího smluvního práva (ZEPSP) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

393

Dutch version: Principles of European Insurance Contract Law (PEICL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

420

French version: Principes du droit Européen du contrat d’assurance (PDECA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

451

German version: Grundregeln des Europäischen Versicherungsvertragsrecht (GEVVR) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

480

Greek version: Αρχές Ευρωπαϊκού Δικαίου της Ασφαλιστικής Σύμβασης (ΑΕΔΑΣ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

512

Hungarian version: Az Európai biztosítási szerződési jog alapelvei . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 544 Italian version: Principi di Diritto Europeo del Contratto di Assicurazione (PEICL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

573

Japanese version: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) ቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩                                603 Korean version: Principles of European Insurance Contract Law (PEICL) 냕ꆲꚩ뾍陹꼲Ꙋ낅렎                                          631 Polish version: Zasady europejskiego prawa ubezpieczeń (ZEPU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

657

Portuguese version: Princípios do Direito Europeu do Contrato de Seguro (PEICL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689 Serbian version: Principi Evropskog Ugovornog Prava Osiguranja (PEUPO) . . . . . . . . . . . . . . .

717

Slovak version: Princípy európskeho práva poistnej zmluvy (PEPPZ) . . . . . . . . . . . . . . . . . . . . . .

745

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Table of Contents

Spanish version: Principios de Derecho Europeo del Contrato de Seguro (PDECS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

774

Swedish version: Principer för en Europeisk Försäkringsavtalsrätt (PEICL) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

804

Turkish version: Avrupa Sigorta Sözleşmesi ukuku İlkeleri (ASSHİ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

833

Annexes Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Table of National Statutes (including draft legislation and like sources) . . . . . . Table of EU Legislation (including draft legislation and like sources) . . . . . . . . . . Table of International Conventions and Model Laws . . . . . . . . . . . . . . . . . . . . . . . . . . Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bibliography of Works Cited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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863 866 873 878 879 883

Our Sponsors The Project Group is very grateful for many years of essential financial support by the following institutions: Österreichischer Fonds zur Förderung der wissenschaftlichen Forschung (FWF) Deutsche Forschungsgemeinschaft (DFG) Being part of the CoPECL Network established by the European Commission the Group also acknowledges financial assistance granted by the Commission in the years 20052009. In addition, the Group is indebted to the many institutions whose support made possible 36 workshops across Europe.

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Members of the Project Group Prof. Dr. Dr. h.c. mult. Jürgen Basedow, LL.M. Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg Prof. Dr. Juan Bataller Grau Universidad Politécnica de Valencia Prof. John Birds Universities of Manchester and Sheffield Prof. Dr. Diana Cerini Università degli Studi di Milano Bicocca Prof. Dr. Malcolm A. Clarke University of Cambridge, St. John’s College

Adv. Dr. Jorge Pegado Liz Lisboa/Bruxelles Prof. Dr. Jaana Norio-Timonen Helsingin yliopisto Prof. Dr. Ioannis Rokas Οικονομικό Πανεπιστήμιο Αθηνών Prof. Dr. Martin Schauer Universität Wien Prof. Dr. Anton K. Schnyder, LL.M. Universität Zürich

Prof. Dr. Herman Cousy Katholieke Universiteit Leuven

tit. Prof. Dr. Péter Takáts Eötvös Loránd Tudományegyetem, Budapest

Prof. Dr. Bill W. Dufwa Stockholms Universitet

Prof. Dr. Pedro Pais de Vasconcelos Universidade de Lisboa

Dr. Dariusz Fuchs Uniwersytet Kardynała S. Wyszyńskiego, Warszawa

Prof. Dr. Manfred Wandt Goethe-Universität Frankfurt a.M.

Prof. Dr. Helmut Heiss, LL.M. (Chairman) Universität Zürich Prof. Dr. Jérôme Kullmann Université Paris Dauphine

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Prof. Dr. J. Han Wansink Erasmus Universiteit Rotterdam, Universiteit van Leiden

Former Members of the Project Group Prof. Dr. Zdzisław Brodecki Uniwersytet Gdańsk [Member from April 2001– March 2007]

A. Prof. Dr. Bernhard Rudisch, LL.M. Universität Innsbruck [Member from September 1999 – April 2009]

Prof. Dr. Fritz Reichert-Facilides, LL.M. (†) Universität Innsbruck [Founder and Chairman from September 1999 – October 2003]

Corresponding Members of the Project Group JUDr. Petr Dobiáš, Ph.D. Právnická fakulta, Univerzita Karlova v Praze Dr. Yong Qiang Han, LL.M. Civil and Commercial Law School, Southwest University of Political Science and Law and NUS Faculty of Law, National University of Singapore Prof. Dr. Eun-Kyung Kim Hankuk University of Foreign Studies, Seoul

Prof. Dr. Souichirou Kozuka Gakushuin University, Tokyo Prof. Dr. Birgit Kuschke Department of Private Law, Law Faculty, University of Pretoria Anne McNaughton, LL.M. ANU College of Law, Australian National University, Canberra Prof. Dr. Ahmet Samim Ünan Galatasaray University, Istanbul

Members of the Drafting Committee Prof. Dr. Dr. h.c. mult. Jürgen Basedow, LL.M. Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg Prof. Dr. Malcolm A. Clarke (Chair) University of Cambridge, St. John’s College Prof. Dr. Herman Cousy Katholieke Universiteit Leuven

Prof. John Birds University of Manchester Prof. Dr. Helmut Heiss, LL.M. Universität Zürich Dr. Leander D. Loacker, M.Phil. Universität Zürich

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List of Rapporteurs Article 1:101 Substantive Scope of Application Article 1:102 Optional Application Article 1:103 Mandatory Character Article 1:104 Interpretation Article 1:105 National Law and General Principles Article 1:201 Insurance Contract Article 1:202 Further Definitions Article 1:203 Language and Interpretation of Documents Article 1:204 Receipt of Documents: Proof Article 1:205 Form of Notice Article 1:206 Imputed Knowledge Article 1:207 Non-Discrimination Article 1:208 Genetic Tests Article 1:301 Injunctions Article 1:302 Out-of-court Complaint and Redress Mechanisms Article 2:101 Duty of Disclosure Article 2:102 Breach Article 2:103 Exceptions Article 2:104 Fraudulent Breach Article 2:105 Additional Information Article 2:106 Genetic Information Article 2:201 Provision of Pre-contractual Documents Article 2:202 Duty to Warn about Inconsistencies in the Cover Article 2:203 Duty to Warn about Commencement of Cover Article 2:301 Manner of Conclusion Article 2:302 Revocation of an Application for Insurance Article 2:303 Cooling-off Period Article 2:304 Abusive Clauses Article 2:401 Retroactive Cover Article 2:402 Preliminary Cover Article 2:403 Duration of Preliminary Cover Article 2:501 Contents Article 2:502 Effects of the Policy Article 2:601 Duration of the Insurance Contract Article 2:602 Prolongation Article 2:603 Alteration of Terms and Conditions Article 2:604 Termination after the Occurrence of an Insured Event Article 2:701 General Information Duty Article 2:702 Further Information upon Request Article 3:101 Powers of Insurance Agents

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Reichert-Facilides, Heiss Basedow Reichert-Facilides, Heiss Basedow Basedow Reichert-Facilides, Heiss, Norio-Timonen Group Basedow, Heiss Basedow Basedow Clarke Basedow Schauer Adelmann, Heiss Heiss Clarke, Rudisch Clarke, Rudisch Clarke, Rudisch Clarke, Rudisch Clarke, Rudisch Schauer Heiss Heiss Heiss Dufwa Dufwa Schnyder Adelmann, Dufwa Heiss Heiss Heiss Heiss Heiss Basedow Basedow Wandt Basedow Wandt Wandt Heiss, Lorenz

List of Rapporteurs

Article 3:102 Agents of Insurers Purporting to Be Independent Article 4:101 Precautionary Measures: Meaning Article 4:102 Insurer’s Right to Terminate the Insurance Contract Article 4:103 Discharge of the Insurer’s Liability Article 4:201 Clauses Concerning Aggravation of Risk Article 4:202 Duty to Give Notice of an Aggravation of Risk Article 4:203 Termination and Discharge Article 4:301 Consequences of the Reduction of Risk Article 5:101 First or Single Premium Article 5:102 Subsequent Premium Article 5:103 Termination of the Contract Article 5:104 Divisibility of Premium Article 5:105 Right to Pay Premium Article 6:101 Notice of Insured Event Article 6:102 Claims Cooperation Article 6:103 Acceptance of Claims Article 6:104 Time of Performance Article 6:105 Late Performance Article 7:101 Action for Payment of Premium Article 7:102 Action for Payment of Insurance Benefits Article 7:103 Other Issues Relating to Prescription Article 8:101 Maximum Sums Payable Article 8:102 Underinsurance Article 8:103 Adjustment of Terms in Case of Overinsurance Article 8:104 Multiple Insurance Article 9:101 Causation of Loss Article 9:102 The Costs of Mitigation Article 10:101 Subrogation Article 11:101 Entitlement of the Insured Article 11:102 Knowledge of the Insured Article 11:103 Breach of Duty by One Insured Article 12:101 Lack of Insured Risk Article 12:102 Transfer of Property Article 13:101 Insurance of Fixed Sums Article 14:101 Defence Costs Article 14:102 Protection of the Victim Article 14:103 Causation of Loss Article 14:104 Acknowledgement of Liability Article 14:105 Assignment Article 14:106 No-Claims-Bonuses / Bonus-Malus-Systems Article 14:107 Insured Event Article 14:108 Claims Exceeding the Sum Insured Article 15:101 Direct Claims and Defences Article 15:102 Information Duties Article 15:103 Discharge Article 15:104 Prescription Article 16:101 Scope of Application

Heiss, Lorenz Wansink, Basedow Wansink, Basedow Wansink, Basedow Clarke Clarke Clarke Clarke, Takáts Heiss Heiss Heiss Heiss Heiss Bataller Grau Bataller Grau Bataller Grau Bataller Grau Bataller Grau Kullmann, Rokas, Heiss Kullmann, Rokas, Heiss Kullmann, Rokas, Heiss Cerini, Clarke, Heiss Clarke, Takáts Clarke, Takáts Takáts, Wansink, Birds Clarke Clarke Birds Rokas, Basedow Rokas, Basedow Rokas, Basedow Heiss, Loacker Heiss, Loacker Heiss Birds Birds Clarke Clarke Clarke Birds Cousy Heiss Heiss Heiss Heiss Heiss Basedow

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List of Rapporteurs

Article 17:101 Life Insurance on the Life of a Third Party Article 17:102 Beneficiary of the Insurance Money Article 17:103 Beneficiary of the Surrender Value Article 17:104 Assignment or Encumbrance Article 17:105 Renunciation of Estate Article 17:201 Applicant’s Pre-contractual Information Duties Article 17:202 Insurer’s Pre-contractual Information Duties Article 17:203 Cooling-off Period Article 17:204 Policyholder’s Right to Terminate the Contract Article 17:205 Insurer’s Right to Terminate the Contract Article 17:301 Insurer’s Post-contractual Information Duties Article 17:302 Aggravation of Risk Article 17:303 Adjustment of Premium and Benefits Payable Article 17:304 Alteration of Terms and Conditions Article 17:401 Pension Plans Article 17:402 Tax Treatment and State Subsidies Article 17:501 Insurer’s Investigation and Information Duty Article 17:502 Suicide Article 17:503 Intentional Killing of the Person at Risk Article 17:601 Conversion of the Contract Article 17:602 Surrender of the Contract Article 17:603 Conversion Value; Surrender Value Article 18:101 Applicability Article 18:102 General Duty of Care of the Group Organiser Article 18:201 Application of the PEICL Article 18:202 Information Duties Article 18:203 Termination by the Insurer Article 18:204 Right to Continue Cover – Group Life Insurance Article 18:301 Elective Group Insurance: General Article 18:302 Alteration of Terms and Conditions Article 18:303 Continuation of Cover

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Heiss Cerini Basedow Rokas Schnyder, Heiss Cousy Cousy Cousy Basedow Basedow Rokas Clarke Wandt Wandt Schauer Schauer Heiss Schauer Schauer Schnyder Schnyder Schnyder Takáts Takáts Norio-Timonen Norio-Timonen Norio-Timonen, Basedow Norio-Timonen, Schauer Takáts Wandt Norio-Timonen, Takáts

List of Translators Chinese version Dr. Yong Qiang Han, LL.M. Civil and Commercial Law School, Southwest University of Political Science and Law and NUS Faculty of Law, National University of Singapore

Dr. Leander D. Loacker, M.Phil. Universität Zürich Andrea Stäubli Universität Zürich

Greek version Czech version

em. Prof. Dr. Ioannis Rokas Οικονομικό Πανεπιστήμιο Αθηνών

JUDr. Petr Dobiáš, Ph.D. Právnická fakulta, Univerzita Karlova v Praze

Eirini Sarri I.K. Rokas & Partners Law Firm, Athens

Dutch version

Marilena Sotirchou I.K. Rokas & Partners Law Firm, Athens

Prof. Dr. J. Han Wansink Erasmus Universiteit Rotterdam Universiteit van Leiden

Hungarian version

Mariëlle van Popering Hogan Lovells, Amsterdam

tit. Prof. Dr. Péter Takáts Eötvös Loránd Tudományegyetem, Budapest

French version

Dr. Emese Kaufmann-Mohi Universität Zürich

Prof. Dr. Jérôme Kullmann Université Paris Dauphine

Italian version

Dr. Emese Kaufmann-Mohi Universität Zürich

Prof. Dr. Diana Cerini Università degli Studi di Milano Bicocca

German version

Luca Semeraro Università degli Studi di Milano Bicocca

Dr. Nina Trunk-Adelmann (†) Universität Mannheim

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List of Translators

Japanese version

Serbian version

Prof. Kyoko Kaneoka Tokyo University of Marine Science and Technology

Mira Todorovic-Symeonides, LL.M. I.K. Rokas & Partners Law Firm, Athens

Prof. Dr. Souichirou Kozuka Gakushuin University, Tokyo

Slovak version

Prof. Satoshi Nakaide Waseda University

Korean version Prof. Dr. Eun-Kyung Kim Hankuk University of Foreign Studies, Seoul Dr. iur. Che-Oug Rim Hankuk University of Foreign Studies, Seoul

Polish version Dr. Dariusz Fuchs Uniwersytet Kardynała S. Wyszyńskiego, Warszawa

Dr. iur. Imrich Fekete, PhD. Univerzita Komenského, Bratislava Hana Hlavatovičová, BSBA, MBA Slovenska kancelaria poistovatelov, Bratislava

Spanish version Prof. Dr. Juan Bataller Grau Universidad Politécnica de Valencia Prof. Dr. Paola Rodas Paredes Universitat Rovira i Virgili, Tarragona Nuria Pastor Martorell, LL. M. Lawyer

Swedish version

Łukasz Szymański Uniwersytet Kardynała S. Wyszyńskiego, Warszawa

Prof. Dr. Bill W. Dufwa Stockholms Universitet

Magdalena Boguska Greenberg Traurig, LLP, Warszawa

Turkish version Prof. Dr. Ahmet Samim Ünan Galatasaray University, Istanbul

Portuguese version Prof. Dr. Pedro Pais de Vasconcelos Universidade de Lisboa

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Dr. Serap Amasya Galatasaray University, Istanbul

Publications on the PEICL A. General Publications 1. Editions of books and/or monographs Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht, vols. I & II (Mohr Siebeck, Tübingen 2002); vol. III (Mohr Siebeck, Tübingen 2003) Petr Dobiáš, Zákon o mezinárodním právu soukromém (komentář) (Leges, Prague 2013) Petr Dobiáš, Mezinárodní pojistné právo se zřetelem křešení pojistných sporů v rozhodčím řízení (Vybrané kapitoly) (Nakladatelství Leges, s.r.o., Prague 2011) Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) Helmut Heiss, Insurance Contract Law between Business Law and Consumer Protection (Reports presented at the 18th International Congress on Comparative Law of the Académie internationale de droit comparé/ International Academy of Comparative Law – Washington 2010) (Dike, Zurich 2012) Helmut Heiss, ‘Stand und Perspektiven der Harmonisierung des Versicherungsvertragsrechts in der EG’ in Petra Pohlmann (ed.), Veröffentlichungen der Münsterischen Forschungsstelle für Versicherungswesen an der Westfälischen Wilhelms-Universität zu Münster (“Münsteraner Reihe”), Issue 99 (VVW, Karlsruhe 2005) Helmut Heiss (ed.), An Internal Insurance Market in an Enlarged European Union (VVW, Karlsruhe 2002) Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) Helmut Heiss and Anton K. Schnyder, ‘Versicherungsverträge’ in Herbert Kronke, Werner Melis and Anton K. Schnyder (eds.), Handbuch des Internationalen Wirtschaftsrechts (Schmidt, Cologne 2005) Leander D. Loacker, Informed Insurance Choice? (Edward Elgar, Cheltenham 2015) Fritz Reichert-Facilides (eds.), Aspekte des internationalen Versicherungsvertragsrechts im Europäischen Wirtschaftsraum (Mohr Siebeck, Tübingen 1994) Fritz Reichert-Facilides and Anton K. Schnyder (eds.), Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) Fritz Reichert-Facilides and Hans Ulrich Jessurun d’Oliveira (eds.), International Insurance Contract Law in the EC (Kluwer, Deventer 1993) Ioannis Rokas (ed.), Commentary on Insurance Contract Act (Nomiki Bibliothiki, Athens 2014) Ioannis Rokas, Insurance Law, An Introduction (3rd edn Nomiki Bibliothiki, Athens 2014) Ioannis Rokas, Idiotiki Asfalisi (11th edn Ant. N. Sakkoulas, Athens 2006) 105 Anton K. Schnyder, Europäisches Banken- und Versicherungsrecht (Müller, Heidelberg 2005) Pedro Pais de Vasconcelos, D&O INSURANCE: O Seguro de Responsabilidade Civil dos Administradores e outros Dirigentes da Sociedade Anónima (Almedina 2007)

2. Contributions in academic journals and/or anthologies Nina Adelmann, ‘Unfair Terms in Insurance Contracts’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 133 Christian Armbrüster, ‘Das Versicherungsrecht im Common Frame of Reference’, Zeitschrift für Europäisches Privatrecht (2008) 775 Jürgen Basedow, ‘Versicherungsvertragsrecht als Markthindernis?’, Europäische Zeitschrift für Wirtschaftsrecht (2014) 1 Jürgen Basedow, ‘An optional instrument and the disincentives to opt in’, Contratto e impresa/Europa, Numero speciale – Trenta giuristi europei sull’idea di codice europeo del contratto (2012) 37

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Publications on the PEICL

Jürgen Basedow, ‘Internal Market (Insurance)’ in Jürgen Basedow, Klaus J. Hopt, Reinhard Zimmermann, with Andreas Stier (eds.), The Max Planck Encyclopedia of European Private Law, vol. I (Oxford University Press, Oxford 2012) 955 Jürgen Basedow, ‘An Optional European Contract Law and Insurance’ in Caroline Van Schoubroeck, Wouter Devroe, Koen Geens and Jules Stuyck (eds.), Over Grenzen – Liber amicorum Herman Cousy (Intersentia, Antwerp/Cambridge 2011) 19 Jürgen Basedow, ‘Closing remarks: Summary and outlook’ in Helmut Heiss, on behalf of the Project Group Restatement of European Insurance Contract Law (eds.), Principles of European Insurance Contract Law: A Model Optional Instrument (Sellier elp, Munich 2011) 95 Jürgen Basedow, ‘Das fakultative Unionsprivatrecht und das internationale Privatrecht’ in Herbert Kronke and Karsten Thorn (eds.), Grenzen überwinden – Prinzipien bewahren. Festschrift für Bernd von Hoffmann (Gieseking, Bielefeld 2011) 50 Jürgen Basedow, ‘European Contract Law – The case for a growing optional instrument’ in Reiner Schulze and Jules Stuyck (eds.), Towards a European Contract Law (Sellier elp, Munich 2011) 169 Jürgen Basedow, ‘Fakultatives Unionsprivatrecht oder: Grundlagen des 28. Modells’ in Detlev Joost, Hartmut Oetker and Marian Paschke (eds), Festschrift für Franz Jürgen Säcker zum 70. Geburtstag (Beck, Munich 2011) 29 Jürgen Basedow, ‘The case for a European Insurance Contract Act’ in Arthur Hartkamp, Martijn W. Hesselink, Ewoud Hondius, C. Mak and Edgar Du Perron (eds.), Towards a European Civil Code (4th edn, Wolters Kluwer, Alphen aan den Rijn 2011) 735 Jürgen Basedow, ‘Entwicklungslinien des Versicherungsvertragsrechts – Die schweizerische Gesamtrevision im Lichte der Rechtsvergleichung’ in Anton K. Schnyder (ed.), Internationales Forum zum Privatversicherungsrecht 2008 (Schulthess Juristische Medien, Zurich/Basle/Genf 2009) 11 Jürgen Basedow, ‘Versicherungsbinnenmarkt’ in Jürgen Basedow, Klaus J. Hopt and Reinhard Zimmermann (eds.), Handwörterbuch des Europäischen Privatrechts, vol. II (Mohr Siebeck, Tübingen 2009) 1654 Jürgen Basedow, ‘The Optional Application of the Principles of European Insurance Contract Law’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 111 Jürgen Basedow, ‘Die Laufzeit von Versicherungsverträgen als rechtsökonomisches Problem in Theodor Siegel, Andreas Klein, Dieter Schneider, and Hans-Peter Schwintowski (eds.), Unternehmungen, Versicherungen und Rechnungswesen. Festschrift zur Vollendung des 65. Lebensjahres von Dieter Rückle (Duncker & Humblot, Berlin 2006) 143 Jürgen Basedow, ‘Verso una disciplina europea dei contratti di assicurazione: ragioni, struttura e metodo’, Danno e Responsabilità (2006) 5; also published in Onofrio Troiano (ed.), Verso una disciplina europea dei contratti di assicurazione? (Giuffrè, Milan 2006) 11 Jürgen Basedow, ‘Der Versicherungsbinnenmarkt und ein optionales europäisches Vertragsgesetz’ in Manfred Wandt (ed.), Kontinuität und Wandel des Versicherungsrechts. Festschrift für Egon Lorenz zum 70. Geburtstag (VVW, Karlsruhe 2004) 93 Jürgen Basedow, ‘Insurance Contract Law as Part of an Optional European Contract Act’ [2003] Lloyd’s Maritime and Commercial Law Quarterly 498, abridged version in ERA Forum 2003 (ERA Forum scripta iuris europaei), vol. 4, issue 2 (Springer, Heidelberg 2003) 56 Jürgen Basedow, ‘Why insurance contract law in Europe should be harmonised’, Nordisk Försäkringstidskrift (2002) 31 Jürgen Basedow, ‘The European Insurance Market, Harmonisation of Insurance Contract Law, and Consumer Policy’, (2000-2001) 7 Connecticut Insurance Law Journal 495 Jürgen Basedow, ‘Die Gesetzgebung zum Versicherungsvertrag zwischen europäischer Integration und Verbraucherpolitik’ in Fritz Reichert-Facilides and Anton K. Schnyder (eds.), Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 13 Jürgen Basedow, ‘Transparenz als Prinzip des (Versicherungs-)Vertragsrechts’, Versicherungsrecht (1999) 1045 Jürgen Basedow, ‘Versicherungsvertragsrecht’ in European Parliament, Directorate-General for Research, Untersuchung der Privatrechtsordnungen der EU im Hinblick auf Diskriminierungen und die Schaff ung eines europäischen Zivilgesetzbuches (Luxembourg 1999) 29, 99, 159

xlviii

Publications on the PEICL

Jürgen Basedow, ‘Stand und Perspektiven der Deregulierung im Versicherungswesen’ in Schwintowski (ed.), Deregulierung, private Krankenversicherung, Kfz-Haftpflichtversicherung (Nomos-Verl.-Ges., Baden-Baden 1994) 23; in Portuguese published in: Revista trimestral de direito púbblico (São Paulo) 23 (1998) 141 Jürgen Basedow, ‘Das österreichische Bundesgesetz über internationales Versicherungsvertragsrecht – Eine rechtspolitische Würdigung’ in Fritz Reichert-Facilides (ed.), Aspekte des internationalen Versicherungsvertragsrechts im Europäischen Wirtschaftsraum (Mohr Siebeck, Tübingen 1994) 89 Jürgen Basedow and Wolfgang Drasch, ‘Das neue Internationale Versicherungsvertragsrecht’, Neue Juristische Wochenschrift (1991) 785 Jürgen Basedow and others, ‘Policy Options for Progress Towards a European Contract Law. Comments on the issues raised in the Green Paper from the Commission of 1 July 2010, COM (2010) 348 final’, Rabels Zeitschrift für ausländisches und internationales Privatrecht (2011) 371 Jürgen Basedow and Jens M. Scherpe, ‘Das internationale Versicherungsvertragsrecht und “Rom I”’ in Stephan Lorenz, Festschrift für Andreas Heldrich zum 70. Geburtstag (Beck, Munich 2005) 511 Juan Bataller Grau, ‘The Harmonization of European Contract Law: The Case of Insurance Contracts’, (2014) 21(1) Connecticut Insurance Law Journal 149 Juan Bataller Grau, ‘Un marco común de referencia para el contrato de seguro en la Unión Europea’, Revista española de seguros (2008) 669 Juan Bataller Grau, ‘Principios de Derecho Europeo del contrato de seguro (PEICL). Un paso importante hacia la integración de los mercados nacionales de seguros en la Unión Europea’, Revista española de seguros (October 2007) No. 132, 497 Juan Bataller Grau, ‘Hacia un mercado asegurador único: la solución del 26° régimen’, Revista española de seguros (2005) 401 Juan Bataller Grau, ‘Hacia la unificación de la normativa del contrato de seguro en Europa? Tópicos para un debate’ in Guillermo Palao Moreno, Lorenzo Prats Albentosa, and María José Reyes López (eds.), Derecho patrimonial europeo (Aranzadi, Cizur Menor (Navarra) 2003) 40 Juan Bataller Grau, ‘Un mercado europeo del seguro: Claves para una revisión’ in Camara Lapuente (ed.), Derecho privado europeo (Colex, Madrid 2003) 741 Juan Bataller Grau, ‘Constitución del grupo de trabajo Restatement of European Insurance Law’, Revista española de seguros (March 2000) No. 101, 13 Bertil Bengtsson, ‘Om europeisk och svensk försäkringsavtalsrätt’, Juridisk Tidskrift, vol. 24, issue 1 (2012-13) 3 Ferry Blom, ‘Principles of European Insurance Contract Law (PEICL): The risk insured (risicoverzwaring)’, Aansprakelijkheid, Verzekering & Schade (2009) 59 Christoph Brömmelmeyer, ‘Principles of European Insurance Contract Law’, European Review of Contract Law (2011) 445 Diana Cerini, ‘Diritto del contratto di assicurazione e diritto europeo: i “Principles of European Insurance Contract Law” (PEICL)’, Diritto ed economia dell’assicurazione (2008) 35 Diana Cerini, ‘Nuovo Parere del comitato economico e sociale europeo (doc. CESE 1626/2004): quale via per un contratto di assicurazione europeo?’ Diritto ed economia dell’assicurazione (2005) 675 Malcolm Clarke, ‘Aggravation of risk during the insurance period’ [2004] Lloyd’s Maritime and Commercial Law Quarterly 109 Malcolm Clarke and Helmut Heiss, ‘Towards a European Insurance Contract Law? Recent Developments in Brussels’ [2006] Journal of Business Law 600 Herman Cousy, ‘Les Principes du droit européen du contrat d’assurance: L’esprit des principes’, Revue Générale du Droit des Assurances; forthcoming. Herman Cousy, ‘The Principles of European Insurance Contract Law: the Duty of Disclosure and the Aggravation of Risk’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 119 Herman Cousy, ‘Komt er dan toch een Europese harmonisatie van het verzekeringscontractenrecht?’ Tijdschrift voor Belgisch Handelsrecht / Revue de Droit Commercial Belge (2007/8) 741 Petr Dobiáš, ‘Die Neuregelung des Versichrungsrechts im reformierten tschechischen ZGB’, Versicherungsrecht (2013) 5

xlix

Publications on the PEICL

Petr Dobiáš, ‘Právní úprava pojištění v novém občanském zákoníku ve srovnání se Zásadami evropského smluvního pojišťovacího práva’ (The Legal Regulation of Insurance in New Civil Code in Comparison with Principles of European Insurance Contract Law) in Naděžda Rozehnalová and Tereza Kyselovská (eds.), K některým vývojovým otázkám mezinárodního práva soukromého (Brno, Masarykova Univerzita 2013) 215 Petr Dobiáš, ‘Mezinárodně právní aspekty pojištění (International Legal Aspects of Insurance)’, Pojistné rozpravy, (2010) No. 26, 39 Petr Dobiáš, ‘Principles of European Insurance Contract Law in Comparison with Czech Law on Insurance Contracts’ in Alexander J. Belohlávek and Nadežda Rozehnalová (eds.), Czech Yearbook of International Law (Juris Publishing Inc., New York 2010) 111 Petr Dobiáš, ‘Zásady evropského pojišťovacího smluvního práva (Principles of European Insurance Contract Law)’ in Monika Pauknerová and Michal Tomášek (eds.), Nové jevy na počátku 21. století, Part IV (Proměny soukromého práva, Karolinum, Prague 2009) 210 Tjalling Dorhout Mees, ‘Principles of European Insurance Contract Law (PEICL): Insurers pre-contractual duties, the conclusions of the contract and the insurance policy (art. 2:201 t /m 2:203, 2:301 t /m 2:304, 2:501 en 2:502)’, Aansprakelijkheid, Verzekering & Schade (2008) 229 Tjalling Dorhout Mees, ‘Principles of European Insurance Contract Law (PEICL): Retroactive and Preliminary Cover, Duration of the Insurance Contract and Post-Contractual Information Duties of the Insurer (articles 2:401 t /m 2:403, 2:601 t /m 2:604 en 2:701 en 2:702)’, Aansprakelijkheid, Verzekering & Schade (2009) 3 Bill Dufwa, ‘Försäkringsavtalsrätten i den europeiska smältdegeln’ in Svensk Försäkrings Framtid (Stockholm 2000) 129 Bill Dufwa, ‘Integration genom fristående akademiska grupper’, Europarättslig Tidskrift (2006) 307 Bill Dufwa, ‘Principer för europeisk försäkringsavtalsrätt (PEICL)’, 2 Juridisk Tidskrift (2010-11) 351 Erich Erlenbach, ‘Auf dem Weg zum europäischen Versicherungsvertragsrecht’, Versicherungswirtschaft (2008) 2120 Imrich Fekete, ‘Princípy európskeho práva poistnej zmluvy’ (Principles of European Insurance Contract Law), Poistné rozhľady (2010) (XVI), No. 3, 3. Marcel Fontaine, ‘An Academic View’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 29 Dariusz Fuchs, ‘Dopuszczalność umowy ubezpieczenia wstecznego w prawie polskim i wspólnotowym’ in W Sułkowska (ed.) Szanse i zagrożenia dla rynków ubezpieczeń w krajach Europy Środkowej i Wschodniej (Kraków 2009) 177 Dariusz Fuchs, ‘Insurance Restatement’, Rozprawy Ubezpieczeniowe nr 9 (2/2010) 134 Dariusz Fuchs, ‘Insurance Restatement jako europejski instrument opcjonalny służący regulacji umowy ubezpieczenia’, Rozprawy Ubezpieczeniowe nr 9 (2/2010) 126 Dariusz Fuchs, ‘Insurance Restatement jako przykład jednolitego prawa wspólnotowego o umowie ubezpieczenia’, Studia ubezpieczeniowe nr 127 (2009) 307 Dariusz Fuchs, ‘Nowelizacja Kodeksu Cywilnego w zakresie wybranych przepisów ogólnych o umowie ubezpieczenia w s´wietle prac Project Group on a Restatement of European Insurance Contract law’, Wiadomos´ci Ubezpieczeniowe No. 7/8 (2007) 32 Dariusz Fuchs, ‘Pojęcie ryzyka w unijnym prawie ubezpieczeń gospodarczych na przykładzie Polski a treść Principles of European Insurance Contract Law’ in M. Serwach (ed.), Ryzyko ubezpieczeniowe. Wybrane zagadnienia teorii i praktyki (Łódź 2013) 227 Dariusz Fuchs, ‘Restatement of European Insurance Contract Law a koncepcja polskiego kodeksu ubezpieczeń’ in E. Kowalewski (ed.) O potrzebie polskiego kodeksu ubezpieczeń (Toruń 2009) 125 Dariusz Fuchs, ‘The European Restatement Contract Law a grupowe ubezpieczenia na życie’ in E. Kowalewski (ed.), Ubezpieczenia grupowe na życie a prawo zamówień publicznych, wydawnictwo TNOiK (Toruń 2010), 185 Yong Q Han, ‘The Comparative-law Relevance of PEICL to the Making of Judicial Interpretation II to the Chinese Insurance Act 2009’ (2012) 1 Insurance Law Review 94 (Law Press, Beijing) David Harari, ‘The Role of the Intermediary’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 75

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Publications on the PEICL

Helmut Heiss, ‘Anlegerschutz bei Versicherungsprodukten’ in Egon Lorenz (ed.), Karlsruher Forum 2014 (Verlag Versicherungswirtschaft, Karlsruhe 2015) 41 Helmut Heiss, ‘Gemeinsames Europäisches Kaufrecht – Ein Instrument auch des EU-Außenhandels? ’ in Normann Witzleb, Reinhard Ellger, Peter Mankowski, Hanno Merkt and Oliver Remine (eds.), Festschrift D. Martiny (Mohr, Tübingen 2014) 917 Helmut Heiss, ‘Das Gemeinsame Europäische Kaufrecht – Ein optionales Instrument’ in Stefan Perner, Daniel Rubin, Martin Spitzer and Andreas Vonkilch (eds.), Festschrift A. Fenyves (Verlag Österreich, Vienna 2013) 873 Helmut Heiss, ‘Angleichung als Legitimationsproblem – Stellt die Schaffung von „Parallelrecht“ einen geeigneten Ausweg dar?’ in Leander Loacker and Corinne Zellweger-Gutknecht (eds.), Differenzierung als Legitimationsproblem – APARIUZ (Heft 14 Dike, Zurich 2012) 4 Helmut Heiss, ‘General Report’ in Helmut Heiss (ed.), Insurance Contract Law between Commercial Law and Consumer Protection (Reports presented at the 18th International Congress on Comparative Law of the Académie internationale de droit comparé/International Academy of Comparative Law – Washington 2010) (Dike, Zurich 2012) 7 Helmut Heiss, ‘Optionales europäisches Versicherungsvertragsrecht’, Rabels Zeitschrift für ausländisches und internationales Privatrecht 76 (2012) 316 Helmut Heiss, ‘Pre-contractual information duties of insurers in EU insurance contract law’ (2012) 23 Insurance Law Journal (Australia) 86 Helmut Heiss, ‘Introduction’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law: A Model Optional Instrument (Sellier elp, Munich 2011) 7 Helmut Heiss, ‘Optionales europäisches Vertragsrecht als “2. Regime”’ in Holger Altmeppen and Hanns Fitz, Heinrich Honsell (eds.), Festschrift G. H. Roth (Beck, Munich 2011) 237 Helmut Heiss, ‘Principi di Diritto Europeo del Contratto di Assicurazione (PDECA)’, Responsabilitá Civile e Previdenza 1 (2011) 5 (= Italian translation of the ‘Introduction’ in Jürgen Basedow, John Birds, Malcolm Clarke, Herman Cousy and Helmut Heiss (eds.), Principles of European Insurance Contract (Sellier elp, Munich 2009)) Helmut Heiss, ‘Europäisches Versicherungsvertragsrecht: Vom Gemeinsamen Referenzrahmen zum optionalen Instrument?’ in Michael Ganner (ed.), Die soziale Funktion des Privatrechts. Festschrift Heinz Barta (Linde, Vienna 2009) 311 Helmut Heiss, ‘The Common Frame of Reference (CFR) of European Insurance Contract Law’, (2009) 1 European Journal of Commercial Contract Law 2 Helmut Heiss, ‘Insurance Contracts in Rome I: Another recent failure of the European legislature’ in Petar Sarcevic, Andrea Bonomi and Paul Volken (eds.), Yearbook of Private International Law, vol. X (Sellier elp, Munich 2008) 261 Helmut Heiss, ‘Insurance Premium’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 141 Helmut Heiss, ‘The Common Frame of Reference (CFR) of European Insurance Contract Law’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 95 Helmut Heiss, ‘The Common Frame of Reference (CFR) of European Insurance Contract Law’ in Reiner Schulze (ed.), Common Frame of Reference and Existing EC Contract Law (Sellier elp, Munich 2008) 229 Helmut Heiss, ‘Der Vorentwurf einer “Gesamtrevision des BG über den Versicherungsvertrag (VVG)” im Lichte der europäischen Entwicklungen’, Haftung und Versicherung (2007) 235 Helmut Heiss, ‘Die Direktklage vor dem EuGH’, Versicherungsrecht (2007) 327 Helmut Heiss, ‘Európai biztosítási jog felé: szabályrendszer – közös referenciakeret – választható eszköz?’ Bistosítási Szemle (2007) No. 2, 3 Helmut Heiss, ‘Principles of European Insurance Contract Law (PEICL)’ in Marc Hendrikse and Jac Rinkes (eds.), Insurance and Europe (Uitgeverij Paris, Zutphen 2007) 41 Helmut Heiss, ‘Reform des internationalen Versicherungsvertragsrechts’, Zeitschrift für die gesamte Versicherungswissenschaft (2007) 503 Helmut Heiss, ‘Das Kollisionsrecht der Versicherungsverträge nach Rom I und II’, Versicherungsrecht (2006) 185 Helmut Heiss, ‘Mobilität und Versicherung’, Versicherungsrecht (2006) 448

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Publications on the PEICL

Helmut Heiss, ‘Towards a European Insurance Contract Law: Restatement – Common Frame of Reference – Optional Instrument?’ Internationale Juristenvereinigung Osnabrück 13 (2006) 1 Helmut Heiss, ‘Europäischer Versicherungsvertrag – Initiativstellungnahme des Europäischen Wirtschaftsund Sozialausschusses verabschiedet’, Versicherungsrecht (2005) 1 Helmut Heiss, Malcolm Clarke and Mandeep Lakhan, ‘Europe: towards a harmonised European insurance contract law – the PEICL’ in Julian Burling and Kevin Lazarus (eds.), Research Handbook on International Insurance Law and Regulation (Elgar, Cheltenham 2011) 603 Helmut Heiss and Marlene Danzl, ‘Der Gemeinsame Referenzrahmen des europäischen Versicherungsvertragsrechts’, Versicherungsrundschau (2008) 20 Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 693 Helmut Heiss and Ariane Ernst, ‚Finanzinnovationen im Versicherungsrecht – ein Überblick‘ in Florian Möslein (ed.), Finanzinnovationen und Rechtsordnung (Schulthess, Zurich 2014) 336 Helmut Heiss and Olympia Kosma, ‘Die Direktklage des Geschädigten im europäischen Versicherungsrecht’ in Mop van Tiggele-van der Velde, Gerard Kamphuisen, and B. K. M. Lauwerier (eds.), De Wansink-bundel: van draden en daden (Liber amicorum Han Wansink) (Kluwer, Deventer 2006) 279 Helmut Heiss and Mandeep Lakhan, ‘An Optional Instrument for European Insurance Contract Law’, Merkourios 2010, Volume 27/Issue 71, 1 Helmut Heiss and Leander D. Loacker, ‘Neue Impulse für die Schaffung eines Europäischen Versicherungsvertragsrechts – Europäischer Wirtschafts- und Sozialausschuss präsentiert Initiativstellungnahme’, Versicherungsrundschau (2005) Issue 9, 245 Helmut Heiss and Ulrike Mönnich, ‘Versicherungsanlageprodukte im PRIPS-Vorschlag – Basisinformationsblatt statt information overload?’, Versicherungsrundschau 2013, 32 Helmut Heiss and Marielle van Popering, ‘Richting Europees Verzekeringsovereen- komstenrecht: Restatement – Common Frame of Reference – Optioneel instrument?’ Nederlands tijdschrift voor handelsrecht (2007) 189 Peter Hinchliffe, ‘Review of Principles of European Insurance Law’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 167 Gerard Kamphuisen, ‘PEICL en de tussenpersoon’, Aansprakelijkheid, Verzekering & Schade (2008) 291 Georg Kathrein, ‘Welcome Address’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 3 Leander D. Loacker, ‘Europäisches Versicherungsvertragsrecht’ in Dirk Looschelders and Petra Pohlmann (eds.), Versicherungsvertragsgesetz – Kommentar (2nd edn Heymanns, Cologne 2011) 63 Leander D. Loacker, ‘Gleich und Gleich gesellt sich gern?’, Haftpflicht und Versicherung (2011) 351 Leander D. Loacker, ‘Insurance soft law? Die Idee eines europäischen Versicherungsvertragsrechts zwischen akademischer Pionierleistung, Gemeinsamem Referenzrahmen und optionalem Instrument’, Versicherungsrecht (2009) 289 Ulrike Mönnich, ‘Europäisierung des Privatversicherungsrechts’ in Roland Michael Beckmann and Annemarie Matusche-Beckmann (eds.), Versicherungsrechts-Handbuch (Beck, Munich 2009) 70 (§ 2) Andreas Müller, ‘Vers un droit européen du contrat d’assurance. Le “Project Group Restatement of European Insurance Contract Law”’, (2007) 1 European Review of Private Law 59 Jaana Norio-Timonen, ‘Harmonisaatio ja eurooppalaiset kuluttajavakuutusmarkkinat’ in Olli Mäenpää, Dan Frände and Päivi Korpisaari (eds.), Oikeuden historiasta tulevaisuuden Eurooppaan – Pia Letto-Vanamo 60 vuotta (Suomalainen Lakimiesyhdistys, Helsinki 2014) 261 Jaana Norio-Timonen, ‘Legal Coherence as a Prerequisite for a Single European Insurance Market’ in Pia Letto-Vanamo and Jan Smits (eds.), Coherence and Fragmentation in European Private Law (Sellier elp, Munich 2012) 43 Jaana Norio-Timonen, ‘Vakuutussopimuslainsäädännön harmonisoinnilla kohti eurooppalaisia kuluttajavakuutusmarkkinoita’ in Lena Sisula-Tulokas, Irene Luukkonen, and Marja Saario (eds.), Kuluttajien vakuutustoimisto ja Vakuutuslautakunta 35 vuotta (Kuluttajien vakuutustoimisto & Vakuutuslautakunta, Helsinki 2006) 69 Jorge Pegado Liz, ‘Developments at EESC Level’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 25

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Publications on the PEICL

Fritz Reichert-Facilides, ‘Verbraucherschutz – Versicherungsnehmerschutz: Überlegungen im Blick auf das Projekt: “Restatement des Europäischen Versicherungsvertragsrechts”’ in Bernhard Eccher, Kristin Nemeth, and Astrid Tangl (eds.), Verbraucherschutz in Europa. Festgabe für em. o. Univ.-Prof. Dr. Heinrich Mayrhofer (Verl. Österreich, Vienna 2002) 179 Fritz Reichert-Facilides, ‘Gesetzgebung in Versicherungsvertragsrechtssachen: Stand und Ausblick’ in Fritz Reichert-Facilides and Anton K. Schnyder (eds.), Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 1 Fritz Reichert-Facilides, ‘Europäisches Versicherungsvertragsrecht?’ in Jürgen Basedow, Klaus J. Hopt, and Hein Kötz (eds.), Festschrift für Ulrich Drobnig zum siebzigsten Geburtstag (Mohr Siebeck, Tübingen 1998) 119 Ioannis Rokas, ‘De la création d’un cadre communautaire pour l’industrie de l’assurance à la création d’un cadre communautaire pour les produits d’assurance’, Revue Générale du Droit des Assurance, No. 4 (2010) 977 Ioannis Rokas, ‘The precontractual information duty of the policy holder as per the principles of the European insurance contract law (PEICL)’ in Serbian Insurance Law Association (eds.), Memoirs of the Serbian Insurance Law Association (11th Annual Conference at Palic, Serbia, April 2010, Radunic-Belgrade) Ioannis Rokas, ‘Future developments in the European Insurance structure of business’ in Ioannis Rokas (ed.), Poreia pros to syghrono asfalistiko dikaio (Ant. N. Sakkoulas, Athens 2007) 14 Martin Schauer, ‘Comments on Duration of Contract and Precautionary Measures’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 157 Frank Stadermann and Lisette de Haan, ‘Verzekerd voorval en verjaring in de PEICL’, Aansprakelijkheid, Verzekering & Schade (2009) 123 Mop van Tiggele-van der Velde, ‘Principles of European Insurance Contract Law (PEICL): Applicant’s Precontractual Information Duty (art. 2:101-105)’, Aansprakelijkheid, Verzekering & Schade (2008) 187 Abel B. Veiga Copo, Los principios de derecho europeo del contrato de seguro (Pontificia Universidad Javeriana, Bogota 2012) G.J.P. de Vries, ‘Principles of European Insurance Contract Law’, Nederlands Tijdschrift voor Handelsrecht (2009) 129 Diana Wallis, ‘Political Perspectives’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 15 Manfred Wandt, ‘Entwicklungen des Versicherungsrechts: Vielfalt von Regelungszielen bei unterschiedlichen Regelungsebenen und -bereichen’, Versicherungsrundschau (2006) 159 Manfred Wandt, ‘Diskriminierung und Versicherung’ in Egon Lorenz (ed.), Karlsruher Forum 2004: Haftung wegen Diskriminierung nach derzeitigem und zukünftigem Recht (VVW, Karlsruhe 2005) 117 Manfred Wandt, ‘Internationales Privatrecht der Versicherungsverträge’ in Fritz Reichert-Facilides and Anton K. Schnyder (eds.), Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 85 Manfred Wandt and Hannah Ehlers, ‘Insurance Supervision in Germany – Equitable Life and Mannheimer Leben: Can the Germans rest assured of their assurance?’ in Festschrift für Prof. Dr. Hüseyin Ülgen, vol. I (Istanbul 2007) 981 Manfred Wandt and Hannah Ehlers, ‘Die geschlechtsabhängige Tarifierung von Versicherungsprämien im Lichte neuer Entwicklungen’ in Hugo Tiberg (ed.), Essays on tort, insurance, law and society in honour of Bill. W. Dufwa, vol. 2 (Jure, Stockholm 2006) 1201 Manfred Wandt and Jens Gal, ‘Transnationalisierungstendenzen im Versicherungsrecht’ in Fachbereich Rechtswissenschaft der Goethe-Universität Frankfurt am Main (ed.) 100 Jahre Rechtswissenschaft in Frankfurt – Erfahrungen, Herausforderungen, Erwartungen (2014) 629 Han Wansink, ‘Precautionary Measures: A Friendly or Hostile Tool of Limiting Insurance Coverage?’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 151 Han Wansink, ‘The Principles of European Insurance Contract Law (PEICL), een belangrijke stap voorwaarts op weg naar de integratie van de nationale verzekeringsmarkten in de Europese Unie’, Aansprakelijkheid, Verzekering & Schade (2008) 117

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Publications on the PEICL

Han Wansink, ‘The Restatement of European Insurance Contract Law: doelstellingen en verhouding tot Nederlands verzekeringsrecht’ in F.J.M. De Ly, K.F. Haak and W.H. van Boom, Eenvormig bedrijfsrecht: realiteit of utopie? (Boom Juridische Uitgevers, The Hague 2006) 24 Han Wansink, ‘The Restatement of European Insurance Contract Law: doelstellingen en verhouding tot Nederlands verzekeringsrecht’, Verzekeringsarchief (2006) 81 Felix Wieser, ‘The Perspective of the Insurance Industry’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 51

B. Published Reports on the Restatement Mirjam Blaas, ‘Harmonisierung des europäischen Vertragsversicherungsrechts’, Zeitschrift für Europarecht, internationales Privatrecht und Rechtsvergleichung (2000) 229 Mirjam Blaas, Anna K. Pontiller and Peter Morandell, ‘Vorvertragliche Anzeigepflichten des Versicherungsnehmers im europäischen Vergleich’, Versicherungsrundschau (2001) 55 Malcom Clarke, ‘First Working Session of Project Group “Restatement of European Insurance Contract Law” on 10 September 1999 in Innsbruck, Austria’, (February 2000) No. 102, British Insurance Law Association Journal 31 Jens Gal, ‘Entwurf des Common Frame of Reference für Versicherungsverträge’, Versicherungsrecht (2009) 190 Daniel Jacobasch and Petra Zobel, ‘“A Common Insurance Market in an Enlarged European Union” und die 4. Tagung der Projektgruppe “Restatement of European Insurance Contract Law”’, Versicherungsrecht (2001) 1356 Joseph Legerer, ‘“Restatement of European Insurance Contract Law” – Bericht über ein Symposium in Innsbruck vom 9. und 10. 9. 1999’, Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung (2000) No. 9, 144 Joseph Legerer, ‘“Restatement of European Insurance Contract Law” – Tagungsbericht vom Innsbrucker Workshop am 9. /10. 9. 1999’, Neue Zeitschrift für Versicherung und Recht (2000) 16 Florian Marxer, ‘Restatement of European Insurance Contract Law – Erste Schritte zu einem vereinheitlichten Versicherungsvertragsrecht in Europa’, Liechtensteinische Juristen-Zeitung (2001) No. 3, 93 Florian Marxer, ‘Verso l’unificazione del diritto nel contratto di assicurazione in Europa. Il Restatement of European Insurance Contract Law’, Diritto ed Economia dell’Assicurazione (2002) No. 2, 315 Anna Pontiller, ‘Restatement des europäischen Versicherungsvertragsrechts: Erster Workshop in Innsbruck’, Versicherungsrundschau (2000) No. 9, 132 Bernhard Rudisch, ‘“Europäisches Versicherungsvertragsgesetz” im Werden?’ Versicherungswirtschaft (April 2000) 489 Bernhard Rudisch, ‘Restatement of European Insurance Contract Law – Workshop in Innsbruck am 9. und 10. 9. 1999’, Versicherungsrecht (2000) 827 Petra Zobel, ‘Ein Muster für ein europäisches Versicherungsvertragsgesetz? Von der 2. Tagung der Projektgruppe “Restatement of European Insurance Contract Law”’, Versicherungswirtschaft (2000) No. 14, 1065.

liv

Introduction Helmut Heiss Contents I. The Principles of European Insurance Contract Law as an Academic Endeavour 1. The Idea 2. Work Progress 3. The Approach a. Scope of Application b. Matters Not Regulated in the Principles of European Insurance Contract Law c. Mandatory Rules d. Adherence to the Existing Acquis Communautaire e. Language and Terminology f. Uniform Interpretation and Application g. Enforcement II. The Principles of European Insurance Contract Law as a Model Optional Common European Insurance Contract Law (CEICL) 1. The Need for a Common European Insurance Contract Law (CEICL) 2. Optional instead of a Non-optional CEICL 3. Main Features of the Proposed Optional Instrument

a. Optional Instrument as an EU Regulation b. The “Option” c. Optional Instrument and Mandatory Insurance Contract Law d. Comprehensive instead of Minimum Standard Regulation e. Option also Available for Purely Domestic Contracts f. Option and Third Parties to the Insurance Contract g. Comparison with the Proposed Common European Sales Law (CESL) III. Political Developments 1. Opinions of the European Economic and Social Committee (EESC) 2. Resolutions of the European Parliament 3. European Commission a. Establishment of a Common Frame of Reference of European Contract Law b. Commission Expert Group on European Insurance Contract Law IV. Final Remarks

I. The Principles of European Insurance Contract Law as an Academic Endeavour 1. The Idea I1.  The Project Group aiming at a “Restatement of European Insurance Contract Law”1 started its work in 1999. By then, Community legislation in the field of insurance supervisory law had established a system of single licensing and the conflict of laws issues had been partly unified and partly harmonised through the Brussels Convention2 , the Rome Conven-

1

This Group has been called by various names such as “Project Group”, “Innsbruck Group”, “Insurance Group” or “Restatement Group”; for the purposes of this article the Group shall be called “Project Group”. 2 The Brussels Convention was initially transformed into the Brussels I Regulation (44/2001), which has now been replaced by Brussels Ibis Regulation (1215/2012).

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Principles of European Insurance Contract Law (PEICL): Introduction

tion (80/934/EEC)3 and the Directives on insurance law4 . However, in contrast with these achievements in supervisory and private international law, an earlier attempt to harmonise substantive insurance contract law had failed.5 In view of this shortcoming of Community legislation in the field of insurance law, the Project Group decided to undertake to elaborate “Principles of European Insurance Contract Law” (PEICL) in order to reactivate the unification process. I2.  The reasons for this undertaking have been extensively chronicled in the research works of the late Professor Fritz Reichert-Facilides and of Professor Jürgen Basedow which were first presented at an international conference hosted by Professor Anton K. Schnyder in Basle in 1998.6 In the course of this conference both argued that the attempts to complete the internal insurance market within the EU had failed so far. Reichert-Facilides pointed out that the harmonisation of private international law had failed to bring about the expected or at least aspired effects for the internal market.7 The analysis provided by Jürgen Basedow showed that the private international law of insurance contracts was in fact an inadequate means for the creation of an internal insurance market.8 For the sake of policyholder protection, which is considered a “general good” by the European Court of Justice,9 the applicable rules of private international law are to a large extent mandatory. Pursuant to art. 11 para. 1(b) of the Brussels Ibis Regulation (1215/2012), a policyholder, insured or beneficiary may bring an action against an insurer at the court where the plaintiff is domiciled. Under the relevant rules of private international law as laid down in art. 7 of the Rome I Regulation 3

As to the application of the Rome Convention (80/934/EEC) to certain insurance contracts, see art. 1 paras. 3 and 4 of the Rome Convention (80/934/EEC); the Rome Convention (80/934/EEC) has meanwhile been replaced by the Rome I Regulation (593/2008). 4 See – for non-life insurance – the Second Non-Life Insurance Directive (88/357/EEC); Third NonLife Insurance Directive (92/49/EEC); for life assurance the Life Assurance Consolidation Directive (2002/83/EC); the Directives’ rules on the conflict of laws have meanwhile been replaced by the Rome I Regulation (593/2008), in particular its art. 7; as far as insurance contracts are concerned, the Rome I Regulation applies also in EEA Contracting States, see art. 187 of the Solvency II Directive (2009/138/ EC). 5 The Amended Proposal for a Council Directive on Insurance Contract Law [1979] OJ C190/2 (as amended by [1980] OJ C355/30) was withdrawn by the Commission on 4 August 2003. With regard to earlier attempts of harmonisation of insurance contract law, see Jürgen Basedow, ‘The Optional Application of the Principles of European Insurance Contract Law’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 111. 6 See the conference volume edited by Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000). 7 Fritz Reichert-Facilides, ‘Gesetzgebung in Versicherungsvertragsrechtssachen: Stand und Ausblick’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 1, 10; id., ‘Europäisches Versicherungsvertragsrecht?’ in Jürgen Basedow, Klaus J. Hopt and Hein Kötz (eds.), Festschrift für Ulrich Drobnig zum siebzigsten Geburtstag (Mohr Siebeck, Tübingen 1998) 119. 8 Jürgen Basedow, ‘Die Gesetzgebung zum Versicherungsvertrag zwischen europäischer Integration und Verbraucherpolitik’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 13. 9 Case 205/84 Commission v Federal Republic of Germany [1986] ECR 3755.

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Principles of European Insurance Contract Law (PEICL): Introduction

(593/2008), the law applicable to the insurance contract will regularly be the law of the Member State in which the policyholder has his habitual residence. It follows that litigation in matters relating to insurance will usually take place in the home country of the policyholder and be subjected to the law of this country as well.10 As a consequence, insurers must be and actually are aware of the fact that any product they sell cross-border will be subjected to a law different to the law in their home country. I3.  The impact of a new legal environment on an insurance product can be very great.11 If, for example, an insurance product which is lawfully marketed in England is sold cross-border to a German customer, a particular exception contained in the contract terms which is, in principle, not subject to the English Unfair Terms in Consumer Contracts Regulations 199912 may be subject to regulation under German law and could be held to be void under s. 307 German CC. If so, the scope of cover provided by one and the same particular insurance product will turn out to be broader in Germany than in England due to the differences in the law applicable. It follows that insurers will be reluctant to provide cross-border services.13 I4.  In fact, statistics show that cross-border provision of insurance services plays a minor role in the internal European market.14 The European Commission has repeatedly acknowledged this fact.15 Insurers carry on their international business predominantly through subsidiaries or branch offices. Despite the fact that such international activities are widespread in the European market they are insufficient to establish an internal market for insurance products. The products sold by foreign subsidiaries or branch offices are not the same as the products sold by the insurer in the country where it is domiciled. Products offered in the country of the subsidiary or branch office are either developed independently of the products sold in the home market of the insurer or at least adapted to the legal regime of the state where the insurance product is sold.

10

See, for example, Helmut Heiss, ‘Stand und Perspektiven der Harmonisierung des Versicherungsvertragsrechts in der EG’ in Petra Pohlmann (ed.), Veröffentlichungen der Münsterischen Forschungsstelle für Versicherungswesen an der Westfälischen Wilhelms-Universität zu Münster (“Münsteraner Reihe”), Issue 99 (VVW, Karlsruhe 2005) 8 f. 11 Jürgen Basedow, ‘Insurance Contract Law as Part of an Optional European Contract Act’ [2003] Lloyd’s Maritime and Commercial Law Quarterly 498, 500 (abridged version in ERA Forum 2003 (ERA Forum scripta iuris europaei), vol. 4, issue 2 (Springer, Heidelberg 2003) 56); as to examples of obstacles, see the CEA Policy Report as well as the Final Report of the Commission Expert Group on European Insurance Contract Law. 12 For details see Malcolm Clarke, The Law of Insurance Contracts (5th edn Informa, London 2006) 19-5. 13 For further examples Helmut Heiss, ‘Mobilität und Versicherung’, Versicherungsrecht (2006) 448. 14 See Jürgen Basedow, ‘Die Gesetzgebung zum Versicherungsvertrag zwischen europäischer Integration und Verbraucherpolitik’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 17 referring to data provided by EUROSTAT; Final Report of the Commission Expert Group on European Insurance Contract Law, nos. 4 ff. (in particular no. 6). 15 See para. I61 below.

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Principles of European Insurance Contract Law (PEICL): Introduction

I5.  To give a relatively simple example, in Germany foreign insurance companies primarily sell insurance products through subsidiaries or branch offices.16 There are, however, no foreign (mass) insurance products sold in Germany in the same way they are sold at the place of origin. As a result, competition between insurance products throughout Europe remains rather restricted. Insurance enterprises are not in a position to compete across Europe with any innovative products they introduce, nor are customers in a position to gain full access to various national insurance products. The internal market for insurance products has not been completed. I6.  It may be argued that the shortcomings of the internal insurance market in its current condition could be overcome by a shift in European international insurance contract law allowing parties to choose the law of the insurer’s domicile as the law applicable to the insurance contract. However, the argument turns out to be mistaken. First of all, the approach would deprive the policyholder of protection by private international law, which does not appear to be acceptable as a matter of legal policy. Secondly, the shift in the rules of private international law would be followed by a switch in behaviour on the part of insurers and policyholders. Whereas under the current private international law regime, it is chiefly the insurer who hesitates to provide cross-border services, it would be the policyholder who would be reluctant to acquire foreign insurance products in the absence of protection under private international law. The internal market would remain incomplete.17 I7.  In the light of this analysis, the Project Group adopted the view that “the law of insurance [in Europe] must be one”.18 However, the Project Group thought that the European Commission could hardly be expected to resume its efforts to harmonise insurance contract law unless the circumstances which had led to the failure of the earlier proposal for a directive had changed or would change in the future. In fact, several factors had indeed changed by 1999. The European Court of Justice had opened the door to a system of single licensing in its decision of 4 December 1986,19 and the system was finally introduced by the Third Generation of Insurance Directives20 some years later. Some members of the Project Group reported talks with representatives of insurance companies and their impression 16

See, for example, Leander D. Loacker, ‘Insurance soft law?’ Versicherungsrecht (2009) 289; for Europe in general Final Report of the Commission Expert Group on European Insurance Contract Law, no. 4 ff. 17 See in more detail Jürgen Basedow, ‘Die Gesetzgebung zum Versicherungsvertrag zwischen europäischer Integration und Verbraucherpolitik’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 20 f.; Helmut Heiss, ‘Stand und Perspektiven der Harmonisierung des Versicherungsvertragsrechts in der EG’ in Petra Pohlmann (ed.), Veröffentlichungen der Münsterischen Forschungsstelle für Versicherungswesen an der Westfälischen Wilhelms-Universität zu Münster (“Münsteraner Reihe”), Issue 99 (VVW, Karlsruhe 2005) 13 f. 18 Hans Möller as quoted by Fritz Reichert-Facilides, ‘Rechtsvereinheitlichung oder Rechtsvielfalt? Überlegungen vor dem Modell des Versicherungsvertragsrechts’ in Fritz Schwind (ed.), Europarecht, IPR, Rechtsvergleichung (Verlag der Österreichischen Akademie der Wissenschaften, Vienna 1988) 155. 19 Case 205/84 Commission v Federal Republic of Germany [1986] ECR 3755. 20 See (what is today) art. 15 para. 1 of the Solvency II Directive (2009/138/EC); Ulrike Mönnich, ‘Europäisierung des Privatversicherungsrechts’ in Roland Michael Beckmann and Annemarie Matusche-Beckmann (eds.), Versicherungsrechts-Handbuch (3rd edn Beck, Munich 2015) § 2 paras. 49 ff.; Helmut Heiss

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Principles of European Insurance Contract Law (PEICL): Introduction

that the insurance industry was actually rather keen to provide its services cross-border but could not do so for the reasons given. Last but not least, an ever increasing number of European citizens, “euro-mobile citizens”, were moving and living in Member States other than their home country.21 Without any doubt, these “euro-mobile citizens” had created a strong demand for Europe-wide insurance solutions, namely the availability of insurance policies which they could bring along without facing legal barriers whenever they moved from one Member State to another.22 What was still missing was a comparative analysis of the various insurance contract laws in Europe and a text stating the Principles of European Insurance Contract Law which could be considered a set of rules amounting to a common understanding of insurance contract law throughout Europe. I8.  The requisite comparative analysis of insurance contract law in Europe was presented shortly afterwards by Jürgen Basedow, a founding member of the Project Group, and his research team at the Hamburg Max Planck Institute. The work was published as “­Europäisches Versicherungsvertragsrecht”23 in three volumes in 2002 and 2003.24 The Hamburg team did not, however, elaborate a model law for Europe, leaving this task to the Project Group which was established by Fritz Reichert-Facilides25 and chaired by him until his death on 23 October 2003. Following his death, Helmut Heiss, who was then vice-chairman of the Project Group, took over as interim chairman and was appointed as the new chairman by the Project Group on 15 April 2004. The overall purpose of the work done by the Project Group is to provide the European legislature with a model law designed to overcome the existing barriers to an integrated European insurance market.

21



22



23



24 25



and Anton K. Schnyder, ‘Versicherungsverträge’ in Herbert Kronke, Werner Melis and Anton K. Schnyder (eds.), Handbuch des Internationalen Wirtschaftsrechts (Schmidt, Cologne 2005) 142. The image of a “euro-mobile citizen” was first created by Jürgen Basedow, ‘Das österreichische Bundesgesetz über internationales Versicherungsvertragsrecht – Eine rechtspolitische Würdigung’ in Reichert-Facilides (ed.), Aspekte des internationalen Versicherungsvertragsrechts im Europäischen Wirtschaftsraum (Mohr Siebeck, Tübingen 1994) 89. See, inter alia, the exemplifications in Helmut Heiss, ‘Mobilität und Versicherung’, Versicherungsrecht (2006) 448. European Insurance Contract Law. Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht, vols. I & II (Mohr Siebeck, Tübingen 2002); vol. III (Mohr Siebeck, Tübingen 2003). As to the basic concepts of the project see Fritz Reichert-Facilides, ‘Gesetzgebung in Versicherungsvertragsrechtssachen: Stand und Ausblick’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000); id., ‘Europäisches Versicherungsvertragsrecht?’ in Jürgen Basedow, Klaus J. Hopt and Hein Kötz (eds.), Festschrift für Ulrich Drobnig zum siebzigsten Geburtstag (Mohr Siebeck, Tübingen 1998) 119; id., ‘Verbraucherschutz – Versicherungsnehmerschutz: Überlegungen im Blick auf das Projekt: “Restatement des Europäischen Versicherungsvertragsrechts”’ in Bernhard Eccher, Kristin Nemeth and Astrid Tangl (eds.), Verbraucherschutz in Europa. Festgabe für em. o. Univ.-Prof. Dr. Heinrich Mayrhofer (Verl. Österreich, Vienna 2002) 179, 180; as to his role as the founding father of the Project Group see Helmut Heiss, ‘Introduction’, in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier, Munich 2011) 7, 8 ff.

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Principles of European Insurance Contract Law (PEICL): Introduction

2. Work Progress I9.  Since its establishment in 1999, the Project Group has drafted Principles of European Insurance Contract Law modelled on American Restatements of the Law,26 in a manner which had previously been adopted by the so-called Lando Commission on European Contract Law in the course of drafting its Principles of European Contract Law (PECL).27 Accordingly, the Principles of European Insurance Contract Law are drafted as Rules, followed by Comments presenting the reasons for the rule and illustrating how it should be applied by giving examples, and Notes28 reproducing the status quo of insurance contract law in each Member State and the acquis communautaire on the point in question. The entire text was linguistically revised by the Drafting Committee of the Project Group, headed by Professor Malcolm A. Clarke. I10.  The first part of the Project Group’s work, comprising the general part of insurance contract law including general rules for all types of indemnity insurance and for all types of insurance of fixed sums, was completed and published as the first edition to the present volume in 2009. The first edition of the PEICL consisted of three Parts comprising a total of 13 Chapters.29 I11.  The Project Group’s work of course did not stop at this point. In 2008, the Group started drafting special rules for individual branches of insurance, namely liability insurance, life insurance and group insurance. The Project Group chose these branches because it thought them to be at the forefront of transborder provision of services in the insurance sector. The Commission Expert Group on European Insurance Contract Law30 evidently

26

With regard to the American Restatement of the Law, see www.ali.org (The American Law Institute’s website). 27 See Ole Lando and Hugh Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000) and Ole Lando, Eric Clive, André Prüm and Reinhard Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003). 28 The method of presenting these “Notes” has, however, changed in the new parts of the 2nd expanded edition; as to this change para. I12 below. 29 As to the 1st edition of the PEICL, see the contributions of experts representing a political and academic view as well as the stakeholders’ views of insurers, intermediaries and consumers, in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier, Munich 2011); for further reviews of the PEICL see Alessandra Zanobetti, Uniform Law Review (2010) 611; Mario Pérez Garrigues (2010) Revista de Derecho Mercantil 797; Gerhard Köbler, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung (2011) No. 128; Andrea Uber and Inga Krebs, ‘Neuerscheinungen versicherungswissenschaftlicher Bücher’ Zeitschrift für die gesamte Versicherungswissenschaft 99 (2010) 237; Martin Ebers, European Review of Private Law (2010) 1037 ff.; Jacquetta Castle, ‘Book Review’ (March 2012) British Insurance Law Association No. 124, 84 ff.; Christian Armbrüster, ‘PEICL – The Project of a European Insurance Contract Law’ (2013-2014) 20(1) Connecticut Insurance Law Journal 119 ff. 30 This Expert Group was set up by Commission Decision of 17 January 2013 on setting up the Commission Expert Group on a European Insurance Contract Law [2013] OJ C16/6; as to the Expert Group and its work section III.3.b. below.

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Principles of European Insurance Contract Law (PEICL): Introduction

shared this view since it chose in its Final Report of January 2014 for liability insurance (including motor insurance) and life insurance as branches specifically to be dealt with.31 I12.  As a consequence, the present volume as compared with the first edition is enlarged by Parts Four (Liability Insurance), Five (Life Insurance) and Six (Group Insurance). The way the new Rules are presented is basically in line with the presentation of the Rules on general issues (Parts One, Two and Three). However, the Project Group decided not to produce separate Notes on special branch insurance rules, but instead to annotate the Comments to such rules by way of footnotes, giving references to the status quo of insurance contract law on the specific branches in national law. One of the main reasons for this change in style was that there are substantially less statutory rules on branches in national laws than on the general issues of insurance contract law.

3. The Approach a. Scope of Application I13.  Despite the fact that the 2nd expanded edition of the PEICL provides for both general rules of insurance contract law and rules on specific branches, it does not mean that its scope of application is restricted to those branches regulated. Rather, the substantive scope of application of the Principles of European Insurance Contract Law encompasses all types of insurance32 except reinsurance.33 Insurance of special risks (for example marine and aviation insurance) and large risk insurance are covered by the Principles of European Insurance Contract Law, notwithstanding the fact that the second sentence of Article 1:103 para. 2 grants parties unfettered freedom of contract in those cases.34

b. Matters Not Regulated in the Principles of European Insurance Contract Law I14.  In spite of their broad scope of application, the Principles of European Insurance Contract Law do not govern every aspect which may become relevant in matters concerning insurance contracts. Quite the contrary, the Principles of European Insurance Contract Law abstain, in principle, from regulating issues of general contract law. The resulting gap must be filled in a way which allows as little recourse to national law as possible. Consequently, the first sentence of Article 1:105 para. 1 prohibits any recourse to national law when applying the Principles of European Insurance Contract Law. Instead, Article 1:105 para. 2 provides for the application of the Principles of European Contract Law in their most recent edition

31

As to this Report para. I63 below. As to the application of national rules to specific branches which are not regulated by the PEICL, paras. I17 f. below. 33 See Article 1:101 PEICL. 34 See Monika Stahl, ‘The Principles of European Insurance Contract Law (PEICL) and Their Application to Insurance Contracts for Large Risks’, Veröffentlichungen aus dem LL.M.-Studiengang Internationales Wirtschaftsrecht der Universität Zürich und des Europa Instituts an der Universität Zürich, vol. 71 (Schulthess, Zurich 2013). 32

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Principles of European Insurance Contract Law (PEICL): Introduction

drafted by the Lando Commission.35 By virtue of this reference, the Principles of European Contract Law become the lex generalis of the Principles of European Insurance Contract Law. Furthermore, the Project Group consistently drafted the Principles of European Insurance Contract Law with the Principles of European Contract Law in mind, not only as far as terminology is concerned but also in order to avoid any duplication in the provisions. Whenever a rule of the Principles of European Contract Law also appeared to be appropriate in the context of insurance, the Project Group abstained from regulating the matter in the Principles of European Insurance Contract Law. Nevertheless, some provisions were more or less “copied” from the Principles of European Contract Law to the Principles of European Insurance Contract Law, and for a simple reason: The provisions of the Principles of European Contract Law are, in principle, non-mandatory. However, the Project Group thought that some of these non-mandatory provisions should be mandatory in the context of insurance. This goal was achieved by copying these provisions into the Principles of European Insurance Contract Law and thereby making them mandatory in accordance with Article 1:103 para. 2 PEICL.36 I15.  The choice in favour of referring to the Principles of European Contract Law had already been made by the Project Group for its first edition of the PEICL. This is mainly because the General Part of the Draft Common Frame of Reference (DCFR)37 had not been finished at the time the Project Group was drafting its Rules, and the CESL Regulation Proposal,38 which also provides for general rules, did not exist at that stage. Considering that the DCFR has never been adopted as an “official” CFR by the European Commission and that the fate of the proposal on a CESL appears to be unclear39, the Project Group decided to retain a reference to the PECL as the lex generalis to its PEICL. The future developments on a CFR (if any) and a CESL will show whether it will be advisable to change from the PECL to another instrument in the future. This will, of course, not be possible without making adaptations to the PEICL. I16.  Whenever an issue is neither regulated in the Principles of European Insurance Contract Law nor in the Principles of European Contract Law, Article 1:105 para. 2 PEICL refers to the principles common to the laws of the Member States. Article 1:105 para. 2 PEICL clearly prescribes methods of comparative law to fill gaps. I17.  As has been mentioned, the Principles of European Insurance Contract Law only regulate some, but not all individual branches of insurance. However, there are mandatory 35

Ole Lando and Hugh Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000) and Ole Lando, Eric Clive, André Prüm and Reinhard Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003). 36 See, for example, Jürgen Basedow, ‘The Optional Application of the Principles of European Insurance Contract Law’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 111, 114 f. 37 The Draft Common Frame of Reference in its “Full Edition”, including Comments and Notes, only became available at the end of 2009. 38 Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, COM (2011) 635 final, as amended. 39 The proposal for a CESL has recently been withdrawn and a modified proposal has been announced; see para. I45 below.

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Principles of European Insurance Contract Law (PEICL): Introduction

provisions in national laws on the other branches not governed by the PEICL. It therefore seems inconceivable to apply the Principles of European Insurance Contract Law to such branches without recourse to the (otherwise applicable) national rules of law as the protection of the policyholder would be undermined. Hence, the second sentence of Article 1:105 para. 1 provides for the application of the mandatory rules of the national law applicable to the special types of insurance contracts. Such application of national law is, however, limited to “branches of insurance which are not covered by special rules contained in the PEICL”.40 Since the 2nd edition now regulates liability, life and group insurance, the second sentence of Article 1:105 para. 1 no longer plays a role for these branches. I18.  Special mention has to be made of compulsory liability insurance. While the PEICL apply to compulsory liability insurances (see Article 16:101), they do not unify rules on specific types of compulsory liability insurance. The reason is obvious: A large number of compulsory insurance contracts is regulated by national laws, EU law or other sources.41 This is why Article 16:101 para. 2 in line with art. 7 para. 4(a) of the Rome I Regulation (593/2008/EC) provides that such insurance contracts must comply with the “specific provisions imposing the obligation” even if the PEICL have been chosen as the law governing a liability insurance contract. Thus, any rules making liability insurance compulsory, whether at the level of national law or EU law, will ultimately take priority over the PEICL.

c. Mandatory Rules I19.  As indicated earlier, it is the mandatory rules of national insurance contract law which form a barrier to the proper functioning of the internal insurance market. For this reason, the Project Group restricted its work to drafting European principles which are mandatory and therefore capable of substituting national mandatory law. I20.  The mandatory character of the Principles of European Insurance Contract Law can be seen in two manners. On the one hand, there are rules which must not be derogated from by parties’ agreement at all. Such “absolutely” mandatory rules are mentioned in Article 1:103 para. 1, where the relevant rules are listed in the first sentence. Moreover, the second sentence of the same provision provides in a general manner that “sanctions for fraudulent behaviour” must not be derogated from by agreement. A good example of a rule containing a sanction for fraudulent behaviour is Article 2:104, for instance. I21.  The mandatory character of most provisions of the Principles of European Insurance Contract Law, however, is of a different kind and may be described as “semi-mandatory”. The first sentence of Article 1:103 para. 2 PEICL states: “The contract may derogate from all other provisions of the PEICL as long as such derogation is not to the detriment of the policyholder, the insured or beneficiary.” 40

See the second sentence of Article 1:105 para. 1 PEICL. As to this point the Final Report of the Commission Expert Group on European Insurance Contract Law (see para. I63 below) states at no. 31: “The number and type of compulsory insurance requirements differ substantially from country to country. In Spain there are around 400 cases of compulsory insurance, for example liability for bullfighting and for owners of dangerous dogs, while in France there are around 100, in Poland 40 and in Germany, at the federal level, only around 30.”

41

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Principles of European Insurance Contract Law (PEICL): Introduction

I22.  The semi-mandatory character of the Principles of European Insurance Contract Law is limited to mass risk insurance. Since semi-mandatory rules of insurance law purport to ensure the protection of the policyholder, insured and beneficiary as the weaker parties, their mandatory character must be removed when there is no need for protection, as is the case with insurance covering large risks. Mass risks are distinguished from large risks by a statutory definition42 in line with the existing acquis communautaire, which defines the term in art. 13 no. 27 of the Solvency II Directive (2009/138/EC) in line with its predecessor, art. 5 of the First Non-Life Insurance Directive (73/239/EEC). Art. 16 no. 5 of the Brussels Ibis Regulation (1215/2012) and art. 7 para. 2 of the Rome I Regulation (593/2008) also refer to the same definition. The protection granted to the policyholder, insured and beneficiary under the Principles of European Insurance Contract Law is consequently not restricted to consumer contracts, applying instead to all mass risks, including insurance contracts concluded by small or medium-size enterprises.

d. Adherence to the Existing Acquis Communautaire I23.  As has been mentioned, the definition of large risks in the second sentence of Article 1:103 para. 2 follows the one found in the existing insurance acquis. This shows that the Group endeavoured to adhere to the existing acquis communautaire as closely as possible unless shortcomings in it indicated a deviation from it. In addition to the insurance acquis,43 several directives on consumer contract law44 outlining the information duties of the entrepreneur and withdrawal rights of the consumer,45 the judicial control of unfair contract terms46 as well as injunctions47 have been employed by the Principles of European Insurance Contract Law. I24.  The Principles of European Insurance Contract Law also include an adapted reference to the Gender Directive (2004/113/EC), which contains a special provision for insurance contracts.48 While Article 1:207 in the first edition of the PEICL allowed differences in premiums and conditions in line with art. 5 para. 2 of the Gender Directive (2004/113/EC), 42

See the definition given by the second sentence of Article 1:103 para. 2 PEICL. An overview on the existing insurance acquis is presented by Robert Purves, ‘Europe: the architecture and content of EU insurance regulation’ in Julian Burling and Kevin Lazarus (eds.), Research Handbook on International Insurance Regulation (Elgar, Cheltenham 2011) 621; Ulrike Mönnich, ‘Europäisierung des Privatversicherungsrechts’ in Roland Michael Beckmann and Annemarie Matusche-Beckmann (eds.), Versicherungsrechts-Handbuch (3rd edn Beck, Munich 2015) § 2 paras. 23 ff., Dirk Looschelders and Lothar Michael, ‘§ 11 Europäisches Versicherungsrecht’ in Armin Hatje and Peter-ChristianMüller-Graff (eds.), Enzyklopädie Europarecht, vol. V, Europäisches Sektorales Wirtschaftsrecht (ed. by Ruffert) (Nomos, Baden-Baden 2013) paras. 144 ff.; and Leander D. Loacker, ‘Vorbemerkung C.’ in Dirk Looschelders and Petra Pohlmann (eds.), VVG-Kommentar (2nd edn Wolters Kluwer Deutschland, Cologne 2011) paras. 14 ff. 44 As to the relevance of the consumer acquis in the field of insurance see Helmut Heiss and Anton K. Schnyder, ‘Versicherungsverträge’ in Herbert Kronke, Werner Melis and Anton K. Schnyder (eds.), Handbuch des Internationalen Wirtschaftsrechts (Schmidt, Cologne 2005) 195. 45 See in particular the Distance Marketing Directive (2002/65/EC) as amended. 46 See the Unfair Contract Terms Directive (93/13/EEC). 47 See the Injunctions Directive (2009/22/EC). 48 See art. 5 of the Gender Directive (2004/113/EC). 43

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the article had to be redrafted in light of the findings of the ECJ in its judgment of 1 March 2011, C-236/09 (‘Test-Achats’).49 Article 1:207 as amended prohibits the use of gender as a factor “resulting in differences in individuals’ premiums and benefits”. I25.  The Principles of European Insurance Contract Law do not transpose the Insurance Mediation Directive (2002/92/EC)50 as the PEICL do not deal with the professional duties of intermediaries at all.51 However, the Directive was considered by the Group and was a source of inspiration for regulating the pre-contractual information and advice duties of the insurer.52 I26.  In the aftermath of the financial crisis of 2008, the European legislature has endeavoured to intensify regulation of financial markets including insurance. Art. 91 of the MiFID2 (2014/65/EU) has already brought about substantial changes to the Insurance Mediation Directive (2002/92/EC) and a new Proposal for an IDD, which is intended to replace the Insurance Mediation Directive (2002/92/EC), has been published.53 Moreover, the PRIIP Regulation (1286/2014)54 has been adopted. While these new/forthcoming regulations influence insurance law, they have not been adopted by the 2nd expanded edition of the PEICL. As far as the changes to the Insurance Mediation Directive (2002/92/EC) are concerned, the reasons for not transposing the new provisions are the same as set above in view of the original version of the Insurance Mediation Directive (2002/92/EC).55 As far as the Proposal for an IDD and the PRIIP Regulation (1286/2014) are concerned, the main reason for not considering them is that when the Project Group held its last plenary workshop at the end of January 2014, it was very much unclear as to whether the proposed rules would ever be enacted and, more so, what would be their contents. In any event, as far as the PRIIP Regulation (1286/2014) is concerned, it will produce EU and thus uniform law throughout the Member States. Thus, at least in principle, the regulation could be applied in addition to the PEICL without impacting their purpose to provide a European insurance market with uniform rules of insurance contract law. Exceptions must, however, be noted: Art. 11 paras. 2, 3 and 4 of the PRIIP Regulation (1286/2014) all refer to the national law applicable for determining details of the investors claim for damages in case of any breach 49

Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres [2011] ECR I-773; Ulrike Mönnich, ‘Unisex: Die EuGH-Entscheidung vom 1.3.2011 und die möglichen Folgen’ Versicherungsrecht 2011, 1092 ff.; Leander D. Loacker, ‘Gleich und Gleich gesellt sich gern? Überlegungen zur Einführung verpflichtender Einheitstarife im europäisierten Versicherungsvertragsrecht’ Haftung & Versicherung 2011, 351 ff. 50 As amended by MiFID2 (2014/65/EU), see art. 91. 51 As to the reason for not regulating the professional duties of the intermediaries, see para. I44 below. 52 For a comparative analysis, see, for example, Leander D. Loacker, Informed Insurance Choice? (Elgar, Cheltenham 2015). 53 On 16 July 2015, the Presidency / ​General Secretariat of the Council confirmed the ‘final compromise text with a view to agreement’ concerning the Proposal for a Directive of the European Parliament and of the Council on insurance mediation (recast) (IMD), Doc. No. 10747 / 15 of 16 July 2015, Interinstitutional File: 2012 / 0175 (COD); the Directive has, however, not yet been adopted. 54 Regulation (EU) No. 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIP) [2014] OJ L352/1. 55 See para. I25 above

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Principles of European Insurance Contract Law (PEICL): Introduction

of the insurer’s duty to draft and publish a key information document. As far as a future IDD is concerned, the proposal as it stands covers areas regulated within the PEICL mainly because the proposed IDD is also intended to apply to insurers in case of direct sales. Thus, adaptations of the PEICL may be necessary in the future in order to keep them in line with the other insurance acquis communautaire. e. Language and Terminology I27.  Notwithstanding the availability of translations into several other languages,56 the Principles of European Insurance Contract Law were drafted in English as the working language of the Project Group. Accordingly, English terminology was used in the Principles of European Insurance Contract Law. However, this does not necessarily mean that the Project Group used national English legal terminology. Quite the contrary, in order to avoid giving the impression that a particular provision merely codifies a concept of English common law, the Project Group departed from English legal terminology on many occasions. For example, the Principles of European Insurance Contract Law do not refer to “promissory warranties” but to “precautionary measures”57 in order to avoid giving the mistaken impression that the Principles of European Insurance Contract Law have implemented the English concept of “warranties” At the same time, the Project Group attempted to use as much international legal terminology as was available. First of all, the Group adhered as far as possible to the terminology of the Principles of European Contract Law as well as the existing acquis communautaire. Secondly, it had recourse to terminology found in international transport conventions, for example to the phrase “with intent to cause the loss or recklessly and with knowledge that the loss would probably result”, which is taken from the Montreal Convention 1999 and used on several occasions throughout the Principles of European Insurance Contract Law to identify an especially serious form of fault.

f. Uniform Interpretation and Application I28.  The effectiveness of a European insurance contract law cannot be guaranteed by the uniform text of the Principles of European Insurance Contract Law alone, but instead depends to a large degree on uniform application of the law by national courts. Article 1:104, therefore, states general considerations according to which the Principles of European Insurance Contract Law should be interpreted. Among these, “uniformity of application” plays a significant role.58 In spite of the existence of Article 1:104, it would clearly be desirable, for the sake of uniform application of the Principles of European Insurance Contract Law, for the European Court of Justice to give preliminary rulings on the interpretation of the Principles of European Insurance Contract Law. Under art. 267 TFEU, however, this would require the European legislature to enact the Principles of European Insurance Contract Law as (secondary) EU law.

56

See the private translations in this book below. See the heading of Section One of Chapter Four of the Principles of European Insurance Contract Law. 58 A similar rule can be found in art. 7 CISG. 57

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Principles of European Insurance Contract Law (PEICL): Introduction

g. Enforcement I29.  In principle, the policyholder, insured and beneficiary have to enforce their rights by bringing an action in court. The Principles of European Insurance Contract Law themselves do not provide for an out-of-court complaint and redress mechanism. They do not, however, interfere with existing mechanisms of alternative dispute resolution, such as ombudsmen.59 In fact, the insurer is under a duty to inform the policyholder about such mechanisms in accordance with Articles 2:201 para. 1(k) and 2:501(k). I30.  Moreover, the Principles of European Insurance Contract Law allow “qualified entities”, such as consumer associations, to seize a competent national court or authority and seek an order prohibiting or requiring the cessation of infringements of the Principles of European Insurance Contract Law.60 The term “qualified entity” is defined by reference to the list drawn up by the European Commission in pursuance of art. 4 para. 3 of the Injunctions Directive (2009/22/EC).61

II. The Principles of European Insurance Contract Law as a Model Optional Common European Insurance Contract Law (CEICL) 1. The Need for a Common European Insurance Contract Law (CEICL) I31. The PEICL have been characterised in section I of this Introduction as an academic endeavour with a practical aim, namely to provide the European insurance market with a set of uniform rules allowing parties to conclude “European” insurance contracts, which can be sold cross-border by insurers and carried along by euro-mobile citizens without a need to adapt them to any national insurance contract law. However, the PEICL cannot achieve this goal as long as they remain a non-binding set of rules (“soft law”). Non-binding rules obviously do not replace national law and they are commonly not considered eligible for the parties through a choice of law within the meaning of the Rome I Regulation (593/2008).62 While Recital 13 of the Rome I Regulation (593/2008) empowers the parties to “incorporate by reference into their contract a non-State body of law”, such incorporation would trans59

EU law is regulating out-of-court redress mechanisms in its Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22 [2013] OJ L165/63; see also Regulation (EU) 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation 2006/2004 and Directive 2009/22/ EC (Regulation on Consumer ODR), as well as Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters. 60 Article 1:301 para. 1 PEICL. 61 See Article 1:301 para. 2 PEICL referring to the Injunctions Directive (2009/22/EC); the list was published on 15 April 2014 by the Commission, ‘Communication concerning Article 4(3) of Directive 2009/22/EC of the European Parliament and of the Council on injunctions for the protection of consumers’ interests, which codifies Directive 98/27/EC, concerning the entities qualified to bring an action under Article 2 of this Directive’ [2014] OJ C115/1. 62 This would be different if parties would submit their contract to arbitration; however, arbitration is usually not considered an adequate form of dispute resolution for mass risk insurances.

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Principles of European Insurance Contract Law (PEICL): Introduction

form the PEICL into contract terms subject to the law applicable and all its mandatory rules. Thus, a choice by contracting parties in favour of the PEICL would not provide parties with uniform rules. I32. In order to give parties a set of uniform rules, the European legislature would have to enact the PEICL as EU law. The proper legislative instrument would be an EU Regulation. Regulations are directly applicable in every Member State and enjoy priority over national law under art. 288 para. 2 TFEU. Thus, the PEICL serve as a model EU Regulation. I33.  Providing a uniform set of rules is not the only advantage of using an EU Regulation. Procedural advantages would follow as well, because an EU regulation would, technically speaking, be secondary EU law. Thus, the European Court of Justice, using the preliminary ruling procedure, would be accorded the authority to interpret the instrument in order to guarantee legal uniformity in Europe.63 In contrast, as long as non-binding rules, such as the PEICL, are not enacted as an EU Regulation, they will not give access to the European Court of Justice, even if they were available as the lex contractus by a choice of the parties. Furthermore, again from a procedural point of view, an EU Regulation would, in several respects, be applied like domestic law by courts of Member States and by national supervisory authorities. In contrast, the determination and application of general principles of law would, in various Member States, be subject to special rules, for instance the parties would be obliged to assert and prove non-domestic law. As non-domestic law, its application by courts of first or second instance would only be subject to limited review by supreme courts in some Member States. Finally, the various establishments for insurance ombudsmen provide that they may not, or at times even must not accept cases, which are subject to foreign law.64 Therefore, on choosing general principles of contract law, customers’ access to these alternative mechanisms for dispute settlement could remain barred. In comparison, the application of an EU Regulation would be put on a par with the application of domestic law so as to guarantee its application ex officio, its revision by national supreme courts and its application by national ombudsmen bureaus.

2. Optional instead of a Non-optional CEICL I34.  If enacted as an EU Regulation (‘CEICL Regulation’), the PEICL could become a non-optional instrument and, thus, replace national (insurance) contract law due to the direct effect of EU Regulations. Alternatively, the PEICL could become an optional instrument and, thus, replace national law only for those contracts which the parties have by agreement submitted to the CEICL (PEICL). For that purpose, the EU Regulation enacting the PEICL would have to restrain its own direct effect by providing for its application to a particular contract only upon a choice by the parties. Thus, it would provide the parties with an alter-

63

See art. 267 TFEU. See, for example, s. 8 para. 3 of the German Code of Procedure for the Insurance Ombudsman, according to which the ombudsman can reject dealing with complaints at every level of the procedure if the claim is to be determined decisively according to foreign law.

64

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native to national law.65 In this way, it may be compared to the United Nations Convention on Contracts for the International Sale of Goods (CISG), under art. 6 of which parties may opt out, namely agree that the Convention will not apply to their contract.66 I35.  Both approaches, optional as well as non-optional legislation, would serve the need of the internal insurance market for uniform rules. Both would offer advantages particularly to “multiple players”, such as insurers doing business in the European internal market, who would not have to be concerned with the impact of different national contract law regimes on their insurance products. The costs of legal research and adaptation of contracts as well as its administration to each national system of contract law would disappear. Moreover, a uniform European insurance contract law would allow for efficient cross-border use of the Internet in order to sell standard policies. For euro-mobile policyholders a uniform European insurance contract law would provide a stable contractual framework which is not subject to the changing national law of their domiciles. Cross-border commuters could benefit from the continuous access they have to two different insurance markets. However, non-mobile policyholders would profit as well because a uniform insurance contract law would give them better access to foreign products. I36.  There are compelling reasons for why an optional instrument would be preferable. First of all, an optional instrument has far better chances of finding political approval than a non-optional instrument. National legislatures, encouraged by national representatives of the legal profession, would be more inclined to resist an instrument which replaced national contract law. This is true in particular for those Member States which have enacted comprehensive legislation on insurance contracts more recently, very often after lengthy debates at national level. They would, however, have no reason to refuse an optional instrument which left national law untouched.67 Secondly, an optional instrument appears to be economically more efficient because it does not force parties to alter their traditional ways of doing business; it merely provides them with an additional option. Insurers acting internationally will be more inclined to take advantage of the opportunity than others acting only locally; they can continue to use their traditional contract forms and procedures inspired by national law, and, therefore, would not be burdened with costs of adapting their contracts to a new legal environment.

65

Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 693, 695; see Dirk Staudenmayer, ‘Ein optionelles Instrument im Europäischen Vertragsrecht?’ Zeitschrift für Europäisches Privatrecht (2003) 828, 832. 66 Peter Schlechtriem, Internationales UN-Kaufrecht (Mohr Siebeck, Tübingen 2005) 15 f. 67 Helmut Heiss, ‘Stand und Perspektiven der Harmonisierung des Versicherungsvertragsrechts in der EG’ in Petra Pohlmann (ed.), Veröffentlichungen der Münsterischen Forschungsstelle für Versicherungswesen an der Westfälischen Wilhelms-Universität zu Münster (“Münsteraner Reihe”), Issue 99 (VVW, Karlsruhe 2005) 36; as to the aspect of competition between legal orders see Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 696 and n 11.

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Principles of European Insurance Contract Law (PEICL): Introduction

I37.  Due to these considerations, the PEICL were drafted as a model optional instrument.68 Thus, they are only to be applied if they are chosen by the parties to the contract. The pertinent provision, Article 1:102 PEICL, reads as follows:

Article 1:102 Optional Application The PEICL shall apply when the parties, notwithstanding any limitations of choice of law rules under private international law, have agreed that their contract shall be governed by it. In that event, subject to Article 1:103, the parties shall apply the PEICL as a whole and shall not exclude the application of particular provisions.

3. Main Features of the Proposed Optional Instrument a. Optional Instrument as an EU Regulation I38.  Using an EU Regulation in order to create an optional instrument on European insurance contract law is in line with the approach taken for existing optional instruments. Notably, the European forms of business association, such as the European Company (SE) and the European Economic Interest Grouping (EEIG), were incorporated into the laws of all the Member States by means of EC Regulations.69 In this way, a founder of such an association can choose between the national and European models. These European entities quite simply augment the numerus clausus of company forms available in a single Member State. In a similar manner, the Community Trademark Regulation (207/2009) provides for an option to register a Community trademark instead of a national one. The approach presented here is, therefore, in line with such optional instrument models.

b. The “Option” I39.  The option of the parties is modelled on the assumption that the PEICL will become an EU Regulation, thereby opening the choice to the parties. Thus, the choice is not a choice of law under the Rome I Regulation (593/2008). Indeed, a choice of law under the Rome I Regulation (593/2008) would not be sufficient to provide parties with a set of uniform rules on insurance contract law because such choice would always be restricted by protective provisions such as art. 7 (Insurance contracts)70 and art. 9 (Overriding mandatory provisions) of the Rome I Regulation (593/2008). I40.  Article 1:102 grants parties the option of choosing the PEICL “notwithstanding any limitations of choice of law rules under private international law”. Indeed, submission of the contract to the PEICL does not require protection of either party by means of private international law for a simple reason: an EU Regulation would have direct effect in every Member State. Choice of a (supranational) law which is applicable in the Member State 68

See Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier, Munich 2011). 69 SE Regulation (2157/2001) and EEIG Regulation (2137/85). 70 In particular, art. 7 para. 3 of the Rome I Regulation (593/2008) limits the scope of party autonomy for mass risk insurance covering risks in the Member States.

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Principles of European Insurance Contract Law (PEICL): Introduction

where both parties have their habitual residence is not to be considered a choice of a foreign law and, thus, will not justify any restrictions imposed by art. 7 of the Rome I Regulation (593/2008).71 I41.  Irrespective of the fact that there is no reason for protecting parties, in particular the policyholder, against a choice of the PEICL by means of private international law, such choice must not have a detrimental effect on the policyholder. This is why an optional Common European Insurance Contract Law must provide a high level of consumer protection.72 I42.  The situation is different where parties from third states are involved. Since an EU Regulation does not apply in third states, a choice in favour of the PEICL amounts to a choice of a foreign law. It follows that parties from third states must be protected against a choice in favour of the PEICL in the same way they are protected against the choice of any other law which is foreign to them.73 I43.  A solution for both situations is offered by the so-called “2nd regime” model.74 Under this model, an optional European (insurance) contract law is considered to be a “2nd regime” of contract law within each Member State. Due to the enactment of an optional EU Regulation on insurance contract law, there would be two parallel regimes, the national and the supranational, in every Member State. Thus the choice between the two of them is, first, a substantive choice between two sets of contract law applicable in the same Member State and, second, such choice will be available to the extent that the law of a Member State applies to the contract in accordance with the conflict rules as set out in the Rome I Regulation (593/2008). I44.  It follows from the “2nd regime” model that a choice in favour of the PEICL will always be available in cases which are exclusively connected with one or more Member State(s).75 The choice will not be limited by rules of private international law in such case because Article 1:102 allows an unrestricted choice in each and every member States concerned. I45.  If, however, a contract has relevant connections with a third state, no choice will be available where the law of a third country is applicable. If, for instance, a consumer insurance contract is concluded with a consumer resident in a third country concerning a risk 71

In more detail, Helmut Heiss, ‘Optionales europäisches Versicherungsvertragsrecht’, Rabels Zeit­ schrift für ausländisches und internationales Privatrecht 76 (2012) 316, 330 f. 72 In more detail, Helmut Heiss, ‘Optionales europäisches Versicherungsvertragsrecht’, Rabels Zeitschrift für ausländisches und internationales Privatrecht 76 (2012) 331 f.; as to the consumer’s view in general, see Peter Hinchliffe, ‘The Consumer‘s View’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 59. 73 In more detail, Helmut Heiss, ‘Optionales europäisches Versicherungsvertragsrecht’, Rabels Zeitschrift für ausländisches und internationales Privatrecht 76 (2012) 334 f. 74 As proposed by Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 707 ff.; this model is followed, in principle, by the CESL Regulation Proposal. 75 Unless, of course, the parties validly opt out of it by a choice of law under private international law, which they will not do if they intend to choose the CEICL (PEICL).

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Principles of European Insurance Contract Law (PEICL): Introduction

also located in a third state (which is regularly the case when the policyholder resides in a third state), the law of the consumer will govern the insurance contract in accordance with art. 6 para. 1 of the Rome I Regulation (593/2008)76 and, thus, no choice in favour of the PEICL will be available to the parties under that law. Of course, parties may choose the law of a Member State, which grants them the option in favour of the PEICL, in accordance with the first sentence of art. 6 para. 2 of the Rome I Regulation (593/2008). However, such choice and the option exercised in favour of an application of the PEICL will be restricted by the application of more favourable mandatory rules of the consumer law in accordance with the second sentence of art. 6 para. 2 of the Rome I Regulation (593/2008). This is in line with the legal policy underlying art. 6 of the Rome I Regulation (593/2008). c. Optional Instrument and Mandatory Insurance Contract Law I46.  In order to achieve its aims, the optional instrument allows parties to opt out not only of non-mandatory but also of mandatory rules of national insurance contract law. The choice is free of any restrictions imposed by current private international law. It follows that the optional instrument must provide appropriate mandatory rules of insurance contract law, effectively replacing the protection of the policyholder offered under national law, thereby applying a high level of protection in the optional instrument, just as other Union acts must do under art. 114 para. 3 TFEU.77 I47.  It may appear contradictory to propose an optional instrument which would only be applicable if parties opt into it, and at the same time present a comprehensive regulation of mandatory rules on insurance contract law in the optional instrument.78 However, the contradiction disappears when looking at the fact that the option of the parties is restricted to choosing the instrument as a whole or not at all.79 A national system with a high degree of protection for the policyholder will therefore be replaced by a European system offering a different kind of protection, yet protection at an equivalent level.80 Since a partial choice is excluded, the insurers are not allowed to pick and choose parts of each system for their own benefit. This approach tends to ensure that the insurer’s reason for opting into the European contract law regime is not to avail itself of a more relaxed standard of policyholder protection, but to be able to base its business on one and the same set of rules throughout Europe. 76

Art. 7 of the Rome I Regulation (593/2008) is not applicable in such situations due to the limitation of its scope of application in para. 1. 77 See the Opinion of the European Economic and Social Committee on ‘The European Insurance Contract Law’ [2005] OJ C157/1, no. 6.2. 78 As to mandatory rules in optional contract law in general, see Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 697 and 699. 79 Jürgen Basedow, ‘Der Versicherungsbinnenmarkt und ein optionales europäisches Vertragsgesetz’ in Manfred Wandt (ed.), Kontinuität und Wandel des Versicherungsrechts. Festschrift für Egon Lorenz zum 70. Geburtstag (VVW, Karlsruhe 2004) 93, 105; Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 709 f. 80 Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 699.

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Principles of European Insurance Contract Law (PEICL): Introduction

d. Comprehensive instead of Minimum Standard Regulation I48.  Mandatory insurance contract law is similar to consumer law in that it protects the weaker party.81 Several EU directives have been enacted in the field of consumer contract law and many of them contain so-called minimum standard clauses allowing national legislatures to provide consumers with a higher standard of protection than required, as long as such national rules do not violate the fundamental economic freedoms of the TFEU.82 It is to be noted, however, that more recent directives no longer contain minimum standard clauses83 or at least restrict the rights of the Member States to provide for more protective rules on certain issues such as, for instance, the information to be provided to consumers.84 The latter is also the approach taken in art. 4 of the Consumer Rights Directive (2011/83/ EU) stating: “Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive”. I49.  In the case of an optional instrument in the insurance sector, a general or even a restricted minimum standard clause would seriously jeopardise its fundamental purpose, namely to allow the insurer to sell and the policyholder to buy insurance anywhere in Europe, based solely on one legal regime. This objective would be frustrated if national legislatures could impose higher levels of policyholder protection.85 The optional instrument must govern the insurance contract comprehensively.86 This is not to say that a partial or minimum standard regulation would not help at all. It simply would not be sufficient to achieve the completion of the internal insurance market, which is, after all, the ultimate objective of the exercise. This is why the PEICL form a comprehensive regulation and, under the first sentence of Article 1:105 para. 1, do not permit references to national law.

81

Fritz Reichert-Facilides, ‘Gesetzgebung in Versicherungsvertragsrechtssachen: Stand und Ausblick’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 6 f. 82 See art. 8 of the Unfair Contract Terms Directive (93/13/EEC); art. 8 para. 2 of the Directive on Sale of Consumer Goods and Guarantees (1999/44/EC). 83 Consumer Credit Directive (2008/48/EC), as amended, and Timeshare Directive (2008/122/EC) 84 Distance Marketing Directive (2002/65/EC), as amended. 85 See Helmut Heiss, ‘Stand und Perspektiven der Harmonisierung des Versicherungsvertragsrechts in der EG’ in Petra Pohlmann (ed.), Veröffentlichungen der Münsterischen Forschungsstelle für Versicherungswesen an der Westfälischen Wilhelms-Universität zu Münster (“Münsteraner Reihe”), Issue 99 (VVW, Karlsruhe 2005) 32 f; Daniela Weber-Rey, ‘Harmonisation of European Insurance Contract Law’ in Stefan Vogenauer and Stephen Weatherill (eds.), The harmonisation of European contract law: implications for European private laws, business and legal practice (Hart Publishing, Oxford 2006) 207, 220; Leander D. Loacker, ‘Insurance soft law?’ Versicherungsrecht (2009) 295; European Commission, Green Paper on Financial Services Policy (2005-2010), COM (2005) 177 final; Opinion of the European Economic and Social Committee on ‘The European Insurance Contract Law’ [2005] OJ C157/1, no. 6.3.1. 86 Jürgen Basedow, ‘Der Versicherungsbinnenmarkt und ein optionales europäisches Vertragsgesetz’ in Manfred Wandt (ed.), Kontinuität und Wandel des Versicherungsrechts. Festschrift für Egon Lorenz zum 70. Geburtstag (VVW, Karlsruhe 2004) 104.

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e. Option also Available for Purely Domestic Contracts I50.  The facilitation of insurance transactions in the single European market will only take full effect if all the contracts of a particular insurer can be submitted to the optional instrument. Parties must, therefore, also be given that option for purely domestic contracts, namely insurance contracts between policyholders and insurers from the same Member State and concerning a risk also situated in this Member State.87 Otherwise, domestic insurance contracts, which usually represent the biggest share of an insurer’s business, would have to be drawn up in accordance with national law and only cross-border insurance products could be subject to the optional instrument. As a consequence, the pooling of risks would be more burdensome and many insurers would probably still not enter into cross-border transactions. Equally, a policyholder may want to provide for a future change of place of residence by buying a policy in his/her home market based on the European optional instrument of insurance contract law. For these reasons, as far as insurance is concerned, any restriction on the scope of application of an optional instrument on European contract law to cross-border transactions should be rejected.88

f. Option and Third Parties to the Insurance Contract I51.  The optional character of the Principles of European Insurance Contract Law also has an impact on their content. Since the option is given to the parties to the insurance contract, namely the insurer and the policyholder, its effects are restricted to the parties themselves but nonetheless include the beneficiary and the insured, because their rights depend on the parties’ agreement. I52.  Third parties must not, however, be adversely affected by the parties’ choice. This applies, inter alia, to intermediaries, who are not parties to the insurance contract. The legal position of intermediaries will not be affected by the parties’ choice in favour of the Principles of European Insurance Contract Law. As a consequence, the Principles of European Insurance Contract Law do not govern the duties of the insurance intermediaries, but only the liability of the insurer for its agents, including agents purporting to be independent.89

87

Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 702 f; Jürgen Basedow, ‘The Optional Application of the Principles of European Insurance Contract Law’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 116. 88 See Jürgen Basedow, ‘Der Versicherungsbinnenmarkt und ein optionales europäisches Vertragsgesetz’ in Manfred Wandt (ed.), Kontinuität und Wandel des Versicherungsrechts. Festschrift für Egon Lorenz zum 70. Geburtstag (VVW, Karlsruhe 2004) 108 f; likewise Leander D. Loacker, ‘Insurance soft law?’ Versicherungsrecht (2009) 296. 89 See Articles 3:101 and 3:102 PEICL; as to the factual significance of the PEICL to insurance intermediaries see David Harari, ‘The Role of the Intermediary’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 75.

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Principles of European Insurance Contract Law (PEICL): Introduction

g. Comparison with the Proposed Common European Sales Law (CESL) I53.  Having previously announced the possibility of creating optional instruments for European contract law in recital 14 of the Rome I Regulation (593/2008), the European legislature now appears to be aiming at creating its first optional instrument covering sales law. On 11 October 2011, the Commission proposed a Regulation of the European Parliament and of the Council on a Common European Sales Law (CESL).90 Amendments were made to this proposal by the European Parliament in its first reading on 26 February 2014.91 While the current proposal has most recently been withdrawn by the European Commission, a modified proposal “in order to fully unleash the potential of ecommerce in the Digital Single Market” is announced.92 The following statements still relate to the original proposal as amended by the European Parliament. I54.  The CESL Regulation Proposal in principle adopts the “2nd regime” model of optional European contract law. It clearly points out that the choice available to the parties is of a substantive and not of private international law nature. Thus, the conflict rules set out in the Rome I Regulation (593/2008) must be applied first and the choice will be available to the extent that the law of a Member State, but not to the extent that the law of a third state, is applicable. I55.  There are, however, a number of additional restrictions to the scope of application of the CESL Regulation Proposal. It is proposed that it should apply to distance contracts93 and cross-border contracts94 only. As far as the latter are concerned, Member States may stretch the scope of application to contracts with no foreign element.95 Such restrictions are not in line with the optional instrument proposed here.

III. Political Developments 1. Opinions of the European Economic and Social Committee (EESC) I56.  The EESC has decided on and published two own-initiative opinions relevant for an optional Common European Insurance Contract Law. The first Opinion on “The European Insurance Contract” which was delivered on 15 December 2004,96 considered the 90

COM (2011) 635 final. European Parliament legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011)0635 – C7-0329/2011-2011/0284(COD)) (Ordinary legislative procedure: first reading), doc. no. P7_TAPROV(2014)0159. 92 Annex to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Commission Work Programme 2015, A New Start, COM (2014) 910 final, no. 60. 93 Art. 4 para. 1 and art. 5 of the CESL Regulation Proposal (no. 87) as amended by the EP (no. 88). 94 Art. 1 para. 1, art. 3 and art. 4 of the CESL Regulation Proposal (no. 87) as amended by the EP (no. 88). 95 Art. 13(a) of the CESL Regulation Proposal (no. 87) as amended by the EP (no. 88). 96 [2005] OJ C157/1 (Rapporteuer: Jorge Pegado Liz; Experts: Fritz Reichert-Facilides and Helmut Heiss); with regard to this Opinion, Helmut Heiss, ‘Europäischer Versicherungsvertrag – Initiativstellung91

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Principles of European Insurance Contract Law (PEICL): Introduction

shortcomings of the existing internal insurance market. It confirmed the view that some kind of European insurance contract law must be available in order to allow a cross-border provision of insurance services. Therefore, the EESC encouraged the Commission to take steps towards unifying insurance contract law in the EU. I57.  The second Opinion of 27 May 2010 on the “28th Regime”97 does not specifically deal with insurance contract law, but it is mentioned. This Opinion favours the creation of uniform European private law using optional instruments and adopts the “2nd regime” model. In its no. 1.8 it lists requirements to be met by such optional instrument:

1.8 The optional regime should therefore: a) be conceived as a “2nd Regime” in each Member State, thus providing parties with an option between two regimes of domestic contract law; b) be defined at EU level and enacted by EU regulations; c) facilitate interaction between parties in the drafting process; d) contain provisions of mandatory law ensuring a high level of protection for the weaker party, at least similar to those granted by the EU or national mandatory rules, applicable whenever necessary; e) limit the option of the parties to a choice of the entire instrument thus avoiding the possibility of “cherry-picking”.

2. Resolutions of the European Parliament I58.  In its Resolution of 3 September 2008,98 the European Parliament pointed to the possibility of creating optional instruments in the future. This is stressed again in a second Resolution of the European Parliament of 8 June 2011.99 In its second resolution, the European Parliament also

(…) reiterate[d] its earlier call to include insurance contracts within the scope of the OI,100 believing that such an instrument could be particularly useful for small-scale insurance contracts; stresses that, in the field of insurance contract law, preliminary work has already been performed with the Principles of European Insurance Contract Law (PEICL), which should be integrated into a body of European contract law and should be revised and pursued further; (…)

nahme des Europäischen Wirtschafts- und Sozialausschusses verabschiedet’, Versicherungsrecht (2005) 1. 97 [2005] OJ C21/26 (Rapporteuer: Jorge Pegado Liz; Expert: Helmut Heiss). 98 European Parliament resolution of 3 September 2008 on the common frame of reference for European contract law, P6_TA(2008)0397; as to the CFR paras. I54 ff. below. 99 European Parliament resolution of 8 June 2011 on policy options for progress towards a European Contract Law for consumers and businesses (2011/2013(INI)), P7_TA-PROV(2011)0262, no. 25. 100 “OI” stands for “Optional Instrument”.

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Principles of European Insurance Contract Law (PEICL): Introduction

3. European Commission a. Establishment of a Common Frame of Reference of European Contract Law I59.  In its 2003 Action Plan on European Contract Law101 of 12 February 2003 and its 2004 Communication on European Contract Law, the European Commission announced the establishment of a Common Frame of Reference of European Contract Law. According to the Commission’s 2003 Action Plan on European Contract Law, the Common Frame of Reference should comprise Definitions and Rules and both should be accompanied by Comments and Notes. The Comments would contain explanations and illustrations of the proposed Rules. The Notes would give reference to the status quo of contract law in the Member States and the existing acquis communautaire. I60.  The Commission wanted the Common Frame of Reference to be drafted in order to establish a set of rules which provided the definitions, structure and contents of European contract law developed through comparative legal analysis of national contract laws.102 Strictly speaking, these definitions and principles would not be of a binding nature since they would not be enacted as a regulation or directive.103 The Commission announced, however, that it was determined to adhere to the terminology and system of the Common Frame of Reference in any later legislation concerning contracts.104 Furthermore, the Common Frame of Reference was expected to become an important aid for the European Court of Justice in preliminary rulings procedures105 on the meaning of legal provisions, 101

In more detail Reiner Schulze, ‘Gemeinsamer Referenzrahmen und acquis communautaire’, Zeitschrift für Europäisches Privatrecht (2007) 130. 102 Communication from the Commission to the European Parliament and the Council, ‘European Contract Law and the revision of the acquis: the way forward’, COM (2004) 651 final, 11 October 2004, no. 2.2.1 and 3.1.; see also Reiner Schulze, ‘Gemeinsamer Referenzrahmen und acquis communautaire’, Zeitschrift für Europäisches Privatrecht (2007) 135. 103 Communication from the Commission to the European Parliament and the Council, ‘European Contract Law and the revision of the acquis: the way forward’, COM (2004) 651 final, 11 October 2004, no. 2.1.3. 104 Communication from the Commission to the European Parliament and the Council, ‘European Contract Law and the revision of the acquis: the way forward’, COM (2004) 651 final, 11 October 2004, no. 2.1.2. 105 Verica Trstenjak, ‘Die Auslegung privatrechtlicher Richtlinien durch den EuGH: Ein Rechtsprechungsbericht unter Berücksichtigung des Common Frame of Reference’, Zeitschrift für Europäisches Privatrecht (2007) 145; following their publication, the Principles of European Contract Law and the Draft Common Frame of Reference have been cited by Advocate-Generals in their opinions either in support of their interpretation of Community law (M. Poiares Maduro, opinion of 21 November 2007 on Case C-412/06 Annelore Hamilton v Volksbank Filder eG [2008] ECR I-2383; Trstenjak, opinion of 11 September 2008 on Case C-180/06 Renate Ilsinger v Martin Dreschers [2009] ECR I-3961; Trstenjak, opinion of 6 March 2007 on Case C-1/06 Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas [2007] ECR I-5609; etc.) or to provide an overview of other proposals for arrangements which are different to some extent (Trstenjak, opinion of 18 February 2009 on Case C-489/07 Pia Messner v Firma Steffen Krüger [2009] ECR I-7315; Trstenjak, opinion of 11 June 2008 on Case C-275/07 Commission of the European Communities v Italian Republic [2009] ECR I-2005; Trstenjak, opinion of 4 September 2008 on Case C-445/06 Danske Slagterier v Bundesrepublik Deutschland [2009] ECR I-2119, Trstenjak, opinion of 15 November 2007 on Case C-404/06 Quelle

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Principles of European Insurance Contract Law (PEICL): Introduction

and also for national courts with regard to their own interpretation of the existing acquis communautaire. Not least, international academic discussion in Europe could be based on the common rules provided by the Common Frame of Reference. This instrument would, to some extent, provide Europe with a common legal language, as was the case with Latin until national codifications replaced the ius commune. It would allow law faculties to teach contract law with a European and comparative perspective. National legislatures might also contribute to harmonisation by adopting the rules of the Common Frame of Reference in future reforms of national contract law. Ultimately, one might regard the Common Frame of Reference as a European lex mercatoria106 and as such it may find application in arbitration proceedings.107 I61.  Insurance contract law played an important role in the 2003 Action Plan on European Contract Law. The plan repeatedly referred to the necessity of harmonising the law on insurance contracts. The Commission argued that “firms are unable to offer, or are deterred from offering, financial services across borders, because products are designed in accordance with local legal requirements”108 and pointed out that “the same problems occur particularly with insurance contracts”.109 In view of this relevance of insurance contract law, the European Commission in its 2004 Communication on European Contract Law stated with regard to the structure of a Common Frame of Reference: “[…] two types of contracts which were mentioned specifically were consumer and insurance contracts. The Commission expects the preparation of the Common Frame of Reference to pay specific attention to these two areas.”110 I62.  The task of drafting the CFR was assigned to a “CoPECL Network of Excellence” which was founded in May 2005 upon an initiative by the European Commission.111 The CoPECL Network comprised universities, institutions and other organisations with more than 150 researchers operating in all of the EU Member States. The following groups parAG v Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-2685; in the joined Cases T-8/95 and T-9/95 the applicants maintained, in accordance with the Principles of European Contract Law, that the Community cannot plead limitation; see the judgment of the Court of First Instance of 27 September 2007 Cases T-8/95 and T-9/95 Wilhelm Pelle and Ernst-Reinhard Konrad v Council of the European Union and Commission of the European Communities [2007] ECR II-4117; etc.). 106 See Uwe Blaurock, ‘Lex mercatoria und Common Frame of Reference’, Zeitschrift für Europäisches Privatrecht (2007) 118; cf. also Leander D. Loacker, ‘Insurance soft law?’ Versicherungsrecht (2009) 292 who refers to its ‚soft law‘ characteristics. 107 See also Article 1:101 PECL (Application of the Principles): “(…) (3) These Principles may be applied when the parties: (a) have agreed that their contract is to be governed by “general principles of law”, the “lex mercatoria” or the like; …” 108 Communication from the Commission to the European Parliament and the Council, ‘A more coherent European contract law – An action plan’, COM (2003) 68 final, 12 February 2003, no. 47. 109 Communication from the Commission to the European Parliament and the Council, ‘A more coherent European contract law – An action plan’, COM (2003) 68 final, 12 February 2003, no. 48. 110 Communication from the Commission to the European Parliament and the Council, ‘European Contract Law and the revision of the acquis: the way forward’, COM (2004) 651 final, 11 October 2004, no. 3.1.3. 111 Joint Network on European Private Law (COPECL), see www.copecl.org.

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ticipated in the Network: The Study Group on a European Civil Code; The Research Group on the Existing EC Private Law, or “Acquis Group”; The Project Group on a Restatement of European Insurance Contract Law, known as the “Insurance Group” within the CoPECL Network; The Association Henri Capitant together with the Société de Législation Comparée and the Conseil Supérieur du Notariat; The Common Core Group; The Research Group on the Economic Assessment of Contract Law Rules, or “Economic Impact Group” (TILEC – Tilburg Law and Economics Center); The “Database Group”; and The Academy of European Law (ERA). The first draft of the Common Frame of Reference was presented to the European Commission at the end of 2007.112 The final draft was submitted at the end of 2008. I63.  As part of the CoPECL Network, the Project Group on a “Restatement of European Insurance Contract Law” (the “Project Group”) was in charge of drafting the Common Frame of Reference of Insurance Contract Law. It delivered its share of the Draft Common Frame of Reference to the Commission at the end of 2008 and published it as “Principles of European Insurance Contract Law”, the first edition to the present volume, in 2009. I64.  Drafting a Common Frame of Reference was an ambitious project which had the potential to considerably boost the development of European contract law in general and insurance contract law in particular. However the Common Frame of Reference by itself would never have been sufficient to complete the internal insurance market.113 Since it would only provide non-binding rules, the Common Frame of Reference would not be available to the parties as the choice of the applicable insurance law and insurance contracts would still be submitted to mandatory rules of national law. The obstacles to the functioning of the internal insurance market presented by the diversity of national mandatory insurance contract law would not be removed and cross-border sales would remain an exception. For this reason, it has been argued that a functioning internal insurance market will require more, namely an optional instrument of European insurance contract law.114 I65.  While the Draft Common Frame of Reference was published by the CoPECL Network,115 the European Commission never adopted a “political” CFR. Rather, the Commission went on to draft optional instruments, beginning with a Common European Sales Law (CESL).

112

See www.copecl.org; the draft on insurance contracts is available at www.restatement.info. See Jürgen Basedow, ‘Der Gemeinsame Referenzrahmen und das Versicherungsvertragsrecht’, Zeitschrift für Europäisches Privatrecht (2007) 280, 283; likewise Leander D. Loacker, ‘Insurance soft law?’ Versicherungsrecht (2009) 292. 114 See Jürgen Basedow, ‘Der Gemeinsame Referenzrahmen und das Versicherungsvertragsrecht’, Zeitschrift für Europäisches Privatrecht (2007) 285; concerning the relationship of the Common Frame of Reference to a possible future optional instrument, see Alex Flessner, ‘Der Gemeinsame Referenzrahmen im Verhältnis zu anderen Regelwerken’, Zeitschrift für Europäisches Privatrecht (2007) 112 and Leander D. Loacker, ‘Insurance soft law?’ Versicherungsrecht (2009) 293. 115 Study Group on a European Civil Code and Research Group on the Existing EC Private Law (Acquis Group) (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR) (Full edition Sellier European Law Publishers, Munich 2009). 113

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b. Commission Expert Group on European Insurance Contract Law I66.  On 17 January 2013, the Commission decided to set up an “Expert Group on European Insurance Contract Law”.116 Art. 2 para. 1 of this decision describes the Expert Group’s purpose as follows: “The Expert Group’s task shall be to carry out an analysis in order to assist the Commission in examining whether differences in contract laws pose an obstacle to cross-border trade in insurance products.” Pursuant to para. 3 of the same provision, the Expert Group was to deliver a report on its findings by the end of 2013. This report was published in English at the beginning of 2014 and is now available to the public on the Commission’s website.117 I67.  The setting up of the Expert Group must be viewed against the background of broad-ranging efforts towards the creation of a European contract law in general (especially the Common European Sales Law) and European insurance contract law in particular. In respect of contract law in general, the European Commission presented a Green Paper on Options for a European Contract Law in 2010, in which it presented various avenues for action. The ensuing consultation received responses in particular from the insurance industry, according to which the differences in the Member States’ contract laws presented an obstacle to the cross-border provision of insurance services.118 For example, CEA (Comité Européen des Assurances) – Insurance Europe’s predecessor – represented the following position during the consultation:

(…) it is currently not possible for insurance companies to offer uniform insurance products across Europe, based on a European uniform legal framework. Today’s differences in national laws mean that insurers willing to provide services across borders still need to tailor the wordings of their policies to meet local requirements, and this entails significant costs and legal uncertainty.119 Such statements confirmed an analysis conducted by the European Economic and Social Committee for the purposes of its own-initiative Opinion on “The European Insurance Contract” in 2004,120 and lend insurance contract law a particular urgency.

116

European Commission, ‘Commission decision of 17 January 2013 on setting up the Commission Expert Group on a European Insurance Contract Law’ [2013] OJ C16/6. 117 Final Report of the Commission Expert Group on European Insurance Contract Law (General Rapporteur: Jürgen Basedow): http://ec.europa.eu/justice/contract/files/expert_groups/insurance/final_ report.pdf. 118 See also Jürgen Basedow, ‘Versicherungsvertragsrecht als Markthindernis?’, Europäische Zeitschrift für Wirtschaftsrecht 2014, 1. 119 See CEA, ‘Position Paper: CEA views on the European Commission’s Green Paper on policy options for progress towards an EU contract law for consumers and businesses’ (2011): http://ec.europa.eu/ justice/news/consulting_public/0052/contributions/56_en.pdf; for a more detailed analysis see Felix Wieser, ‘The Perspective of the Insurance Industry’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 51. 120 [2005] OJ C157/1; see para. I48 above.

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Principles of European Insurance Contract Law (PEICL): Introduction

I68.  The fact that the decision on setting up an Expert Group was ultimately aimed at creating a legislative instrument is expressly stated in at least one place: Recital 2 of the Commission decision expressly refers to the European Parliament’s call for an optional instrument to include insurance contract law. I69.  The Commission decision also suggests a substantive focus for the report. It namely refers to the White Paper “An Agenda for Adequate, Safe and Sustainable Pensions” of 16 February 2012,121 in which there is a call for an examination of the extent to which contract-law related obstacles prevent the design and distribution of life assurance products as pension products. In addition to liability insurance (including motor liability insurance), life assurance is therefore given particular importance for good reasons in the Expert Group’s report. I70.  The establishment and work of the Expert Group must therefore be regarded as an intermediate step towards the creation of a Common European Insurance Contract Law. Much depends on it. The European Commission may initiate legislation only if the differences between insurance contract laws represent an obstacle to the internal insurance market. It is not important whether the appropriate basis for competence for the creation of an optional instrument can be found in art. 114 TFEU (competence for the approximation of laws), art. 352 (contingency competence) or in another provision governing competence. The task of the Expert Group was restricted to analysing the question as to whether the difference in the insurance contract laws of the Member States could be deemed obstacles. The experts were not required to formulate a proposal for a future Common European Insurance Contract Law. I71.  It is not possible to deal with substantive details in this Introduction. In lieu of a substantive discussion, the executive summary of the Final Report is presented below:

Executive Summary 1. This report examines the impact of differences between national contract laws on cross-border insurance business under the freedom to provide services and the freedom of establishment. The mandate of the Expert Group is to carry out an analysis in order to assist the Commission in examining whether differences in contract laws pose an obstacle to cross-border trade in insurance products. It does not relate to other differences which may influence cross-border insurance business. Nevertheless, the report recognises the significance of such other differences; some of them are of a factual, economic and social nature, others relate to areas of the law different from contract law, in particular to prudential regulation and taxation. These differences include: ‘knowing your customer’, understanding the true risk proposed for cover, language, culture, including expectations of the local policyholder, the need for local claims handling, the form and prevalence of frauds, the tax and labour law environment, the legal, regulatory and supervisory environment, and cross-border redress options. The members of the Group were drawing on their professional knowledge and expertise and were not considering statistical evidence except where explicitly mentioned. 121

COM (2012) 55 final.

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Principles of European Insurance Contract Law (PEICL): Introduction

2. Two approaches to handle this task have been adopted: The first starting from the differences in insurance contract law in general, i.e. without specifying any classes of insurance; the second focusing on particular classes: life insurance, liability insurance, and motor insurance. 3. With regard to large risks, the cross-border provision of insurance cover is already now a common occurrence; it rarely encounters obstacles arising from differences in insurance contract law since the parties are free to choose the applicable law. 4. By contrast, the law applicable to mass risk insurance can be chosen only in limited situations. Rome I calls for the application of the law of the Member State in which the risk is situated which in most cases of mass risk insurance is the Member State in which the policyholder is habitually resident. The legislator has adopted this system in order to protect the weaker party. 5. Where the law applicable to the contract differs from that of the insurer’s country of origin which has served as the basis for the design of the contract and is mandatory, the contract, its marketing, and/or its administration by IT, call centres and legal departments will need adaptation. Differences in national mandatory rules may restrict the freedom of the insurer to provide its services cross border (and may thus form obstacles); such rules are important to protect European citizens as consumers or for example as victims of road accidents. These differences raise the costs of cross-border trade in insurance. These effects have been highlighted with regard to a number of rules governing several aspects of cross-border insurance contracts, for example pre-contractual duties, formalities of contracting, precautionary measures, the unfairness control of standard contract terms, and duration and renewal of policies. 6. Life insurance displays a great variety of types and functions. For some of them, especially pensions, tax law and social security regulations supersede insurance contract law as the principal source of regulation. Other life insurances are similar to financial instruments. In this context, divergent rules on pre-contractual information duties (which are particularly important for consumers’ confidence in cross-border trade) and on the calculation of surrender values were identified as highly relevant for cross-border life insurance. Differences in other rules relate to the withdrawal period, the consequences of cancellation, the drafting of questionnaires, the payment of premium and the insurance money, and to termination. They have the effect of increasing legal uncertainty and complexity, and of raising costs of cross-border activities. How insurers manage these requirements is a business decision driven by their commercial approach and attitude to risk. 7. The legal framework of liability insurance is particularly complex due to the involvement of third parties, the interrelation with liability law, and the variety of duties to insure imposed by national legislation or regulation. While it is not easy to isolate issues of pure insurance contract law, a number of legal divergences have been identified as causing costs and uncertainty. This notably applies to the various differences concerning compulsory insurances, to rules on the mitigation of loss, in particular on the cover of legal expenses incurred for the defence and on the time-span of the insurer’s liability. The applicable rules on insurance contract law are only one element in the decision to offer cross-border liability cover alongside others; they do not appear to be the main element. 8. Motor liability insurance is compulsory under Dir. 2009/103/EC and one of the most widely spread insurances in Europe. Various specific features such as driving habits or 28

Principles of European Insurance Contract Law (PEICL): Introduction

liability regimes exist. Despite a basic harmonisation, differences between the relevant national contract laws subsist and raise the costs of entering a foreign market. These differences concern in particular specific punitive interest rates in the case of non-payment by the insurer, the reimbursement of legal expenses, the compulsory nature of Bonus/ Malus systems in a few Member States, certain requirements as to the form and proof of motor liability insurance, the duty to accept risks and to submit offers to applicants, and the review of premium adjustment clauses under standards of unfairness.

IV. Final Remarks I72.  The presentation of this volume marks the end of a research project conducted by scholars from all over Europe for more than 15 years. Its result is unique in that it provides for the first time Common Principles of European Insurance Contract Law including rules on the most significant branches of insurance. Thereby, the PEICL give the European legislature the opportunity to enact an optional Common European Insurance Contract Law as well as to national legislatures in Member and non-Member States to consider the principles in the course of national law reforms. Equally, academics will have the opportunity to use a common European understanding of insurance contract law as a basis for farther reaching, not the least inter-continental comparative research work. As such, the finalisation of the project marks a new starting point.

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Principles of European Insurance Contract Law (PEICL): Rules Part One: Provisions Common to All ­Contracts Included in the Principles of ­European Insurance Contract Law (PEICL) Chapter One: Introductory Provisions Section One: Application of the PEICL Section Two: General Rules Section Three: Enforcement

Chapter Two: Initial Stage and Duration of the Insurance Contract Section One: Applicant’s Pre-contractual Information Duty Section Two: Insurer’s Pre-contractual Duties Section Three: Conclusion of the Contract Section Four: Retroactive and Preliminary Cover Section Five: Insurance Policy Section Six: Duration of the Insurance Contract Section Seven: Post-contractual Information Duties of the Insurer

Chapter Three: Insurance Intermediaries Chapter Four: The Risk Insured Section One: Precautionary Measures Section Two: Aggravation of Risk Section Three: Reduction of Risk

Chapter Five: Insurance Premium Chapter Six: Insured Event Chapter Seven: Prescription Part Two: Provisions Common to Indemnity Insurance Chapter Eight: Sum Insured and Insured Value Chapter Nine: Entitlement to Indemnity

Chapter Ten: Rights of Subrogation Chapter Eleven: Insured Persons Other than the Policyholder Chapter Twelve: Insured Risk Part Three: Provisions Common to Insurance of Fixed Sums Chapter Thirteen: Admissibility Part Four: Liability Insurance Chapter Fourteen: General Liability Insurance Chapter Fifteen: Direct Claims and Direct Actions Chapter Sixteen: Compulsory Insurance Part Five: Life Insurance Chapter Seventeen: Special Provisions for Life Insurance Section One: Third Parties Section Two: Initial Stage and Duration of the ­Contract Section Three: Changes during the Contract Period Section Four: Relation to National Laws Section Five: Insured Event Section Six: Conversion and Surrender

Part Six: Group Insurance Chapter Eighteen: Special Provisions for Group Insurance Section One: Group Insurance in General Section Two: Accessory Group Insurance Section Three: Elective Group Insurance

31

Chapter One: Introductory Provisions

Part One: Provisions Common to All Contracts Included in the Principles of European Insurance Contract Law (PEICL) Chapter One: Introductory Provisions Section One: Application of the PEICL

Article 1:101 Substantive Scope of Application (1) The PEICL shall apply to private insurance in general, including mutual insurance. (2) The PEICL shall not apply to reinsurance.

Article 1:102 Optional Application The PEICL shall apply when the parties, notwithstanding any limitations of choice of law under private international law, have agreed that their contract shall be governed by them. Subject to Article 1:103, the PEICL shall apply as a whole and no exclusion of particular provisions shall be allowed.

Article 1:103 Mandatory Character (1) Articles 1:102 second sentence, 2:104, 2:304, 13:101, 17:101 and 17:503 are mandatory. Other Articles are mandatory in so far as sanctions for fraudulent behaviour are concerned. (2) The contract may derogate from all other provisions as long as such derogation is not to the detriment of the policyholder, the insured or beneficiary. (3) Derogation in the sense of para. 2 shall be allowed to the benefit of any party in contracts covering large risks within the meaning of Article 13 para. 27 Directive 2009/138/EC. In group insurance a derogation shall only be held against an individual insured who fulfills the personal characteristics mentioned in Article 13 para. 27(b) or (c) Directive 2009/138/EC, where applicable.

Article 1:104 Interpretation The PEICL shall be interpreted in the light of their text, context, purpose and comparative background. In particular, regard should be had to the need to promote good faith and fair dealing in the insurance sector, certainty in contractual relationships, uniformity of application and the adequate protection of policyholders.

Article 1:105 National Law and General Principles (1) No recourse to national law, whether to restrict or to supplement the PEICL, shall be permitted. This does not apply to mandatory national laws specifically enacted for branches of insurance which are not covered by special rules contained in the PEICL. (2) Questions arising from the insurance contract, which are not expressly settled in the PEICL, are to be settled in conformity with the Principles of European Contract Law (PECL)1 and, in the absence of relevant rules in that instrument, in accordance with the general principles common to the laws of the Member States.

1

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

32

Article 1:202 Further Definitions

Section Two: General Rules Article 1:201 Insurance Contract (1) “Insurance contract” means a contract under which one party, the insurer, promises another party, the policyholder, cover against a specified risk in exchange for a premium; (2) “Insured event” means the materialisation of the risk specified in the insurance contract; (3) “Indemnity insurance” means insurance under which the insurer is obliged to indemnify against loss suffered on the occurrence of an insured event; (4) “Insurance of fixed sums” means insurance under which the insurer is bound to pay a fixed sum of money on the occurrence of an insured event. (5) “Liability insurance” means insurance under which the risk is the exposure of the insured to legal liability towards the victim. (6) “Life insurance” is an insurance in which the obligation of the insurer or the payment of premium depends upon an insured event that is defined exclusively by reference to the death or survival of the person at risk. (7) “Contracts for group insurance” are contracts between an insurer and a group organiser for the benefit of group members with a common link to the group organiser. A contract for group insurance may cover also family of the group members. (8) “Accessory group insurance” means group insurance under which group members are automatically insured by belonging to the group and without being able to refuse the insurance. (9) “Elective group insurance” means group insurance under which group members are insured as a result of personal application or because they have not refused the insurance.

Article 1:202 Further Definitions (1) “Insured” means the person whose interest is protected against loss under indemnity insurance; (2) “Beneficiary” means the person in whose favour the insurance money is payable under insurance of fixed sums; (3) “Person at risk” means the person on whose life, health, integrity or status insurance is taken; (4) “Victim”, in liability insurance, means the person for whose death, injury or loss the insured is liable; (5) “Insurance agent” means an insurance intermediary employed by an insurer for marketing, selling or managing insurance contracts; (6) “Premium” means the payment due to the insurer on the part of the policyholder in return for cover; (7) “Contract period” means the period of contractual commitment starting at the conclusion of the contract and ending when the agreed term of duration elapses; (8) “Insurance period” means the period for which the premium is due in accordance with the parties’ agreement; (9) “Liability period” means the period of cover; (10) “Compulsory insurance” means an insurance which is taken out in pursuance of an obligation to insure imposed by laws or regulations.

33

Chapter One: Introductory Provisions

Article 1:203 Language and Interpretation of Documents2 (1) All documents provided by the insurer shall be plain and intelligible and in the language in which the contract is negotiated. (2) When there is doubt about the meaning of the wording of any document or information provided by the insurer, the interpretation most favourable to the policyholder, insured or beneficiary, as appropriate, shall prevail.

Article 1:204 Receipt of Documents: Proof The burden of proving that the policyholder has received documents to be provided by the insurer shall lie with the insurer.

Article 1:205 Form of Notice Subject to specific rules contained in the PEICL, notice by the applicant, policyholder, insured or beneficiary in relation to the insurance contract shall not be required to take any particular form.

Article 1:206 Imputed Knowledge If any person is entrusted by the policyholder, the insured or the beneficiary with responsibilities essential to the conclusion or performance of the contract, relevant knowledge which that person has or ought to have in the course of fulfilling his responsibilities shall be deemed to be the knowledge of the policyholder, the insured or the beneficiary, as the case may be.

Article 1:207 Non-Discrimination3 (1) Gender, pregnancy, maternity, nationality and racial or ethnic origin shall not be factors resulting in differences in individuals’ premiums and benefits. (2) Terms in breach of para. 1, including terms as to premium, shall not be binding on the policyholder or the insured. Subject to para. 3, the contract shall continue to bind the parties on the basis of non-discriminatory terms. (3) In the case of breach of para. 1, the policyholder shall be entitled to terminate the contract. Notice of termination shall be given to the insurer in writing within two months after the breach becomes known to the policyholder.

Article 1:208 Genetic Tests (1) The insurer shall not ask the applicant, the policyholder or the person at risk to undergo a genetic test or to disclose the results of such a test, nor shall such information be used by the insurer for the purpose of rating risks. (2) Para. 1 does not apply to personal insurance where the person at risk is 18 years of age or more and the sum insured for this person exceeds EUR 300,000 or the money payable under the policy exceeds EUR 30,000 per year.

2

Article 1:203 para. 2 is modelled on art. 5 of the Unfair Contract Terms Directive (93/13/EEC). This Article is modelled on the Gender Directive (2004/113/EC) and on Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres [2011] ECR I-773.

3

34

Article 2:102 Breach

Section Three: Enforcement Article 1:301 Injunctions4 (1) A qualified entity, as defined in para. 2, is entitled to seize a competent national court or authority and seek an order prohibiting or requiring the cessation of infringements of the PEICL, if applicable in accordance with Article 1:102. (2) A qualified entity means any body or organisation on the list drawn up by the European Commission in pursuance of Article 4 of the Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests, as amended.

Article 1:302 Out-of-court Complaint and Redress Mechanisms Application of the PEICL does not preclude access to out-of-court complaint and redress mechanisms otherwise available to the policyholder, insured or beneficiary.

Chapter Two: Initial Stage and Duration of the Insurance Contract Section One: Applicant’s Pre-contractual Information Duty Article 2:101 Duty of Disclosure (1) When concluding the contract, the applicant shall inform the insurer of circumstances of which he is or ought to be aware, and which are the subject of clear and precise questions put to him by the insurer. (2) The circumstances referred to in para. 1 include those of which the person to be insured was or should have been aware.

Article 2:102 Breach (1) When the policyholder is in breach of Article 2:101, subject to paras. 2 to 5, the insurer shall be entitled to propose a reasonable variation of the contract or to terminate the contract. To this end the insurer shall give written notice of its intention, accompanied by information on the legal consequences of its decision, within one month after the breach of Article 2:101 becomes known or apparent to it. (2) If the insurer proposes a reasonable variation, the contract shall continue on the basis of the variation proposed, unless the policyholder rejects the proposal within one month of receipt of the notice referred to in para. 1. In that case, the insurer shall be entitled to terminate the contract within one month of receipt of written notice of the policyholder’s rejection. (3) The insurer shall not be entitled to terminate the contract if the policyholder is in innocent breach of Article 2:101, unless the insurer proves that it would not have concluded the contract, had it known the information concerned. (4) Termination of the contract shall take effect one month after the written notice referred to in para. 1 has been received by the policyholder. Variation shall take effect in accordance with the agreement of the parties. (5) If an insured event is caused by an element of the risk, which is the subject of negligent non-disclosure or misrepresentation by the policyholder, and occurs before termination or variation takes effect, no insurance money shall be payable if the insurer would not have con4

This Article is modelled on the Injunctions Directive (2009/22/EC).

35

Chapter Two: Initial Stage and Duration of the Insurance Contract

cluded the contract had it known the information concerned. If, however, the insurer would have concluded the contract at a higher premium or on different terms, the insurance money shall be payable proportionately or in accordance with such terms.

Article 2:103 Exceptions The sanctions provided for in Article 2:102 shall not apply in respect of (a) a question which was unanswered, or information supplied which was obviously incomplete or incorrect; (b) information which should have been disclosed or information inaccurately supplied, which was not material to a reasonable insurer’s decision to enter into the contract at all, or to do so on the agreed terms; (c) information which the insurer led the policyholder to believe did not have to be disclosed; or (d) information of which the insurer was or should have been aware.

Article 2:104 Fraudulent Breach Without prejudice to the sanctions provided for in Article 2:102, the insurer shall be entitled to avoid the contract and retain the right to any premium due, if it has been led to conclude the contract by the policyholder’s fraudulent breach of Article 2:101. Notice of avoidance shall be given to the policyholder in writing within two months after the fraud becomes known to the insurer.

Article 2:105 Additional Information Articles 2:102-2:104 shall also apply to any information supplied by a policyholder at the time of concluding the contract in addition to that required by Article 2:101.

Article 2:106 Genetic Information This Section shall not apply to the results of genetic tests which are subject to Article 1:208 para. 1.

Section Two: Insurer’s Pre-contractual Duties Article 2:201 Provision of Pre-contractual Documents5 (1) The insurer shall provide the applicant with a copy of the proposed contract terms as well as a document which includes the following information if relevant: (a) the name and address of the contracting parties, in particular of the head office and the legal form of the insurer and, where appropriate, of the branch concluding the contract or granting the cover; (b) the name and address of the insured and, in the case of life insurance, the beneficiary and the person at risk; (c) the name and address of the insurance agent; (d) the subject matter of the insurance and the risks covered; (e) the sum insured and any deductibles; (f) the amount of the premium and the method of calculating it; (g) when the premium falls due as well as the place and mode of payment; (h) the contract period, including the method of terminating the contract, and the liability period;

5

This provision is modelled on arts. 183 to 189 of the Solvency II Directive (2009/138/EC).

36

Article 2:303 Cooling-off Period

(i) the right to revoke the application or avoid the contract in accordance with Article 2:303 in the case of non-life insurance and with Article 17:203 in the case of life insurance; (j) that the contract is subject to the PEICL; (k) the existence of an out-of-court complaint and redress mechanism for the applicant and the methods of having access to it; (l) the existence of guarantee funds or other compensation arrangements. (2) If possible, this information shall be provided in sufficient time to enable the applicant to consider whether or not to conclude the contract. (3) When the applicant applies for insurance cover on the basis of an application form and/or a questionnaire provided by the insurer, the insurer shall supply the applicant with a copy of the completed documents.

Article 2:202 Duty to Warn about Inconsistencies in the Cover (1) When concluding the contract, the insurer shall warn the applicant of any inconsistencies between the cover offered and the applicant’s requirements of which the insurer is or ought to be aware, taking into consideration the circumstances and mode of contracting and, in particular, whether the applicant was assisted by an independent intermediary. (2) In the event of a breach of para. 1 (a) the insurer shall indemnify the policyholder against all losses resulting from the breach of this duty to warn unless the insurer acted without fault, and (b) the policyholder shall be entitled to terminate the contract by written notice given within two months after the breach becomes known to the policyholder.

Article 2:203 Duty to Warn about Commencement of Cover If the applicant reasonably but mistakenly believes that the cover commences at the time the application is submitted, and the insurer is or ought to be aware of this belief, the insurer shall warn the applicant immediately that cover will not begin until the contract is concluded and, if applicable, the first premium is paid, unless preliminary cover is granted. If the insurer is in breach of the duty to warn it shall be liable in accordance with Article 2:202 para. 2(a).

Section Three: Conclusion of the Contract Article 2:301 Manner of Conclusion An insurance contract shall not be required to be concluded or evidenced in writing nor subject to any other requirement as to form. The contract may be proved by any means, including oral testimony.

Article 2:302 Revocation of an Application for Insurance An application for insurance may be revoked by the applicant if his revocation reaches the insurer before the applicant receives an acceptance from the insurer.

Article 2:303 Cooling-off Period6 (1) The policyholder shall be entitled to avoid the contract by giving written notice within two weeks after receipt of acceptance or delivery of the documents referred to in Article 2:501, whichever is the later. 6

This Article is modelled on the Distance Marketing Directive (2002/65/EC).

37

Chapter Two: Initial Stage and Duration of the Insurance Contract

(2) The policyholder shall not be entitled to avoid the contract when (a) the duration of the contract is less than one month; (b) the contract is prolonged under Article 2:602; (c) it is a case of preliminary insurance, liability insurance or group insurance.

Article 2:304 Abusive Clauses7 (1) A term which has not been individually negotiated shall not be binding on the policyholder, the insured or the beneficiary if, contrary to the requirements of good faith and fair dealing, it causes a significant imbalance in his rights and obligations arising under the contract to his detriment, taking into account the nature of the insurance contract, all the other terms of the contract and the circumstances at the time the contract was concluded. (2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term. If not, the unfair term shall be substituted by a term which reasonable parties would have agreed upon had they known the unfairness of the term. (3) This Article applies to terms that restrict or modify cover but it applies neither to (a) the adequacy in value of the cover and the premium, nor to (b) terms that state the essential description of the cover granted or the premium agreed, provided the terms are in plain and intelligible language. (4) A term shall always be regarded as not individually negotiated when it has been drafted in advance and the policyholder has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. When an insurer claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on the insurer.

Section Four: Retroactive and Preliminary Cover Article 2:401 Retroactive Cover (1) If, in the case of cover granted for a period before the contract was concluded (retroactive cover), the insurer knows at the time of the conclusion of the contract that no insured risk has occurred, the policyholder shall owe premiums only for the period after the time of conclusion. (2) If, in the case of retroactive cover, the policyholder knows at the time of the conclusion of the contract that the insured event has occurred, the insurer shall, subject to Article 2:104, provide cover only for the period after the time of the conclusion of the contract.

Article 2:402 Preliminary Cover (1) When concluding a preliminary insurance contract, the insurer shall issue a cover note containing the information specified in Article 2:501(a), (b), (d), (e) and (h) if relevant. (2) Articles 2:201-2:203 and, subject to para. 1 above, Article 2:501 do not apply to preliminary cover.

7

This Article is modelled on the Unfair Contract Terms Directive (93/13/EEC).

38

Article 2:502 Effects of the Policy

Article 2:403 Duration of Preliminary Cover (1) When an applicant for an insurance contract is granted preliminary cover, that cover shall end no sooner than at the time when the cover under the insurance contract is agreed to begin or at the time the applicant receives notice from the insurer definitively rejecting the application, as the case may be. (2) When preliminary cover is granted to a person who does not apply for an insurance contract with the same insurer, the cover may be granted for a period less than that stated in Article 2:601 para. 1. Such cover may be cancelled by either party giving two weeks notice.

Section Five: Insurance Policy Article 2:501 Contents When concluding the insurance contract, the insurer shall issue an insurance policy, together with the general contract terms as far as they are not included in the policy, containing the following information if relevant: (a) the name and address of the contracting parties, in particular of the head office and the legal form of the insurer and, where appropriate, of the branch concluding the contract or granting the cover; (b) the name and address of the insured and, in the case of life insurance, the beneficiary and the person at risk; (c) the name and address of the intermediary; (d) the subject matter of the insurance and the risks covered; (e) the sum insured and any deductibles; (f) the amount of the premium and the method of calculating it; (g) when the premium falls due as well as the place and mode of payment; (h) the contract period, including the method of terminating the contract, and the liability period; (i) the right to revoke the application or avoid the contract in accordance with Article 2:303 in the case of non-life insurance and with Article 17:203 in the case of life insurance; (j) that the contract is subject to the PEICL; (k) the existence of an out-of-court complaint and redress mechanism for the applicant and the methods of having access to it; (l) the existence of guarantee funds or other compensation arrangements.

Article 2:502 Effects of the Policy (1) If the terms of the insurance policy differ from those in the policyholder’s application or any prior agreement between the parties, such differences as have been highlighted in the policy shall be deemed to have been assented to by the policyholder unless he objects within one month of receipt of the policy. The insurer shall give the policyholder notice in bold print of the right to object to the differences highlighted in the policy. (2) If the insurer fails to comply with para. 1, the contract shall be deemed to have been agreed on the terms in the policyholder’s application or the prior agreement of the parties, as the case may be.

39

Chapter Two: Initial Stage and Duration of the Insurance Contract

Section Six: Duration of the Insurance Contract Article 2:601 Duration of the Insurance Contract (1) The duration of the insurance contract shall be one year. The parties may agree on a different period if indicated by the nature of the risk. (2) Para. 1 does not apply to personal insurance.

Article 2:602 Prolongation (1) After the one-year period referred to in Article 2:601 has expired the contract shall be prolonged unless (a) the insurer has given written notice to the contrary at least one month before the expiry of the contract period stating the reasons for its decision; or (b) the policyholder has given written notice to the contrary at the latest by the day the contract period expires or within one month after having received the insurer’s premium invoice whichever date is later. In the latter case, the one month period shall only start to run if it has been clearly stated on the invoice in bold print. (2) For the purposes of para. 1(b) notice shall be deemed to be given as soon as it is dispatched.

Article 2:603 Alteration of Terms and Conditions (1) In an insurance contract liable to prolongation under Article 2:602, a clause which allows the insurer to alter the premium or any other term or condition of the contract shall be invalid unless the clause provides that (a) any alteration shall not take effect before the next prolongation, (b) the insurer shall send written notice of alteration to the policyholder no later than one month before the expiry of the current contract period, and (c) the notice shall inform the policyholder about his right of termination and the consequences if the right is not exercised. (2) Para. 1 shall apply without prejudice to other requirements for the validity of alteration clauses.

Article 2:604 Termination after the Occurrence of an Insured Event (1) A clause providing for termination of the contract after an insured event has occurred shall not be valid unless (a) it grants the right to terminate to both parties and (b) the policy is not one of personal insurance. (2) Both the provision for termination and the exercise of any right to terminate must be reasonable. (3) Any right to terminate shall expire if the party in question has not given written notice of termination to the other party within two months after becoming aware of the insured event. (4) The insurance cover shall terminate two weeks after notice in accordance with para. 3.

Section Seven: Post-contractual Information Duties of the Insurer Article 2:701 General Information Duty Throughout the contract period the insurer shall provide the policyholder without undue delay with information in writing on any change concerning its name and address, its legal form, the address of its head office and of the agency or branch which concluded the contract.

40

Article 4:102 Insurer’s Right to Terminate the Contract

Article 2:702 Further Information upon Request (1) On the policyholder’s request, the insurer shall provide the policyholder without undue delay with information concerning (a) as far as can reasonably be expected of the insurer, all matters relevant to the performance of the contract; (b) new standard terms offered by the insurer for insurance contracts of the same type as the one concluded with the policyholder. (2) Both the policyholder’s request and the insurer’s response shall be in writing.

Chapter Three: Insurance Intermediaries Article 3:101 Powers of Insurance Agents (1) An insurance agent is authorised to perform all acts on behalf of the insurer that according to current insurance industry practice are within the scope of his employment. Any restriction of the agent’s authority shall be clearly notified to the policyholder in a separate document. However, the authority of the insurance agent shall at least cover the actual scope of his employment. (2) In any event the authority of the insurance agent shall include the power: (a) to inform and advise the policyholder, and (b) to receive notices from the policyholder. (3) Relevant knowledge which the insurance agent has or ought to have in the course of his employment shall be deemed to be the knowledge of the insurer.

Article 3:102 Agents of Insurers Purporting to Be Independent If an agent of the insurer purports to be an independent intermediary and acts in breach of duties imposed on such an intermediary by law, the insurer shall be liable for such breach.

Chapter Four: The Risk Insured

Section One: Precautionary Measures Article 4:101 Precautionary Measures: Meaning A precautionary measure means a clause in the insurance contract, whether or not described as a condition precedent to the liability of the insurer, requiring the policyholder or the insured, before the insured event occurs, to perform or not to perform certain acts.

Article 4:102 Insurer’s Right to Terminate the Contract (1) A clause which provides that in the event of non-compliance with a precautionary measure the insurer shall be entitled to terminate the contract, shall be without effect unless the policyholder or the insured has breached his obligation with intent to cause the loss or recklessly and with knowledge that the loss would probably result. (2) The right to terminate shall be exercised by written notice to the policyholder within one month of the time when the non-compliance with a precautionary measure becomes known or apparent to the insurer. Cover shall come to an end at the time of termination.

41

Chapter Four: The Risk Insured

Article 4:103 Discharge of the Insurer’s Liability (1) A clause that non-compliance with a precautionary measure totally or partially exempts the insurer from liability, shall only have effect to the extent that the loss was caused by the non-compliance of the policyholder or insured with intent to cause the loss or recklessly and with knowledge that the loss would probably result. (2) Subject to a clear clause providing for reduction of the insurance money according to the degree of fault, the policyholder or insured, as the case may be, shall be entitled to insurance money in respect of any loss caused by negligent non-compliance with a precautionary measure.

Section Two: Aggravation of Risk Article 4:201 Clauses Concerning Aggravation of Risk If the insurance contract contains a clause concerning aggravation of the risk insured, the clause shall be without effect unless the aggravation of risk in question is material and of a kind specified in the insurance contact.

Article 4:202 Duty to Give Notice of an Aggravation of Risk (1) If a clause concerning aggravation of the risk insured requires notification of an aggravation, notification shall be given by the policyholder, the insured or the beneficiary, as appropriate, provided that the person obliged to give notice was or should have been aware of the existence of the insurance cover and of the aggravation of the risk. Notice by another person shall be effective. (2) If the clause requires notice to be given within a stated period of time, such time shall be reasonable. Notice shall be effective on dispatch. (3) In the event of breach of the duty of notification, the insurer shall not on that ground be entitled to refuse to pay any subsequent loss resulting from an event within the scope of the cover unless the loss was a consequence of the failure to notify the aggravated risk.

Article 4:203 Termination and Discharge (1) If the contract provides that, in the event of an aggravation of the risk insured the insurer shall be entitled to terminate the contract, such right shall be exercised by written notice to the policyholder within one month of the time when the aggravation becomes known or apparent to the insurer. (2) Cover shall expire one month after termination or, if the policyholder is in intentional breach of the duty under Article 4:202, at the time of termination. (3) If an insured event is caused by an aggravated risk, of which the policyholder is or ought to be aware, before cover has expired, no insurance money shall be payable if the insurer would not have insured the aggravated risk at all. If, however, the insurer would have insured the aggravated risk at a higher premium or on different terms, the insurance money shall be payable proportionately or in accordance with such terms.

42

Article 5:103 Termination of the Contract

Section Three: Reduction of Risk Article 4:301 Consequences of the Reduction of Risk (1) If there is a material reduction of risk, the policyholder shall be entitled to request a proportionate reduction of the premium for the remaining contract period. (2) If the parties do not agree on a proportionate reduction within one month of the request, the policyholder shall be entitled to terminate the contract by written notice given within two months of the request.

Chapter Five: Insurance Premium Article 5:101 First or Single Premium When the insurer makes payment of the first or single premium a condition of formation of the contract or of the beginning of cover, that condition shall be without effect unless (a) the condition is communicated to the applicant in writing using clear language and warning the applicant that he lacks cover until the premium is paid, and (b) a period of two weeks has expired after receipt of an invoice which complies with requirement (a) without payment having been made.

Article 5:102 Subsequent Premium (1) A clause, providing for the insurer to be relieved of its obligation to cover the risk in the event of non-payment of a subsequent premium, shall be without effect unless (a) the policyholder receives an invoice stating the precise amount of premium due as well as the date of payment; (b) after the premium falls due, the insurer sends a reminder to the policyholder of the precise amount of premium due, granting an additional period of payment of at least two weeks, and warning the policyholder of the imminent suspension of cover if payment is not made; and (c) the additional period in requirement (b) has expired without payment having been made. (2) The insurer will be relieved of liability after the additional period in para. 1(b) has expired. Cover will be resumed for the future as soon as the policyholder pays the amount due unless the contract has been terminated in accordance with Article 5:103.

Article 5:103 Termination of the Contract (1) On expiry of the period referred to in Article 5:101(b) or Article 5:102 para. 1(b), without payment of the premium being made, the insurer shall be entitled to terminate the contract by written notice, provided that the invoice required by Article 5:101(b) or the reminder required by Article 5:102 para. 1(b), as the case may be, states the right of the insurer to terminate the contract. (2) The contract shall be deemed to be terminated if, as the case may be, the insurer does not bring an action for payment (a) of the first premium within two months after expiry of the period mentioned in Article 5:101(b); or (b) of a subsequent premium within two months of expiry of the period mentioned in Article 5:102 para. 1(b).

43

Chapter Six: Insured Event

Article 5:104 Divisibility of Premium If an insurance contract is terminated before the contract period has expired, the insurer shall only be entitled to premium in respect of the period prior to termination.

Article 5:105 Right to Pay Premium The insurer shall not be entitled to refuse payment by a third party if (a) the third party acts with the assent of the policyholder; or (b) the third party has a legitimate interest in maintaining the cover and the policyholder has failed to pay or it is clear that he will not pay at the time payment is due.

Chapter Six: Insured Event Article 6:101 Notice of Insured Event (1) The occurrence of an insured event shall be notified to the insurer by the policyholder, the insured or the beneficiary, as appropriate, provided that the person obliged to give notice was or should have been aware of the existence of the insurance cover and of the occurrence of the insured event. Notice by another person shall be effective. (2) Such notice shall be given without undue delay. It shall be effective on dispatch. If the contract requires notice to be given within a stated period of time, such time shall be reasonable and in any event no shorter than five days. (3) The insurance money payable shall be reduced to the extent that the insurer proves that it has been prejudiced by undue delay.

Article 6:102 Claims Cooperation (1) The policyholder, insured or beneficiary, as appropriate, shall cooperate with the insurer in the investigation of the insured event by responding to reasonable requests, in particular for – information about the causes and effects of the insured event; – documentary or other evidence of the insured event; – access to premises related thereto. (2) In the event of any breach of para. 1 and subject to para. 3, the insurance money payable shall be reduced to the extent that the insurer proves that it has been prejudiced by the breach. (3) In the event of any breach of para. 1 committed with intent to cause prejudice or recklessly and with knowledge that such prejudice would probably result, the insurer shall not be obliged to pay the insurance money.

Article 6:103 Acceptance of Claims (1) The insurer shall take all reasonable steps to settle a claim promptly. (2) Unless the insurer rejects a claim or defers acceptance of a claim by written notice giving reasons for its decision within one month after receipt of the relevant documents and other information, the claim shall be deemed to have been accepted.

Article 6:104 Time of Performance (1) When a claim has been accepted the insurer shall pay or provide the services promised, as the case may be, without undue delay.

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Article 7:103 Other Issues Relating to Prescription

(2) Even if the total value of a claim cannot yet be quantified but the claimant is entitled to at least a part of it, this part shall be paid or provided without undue delay. (3) Payment of insurance money, whether under para. 1 or para. 2, shall be made no later than one week after the acceptance and quantification of the claim or part of it, as the case may be.

Article 6:105 Late Performance8 (1) If insurance money is not paid in accordance with Article 6:104, the claimant shall be entitled to interest on that sum from the time when payment was due to the time of payment and at the rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, plus eight percentage points. (2) The claimant shall be entitled to recover damages for any additional loss caused by late payment of the insurance money.

Chapter Seven: Prescription Article 7:101 Action for Payment of Premium Action for payment of premium shall be prescribed after a period of one year from the time when payment is due.

Article 7:102 Action for Payment of Insurance Benefits (1) In general, action for insurance benefits shall be prescribed after a period of three years from the time when the insurer makes or is deemed to have made a final decision on the claim in accordance with Article 6:103. In any event, however, action shall be prescribed at the latest after a period of ten years from the occurrence of the insured event, except in the case of life insurance for which the relevant period shall be 30 years. (2) Action for payment of the surrender value of life insurance shall be prescribed after a period of three years from the time when the policyholder receives the final account from the insurer. In any event, however, action shall be prescribed at the latest after a period of 30 years from the termination of the life insurance contract.

Article 7:103 Other Issues Relating to Prescription Subject to Article 7:101 and Article 7:102 of the PEICL, Articles 14:101-14:503 of the Principles of European Contract Law (PECL)9 shall apply to claims arising out of a contract of insurance. The insurance contract may derogate from these provisions in accordance with Article 1:103 para. 2 of the PEICL.

8 9

This Article is modelled on art. 3 para. 1(d) of the Late Payment Directive (2000/35/EC). Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Chapter Eight: Sum Insured and Insured Value

Part Two: Provisions Common to Indemnity Insurance Chapter Eight: Sum Insured and Insured Value Article 8:101 Maximum Sums Payable (1) The insurer shall not be obliged to pay more than the amount necessary to indemnify losses actually suffered by the insured. (2) A clause which provides for the agreed value of the subject-matter insured shall be valid even if the said value exceeds the actual value of the subject-matter, provided that there was no operative fraud or misrepresentation on the part of the policyholder or insured at the time the value was agreed.

Article 8:102 Underinsurance (1) The insurer shall be liable for any insured loss up to the sum insured even if the sum insured is less than the value of the property insured at the time when the insured event occurs. (2) However, when the insurer offers cover in accordance with para. 1, it shall be entitled alternatively to offer insurance on the basis that the indemnity to be paid shall be limited to the proportion that the sum insured bears to the actual value of the property at the time of the loss. In that case, moreover, mitigation costs, as defined in Article 9:102, shall be reimbursed in the same proportion.

Article 8:103 Adjustment of Terms in Case of Overinsurance (1) If the sum insured exceeds the maximum possible loss under the insurance, either party shall be entitled to request a reduction of the sum insured and a corresponding reduction of premium for the remaining contract period. (2) If the parties do not agree on such a reduction within one month of the request, either party shall be entitled to terminate the contract.

Article 8:104 Multiple Insurance (1) If the same interest is separately insured by more than one insurer, the insured shall be entitled to claim against any one or more of those insurers to the extent necessary to indemnify losses actually suffered by the insured. (2) The insurer against which a claim is brought shall pay up to the sum insured under its policy, together with the mitigation costs if any, without prejudice to its rights to contribution from any other insurer. (3) As between insurers, the rights and obligations referred to in para. 2 shall be in proportion to the amounts for which they are separately liable to the insured.

Chapter Nine: Entitlement to Indemnity Article 9:101 Causation of Loss

(1) Neither the policyholder nor the insured, as the case may be, shall be entitled to indemnity to the extent that the loss was caused by an act or omission on his part with intent to cause the loss or recklessly and with knowledge that the loss would probably result. (2) Subject to a clear clause in the policy providing for reduction of the insurance money according to the degree of fault on his part, the policyholder or insured, as the case may be, shall be entitled to indemnity in respect of any loss caused by an act or omission on his part that was negligent.

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Article 11:103 Breach of Duty by One Insured

(3) For the purposes of paras. 1 and 2 causation of loss includes failure to avert or to mitigate loss.

Article 9:102 The Costs of Mitigation (1) The insurer shall reimburse the costs incurred or the amount of damage suffered by the policyholder or the insured in taking measures to mitigate insured loss, to the extent the policyholder or the insured was justified in regarding the measures as reasonable under the circumstances, even if they were unsuccessful in mitigating the loss. (2) The insurer shall indemnify the policyholder or the insured, as the case may be, in respect of any measures taken in accordance with para. 1, even if together with the compensation for the loss insured the amount payable exceeds the sum insured.

Chapter Ten: Rights of Subrogation Article 10:101 Subrogation (1) Subject to para. 3 the insurer shall be entitled to exercise rights of subrogation against a third party liable for the loss to the extent that it has indemnified the insured. (2) To the extent that the insured waives a right against such a third party in a way that prejudices the insurer’s right of subrogation, he shall forfeit his entitlement to indemnity in respect of the loss in question. (3) The insurer shall not be entitled to exercise rights of subrogation against a member of the household of the policyholder or insured, a person in an equivalent social relationship to the policyholder or insured, or an employee of the policyholder or insured, except when it proves that the loss was caused by such a person intentionally or recklessly and with knowledge that the loss would probably result. (4) The insurer shall not exercise its rights of subrogation to the detriment of the insured.

Chapter Eleven: Insured Persons other than the Policyholder Article 11:101 Entitlement of the Insured (1) In the case of an insurance taken out for a person other than the policyholder, if the insured event occurs, that person shall be entitled to the insurance money. (2) The policyholder shall be entitled to revoke such cover, unless (a) the policy provides otherwise; or (b) the insured event has occurred. (3) Revocation shall take effect when written notice of revocation is given to the insurer.

Article 11:102 Knowledge of the Insured Knowledge of a person insured in accordance with Article 11:101 shall not be attributed to the policyholder, unless that person is aware of his status as insured, when the policyholder is obliged to provide relevant information to the insurer.

Article 11:103 Breach of Duty by One Insured Breach of duty by one insured shall not adversely affect the rights of other persons insured under the same insurance contract, unless the risk is jointly insured.

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Chapter Twelve: Insured Risk

Chapter Twelve: Insured Risk Article 12:101 Lack of Insured Risk (1) If the insured risk exists neither at the time of conclusion of the contract nor at any time during the insurance period, no premium shall be due. However, the insurer shall be entitled to a reasonable sum for expenses incurred. (2) If the insured risk ceases to exist during the insurance period, the contract shall be deemed to have been terminated at the time that the insurer is notified thereof.

Article 12:102 Transfer of Property (1) If the title to insured property is transferred, the insurance contract shall be terminated one month after the time of transfer, unless the policyholder and transferee agree on termination at an earlier time. This rule shall not apply if the insurance contract was taken out for the benefit of a future transferee. (2) The transferee of the property shall be deemed to be the insured from the time that the risk in the insured property is transferred. (3) Paras. 1 and 2 shall not apply (a) if insurer, policyholder and transferee agree otherwise; or (b) to a transfer of title by inheritance.

Part Three: Provisions Common to Insurance of Fixed Sums Chapter Thirteen: Admissibility Article 13:101 Insurance of Fixed Sums Only accident, health, life, marriage, birth or other personal insurance may be taken out as insurances of fixed sums.

Part Four: Liability Insurance Chapter Fourteen: General Liability Insurance Article 14:101 Defence Costs The insurer shall reimburse defence costs incurred in accordance with Article 9:102.

Article 14:102 Protection of the Victim Unless the victim gives consent in writing, his position shall not be affected by any settlement of the insurance claim under the policy by the policyholder or the insured and the insurer, whether by agreement, waiver, payment or an equivalent act.

Article 14:103 Causation of Loss (1) Neither the policyholder nor the insured, as the case may be, shall be entitled to indemnity to the extent that the loss was caused by an act or omission on his part with intent to cause the loss; this shall include non-compliance with specific instructions of the insurer after the occurrence of the loss, if done recklessly and with knowledge that otherwise the loss would probably be aggravated.

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Article 14:108 Claims Exceeding the Sum Insured

(2) For the purposes of para. 1 causation of loss includes failure to avert or to mitigate loss. (3) Subject to a clear clause in the policy providing for reduction of the insurance money according to the degree of fault on his part, the policyholder or insured, as the case may be, shall be entitled to indemnity in respect of any loss caused by negligent non-compliance with specific instructions of the insurer after the occur-rence of the loss.

Article 14:104 Acknowledgement of Liability (1) A clause in the insurance contract releasing the insurer from its obligations in case the policyholder or insured, as the case may be, accepts or satisfies the victim’s claim shall be without effect. (2) Unless it consents, the insurer shall not be bound by an agreement between the victim and the policyholder or insured, as the case may be.

Article 14:105 Assignment A clause in an insurance contract depriving the insured of his right to assign his claim under the policy shall be without effect.

Article 14:106 No-Claims-Bonuses / Bonus-Malus-Systems (1) The policyholder shall have the right to request at any time a statement relating to his claims record for the past five years. (2) If an insurer makes the premium or other conditions dependent on the number or the amount of claims paid under the policy, due consideration shall be given to the policyholder’s claims record with other insurers for the past five years.

Article 14:107 Insured Event (1) The insured event shall be the fact giving rise to the insured’s liability that occurred during the liability period of the insurance contract unless the parties to an insurance contract for commercial or professional purposes define the insured event with reference to other criteria such as the claim made by the victim. (2) When the contracting parties define the insured event with reference to the claim made by the victim, cover shall be granted in respect of claims made within the liability period or within a subsequent period of no less than five years and which are based on a fact occurred before the end of the liability period. The insurance contract may exclude cover on the basis that, at the time of conclusion of the contract, the applicant was or ought to have been aware of circumstances which he should have expected to give rise to claims.

Article 14:108 Claims Exceeding the Sum Insured (1) If the total payments due to several victims exceed the sum insured, the payments shall be reduced proportionately. (2) An insurer who, being unaware of the existence of other victims, has in good faith paid out insurance money to the victims known to it, shall be liable to the other victims up to the balance of the sum insured.

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Chapter Fifteen: Direct Claims and Direct Actions

Chapter Fifteen: Direct Claims and Direct Actions Article 15:101 Direct Claims and Defences (1) To the extent that the policyholder or the insured, as the case may be, is liable, the victim shall be entitled to a direct claim for compensation against the insurer under the insurance contract provided that (a) the insurance is compulsory, or (b) the policyholder or insured is insolvent, or (c) the policyholder or insured has been liquidated or wound up, or (d) the victim has suffered personal injury, or (e) the law governing the liability provides for a direct claim. (2) As against the victim, the insurer may raise defences available under the insurance contract unless prohibited by specific provisions making the insurance compulsory. However, the insurer is not entitled to raise any defence based upon the conduct of the policyholder and/or the insured after the loss.

Article 15:102 Information Duties (1) Upon request by the victim, the policyholder and the insured shall provide the information needed for making a direct claim. (2) The insurer shall notify the policyholder in writing of any direct claim made against it without undue delay and, at the latest within two weeks following receipt of the claim. If the insurer breaches this obligation, a payment to or acknowledgement of debt towards the victim shall not affect the rights of the policyholder. (3) If the policyholder fails to provide the insurer with information about the insured event within one month of receiving notice in accordance with para. 2, the policyholder is deemed to agree to a direct settlement of the claim by the insurer. This rule also applies to insureds who have actually received such notice in time.

Article 15:103 Discharge The payment of insurance money to the policyholder or insured, as the case may be, will only discharge the insurer from its obligation towards the victim if the victim (a) has waived his direct claim or (b) has not notified the insurer about his intention to make a direct claim within four weeks of receiving the insurer’s request in writing.

Article 15:104 Prescription (1) Action against the insurer, whether brought by the insured or by the victim, shall be prescribed when the victim’s action against the insured is prescribed. (2) The period of prescription for a claim made by the victim against the insured is suspended from the time, if any, that the insured becomes aware that a direct claim against the insurer has been made until the time that the direct claim is settled or unequivocally rejected by the insurer.

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Article 17:102 Beneficiary of the Insurance Money

Chapter Sixteen: Compulsory Insurance Article 16:101 Scope of Application (1) The PEICL may be chosen by the parties to an insurance contract concluded in performance of an obligation to insure (a) prescribed by Community law, (b) prescribed in a Member State, or (c) prescribed in a Non-Member State to the extent allowed by the law of that State. (2) The insurance contract shall not satisfy the obligation to take out insurance unless it complies with the specific provisions imposing the obligation.

Part Five: Life Insurance Chapter Seventeen: Special Provisions for Life Insurance Section One: Third Parties

Article 17:101 Life Insurance on the Life of a Third Party An insurance contract on the life of a person other than the policyholder shall be invalid, unless the informed consent of the person at risk is obtained in writing and evidenced by signature. Any substantial later change to the contract, including a change of the beneficiary, an increase in the sum insured and a change in the duration of the contract shall be without effect without such consent. The same applies to an assignment of or encumbrance on the insurance contract or the right to the insurance money.

Article 17:102 Beneficiary of the Insurance Money (1) The policyholder may designate one or more beneficiaries of the insurance money and may change or revoke such designation, unless the designation has been declared irrevocable. The designation, change or revocation, unless made in a will, shall be made in writing and be sent to the insurer. (2) The right to designate, change or revoke the designation shall end on the death of the policyholder or the occurrence of the insured event, whichever occurs first. (3) The policyholder or the heirs of the policyholder, as the case may be, shall be regarded as beneficiaries of the insurance money if (a) the policyholder has not designated a beneficiary or (b) the designation of a beneficiary has been revoked and no other beneficiaries have been designated or (c) a beneficiary has died before the insured event occurs and no other beneficiaries have been designated. (4) If two or more beneficiaries have been designated and the designation of any of them is revoked or any of them dies before the insured event occurs, the amount of the insurance money that would have been due to the beneficiary or beneficiaries in question shall be distributed among the remaining beneficiaries proportionately, unless otherwise specified by the policyholder in accordance with para. 1. (5) Subject to any rules on the nullity, voidability or unenforceability of legal acts detrimental to creditors laid down in applicable rules of insolvency law, the insolvent estate of the policyhold-

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Chapter Seventeen: Special Provisions for Life Insurance

er shall have no rights concerning the insurance money, the conversion value or the surrender value as long as the money has not been paid to the policyholder. (6) An insurer paying the insurance money to a person designated in accordance with para. 1 shall be discharged from its obligation to pay, unless it knew that the person in question was not entitled to the insurance money.

Article 17:103 Beneficiary of the Surrender Value (1) Irrespective of a designation under Article 17:102, the policyholder may also designate a beneficiary of the surrender value, if any, and may change or revoke such designation. The designation, change or revocation shall be made in writing and be sent to the insurer. (2) The policyholder shall be regarded as the beneficiary of the surrender value if (a) no beneficiary of the surrender value has been designated or (b) a designation of a beneficiary of the surrender value has been revoked and no other beneficiaries have been designated or (c) a beneficiary of the surrender value has died and no other beneficiaries have been designated. (3) Article 17:102 paras. 2, and 4 to 6 shall apply mutatis mutandis.

Article 17:104 Assignment or Encumbrance (1) Where a beneficiary has been irrevocably designated, an assignment of or encumbrance on the insurance contract or the right to the insurance money by the policyholder shall be without effect unless the beneficiary has consented in writing. (2) An assignment of or encumbrance on the right to the insurance money by a beneficiary shall be without effect unless the policyholder has consented in writing.

Article 17:105 Renunciation of Estate Where a beneficiary is an heir of the deceased person at risk and has renounced the estate, the sole fact of renunciation does not affect his position under the insurance contract.

Section Two: Initial Stage and Duration of the Contract Article 17:201 Applicant’s Pre-contractual Information Duties (1) The information to be provided by the applicant in accordance with Article 2:101 para. 1, shall include those circumstances of which the person at risk was or should have been aware. (2) The sanctions for a breach of pre-contractual information duties under Articles 2:102, 2:103 and 2:105, but not under Article 2:104, shall only be available for five years after the conclusion of the contract.

Article 17:202 Insurer’s Pre-contractual Information Duties (1) The insurer shall inform the applicant about whether he has a right to participate in profits. The receipt of this information must be acknowledged by an explicit statement contained in a document separate from the application form. (2) The document to be provided by the insurer in accordance with Article 2:201 shall include the following information:

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Article 17:205 Insurer’s Right to Terminate the Contract

(a) as regards the insurer: a specific reference to the compulsory publication of the annual report on its solvency and financial condition; (b) as regards the contractual commitments of the insurer: (i) an explanation of each benefit and each option, (ii) information about the proportion of the premium attributable to each benefit, both main benefits and supplementary benefits, where appropriate; (iii) the methods of calculation and distribution of bonuses including a specification of the applicable supervisory law; (iv) an indication of surrender and paid-up values and the extent to which they are guaranteed; (v) for unit-linked policies: an explanation of the units to which the benefits are linked, and an indication of the nature of the underlying assets; (vi) general information on the tax arrangements applicable to the type of policy. (3) In addition, specific information shall be supplied in order to facilitate a proper understanding of risks underlying the contract which are assumed by the policyholder. (4) If the insurer quotes in figures the amount of the possible benefits over and above the contractually guaranteed payments it shall provide the applicant with a model calculation which states the possible maturity benefit based on the actuarial principles for premium calculation with three different rates of interest. This shall not apply to insurance contracts covering risks for which the insurer is uncertain to be liable nor to unit-linked policies. The insurer shall clearly and comprehensibly indicate to the policyholder that the model calculation only represents a model based on fictitious assumptions and that the contract does not guarantee possible payments.

Article 17:203 Cooling-off Period10 (1) For contracts of life insurance, the cooling-off period laid down in Article 2:303 para. 1 shall be one month after receipt of acceptance or delivery of the documents referred to in Article 2:501 and Article 17:202, whichever is the later. (2) The right of the policyholder to avoid the contract in accordance with Article 2:303 para. 1 shall lapse one year after the conclusion of the contract.

Article 17:204 Policyholder’s Right to Terminate the Contract (1) The policyholder shall be entitled to terminate a contract of life insurance which does not attract a conversion value or a surrender value, provided that the termination does not take effect earlier than one year after the conclusion of the contract. The right to terminate before the end of the contract period may be excluded where a single premium has been paid. Termination shall be in writing and become effective two weeks after receipt of notice of termination by the insurer. (2) If the contract of life insurance has attracted a conversion value or surrender value, Articles 17:601 to 17:603 shall apply.

Article 17:205 Insurer’s Right to Terminate the Contract The insurer shall be entitled to terminate a contract of life insurance only to the extent permitted by this Chapter. 10

Article 17:203 para. 1 is modelled on art. 35 of the Life Assurance Consolidation Directive (2002/83/ EC) and art. 6 of the Distance Marketing Directive (2002/65/EC).

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Chapter Seventeen: Special Provisions for Life Insurance

Section Three: Changes during the Contract Period Article 17:301 Insurer’s Post-contractual Information Duties (1) Where applicable, the insurer shall provide the policyholder annually with a written statement of the current value of the bonuses attached to the policy. (2) In addition to the requirements of Article 2:701, the insurer shall inform the policyholder without undue delay about any change concerning: (a) the policy conditions, both general and special; (b) in the event of a change in the policy conditions or an amendment of the PEICL: the information listed in Article 2:201(f) and (g) as well as in Article 17:202 para. 2(b) points i to v. (3) Article 17:202 para. 4 shall also apply where the figures relating to the estimated amount of possible benefits are provided at any time during the contract period. Where the insurer has provided figures, whether before or after the conclusion of the contract, about the potential future development of profit participation, the insurer shall inform the policyholder about any differences between the actual development and the initial data.

Article 17:302 Aggravation of Risk In a life insurance contract, a clause specifying age or deterioration in health as aggravations of risk within the meaning of Article 4:201 shall be regarded as an abusive clause under Article 2:304.

Article 17:303 Adjustment of Premium and Benefits Payable (1) In a life insurance contract covering risks for which the insurer is certain to be liable, the insurer shall only be entitled to an adjustment in accordance with paras. 2 and 3. (2) An increase of premium shall be permissible where there has been an unforeseeable and permanent change in respect of the biometric risks used as the basis for calculating the premium, where an increase is necessary to guarantee the insurer’s continued ability to pay out insurance benefits and where the increase has been agreed by an independent trustee or the supervisory authority. The policyholder shall be entitled to offset the increase in premium with an appropriate reduction of the insurance benefits. (3) In the case of a paid-up policy, the insurer shall be entitled to reduce the insurance benefits under the conditions set out in para. 2. (4) An adjustment in accordance with para. 2 or 3 shall not be permitted (a) in so far as an error has been committed in the calculation of the premium and/or benefits of which a competent and diligent actuary ought to have been aware, or (b) where the underlying calculation is not applied to all contracts including those concluded after the adjustment. (5) An increase of premium or a reduction of benefits shall become effective three months after the insurer has provided the policyholder with written notice about the increase of premium or reduction of benefits, the reasons for this and about the policyholder’s own right to demand a reduction of benefits. (6) In a life insurance contract covering risks for which the insurer is certain to be liable, the policyholder shall be entitled to a decrease of premium where, due to an unforeseeable and permanent change in respect of the biometric risks used as the basis for calculating the premium, the original amount of premium is not appropriate and necessary in order to guarantee the insurer’s continued ability to pay insurance benefit. The decrease has to be agreed by an independent trustee or the supervisory authority.

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Article 17:501 Insurer’s Investigation and Information Duty

(7) The rights set forth in this Article may be exercised not earlier than five years after the conclusion of the contract.

Article 17:304 Alteration of Terms and Conditions (1) A clause which allows the insurer to alter the terms or conditions other than the premium and benefits payable shall be invalid, unless the alteration is required to (a) comply with an amendment of supervisory law including binding measures taken by the supervisory authority, or (b) comply with an amendment of mandatory rules of the applicable national law on employers’ pension plans, or (c) comply with an amendment of national rules imposing specific requirements on a contract of life insurance in order to qualify for special tax treatment or for state subsidies, or (d) substitute a clause of the contract in accordance with the second sentence of Article 2:304 para. 2. (2) The alteration shall become effective at the start of the third month after the policyholder has received written notice informing the policyholder about the alteration and the reasons for it. (3) Para. 1 shall apply without prejudice to other requirements for the validity of alteration clauses.

Section Four: Relation to National Laws Article 17:401 Pension Plans A life insurance contract relating to a pension plan shall be subject to the mandatory rules of the applicable national law on pension plans. The PEICL shall only apply to the extent compatible with these rules.

Article 17:402 Tax Treatment and State Subsidies The PEICL shall not affect national rules imposing specific requirements on a contract of life insurance in order to qualify for special tax treatment or for state subsidies. In the case of a conflict between such requirements of applicable national law and provisions of the PEICL, the latter may be derogated from.

Section Five: Insured Event Article 17:501 Insurer’s Investigation and Information Duty (1) An insurer which has reason to believe that the insured event may have occurred shall take reasonable steps to ascertain this. (2) The insurer, knowing that the insured event has occurred, shall make best efforts in the circumstances to discover the identity and address of the beneficiary and inform that person accordingly. This information shall be provided no later than 30 days after the insurer becomes aware of the identity and address of the beneficiary. (3) If an insurer is in breach of para. 1 or 2, the prescription of the beneficiary’s claim shall be suspended until the beneficiary acquires knowledge of his actual entitlement.

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Chapter Seventeen: Special Provisions for Life Insurance

Article 17:502 Suicide (1) If, within one year after the conclusion of the contract, the person at risk commits suicide, the insurer shall be discharged from its liability to pay the insurance money. If so, the insurer shall pay the surrender value and any profits in accordance with Article 17:602. (2) Para. 1 shall not apply if (a) the person at risk, when committing suicide, acts in a mental state precluding the ability to freely determine his intent, or (b) it is proved beyond any reasonable doubt that, at the time of conclusion of the contract, the person at risk did not intend to commit suicide.

Article 17:503 Intentional Killing of the Person at Risk (1) When a beneficiary kills the person at risk intentionally his designation as a beneficiary shall be deemed to be revoked. (2) An assignment of the claim to the insurance money shall be without effect if the assignee kills the person at risk intentionally. (3) When the policyholder who is also the beneficiary kills the person at risk intentionally, no insurance money shall be payable. (4) When the beneficiary or the policyholder who kills the person at risk does so justifiably, such as in the case of legitimate self-defence, this Article shall not apply.

Section Six: Conversion and Surrender Article 17:601 Conversion of the Contract (1) Article 5:103 shall not apply to contracts of life insurance which have attracted a conversion value or a surrender value. Such contracts shall be converted into paid-up policies unless the policyholder requires payment of the surrender value within four weeks after receiving the information referred to in para. 2. (2) The insurer shall inform the policyholder of the conversion value and the surrender value within four weeks of the expiry of the period referred to in Article 5:101(b) or Article 5:102 para. 1(b) and request the policyholder to choose between conversion and the payment of the surrender value. (3) The request for conversion or payment of the surrender value shall be in writing.

Article 17:602 Surrender of the Contract (1) The policyholder may at any time require the insurer in writing to pay, in part or in full, the surrender value which the policy has attracted, provided that this does not take effect earlier than one year after the conclusion of the contract. The contract shall be adjusted or terminated accordingly. (2) Subject to Article 17:601, if a contract of life insurance which has attracted a surrender value is terminated, rescinded or avoided by the insurer, it is obliged to pay the surrender value, even in the case of Article 2:104. (3) The insurer shall inform the policyholder upon request but in any case every year about the current amount of the surrender value and the extent to which it is guaranteed. (4) The share of any profit to which the policyholder is entitled shall be paid in addition to the surrender value, unless the share has already been taken account of in the calculation of the surrender value.

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Article 18:202 Information Duties

(5) Sums due under this Article shall be paid no later than two months after the receipt of the policyholder’s request by the insurer.

Article 17:603 Conversion Value; Surrender Value (1) The insurance contract shall state the way the conversion value and/or the surrender value is calculated in accordance with the law of the home Member State of the insurer. The stated way of calculating the surrender and/or conversion value shall comply with established actuarial principles and with para. 2. (2) When the insurer deducts the costs of concluding the contract, it shall do so in equal amounts and over a period of no less than five years. (3) The insurer is entitled to deduct an appropriate amount, which is calculated in accordance with established actuarial principles, to cover costs related to the payment of the surrender value, unless the calculation already includes such reduction.

Part Six: Group Insurance Chapter Eighteen: Special Provisions for Group Insurance Section One: Group Insurance in General Article 18:101 Applicability Contracts for group insurance are subject to the PEICL provided that the group organiser and the insurer have made the agreement in accordance with Article 1:102. Group insurance is either accessory and subject to Section 2 of this Chapter or elective and subject to Section 3 of this Chapter.

Article 18:102 General Duty of Care of the Group Organiser (1) In the negotiation and performance of a contract for group insurance, the group organiser shall act dutifully and in good faith taking account of the legitimate interests of the group member. (2) The group organiser shall forward any relevant notices issued by the insurer to the group members and inform them about any amendments to the contract.

Section Two: Accessory Group Insurance Article 18:201 Application of the PEICL Where necessary, the PEICL shall be applied to accessory group insurance mutatis mutandis.

Article 18:202 Information Duties (1) When a group member joins the group, the group organiser shall without undue delay inform the member about (a) the existence of the insurance contract, (b) the extent of cover, (c) any precautionary measures and any other requirements for preserving cover, and (d) the claims procedure. (2) The burden of proving that the group member has received information required by para. 1 shall lie with the group organiser.

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Chapter Eighteen: Special Provisions for Group Insurance

Article 18:203 Termination by the Insurer (1) For the purposes of Article 2:604, the exercise of the right of termination by the insurer shall only be regarded as reasonable if it is limited to the exclusion from cover of the group member to whom the insured event occurred. (2) For the purposes of Article 4:102 and Article 4:203 para. 1, the exercise of the right of termination by the insurer shall only have the effect of excluding those group members from cover who have not taken the required precautionary measures or whose risks were aggravated, as the case may be. (3) For the purpose of Article 12:102 termination of the insurance contract shall only have the effect of excluding group members who have transferred their title to insured property from cover.

Article 18:204 Right to Continue Cover – Group Life Insurance (1) If a contract for accessory group life insurance is terminated or if the member leaves the group, the cover ends after three months or with the expiry of the contract for group life insurance, whichever is earlier. When this occurs, the group member shall have a right to equivalent cover under a new individual contract with the insurer concerned without a new assessment of the risk. (2) The group organiser shall inform the group member in writing without undue delay about (a) the imminent termination of his cover under the contract for group life insurance, (b) his rights under para. 1 and (c) how to exercise those rights. (3) If the group member has indicated his intention to exercise his right under Article 18:204 para. 1, the contract between the insurer and the group member shall continue as an individual insurance contract at a premium calculated on the basis of an individual policy at that time without taking into account the current state of health or age of the group member.

Section Three: Elective Group Insurance Article 18:301 Elective Group Insurance: General (1) Elective group insurance is deemed to be a combination of a framework contract between the insurer and the group organiser and individual insurance contracts concluded within such a framework by the insurer and the group members. (2) The PEICL apply to the individual insurance contracts where the group organiser and the insurer have agreed on their application but, except for Articles 18:101 and 18:102, the PEICL do not apply to the framework contract.

Article 18:302 Alteration of Terms and Conditions Alteration of terms and conditions of the framework contract shall only affect the individual insurance contracts if effected in compliance with the requirements of Articles 2:603, 17:303 and 17:304, as appropriate.

Article 18:303 Continuation of Cover Termination of the framework contract or cessation of membership on the part of an individual group member shall not have any effect on the insurance contract between the insurer and the group member.

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Principles of European Insurance Contract Law (PEICL): Rules, Comments and Notes

Chapter One: Introductory Provisions

Part One: Provisions Common to All Contracts Included in the Principles of European Insurance Contract Law (PEICL) Chapter One: Introductory Provisions Section One: Application of the PEICL

Article 1:101 Substantive Scope of Application (1) The PEICL shall apply to private insurance in general, including mutual insurance. (2) The PEICL shall not apply to reinsurance.

Comments Substantive Scope: Substantive Private Insurance Contract Law C1.  Notwithstanding the focus on mandatory law, the Principles of European Insurance Contract Law are of private law character. The Principles of European Insurance Contract Law contain rules of insurance contract law.

Mutual Insurance C2.  Article 1:101 para. 1 explicitly mentions the applicability of the Principles of European Insurance Contract Law to mutual insurance. This reflects the fact that within mutual insurance the contractual relationship of the insurer and the policyholder can be distinguished from the membership of the policyholder of the mutual insurer. Clearly, the Principles of European Insurance Contract Law only apply to the contractual relationship and leave the membership issues to national corporate law.

Social Insurance Law C3.  The Principles of European Insurance Contract Law do not apply to social insurance. For the delimitation of private and social insurance law, a formal approach is suggested. To avoid rather strenuous endeavours in determining the “social” character of a legal provision, emphasis is put on the decision of legislators as to which branch specific packages of norms are attributed.

Law of Insurance Supervision and Other Public Law on Insurance C4.  Insurance contract law which forms the substance of the Principles of European Insurance Contract Law must be distinguished from the law of insurance supervision. In principle, the two areas of law are to be distinguished by using a formal approach asking whether legislators have created a rule of public rather than of contract law. However, for the purposes of the Principles of European Insurance Contract Law this formal approach is not entirely sufficient. Recourse to national supervisory law is excluded by virtue of Article 1:105 if the relevant rules regulate issues covered by the Principles of European Insurance Contract Law (see Article 1:105 Comment 3).

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International Insurance Contract Law (Conflict of Laws) C5.  This matter is uniformly regulated across Europe by the Rome I Regulation (593/2008) and the Rome II Regulation (864/2007). While the Rome I Regulation (593/2008) entered into force on 17 December 2009, the Rome II Regulation (864/2007) has been in force since 11 January 2009. The Regulations replace the former European regime of international insurance contract law as embodied in the Rome Convention (80/934/EEC), the Life Assurance Consolidation Directive (2002/83/EC), the Second Non-Life Insurance Directive (88/357/EEC) and the Third Non-Life Insurance Directive (92/49/EEC) without essential changes. The Regulations contain conflict rules for insurance contracts but no substantive rule of insurance contract law. The aim of these rules of private international law to create a feasible basis of a European internal insurance market has failed. The Principles of European Insurance Contract Law focus on substantive insurance contract law which will be applicable if the parties opt in their favour. On the relation between private international law and the Principles of European Insurance Contract Law see below Article 1:102 Comments 2 and 3.

Law of Insurance Intermediaries C6.  The law of insurance intermediaries is subject to its own regulation (see in particular Insurance Mediation Directive (2002/92/EC) as amended by MiFID2 (2014/65/EU)) and is not dealt with in the Principles of European Insurance Contract Law. Of course, as far as the professional duties of the intermediaries as against the customer, such as duties to advise, are concerned, one might argue that the close functional connection of these subjects with the insurance contract would justify their regulation within a codification on insurance contract law. The Project Group has indeed considered such an approach but could not follow it for the obvious reason that the Principles of European Insurance Contract Law represent an optional insurance contract law which applies whenever the policyholder and the insurer, being the parties to the insurance contract, agree on their application. Clearly such choice taken by the policyholder and insurer could not affect the personal obligations of the intermediaries as against the policyholder. This is why the Principles of European Insurance Contract Law restrict themselves to regulating the scope of liability of the insurer for acts committed by intermediaries in their Articles 3:101 and 3:102.

Marine Insurance C7.  Marine insurance has, in many countries, been the object of separate codifications and/or has been excluded from codifications of general insurance contract law. The Principles of European Insurance Contract Law do not follow this tradition. In line with more recent tendencies to consider marine insurance law part of general insurance contract law the Principles of European Insurance Contract Law apply, in principle, also to marine insurance. This is particularly because of their optional application: Parties to a marine insurance contract may opt in favour of the Principles of European Insurance Contract Law but are not forced to have them applied to their contract. Moreover, even if the parties to a marine insurance contract opt for the Principles of European Insurance Contract Law they enjoy freedom of contract according to Article 1:103 para. 2(a).

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Reinsurance C8.  The fields of law described above in Comments 3 to 6, although dealing with insurance, a priori do not lie within the scope of the Principles of European Insurance Contract Law because they are not private insurance contract law. Reinsurance is part of insurance contract law. Nevertheless, Article 1:101 para. 2 excludes reinsurance from the Principles of European Insurance Contract Law. In most countries, reinsurance therefore follows its own rules (see the Notes). One might even speak of an internationally broadly established lex mercatoria. There is no need for legislative endeavours in this field.

Notes Application to Private Insurance Contracts N1. In some Member States, the national insurance contract acts explicitly state that they are applicable to private insurance contracts in general or to land insurance as opposed to marine insurance (see art. 54 para. 1(1) Belgian IA 2014, art. 111-1 para. 1 French ICA, art. 1 para. 1 Greek ICA and art. 257 of the Code on Private Maritime Law, arts. 1884 to 1886 Italian CC, art. 4 para. 1 Luxembourg ICA, art. 820 Polish CC, and art. 2 Spanish ICA), thus providing for a very wide scope of application which is narrowed by exceptions and/or supplemented by rules giving priority to special provisions for specific sectors of insurance. The Swedish statute makes a clear difference between individual (Chapters 2 to 16) and collective (Chapters 17 to 20) insurance. Individual insurance is divided into indemnity insurance (Chapters 2 to 9) and personal insurance (Chapters 10 to 16). Indemnity insurance is divided into consumer insurance (Chapters 2 to 7) and business insurance (Chapter 8). For most national legislators, a special rule stating the scope of application appears to be redundant in an insurance contract act or in the pertinent part of the civil code.

Mutual Insurance N2. Insurance provided in the form of mutual insurance is sometimes explicitly mentioned as being subject to the national insurance contract act too (see art. 4 para. 7 Belgian IA 2014, art. 111-1 para. 2 French ICA, and art. 1884 Italian CC according to which the rules of insurance contracts apply to mutual insurance only where compatible); in most countries the rules on insurance contracts will be applied to mutual insurance by analogy.

Marine Insurance N3. Marine insurance is generally considered as a purely commercial business that requires either special rules or full freedom of contract. The exclusion of marine insurance from the scope of the national insurance contract act is therefore a common occurrence. In Belgium and France, it follows from the limitiation of the respective statutes to land insurance (assurance terrestre, see art. 54 Belgian IA 2014 and art. 111-1 para. 1 French ICA). In Austria and Germany, marine inurance is explicity excluded from the application of the insurance contract act (s. 186 Austrian ICA and s. 209 German ICA); the German reform of 2007 has derogated from the special provisions on marine insurance that had previously been part of the Commercial Code,

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without however extending the scope of the insurance contract act to marine insurance. In Italy, art. 1885 CC provides that the rules of general insurance contracts are default rules to be applied for what is not provided by the Code of Navigation. In Poland, marine insurance is governed by the Maritime Code mainly in the sense of marine non-life insurance (also a consequence of art. 820 CC) N4. The approach laid down in Articles 1:101 and 1:103 PEICL is in line with a second group of national laws that provide for a qualified application of the insurance contract act to marine insurance; these statutes either declare that mandatory provisions of the insurance contract act are dispositive only when the insurance is taken out by businesses (s. 3 para. 3 Finnish ICA) or when concerning insurance that is not consumer insurance (s. 7 para. 1 of Ch. 1 Swedish ICA), or they give priority to a specific regulation of marine insurance contained in other laws (art. 1885 Italian CC, art. 2 Portuguese ICA and art. 406 of the Spanish Law of Maritime Navigation), or they are not mandatory in accordance with civil code provisions (art. 807 Polish CC). N5. In the United Kingdom there is no general statute on insurance contract law that would require an exception for marine insurance. Rather marine insurance is the only branch of insurance that is subject to regulation by a general statute, namely the Marine Insurance Act 1906. Its provisions have also inspired many court decisions relating to non-marine insurance contract law over the course of time.

Reinsurance N6. Only very few national regulations of insurance contract law apply to reinsurance. Such application can however be inferred from some special provisions relating to reinsurance in arts. 1928 f. Italian CC, arts. 72 f. Portuguese ICA and arts. 77 f. Spanish ICA. The total exclusion of reinsurance from the application of the insurance contract legislation is the more common rule (s. 186 Austrian ICA, art. 54 Belgian IA 2014, art. 7:927 Dutch CC, s. 1 para. 3 Finnish ICA, art. 111-1 para. 1 French ICA, s. 209 German ICA, art. 4 para. 4 Luxembourg ICA, art. 820 Polish CC, s. 3 para. 2 of Ch. 1 Swedish ICA, and art. 101 para. 1 Swiss ICA.

Other Specific Branches of Insurance N7. Some national insurance contract acts further reduce their own scope of application by excluding other branches of insurance. Such exclusions can be found in the laws of Belgium for the insurance of transport of goods (art. 2 para. 1(2) ICA 2014), of France for the insurance of risks in inland navigation (art. 111-1 para. 1 ICA), of France (art. 111-1 para. 1 ICA) and Luxembourg (art. 4 para. 5 ICA) for credit insurance. A partial exclusion of motor vehicle liability insurance and patient insurance is laid down in s. 3 para. 1 Swedish ICA, and in Finland also including environmental insurance (s. 1 para. 2 ICA). These rules appear, however, to be isolated from a comparative perspective and are not based on a general principle.

Article 1:102 Optional Application The PEICL shall apply when the parties, notwithstanding any limitations of choice of law under private international law, have agreed that their contract shall be governed by them. Subject to Article 1:103, the PEICL shall apply as a whole and no exclusion of particular provisions shall be allowed.

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Comments Basic Principle C1.  In accordance with the recommendations made by the European Economic and Social Council (Opinion on “The European Insurance Contract”, no. 8.6 at p. 26) a European initiative in the field of insurance contracts should aim initially at the possible adoption of an optional model insurance contract. To achieve this aim the parties must be free to agree on the application of the Principles of European Insurance Contract Law irrespective of any existing limitations of their contractual freedom on other grounds.

Legal Nature of Opting-in C2.  The legal nature of the parties’ agreement on the application of the Principles of European Insurance Contract Law is unclear. On the one hand, their choice is meant to replace the relevant provisions of the national law of any Member State that would be applicable under private international law; thus, the choice of the Principles of European Insurance Contract Law would exclude the operation of the choice of law rules relating to risks situated within the Community and contained in art. 7 of the Rome I Regulation (593/2008). These provisions refer only to the law of Member States which might be interpreted as excluding the Principles of European Insurance Contract Law which will be part of Community law. Moreover, they limit the free choice of the applicable law by the parties in various respects. These limitations should not hamper the parties’ agreement on the application of the Principles of European Insurance Contract Law.

On the other hand, it would be unwise to allow parties to choose the Principles of European Insurance Contract Law if the law applicable to the contract under private international law does not permit such a choice. This may be the case if the law applicable to the contract is the law of a non-Member State, for instance if a policyholder habitually resident within the Community takes out insurance with an insurer established outside the Community for a risk located in a third country; see arts. 4 para. 2 and 7 para. 1 of the Rome I Regulation (593/2008). If the foreign law applicable to the contract does not allow a contractual derogation from its own mandatory provisions, Community law should not permit the choice of the Principles of European Insurance Contract Law either, lest that result in divergent solutions in Community courts and in the courts of third countries.

Priority over Conflict Rules C3.  The solution implemented by Article 1:102 is a hybrid one. This provision is a substantive rule, namely it presupposes that the law of the European Union or of one of its Member States is applicable under the conflict of laws; thus, choice of law rules must determine at a first stage whether Community law (or the law of one of its Member States) or the law of a third state applies. In the latter case it would be up to the third state’s law to determine the effect of the parties’ choice of the Principles of European Insurance Contract Law. If Community law or the law of a Member State is applicable, Article 1:102 has an additional significance for private international law. It supersedes art. 7 of the Rome I Regulation (593/2008), and in particular the limitations imposed on the free choice of law laid down therein.

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Article 1:102 Optional Application

Domestic Insurance Contracts C4.  The parties’ right to subject their contract to the Principles of European Insurance Contract Law is not limited to cross-border contracting situations. Thus, parties may want to agree on the application of the Principles of European Insurance Contract Law in view of a future change of residence to another Member State which would turn a domestic contract into an international one. If the Principles of European Insurance Contract Law could be chosen only by parties residing in different Member States it would be out of reach of those citizens of the Community who, at the time of contracting, live in the same country where the insurer is established but who are planning to go abroad. Moreover, Article 1:102, by allowing the choice of the Principles of European Insurance Contract Law also in same country situations, may trigger a competition between different contracting models, namely the Principles of European Insurance Contract Law and the national law. In the long run this may bring about an assimilation of national laws.

No Partial Choice C5.  The Principles of European Insurance Contract Law are conceived as an instrument that provides comprehensive protection to the policyholder and replaces national law that would govern the contract in the absence of a contractual choice of the Principles of European Insurance Contract Law. Thus, the parties are given the choice between national law and the Principles of European Insurance Contract Law as a whole. It would be incompatible with this approach to allow the parties to exclude particular provisions. Selective exclusion of this kind would allow insurers to undermine the basic protection that should be granted to customers in order to make the Principles of European Insurance Contract Law acceptable as an alternative to national law. It is for similar considerations that some international instruments only allow the parties to exclude their rules as a whole; see, for example, the UNIDROIT Convention on International Factoring. C6.  Article 1:102 does not concern the issue whether single provisions of the Principles of European Insurance Contract Law may be derogated from altogether or to the benefit of the policyholder alone. This issue is dealt with in Article 1:103.

Effect on Intermediaries C7.  The parties referred to in Article 1:102 are the parties to the insurance contract, namely the insurer and the applicant or policyholder. An intermediary may be bound by contract to the insurer or the policyholder, as the case may be, but it is a third party to the insurance contract. The parties’ agreement on the Principles of European Insurance Contract Law as the law applicable to the insurance contract therefore has no effect on the rights and obligations of an intermediary.

Note There are no antecedents in national law.

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Chapter One: Introductory Provisions

Article 1:103 Mandatory Character (1) Articles 1:102 second sentence, 2:104, 2:304, 13:101, 17:101 and 17:503 are mandatory. Other Articles are mandatory in so far as sanctions for fraudulent behaviour are concerned. (2) The contract may derogate from all other provisions as long as such derogation is not to the detriment of the policyholder, the insured or beneficiary. (3) Derogation in the sense of para. 2 shall be allowed to the benefit of any party in contracts covering large risks within the meaning of Article 13 para. 27 Directive 2009/138/EC. In group insurance a derogation shall only be held against an individual insured who fulfills the personal characteristics mentioned in Article 13 para. 27(b) or (c) Directive 2009/138/EC, where applicable.

Comments Focus on Mandatory Law C1.  The “living law” of the insurance contract is not statutory in character, but is embodied in general contract terms. It would not be feasible for any European legislator to produce the entirety of norms necessary to facilitate a modern insurance business. The former German ICA for example, attempted this by regulating in detail not only the general aspects but also the main single branches of insurance law. However, the development of insurance practice left these endeavours behind. In addition, modern important fields of business, for example health insurance and legal protection insurance, had not at that time been fully developed. Moreover, wherever freedom of contract prevailed, the insurance industry made use of it by its general contract terms, thus setting aside the statutory regulations. C2.  The essential function for legislation regarding insurance contracts is therefore to take effective measures to limit freedom of contract. This has to be done, on the one hand, for reasons of public policy. For example, taking out insurance without a legitimate interest to be protected must be prevented as well as any inducement to receive insurance benefits by fraudulent means. On the other hand the policyholder needs protection against unfair contract terms. Particular attention has to be paid to clauses which lead to a loss of cover, for example, due to breach of a duty to observe precautionary measures (Article 4:103). In all this, it is not only the policyholder who deserves attention, but also other persons with an interest in the cover: the insured, the beneficiary, the victim and so on. It is a typical feature of modern insurance contract legislation, beginning in the first decade of the 20th century, to impose a large number of mandatory provisions. This contrasts sharply with contract law in general which strongly adhered to freedom of contract. Only later did other fields of contract law begin to follow a similar model. Mention may be made of labour law, the law of landlord and tenant, and the numerous protective devices regarding the consumer which have developed since World War II. C3.  The focus on mandatory rules follows not least from the internal market orientation of the Principles of European Insurance Contract Law. Mandatory rules of national insurance law form a barrier to the functioning of the internal market which can be overcome by replacing them by new uniform provisions. As a result, the Principles of European Insurance

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Article 1:103 Mandatory Character

Contract Law give a comprehensive set of mandatory rules. If chosen by the parties, they replace all national mandatory law.

Technique C4.  Two methods are apparent in pertinent legislative acts. Under the first one, the mandatory provisions are enumerated or designated individually. Under the other, the entirety of the statute is declared mandatory, subject to specific exceptions. The Principles of European Insurance Contract Law follow a double tracked approach in respect of mandatory and semi-mandatory provisions. Some provisions, which are enumerated in the exhaustive list of Article 1:103 para. 1, are absolutely mandatory, which means that no derogation is allowed. The list includes the Articles that deal with fraudulent behaviour on the part of the policyholder, insured or beneficiary. The second sentence of Article 1:103 para. 1 does not specify these Articles because most of them cover fraudulent, intentional and/or negligent behaviour without distinction; see, for example, Articles 4:203, 6:102 para. 3 and 9:101 para. 1. Basic considerations of morality dictate that the parties should not be allowed to agree on insurance cover in the case of fraud. C5.  Article 1:103 para. 2 declares all other provisions of the Principles of European Insurance Contract Law to be mandatory in the sense that they must not be derogated from to the detriment of the policyholder, insured or beneficiary (semi-mandatory rules; there are a few specific exceptions within individual Articles, for example Article 9:101 para. 2). Derogations to the benefit of policyholder, insured or beneficiary are permissible as are derogations which are to the benefit of the insurer but do not disadvantage the policyholder, insured or beneficiary. C6.  The application of semi-mandatory law to all contracts covered by the Principles of European Insurance Contract Law would be inappropriate, especially as far as commercial risks are concerned. A further distinction is needed. There are different approaches by which the scope of the mandatory character of insurance contract law can be defined: frequently, insurance contract acts specify certain branches of insurance in which their rules will be applied but not be mandatory. This concerns mainly branches which are mercantile in character also on the policyholder’s side, for example, transport insurance. Another approach is to restrict the mandatory character of the rules to consumer insurance contracts. Within European law the Distance Marketing Directive (2002/65/EC) as well as the Unfair Contract Terms Directive (93/13/EEC), both applicable to insurance contracts, are restricted to consumer transactions. Yet another approach is taken by the Rome I Regulation (593/2008) concerning the mandatory character of its conflict of law rules in insurance, in particular, the admissibility of agreements on the applicable law. Art. 7 para. 2 of the Rome I Regulation (593/2008) grants free choice of law in cases of large risks as defined under art. 5(d) of the First Non-Life Insurance Directive (73/239/EEC) which is to be replaced by art. 13 point 27 of the Solvency II Directive (2009/138/EC). An almost identical approach is taken by the Brussels Ibis Regulation (1215/2012) concerning jurisdiction clauses (see art. 15 para. 5 together with art. 16 para. 5 of the Regulation). C7.  The exclusive application of mandatory rules to consumer insurance contracts would create unsatisfactory results for professionals and small businesses. While an extension of

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Chapter One: Introductory Provisions

the scope appears desirable, it is very difficult to find a convincing definition. The third approach, namely an exemption of large risks as defined by art. 13 point 27 of the Solvency II Directive (2009/138/EC), provides a solution. Since it is part of the acquis communautaire the Principles of European Insurance Contract Law adopt this approach of European private international law. In addition, the scope of freedom of contract will coincide with the scope of free choice of law as well as free choice of jurisdiction. This is a desirable outcome because mandatory rules of substantive law may be avoided to a certain degree by choosing a foreign legal order according to party autonomy in the choice of law anyhow. The PEICL regulate these related issues in the same way and thereby set up a coherent system of freedom of contract. This solution, as applied to group insurances, explains the second sentence of para. 3. The persons who merit protection in group insurance are the individual insureds, not the policyholder.

Notes N1. The full range of mandatory provisions, minimum protection rules favouring the policyholder, and default or dispositive insurance contract law that is reflected by Article 1:103 PEICL can be found in most national legal systems in Europe. Yet, the mix of the three elements differs from country to country.

Mandatory Acts N2. The smallest latitude for freedom of contract is allowed by Belgian law. According to art. 56 IA 2014, the full statute of 149 articles is mandatory unless a contractual derogation is explicitly permitted in single provisions. In the absence of such exceptions, the provisions of the statute are absolutely binding for the policyholder and the insurer (Fontaine, para. 61; Cousy/Schoorens 65). For a similar approach, see art. 807 para. 1 Polish CC. Given the impact of Belgian law on the Insurance Contract Act of Luxembourg, art. 3 of that country’s Insurance Contract Act will likely be interpreted in the same way. N3. In France, the wording of art. 111-2 points into the same direction. The Cour de cassation has in fact invalidated a contractual prolongation of a prescription period for the benefit of the policyholder as being incompatible with the predecessor provision of art. 111-2 (Cass. civ. 1re, 2.6.1964, RGAT 1965, 46 f.). But there are authors in legal literature who take the view that art. 111-2 only excludes contractual derogations to the detriment of the policyholder (see the discussion by Basedow/Fock-Völker 465). The provision in question also contains a long list of articles exempt from the mandatory character.

Single Mandatory Provisions N4. In other European countries, the bulk of insurance contract law will either be dispositive or guarantee a minimum protection to the policyholder, while single provisions may be designated or considered as absolutely mandatory. Thus, the indemnity principle which excludes an indemnity exceeding the loss suffered by the insured is basically considered as being non-derogable in Austria, until recently in Germany (Prölss/Martin-Kollhosser, § 55 VVG para. 1 (old version); s. 55 German ICA has, however, been abrogated by the 2008 reform. Thus, German law no longer

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Article 1:103 Mandatory Character

prohibits the indemnity from exceeding the loss if the parties so agree (cf. Wandt, para. 727)), and the Netherlands (art. 7:963 para. 1 CC). In the new Dutch Civil Code, the limitation of a liability insurer’s right to offset premium claims against a claim for insurance money (art. 7:935 para. 2 CC) is designated as being mandatory, see art. 7:943 para. 1 CC. In a similar way, art. 97 Swiss ICA and the new Portuguese ICA enumerate the provisions of the act which are absolutely mandatory, see art. 12. The new Dutch Civil Code also enumerates the provisions of the act which are absolutely mandatory (see arts. 7:943 para. 1, 7:963 para. 1 and 7:986 para. 1 CC). N5. In general, provisions that protect the interests of third parties will be immune from contractual derogation agreed between the policyholder and the insurer, see the explicit rule in s. 3 para. 1 Finnish ICA, and in s. 6 para. 2 Swedish ICA. See also arts. 7:963 para. 3 and 7:947 Dutch CC. Another example is given by life assurance which can be taken out on the life of a third party only with that person’s approval (see for example in Italy art. 1919 para. 2 CC; in Germany s. 150 para. 2 ICA); that requirement is characterised as being part of the “ordine pubblico” (Donati/ Volpe Putzolu 187; Wandt, Anwendbares Recht 347) which excludes any possibility of contractual derogation.

Minimum Protection Acts N6. A second group of national insurance statutes that has served as a model for the Principles of European Insurance Contract Law permits contractual alterations of its provisions, but only to the benefit of the policyholder or insured. Since these statutes invalidate agreements that deviate from any provision of the respective act, they may be characterised as minimum protection acts. This is the basic approach taken in Finland (s. 3 ICA), Greece (art. 33 para. 1 ICA; alterations of its provision can, however, be stipulated without restrictions, where it is specifically provided for in the ICA and in case of insurance of carriage of goods, credit and guarantee insurance and marine or aviation insurance), Sweden (s. 6 para. 1 ICA), and Spain (art. 2 ICA). See also arts. 7:943 paras. 2 and 3, 7:963 paras. 2 and 4 to 6 and 7:986 paras. 2 to 4 Dutch CC. In Poland, there is no statutory restriction in place, however it is a common view held in legal commentary.

Single Minimum Protection Provisions N7. A third model of European insurance contract acts departs from the principle of freedom of contract; the single provisions contained in these acts are default rules unless they are specifically designated as establishing a minimum protection for the policyholder. The lists of binding minimum provisions differ in length from country to country. Thus, the list contained in art. 1932 Italian CC is fairly short, while those laid down in art. 13 Portuguese ICA, art. 98 Swiss ICA and in several provisions of the Austrian (ss. 15a, 34a, 68a, 72, 108, 115a, 158p, 178, and 178n) and German ICA (ss. 18, 32, 42, 87, 112, 129, 171, 191, and 208) are much longer. In substance, this technique may amount to the same degree of policyholder protection as the one outlined in Note 6. But all of the statutes mentioned in this Note contain dispositive provisions of law in addition to the binding rules conferring a minimum protection to the policyholder. N8. British insurance contract law is characterised by an almost unrestricted freedom of contract. Except where the EC Directives mentioned in para. 9 apply, the major interference with that principle was to be found in the rules of the Financial Conduct Authority dealing with the conduct of insurance business (ICOBS 8). These restrict the use of legal defences based on

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non-disclosure or misrepresentation of material facts and breach of warranty or condition and, in this respect, follow previously self-regulatory measures agreed by the insurance industry. As far as consumer insurance is concerned, see now the Consumer Insurance (Disclosure and Representations) Act 2012. It should also be noted that decisions made by the Financial Services Ombudsman are made on the basis of what is fair and reasonable and may ignore the express terms of policies. N9. The consumer directives of the European Union should also be mentioned in this context. Of particular relevance to insurance contracts are the Unfair Contract Terms Directive (93/13/ EEC) and the Distance Marketing Directive (2002/65/EC). The consumer directives provide for minimum protection in a double sense: they allow for the consumer’s rights to be extended both by the private transactions with a professional and by appropriate provisions of national law. The latter way is barred by Article 1:105 PEICL which does not permit recourse to national law where the Principles of European Insurance Contract Law apply. But the possibility of private transactions providing for a higher level of consumer protection is in line with Article 1:103 para. 2 PEICL.

Beneficiaries of Mandatory and Minimum Protection Rules N10.  Most national laws define the scope of application of their mandatory or minimum protection rules. For this purpose, they either refer to particular branches of insurance and/or to the personal status of the policyholder. The impact of the acquis communautaire is more and more perceptible. N11.  Certain branches of insurance that are covered by Article 1:103 para. 3 have traditionally been governed by freedom of contract; many Member States have excluded them from the scope of mandatory minimum protection rules. This relates to marine and aircraft insurance which are not assurances terrestres covered by national insurance contract acts (see Article 1:101 PEICL Notes 3 ff.), but it is also true for countries like Greece (art. 33 para. 1 ICA) and Sweden (s. 7 para. 1 of Ch. 1 ICA with a counter-exception for consumer insurance) where the insurance contract act basically applies to marine and aircraft insurance. Further branches left to freedom of contract are transport insurance (see for example s. 187 Austrian ICA and art. 33 para. 1 Greek ICA), credit insurance (art. 33 para. 1 Greek ICA and s. 7 para. 2 of Ch. 1 Swedish ICA), and different types of collective insurance (s. 7 paras. 3 to 5 of Ch. 1 Swedish ICA). N12.  As to the personal criteria used for the demarcation of the mandatory or minimum protection rules, two models can be ascertained. Just like many EU consumer protection directives, the Netherlands restrict the application of some provisions – for example on the breach of the policyholder’s duties of disclosure or on the maximum duration of the insurance contract – to consumers as policyholders (see arts. 7:943 para. 3, 7:963 para. 6 and 7:986 para. 3 CC), namely to individuals acting for non-business purposes. S. 3 para. 2 Finnish ICA takes a similar approach, but extends the application of the minimum protection rules of its insurance contract act to any “natural person or legal person that in terms of the nature and scope of its business or other activities or other circumstances can be compared to a consumer as a party to the contract signed with the insurer.”

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N13  More recent insurance contract regulations draw the borderline between “large risks” and all other risks. The term is defined in art. 13 point 27 of the Solvency II Direcitve (2009/138/ EC). For its subsequent use in EC private law, in particular for choice of court agreements and choice of law agreements, see Comment 5 and Fuchs 49 f. In Poland such a distinction is also being discussed in the preparatory project for the new Civil Code on insurance contract law. N14.  This distinction has been adapted in recent national insurance contract laws to define the scope of mandatory or minimum protection provisions, see in particular s. 210 German ICA, art. 3 para. 3 Luxembourg ICA as well as art. 12 para. 2 and art. 13 para. 2 Portuguese ICA. The enumeration technique employed in these countries pursues the same objective as the formula of the Finnish statute, see Note 12 above, namely to extend the non-derogable protection of the act to small and medium-sized businesses and non-profit organisations taking out insurance, without however subjecting all policyholders to that mandatory protection. Article 1:103 para. 3 follows this model.

Article 1:104 Interpretation The PEICL shall be interpreted in the light of their text, context, purpose and comparative background. In particular, regard should be had to the need to promote good faith and fair dealing in the insurance sector, certainty in contractual relationships, uniformity of application and the adequate protection of policyholders.

Comments The Objective C1.  The objective of the Article is to lay down guidelines for the interpretation of the Principles of European Insurance Contract Law. It sets forth recognised methods of statutory interpretation, in particular the reference to the wording of a provision, its context and its purpose. Since the Principles of European Insurance Contract Law essentially flow from a comparison of various national insurance contract laws regard should be had to the comparative background. The Article draws from interpretation provisions contained in international instruments, in particular art. 31 para. 1 VCLT, art. 7 para. 1 CISG and Article 1:106 PECL.

Interpretation and Development C2.  Interpretation has both a static and a dynamic aspect. The first relates to situations which can occur at present, but have not been envisaged specifically in the Principles of European Insurance Contract Law, while the second concerns situations which could not occur at the time of drafting, but which, when they do occur, have to be dealt with by the existing rules. An example would be the application of the requirement of a written form, established in the 1950s, to the exchange of e-mails in later years.

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Textual Interpretation C3.  The wording of the provisions is of primary importance. While the Principles of European Insurance Contract Law are drafted in English, the concepts used in the Principles of European Insurance Contract Law do not reflect English law but have their own autonomous meaning. As soon as versions of the Principles of European Insurance Contract Law have been adopted in official Community languages other than English they will have the same authority as the English version. In case of divergence between different language versions the meaning has to be clarified in the light of the purpose of a provision, taking account of all official languages; see Case 55/87 Moksel v Bundesanstalt für landwirtschaftliche Marktordnung [1988] ECR 3845 para. 15; Case 26/69 Stauder v Ulm [1969] ECR 419.

Context C4.  In interpreting the provisions of the Principles of European Insurance Contract Law, consideration must be given to their context. In accordance with the long-standing practice of the European Court of Justice this refers to the micro-system of the single Community Act, the Principles of European Insurance Contract Law in this case; see for example Case C-125/79 Denilauler v Couchet Frères [1980] ECR 1553 para. 13. But a contextual interpretation will increasingly often have to look beyond the single Community Act to the place of a given provision in the growing macro-system of Community law as a whole; see, for example, Case 172/91 Sonntag v Waidmann [1993] ECR I-1963 para. 24. Thus, the Principles of European Insurance Contract Law take account of numerous Community acts. Therefore, its rules should be interpreted in the light of the general context of Community law; and in particular regard should be had to the Principles of European Contract Law.

Good Faith and Fair Dealing C5.  The requirement of good faith is a basic principle of European contract law. Under art. 3 of the Unfair Contract Terms Directive (93/13/EEC) a standard term shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer. The good faith principle can also be traced in the case law of the European Court of Justice. Thus, for example, the Court has repeatedly referred to this principle when interpreting jurisdiction clauses under art. 17 of the Brussels Convention11; see Case 25/76 Segura v Bonakdarian [1976] ECR 1851 para. 11; Case 71/83 The Tilly Russ [1984] ECR 2417 para. 18. A duty of good faith is also imposed upon each party by the mandatory provision of Article 1:201 PECL which, moreover, in Article 1:106 list good faith as a guiding principle for interpretation.

Certainty in Contractual Relationships C6.  The principle of legal certainty is one of the basic principles of Community law. The Community courts often have recourse to this principle in various fields. Inter alia, the European Court of Justice has relied on “the principle of legal certainty in contractual matters” 11

The Brussels Convention was initially transformed into the Brussels I Regulation (44/2001), which has now been replaced by Brussels Ibis Regulation (1215/2012).

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as a basis for its views on the provisional validity of anti-competitive agreements; see Case 99/79 Lancôme v Etos & Albert Heyn [1980] ECR 2511 para. 16.

Uniform Application C7.  The need for a uniform application flows from the very existence of uniform law. It has been affirmed by several international conventions, inter alia by art. 7 para. 1 CISG and also by Article 1:106 PECL. It has equally been recognised by the European Court of Justice in many instances, such as Case 55/87 Moksel v Bundesanstalt für landwirtschaftliche Marktordnung [1988] ECR 3845 para. 15; Case C-271/00 Gemeente Steenbergen v Baten [2002] ECR I-10489 para. 28.

Protection of Policyholders C8.  The protection of policyholders in insurance contracts has been a guideline of Community policy for many years. Thus, the choice of law provisions of the Second Generation of Insurance Directives basically referred to the law of the country of the policyholder as the law applicable to an insurance contract; see art. 7 of the Second Non-Life Insurance Directive (88/357/EEC); art. 32 of the Life Assurance Consolidation Directive (2002/83/EC). This model is still followed by the new conflict rules as contained in art. 7 para. 3 of the Rome I Regulation (593/2008). Further evidence is provided by the special rules on jurisdiction contained in arts. 10 ff. of the Brussels Ibis Regulation (1215/2012) which grant the policyholder the privilege of a competent court at his domicile in most cases and which restrict the possibility of clauses choosing any other jurisdiction. The acquis communautaire is thus inspired by the basic objective to ensure adequate protection to policyholders which should also be observed in the interpretation of the Principles of European Insurance Contract Law.

Note While some national laws contain provisions dealing with the interpretation of contracts, few antecedents appear to exist in national laws relating to the interpretation of statutes, but see for example s. 6 Austrian CC laying down similar principles as those set forth in the first sentence of Article 1:104 and additional examples in Polish law: art. 56 and art. 65 paras. 1 and 2 CC.

Article 1:105 National Law and General Principles (1) No recourse to national law, whether to restrict or to supplement the PEICL, shall be permitted. This does not apply to mandatory national laws specifically enacted for branches of insurance which are not covered by special rules contained in the PEICL. (2) Questions arising from the insurance contract, which are not expressly settled in the PEICL, are to be settled in conformity with the Principles of European Contract Law (PECL)12 and, in

12

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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the absence of relevant rules in that instrument, in accordance with the general principles common to the laws of the Member States.

Comments Basic Principle C1.  In many countries, insurance contract law is characterised by a great number of very detailed mandatory provisions which differ from country to country. The divergence between them is one of the reasons for the lack of implementation of the European insurance market. In particular that is why insurers are unable to use the same policy for selling insurance cover to consumers resident in different European countries. If the Principles of European Insurance Contract Law are to overcome these difficulties they must of necessity supersede mandatory national provisions.

Mandatory National Provisions C2.  It follows that recourse to national law, for whatever reason, must be prohibited. In the first place the rules of the Principles of European Insurance Contract Law cannot be considered as minimum standards which would nonetheless allow Member States to enforce the stricter provisions of their national law granting greater protection to policyholders. While minimum harmonization has been a standard practice of European legislation in the area of consumer law, a similar approach would undermine the uniform application of the Principles of European Insurance Contract Law from the outset. The consequence would be that insurers would still have to face the present uncertainty about the legal framework of their policies sold in the various Member States.

Supervisory Law C3.  The exclusionary effect of the Principles of European Insurance Contract Law is limited to national provisions of contract law, it does not relate to national supervisory law which remains applicable when the parties have chosen the Principles of European Insurance Contract Law as the applicable contract law. But the borderline between contract law and supervisory law is not the same in all Member States. For example, information duties may be laid down in the law of contract in some Member States and in the supervisory law in others. Such differences must not affect the scope of the exclusionary effect of Article 1:105 para. 1 lest the uniform application of the Principles of European Insurance Contract Law be endangered. The demarcation of contract law and supervisory law must therefore be determined by autonomous interpretation: the subjects treated in the Principles of European Insurance Contract Law are contractual; their regulation by the Principles of European Insurance Contract Law bars the implementation of national provisions dealing with the respective issues regardless of whether the national provisions form part of contract law or supervisory law.

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Internationally Mandatory Provisions C4.  For the same reasons, Member States cannot be permitted to enforce particular provisions of their national law as internationally mandatory provisions. While art. 9 para. 2 of the Rome I Regulation (593/2008) allows Member States to apply those rules of their own law which are mandatory irrespective of the law otherwise applicable to the contract, a similar exemption from the rules of the Principles of European Insurance Contract Law would not be acceptable. The Principles of European Insurance Contract Law ensure comprehensive protection of the policyholder, the insured and the beneficiary; while this protection may fall short of corresponding rules in single Member States this does not entitle the judges of those Member States to disregard the rules of the Principles of European Insurance Contract Law and apply provisions of their national law as internationally mandatory rules instead.

Exceptional Recourse to Mandatory National Provisions C5.  By way of exception, recourse to national law is allowed where a Member State has enacted mandatory provisions for a special branch of insurance such as health care insurance which is not yet covered by specific provisions of the Principles of European Insurance Contract Law. This exception is required since the Principles of European Insurance Contract Law do not deal with all special branches of insurance. The exception does, however, not apply as far as the Principles of European Insurance Contract Law deal with liability insurance, life insurance and group insurance.

Filling Gaps C6.  A further distortion of the Principles of European Insurance Contract Law may result if national provisions are applied in order to fill gaps. Like other instruments of uniform law the Principles of European Insurance Contract Law cannot be comprehensive. In view of their purpose to overcome the divergences between mandatory national provisions, their scope is limited to mandatory law leaving many issues unsettled. It is up to the insurance contract in the first place and to general contract law in the second to fill these gaps. In the absence of general Community contract law the traditional way of filling those gaps would be to apply the provisions of the national law which is applicable under private international law. Under the relevant conflict rules of art. 7 para. 3 of the Rome I Regulation (593/2008), the applicable law will generally be the law of the Member State where the policyholder resides. Consequently, an insurer selling insurance cover under the same policy to applicants from various Member States would have to adjust to as many different national laws. The main obstacle to the cross-border sale of insurance cover would not be removed, but maintained. Therefore, recourse to national law must be prohibited in these situations as well.

General Principles of Contract Law C7.  Gaps in the Principles of European Insurance Contract Law should be filled by principles which are common to the Member States. Having this goal in mind, the Principles of European Insurance Contract Law have been drafted in the light of the Principles of European Contract Law as a core component of the Common Frame of Reference of European Contract Law. In many instances references contained in the Comments on the Rules of the

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Principles of European Insurance Contract Law testify to this close link. Where neither the insurance contract nor the Common Frame of Reference help to fill a gap in the Principles of European Insurance Contract Law, which will not occur very often, it would be up to the national courts and ultimately to the European Court of Justice to identify principles which are common to the laws of the Member States. The case-law of the European Court of Justice on the liability of the Community for damage caused by its institutions or by its servants in the performance of their duties (art. 340 para. 2 TFEU) provides guidance in this respect. It shows in particular that among the various solutions offered by the national laws of the Member States it is the one that best serves the purpose of Community law which should be chosen.

Note There are no antecedents in national law.

Section Two: General Rules Article 1:201 Insurance Contract (1) “Insurance contract” means a contract under which one party, the insurer, promises another party, the policyholder, cover against a specified risk in exchange for a premium; (2) “Insured event” means the materialisation of the risk specified in the insurance contract; (3) “Indemnity insurance” means insurance under which the insurer is obliged to indemnify against loss suffered on the occurrence of an insured event; (4) “Insurance of fixed sums” means insurance under which the insurer is bound to pay a fixed sum of money on the occurrence of an insured event. (5) “Liability insurance” means insurance under which the risk is the exposure of the insured to legal liability towards the victim. (6) “Life insurance” is an insurance in which the obligation of the insurer or the payment of premium depends upon an insured event that is defined exclusively by reference to the death or survival of the person at risk. (7) “Contracts for group insurance” are contracts between an insurer and a group organiser for the benefit of group members with a common link to the group organiser. A contract for group insurance may cover also family of the group members. (8) “Accessory group insurance” means group insurance under which group members are automatically insured by belonging to the group and without being able to refuse the insurance. (9) “Elective group insurance” means group insurance under which group members are insured as a result of personal application or because they have not refused the insurance.

Comments Insurance Contract (para. 1) C1.  The term “insurance contract” is not always defined in insurance contract law because the scope of the concept in national contexts is well-known and sufficiently clear or because

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a definition may be considered as dangerous because of its exclusionary effect. Despite this, para. 1 of the Article includes a general definition of the term as a guide to the reader of the Principles of European Insurance Contract Law rather than a comprehensive definition of an insurance contract. C2.  In accordance with the definition, “insurance contract” means a contract under which one party, the insurer, promises another party, the policyholder, cover against a specified risk in exchange for a premium. The key elements of an insurance contract are thus the transfer (of the economic consequences) of a risk to the insurer and the policyholder’s obligation to pay for this transfer. The risk is often an unwanted incident such as death, accident, fire or burglary, in the non-occurrence of which the person benefiting from the insurance contract has an interest. However, the risk may also be a desired event like being alive at a certain date, getting married or the birth of a child. Such desired events may raise similar economic concerns which the policyholder wants to deal with. C3.  Risk includes the element of uncertainty. It is sufficient for the element of risk that at the time the contract is formed there is no certainty whether, when or up to what amount any payment will have to be made or even how long the agreed payment of premium will last. As uncertainty has to be assessed from the perspective of the parties and at the time the contract is made, even a retroactive insurance – an insurance for a risk which already has materialised – is possible as long as the contracting parties are unaware of the fact that the insured event (see Comment 5 below) has already occurred (see Article 2:401). C4.  The uncertainty relates to an element outside the insurance contract and not to the performance of the contract itself. This latter type of uncertainty exists in many contracts, for example in sales or loan agreements. Parties try to cope with it by different types of securities and guarantees which are however not covered by the definition of insurance in para. 1. Notwithstanding restrictions under supervisory law, para. 1 does not preclude the contract from imposing obligations other than the transfer of risk, it may still be an insurance contract.

Insured Event (para. 2) C5.  In accordance with para. 2, “insured event” does not mean the risk against which the insurance has been taken, but the materialisation of the risk specified in the insurance contract. A risk materialises when the uncertain event defined in the insurance contract occurs. Economic and other consequences of the insured event may occur substantially later. Thus, for example, in an accident insurance, the insured event will usually be defined in the contract as the occurrence of an accident. This is different from the appearance of a physical defect years later, from a necessary operation due to this defect or from the receipt of the invoice concerning the operation.

Indemnity Insurance (para. 3) C6.  In the Principles of European Insurance Contract Law insurance contracts are divided into indemnity insurances (see Part Two) and insurances of fixed sums (see Part Three). The distinction basically depends on the manner in which insurance money is calculated.

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In accordance with para. 3, “indemnity insurance” is an insurance under which the insurer is obliged to indemnify against loss suffered on the occurrence of an insured event. Thus, in indemnity insurance the consequences of the insured event must be measurable in money. C7.  The amount of the insurance money can be based directly on the costs incurred as a result of the insured event, like medical expenses following an illness. Sometimes the indemnity must be calculated according to a rule that may be different from one policy to another and be based, for example, on market value, cost of repair or replacement of the property to be indemnified taking account of the depreciation where appropriate. Parties may also fix the value of the insured property by agreement in the contract. This would not change the character of the contract as an indemnity insurance (see also Article 8:101 and Comments).

Insurance of Fixed Sums (para. 4) C8.  “Insurance of fixed sums” is the opposite of indemnity insurance. It is defined in para. 4 as an insurance under which the insurer is bound to pay a fixed sum of money on the occurrence of an insured event. That is to say that in contrast to indemnity insurance, such insurance is possible even if the risk – someone’s life for example – is not measurable in money. Moreover, as far as insurance of fixed sums is concerned the insurer is obliged to pay the stipulated sum or annuity regardless of any financial loss. C9.  The main idea and purpose of insurance is to cover losses. If the loss and the insurance money were not linked together, insurance would come close to gambling. Therefore, insurances of fixed sums cannot be allowed for all types of insurance. In Article 13:101 this possibility is limited to only accident, health, life, marriage, birth or other personal insurance. However, an indemnity insurance may provide for the payment of a flat sum (which for practical purposes comes close to an insurance of fixed sums) provided that the limits drawn by Article 8:101 are respected.

Liability Insurance (para. 5) C10.  “Liability insurance” is defined in para. 5 very broadly (‘exposure of the insured to legal liability’) in order to cover various types of liability policies which are found in the European Single Market. Thus, the definition applies to policies under which the insurer’s liability is triggered by commission of the wrongful act, the occurrence of loss, or claims made. For the various types of liability insurance covered by the PEICL, see Annex I classes 10-13 of the Solvency II Directive (2009/138/EC).

Life Insurance (para. 6) C11.  “Life insurance” is defined in para. 6 essentially by the element of a biometric risk to be covered by the insurer. This is made clear by referring to the “death or survival” of the person at risk. Apart from that, the definition is very broad in order to cover all types of life insurance which are found in the European Single Market. This includes insurances where the payment of the insured sum by the insurer is guaranteed for a certain point in the future but the period during which the premium is paid by the policyholder depends on the survival or death of the person at risk (frequently called “term-fix Versicherung” in

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Germany). In such case, the biometric risk which the insurer bears relates to the amount of premium it will get for providing cover. If, for instance, the person at risk dies two years after the conclusion of the contract, the policyholder will only have to pay premium for the two-year period. Afterwards, the insurer has to take over. C12.  For the various types of life insurance, see Annex II of the Solvency II Directive (2009/138/EC). The PEICL are primarily intended to serve for the life insurance mentioned in art. 2 para. 3(i) and (ii) of Solvency II, although it is possible for the parties to agree on the application of the PEICL also outside these life insurances. Art. 2 para. 3(i) and (ii) mentions: “(i) life insurance which comprises assurance on survival to a stipulated age only, assurance on death only, assurance on survival to a stipulated age or on earlier death, life assurance with return of premiums, marriage assurance, birth assurance; (ii) annuities”.

Group Insurances: Accessory Group Insurance, Elective Group Insurance (­paras. 7-9) C13.  For Comments on the definition of group insurances, and in particular of accessory and elective group insurance, see Article 18:101 Comments 2 to 4. C14.  Paras. 8 and 9 provide that the group members are “insured” or “automatically insured”. This wording does not restrict the application of the definition to indemnity insurances. For instance, a person at risk under a life insurance contract would also be “insured” within the meaning of the definitions under paras. 8 and 9.

Notes The Pros and Cons of Defining the Insurance Contract N1. The term insurance contract is usually employed for the description of the scope of application of an insurance contract act, see the notes on Article 1:101. Given the numerous mandatory or minimum protection rules contained in such acts, a precise definition is even more significant since it determines the implications for freedom of contract. On the other hand, commercial practice has brought about a large number of new contractual arrangements which are sometimes difficult to reconcile with a clear definition of an insurance contract. Therefore, the countries which have actually endeavoured to define the insurance contract are not very numerous. In particular, the more recent laws of Finland, Germany, Sweden and Portugal lack such definition. In the legal literature of Poland, the definition of insurance contract is interpreted in differing ways (art. 805 para. 1 CC); Fuchs, Rozprawy 915 f.; Fuchs/Nowak/Nowak-Kowalewski and Fuchs 27 ff. N2. An alternative to a single definition for all kinds of insurance contracts may consist in the drafting of separate definitions for indemnity or non-life insurance on the one hand and life insurance or personal insurance on the other. A similar approach is taken by the laws of Finland (s. 2 ICA) and Italy (art. 1882 CC; additional definitions are contained in the Code of Private Insurance with reference to legal expenses insurance, see Cerini 107). See the new Dutch Civil Code for a system of a general definition combined with sub-definitions for indemnity, life and

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personal insurance. In the Swedish Act (s. 4 of Ch. 1 ICA) separate definitions are provided for consumer insurance, enterprise insurance and collective insurance. Like the former Belgian ICA, the IA 2014 combines a general definition (art. 5 para. 14 IA) with subdefinitions of indemnity insurance (art. 55, 3° IA), insurance of fixed sums (art. 55, 4° IA), property insurance (art. 5, 15° IA) and personal insurance (art. 5, 16° IA).

Standard Elements of Definitions of the Insurance Contract N3. There are three elements which can be found in different forms in all statutes that do provide for a definition of the insurance contract in general: the policyholder’s duty to pay a premium; the uncertainty about the insured event; and the insurer’s duty to pay insurance money if the insured event occurs. The second and third of these elements are, however, far from clear and need additional explanations to avoid an excessively narrow wording.

The Insurer’s Obligation N4. Art. 7:925 of the Dutch Civil Code defines the insurance contract inter alia by the insurer’s obligation to make one or more payments (uitkeringen) to the other party. It thereby follows the model of the UK Marine Insurance Act 1906 which also refers to the insurer’s obligation to indemnify the assured, see s. 1. What is appropriate for marine insurance may lead to difficulties for other branches of insurance. Thus, a liability insurance policy stating the insurer’s obligation to defend the policyholder’s interest by granting legal advice might not be covered by the Dutch definition if taken literally. Similar problems may arise if a health insurer promises to provide, not a reimbursement of health care costs incurred by the policyholder, but medical services by doctors or hospitals operating under a franchising arrangement with the insurer. Art. 7:926 para. 1 CC therefore brings about a helpful clarification stating that a performance other than in money shall be deemed to be “payment” for the purpose of the application of the Dutch insurance contract law. N5. The formula used by Article 1:201 para. 1 PEICL according to which the insurer promises “cover” appears to avoid such difficulties. It is inspired by the Belgian and Luxembourg statutes which identify the insurer’s duty as performing an obligation laid down in the contract (à fournir une prestation stipulée dans le contrat, art. 5(14) Belgian IA 2014 and art. 1(A) Luxembourg ICA). This leaves it to the parties to agree whether that obligation sounds in money or in kind, which is made explicit in Greek law (art. 1 para. 1 ICA). In Poland, the above approach is consequence of art. 3 para. 1 of the Act on Insurance Activity (see Fuchs, Ochrona 40 ff.)

Uncertain Event N6. Similar problems may arise from the requirement of uncertainty relating to the insured event. It is especially in some insurance contracts with a marked investment element that it may be questioned whether the occurrence of the insured event is uncertain, as required by the statutes of Belgium (art. 5(14) IA 2014) or Luxembourg (art. 1(A) ICA). These problems may be avoided by an explicit reference to such investment contracts which are considered as insurance contracts (art. 1(A) Luxembourg ICA). A more general approach is taken by the Dutch Civil Code which specifically points out that the uncertainty of the event may be the occurence itself, the time of the occurrence or the duration of the payment of premium (art. 7:925 CC). “Insured

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event” has its own definition in art. 2 para. 18 of the Polish Act on Insurance Activity (see Fuchs, Rozprawy 915 ff.)

Definitions of Other Terms N7. Definitions are a matter of convention. They become significant for the application of the rules that make use of the terms defined. Apart from the term insurance contract itself (see Note 1), comparing definitions of the Principles of European Insurance Contract Law with those of national insurance contract laws therefore does not appear to provide relevant insights. This applies to the other definitions in Article 1:201 and to those in Article 1:202.

Article 1:202 Further Definitions (1) “Insured” means the person whose interest is protected against loss under indemnity insurance; (2) “Beneficiary” means the person in whose favour the insurance money is payable under insurance of fixed sums; (3) “Person at risk” means the person on whose life, health, integrity or status insurance is taken; (4) “Victim”, in liability insurance, means the person for whose death, injury or loss the insured is liable; (5) “Insurance agent” means an insurance intermediary employed by an insurer for marketing, selling or managing insurance contracts; (6) “Premium” means the payment due to the insurer on the part of the policyholder in return for cover; (7) “Contract period” means the period of contractual commitment starting at the conclusion of the contract and ending when the agreed term of duration elapses; (8) “Insurance period” means the period for which the premium is due in accordance with the parties’ agreement; (9) “Liability period” means the period of cover; (10) “Compulsory insurance” means an insurance which is taken out in pursuance of an obligation to insure imposed by laws or regulations.

Comments Introduction C1.  An insurance contract is concluded between the insurer and the policyholder as the parties to the contract. In addition, the insurance contract may affect a number of other persons with rights and obligations based on the Principles of European Insurance Contract Law and/or the insurance contract. Although it is possible and often even common for one person to have several of these roles at the same time, it must be kept in mind that every right and duty is connected to a role, not to the person behind the role. Therefore, it would be incorrect to state, for example, that the insured is responsible for the insurance premium even if the insured in a certain case happens also to be the policyholder.

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C2.  In Article 1:202 certain roles related to the insurance contract are defined for the purposes of the Principles of European Insurance Contract Law. It should be noted that these definitions do not necessarily correspond to the ones used in insurance contract law in different countries.

Insured (para. 1) C3.  As far as the Principles of European Insurance Contract Law are concerned, “insured” means the person whose interest is protected against loss under indemnity insurance (Article 1:202 para. 1). Unlike in some national insurance contract laws, the definition does not include the person on whose life, health, integrity or status the insurance is taken (the “person at risk”, see Article 1:202 para. 3). The policyholder is not necessarily identical to the insured (see in particular Articles 11:101 to 11:103). The insured could be, for example, an owner of a property where the policy is taken out by the tenant; a holder of a right of lien where goods are insured by their owner; or a potential tortfeasor where a liability insurance is taken out by a parent as a family insurance. The insured is the one entitled to the insurance money.

Beneficiary (para. 2) C4.  In Article 1:202 para. 2 “beneficiary” is defined as the person in whose favour the insurance money is payable under insurance of fixed sums. Thus, it is not a general term for the person receiving the insurance money. The beneficiary may be compared to the insured, but his entitlement to the insurance money is not dependent on suffering loss. A policyholder is not necessarily a beneficiary. Neither is the “person at risk” (see Article 1:202 para. 3) necessarily the beneficiary.

Person at Risk (para. 3) C5.  It is important for the purposes of the Principles of European Insurance Contract Law to distinguish “person at risk” from “insured” (see Article 1:202 para. 1). Person at risk is the person on whose life, health, integrity or status the insurance is taken (Article 1:202 para. 3). Status in this context means such a change in a person’s life as, for example, marriage, adoption of a child, or starting an education. The policyholder is not necessarily the person at risk. Neither is the person at risk necessarily the beneficiary (insurance of fixed sums) or the insured (indemnity insurance).

Victim (para. 4) C6.  Although liability insurance is also in the interest of the person suffering loss or damage, the insured in such insurance is the tortfeasor. It is his or her interest in not having to bear the economic consequences of the liability which forms the object of the insurance contract. The person suffering loss or damage benefits from the insurance and may in some cases even be entitled to a direct right of action against the insurer. This person has been defined in the PEICL as “victim”, the person for whose death, injury or loss the insured is liable (Article 1:202 para. 4). While the word “victim” is used in everyday language also in

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other context, in particular in accident insurance, the Principles of European Insurance Contract Law limit its use to liability insurance.

Insurance Agent (para. 5) C7.  The Insurance Mediation Directive (2002/92/EC), as amended by art. 91 of MiFID2 (2014/65/EU), does not speak of the “insurance agent” but the term “intermediary” is used for both agents and brokers. “Tied insurance intermediary” is defined in art. 2 para. 7 of the Directive to be “any person who carries on the activity of insurance mediation for and on behalf of one or more insurance undertakings in the case of insurance products which are not in competition but does not collect premiums or amounts intended for the customer and who acts under the full responsibility of those insurance undertakings for the products which concern them respectively”. This definition is unfit for the purposes of the Principles of European Insurance Contract Law because the Directive deals mainly with professional responsibilities of the intermediary rather than with the issue of agent’s authority (Article 3:101). Therefore, in the Principles of European Insurance Contract Law the term “insurance agent” is used. It means an insurance intermediary employed by an insurer for marketing, selling or managing insurance contracts (Article 1:202 para. 5; “marketing, selling or managing insurance contracts” describes the activities mentioned in art. 2 para. 3 of the Insurance Mediation Directive (2002/92/EC), as amended, in a more concise manner). “Employed” in the context of Article 1:202 para. 5 means that a person is entrusted with the responsibilities of marketing, selling or managing insurance contracts by the insurer. The agent does not have to be an employee but may as well be engaged on a self-employed basis.

Premium (para. 6) C8.  The primary obligation of a policyholder is to pay the insurance premium. In accordance with Article 1:202 para. 6, “premium” means the payment due to the insurer on the part of the policyholder in return for cover. In addition to the actual premium, the policyholder may, for example, in unit-linked insurances be obliged to pay also certain handling fees in addition to the premium. When applying the articles concerning premium (Articles 5:101 to 5:105) these kinds of fees are not considered as premium.

Contract Period (para. 7) C9.  In an insurance contract there are several periods of time which must be distinguished: One of them, “contract period”, is defined in Article 1:202 para. 7 as the period of contractual commitment starting at the conclusion of the contract and ending when the agreed term of duration elapses. As an insurance contract can be prolonged after the contract period has expired, a single insurance contract may consist of several contract periods. As a general rule, the contract cannot be altered during a contract period but only from the beginning of a new contract period (see Article 2:603).

Insurance Period (para. 8) C10.  “Insurance period” means the period for which the premium is due in accordance with the parties’ agreement (Article 1:202 para. 8). Thus, a contract period may consist of

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one or more insurance periods. Also, the insurance period does not necessarily fall within the contract period. For example, in retroactive insurance, the policyholder has to pay premium for an insurance period preceding the contract period. Moreover, the insurance period is not identical to the liability period. For example, the policyholder is under an obligation to pay a premium for the period of time in which the insurer is relieved of its obligation to cover the risk in accordance with Article 5:102 para. 2 (non-payment of a subsequent premium).

Liability Period (para. 9) C11.  The third period of time defined is the “liability period”. In accordance with Article 1:202 para. 9 it means the period of cover. This period may begin at the same time as the contract period or later. In case of retroactive cover, the liability period may even start before the contract period. As far as liability insurance is concerned, the liability period may differ substantially from the contract period depending on the fact that triggers the insurance cover (manifestation, occurrence, claims made).

Compulsory Insurance (para. 10) C12.  “Compulsory insurance” as opposed to voluntary insurance is defined by reference to an obligation to take out such insurance which is imposed on the policyholder. Such obligation to insure may arise from the law of the European Union, the law of Member States, or the law of third States. At a lower level, it may arise also from instruments adopted by official entities invested with regulatory powers such as autonomous regions in federal Member States, municipalities or professional bodies. In contrast, the definition does not cover insurance obligations which arise from private instruments such as a contract or the articles of an association because these are of private origin and are therefore classified as voluntary. Nevertheless, the PEICL may be chosen for such insurance contracts.

Note See Article 1:201 Note 7.

Article 1:203 Language and Interpretation of Documents13 (1) All documents provided by the insurer shall be plain and intelligible and in the language in which the contract is negotiated. (2) When there is doubt about the meaning of the wording of any document or information provided by the insurer, the interpretation most favourable to the policyholder, insured or beneficiary, as appropriate, shall prevail.

13

Article 1:203 para. 2 is modelled on art. 5 of the Unfair Contract Terms Directive (93/13/EEC).

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Comments Relationship to the Principles of European Contract Law C1.  As compared with Article 1:104 dealing with the interpretation of the Principles of European Insurance Contract Law, Article 1:203 lays down requirements relating to the drafting and interpretation of insurance contracts. Generally, insurance contracts are interpreted like other contracts in particular in accordance with text, context and purpose. Therefore, in principle, the rules contained in Chapter Five of the Principles of European Contract Law apply to insurance contracts. Article 1:203 contains some special rules for written documents provided by the insurer, including notices and other communications from the insurer, as well as policies even if they have been individually negotiated.

Transparency C2.  Article 1:203 is intended to promote the transparency of documents. The words of the Article are based on the first and second sentences of art. 5 of the Unfair Contract Terms Directive (93/13/EEC). That the contents should be expressed fully and clearly is an aspect of the requirement of good faith to enable policyholders to assess their rights and obligations. C3.  Plain and intelligible means plain and intelligible to the reasonable policyholder. All documents provided by the insurer must put the policyholder in a position to assess, by applying general rules of interpretation (see Comment 1), all the legal consequences of the policy, in particular his rights and obligations. If not, the contra proferentem rule of construction (see Article 5:103 PECL) applies, and the interpretation most favourable to the policyholder will prevail. If, however, a term is meaningless to a reasonable policyholder, the contra proferentem rule cannot be applied. In such case, the court may disregard the term and enforce the remainder of the document.

Language of Documents C4.  Documents will only be transparent if they are issued in a language the policyholder understands. Therefore, Article 1:203 para. 1 provides a language rule which gives the policyholder a right to receive all documents provided by the insurer in the language in which the contract is negotiated. In many cases this will be the mother tongue of the policyholder because insurers will market products and communicate with customers in their native language. However, if the policyholder approaches a foreign insurer, for example through an insurance broker, and uses a different language it can be inferred that the policyholder submits to communication with the insurer in that language. Therefore, it is sufficient that documents are drafted in the language in which the contract was negotiated. C5.  Article 1:203 para. 1 departs from language rules in existing European contract law. According to art. 185 para. 6 of the Solvency II Directive (2009/138/EC), information concerning life insurances must be provided by the insurer in an official language of the Member State of the place of commitment which is, in most cases, the Member State in which the policyholder has his habitual residence. The policyholder may, however, choose an official language of another Member State. Similarly a timeshare provider must issue all documents

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in an official language of the Member State in which the purchaser is resident or – upon the request of the purchaser – of which he is a national according to art. 4 para. 3 and art. 5 para. 1 of the Timeshare Directive (2008/122/EC). However, some Member States specified in that Directive may require a certified translation of the contract in other languages; cf. art. 5 para. 1(2) and (3). C6.  Such rules are not sufficient to achieve the purpose of the Principles of European Insurance Contract Law particularly because they would tend to inhibit certain insurance transactions. An insurer, who does not do business in the country in which the policyholder has his habitual residence but is approached by a prospective customer in the language in which the insurer is doing business, may decide to refuse cover because all relevant documents would have to be translated. In such cases an excessively strict language rule may have the effect of denying the policyholder access to foreign insurance markets.

Sanctions C7.  Article 1:203 does not provide for specific sanctions for violations of the language requirements. A judge, therefore, will have to apply appropriate sanctions which are available under general contract law. For that purpose the judge may refer to the Principles of European Contract Law in accordance with Article 1:105 para. 2 but not to any sources of national contract law (see Article 1:105 para. 1). In general, a judge may hold that a document edited in a language other than the one required by Article 1:203 para. 1 has not reached the policyholder. Similarly the judge may decide that an information provided in another language than required has not been given at all. On the other hand the policyholder will be estopped from invoking a breach of Article 1:203 in particular situations. This will be the case for example when the documents have been provided in the mother language of the policyholder which was not the language of negotiations. C8.  In addition, the policyholder may claim damages for losses that may occur if information to be provided in a particular language remains unknown to him because it was given in a language he does not understand. Moreover, measures of collective enforcement of the language requirement may be taken. A non complying insurer may face a class action for injunctions as referred to in Article 1:301 or sanctions imposed by the competent supervisory authority in accordance with national supervisory law.

Notes Transparency N1. Several EC directives give evidence of a general quest for more transparency in consumer transactions. A possible way to achieve this goal is by making his commitment more intelligible for the policyholder. Therefore, special provisions have been established requiring insurance documents to be drafted in a clear and comprehensible manner, see in particular art. 185 para. 6 of the Solvency II Directive (2009/138/EC) and art. 3 para. 3 of the Distance Marketing Directive (2002/65/EC).

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N2. Various antecedents can be found in the national legal systems of the Member States: some of them are directly focused on insurance contracts, see for example art. 14 and art. 15 para. 3 of the Belgian Royal Decree of 22 February 1991 on Insurance Supervision; art. L. 112-3 French ICA (furthermore: stipulations regarding nullity, forfeiture or exclusions are valid only if they are drafted in an easily perceptible manner; see also arts. L. 113-12 and L. 113-15 French ICA); s. 7 German ICA and s. 2 para. 1 of Ch. 2 Swedish ICA (concerning pre-contractual consumer information); art. 2 para. 8 Greek ICA; art. 166 and arts. 182 to185 of the Italian Code of Private Insurance (referring to pre-contractual information documents); art. 16 para. 2 Luxembourg ICA (any limitations and exclusions regarding cover must be highlighted); art. 12 paras. 3 and 4 of the Polish Act on Insurance Activity); art. 21 Portuguese ICA; and art. 3 Spanish ICA (concerning general and special contract terms).

Language N3. In the Single European Market with its many languages, the understanding of insurance documents depends on the use of language that is comprehensible for the policyholder. Language regulations therefore are not uncommon in Community instruments. In art. 185 para. 6 of the Solvency II Directive (2009/138/EC), it is laid down that the written information concerning life insurances provided for in this regulation shall be drafted in one of the official languages of the Member State of the commitment, which is the Member State where the policyholder has his habitual residence. However, subpara. 2 stipulates that the said documents may be drafted in a different language if the policyholder so requests and if permitted by the law of the Member State or if the policyholder is free to choose the applicable law. N4. Accordingly, the regulations of most European insurance laws are aligned with this rule, see for example s. 9a para. 6 Austrian ISA (the pre-contractual information must be in German, unless the policyholder expressly accepts another language or has chosen a different law); art. 112-3 French ICA (insisting on French wording); Italy (pre-contractual information must be in Italian when the policyholder does not opt for another language); art. 16 para. 2 Luxembourg ICA (the contract has to be drafted in one of the official languages of Luxembourg or in a language understood by the policyholder); art. 8 para. 1 Spanish ICA (the policyholder can choose one of the official languages of the place where the contract is made. In addition, the policyholder can request a different language according to art. 185 para. 6 of the Solvency II Directive (2009/138/ EC)); United Kingdom (the information must be in an official language of the State of the commitment or in another language agreed by the parties – ICOBS 6.3.1).

In dubio contra stipulatorem N5. Article 1:203 para. 2 draws on a provision of the Unfair Contract Terms Directive (93/13/ EC). According to the second sentence of art. 5 of that Directive, the interpretation of a standard term that is most favourable to the consumer will prevail where doubts remain because of an unclear drafting of a contract term. This provision has been implemented in the laws of all Member States.

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Article 1:204 Receipt of Documents: Proof The burden of proving that the policyholder has received documents to be provided by the insurer shall lie with the insurer.

Comments C1.  Article 1:204 places the burden of proof of the receipt of the documents required by Article 2:201 (Provision of Pre-contractual Documents) and Article 2:501 (Contents) by the policyholder on the insurer because it is its duty to provide the policyholder with these documents. This is in line with general rules on the burden of proof but repeated in Article 1:204 in order to avoid doubt and make the rule mandatory. C2.  In contrast, Article 1:204 does not interfere with general rules on the standard of proof. In particular means of easing proof such as “res ipsa loquitur”, “prima facie evidence” and so on may be applied in favour of the insurer.

Notes General Law of Evidence N1. As part of the general provisions, Article 1:204 articulates a rule which in most countries is left to the general law of evidence. When the insurer is under an obligation to convey certain information or documents to the policyholder, it would generally be incumbent upon the insurer to prove that it has performed that duty. However, rules on the burden of proof may be susceptible of being derogated from by agreement under national law. A binding rule, see Article 1:103 para. 2, avoids such derogations and ensures a uniform application of the Principles of European Insurance Contract Law in this respect throughout the European Union.

Specific Rules of Insurance Law N2. Several countries have explicitly put the burden of proof for the issue of certain documents and information upon the insurer, see Austria: s. 5b para. 3 ICA; and Germany: s. 8 para. 2 ICA; see also art. 2 para. 6 Greek ICA. As far as applicable to the conclusion of the specific insurance contract, the Member States’ rules may follow art. 15 of the Distance Marketing Directive (2002/65/EC), according to which the Member States “may stipulate that the burden of proof in respect of the supplier’s obligation to inform” can be placed upon the supplier. The Member States have apparently made little use of this option (for an implementing provision, see art. VI, 62 of the Belgian Code of Economic Law; see also the Spanish Royal Decree on Insurance Supervision: under art. 107 the insurer has to make sure that the policyholder receives all necessary information and acknowledges its receipt by means of a note at the end of the policy or in an additional document). See also the notes on Articles 2:201 to 2:203 and Articles 2:501 to 2:502.

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Article 1:205 Form of Notice

Article 1:205 Form of Notice Subject to specific rules contained in the PEICL, notice by the applicant, policyholder, insured or beneficiary in relation to the insurance contract shall not be required to take any particular form.

Comments Consensual and Formal Contracts C1.  The validity of an insurance contract subject to the Principles of European Insurance Contract Law does not depend on any particular form; see Article 2:301. In particular the issue of an insurance policy is not a condition precedent to its conclusion; rather, the obligation to issue such a policy follows from the conclusion of the contract. This basic rule is in line with the general development of contract law. While the observation of particular forms has been a general feature of ancient contract law, modern law has enlarged the significance of consent as the sole source of contractual obligations. C2.  The trend towards consensual contracts, also reflected by Article 2:101 para. 2 PECL, is supplemented by provisions that point out the validity of notices irrespective of a particular form such as Article 1:205. This provision is in line with Article 1:303 para. 1 PECL; while that article deals with notices given by any party to a contract, Article 1:205 only applies to notices given by the applicant, policyholder, insured or beneficiary, but not by the insurer. C3.  Under Article 1:103 para. 2 PEICL, the principle laid down in Article 1:303 para. 1 PECL and reaffirmed, with slight amendments, in Article 1:205 PEICL cannot be derogated from as far as notices given by the persons listed in the latter provision are concerned. With regard to notices of the insurer, no general principle is established in the Principles of European Insurance Contract Law, although various provisions provide for the written form in specific situations (see below in Comment 11). Where those provisions do not apply, the matter is left to the dispositive principle of Article 1:303 para. 1 PECL which may serve to fill the gap under Article 1:105 para. 2 PEICL.

Proof C4.  While a notice covered by Article 1:205 may be valid irrespective of any particular form, it has to be proven if contested by the insurer. The means of proof and the degree of probability required are left to the national law of the court seized. Article 1:205 interferes with that national law only to the extent that national provisions require the written or any other specific form as a mandatory precondition of proof.

Notice C5.  In accordance with Article 1:303 para. 6 PECL, the term “notice” is understood in a broad way and comprises not only the conveyance of information, but also announcements containing an element of intention: promises, statements, offers, an acceptance, demand, request or other declaration. Thus, the applicant may comply with his duty of disclosure under Article 2:101 by oral answers to the questions put to him by the insurer. Similarly,

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the revocation of an application under Article 2:302, the cancellation of preliminary cover under the second sentence of Article 2:403 para. 2, or the request for a reduction of premium in the case of a reduction of risk, Article 4:301, may be communicated by any means, notwithstanding any contract clauses that may require a notice in writing. C6.  Article 1:205 applies not only to notices specifically mentioned in other provisions of the Principles of European Insurance Contract Law, but to all “notices […] in relation to the insurance contract”. It follows that notices which are prescribed, not in the Principles of European Insurance Contract Law, but in the insurance contract, are equally subject to Article 1: 205 provided that they are given by the applicant, policyholder, insured or beneficiary. Therefore, such notices may be given by any means irrespective of any writing requirement laid down in the same insurance contract.

Persons Favoured C7.  Article 1:205 concerns only notices by the applicant, policyholder, insured or beneficiary. The policyholder is defined in Article 1:201 as the person to whom the contractual promise of the insurer is addressed; before he receives that promise, his status is that of an applicant. For the definition of the insured and beneficiary, see Article 1:202 paras. 1 and 2. For notices by the insurer or other persons, see above in Comments 2 and 3.

No Particular Form Being Required C8.  Under a widespread practice of insurance companies, contract terms require policyholders and other persons who want to derive benefits from an insurance contract to make certain declarations in writing, perhaps even supplemented by further formal requirements such as the registration of a letter. It follows from Article 1:205, which may not be derogated from under Article 1:103 para. 2, that such clauses are invalid and shall be disregarded. C9.  Some provisions of the Principles of European Insurance Contract Law seem to suggest by the use of other terms that a written notice is required. Thus, Article 6:101 para. 2 declares the notice of the insured event to be effective “on dispatch”. It would be erroneous, however, to infer that such notice must be in writing. That provision is rather meant to make clear that, in the case of a written notice, dispatch and not receipt by the addressee is the relevant point in time for assessing whether the notice has been given without undue delay. While a certain period of time may elapse between dispatch and receipt in the case of a written notice, this is not the case if the notice is given orally or by telephone. In those cases, the second sentence of Article 6:101 para. 2 is irrelevant. C10.  The freedom of form is subject to “specific rules contained in the PEICL”. Such formal requirements are laid down in various provisions, for example for declarations of termination or avoidance in Article 2:202 para. 2(b), Article 2:303 para. 1, Article 2:602 para. 1(b), Article 2:604 para. 3, or Article 4:301 para. 2. A written declaration is also required for the revocation of the designation of an insured by the policyholder under Article 11:101 para. 3.

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Notices by the Insurer C11.  While the Principles of European Insurance Contract Law do not establish a general principle for the form of notices by the insurer, see above in Comments 2 and 3, a large number of specific provisions require the insurer to give written notice in order to make the policyholder aware of a serious situation; see, for example, notices of avoidance and termination under Article 2:104, Article 2:602 para. 1(a), Article 4:203 para. 1, or Article 5:103 para. 1. Serious consequences for the policyholder may also result from the effects of Article 5:101(a) (non-payment of the first or single premium) and Article 6:103 para. 2 (rejection of a claim by the insurer); in both cases the insurer’s notices have to be in writing.

Notes Community Law N1. The European directives do not specifically address the formal requirements for notice by the applicant, policyholder, insured or beneficiary. The obligation in art. 185 para. 6 of the Solvency II Directive (2009/138/EC) to communicate certain information to the policyholder in writing in a clear and accurate manner before the contract is concluded only relates to information to be provided by a life insurer, not by the applicant, insured, policyholder or beneficiary. Art. 8 para. 1 of the Amended Proposal for a Council Directive on Insurance Contract Law refers to the provisions in the insurance policy for the form of notice of an insured event.

The Kind and Context of the Notice N2. At national level, the picture seems to be slightly more complex. Again, it appears to be necessary to distinguish in general between formal requirements affecting the insurer and formal requirements affecting the applicant, insured, policyholder or beneficiary. Article 1:205 only deals with formal requirements affecting the applicant, policyholder, insured or beneficiary. For formal requirements affecting the insurer, see, for example, Articles 2:102, 2:104, 2:201, 2:402, 2:502, 2:602, 2:603, 2:604, 2:701, 5:101, 5:102, 5:103, and 6:103 para. 2 PEICL and the corresponding notes. In addition, Article 1:205 is subject to the specific rules in the Principles of European Insurance Contract Law establishing particular requirements as to form. This relates in particular to the formal requirements for the conclusion of an insurance contract, the proof of its existence (Article 2:301) and its revocation during a cooling-off period (Article 2:303 para. 1). The formal requirements at the stage of concluding the contract are addressed in Articles 2:301 and 2:303 para. 1 PEICL and the corresponding notes. Other specific formal requirements affecting the applicant, policyholder, insured or beneficiary are addressed in Articles 2:602 para. 1(b), 2:604 para. 3 and 2:702 para. 2 PEICL and the corresponding notes. N3. The relevance of Article 1:205 is therefore limited to all other notices made by the applicant, policyholder, insured or beneficiary. These notices can be of a different nature, they may relate to an aggravation of risk during the contract (Article 4:202), the occurrence of an insured event (Article 6:101) or any other situation where a duty to give notice is established by law (for example in the case of double insurance) or such notice is made voluntarily. It is thus difficult to give a general and all-embracing comparative law answer to the question of whether all notices of

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the applicant, policyholder, insured or beneficiary which fall under Article 1:205 are subject to formal requirements in national insurance laws. A precise answer would rather depend on the relevant kind of notice and a comparison of the provisions which govern in national law (namely the provisions on aggravation of risk, occurrence of an insured event, and so on; for a detailed analysis of the form of notice in specific situations in German and English law, see Rühl 51, 71, 96, 152, 157, 162, 166, 221, 288, 297, 306, 311s and 346).

General Principle: No Formal Requirements N4. If an attempt at providing a general answer is nevertheless made, it would probably be that European insurance laws are in general supportive of giving notice in an informal manner (for England, see Clarke 23-3B, for Germany, see Hofmann 118, Schimikowski, para. 193; Bruck/ Möller-Rolfs, § 19 VVG para. 80; for both see Rühl above). However, at the same time many European insurance laws seem to allow the parties to stipulate in the insurance contract that notice made in relation to the insurance contract after conclusion of the contract must be in writing or by eletronic communication (for Austria, see the second sentence of s. 34a ICA; for the United Kingdom, see Clarke 26-2B, MacGillivray 19-041; for Germany, see s. 32 ICA regarding notice given to the insurer (not to his agent), BGH 10.2.1999, Neue Juristische Wochenschrift 1999, 1633, 1634-1636, Bruck/Möller-Brömmelmeyer, § 32 VVG paras 23 ff., Schwintowski/Brömmelmeyer-Schwintowski, § 32 VVG para. 4 ff., Wandt, paras. 398 und 398a; for England and Germany, see Rühl above).

An Example: Notice of an Insured Event N5. This can be illustrated by the example of the form of notice in case of occurrence of an insured event. All European laws start from the basis of a liberal approach, requiring no specific form for such notice (for Austria, see Basedow/Fock-Lemmel 1077; for Belgium, see Fontaine, para. 318; for Denmark, see Basedow/Fock-Scherpe 974; for the United Kingdom, see Clarke 262B; for France, see Cass. civ. 20.10.1992, RGAT 1993, 99, Bonnard, Droit et pratique, para. 543; for Germany, see Prölss/Martin-Armbrüster, § 30 VVG para. 9; for Greece, see Chatzinikolaou-Aggelidou 182, Kiantos 129, Rokas, para. 429 ff. and Skouloudis 267; for Italy, see Cendon-Franzoni, art. 1913, 1681, Rescigno-Gallone, Codice Civile, art. 1913, 2131; for Luxembourg, see Basedow/ Fock-Völker 798; for the Netherlands Asser/Clausing/Wansink 230 ff.; for Poland, see art. 818 para. 1 CC; for Portugal, see Vasques 300; for Spain, see Bataller/Latorre/Olavarria (art. 16) 201, Sánchez Calero, (art. 16) 264: a requirement of written form is stipulated for a notice according to art. 38 ICA; and for Switzerland, see the second sentence of art. 38 para. 1 ICA). N6. However, while most jurisdictions permit the insurer to require written notice or the use of specific forms by including a corresponding clause in the insurance contract (for example Belgium: Fontaine, para. 318; the United Kingdom: Clarke 26-2B; Germany: Prölss/Martin-Armbrüster, § 30 VVG para. 9, Schimikowski, para. 220, Wandt, para. 939; Greece: Basedow/Fock-Papathoma-Baetge 624; Italy: Basedow/Fock-Brunetta d’Usseaux 714; Luxembourg: Basedow/ Fock-Völker 798; Denmark: Basedow/Fock-Scherpe 974; Switzerland: the second sentence of art. 38 para. 1 ICA, Maurer 340), others object to such contractual stipulations (France: Lamy Assurances, para. 613).

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Article 1:206 Imputed Knowledge

Article 1:206 Imputed Knowledge If any person is entrusted by the policyholder, the insured or the beneficiary with responsibilities essential to the conclusion or performance of the contract, relevant knowledge which that person has or ought to have in the course of fulfilling his responsibilities shall be deemed to be the knowledge of the policyholder, the insured or the beneficiary, as the case may be.

Comments The Issues C1.  The Principles of European Insurance Contract Law contain a number of information duties, in particular Article 2:101 requiring an applicant for insurance to inform the insurer of material circumstances of which the applicant “is or ought to be aware”. The circumstances that are material are those identified, in the case of Article 2:101, by the requirement that they be “the subject of clear and precise questions put to him by the insurer”. However, there remain issues about what exactly an applicant “is or ought to be aware” of within the range of material circumstances, in other words, about what kinds of knowledge might be imputed to applicants whether they actually have that knowledge or not. These issues are discussed in the Comments on Articles 2:101 ff. Such issues also arise when persons other than the policyholder are involved in the formation and/or performance of the contract. These are the concern of Article 1:206.

Imputation and Agency C2.  The very notion of imputing knowledge presumes that applicants in good faith may be treated in law as being in breach of an information duty, with significantly adverse consequences in some cases, when they do not actually possess that knowledge but their agents do. Such issues might be resolved by reference to the general law of agency. However, people with knowledge to be imputed may not be agents within the general law of agency. In view of the particularity and importance of insurance information duties, it is therefore commonplace to regulate the issue of imputation in the context of insurance contracts. This is the function of Article 1:206, which does not deal with the imputation of acts committed by such persons to the policyholder or to the insurer, as the case may be. The extent to which such acts can be imputed is a matter of general law of agency.

Persons Whose Knowledge May Be Imputed C3.  Persons whose knowledge may be imputed to the policyholder or the insured, as the case may be, are characterised by two elements: as indicated by the word “entrusted” in Article 1:206 there must be a special relationship between these persons and the policyholder which has come into existence for other reasons. The object of their being “entrusted” must be to confer responsibility essential to the conclusion or performance of the insurance contract. C4.  Such relationships may result from employment, marriage or other domestic relations, business organisations and so on. In all of these contexts it is very difficult to draw the line

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between persons whose knowledge can be imputed to the policyholder and other persons who may have actual knowledge but cannot be expected to communicate that information to the policyholder. The concept of “entrustment” with responsibilities is sufficiently flexible to allow for the identification of the relevant persons. C5.  A simple example is that of two or more individuals who seek joint insurance cover on the house that they share. Under Article 1:206 non-disclosure of material facts known only to one of the joint policyholders affects the other. Thus, one who actually arranges the insurance is deemed to know material facts known only to the other and vice versa. In the event of non-disclosure the insurer is usually entitled to avoid the contract of insurance as regards both of them. Another example is that of the professional caretaker entrusted with the care of the property in the absence of the owner and policyholder. The latter are deemed to know what is known to the caretaker. A person employed to clean the property would not be such an example.

Notes General Law of Agency N1. The rule on the imputation of knowledge, set forth in the introductory part of the Principles of European Insurance Contract Law, addresses an issue that remains in the domain of the general law (of agency) in most countries. Accordingly, it was also taken up by the drafters of the Principles of European Contract Law, see their Article 1:305 which however contains a dispositive rule as opposed to the mandatory character of Article 1:206 PEICL. It follows that the fair and full understanding and analysis of Article 1:206 implies the reference to the accompanying comments and notes of Article 1:305(a) PECL. Very similar to the provision in the Principles of European Contract Law is the draft Art. II–1:105 of the Draft Common Frame of Reference. While both general provisions cited above do not only deal with the imputation of knowledge, but also that of intention, gross negligence and other states of the mind, the wording of Article 1:206 is limited to the imputation of knowledge. This imputation enables the judge, however, to draw consequences as to the negligence of the policyholder, insured or beneficiary.

Specific Provisions for Insurance Contracts N2. Article 1:206 PEICL addresses situations where the policyholder, the insured or the beneficiary entrusts a person with certain responsibilities regarding the conclusion or performance of the contract. This person may be referred to as an agent, although he may not be an agent in a technical sense. Just like Article 1:206, some national insurance laws point out that the knowledge of both the policyholder and his agent is relevant, see Note 3 below. Article 1:206 further extends to cases where the insured also acts as an agent of the policyholder. Take the example of a liability insurance taken out by the policyholder in favour of his family; while family members are co-insured, their knowledge about an insured event will be imputed to the policyholder under Article 1:206. Some national laws specifically deal with similar situations, see Note 4 below.

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Knowledge of the Policyholder’s Agent N3. National provisions specifically drafted for insurance contracts mainly relate to the pre-contractual duty of disclosure of the party which takes out insurance. The purpose of Article 1:206 to hold the policyholder responsible for his agent’s knowledge can be achieved in two ways: the law may either impose upon the agent a duty to disclose his knowledge and hold the principal responsible for any breach of that duty, or the agent’s knowledge may be treated as the knowledge of the policyholder. A detailed rule of the first type can be found in ss. 18 and 19 of the UK Marine Insurance Act 1906. S. 19 extends the assured’s duty of disclosure to all agents effecting insurance. Rules of the latter type are contained in the insurance contract acts of German influence. Under s. 19 Austrian ICA, s. 20 German ICA, and art. 5 Swiss ICA, the knowledge of the agent and the knowledge of the policyholder are treated alike. For a similar approach, see also the second sentence of art. 815 para. 1 Polish CC. As a consequence, the knowledge of both the policyholder and his agent has to be taken into account under s. 20 German ICA when compliance with the duty of disclosure has to be assessed.

When Policyholder and Insured are Not Identical N4. Rather than addressing the knowledge of agent and principal, several jurisdictions have particular rules for those contracts where the policyholder and the insured are not identical. Under Finnish law (s. 22 ICA) and under Swedish law (s. 1 of Ch. 12 ICA in cases of “individual personal insurance”), the policyholder as well as the insured is required to give “true and complete answers” to the insurer’s questions. Similarly, the law of Luxembourg “en cas d’assurance de personnes” requires the insured, in addition to the policyholder, to disclose all the information which he should reasonably expect to be important to the insurer (art. 11 para. 1(2) ICA). Cf. for the similar solution under Greek law: Rokas, para. 422a ff., Basedow/Fock-Papathoma-Baetge 616, for Italy art. 1894 CC provides that, only if the insured has knowledge of the lack of disclosure or wrong declaration made by the contracting party, this knowledge can be raised by the insurer as a defence (see Cerini 95) and for Spain, see art. 11 ICA. Similarly and following the concept of a contract for the account of a third-party (“für fremde Rechnung”), the knowledge of the policyholder and the knowledge of the insured are both declared relevant under German law (s. 47 ICA), Austrian law (s. 78 ICA) and Polish law (art. 815 para. 2(1) CC). If made known to the insurer, however, the insured’s knowledge remains irrelevant when the insured is not aware of the conclusion of the contract (s. 47 para. 2 German, s. 79 para. 2 Austrian ICA and art. 815 para. 2(1) Polish CC). N5. This solution appears to differ from the French rule in art. L. 113-2 ICA, which the courts – following older legislation – construe in such a way that the relevant knowledge is the knowledge of the policyholder only (“connues de lui”), see Cass. civ. 1er, 1.2.2000, no. 97-11, 539; Lamy Assurances, para. 266). The former and traditional rule was also observed in the Netherlands, where it was generally accepted under the former law that only the applicant’s knowledge was relevant (Wansink/Kamphuisen/Kalkman-Kamphuisen 28). Under the new law, however, all information must be disclosed by the applicant including the information of all third parties having an interest in the insurance. Consequently, knowledge of any such third-party will be imputed to the policyholder (art. 7:928 para. 2 CC). This development demonstrates the evolution of the law, which is also contained in the imputation rule of Article 1:206 PEICL and allows the insured to be considered as a person entrusted with certain aspects of the performance of the contract.

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Article 1:207 Non-Discrimination14 (1) Gender, pregnancy, maternity, nationality and racial or ethnic origin shall not be factors resulting in differences in individuals’ premiums and benefits. (2) Terms in breach of para. 1, including terms as to premium, shall not be binding on the policyholder or the insured. Subject to para. 3, the contract shall continue to bind the parties on the basis of non-discriminatory terms. (3) In the case of breach of para. 1, the policyholder shall be entitled to terminate the contract. Notice of termination shall be given to the insurer in writing within two months after the breach becomes known to the policyholder.

Comments Insurance and Differentiation C1.  The activities of insurance companies by necessity include differentiation between classes of risk. Insurers try to assess the risk they accept by relying on statistical or other experience which is structured according to certain characteristics of the risk insured. Thus, brick houses are less susceptible of burning down than wooden houses, property located close to a river is more exposed to flooding than property situated on a distant hill and so on. The same considerations apply to human risk factors: Young owners and drivers of cars will more often be involved in accidents than older persons, they are therefore considered as a higher risk whose cover requires higher premiums. Women live longer than men; financing a pension scheme by means of life assurance for women therefore requires higher premiums. On the other hand women drivers cause accidents less often than men which factor permits a lower premium, all other things being equal. It follows from these examples that the actuarial approach to insurance traditionally has involved differentiation on the basis of gender, age, or other personal characteristics. C2.  However, the basic orientation of the European Union under art. 19 TFEU is to “take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. While art. 19 does not state a legal rule which would be directly applicable as between private parties, it confers upon the Union the power to adopt legislation in pursuance of the goal of non-discrimination. But the impact of art. 21 of the Charter of Fundamental Rights of the European Union which was transformed into binding primary law by the Treaty of Lisbon, may reach even further. According to para. 1 of that provision “any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.” Art. 23 stresses that “equality between women and men must be ensured in all areas, including employment, work and pay.” Art. 21 para. 2 repeats the prohibition of any discrimination on grounds of nationality that had already formed part of the Treaty of Rome and its successors. The enumeration of the prohibitions is not exhaustive as can be inferred from art. 21 para. 1 (“any discrimination based on any ground such as …”). Where 14

This Article is modelled on the Gender Directive (2004/113/EC) and on Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres [2011] ECR I-773.

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art. 21 of the Charter is applied to insurance it may therefore be potentially incompatible with any differentiation of premium on the basis of personal characteristics of the policyholder or person at risk. C3.  The prohibitions established protection against the discriminatory exercise of power by the European Union and by the Member States when they are implementing the law of the Union, see art. 51 of the Charter. For the time being it is still unclear whether and to what extent they are directly applicable in relations between private parties, in particular between insurers and policyholders. With regard to labour relations the Court of Justice has pointed out that “the principle of non-discrimination on grounds of age must […] be regarded as a general principle of Community law” which supersedes both national and secondary Community legislation; see the judgment of 22 November 2005, Case C-144/04 Mangold v Helm [2005] ECR I-9981 para. 75. Given the particular circumstances of that decision it is unlikely that the very broad statement by the European Court of Justice applies equally to other areas of law such as insurance. First, non-discrimination has always been an objective of particular significance in labour law; see art. 141 EC. Secondly, the Court had to deal with a situation where a directive implementing the general principle had already been adopted, but not yet transformed into national law. Thirdly, and unlike insurance, labour relations are not by necessity dependant upon a selection of personal criteria used to differentiate between people. C4.  In respect of insurance the Court of Justice has more recently pointed out that because of “the principle of equal treatment for men and women, enshrined in arts. 21 and 23 of the Charter, the respective situations of men and women with regard to insurance premiums and benefits contracted by them are comparable” and that a derogation from the principle of equal treatment between men and women cannot be permitted to persist indefinitely, see 1 March 2011, Case C-236/09 Association belge des Consommateurs Test-Achats v Conseil des ministres [2011] ECR I-773, paras. 30 and 31-32. However, the procedural setting of this case was not a dispute between private parties, but the challenge to the validity of an EU directive. The Court quashed a decision of the Council, not that of an insurer. The judgment therefore still leaves some doubt as to the impact of art. 21 of the Charter on private relations. Moreover, the Court’s repeated invocation of art. 23 (which only deals with the equality of men and women, not with other differentiations) in combination with art. 21 suggests that the discrimination on other grounds such as age which is only mentioned in art. 21 may be treated with more tolerance than the discrimination on grounds of sex. The European Commission Guidelines ([2012] OJ C11/1) published after Test-Achats explicitly point out that the judgment “does not affect the use of other risk-rating factors, such as age or disability, which is currently not regulated at EU level” (para. 18). C5.  Because of these remaining uncertainties Article 1:207 does not establish a broad principle of non-discrimination banning the differentiation on the basis of any of the factors listed in art. 21 of the Charter; such a broad principle might be the end of risk-based premium calculation which has been the traditional basis of private insurance. The more risk factors are prohibited, the more insurance will become a social compensation scheme. For the time being, the PEICL preserve the traditional model of private insurance as far as possible. Thus, Article 1:207 is limited to the implementation of what at present can be said to be the law of the Union. At present, the acquis communautaire contains essentially

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three relevant hardcore prohibitions of discrimination: The prohibition of any discrimination on grounds of nationality laid down in art. 18 TFEU, the principle of equal treatment irrespective of racial or ethnic origin established by the Race Equality Directive (2000/43/ EC), and the principle of equal treatment between men and women in the access to and the supply of goods and services as stated in the Gender Directive (2004/113/EC). Some of these provisions address all forms of discrimination; see art. 18 TFEU and art. 2 para. 1 of the Race Equality Directive (2000/43/EC). They would exclude not only discriminatory premiums and insurance benefits, but also discriminatory refusal to offer cover at all. Article 1:207 does not cover such refusal because all the Principles of European Insurance Contract Law, including that in Article 1:207, presuppose agreement of the parties on an insurance contract subject to the PEICL; refusal to offer cover is therefore outside its ambit.

Equal Treatment of Men and Women C6.  Para. 1 adapts the provision contained in art. 5 of the Gender Directive (2004/113/EC) to the particular circumstances of an optional instrument on European insurance contract law. Art. 5 takes account of the need for a specification of the principle of equal treatment laid down in art. 4 of that Directive for insurance contracts. Art. 5 reads:

1. Member States shall ensure that in all new contracts concluded after 21 December 2007 at the latest, the use of sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services shall not result in differences in individuals’ premiums and benefits. Initially, para. 2 of art. 5 permitted Member States to allow proportionate differences in individuals’ premiums and benefits under certain conditions and for a limited period of time. However, art. 5 para. 2 was declared invalid by the European Court of Justice on 1 March 2011, Case C-236/09 Association belge des Consommateurs Test-Achats v Conseil des ministres [2011] ECR I-773. As a consequence of this decision, para. 1 is the only remaining provision of art. 5 of the Directive. Article 1:207 para. 1 is modelled on this provision and explicitly adds differentiations relating to pregnancy and motherhood. While they could be considered as indirect discriminations on grounds of gender, the explicit prohibition excludes any doubt.

Non-Discrimination on Grounds of Nationality, Racial or Ethnic Origin C7.  According to art. 12 EC any discrimination on grounds of nationality is prohibited. This prohibition is directly applicable, and citizens of the European Union can rely on art. 12 EC; see Case C-85/96 Martínez Zala v Bayern [1998] ECR I-2691 para. 63. While the prohibition is aimed in the first place at discriminatory treatment by Member States, it has also been applied to certain private law relations between individuals; see for example Case C-281/98 Angonese v Cassa di Risparmio di Bolzano [2000] ECR I-4139 paras. 33 ff. It is, however, uncertain to what extent private contracting parties are actually bound by art. 12 EC. With regard to insurance contracts the prohibition of discrimination on grounds of nationality is appropriate however, as evidenced by the national law of several Member States. In addition, art. 2 of the Race Equality Directive (2000/43/EC) prohibits any direct

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Article 1:208 Genetic Tests

or indirect discrimination based on racial or ethnic origin. As laid down in art. 3 para. 1 this prohibition applies to the private sector and in particular to the supply of services which are available to the public. Thus, insurance is most likely included in the prohibition. It relates to the discrimination against all individuals involved whether they are policyholders, insured persons, persons at risk or beneficiaries.

Sanctions C8.  Violation of the principle of non-discrimination should not lead by itself to the avoidance of the whole contract which would deprive the policyholder or insured of the cover needed. The insurance contract should remain binding on both parties, but the discriminatory terms and premium obligations should not be binding on the policyholder or insured, as the case may be. This solution is in line with art. 6 of the Unfair Contract Terms Directive (93/13/EEC). Thus, while the insurer will remain fully bound by the contract the policyholder and insured may invoke the prohibition of discrimination that has been violated, and claim the substitution of the premiums or terms concerned by premiums or terms which would have been agreed upon had the prohibition of discrimination been complied with. In addition, the policyholder is entitled to terminate the contract for the future.

Burden of Proof C9.  In accordance with general principles it is up to the policyholder or insured to show that certain premiums and benefits violate the prohibitions of discrimination laid down in the second sentence of para. 1 and in para. 2. But it would be sufficient that a prima facie case is made in this respect, for example that certain differences in premiums and benefits are shown which support the suspicion that discriminatory practices are applied by the insurer. It would then be up to the insurer to demonstrate that these differences are justified by distinctive features of the particular risk other than pregnancy, maternity, nationality, racial or ethnic origin. As to the use of gender as a relevant factor, the first sentence of Article 1:207 para. 1 shifts the burden of proof to the insurer from the very beginning.

Note Article 1:207 implements non-discrimination directives of the European Union, see the Comments. There do not appear to be any antecedents relating to the field of insurance in national law.

Article 1:208 Genetic Tests (1) The insurer shall not ask the applicant, the policyholder or the person at risk to undergo a genetic test or to disclose the results of such a test, nor shall such information be used by the insurer for the purpose of rating risks. (2) Para. 1 does not apply to personal insurance where the person at risk is 18 years of age or more and the sum insured for this person exceeds EUR 300,000 or the money payable under the policy exceeds EUR 30,000 per year.

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Comments Background C1.  Article 2:101 obliges the applicant to “inform the insurer of circumstances of which he is or ought to be aware, and which are subject of clear and precise questions put to him by the insurer”. This may comprehend questions about results of a genetic test or even a request by the insurer to undergo such test. While an insurer may well have an interest in obtaining genetic information as regards personal insurances, this obviously conflicts with the applicant’s right to privacy as genetic information is one of the most personal items of data. Disclosure duties in this area may be incompatible with the right to data protection provided by Union Law15 and by the laws of Member States. C2.  The conflict of interest is reflected in a strong political sentiment against the use of genetic tests as a means of risk assessment in the field of insurance. This has led to restrictions or prohibitions on the use of genetic data in several Member States.16 The PEICL take up these concerns and try to balance the interests involved.

Scope of Application C3.  Even though it may be of particular practical importance only in the field of life and health insurances, Article 1:208 applies to all types of insurance contracts. This is because there may be other insurances such as accident insurance or insurance covering the risk of inability to work where it may be of relevance.

Subject of Prohibition (para. 1) C4.  According to Article 1:208, the insurer is barred from any use of individual genetic data. Thus, it is not allowed to accept an application on condition that the applicant, the policyholder or the person at risk, as the case may be, undergoes a genetic test; nor can the latter be obliged to disclose the results of an earlier genetic test. In this way, pressure to undergo a genetic test and to disclose the results in order to improve the chance of being accepted or to benefit from lower premiums is excluded. The insurer is not even allowed to use data which is voluntarily disclosed.

Exceptions (para. 2) C5.  Para. 2 provides an exception to the strict rule of para 1. It is applicable to all types of personal insurance (for the meaning of “personal insurance”, see Article 2:601 Comment 7). 15

See, for example, art. 8 of the Charter of Fundamental Rights of the European Union and the Data Protection Directive (95/46/EC). 16 See, for example, art. 58 para. 1 Belgian IA 2014; s. 18 of the German Genetic Diagnostics Act; s. 67 of the Austrian Law on Genetic Engineering; arts. 26 ff. of the Swiss Law on Genetic Screening of Humans); s. 2 of Ch. 2 of the Swedish Law on Genetic Integrity; the Concordat and Moratorium on Genetics and Insurance (agreement between the UK government and the Association of British Insurers).

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This exception presumes that the insurer’s demand for information including genetic data is more justified, if the sum insured or the money payable under the policy reaches a certain level. Similar ideas can be found in several national laws.17 As a consequence of the exception under para. 2, the insurer may ask the applicant, policyholder or the person at risk, as the case may be, to undergo a genetic test and the latter will have to disclose the results of an earlier test, in accordance with Article 2:101 ff. C6.  However, in accordance with Swedish law,18 the exception under para. 2 only applies if the person at risk is 18 years of age or more. Minors merit more protection. Thus, an insurer must not request a parent or guardian to consent to a genetic test of a minor, or to disclose the results of an earlier test. In these cases all the restrictions under para. 1 will apply.

Section Three: Enforcement Article 1:301 Injunctions19 (1) A qualified entity, as defined in para. 2, is entitled to seize a competent national court or authority and seek an order prohibiting or requiring the cessation of infringements of the PEICL, if applicable in accordance with Article 1:102. (2) A qualified entity means any body or organisation on the list drawn up by the European Commission in pursuance of Article 4 of the Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests.

Comments Enforcement of Mandatory Rules by Injunction C1.  Article 1:301 restates the rules contained in arts. 4 and 7 of the Injunctions Directive (2009/22/EC).

These provisions read as follows: Article 4 – Intra-Community infringements 1. Each Member State shall take the measures necessary to ensure that, in the event of an infringement originating in that Member State, any qualified entity from another Member State where the interests protected by that qualified entity are affected by the infringement, may apply to the court or administrative authority referred to in Article 2, on presentation of the list provided for in paragraph 3 of this Article. The courts or administrative authorities shall accept this list as proof of the legal capacity of the qualified entity without prejudice to their right to examine whether the purpose of the qualified entity justifies its taking action in a specific case.

17

See s. 18 para. 1 of the German Genetic Diagnostics Act; art. 27 para. 1(d) and (e) of the Swiss Law on Genetic Screening of Humans). 18 See s. 2 of Ch. 2 of the Swedish Law on Genetic Integrity. 19 This Article is modelled on the Injunctions Directive (2009/22/EC).

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2. For the purposes of intra-Community infringements, and without prejudice to the rights granted to other entities under national legislation, the Member States shall, at the request of their qualified entities, communicate to the Commission that these entities are qualified to bring an action under Article 2. The Member States shall inform the Commission of the name and purpose of these qualified entities. 3. The Commission shall draw up a list of the qualified entities referred to in paragraph 2, with the specification of their purpose. This list shall be published in the Official Journal of the European Union; changes to this list shall be published without delay and the updated list shall be published every six months. Article 7 – Provisions for wider action This Directive shall not prevent Member States from adopting or maintaining in force provisions designed to grant qualified entities and any other person concerned more extensive rights to bring action at national level. Article 1:301 adapts these provisions to the insurance context. It is intended to ensure that adequate and effective means exist to prevent the continued use of unfair terms in insurance contracts.

Measures by Qualified Entities C2.  Standing is granted to entities qualified according to art. 4 para. 3 of the Injunctions Directive (2009/22/EC) to take measures to stop or prohibit the actual or imminent violation of any mandatory rules in the Principles of European Insurance Contract Law. However, the regulations contained in the Principles of European Insurance Contract Law are to protect consumer and non-consumer policyholders, while the list in art. 4 para. 3 of the Injunctions Directive (2009/22/EC) refers to organisations which essentially protect consumers’ interests. In practice the application of Article 1:301 will be restricted to consumer cases. This is not an optimal situation; however, standing under art. 4 of the Injunctions Directive (2009/22/EC) is the only route currently available to organisations for bringing collective actions of this kind.

Note Background in Community Law N1. As laid out in the comments, Article 1:301 is to be construed against the background of the Injunctions Directive (2009/22/EC) and art. 7 of the Unfair Contract Terms Directive (93/13/ EEC). Included in the former is an annex listing all the other directives whose infringements shall give rise to the special remedy provided by the Directive.

Article 1:302 Out-of-court Complaint and Redress Mechanisms Application of the PEICL does not preclude access to out-of-court complaint and redress mechanisms otherwise available to the policyholder, insured or beneficiary.

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Article 1:302 Out-of-court Complaint and Redress Mechanisms

Comments Out-of-court Complaint and Redress Mechanisms under National Law C1.  Much national legislation or self-regulation by the insurance industry has introduced mechanisms of alternative dispute resolution for the settlement of insurance disputes. The most prominent example is the Insurance Ombudsman, an institution which exists in Member States such as Belgium (Ombudsman van de Verzekeringen / Belgian Insurance Ombudsman), Finland (Vakuutus- ja rahoitusneuvonta, Vakuutuslautakunta / Finnish Financial Ombudsman Service, Finnish Insurance Complaints Board), Germany (Ombudsmann für Versicherungen / German Insurance Ombudsman), the Netherlands (Ombudsman Verzekeringen / Dutch Insurance Ombudsman), Poland (Rzecznik Ubezpieczonych / Insurance Ombudsman), Switzerland (Ombudsman der Privatversicherung und der Suva / Ombudsman for Private Insurance and SUVA) and the United Kingdom (Financial Ombudsman Service, which includes an insurance section). Some other Member States have introduced similar out-of-court complaint and redress mechanisms. Mention may be made for example of Greece (Synigoros tou Katanaloti / Hellenic Consumers’ Ombudsman) and Sweden (Allmänna reklamationsnämnden, Ansvarsförsäkringens Personskadenämnd, Trafiksadenämnden / National Board for Consumer Complaints, Board on liability insurance covering personal injuries, Traffic Accident Board). C2.  The main characteristics of such mechanisms are informal access to justice, a free or low cost service and wide discretion to find a fair and just solution which is binding on the insurer but does not preclude access to the courts for the complainant. Clearly such institutions are of great support to the policyholder, insured or beneficiary when enforcing their claims under an insurance policy.

Relationship to the Principles of European Insurance Contract Law C3.  The Principles of European Insurance Contract Law do not deal with out-of-court complaint and redress. However, it is not intended that they should interfere with the various mechanisms established in the Member States. This is why Article 1:302 makes clear explicitly that opting for the Principles of European Insurance Contract Law as the law governing the insurance contract will not rule out in any way the access of the policyholder, insured or beneficiary to the appropriate national mechanism. C4.  Some rules of procedure provide that the national ombudsman services do not decide cases governed by foreign law (see for example in Germany art. 8 para. 3 of the Code of Procedure for the Insurance Ombudsman allowing the Insurance Ombudsman to refuse taking a case which has to be decided on foreign law; or art. 4(a) of the Financial Services Ombudsman Regulations in the Netherlands limiting the authority of the ombudsman to cases which are submitted to Dutch law). Article 1:302 is intended to make it clear that a case governed by the Principles of European Insurance Contract Law is not meant to be regarded as being governed by foreign law for the purpose of such provisions. National ombudsman services should not refuse to accept such cases; since the Principles of European Insurance Contract Law are drafted as a European optional instrument which is to be put in force in

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the whole Community, namely every Member State, their application cannot be considered a case of application of foreign law.

Note The national mechanisms display a wide variety of forms even within a single Member State. Some of these mechnanisms have already been mentioned in the comments.

Chapter Two: Initial Stage and Duration of the Insurance Contract Section One: Applicant’s Pre-contractual Information Duty Article 2:101 Duty of Disclosure (1) When concluding the contract, the applicant shall inform the insurer of circumstances of which he is or ought to be aware, and which are the subject of clear and precise questions put to him by the insurer. (2) The circumstances referred to in para. 1 include those of which the person to be insured was or should have been aware.

Comments Information Imbalance C1.  Insurers require information about the circumstances surrounding the risk in order to decide whether or not to accept an application for insurance. Since these circumstances lie mostly in the knowledge of the applicant rather than the insurer, full and honest disclosure of these facts is of fundamental importance to the insurer’s decision. A distinction between incomplete (undisclosed) information and inaccurate (misrepresented) information may be difficult to draw. For example, when an applicant for motor insurance with five convictions for motoring offences in the last five years states that he has had four, is that a misrepresentation of the number of offences or non-disclosure of the fifth? Hence there is a tendency in current law to deal with misrepresentation and non-disclosure in the same way, and this approach has been adopted in the Principles of European Insurance Contract Law.

The Timing of the Duty C2.  Since insurers require information about the circumstances surrounding the risk in order to decide whether or not to accept an application for insurance, the relevant circumstances are those prevailing at the time that the insurer reaches the decision which, if favourable to the application, is taken to be the time that the contract of insurance is concluded. When the circumstances change in a material way between the time the application is submitted and the time when the contract is concluded, the applicant is obliged to give the insurer notice of any such change, of which the applicant is or should be aware.

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Article 2:101 Duty of Disclosure

Questionnaires C3.  An applicant may be obliged either to disclose the information on his or her own initiative or to disclose it in response to questions put by the insurer, thus leaving the initiative with the insurer. The question method is the one required by Article 2:101 para. 1, mainly for the reason that it is usually more difficult for applicants than for insurers to appreciate what information is material to the risk. Such a rule is more likely to cut unnecessary transaction costs and eliminate subsequent disputes. That is why, although the “own initiative” rule is that found as the basic rule of law in most European countries, insurance practice today has mostly adopted the question method. This is true in particular of contracts on “mass risks”.

Relative Knowledge C4.  Article 2:101 requires applicants to inform the insurer of circumstances of which they were or should have been aware. In one country the corresponding rule applies only to persons seeking insurance in the course of business. In most countries in Europe, however, the law makes no such distinction, although, as regards the consequences of breach of duty, in practice some account is taken of the knowledge and experience that can be expected of an applicant of the kind in question. Today the distinction between applicants in business and applicants that are not is difficult to draw and, in the opinion of some commentators, outdated. There is a marginal area of business activity that affects business people in their private life too; an example is the insurance of computers and cell phones, which may be used both at home and at work. Hence Article 2:101 makes no such distinction. Nonetheless, courts or tribunals applying Article 2:101 should recognise the reality that some kinds of applicant can be expected to know more than others. More knowledge might be expected, for example, of a physician applying for health insurance and of a fireman applying for house insurance than would be expected of other kinds of applicant in such cases.

Inside Knowledge: the Alter Ego C5.  Firms that are incorporated usually have one or more individuals, for example a CEO or a managing director, who are regarded by the law of the country of incorporation as the “alter ego” of the company and whose knowledge is regarded as that of the company. Frequently, however, certain functions are delegated to individuals lower in the corporate hierarchy. When that function can be exercised without further reference back to persons higher in the hierarchy or chain of command, that person’s knowledge may be regarded as that of the company. These are the persons whose knowledge counts for the purpose of Article 2:101. For example, in the case of a medium-sized property company, the relevant person might be the managing agent of the particular block of shops or offices to be insured. In a large company of any kind that person is usually the company’s risk manager, if any. Mutatis mutandis the same is true of unincorporated associations.

Outside Knowledge: The Knowledge of Agents C6.  Whether or not applicants for insurance have actual knowledge of material facts, in many countries they are deemed to know what is known or should be known to certain of their agents – in the case of companies or associations agents outside the organisation.

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Among such agents distinguish those with a mandate limited to contract specified insurance cover from those wider functions. These are persons whose role or mandate goes beyond contracting insurance but is such that they are likely to receive information relevant to insurance cover that might be sought by their principal. In appropriate circumstances they are expected to communicate that information to their principal; this too is information, in the language of Article 2:101 para. l, of circumstances which an applicant ought to know. Most applicants with whom the Principles of European Insurance Contract Law are concerned are consumers and small businesses, and it is the first category of agent that will be important. They include the agents sometimes referred to as “insurance brokers” and “insurance intermediaries”. In this connection see also Article 1:206.

Enquiry or Investigation C7.  Article 2:101 is an objective rule in the sense that it presumes that applicants for insurance have certain kinds of knowledge. Underlying this is an expectation that statements made to insurers be made honestly. Applicants should not be allowed to “turn a blind eye” to the possibility of information which is adverse to their application but which can be readily unearthed. Thus, applicants are expected to check statements they make in applications against any relevant records, including computer records, in their possession, whether at home or in the office. Applicants are expected to make reasonable enquiries. To expect a professional opinion, however, goes too far. When an insurer wants a professional assessment of a risk, such as a valuation of property to be insured, usually the insurer must ask its applicants expressly to get a valuation, or arrange for one to be made itself. C8.  When applicants seek cover for one or more other persons, the circumstances which applicants know or ought to know, include those which were or should have been known to the other persons concerned. Here too therefore applicants have a duty to check relevant matters not within their own actual knowledge or of which they are uncertain but which may be within the actual or deemed knowledge of the other persons. For example, in the case of motor cover, applicants must disclose not only their own convictions for motoring offence, if any, but also those of other persons to be insured. This is the effect of Article 2:101 para. 2.

Notes Survey N1. All European insurance laws recognise a duty of the insured to disclose information before the insurance contract is concluded (see also art. 3 of the Amended Proposal for a Council Directive on Insurance Contract Law). However, at first sight they seem to be fundamentally divided on the question whether the insured is obliged to disclose any material information for the insurance contract without a specific request by the insurer or whether the scope of the duty to disclose depends on the questions of the insurer.

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Duty of Spontaneous Disclosure N2. The duty to disclose any material information on the insured’s own initiative is the position in the insurance laws of Austria, Belgium, Italy, Luxembourg, Portugal and, in part, the United Kingdom (for Austria, see Schauer 108; for Belgium, see Cousy/Schoorens 76; for Italy, see arts. 1892 to 1894 CC and Cerini 77; for Luxembourg, see art. 11 ICA and Commentaire des Articles, in Chambre des deputes, session ordinaire 1996-1997, no. 4252, note on art. 11, 34; for Portugal art. 24 ICA, Vasques 220; for the United Kingdom, see s. 18 of the Marine Insurance Act 1906, Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd [1995] 1 AC 501 and MacDonald Eggers 41-029, Rühl 47, for qualification, see Clarke 23-12A, but note that the Consumer Insurance (Disclosure and Representations) Act 2012 abolished a pure duty of disclosure on consumers and that the Insurance Act 2015 proposes to rewrite the duty in commercial insurances and replace s. 18 of the Marine Insurance Act 1906). The Dutch CC makes an exception on the duty of spontaneous disclosure where the insurance was concluded on the basis of a questionnaire drafted by the insurer (art. 7:928 para. 6), and in respect of facts concerning an person’s criminal past (art. 7:928 para. 5), in both cases apart from the intent of misleading the insurer (see Wansink/Kamphuisen/Kalkman-Wansink 9). German law also provides a restricted duty of spontaneous disclosure – developed from the principle of utmost good faith – in cases of obviously extraordinary and material information which particularly affect the insurer’s interests (see BGH 19.5.2011, Versicherungsrecht 2011, 1549). N3. The scope of the duty to disclose is however limited: the insured need not disclose facts which are either known to the insurer or presumed to be known to him as matters of common knowledge or facts which an insurer should know in the ordinary course of business (for Belgium, see the second sentence of art. 58 IA 2014; for England and Wales, Marine Insurance Act 1906, s. 18(3)(b), MacDonald Eggers 41-030; for Luxembourg, see the second sentence of art. 11 para. 1 ICA) or facts which diminish the risk of the insurer (for England and Wales, Marine Insurance Act 1906, s. 18(3)(a), see Clarke 23-10C; for the Netherlands, art. 7:928 para. 5 CC). In the Swedish Act (s. 8 para. 1 of Ch. 8) the duty of spontaneous disclosure, existing only in business insurance, is limited to information of evident importance for assessment of the risk. N4. A further important limitation on the duty to disclose comes into play if an insurer does not enquire into a particular matter which most insurers (and thus the prudent insurer) would regard as material and therefore ask about. Such behaviour may be regarded exceptionally by English law as a waiver of the applicant’s duty of disclosure in particular if it forms part of the market policy of the insurer or if the insurer has conducted his own investigations (for example Clarke 23-12A). A similar position is found in Dutch law (Wansink/Kamphuisen/Kalkman-Wansink 9-10).

Duty to Answer the Insurer’s Questions N5. On the other hand, in the insurance laws of Finland, France, Germany, Greece, Poland, Spain, Switzerland and the United Kingdom as regards consumer insurance, the scope of the duty of disclosure depends on the range of the insurer’s questionnaire. In France, the insured is not obliged to any disclosure beyond his answers to the questions of the insurer, the rule of art. L. 113-2 para. 2 ICA is regarded as conclusive (Lamy Assurances, para. 278). A similar conclusive rule is found in s. 22 Finnish ICA, s. 19 para. 1 German ICA (see Wandt, paras. 789 ff.), art. 3 para.

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1(b) Greek ICA, art. 815 para. 1 Polish CC, art. 10 Spanish ICA (Bataller/Latorre/Olavarria 194, for further references, see Basedow/Fock-Schlenker 1315), art. 4 para. 1 Swiss ICA (see OG des Kantons Zürich, 11.4.1969, SVA XIII No. 16 and Maurer 251) and the UK Consumer Insurance (Disclosure and Representations) Act 2012, ss. 2 and 3.

Approximation N6. Whereas the starting points of both positions at first sight seem to be quite distinct, a certain approximation is brought about by the doctrine of waiver of disclosure in those cases where the insurer does not ask questions on points which a prudent insurer would regard as material. Therefore, the rule of Article 2:101 favours the second approach, also taking into consideration that the broad concept of spontaneous disclosure has been subject to considerable criticism in recent years (for the United Kingdom, see Clarke 23-12A and the reflection of this approach in the recasting of the duty of disclosure in commercial insurances in the Insurance Act 2015; for Germany, see Basedow/Fock-Basedow/Fock 71). In fact, the new German ICA obliges the applicant only to answer questions put to him by the insurer (cf. s. 19; Wandt, para. 785).

Article 2:102 Breach (1) When the policyholder is in breach of Article 2:101, subject to paras. 2 to 5, the insurer shall be entitled to propose a reasonable variation of the contract or to terminate the contract. To this end the insurer shall give written notice of its intention, accompanied by information on the legal consequences of its decision, within one month after the breach of Article 2:101 becomes known or apparent to it. (2) If the insurer proposes a reasonable variation, the contract shall continue on the basis of the variation proposed, unless the policyholder rejects the proposal within one month of receipt of the notice referred to in para. 1. In that case, the insurer shall be entitled to terminate the contract within one month of receipt of written notice of the policyholder’s rejection. (3) The insurer shall not be entitled to terminate the contract if the policyholder is in innocent breach of Article 2:101, unless the insurer proves that it would not have concluded the contract, had it known the information concerned. (4) Termination of the contract shall take effect one month after the written notice referred to in para. 1 has been received by the policyholder. Variation shall take effect in accordance with the agreement of the parties. (5) If an insured event is caused by an element of the risk, which is the subject of negligent non-disclosure or misrepresentation by the policyholder, and occurs before termination or variation takes effect, no insurance money shall be payable if the insurer would not have concluded the contract had it known the information concerned. If, however, the insurer would have concluded the contract at a higher premium or on different terms, the insurance money shall be payable proportionately or in accordance with such terms.

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Comments Remedies Available to Insurers C1.  The information about the circumstances surrounding the risk to be insured forms the basis of the insurers’ judgement and calculations when concluding the contract of insurance. If insurers discover later that that information was inaccurate or incomplete, they should be entitled to reconsider whether or on what terms they wish to continue to cover the risk. Accordingly, Article 2:102 para. 1 entitles insurers to terminate the contract or to propose a reasonable variation of the contract of insurance in question.

Termination (Article 2:102 paras. 2 (second sentence), 3 and 4) C2.  Insurers are entitled to terminate the contract and the cover altogether in two cases. The first is when the inaccurate or undisclosed information was so significant, namely so material to the risk that, if they had been fully and accurately informed, they would not have concluded the contract of insurance at all. In other cases, in particular when the information is less significant, insurers should not be in a position to threaten termination just in order to get a better bargain. The second case for termination is when, after the prescribed period of time, the parties to the insurance contract have been unable to agree a reasonable variation. In each case termination of the contract takes effect one month after notification. Moreover, like the corresponding provision of the Principles of European Contract Law, Article 9:305, termination under the Principles of European Insurance Contract Law, Article 2:102, takes effect not retroactively but for the future.

Variation (Article 2:102 para. 2) C3.  When insurers elect to propose a variation of the insurance contract, that variation must be reasonable and, in any event, the variation proposed is without effect unless it has been accepted by the policyholder concerned. Policyholders should be in a position to seek better terms elsewhere, when possible. Variation of the contract, when accepted by a policyholder, takes effect on acceptance or, when the proposed variation is neither accepted nor rejected by the policyholder, one month after receipt of the variation proposal. When policyholders fail to respond, it is better that there should be cover along the lines of the variation proposed than no cover at all. Variations, like termination (see Comment 2), do not have retroactive effect.

Notice (Article 2:102 para. 2) C4.  Article 2:102 para. 2 requires the insurers to elect between the remedies available within a reasonable time, which is one month, once they are aware of the breach. On the one hand, policyholders must not be kept in a position of undue doubt and uncertainty. On the other hand, insurers cannot be expected to make an instant election even with knowledge of the breach. In that regard insurers should not be obliged to check in detail the accuracy or completeness of every application. However, they should not be able to turn a blind eye to errors or omissions which are obvious from the application form itself, from what they know

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about the particular risk or in the light of information about risks of the kind in question which they know or should know. C5.  Once aware of an error or non-disclosure, insurers are not obliged to immediately notify the policyholder concerned, and that the question of sanction is under review. Usually the fact will indeed have come to the attention of the policyholder. However, when the insurer’s decision is to terminate the contract, the policyholder must be given clear notice of the decision and enough time to obtain alternative insurance cover, when available.

Discharge (Article 2:102 para. 5) C6.  The procedures provided for by Article 2:102 take time and, moreover, an error of non-disclosure may be discovered only after an insured event has occurred. Be that as it may, when the error or non-disclosure is innocent, policyholders should not be unduly prejudiced. Thus, Article 2:102 para. 5 provides that in such an eventuality the insurance money shall remain payable to a policyholder in full. The same is true when the error or non-disclosure is the product of negligence by the policyholder, as long as there is no causal connection with the loss. However, when there is negligence and a causal connection, the insurance money payable is qualified in the way set out in Article 2:102 para. 5. In case of intentional breach, Article 2:104 applies which gives the insurer the choice between the sanctions provided in Article 2:102 and avoidance of the contract under Article 2:104.

Notes The All-or-Nothing Principle N1. The consequences of a breach of the applicant’s pre-contractual duty of disclosure differ in European insurance contract laws. The most severe sanction is foreseen in the insurance laws of England and Wales, Ireland and Scotland. In the laws of these countries, the insured loses all insurance cover for the insured event even if the non-disclosure was innocent or the non-disclosure had no relation to the insured event (all-or-nothing approach; s. 18(1) of the UK Marine Insurance Act 1906 for England and Wales, see Carter v Boehm (1766) 3 Burr 1905 and Park 78; for Scotland, see Wilson/Forte-Forte, para. 858; for Ireland, see Schütte 34-35. In England, however, the severity has been tempered by clauses referred to as “non-avoidance clauses”: see Toomey v Eagle Star Ins Co Ltd (No 2) [1995] 2 Lloyd’s Rep 88; or “non-validation clauses”: Seashell of Lisson Grove v Aviva [2011] EWHC 1761 (Comm) [2012] Lloyd’s Rep IR 356: See further Clarke 23-18G. Further the all-or-nothing principle has been modified for consumer insurances by the Consumer Insurance (Disclosure and Representations) Act 2012 and should be modified for commercial insurances when the Insurance Act 2015 comes into force in 2016. N2. The insurance laws in Austria and Germany also follow the all-or-nothing approach, but limit its scope by requiring negligence or even gross negligence (Germany) of the breach and a causal link between the non-disclosure and the insured event (ss. 16 para. 3 and 21 Austrian ICA and s. 19 paras. 2 and 3 German ICA). For a similar approach, see art. 815 para. 3 Polish CC. The all-or-nothing principle is furthermore precluded if the insurer would, nevertheless, have concluded the contract, albeit under different conditions, even if it had known the non-disclosed

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circumstances, s. 19 para. 4 German ICA (see Wandt, paras. 801 ff.). Except in the case of fraud, the Dutch Civil Code applies the all-or-nothing approach only if the insurer, had it been aware of the true state of affairs, would not have concluded the insurance contract at all (art. 7:30 para. 4). In Sweden, concerning business insurance, the all-or-nothing approach is applied not only in cases of fraud and acts in contravention of good faith (as with consumer insurance), but also where the policyholder has intentionally or negligently disregarded the information duty and the insurer can prove that it would not have concluded the contract at all if the disclosure duty had been performed, s. 9 paras. 1 and 2 of Ch. 8 ICA. N3. For the legal systems which adhere to the all-or-nothing approach, it is not necessary to distinguish between the effect of non-disclosure on the insurance contract before an insured event occurred and the effect of non-disclosure after an insured event occurred as it is done in Article 2:102 para. 5: In both situations, the insurer is entitled to rescission of the contract.

The Proportional Reduction of the Insurance Money N4. Other European countries and in particular the more recent insurance laws have taken a different approach. Depending on the nature of the breach, they have opted for a proportional reduction of insurance money. These systems need to distinguish between the situations before and after the insured event occurred in order to make it possible for the insurer to terminate or adjust the contract based on wrong disclosure to the correct assessment of the risk. N5. They also differentiate between the innocent, negligent and fraudulent applicant, denying the protection of the reduction model in particular to the fraudulent applicant who does not deserve any form of protection (see Article 2:104 and corresponding notes) but granting its benefits to the negligent applicant who retains at least a proportionally reduced insurance cover. This reduction model can be found in art. 3 para. 3(c) of the Amended Proposal for a Council Directive on Insurance Contract Law and in the laws of Belgium (art. 60 IA 2014), Denmark (s. 6 ICA), France (art. L. 113-9 ICA), Finland (s. 24 para. 2 ICA), Greece (art. 3 para. 5 ICA), Italy (art. 1893 CC), Luxembourg (art. 13 ICA), the Netherlands (art. 7:930 paras. 2 and 3 CC), Portugal (art. 26 para. 4 ICA), Spain (art. 10 para. 3 ICA) and the United Kingdom (Consumer Insurance (Disclosure and Representations) Act 2012 as regards consumer insurance; a similar regime for commercial insurance is contained in the Insurance Act 2015). The Dutch Civil Code limits the scope of the reduction model in so far as the insurer has to pay in full if the facts, not or not correctly disclosed, are not material to the assessment of the risk as it has materialised (Wansink/Kamphuisen/Kalkman-Kamphuisen 31). N6. A more flexible form of the reduction model exists in the new insurance law of Sweden where the consumer insurance cover is not reduced on a strictly proportional basis but in accordance with what is reasonable in the light of the significance which the fact would have had for the insurer’s risk assessment, whether such disregard was intentional or negligent, and other circumstances (s. 2 para. 2 of Ch. 4 ICA). A somewhat similar model also applies to non-life insurance in Finland (s. 23 para. 2 ICA, according to which if the policyholder or the insured has, either wilfully or through negligence which cannot be considered slight, failed to fulfil his duty of disclosure, compensation may be reduced or refused).

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N7. Many of the aforementioned statutes also contain provisions for contract variation and/or termination which are similar to Article 2:102 paras. 1 and 2, see for example art. 60 Belgian IA 2014, art. L. 113-9 French ICA, s. 20 para. 1 Finnish ICA, s. 19 para. 4 German ICA, art. 3 paras. 3 and 4 Greek ICA and art. 13 para. 1 Luxembourg ICA. In the Dutch CC, the contract as such remains in force in the event of non-disclosure, albeit with “gaps” in the cover and it is up to the policyholder to decide to terminate it or not. The insurer may terminate the contract only in case of fraud or if it would not have concluded the contract at all, being aware of the true state of affairs (art. 7:929 CC, Wansink/Kamphuisen/Kalkman-Kamphuisen 29-30.).

Approximation N8. It should be added that the sharp differences between the positions of the insurance laws as described above do not result in equally far-reaching differences in insurance practice. This is particularly true for the United Kingdom and Ireland where the harsh position of the common law (Redgrave v Hurd (1881) 20 Ch D 1 (CA); Graham v Western Australian Ins Co Ltd (1931) 40 Ll. L. R. 64, 66, per Roche J) was, at least with regard to consumer contracts, considerably softened by the Statements of Insurance Practice issued by the Association of British Insurers and the Codes of Practice of the Irish Insurance Federation (Rühl 98-99, Basedow/Fock-Rühl 1459). In the United Kingdom it is now the focus of the Financial Conduct Authority (FCA), see ICOBS 8. The Financial Services Act 2012 abolished the previous Financial Services Authority with effect from 1 April 2013. Its responsibilities were split between two new agencies (the Prudential Regulation Authority, a division of the Bank of England, and the Financial Conduct Authority). Insurance issues as regards the conduct of business as opposed to financial regulation are now handled by the Financial Conduct Authority. Moreover, as far as doctrinal law is concerned, the position of insurance consumers was softened by the Consumer Insurance (Disclosure and Representations) Act 2012 and will be softened for business insureds under the provisions of the Insurance Act 2015 when it comes into force in 2016.

Innocent Breach N9. Finally, Article 2:102 para. 5 provides for an exception from the proportionality model in favour of an innocent applicant. The rules on contract variation and termination apply both to innocent and negligent misrepresentations – both negligent and innocent misrepresentations lead to a miscalculation of the insured risk and therefore require adjustment of the insurance contract for the future. But the rule of Article 2:102 para. 5 applies only to negligent misrepresentations and thus abandons the proportional reduction of insurance cover in favour of the innocent insured. A similar privilege for the innocent insured can be found in the insurance laws of Belgium (art. 60 para. 2 IA 2014), Finland (ss. 23 para. 2 and 24 para. 2 ICA), Luxembourg (art. 13 para. 2 ICA) and, so far as consumers are concerned, the United Kingdom (Consumer Insurance (Disclosure and Representations) Act 2012, ss. 4 and 5).

Article 2:103 Exceptions The sanctions provided for in Article 2:102 shall not apply in respect of (a) a question which was unanswered, or information supplied which was obviously incomplete or incorrect;

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(b) information which should have been disclosed or information inaccurately supplied, which was not material to a reasonable insurer’s decision to enter into the contract at all, or to do so on the agreed terms; (c) information which the insurer led the policyholder to believe did not have to be disclosed; or (d) information of which the insurer was or should have been aware.

Comments Unanswered Questions C1.  To reduce transaction costs insurers commonly require applicants to complete standard forms containing questions drafted with no particular applicant in mind. Such forms exhibit a tendency to contain more questions than are strictly necessary for insurers to reach a decision on a particular application. Thus it is not uncommon that an application is submitted with an incomplete or blank answer because, for example, the applicant is unable or unwilling to supply the information required, but that the insurer concludes the contract nonetheless. In such a case, the inference is that the answer was not material to the decision or that it was so marginal to the decision that the insurer was willing to assume that, if supplied, the information would not have been material. This is the kind of scenario envisaged by Article 2:103(a).

Immaterial Information C2.  Article 2:103(b) makes an exception for information that is not material to a reasonable insurer’s decision to enter the contract at all, or to do so on the terms agreed. Insurers are not entitled to the remedies provided for in Article 2:102 by reference to information which, they maintain, is material to them, even though it is not material to most other insurers of that kind of risk. The exception is the corollary of the rule, that is found in the law of many countries, that applicants are obliged to disclose (only) information that is (objectively) material to the risk in question. Moreover, in most countries, to be material the information in question must be sufficiently significant to be causative – in the sense that, if it had been disclosed, it would have had a certain effect on the conduct of the insurer: that the insurer would have refused to conclude the contract at all or would have done so only on different terms. The relevant effect is confirmed by Article 2:103(b). However, there is a reputable presumption underlying Article 2:101 that the information requested by the insurer’s question form is material in this sense. Note also Article 4:201, concerning aggravation of risk, in which the insurer’s rights are triggered by changes in the risk insured that are material in this same sense.

The Reasonable Insurer C3.  The “reasonable insurer”, like the “reasonable man”, is a mythical figure popular with legislators. However, whereas most people claim to have a notion of the “reasonable man”, there is less confidence about what is meant by a “reasonable insurer” and about what such an insurer is likely to regard as material. In some cases it will be obvious nonetheless. Elements of “moral hazard”, such as past convictions for criminal offences, are a clear ex-

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ample. In other less obvious cases, the expectation is that information will be sought about the practice of the insurance market in question and thus about the notion of “reasonable insurer” there. In any event, the applicant’s duty is limited by Article 2:101 to answering the insurer’s questions, with the corollary that these are matters that the particular insurer regards as material and with the presumption that the relevant insurance market would agree.

Waiver C4.  Article 2:103(c) envisages an applicant who answers an insurer’s questions with the assistance of an employee or representative of the insurer. Not uncommonly such persons’ representative advise applicants about the kind of information to be supplied in response to one or more of the questions. When applicants are advised erroneously that a certain fact does not have to be mentioned, and it is nonetheless reasonable for them to rely on that advice, the particular insurer is estopped from pleading non-disclosure on the part of the applicant. In other words, through their designated employees or representatives, insurers may be deemed to have waived the disclosure of the information in question and are not entitled to the remedies provided for in Article 2:102.

Information Known to Insurers C5.  When material information is already known to insurers, there is a rebuttable presumption that they conclude a related contract of insurance in reliance on their own knowledge rather than on what is said or not said about the matter by applicants. Good faith, mutuality and fair dealing require that such a rule apply not only to what insurers actually know but also to information that they ought to know. Moreover, such considerations also dictate that in principle the knowledge thus imputed to insurers be no less extensive than that imputed to applicants: see Article 2:101 Comments 4 to 7. For insurers, the imputation should not extend to purely paper based records, which are likely to be extensive and too costly to search. However, subject to the operation of data protection legislation, the imputation extends to information which is readily accessible and thus to in house computer data, notably records, and also to collective data compiled in cooperation with other insurers.

Effects of the Exceptions C6.  If one of the exceptions in Article 2:103 applies, an insurance contract which has been properly concluded and is not invalid on other grounds will remain in force as agreed.

Notes Obvious Defects of the Policyholder’s Answer, Article 2:103(a) N1. The rule of Article 2:103(a) reflects a kind of waiver of disclosure different from the one discussed in the notes on Article 2:101. Article 2:103(a) does not concern a waiver of disclosure in relation to facts which the insurer did not ask for (although a prudent insurer would have asked for). It rather concerns a waiver of disclosure of information the insurer asked for but did not receive or which it received with obvious gaps or errors.

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N2. This situation is dealt with both in national laws which require spontaneous disclosure and in laws which do not. Both systems seem to arrive at the same result: if the insurer concludes a contract of insurance although it is aware of incomplete or incorrect disclosure by the insured, it is deemed to have waived its right of information and consequently loses the remedies for the breach of the duty to inform (which are spelt out in Articles 2:102 and 2:104). This is true for the laws of Belgium (art. 58 para. 2 IA 2014), Finland (s. 35 para. 1 ICA), Germany (BGH 11.5.2011, Versicherungsrecht 2011, 909; BGH 25.3.1992, BGHZ 117, 385 and s. 19 para. 5(2) ICA), Greece (the third sentence of art. 3 para. 1 ICA), Luxembourg (art. 11 para. 2 ICA), the Netherlands (art. 7:928 para. 4 CC and Wansink/Kamphuisen/Kalkman-Kamphuisen 28-29), Poland (the third sentence of art. 815 para. 1 CC), Spain (Bataller/Latorre/Olavarria 195, Sánchez Calero, (art. 10) 203, for further references, see Basedow/Fock-Schlenker 1319), Sweden (s. 4 of Ch. 4 ICA), Switzerland (art. 8 no. 6 ICA) and England and Wales (Clarke 23-12B1 and 23-13). An exceptio doli is made in the case of a fraudulent applicant: he shall not benefit from the possible negligence of the insurer who does not conduct further inquiries (art. 58 para. 2 Belgian IA 2014; s. 35 para. 1 Finnish ICA; art. 3 para. 1(c) Greek ICA; art. 11 para. 2 Luxembourg ICA).

Immaterial Information, Article 2:103(b) N3. As the purpose of the duty of disclosure is to enable the insurer to assess and calculate the risk insured, circumstances which are not material to the risk (namely which would not influence a reasonable insurer’s decision to conclude the contract or to calculate the premium) are, in all legal systems, outside the duty of disclosure. This rule can be found in art. 3 para. 1 of the Amended Proposal for a Council Directive on Insurance Contract Law, s. 16 para. 1 Austrian ICA, art. 7:928 para. 4 Dutch CC, s. 35 para. 2 Finnish ICA, art. 113-2 para. 2 French ICA, s. 19 para. 1 German ICA, the first sentence of art. 3 para. 1 Greek ICA, art. 1892 para. 1 Italian CC, art. 11 para. 1 Luxembourg ICA, art. 24 para. 1 Portuguese ICA, art. 10 para. 1 Spanish ICA and art. 4 para. 2 Swiss ICA.

The Insurer’s Knowledge and Behaviour, Article 2:103(c) and (d) N4. The exceptions of Article 2:103(c) and (d) are discussed by implication in the notes on Article 2:101. A provision similar to Article 2:103(c) can be found in art. 8 no. 2 Swiss ICA, a rule similar to Article 2:103(d) in art. 3 para. 1 of the Amended Proposal for a Council Directive on Insurance Contract Law, s. 16 para. 3 Austrian ICA, art. 58 para. 1 Belgian IA 2014, s. 19 para. 4 German ICA, s. 35 para. 1 Finnish ICA, art. 11 para. 1 Luxembourg ICA and art. 8 nos. 3 and 4 Swiss ICA.

Article 2:104 Fraudulent Breach Without prejudice to the sanctions provided for in Article 2:102, the insurer shall be entitled to avoid the contract and retain the right to any premium due, if it has been led to conclude the contract by the policyholder’s fraudulent breach of Article 2:101. Notice of avoidance shall be given to the policyholder in writing within two months after the fraud becomes known to the insurer.

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Comments The Range of Remedies C1.  According to Article 2:102 para. 1 and Article 2:102 para. 3, in cases of innocent non-disclosure or inaccuracy, insurers are entitled to terminate the contract in two cases. One is when the parties have been unable to reach timely agreement on a reasonable variation. The other is when a fully and accurately informed insurer would not have concluded the contract of insurance at all. In the case of fraudulent non-disclosure or inaccuracy, as in the case of negligence, such conditions do not apply so that termination is entirely at the discretion of the insurer. The very fact that a policyholder was fraudulent in the presentation of the risk raises adverse implications about the moral hazard involved, and insurers are entitled to avoid the contract at their will.

The Impact of Fraud C2.  Fraud is not defined in the Principles of European Insurance Contract Law, however, under Article 4:107 para. 2 PECL a party’s “representation or non-disclosure is fraudulent if it was intended to deceive”. While in most countries fraud is not only a breach of morality but also a breach of the criminal law the Principles of European Insurance Contract Law consider any deliberate deception as being fraudulent. The consequences in law for contracts induced by fraud are often severe: fraus omnia corrumpit. However, the impact of fraud on the decision of insurers to contract varies widely in insurance cases, and severe consequences may not be appropriate. The applicant who states his age to be 49 rather than 50, in an application for fire insurance, may well be more foolish than fraudulent.

Avoidance C3.  In the circumstances described the effect of fraud under Article 2:104 is that the contract is not void but may be avoided at the discretion of the insurer concerned. This too is the rule for contracts in general in Article 4:107 para. 1 PECL, under which the remedy for fraud is also avoidance. Article 2:104 does not oblige insurers to avoid the contract. Insurers have the alternative remedy provided by Article 2:102 either to terminate the contract for the future or to propose a variation of the existing contract. This follows from the fact that intentional breach is more serious than innocent or negligent breach (a maiore ad minus). This is why the first sentence of Article 2:104 refers to Article 2:102.

The Position of Policyholders C4.  Article 2:104 allows insurers to avoid the contract only when they have been led to conclude the contract by the fraud of the policyholder. A similar rule is found in Article 4:107 para. 1 PECL. Fraud which has no effect on an insurer’s decision to conclude the contract, whether because the false information was inherently immaterial or because the insurer was aware that the information was false, does not carry consequences adverse to the policyholder. The requirement of causation reflects the widespread view that it is not the primary role of insurance contract law to uphold social morality with rules that are punitive.

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C5.  In the case of innocent breach of Article 2:101 when insurers exercise the right to terminate the contract, the effect is not retroactive but prospective. The policyholder in question is not required to repay the amount of honest claims previously paid under the policy. When breach is negligent insurers may demand repayment subject to the proportionality rule: Article 2:102 para. 5. In cases of fraud, however, insurers are entitled to avoid the contract of insurance with unqualified retroactive effect. In this respect Article 2:104 is once again in line with the Principles of European Contract Law, in which Article 4:107 para. 1 provides that a “party may avoid a contract when it has been led to conclude it” by the other party’s fraudulent non-disclosure; and in which Article 4:115 provides that on avoidance “either party may claim restitution of whatever it has supplied under the contract”, except that under Article 2:104 PEICL insurers are entitled to retain premium paid. Retention of premium in cases of fraud may be authorised by a term of insurance policies, a common term that has been upheld and enforced by the courts. Although in this and other respects the Principles of European Insurance Contract Law contain elements of retribution, it is mainly inspired by the goal of deterrence. A fraudulent applicant must not be allowed to think: if the fraud is successful, then I will gain; if it is unsuccessful, unless there has been an intervening loss, I will not lose. C6.  As in the case of innocent or negligent non-disclosure, in the interests of certainty for all concerned insurers are required to reach a decision within a certain time. However, whereas in the other cases insurer must decide within one month, in case of fraud policyholders are treated less sympathetically and the insurer is given more leeway: the corresponding period is two months.

Notes N1. The countries which follow the model of proportionate reduction of insurance cover in case of non-disclosure make an exception in the case of a fraudulent applicant. In such cases no need for protection is felt. Similar exceptions can be found in art. 3 para. 4 of the Amended Proposal for a Council Directive on Insurance Contract Law and in the laws of Belgium (art. 59 IA 2014), Denmark (s. 4 ICA), Finland (ss. 23 para. 1 and 24 para. 1 ICA), France (art. L 113-8 ICA), Greece (art. 3 para. 6 ICA), Italy (art. 1892 CC), Luxembourg (art. 12 ICA), the Netherlands (art. 7:930 para. 5 CC), Spain (art. 10 para. 3 ICA) and Sweden (s. 4 of Ch. 4 ICA). N2. For those countries which adhere to the all-or-nothing model and deny cover to a negligent or innocent applicant who breaches the duty of pre-contractual disclosure, it goes without saying that a fraudulent applicant will not be entitled to claim insurance cover.

Article 2:105 Additional Information Articles 2:102-2:104 shall also apply to any information supplied by a policyholder at the time of concluding the contract in addition to that required by Article 2:101.

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Comment Article 2:105 is aimed at occasions in which an applicant supplies material information even though it has not, in accordance with Article 2:101 para. 1, been the subject of clear and precise question put to him by the insurer. Policyholders are not obliged to supply additional information but, when they do so and it is material to an insurer’s decision, it must be as accurate and complete as that which is the subject of such questions.

Note The application of Articles 2:102 to 2:104 to voluntarily supplied information is a necessary implication for those insurance laws which start from the premise of a duty to disclose any material information spontaneously (Austria, Belgium, Italy, Luxembourg, Portugal and the United Kingdom; for references see the notes on Article 2:101). But also those jurisdictions which limit the scope of the duty of disclosure to the questions asked by the insurer seem to apply the sanctions if information was voluntarily supplied, as the questions only limit the duty of disclosure, but do not discharge the applicant from the duty to give true information, for example art. 5 Belgian IA 2014.

Article 2:106 Genetic Information This Section shall not apply to the results of genetic tests which are subject to Article 1:208 para. 1.

Comments C1.  Article 2:106 makes it clear that the provision in Article 1:208 para. 1 is lex specialis as regards the applicant’s pre-contractual information duties provided for by this section; see also the comments to Article 1:208.

Section Two: Insurer’s Pre-contractual Duties Article 2:201 Provision of Pre-contractual Documents20 (1) The insurer shall provide the applicant with a copy of the proposed contract terms as well as a document which includes the following information if relevant: (a) the name and address of the contracting parties, in particular of the head office and the legal form of the insurer and, where appropriate, of the branch concluding the contract or granting the cover; (b) the name and address of the insured and, in the case of life insurance, the beneficiary and the person at risk; (c) the name and address of the insurance agent; (d) the subject matter of the insurance and the risks covered; (e) the sum insured and any deductibles; 20

This provision is modelled on arts. 183 to 189 of the Solvency II Directive (2009/138/EC).

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(f) the amount of the premium and the method of calculating it; (g) when the premium falls due as well as the place and mode of payment; (h) the contract period, including the method of terminating the contract, and the liability period; (i) the right to revoke the application or avoid the contract in accordance with Article 2:303 in the case of non-life insurance and with Article 17:203 in the case of life insurance; (j) that the contract is subject to the PEICL; (k) the existence of an out-of-court complaint and redress mechanism for the applicant and the methods of having access to it; (l) the existence of guarantee funds or other compensation arrangements. (2) If possible, this information shall be provided in sufficient time to enable the applicant to consider whether or not to conclude the contract. (3) When the applicant applies for insurance cover on the basis of an application form and/or a questionnaire provided by the insurer, the insurer shall supply the applicant with a copy of the completed documents.

Comments Pre-contractual Documents in General C1.  Pre-contractual documents have become an ever more frequent means of conferring protection on consumers in general (see for example arts. 3 and 4 of the Package Travel Directive (90/314/EEC); arts. 5 and 6 of the Consumer Rights Directive (2011/83/EU); art. 3 of the Distance Marketing Directive (2002/65/EC); arts. 3 para. 1, 4 para. 1 and 5 para. 2 of the Timeshare Directive (2008/122/EC) as well as arts. 5 ff. of the Consumer Credit Directive (2008/48/EC) and applicants for insurance cover in particular (arts. 183-185 of the Solvency II Directive (2009/138/EC)); as to national legislation, see the Notes below). Pre-contractual documents help to ensure transparency for the prospective policyholder. They put such persons in a position to check the prospective contract and reach an informed decision. Above all, the scope of insurers’ information duties is further extended by current EU legislation, such as the PRIIP Regulation (1286/2014) and the proposed IDD (Insurance Distribution Directive21).

Duty to Provide an Applicant with a Pre-contractual Document C2.  In view of the policy considerations referred to in Comment 1, Article 2:201 para. 1 requires the insurer to provide the applicant with a pre-contractual document containing relevant information concerning the insurance contract under negotiation, as well as the proposed contract terms. This duty is independent of the obligation of the insurer to issue an insurance policy after conclusion of the contract (Article 2:501).

21

See the Proposal for a Directive of the European Parliament and of the Council on insurance mediation (recast) – Confirmation of the final compromise text with a view to agreement, Doc. No. 10747 / 15 of 16 July 2015, Interinstitutional File: 2012 / 0175 (COD); the Directive has, however, not yet been adopted.

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Pre-contractual Documents in Special Branches of Insurance C3.  The contents of the pre-contractual document are described by Article 2:201 para. 1 in a way that is referable to all branches of insurance. In some branches additional information is required (see for example the list of information to be given by a life insurer under art. 185 of the Solvency II Directive (2009/138/EC)). Such requirements are dealt with at a later stage within the rules specific to single branches of insurance.

Right to a Copy of the Completed Documents C4.  Applicants often complete forms provided by the insurer. Examples are the application form and the questionnaire (see Article 2:101 para. 1). Both documents are of decisive evidential value for ex-post determination of the contents of the concluded insurance contract or a possible breach of the applicant’s pre-contractual information duty (Articles 2:101 to 2:105). Therefore, the insurer is obliged to hand out copies of such completed forms to the applicant (Article 2:201 para. 3).

Form of Documents C5.  The document must be in writing. This includes means of communication that provide a record readable by both sides, as defined by Article 1:301 para. 6 PECL. In particular, messages sent by telegram, telex, telefax and e-mail are equivalent to written statements under that rule.

Notes European Directives and their Implementation N1. The Solvency II Directive (2009/138/EC), which recasts the so-called Third Generation Insurance Directives, explicitly requires that the insurer provides the prospective policyholder with certain information before entering into the contractual relationship. Similar information duties have been laid down in further EC directives that may also become relevant for insurance. This relates, in particular, to art. 5 of the Electronic Commerce Directive (2000/31/EC) and to art. 3 of the Distance Marketing Directive (2002/65/EC). The information requirements under the latter directives are not always in line with those of the insurance directives. N2. For the implementation of the information requirements of the Third Generation Insurance Directives, see for instance s. 9a paras. 1 and 3 and s. 18b para. 1 Austrian ISA; art. 30 Belgian IA 2014 in conjunction with art. 15 para. 1 of the Belgian Royal Decree of 22 February 1991 on Insurance Supervision; art. 20 para. 1-2 Dutch ISA in conjunction with the Dutch Decree on the Supervision of the Conduct of Financial Enterprises (which enables the insurer to furnish the required information later after the conclusion of the contract together with the delivery of the policy on the condition that the policyholder is granted a cooling-off period of 30 days); s. 5 para. 1 Finnish ICA (according to s. 5 para. 2, this information does not need to be provided if the policyholder does not want it or if giving the information “would pose excessive inconvenience”)

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and the Ministry of Justice Decree on Information to be provided on Life Insurance (177/2011); art. L. 112-2 French ICA; s. 7 German ICA together with the Regulation on Duties of Information Relating to Insurance Contracts of 18 December 2007; arts. 166 and 182 to 187 of the Italian Code of Private Insurance plus the rules provided in the ISVAP Regulation No. 5/2006; art. 13a of the Polish Act on Insurance Activity; art. 18 Portuguese ICA; art. 60 Spanish ISA in conjunction with arts. 104 to 107 of the Spanish Royal Decree on Insurance Supervision; and in the United Kingdom ICOBS 6. N3. Art. 3 para. 1 Swiss ICA also states that the insurer has to give the applicant specific information either by including them in the proposal form or by giving a separate document before the prospective policyholder submits his proposal. The Swedish ICA (see ss. 2 and 3 of Ch. 2 for indemnity insurance and ss. 2 and 3 of Ch. 10 for personal insurance) is similar, but it restricts this duty of information to cases where the applicant has not renounced his right to information and where the information is not impracticable to be given. Cf. also the Finnish ICA under Note 2 above.

The Kind of Information to Be Given N4. Article 2:201 para. 1 closely adheres to the policyholder information requirements of the Solvency II Directive (2009/138/EC). According to art. 183 para. 2 of the Solvency II Directive (2009/138/EC), the information duties in non-life insurance only apply if the applicant is a natural person.

Stricter Requirements under National Laws N5. Some Member States set even more demanding standards than the directives. This relates for example to Austria: s. 18b para. 1 ISA requires additional information about the insurer’s performance and the choice of the policyholder in this matter; under s. 5b para. 2(2) ICA the general insurance conditions must be provided to the policyholder. In France, the insurer must hand out either a copy of a draft contract with all its annexes or a note containing detailed information on the insurance cover, including exclusions and the duties of the policyholder, see art. 112-2 ICA. In Germany (the information must include among other items the general policy conditions, the name and address of the contracting parties, the total costs to be borne by the policyholder, including the premium and any taxes and additional fees, s. 7 ICA and the Regulation on Duties of Information Relating to Insurance Contracts of 18 December 2007). For Italy, see art. 185 of the Code of Private Insurance. In Spain, the insurer shall include the text of the general contract terms in the proposal if such a proposal exists (art. 3 para. 1 ICA); see also arts. 53, 60 and 81 ISA. In the United Kingdom, the Financial Services (Distance Marketing) Regulations 2004 implement the Distance Marketing Directive (2002/65/EC). The Regulations set minimum standards for the information that must be provided to consumers before they enter certain financial services contracts, among them contracts of insurance. Distance marketing is when there is no personal contact with the consumer, but the transaction is conducted through the Internet or by post or by telephone. See, for example, http://fshandbook.info/FS/html/FCA/ ICOBS/3/Annex2. Switzerland puts the insurer under an obligation to state the general policy conditions (the second sentence of art. 3 para. 2 ICA).

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Information Duty Drafted in General Terms N6. Contrary to the enumeration technique chosen by the respective directives and several national legislators, some legal systems merely stipulate a duty of pre-contractual information in general terms, sometimes accompanied by one or more examples, see s. 5 para. 1 Finnish ICA and s. 2 para. 1 of Ch. 2 Swedish ICA: any information needed by the applicant to assess his insurance requirements and to select the insurance shall be provided; details specifically mentioned concern the premium, insurance terms and conditions and all major exclusions from cover.

Application Form Provided by the Insurer, Article 2:201 para. 3 N7. Article 2:201 para. 3 is drafted on the model of s. 5b para. 1 Austrian ICA which requires the insurer to immediately issue a copy of the policyholder’s written application. The same rule has been adopted in Belgium (art. 64 para. 3 IA 2014), Luxembourg (art. 16 para. 3 ICA) and Greece (art. 2 paras. 2 and 4): no later than at the time of conclusion of the contract shall the insurer furnish, to the policyholder, a copy of the information previously given to the insurer by the policyholder concerning the risk to be covered. In Switzerland, too, the policyholder can demand that the insurer has to deliver a copy of the policyholder’s declarations – included in the proposal of insurance or otherwise made – on the basis of which the contract was finally concluded (art. 11 para. 2 ICA).

Article 2:202 Duty to Warn about Inconsistencies in the Cover (1) When concluding the contract, the insurer shall warn the applicant of any inconsistencies between the cover offered and the applicant’s requirements of which the insurer is or ought to be aware, taking into consideration the circumstances and mode of contracting and, in particular, whether the applicant was assisted by an independent intermediary. (2) In the event of a breach of para. 1 (a) the insurer shall indemnify the policyholder against all losses resulting from the breach of this duty to warn unless the insurer acted without fault, and (b) the policyholder shall be entitled to terminate the contract by written notice given within two months after the breach becomes known to the policyholder.

Comments General Remarks C1.  Insurance contracting is typically characterised by inequality of knowledge and experience as between the insurer and the policyholder. Such inequality may give rise to duties to inform the other party under general European contract law (see Article 4:107 PECL). Article 2:202 aims at establishing a general pre-contractual duty on the part of the insurer to assist the applicant by providing information relevant to the applicant’s choice of cover.

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Duty to Assist the Applicant C2.  The duty of assistance concerns areas where the insurer can usually be considered an expert. In general, insurers are experts as to the evaluation of risks as well as to the contents of their insurance policy. This is why Article 2:202 para. 1 obliges the insurer to warn the applicant about aspects of the proposed risk not covered by the policy. C3.  The duty of assistance is limited to situations where the insurer had reason to know about gaps in cover referred to in Comment 2, because the actual risk situation of the applicant was apparent to the insurer or where such a gap should reasonably have been anticipated by the insurer. C4.  The scope of the duty of assistance is to be determined in the light of all circumstances of the particular case. This is why Article 2:202 para. 1 refers to the circumstances and mode of contracting. Several aspects may be relevant:

a. The information duties of the insurer will be more extensive if there are face to face negotiations between an applicant and an agent representing the insurer. In this context reference should be made to art. 12 para. 3 of the Insurance Mediation Directive (2002/92/EC) as amended by art. 91 of MiFID2 (2014/65/EU), according to which insurance intermediaries (including agents) “shall at least specify, in particular on the basis of information provided by the customer, the demands and needs of that customer as well as the underlying reasons for any advice given to the customer on a given insurance product. These details shall be modulated according to the complexity of the insurance contract being proposed”. b. Consideration should be given to whether or not the applicant is professionally advised by an insurance broker. If so, the insurer may assume that the applicant is well advised by the broker and duties of assistance will arise only in exceptional circumstances. This is why the example of negotiating through an insurance broker is specifically mentioned in Article 2:202 para. 1. c. The duties to warn will be less extensive if there are no face to face negotiations between the applicant and the insurer or an agent representing the insurer. Under such circumstances the insurer will only be able to give fairly routine assistance. A similar position is taken in the Distance Marketing Directive (2002/65/EC). In particular, according to art. 3 para. 1(2) (a), the insurer has to provide the consumer with “a description of the main characteristics of the financial services”. d. Furthermore, the pre-contractual duties of the insurer may be limited if the mode of contracting does not entitle the applicant to expect assistance. This may be the case when insurance products are sold in a supermarket and it is clear that the retailer of such products is not primarily involved in the marketing of insurance. However, consideration should also be given to whether such a way of marketing insurance policies is appropriate in the light of the complexity of the insurance product at stake. In particular, if fund linked life assurance policies (with the possibility of losing the investment) are sold, a warning about the nature of such insurance and the extent of the risks involved needs to be provided, irrespective of

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the way of such policies are marketed. Reference should be made, however, to art. 1 para. 2 of the Insurance Mediation Directive (2002/92/EC) as amended by art. 91 of MiFID2 (2014/65/ EU). According to that provision professional standards should not be applied to persons whose principal professional activity is other than advising on and selling insurance, if the insurance policies sold are not complex and marketing them does not require any general or specific knowledge.

Consequences of Failure to Assist C5.  Lack of the requisite information may ultimately lead to insufficient insurance cover for the policyholder (in some cases it may also lead to over-insurance or undesired coverage). In such cases, under general contract law the party that has a right to be informed appropriately may rescind the contract (see, for example, Article 4:107 PECL: “avoidance”) or sue for damages. In some countries insurance laws provide for modification of the insurance contract in accordance with the reasonable expectations of the policyholder.

Damages C6.  Article 2:202 para. 2(a) establishes a right of the policyholder to damages. The insurer will have to pay the policyholder the amount of money that will put him in the position he would have been in, had he been duly warned by the insurer. The insurer will be relieved of the obligation to pay damages only if it proves that there was no fault on its part. C7.  Damages might become payable in various circumstances. In some cases the policyholder would have bought alternative insurance cover had he known that a particular risk was not covered under the policy in question. In other cases, for example if a risk is not insurable in the market, the policyholder might have refrained from engaging in activities involving the risk; of course this would have to be proved. Article 2:202 para. 2(a) does not specifically deal with the burden and standard of proof. However, it is an established practice of the courts throughout the Member States of Europe to ease the burden of proof on the policyholder by presuming or at least accepting a prima facie case that the policyholder would have reacted in a reasonable manner had he been warned by the insurer. Therefore, it may be assumed that the policyholder would have been ready to buy additional cover if it was available at a reasonable price in the market. C8.  If an insurer finds out about a breach of its duty to warn after the making of the contract, it may perform its duty at that time. If then the policyholder does not respond (for example by buying additional cover), there will be no further liability for damages on the part of the insurer.

Termination C9.  Article 2:202 para. 2(b) gives the policyholder a right to terminate the contract. Termination will have no retroactive effects.

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Notes Community Law N1. The pre-contractual information duties of the insurer can basically be divided into two subcategories: the duty to inform about the insurance policy in general and the duty to advise the insured in respect of his individual requirements of insurance in particular. Whereas the former is dealt with in the section on the insurance policy (Articles 2:501 and 2:502), the latter is subject to Articles 2:201 to 2:203. The insurance directives of the European Community so far only deal with the information duty concerning the insurance policy in general and do not regulate the duty to advise the insured about his particular needs. An exception can be seen in the Insurance Mediation Directive (2002/92/EC) (as amended), but this Directive only applies to the duties of insurance intermediaries and does not stipulate a duty to advise for the insurer (see art. 12 of the Directive). In the neighbouring field of investment services, art. 25 para. 2 of MiFID2 (2014/65/ EU) requires investment firms providing advise to the investor on investment services and financial instruments to test any investment recommended for its suitability to the investor. While MiFID2 (2014/65/EU) has amended the Insurance Mediation Directive (2002/92/EC), it does not apply to insurance undertakings (art. 2 para. 1(a) of that Directive). However, the situation may change with an enactment of the proposed Insurance Distribution Directive. This Directive is proposed to apply to insurers in cases of direct marketing and provides for duties of advice in particular for so called insurance based investment products (see art. 25 IDD as proposed by the Presidency / ​General Secretariat of the Council on 16 July 2015).

National Law N2. The laws of the Member States differ as to the duty of the insurer – as opposed to the insurance intermediary – to provide advice on the suitability of the insurance for the needs of the insured. Three legislative model solutions can be discerned. The laws of Germany (s. 6 para. 1 ICA), Sweden (s. 2 of Ch. 2 and s. 2 of Ch. 10 ICA, Basedow/Fock-Scherpe 926 and Bengtsson 206-208) and the rules in the FCA Handbook in the United Kingdom. Detailed guidance on the question of suitability is set out, for example, in ICOBS, which imposed more general duties to provide “product information”. See ICOBS 6.1. ff. N3. In other countries the courts require the presence of particular circumstances. This is the case in Austria (OGH 28.3.2012, 7 Ob 100/11y; OGH 30.11.1989, Versicherungsrecht 1991, 87, OGH 10.5.1984, Versicherungsrecht 1985, 1099 (1100)) and France (Cass. civ. 2.10.1984, Bull. Civ. I n° 241; Cass. civ. 1.12.1989, RGDA 1999, 335 (336); for further references, see Basedow/ Fock-Völker 476 ff.) where such a duty is imposed if the insured had expressly stated a special need for insurance or if it is apparent that his perception of the insurance cover is misconceived. In Italy, a similar duty is imposed on both intermediaries and insurers (art. 183 of the Code of Private Insurance). N4. In a third group of legal systems no such duty seems to exist at all, at least not in a binding form. This relates to Greece, but only as regards the specific provisions of the Insurance Contract Law, (see Basedow/Fock-Papathoma-Baetge 583 ff.), to Spain (see Basedow/Fock-Schlenker 1291) and to Switzerland (see Honsell/Vogt/Schnyder-Fuhrer art. 34 VVG paras. 46, 137). See also the interesting approach in art. 811 para. 1 Polish CC. In other jurisdictions, it has at least not been

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considered at large in legal debate (for example in Belgium, see Basedow/Fock-Fock 241 and in the Netherlands, see Wansink, Het Verzekeringsarchief 2009 3-28). N5. The solution which is proposed in Article 2:202 reflects a compromise solution between the extremes. The duty to give advice is limited to circumstances in which the insurer can foresee or reasonably could have foreseen that the cover provided will not be adequate for the needs of the insured. In this appreciation of all relevant circumstances, the mode of contracting and in particular the involvement of an independent intermediary who is obliged to advise the insured under art. 12 of the Insurance Mediation Directive (2002/92/EC), as amended, are taken into account.

Sanctions N6. Those statutes which impose a duty to advise the insured about inconsistencies between the cover offered and his individual requirements of insurance generally provide for some form of sanction in case of breach of that duty. Under the new German law, an insurer who breaches its obligation to give advice has to compensate the policyholder for any loss resulting from that breach, unless the insurer acted without fault (s. 6 para. 5 ICA). Under the Swedish Act, the insurer cannot rely on particularly important information that should have been but has not been provided to the consumer according to s. 4 of Ch. 2 ICA (s. 8 of Ch. 2 ICA). N7. Austrian law sanctions a breach of the duty to inform on the basis of its general civil law concept of culpa in contrahendo. As a consequence, the insured can claim compensation for the lack of insurance cover resulting from the breach of the duty to inform. The liability arising from culpa in contrahendo requires fault on the side of the insurer who is responsible for any auxiliary personnel (s. 1313a CC). French law, on the other hand, invokes tort law in order to sanction a breach of a duty to inform or to warn the insured (art. 1382 CC, Fil 109-117). The liability under art. 1382 CC requires fault, but the insurer is held responsible for his intermediaries and agents as préposés (art. 1384 para. 5 CC, art. 511-1 ICA). N8. In Austrian, German and French law the indemnification for lack of insurance cover is regarded as (either quasi-contractual or delictual) compensation. N9. The law of the United Kingdom enforces the duty to inform and consult with the instruments of public law (for example financial penalties or limitation/withdrawal of the permission to carry on regulated activities, see the enforcement section of the FCA Handbook) and the procedures of the Financial Ombudsman Bureau which may lead to the Ombudsman ordering fair compensation for the insured (Basedow/Fock-Rühl 1406, 1408, 1412 f., s. 229 of the UK Financial Services and Markets Act 2000).

Article 2:203 Duty to Warn about Commencement of Cover If the applicant reasonably but mistakenly believes that the cover commences at the time the application is submitted, and the insurer is or ought to be aware of this belief, the insurer shall warn the applicant immediately that cover will not begin until the contract is concluded and, if

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applicable, the first premium is paid, unless preliminary cover is granted. If the insurer is in breach of the duty to warn it shall be liable in accordance with Article 2:202 para. 2(a).

Comments Problems of Commencement of Cover in Practice C1.  Application forms contain questions as to when the cover sought is to begin. The applicant commonly enters the day of making the application as the desired commencement date, because the risk usually exists at the time when the application is made. Applicants often believe themselves to be automatically insured once they have signed the application form. Such belief is supported by the fact that insurers often grant preliminary cover but it may turn out to be a seriously mistaken belief if the insurer does not grant preliminary cover in the specific case. Moreover, agents often assist applicants in filling out the application form. As long as the agent does not respond negatively to an applicant’s request for immediate cover, the applicant will consider the silence of the agent as confirmation of his belief that he enjoys cover as of the time of signing the application.

Duty to Warn C2.  A request for immediate cover implies a tacit request for preliminary cover and requires immediate response by the insurer. This is why the first sentence of Article 2:203 obliges the insurer either to grant such cover or to warn the applicant about the lack of cover as long as the insurance contract is not concluded and, if applicable, the first premium is not paid (see Article 5:101). Article 2:203 is a special case of the general duty of the insurer to warn the applicant about gaps in the insurance cover and, therefore, leads to the same sanctions (see Article 2:203 referring to Article 2:202 para. 2).

Notes Community Law N1. Under European law, the most detailed list of information duties so far is in art. 185 of the Solvency II Directive (2009/138/EC) concerning life insurance. In its para. 3 b), the information on the commencement of cover is only referred to indirectly by the obligation incumbent upon the insurer to inform about the “term of the contract” (see also Article 2:201 and the notes).

The Sanction of Immediate Cover N2. The duty established by Article 2:203 resembles s. 1a para. 2 Austrian ICA. This requires that the applicant who, in order to apply for insurance cover, uses a standard form issued by the insurer, shall be indemnified by the insurer for losses occurring before the contract is concluded if the insurer cannot prove that it had warned about the (later) commencement of cover.

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N3. Under Swedish law, the situation for the applicant differs insofar as the law, if not agreed upon otherwise by the parties, prescribes the commencement of the insurer’s obligation to indemnify the applicant to start the day after the applicant has either sent off the application or has received an offer by the insurer (s. 2 para. 2 of Ch. 3 ICA). As a consequence, a gap in cover is unlikely. However, the rule is modified when the commencement of the cover is made contingent upon the policyholder’s payment of the premium. Then, the cover only commences the day after the premium has been paid.

Incomplete and Unclear Sanctions N4. Under the new German law, the insurer is required to inform the applicant about the commencement of cover (s. 7 ICA and s. 1 para. 1(12) of the Regulation on Duties of Information Relating to Insurance Contracts of 18 December 2007). In case of breach of the duties listed in that regulation, the period allowed for avoidance in s. 8 does not commence. While no indemnification of the applicant is prescribed by the ICA, a right to damages may follow from general principles of contract law (Wandt, para. 287). N5. In other countries, the provisions requiring the insurer to provide information on the terms of the contract do not explicitly refer to the situation underlying Article 2:203; see for example for Finland, s. 5 ICA; for France, art. 112-2 ICA; for Greece, art. 2 para. 6 ICA and art. 4 para. 2(h) and para. 3(d) of the Legislative Decree on Insurance Undertakings; for Belgium, art. 15 of the Royal Decree of 22 February 1991 on Insurance Supervision; and for Luxembourg, art. 10 para. 1 ICA. The sanctions for breach of those duties are not explicitly set forth in the respective laws but would result from principles of general contract law.

Section Three: Conclusion of the Contract Article 2:301 Manner of Conclusion An insurance contract shall not be required to be concluded or evidenced in writing nor subject to any other requirement as to form. The contract may be proved by any means, including oral testimony.

Comments The Principles of European Contract Law C1.  The rules of insurance contract law are not the same as those of general contract law, although in most countries the latter to a certain extent are used and applied in insurance contract law. This is particularly the case regarding the formation of contract. Many of the provisions of the Principles of European Contract Law concerning this part of European contract law (Articles 2:101 to 2:302) can be applied to insurance contract law. In this way a desirable simplification is attained. C2.  Attention has to be paid, however, to the possibility that there are provisions of the Principles of European Contract Law on the formation of contract that are not always ap-

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propriate for insurance contracts. After all, the Principles of European Insurance Contract Law do not generally have the same goals or constituency as the Principles of European Contract Law. C3.  Articles 2:301 and 2:302 illustrate the point. Article 2:301 adopts Article 2:201 para. 2 PECL because a mandatory provision is needed in insurance contract law. Article 2:302, however, deviates from the Principles of European Contract Law, aiming to increase the protection of the applicant in a way that would not have been the case if the corresponding rule of the Principles of European Contract Law were applied.

Agreement C4.  The main rule of general contract law in Europe is that it is enough for contract formation that the parties reach agreement. With the exception of some specific types of contract, there are no rules requiring a contract to be concluded in or evidenced by writing or in any other way. To write a contract might be quite natural, but the conclusion of the contract normally takes place before the parties record it in writing. C5.  The same ought to apply to insurance contracts. In a few European countries some kind of form is required for the insurance contract to be valid, but there is no reason to implement a rule of this kind at the European level. Moreover, it is important and socially desirable that insurance cover can be put in place as quickly as possible after the decision of the applicant to apply for insurance and the agreement of the parties. Observance of formalities will cause delay.

Ways of Concluding an Insurance Contract C6.  Since there is no requirement of form for an insurance contract, agreement can be oral or in writing. The latter can be effected by post, fax or electronically. Nothing prevents the insurer and the applicant choosing different ways. So, for instance, the applicant might propose insurance by telephone, while the acceptance by the insurer might be given in a letter sent by post. C7.  Normally the conclusion of an insurance contract presupposes activity by both parties. But there are also situations where the inactivity of one of them could lead to such conclusion. A situation of this kind could arise where, although no insurance contract is in fact concluded, the applicant believes the opposite and the insurer has reason to suspect this mistake without doing anything to correct it. Such an infringement of good faith towards a negotiating party, who, because of his mistake never considers taking alternative insurance, might result in the conclusion of an insurance contract.

Insurance Contract C8.  An insurance contract is concluded if the parties intend to be legally bound, and they reach a sufficient agreement: this is the rule in Article 2:101 PECL, which applies equally to insurance contracts. The decision whether there has been an intention to be legally bound must be taken from an objective point of view. If the insurer or the applicant afterwards

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asserts that they never had that intention, the starting point lies with the other party’s expectations. What could reasonably had been understood by the statements and conduct of the party denying intention will, together with the demand for a sufficient agreement, determine whether a contract has been concluded or not: see Article 2:102 PECL. C9.  It is not possible to give a satisfactory formulation covering all the cases where sufficient agreement has been reached by the parties. The existence of such agreement has to be sought from case to case. For the conclusion of a contract according to Article 2:301, however, the parties cannot be expected to know all the details of the cover and its price. In principle it is enough that the parties know what kind of insurance is intended. The social importance of insurance implies that the degree of agreement required cannot be as high as in general contract law.

Mandatory Character C10.  Article 2:301 closely follows Article 2:101 para. 2 PECL. However, contrary to the Principles of European Contract Law, the Principles of European Insurance Contract Law do not leave the parties free to agree the form in which the contract is to be concluded. An agreement between the insurer and the applicant that a special form has to be observed by them for an insurance contract to be concluded is meaningless from the point of view of the conclusion of the contract. The very agreement on form proves that the parties intended to be legally bound. C11.  For example, an applicant, who wants to take fire insurance, agrees on 1 September with the insurer that a certain form of agreement has to be observed before there is an insurance contract. This is to be recorded on a form agreed on 10 September. The applicant’s house is burnt down on 9 September. The conclusion of the contract, however, took place on 1 September, and the applicant is probably (see Comment 7 above) protected by the fire insurance, although the particular form agreed to was not completed in time.

Proof C12.  In the Principles of European Contract Law the main rule is immediately followed by the rule that the contract may be proved by any means, including witnesses: the second sentence of Article 2:101 para. 2. There is a need to repeat this rule in the Principles of European Insurance Contract Law, since one cannot rule out the possibility of agreement between the insurer and the applicant that proof of the contract by some means should not be valid unless witnessed. Such an agreement is not valid.

Notes A Matter of General Contract Law N1. References to general contract law are common in national laws with regard to the formation of the insurance contract. This is true for Austria (Basedow/Fock-Lemmel 1014), for Belgium (Basedow/Fock-Fock 233), for Denmark (Basedow/Fock-Scherpe 290), for France (Basedow/Fo-

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ck-Völker 465-466), for Germany (Basedow/Fock-Lemmel 321: the reference to the Civil Code and Commercial Code for issues not regulated in the ICA is also valid for the new ICA), for Greece (Basedow/Fock-Papathoma-Baetge 577, Chatzinikolaou-Aggelidou, Simvasi 195 ff., Rokas, paras. 238 ff. and Rokas, Eisigiseis paras. 62 ff.), for Ireland (Basedow/Fock-Rühl 1393), for Italy (Basedow/Fock-Brunetta d’Usseaux 666), for the Netherlands (Basedow/Fock-Fock 828), for Poland (Kowalewski 239), for Portugal (see art. 4 ICA referring to the subsidiary application of the general rules of civil and commercial law), for Sweden (Basedow/Fock-Scherpe 920, also valid for the new ICA) and for the United Kingdom (Birds 5.1 ff., Clarke 11-1).

Consensual Contract N2. The insurance contract is generally considered as a consensual contract which is formed by the consent of the parties, no special form being required (see for Austria, Basedow/Fock-Lemmel 1018; for Denmark, Basedow/Fock-Scherpe 923-924; for Finland, Basedow/Fock-Scherpe 923924 and Hoppu/Hemmo 90-96; for France, Lamy Assurances, para. 443 and Basedow/Fock-Völker 469; for Germany, Basedow/Fock-Lemmel 326; for Greece, Basedow/Fock-Papathoma-Baetge 580, Chatzinikolaou-Aggelidou, Simvasi 196 ff. and Rokas, paras. 237 ff.; for Ireland, Basedow/ Fock-Rühl 1399; for Italy, Cerini 65; for the Netherlands, Basedow/Fock-Fock 830; for Poland, Kowalewski 242; for Spain, Bataller/Latorre/Olavarria 179, Bataller/Veiga 523 and Basedow/Fock-Schlenker 1288; for Switzerland, Basedow/Fock-Bälz 1212; for Sweden, Basedow/Fock-Scherpe 923-924; for the United Kingdom, Birds 5.1 ff. and Basedow/Fock-Rühl 1399; see however for Scotland, Article 2:501 Note 9. Moreover for marine insurance a policy is required: s. 22 of the UK Marine Insurance Act 1906; and when insurance is contracted electronically an accessible form is required: regulation 6 of the UK Electronic Commerce (EC Directive) Regulations 2002. N3. Even where special rules require written form or consider the policy as an equivalent to the insurance contract, these rules are not meant to establish written form as a condition for a valid insurance contract (see for Austria, Basedow/Fock-Lemmel 1018; for Belgium, Basedow/ Fock-Fock 238 and Cousy/Schoorens 95; for Italy, Basedow/Fock-Brunetta d’Usseaux 671). Such provisions would in general rather be part of the law of evidence. N4. The consensual character of the insurance contract does not withstand the imposition of the duty on the insurer to provide certain pre-contractual information to the policyholder/applicant nor is the consensual nature of the contract impaired by the insurer’s obligation to issue a policy. The breach of those obligations does not invalidate the contract, but is rather considered as a breach of contractual or pre-contractual obligations arising in view of the conclusion of, or from, the insurance contract. For such obligations flowing from national law, see the notes on Articles 2:201 and 2:501. It is however true that the imposition of pre-contractual information duties makes the conclusion of the insurance contract without the observation of any form whatsoever de facto difficult (see Basedow/Fock-Lenzing 156 with regard to the EC directives).

Article 2:302 Revocation of an Application for Insurance An application for insurance may be revoked by the applicant if his revocation reaches the insurer before the applicant receives an acceptance from the insurer.

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Comments An Application for Insurance C1.  An application for insurance is usually a proposal to conclude an insurance contract. To be effective the proposal must show an intention to be legally bound and contain proposed terms which are sufficiently definite. If the proposal is accepted by the insurer there is a contract. As the conclusion of the contract needs no particular form, acceptance can be given orally, by post, electronically or in any other way; see Article 2:301.

Revocation by the Applicant C2.  Before the application for insurance reaches the insurer it may be withdrawn by the applicant. However, even after it has reached the insurer the applicant may be able to revoke his application. Article 2:302 prescribes that this must be done at the latest before he receives the acceptance of the insurer. C3.  Article 2:202 para. 1 PECL is not as generous to the applicant as is Article 2:302. According to the former the crucial moment before which a revocation must be effected is dispatch of the acceptance. Applied to insurance law this rule would imply that the applicant would be unable to revoke his application after that. This would normally not be a problem if acceptance was given orally or sent by e-mail, since the arrival of the acceptance here comes close to the moment of dispatch. But the situation is different when the insurer’s acceptance is sent by post and the rule in Article 2:302 is different too.

Time for the Arrivals of Revocations and Acceptances Sent Electronically C4.  A revocation sent electronically arrives when it reaches the insurer’s server. Correspondingly, an acceptance arrives when it reaches the applicant’s server. This rule is justified; because of the previous application both parties can be expected to check their e-mails. The same rule may not be appropriate for all other kinds of notices.

Art. 15 of the UNCITRAL Model Law on Electronic Commerce: Article 15. Time and place of dispatch and receipt of data messages (1) Unless otherwise agreed between the originator and the addressee, the dispatch of a data message occurs when it enters an information system outside the control of the originator or of the person who sent the data message on behalf of the originator. (2) Unless otherwise agreed between the originator and the addressee, the time of receipt of a data message is determined as follows: (a) if the addressee has designated an information system for the purpose of receiving data messages, receipt occurs: (i) at the time when the data message enters the designated information system; or (ii) if the data message is sent to an information system of the addressee that is not the designated information system, at the time when the data message is retrieved by the addressee; (b) if the addressee has not designated an information system, receipt occurs when the data message enters an information system of the addressee. 132

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(3) Paragraph (2) applies notwithstanding that the place where the information system is located may be different from the place where the data message is deemed to be received under paragraph (4). (4) Unless otherwise agreed between the originator and the addressee, a data message is deemed to be dispatched at the place where the originator has its place of business, and is deemed to be received at the place where the addressee has its place of business. For the purposes of this paragraph: (a) if the originator or the addressee has more than one place of business, the place of business is that which has the closest relationship to the underlying transaction or, where there is no underlying transaction, the principal place of business; (b) if the originator or the addressee does not have a place of business, reference is to be made to its habitual residence. (5) The provisions of this article do not apply to the following […].

Effectiveness of Revocation C5.  According to Article 2:202 para. 3 PECL a revocation of an offer is ineffective in some cases, for instance if the offer states a fixed time for its acceptance. This rule is not suitable for the revocation of an application for insurance. It follows from Article 2:303 PEICL that restrictions on the freedom to revoke an application for insurance are not valid as long as there is no acceptance on the part of the insurer. The applicant might have an interest in contracting alternative insurance cover. Although directly or indirectly the applicant might have promised not to revoke the application before acceptance by the insurer, he is free to do it. This means that the only way of avoiding revocation is for the insurer to effect its acceptance as quickly as possible.

Notes The Roles of Offeror and Offeree N1. Legislative rules about how the roles of offeror and offeree are settled are normally not given. However, practice and jurisprudence give some answers as to the normal model. Most countries regard the applicant as the offeror, while the insurer is the offeree. This is the situation in Austria (see Basedow/Fock-Lemmel 1014), France (see Basedow/Fock-Völker 466), Germany (see Basedow/Fock-Lemmel 321), Greece (see Basedow/Fock-Papathoma-Baetge 577 and Rokas, Eisigiseis paras. 62 ff.), Ireland (see Basedow/Fock-Rühl 1393), Italy (see Basedow/Fock-Brunetta d’Usseaux 667), the Netherlands (Basedow/Fock-Fock 828), Poland (see Kowalewski 239-240) and the United Kingdom (see Rust v Abbey Life Assurance Co [1978] 2 Lloyd’s Rep 386; The Zephyr [1984] 1 Lloyd’s Rep 58, 72, per Hobhouse J.; Basedow/Fock-Rühl 1393). But this is just a mode reflecting the typical way of contracting; it is subject to exceptions. The model appears to be more open, allowing both parties to adopt the role of the offeror or offeree, in Denmark, Finland and Sweden (cf. Basedow/Fock-Scherpe 920-921 and for Sweden Bengtsson 23), the Netherlands (see Basedow/Fock-Fock 828) and Switzerland (see Basedow/Fock-Bälz 1209), although at the end of the day in all these countries the applicant is considered to be the offeror in the normal case. The type of insurance involved as well as the particulars of the process of acceptance by the insurer may vary the normal model.

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N2. A clear exception can be found in Belgium, where the insurer is considered to be the offeror who sends the policy contract to the applicant. By signing the policy, the applicant concludes the contract (see Fontaine, para. 112; Basedow/Fock-Fock 233). In order to accelarate the contracting process, insurance practice appears to make use of policies which the insurer has signed before even knowing the identity of the applicant and his particular risk; such pre-signed policies become binding when the applicant signs them, see art. 4 para. 2 IA 2014. While the rules of the insurance contract act reflect these practices they apparently do not exclude different ways of formation of the insurance contract (Basedow/Fock-Fock 238).

The Binding Nature of an Offer N3. National contract laws differ as to whether and at what point in time an offeror is bound by the offer made. While the laws of German and Nordic tradition generally consider the offer as binding, those of romanic and common law tradition mainly decline such legal effect, unless it is explicitly stipulated. As a consequence, admitting a revocation has very different significance in these two groups of countries: where an offer is binding, a revocation tends to be considered as a disturbance. Where the offeror remains free as a matter of law, he simply makes use of a right he has anyway. N4. An offer to take or to give insurance is not binding in Ireland (see Basedow/Fock-Rühl 1394) and in the United Kingdom (see Canning v Farquhar (1886) 16 QBD 727; Basedow/Fock-Rühl 1394). France has taken the same stance, although under general French contract law the offeror is bound for a reasonable time to maintain his offer (see Basedow/Fock-Völker 467). In the Netherlands, the offer of the applicant is not binding unless it includes a term for acceptance, or irrevocability results otherwise from the offer (see Basedow/Fock-Fock 829). In these countries the latest point in time for the revocation is generally considered to be the acceptance of the offer (see for France Basedow/Fock-Völker 467). In Portugal, the proposal is irrevocable after having been received by or known to the insurer (this is a general rule of contract law, art. 230 CC). N5. The opposite rule, namely the binding character of the insurance offer, can be found in Austria (see Basedow/Fock-Lemmel 1014), Denmark (see Basedow/Fock-Scherpe 921; Lando/ Beale 167), Finland (see Hoppu/Hemmo 91-92 and Lando/Beale 167), Germany (s. 145 CC, see Basedow/Fock-Lemmel 321-322), Greece (see Basedow/Fock-Papathoma-Baetge 578 and Rokas, Eisigiseis paras. 62 ff.), Poland (see art. 66 CC), Sweden (cf. Lando/Beale 167), Switzerland (art. 1 paras. 1 and 2 ICA: the applicant is bound to his offer for a period of 14 days, or four weeks if a medical check is requested, see Basedow/Fock-Bälz 1210). In Italy, where the principal rule of general contract law declines a binding nature of an offer (art. 1328 CC), there is an exception for offers given by applicants of insurance. Here the applicant is bound to his offer for a period of 15-30 days; due to counter-exceptions for life assurance, the practical application of this rule is essentially for indemnity insurance (see art. 176 of the Code of Private Insurance for life assurance and Basedow/Fock-Brunetta d’Usseaux 668-669). N6. Belgium represents a mixed system: while the applicant’s proposal for insurance is explicitly declared to be non-binding (art. 4 para. 1 IA 2014), the insurer’s offer incorporated in the policy sent to the applicant is said to be irrevocable for a reasonable time (see Fontaine, para. 113). A system according to which the insurer is bound by his offer for 15 days, while the applicant is not, also exists in Spain (see Bataller/Latorre/Olavarria 178 and Basedow/Fock-Schlenker 1285).

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Article 2:303 Cooling-off Period22 (1) The policyholder shall be entitled to avoid the contract by giving written notice within two weeks after receipt of acceptance or delivery of the documents referred to in Article 2:501, whichever is the later. (2) The policyholder shall not be entitled to avoid the contract when (a) the duration of the contract is less than one month; (b) the contract is prolonged under Article 2:602; (c) it is a case of preliminary insurance, liability insurance or group insurance.

Comments Introduction C1.  The Solvency II Directive (2009/138/EC) and the Distance Marketing Directive (2002/65/EC) provide a model for a cooling-off period. In principle, Article 2:303 follows this model. C2.  The object of granting the policyholder a cooling-off period is to give him a period of time after receipt of all material information, including the standard terms, in order to appraise the contract of insurance offered to him and hence make a well-informed decision whether it meets his needs.

Structure of the Rule C3.  Article 2:303 para. 1 entitles the policyholder to avoid the contract by giving notice in writing within a cooling-off period of two weeks. However there are circumstances where the granting of a cooling-off period is not appropriate for the type of insurance in question or because in certain important situations third parties would be harmed by the exercise of a right to withdraw. The relevant types of insurance are listed in Article 2:303 para. 2.

Avoidance C4.  In accordance with the Distance Marketing Directive (2002/65/EC) a choice is made in favour of retroactive avoidance of the contract: the policyholder is entitled to avoid the contract ab initio. The consequences of avoidance are governed by Article 4:115 PECL: either party may claim restitution of whatever it has supplied under the contract, provided it makes concurrent restitution of whatever it has received. In relation to insurance it means the insurer is entitled to restitution of any payment of insurance money while the policyholder is entitled to restitution of any payment of premium. The insurer is not entitled to claim reimbursement of any expenses in relation to the conclusion of the contract.

22

This Article is modelled on the Distance Marketing Directive (2002/65/EC).

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Commencement of the Cooling-off Period C5.  Inherent in having a cooling-off period is that it should not begin before the policyholder has received the information necessary to properly appraise the contract of insurance and hence make a well-informed decision whether it meets his needs. As to the information required reference is made to the documents mentioned in Articles 2:201 and 2:501.

Timeliness of Notice to Withdraw C6.  In line with the Distance Marketing Directive (2002/65/EC) it is enough that the notification is sent before the deadline expires.

The Exceptions to the General Rule C7.  As already mentioned above, there are circumstances where the granting of a cooling-off period is inappropriate given the character of the cover agreed. There are two particular groups where this is the case: The first group includes cases where cover has been granted for very short periods, see below Comments 8 to 10. In a second group of cases avoidance of the contract by the policyholder may do harm to third parties who may rely on the existence of cover, see below Comments 11 to 13. These considerations underlie the enumeration of exceptions to the policyholder’s right of avoidance contained in para. 2. Insurance services are financial services for the purposes of the Distance Marketing Directive (2002/65/EC). In so far as insurance contracts are agreed upon as distance contracts within the meaning of that Directive, the policyholder has a right to withdraw from the contract within 14 calendar days, see art. 6. While the Directive provides for some exceptions from this basic rule of withdrawal, the list laid down in Article 2:303 para. 2 does not simply copy the exceptions of the Directive. As will be explained below, the Directive insufficiently takes account of some particular features of certain insurance contracts which require further exceptions. C8.  The exception laid down in para. 2(a) is justified by the short duration of the contract. In short term insurance contracts a right of avoidance would create a disproportionate uncertainty about the validity of the contract. Moreover, the policyholder is not substantially prejudiced due to the low premiums for such short term contracts. Art. 6 para. 2(b) of the Distance Marketing Directive (2002/65/EC) contains a similar exception. C9.  Preliminary cover is equally of a short duration. In some Member States it will be agreed for a fixed term of two weeks, four weeks or two months, in others it is of unlimited duration, but agreed with the understanding that it will end as soon as the main insurance contract takes effect after a short lapse of time. The taking out of preliminary cover may be a precondition for the policyholder obtaining certain public licences. Thus, cars will only be admitted to public use if there is motor liability insurance which will usually be taken out on a preliminary basis. If the policyholder were allowed to avoid the contract within a period of two weeks, the purpose of this requirement, for example the protection of third party victims of potential traffic accidents, would be undermined, because such victims would be unprotected. While the Distance Marketing Directive (2002/65/EC) does not contain an explicit exception from the right of withdrawal for preliminary cover, the gen-

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eral principle underlying art. 6 para. 2(b) would apply to preliminary insurance as well; the time limitation of the Directive’s exception to insurance policies of less than one month’s duration is inappropriate here. C10.  The exception laid down in Article 2:303 para. 2(b) for contracts prolonged under Article 2:602 flows from the consideration that the policyholder could already make use of a cooling-off period when he concluded the initial contract. There is no legitimate interest in having another period of reconsideration at the beginning of the prolonged contract. This is reflected by art. 1 para. 2 of the Distance Marketing Directive (2002/65/EC) which excludes successive operations from the scope of the Directive altogether. C11.  The two remaining exceptions laid down in Article 2:303 para. 2(c) concern liability insurance and group insurance. Liability insurance is taken out, in many cases, for the protection of third parties. The protection of third parties is the main or even exclusive purpose of the many laws and regulations, adopted at the level of both the Community and of the Member States, which prescribe compulsory liability insurance. But even where liability insurance is voluntary, it often serves the interest of third parties. For instance, landlords will often ask their tenants to take out liability insurance; they may even make the conclusion of the rental agreement dependant upon the proof of such cover. As pointed out in the context of preliminary cover above in Comment 9, the avoidance, by the policyholder, of a liability insurance contract would essentially impair the interest of third parties who would not even be informed of such avoidance. C12.  The situation is similar in the case of group insurance. Here, the policyholder takes out the insurance on behalf of the members of a group. Avoidance of the contract by the policyholder would interfere with the rights and interests of those group members who are not party to the insurance contract. It follows that the exception does not apply where the group members have concluded individual insurance contracts under a general framework agreement. C13.  The Distance Marketing Directive (2002/65/EC) does not take account of the rights and interests of third parties who may rely on the validity of contracts of financial services concluded between a consumer/policyholder and an insurer. Frictions with the Directive will be rare in the case of group insurance which is unlikely to be agreed upon in a distance contract. This is different in respect of various types of liability insurance, however. For the reasons set forth above, the solution of the Directive cannot be applied here.

Notes Community Law N1. Under art. 186 of the Solvency II Directive (2009/138/EC), which replaces art. 35 Life Assurance Consolidation Directive (2002/83/EC), the policyholder of an individual life assurance contract has a right to cancel the contract which can be exercised in a period of 14 to 30 days from the time he is informed of the conclusion of the contract. This right is limited to life assurance. The right to cancellation in life assurance is supplemented by a right of withdrawal under

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art. 6 of the Distance Marketing Directive (2002/65/EC) which includes insurance (art. 2(b)), but which is limited to the distance marketing of financial services to consumers (art. 1 of the Distance Marketing Directive (2002/65/EC)). This Directive was to be implemented by national legislators by 9 October 2004 (art. 21 para. 1 of the Distance Marketing Directive (2002/65/EC)).

Implementation for Life Assurance and Similar Products N2. In implementing the Life Assurance Consolidation Directive (2002/83/EC) (and its predecessor), most Member States such as Austria (s. 165a ICA), Belgium (art. 9 para. 1 of the Royal Decree of 14 November 2003 on Life Assurance), France (the third sentence of art. L. 132-5-1 para. 2 ICA, Basedow/Fock-Völker 495), Italy (art. 117 of the Code of Private Insurance), Luxembourg (art. 100 ICA) and Spain (art. 83a ICA) have limited the right of cancellation to life assurance contracts, closely adhering to the Directive. Sweden is a country where there is no need at all for a particular cooling-off period in life assurance. The policyholder has been given a right to terminate all kinds of personal insurances at any time with immediate effect (s. 5 of Ch. 11 ICA). N3. Other countries have extended the right beyond life assurance to personal accident or health insurance or to long-term insurance contracts in general (Poland: art. 812 para. 4 CC; Portugal: art. 118 para. 1a ICA; United Kingdom: ICOBS 7.1.1. At common law, see Sun Fire Office v Hart (1889) 14 App Cas 98; Clarke 18-3E; Beatson/Burrows/Cartwright 52 f.; Ireland: for the common law, see Carna Foods v Eagle Star [1997] 2 IR 193) or for consumers (Austria: s. 5c ICA).

General Right of Withdrawal N4. Even where statutory insurance law grants a right of cancellation only in life assurance, insurance industry associations sometimes recommend that the insurers accord a general right of cancellation for all sorts of long-term insurance contracts. Finland provides for a general right of termination for insurance contracts (s. 12 ICA), while Denmark opts for a general right of cancellation in consumer insurance (Chapter 4a of the Act No. 451 of 9 June 2004 on Certain Consumer Contracts, for all life-insurance contracts: art. 97a ICA). A similar stance is taken in Germany, Greece and the Netherlands where the right of policyholders to avoid insurance contracts extends to other branches of insurance and all modes of conclusion of an insurance contract (s. 8 German ICA; art. 8 para. 3 Greek ICA, art. 4:20 para. 2 Dutch ISA in conjunction with art. 60 para. 2 and 61 para. 2 of the Dutch Decree on the Supervision of the Conduct of Financial Enterprises).

Exception for Short-Term Insurance Contracts N5. If a right of avoidance is established, it is normally excluded for (certain) short-term insurance contracts. Art. 6 para. 2(b) of the Distance Marketing Directive (2002/65/EC) exempts travel and baggage insurance policies or similar short-term insurance policies of less than one month’s duration from the scope of the right of withdrawal granted by art. 6 para. 1 of that Directive. Art. 186 para. 2(a) of the Solvency II Direcitve (2009/138/EC) states that the Member States need not apply the right of cancellation granted by art. 186 para. 1 of that Directive for individual life assurance to contracts of six months’ duration or less. Similar provisions restricting the right of avoidance to long-term insurance contracts can be found in s. 8 para. 3 German ICA, the first

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and second sentences of art. 8 para. 3 Greek ICA, art. 117 para. 4 of the Italian Code of Private Insurance, art. 812 para. 4 Polish CC, art. 118 para. 1 Portuguese ICA, ICOBS 7.1.3 (United Kingdom) and the recommendations of Dutch insurance associations (Basedow/Fock-Fock 838).

Exception for Prolongation of Pre-Existing Contracts N6. An exception for the prolongation of a pre-existing insurance contract is a case where, because of the status of the policyholder or the circumstances in which the contract is concluded, the policyholder does not need the special protection of the right of cancellation in accordance with art. 186 para. 2(b) of the Solvency II Directive (2009/138/EC) because he should already be aware of the contents of the insurance contract which he has decided to prolong.

Exception for Preliminary Cover N7. An exception for preliminary cover can be found in s. 8 para. 3 German ICA. Furthermore, preliminary or provisional insurance contracts come quite close to contracts whose performance has been fully completed by both parties at the consumer’s express request before the consumer exercises his right of withdrawal, thus justifying an exclusion of the right of avoidance by analogy to art. 6 para. 2(c) of the Distance Marketing Directive (2002/65/EC). Similarly, cases of preliminary or provisional insurance, liability insurance or group insurance do not fall under the right of cancellation of art. 186 of the Solvency II Direcitve (2009/138/EC) because they either do not concern life assurance (for example liability insurance), individual insurance (group insurance) or the circumstances in which the contract is concluded suggest that the policyholder does not need the special protection of a right of cancellation, art. 186 para. 2(b) of the Solvency II Direcitve (2009/138/EC). An exception for group insurance contracts, namely a restriction of the right of cancellation to individual insurance contracts is provided for not only in art. 186 para. 1 of the Solvency II Direcitve (2009/138/EC), but also mirrored in the respective national provisions implementing that Directive (for example s. 165a para. 3 Austrian ICA, art. 100 Luxembourg ICA, art. 83a Spanish ICA).

Article 2:304 Abusive Clauses23 (1) A term which has not been individually negotiated shall not be binding on the policyholder, the insured or the beneficiary if, contrary to the requirements of good faith and fair dealing, it causes a significant imbalance in his rights and obligations arising under the contract to his detriment, taking into account the nature of the insurance contract, all the other terms of the contract and the circumstances at the time the contract was concluded. (2) The contract shall continue to bind the parties if it is capable of continuing in existence without the unfair term. If not, the unfair term shall be substituted by a term which reasonable parties would have agreed upon had they known the unfairness of the term. (3) This Article applies to terms that restrict or modify cover but it applies neither to (a) the adequacy in value of the cover and the premium, nor to (b) terms that state the essential description of the cover granted or the premium agreed, provided the terms are in plain and intelligible language.

23

This Article is modelled on the Unfair Contract Terms Directive (93/13/EEC).

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(4) A term shall always be regarded as not individually negotiated when it has been drafted in advance and the policyholder has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract. When an insurer claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on the insurer.

Comments Unfair Contract Terms Directive (93/13/EEC) C1.  Article 2:304 restates the rules contained in arts. 3, 4 and 6 of Unfair Contract Terms Directive (93/13/EEC) as well as Article 4:110 PECL and adapts them to the context of the Principles of European Insurance Contract Law. It has been formulated to take into account the particularities of insurance contracts, which deal with insurance as an intangible service. In accordance with art. 7 para. 1 of the Directive, this provision is intended to ensure that adequate and effective means exist to prevent the continued use of unfair terms in insurance contracts.

Persons Protected under Article 2:304 C2.  Going beyond the scope of the Directive, Article 2:304, like Article 4:110 PECL, applies the judicial review to commercial contracts (compare art. 3 of the Directive). The restriction to consumer contracts is not appropriate in insurance law because policyholders need protection against insurers, no matter whether they are consumers or not. Insurers commonly draft the terms of the insurance contracts in advance, so that policyholders have no opportunity to negotiate the terms.

Core terms C3.  Recital 19 of the Directive explicitly says that in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer’s liability shall not be subject to review since those terms are taken into account in calculating the premium paid by the consumer. However, this does not mean that every term that deals with the insured risk and the insurer’s liability is exempted from the fairness test. While the English text of the Directive gives the impression that every term that defines the insured risk or the insurer’s liability is taken into account in calculating the premium and thus has to be exempted from the fairness test, the German version of the Directive (“soweit”) shows that an exemption should be made only if the term actually has been considered in the calculation of the premium. To provide an effective protection of the policyholder’s rights, the number of terms exempted from the fairness test must be restricted. The Principles of European Insurance Contract Law are based on the assumption that the Directive is applicable to insurance contracts and they provide for a more comprehensive review than the minimum standards of the Directive.

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C4.  Thus for the purpose of the Principles of European Insurance Contract Law, only core terms are exempted from the fairness test. Such terms are protected from court intervention. In a competitive insurance market the essential elements of any insurance contract, namely the scope of insurance cover and the premium paid, are matters for market forces and the agreement of the parties. These core terms are described in Article 2:304 as terms that state the essential description of the cover granted or the premium agreed. This description appears more appropriate to the insurance contract than the vaguer terms used in the Directive (“main subject matter of the contract”). In this context, the relevant terms are those that give a crucial definition or circumscription of the type and subject of insurance, the insured risk, the insurer’s liability, the insurance benefit, the sum insured, the insured interest or the insurable value. Terms restricting, changing, elaborating or modifying the insurer’s obligation to perform are, however, not core terms and therefore subject to review under Article 2:304. If, for example, a policyholder takes out professional indemnity insurance, this would imply the exclusion of general liability as part of the crucial definition of the “type and subject of insurance”. This implicit exclusion would therefore not be subject to review. However, if a term of the policy excludes liability for pure economic loss, such a term would be subject to review. C5.  However, core terms are only exempted from the fairness test if they are drafted in plain and intelligible language to a reasonable holder of a policy of that type (Article 2:304 para. 3; this reinforces the general requirement for documents to be plain and intelligible under Article 1:203 para. 1). Freedom of contract can only be effective, if the policyholder has the opportunity to understand the terms that are crucial for his decision to take out the particular insurance contract.

Individually Negotiated Terms C6.  Terms that have been individually negotiated are also excluded from the fairness test (Article 2:304 para. 1). If both parties, the insurer and the policyholder, have agreed on an individually negotiated term, their freedom of contract has to be respected and the term may not be submitted to review under Article 2:304. C7.  A term will only be considered as individually negotiated if the policyholder had a real opportunity to influence the formulation and the content of the term. This is why Article 2:304 para. 4 states that terms which were drafted by the insurer in advance are to be considered as not individually negotiated. Furthermore, if parts of a term or a single term are negotiated individually, the rest of the term or the contract, as appropriate, may still be considered as not individually negotiated. In addition, Article 2:304 para. 4 places the burden of proving that a standard term has been individually negotiated in a particular case on the insurer.

Fairness Test C8.  The unfairness of a term is assessed by an overall evaluation of the interests involved. For that purpose Article 2:304 uses the criteria of “good faith” and “fair dealing” as general guidelines. Furthermore, it makes explicit that a violation of good faith and fair dealing must lead to a “significant imbalance” of the protected parties’ “rights and obligations”

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to their detriment. These criteria stem from the Unfair Contract Terms Directive (93/13/ EEC), art. 3 paras. 1 and 3. It is not always easy to draw a sharp line between them. They frequently overlap, meaning that a term violating “good faith” and “fair dealing” at the same time causes a “significant imbalance” in the protected parties’ rights and obligations. Nevertheless, the fairness test under Article 2:304 para. 1 must always take account of all the criteria mentioned.

Grey List C9.  The Unfair Contract Terms Directive (93/13/EEC) is supplemented by an annex containing an indicative list of terms that can be considered to be unfair (a “grey” list). The list is not exhaustive. Conversely a term in the list may not always be unfair but such a term would certainly need further scrutiny. The list of terms in the annex of the Directive may be relevant to insurance contracts and may be considered when applying Article 2:304 just as it is considered to be an appropriate guideline for the interpretation of Article 4:110 PECL. For that purpose the list is reprinted below.

Sanctions C10.  Under Article 2:304 para. 1 an unfair term does not bind the policyholder, the insured or the beneficiary. This provision, which is based on art. 6 para. 1 of the Directive, ensures that an unfair term cannot be enforced against any of them, but would allow any of them to rely on such a term if it would be to their advantage in an appropriate case. C11.  If a term is unfair, the remainder of the contract remains in force if this is possible and appropriate (first sentence of Article 2:304 para. 2). Otherwise the term has to be replaced by a term that reasonable parties would have chosen instead of the unfair term (second sentence of Article 2:304 para. 2). For that purpose it depends on what a reasonable insurer and a reasonable holder of a policy of the type in question would have agreed upon at the time of conclusion of the contract had they known about the unfairness of the term.

Burden of Proof: Unfairness C12.  The assessment of unfairness is a matter of value judgments which are based on certain facts taken into account by the judge. The burden of proof for these facts establishing a case of significant imbalance in the parties’ rights and obligations lies with the policyholder, insured or beneficiary subject to alleviations under the national laws of civil procedure. C13.  The Annex to the EC Directive mentions the following clauses:

1. Terms which have the object or effect of: (a) excluding or limiting the legal liability of a seller or supplier in the event of the death of a consumer or personal injury to the latter resulting from an act or omission of that seller or supplier; (b) inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the seller or supplier or another party in the event of total or partial non-performance or inadequate performance by the seller or supplier of any of the contractual obligations, 142

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including the option of offsetting a debt owed to the seller or supplier against any claim which the consumer may have against him; (c) making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realization depends on his own will alone; (d) permitting the seller or supplier to retain sums paid by the consumer where the latter decides not to conclude or perform the contract, without providing for the consumer to receive compensation of an equivalent amount from the seller or supplier where the latter is the party cancelling the contract; (e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation; (f) authorizing the seller or supplier to dissolve the contract on a discretionary basis where the same facility is not granted to the consumer, or permitting the seller or supplier to retain the sums paid for services not yet supplied by him where it is the seller or supplier himself who dissolves the contract; (g) enabling the seller or supplier to terminate a contract of indeterminate duration without reasonable notice except where there are serious grounds for doing so; (h) automatically extending a contract of fixed duration where the consumer does not indicate otherwise, when the deadline fixed for the consumer to express this desire not to extend the contract is unreasonably early; (i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract; (j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract; (k) enabling the seller or supplier to alter unilaterally without a valid reason any characteristics of the product or service to be provided; (l) providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract if the final price is too high in relation to the price agreed when the contract was concluded; (m) giving the seller or supplier the right to determine whether the goods or services supplied are in conformity with the contract, or giving him the exclusive right to interpret any term of the contract; (n) limiting the seller’s or supplier’s obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular formality; (o) obliging the consumer to fulfil all his obligations where the seller or supplier does not perform his; (p) giving the seller or supplier the possibility of transferring his rights and obligations under the contract, where this may serve to reduce the guarantees for the consumer, without the latter’s agreement; (q) excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy, particularly by requiring the consumer to take disputes exclusively to arbitration not covered by legal provisions, unduly restricting the evidence available to him or imposing on him a burden of proof which, according to the applicable law, should lie with another party to the contract. 2. Scope of subparagraphs (g), (j) and (l) 143

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(a) Subparagraph (g) is without hindrance to terms by which a supplier of financial services reserves the right to terminate unilaterally a contract of indeterminate duration without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof immediately. (b) Subparagraph (j) is without hindrance to terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately. Subparagraph (j) is also without hindrance to terms under which a seller or supplier reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to dissolve the contract. (c) Subparagraphs (g), (j) and (l) do not apply to: - transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the seller or supplier does not control; - contracts for the purchase or sale of foreign currency, traveller’s cheques or international money orders denominated in foreign currency; (d) Subparagraph (l) is without hindrance to price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described. C14.  For the matter of insurance contracts, only a few of the terms in the list above become relevant. These are namely24

(a) Terms that mislead the insured consumer about the contract: (i) “Hidden terms”: This is, for example, a term irrevocably binding the insured to terms with which the insured had no real opportunity of becoming acquainted before the conclusion of the contract (para. 1(i) on the grey list). In this context “acquaintance” first of all requires intelligibility of the terms. The more complex they are, the less intelligible they become and the harder it will be for the insurer to prove that the insured had a real opportunity of understanding them. The praxis of some insurance outlets like travel agencies selling travel insurance to offer scant summaries of cover will not be sufficient. A “hidden term” can also be one that remits to a legal provision which is not quoted in the contractual terms. Another example is important terms hidden in long documents, perhaps with small print (“unfair surprises”). (ii) “Entire agreement” clauses, some of which fall within the grey list category of terms “limiting the […] supplier’s obligation to respect commitments undertaken by his agents” (para. 1 on the grey list). For example: “All terms of the contract of insurance are contained in this policy. No representations are made or given by the Company save as appear herein.” Otherwise the insured could not rely on what the selling agent had said about the policy terms. Besides that this category also includes terms saying that when completing the pro24

The list of terms that concern insurance context as well as the examples given have been taken over with a few adaptions from Clarke 19-5A4.

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posal, the insurer’s agent is acting not on behalf of the insurer, as most proposers would (reasonably) expect, but on behalf of the applicant. (b) Terms that excuse improper performance of contractual obligations: (i) Terms excluding liability for delay in handling and paying claims are terms “inappropriately excluding or limiting the legal rights of the consumer vis-à-vis the […] supplier […] in the event of total or partial non-performance or inadequate performance by […] the supplier of any of the contractual obligations” (para. 1(b) on the grey list). (ii) Terms “obliging the insured to fulfil all his obligations where the insurer does not perform his” (para. 1 on the grey list). (c) Terms erecting barriers to redress: These are terms “excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy” (para. 1(q) on the grey list), including: (i) A term enabling the insurer to mount a technical defence. Such might be a term requiring notice of loss in an unduly short period of time. (ii) A term requiring “proof satisfactory to the insurer”, if it allows the insurer to make unfair demands on the claimant consumer. (iii) A “reverse burden clause”, whereby the insurer has merely to allege that the loss claimed is excepted rather than covered to put upon the claimant the burden of proving otherwise. (iv) Arbitration clauses: the insured is required to take disputes exclusively to arbitration not covered by legal provisions. Such clauses are considered to be potentially unfair as the insured is likely to be no match for the insurer in the arbitral process – any more than in a foreign court. (v) Any other term the effect of which is to enable the insurer to be slow in paying a claim. (d) Terms that allow the insurance supplier to cancel the contract, at least when the insured has no equivalent right (para. 1(g) on the grey list). (i) Terms that have the effect of allowing the insurer to cancel the contract without reasonable notice except where there are serious grounds for doing so. Thus terms with a cancellation period that does not give the insured enough time to seek alternative cover. (ii) Terms whereby insurers are entitled to cancel cover but to retain premium. (e) Terms that allow the insurer to vary an insurance contract unilaterally without a valid reason specified in the contract (para. 1(j) on the grey list). This includes terms that entitle the insurer to vary the premium unilaterally during the insurance period or to assign the contract to another insurer. (f) Terms that allow disproportionate penalties for breach by the consumer (para. 1(d) and (e) on the grey list).

Notes Implementation of EU Law N1. Article 2:304 para. 1 is modelled on art. 3 para. 1 and art. 4 para. 1 of the Unfair Contract Terms Directive (93/13/EC). Accordingly, all Member States have meanwhile implemented equivalent rules, which also apply to insurance contracts as far as they qualify as consumer contracts as defined in the Directive.

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N2. In comparison, the methods of implementation of the Directive vary greatly corresponding to the concepts of civil legislation and consumer protection as generally advocated in the Member States. In some countries, the provisions serving to implement the Directive can be found as parts of the civil code (Luxembourg, the Netherlands, Germany, Poland), in others as part of consumer statutes (Austria, France, Greece, Italy, Spain), in the statutes on market practices (Belgium), as part of statutes on pre-formulated contracts (Portugal), in a statute on consumer contracts (Sweden) or on general contract law (Denmark), or in specific statutory instruments as in the United Kingdom and in Ireland (cf. Münchener Kommentar-Basedow, vor § 305 BGB para. 23). N3. The implementing provisions of the national laws are as follows: s. 6 of the Consumer Protection Act (Austria); art. 73 of the Act of 6 April 2010 on Market Practices and Consumer Information and Protection, presently incorporated into the Code of Economic Law, art. VI, 82 (Belgium); s. 36 of the Contract Act (Denmark); s. 1 of Ch. 3 of the Consumer Protection Act (38/1978) (Finland); art. L. 132-1 of the Consumer Code (France); s. 307 CC (Germany); Law on Consumer Protection (Greece); European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 (Ireland); arts. 33 to 38 of the Consumer Code (Italy); art. 6:233 CC (the Netherlands); art. 385(1) CC (Poland); Royal Legislative Decree on Consumer and User Interests (Spain); Act on Contractual Conditions in Consumer Relationships (Sweden); and the Unfair Terms in Consumer Contracts Regulations 1999 (United Kingdom). For surveys of the implementation processes, see: Report on the Implementation of the Unfair Contract Terms Directive; and Münchener Kommentar-Basedow, vor § 305 BGB paras. 22 f. (including the implementing provisions and acts of the new Member States); for national reports on the implementation: see Alexandridou 173 ff.; Alpa 181 ff.; Balate 143 ff.; Bernitz 13 ff.; Davo 157 ff.; El Vinger 185 ff.; Hondius 193 ff.; Lete 205 ff.; Monteiro 197 ff.; Posch 135 ff.; Reich 165 ff.; Wilhelmson 151 ff.; and Willett 223 ff.

Additional and Broader Provisions on the Fairness of Insurance Terms N4. However, the aforementioned list of implementing provisions and acts does not give a precise account of the extent to which the fairness of insurance contracts may be reviewed. In nearly all countries, contingent upon their approach to consumer protection and their way of implementing the Directive, additional or broader rules are applicable when abusive clauses are scrutinised. In order to reach a higher level of protection, some countries have either established general rules on pre-formulated standard contracts, or they have extended the review of the fairness of the contract as a matter of general contract law or insurance contract law. N5. As an example of the latter approach, the Scandinavian countries traditionally allow for more extensive judicial review of contract terms as a matter of general contract law (cf. for a comparison with the Swedish law preceding the implementation of the Unfair Contract Terms Directive (93/13/EC): Bernitz 13-27). The respective provisions are s. 36 of the Swedish and the Danish Contract Acts. It shall be noted, however, that even though these rules apply to contracts in general, the review of the fairness is stricter if a consumer or a “weaker” party is involved, see s. 36 para. 2 of the Swedish Contract Act. N6. In a similar vein, the civil codes of several Member States contain provisions enabling the courts to review abusive clauses as part of pre-formulated standard contracts irrespective of their

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incorporation into commercial or consumer contracts. Frequently, such provisions also apply to insurance contracts, see for example for Italy: art. 1341 para. 2 CC; for Germany: s. 307 CC; for Austria: s. 879 para. 3 CC. N7. Even before the Unfair Contract Terms Directive (93/13/EC), Belgium had enacted legislation designed to ensure the fairness of the contract specifically in respect of insurance contracts, art. 14 of the Royal Decree of 22 February 1991 on Insurance Supervision (see Fontaine, paras. 63 ff.).

Non-Negotiated Contracts, Article 2:304 paras. 1 and 4 N8. Article 2:304 para. 1 only applies if the contract has not been individually negotiated as defined in para. 4. Para. 4 is virtually identical to art. 3 para. 2 of the Unfair Contract Terms Directive (93/13/EC) and, accordingly, already implemented in the Member States as far as consumer insurance contracts are involved, see the references in Note 3. N9. The Scandinavian countries traditionally assess the fairness of the contract regardless of the circumstances of its conclusion. In other words, case-related negotiations do not foreclose the application of a rule such as Article 2:304 (cf. for Finland: Wilhelmsson 155). This goes without saying where the review of the insurance term is based on a provision of the (general) Contract Act, as is the case in Denmark and Sweden (respective art. 36 of the Contract Acts, see above Note 5). In a similar vein, the Belgian Royal Decree of 22 February 1991 on Insurance Supervision, above at Note 7, provided for an application irrespective of the negotiated or non-negotiated character of a clause. The Dutch Civil Code applies the test of fairness to clauses which have been drafted to be included into a number of contracts, regardless of the aspect of negotiating (art. 6:231(a)). N10.  Under French law, too, the aforementioned provision art. 132-1 of the Consumer Code on abusive clauses applies regardless of whether the contract has been negotiated or not. As to the scope, it should be recalled, however, that art. 132-1 of the Consumer Code, as the name of the code suggests, is not applicable to all contracts, but only to those made by consumers. The Cour de cassation has held that it shall not be applied when the insurance contract was taken out in pursuance of the insured’s business (Cass. civ. 1er, 23.2.1999, RGDA 1999, 325). In Belgium, the aforementioned provision of art. 73 of the Act of 6 April 2010 on Market Practices and Consumer Information and Protection is applicable to contracts concluded with consumers regardless of whether the contract has been negotiated or not.

Exceptions from Judicial Review, Article 2:304 para. 3 N11.  In accordance with Article 2:304 para. 3, many national laws provide for exemptions from review for those terms of the contract which are identified to be essential for the conclusion of the contract itself (“essentialia negotii”). Such rules have been introduced in France (art. L. 132-1 para. 6 of the Consumer Code), the Netherlands (art. 6:231 CC), and Poland (the second sentence of art. 385(1) para. 1 CC). In other countries, the limits of the scope of review have been established by the courts, for Germany: BGH, 13.7.2005, Versicherungsrecht 2005, 1417; Münchener Kommentar-Wurmnest, § 307 BGB paras. 12 f.; for Italy: Volpe Putzolu 514. It remains disputed

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and unclear in some other countries whether exceptions to the scope of review are made by the courts: cf. Basedow/Fock-Lemmel 1030 f. for Austria.

Consequences of Invalidity of a Clause, Article 2:304 para. 2 N12.  The continuation of the contract, as provided for under para. 2, is modelled on art. 6 para. 1 of the Unfair Contract Terms Directive (93/13/EC) and has been implemented accordingly in all Member States. This rule follows from the consideration that the judicial review of a contract term is meant to protect the policyholder. This purpose would be defeated if the invalidity of the term led to the invalidity of the whole contract. N13.  For the same reason, it is added in the second sentence that if the contract is not capable of being continued without the unfair term, it “shall the substituted by a term which reasonable parties would have agreed upon had they known the unfairness of the term”. While this rule exceptionally burdens the court with the task of rewriting the contract in respect of the invalid term, it is an inescapable consequence of the judicial review of contract terms which are essential to the agreement of the parties.

Section Four: Retroactive and Preliminary Cover Article 2:401 Retroactive Cover (1) If, in the case of cover granted for a period before the contract was concluded (retroactive cover), the insurer knows at the time of the conclusion of the contract that no insured risk has occurred, the policyholder shall owe premiums only for the period after the time of conclusion. (2) If, in the case of retroactive cover, the policyholder knows at the time of the conclusion of the contract that the insured event has occurred, the insurer shall, subject to Article 2:104, provide cover only for the period after the time of the conclusion of the contract.

Comments Issues of Risk C1.  Insurance contracts must cover a risk by definition (see Article 1:201 para. 1). From an objective point of view a risk is lacking in contracts granting retroactive insurance, because at that point in time the insured event has either materialised or not.

Nevertheless, Article 2:401 allows retroactive cover as long as, at the time of contracting, there is subjective uncertainty in that the parties are unaware whether the insured event has materialised or not. C2.  Retroactive cover does not concern cases where the insurance relates to uncertainty about future developments while both parties are aware of the occurrence, in the past, of events which give rise to those future developments. Thus, parties may conclude an insurance contract covering the future depreciation of goods leased in the past. Or they may, after the occurrence of a fire, take out insurance relating to the amount of loss which has been

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caused by that fire but which is uncertain and difficult to asses. In a claims-made liability policy the uncertainty of future claims made by third parties against the policyholder may be insured even for those cases where the event giving rise to those claims has occurred before the conclusion of the insurance contract. In such cases, the insured event is a future occurrence. Therefore, Article 2:401 is not applicable. Nonetheless, the events that occurred in the past have to be notified to the insurer in accordance with Article 2:101.

Knowledge of the Insurer C3.  If an insurer grants cover to a policyholder knowing that an insured event has not occurred at the time the contract is formed, it should not be entitled to collect the premium for the retroactive cover knowing that it would never have to pay. However, such a contract will not be void because it may at the same time provide the policyholder with cover for the future. In such cases the policyholder must be protected by retaining that cover and the insurer should be entitled to collect the premium for the period after contract formation.

Knowledge of the Policyholder C4.  In contrast, the contract is void if the policyholder, at the time of contract formation, knows, by actual knowledge or knowledge imputed in accordance with Article 1:206, that the insured event has already occurred. Moreover, in such cases the transaction is fraudulent and the insurer should not be bound. C5.  If, at the time of contracting, both parties are aware that the insured event has already occurred, the contract is not a contract of insurance as defined in Article 1:201. However, the contract may be upheld as another type of contract, such as a contract of settlement, under general contract law. Payments are sometimes agreed by the parties when the scope of a policy is unclear or inadequate but the insurer wishes to pay to secure or retain the customer. C6.  If the policyholder does not know but has reason to know that the insured event has materialised, Article 2:401 para. 2 will not apply. However, in such cases the policyholder may have violated his pre-contractual information duties under Article 2:101. As a consequence, the insurer may invoke the sanctions imposed by Articles 2:102 to 2:105.

Notes General Permission for Retroactive Cover N1. Policies providing for retroactive cover are permitted under most European laws. In Austria and Germany, s. 2 para. 1 and s. 2 para. 2 Austrian and German ICA are explicit and correspond to Article 2:401 para. 1 and Article 2:401 para. 2 PEICL, respectively. Under the Greek ICA, any interest may form the object of an insurance contract. This includes past risks provided that the policyholder, insured or beneficiary is not aware when concluding the contract that the insured event has already occurred, see Basedow/Fock-Papathoma-Baetge 599, Chatzinikolaou-Aggelidou 282 ff., and Rokas, paras. 414 ff. In the Netherlands, art. 7:925 CC leaves open the possibility of retroactive cover, see Wansink/Kamphuisen/Kalkman 27. Spanish insurance law allows for ret-

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roactive cover if there is uncertainty as to whether the risk has materialised, art. 6.2 ICA and in marine insurance, see art. 422 of the Spanish Law of Maritime Navigation. N2. In France, however, art. 121-15 para. 1 ICA stipulates a special rule for indemnity insurance: If, at the moment the contract is made, the damage has already occurred (for example the insured object has already perished), the retroactive clause is void. This would imply that policies covering putative risks are not admissible in indemnity insurance. However, art. 121-15 ICA can be interpreted as implicitly referring to the knowledge of the parties. The insurability of putative risks is accordingly recognised by the Cour de Cassation, cf. Lamy Assurances, para. 110(e). Clauses providing for retroactive cover are referred to as clauses de reprise du passé; for a similar approach see also art. 806 para. 2 Polish CC. In general, such clauses limit cover to past risks not known by either party, or are at least construed in such way, cf. Lamy Assurances, para. 1287. Finally, the Cour de Cassation has recognised in a number of judgements that insurance of past risks is only invalid when the policyholder knew, at the time of the conclusion of the contract, that the insured risk had already materialised, cf. Lamy Assurances, para. 110(d). N3. When a policy is void under aforementioned conditions, the policyholder may recover his premiums, art. 12115 para. 2 French ICA. Art. 121-15 para. 3 ICA provides for a special punitive provision: when a party to the contract acted in bad faith, it must pay the other party a sum equivalent to double the annual insurance premium.

Sector-Specific Permission for Retroactive Cover N4. Other countries permit retroactive policies for specific branches of insurance. The most common sectoral retroactive insurance policies are to be found in marine insurance, see for Spain already above Note 1. N5. In Belgium, art. 79 IA 2014 prohibits retroactive cover as a general rule. Belgian marine insurance law makes an exception, however: According to art. 219 ComC, Book II, any insurance contract concluded after the arrival or the loss of goods insured is void if the policyholder knew of the loss, or the insurer knew of the arrival. This, in turn, means that retroactive insurance is valid if both parties contracted in good faith. When land insurance contracts for putative risks are void under art. 79 IA 2014, payments have to be refunded in general, see Fontaine, para. 234. If the policyholder contracted in bad faith, no refund is due. When the policyholder acted in gross negligence, the insurer may keep the proportion of the premium that corresponds to the time elapsed until he knows of the realisation of the risk, art. 79 para. 3 IA 2014. N6. In Italy, the statutory provisions provide for similar results. Land insurance contracts granting retroactive cover are void, see Basedow/Fock-Brunetta d’Usseaux 690. Only in marine insurance may the parties agree to cover a putative risk, cf. art. 514 of the Code of Navigation. Art. 514 para. 1 of the Code of Navigation provides that the insurance is void if the risk never existed or ceased to exist, and the parties knew of this fact beforehand. It is presumed, until the contrary is proved, that the news of cessation of the risk arrived without delay either at the location of the conclusion of the contract, or the location where the policyholder agreed to the contract, see art. 514 para. 2 of the Code of Navigation. Pursuant to art. 514 para. 3 of the Code of Navigation. the insurer who contracted unknowingly is entitled to the premium only if he can deliver proof

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that the policyholder knew of the above-mentioned circumstances. When proof is not delivered, the insurer in good faith may recover only his costs. N7. For the United Kingdom and Ireland, see Basedow/Fock-Rühl 1440 ff. In the United Kingdom, s. 6(1) of the Marine Insurance Act 1906 sanctions cover “lost or not lost” although the insured “may not have acquired his interest until after the loss” and thus in effect retroactive cover; however, this does not apply if at the time of contracting the insured was aware of the loss and the insurer was not. Otherwise, to recover, he must have an interest at the time of loss: Anderson v Morice (1876) 1 App Cas 713 embodied in s. 6(2). The same is true of the Republic of Ireland, where the Marine Insurance Act is also law. Thus, retroactive marine insurance policies would be admissible under the same conditions. Beyond this special clause, retroactive cover is discussed neither in the United Kingdom nor in Ireland, cf. Basedow/Fock-Rühl 1441. However, it seems permissible in both countries. N8. In Switzerland, the general rule is laid down in art. 9 ICA. Under the said rule, retroactive cover is prohibited in principle. Retroactive fire and transit insurance contracts are exempted by art. 10 ICA. Such policies are void only if both parties knew, at the time of the conclusion of the contract, that the risk insured has or has not occurred, as the case may be, art. 10 ICA. If the insurer knew that no insured risk has occurred, the policyholder is not bound by the contract; the insurer may claim or recover neither premium nor costs, see art. 10 para. 2 ICA. Conversely, when the policyholder knew the insured event had occurred, the insurer is not bound by the contract and may recover its costs, art. 10 para. 3 ICA. N9. The insurability of putative risks seems uncertain under the laws of Luxembourg. Pursuant to art. 32 ICA, a policy is void, when the risk, at the time the contract is concluded, has already occurred or has never existed, see also Bisenius 57. However, art. 37 para. 1 ICA stipulates that the commencement of cover is determined by the will of the parties. Reading arts. 32 and 37 ICA together, one might construe the law as allowing for retroactive policies when the parties are in uncertainty as to the realisation of the risk. The legislative motives, however, do not comment on this question, cf. Basedow/Fock-Völker 783.

Article 2:402 Preliminary Cover (1) When concluding a preliminary insurance contract, the insurer shall issue a cover note containing the information specified in Article 2:501(a), (b), (d), (e) and (h) if relevant. (2) Articles 2:201-2:203 and, subject to para. 1 above, Article 2:501 do not apply to preliminary cover.

Comments Preliminary Cover C1.  An applicant usually requests immediate cover of the risk. However, an insurer will usually not accept the risk without a risk evaluation which can take time. This is why the institution of preliminary cover has been developed in insurance practice. It allows the insurer to evaluate the risk carefully without a final assumption of the risk. In turn, the ap-

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plicant enjoys preliminary cover that allows him to wait for the final decision of the insurer without anxiety.

Evidencing the Preliminary Cover C2.  In practice, preliminary cover granted orally by insurance agents has turned out to be hard to prove. In order to provide the policyholder with a reliable piece of evidence the insurer is obliged to put the preliminary cover in writing. Under the Principles of European Insurance Contract Law writing includes electronic documents (see Article 2:301 Comment 6). However, in the case of preliminary cover, the writing is not required to contain more than a minimum of information. This minimum includes the name and address of the contracting parties, the insured and the beneficiary (see Article 2:501(a) and (b)), the subject matter of the insurance and the risks covered (Article 2:501(d)), the sum insured and any deductibles (Article 2:501(e)) as well as the contract period and the liability period (Article 2:501(h)). Such a requirement does not excessively burden the insurer. At the same time the information is sufficient to prove the existence and extent of the cover.

Exclusion of Articles 2:201 to 2:203 C3.  Articles 2:201 to 2:203 (insurer’s pre-contractual duties) do not apply to contracts granting preliminary cover because duties of this kind could be a disincentive to the granting of preliminary cover. It is in the own interest of the policyholder that the granting of preliminary cover will not be excessively burdened.

Notes Survey N1. Only few national statutes deal with preliminary cover. The subject appears to be left to the parties’ contractual arrangements, and most legislators seem to trust that the problems arising in the context of preliminary cover will not lead to serious disputes in view of the main insurance contract to be concluded between the same parties. But the main insurance contract may not be concluded at all or not between the same parties, cf. for Sweden Hellner, part 5.2.1. In the absence of legal rules on preliminary cover, the outcome of a dispute arising from such a preliminary agreement may therefore be very difficult to predict. In particular mandatory requirements concerning pre-contractual information duties for insurance contracts, if applied to preliminary cover, may put in question the validity of the latter which is often agreed by oral or other speedy means of communication. In some Member States, national statutes deal with this issue. The other problems addressed relate to the standard terms governing the preliminary cover and to its relation to the main contract.

Form and Information Requirements: Germany, Greece N2. In Germany, s. 7 ICA and further regulations place the insurer under an obligation to provide certain information to the applicant before the latter agrees to the (main) insurance contract; the parties are not permitted to derogate from this rule to the detriment of the applicant. While

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the insurer must basically provide the same information for a cover note, as can be inferred from the first sentence of s. 49 para. 1 ICA, this provision allows the parties to agree on the transfer at a later stage, namely either at the time when the applicant makes a request to that effect, or together with the policy. Where no contract terms are communicated to the applicant at the time of conclusion of the preliminary cover agreement that cover is subject to the terms habitually employed by the insurer, see s. 49 para. 2 ICA. Under Greek law as well the policyholder can waive the right to be supplied with the information according to art. 2 para. 7 ICA. Furthermore, the insurer is under an obligation to provide the policyholder with a preliminary cover note in writing.

France N3. In France, preliminary cover agreements are exempted from the formal and information requirements for insurance contracts, see art. 112-3 para. 4 ICA and Lamy Assurances, para. 431. However, proof of the existence of the preliminary cover is hardly conceivable if the parties do not observe at least written form, cf. Lamy Assurances, para. 432. Only when cover notes are issued under the cross-border provision of insurance services as defined in art. 351-1 ICA does statute provide for a minimum content. In such rare cases, the cover note must contain the name and address of the agency or branch which offers cover, and, in the case of motor liability insurance, additionally the head office and national representative, see art. 112-7 para. 3 ICA. N4. The jurisprudence of the Cour de Cassation has further established minimum contents for cover notes, albeit indirectly. As a starting point, the Cour de Cassation established, as a general rule, that preliminary cover must be granted by the general policy terms and conditions of the insurer. This rule, however, is complemented by the general principle that only clauses brought to the attention of the policyholder may be opposed to him, Cass. civ. 1re, 7.3.1989, n° 87-10.266, RGAT 1989, 546-548. If lower court judges find that certain terms and conditions were not brought to the attention of the policyholder, and if the insurer is unable to prove otherwise, it is held that such terms and conditions may not be invoked against the policyholder, see Lamy Assurances, para. 433.

Belgium N5. Belgian law distinguishes three types of preliminary cover, subject to different rules, namely preliminary cover during, before and after formation of the main insurance contract. Art. 55, 5° IA 2014 defines the term demande d’assurance, which refers to preliminary cover during contract formation. Such demande d’assurance is “a form emanating from the insurer by which the insurer offers to take in charge the risk preliminarily, at the request of the policyholder”. Preliminary cover in this sense is thus embedded in the formation of the main policy. As the terms and conditions of such demande d’assurance and the main policy may vary considerably, the demande d’assurance and the main policy demand/offer must be signed separately, see the seventh sentence of art. 57 para. 2 IA. N6. When preliminary cover is granted before or after contract formation, the term of demande d’assurance does not apply. Rather, Belgian law speaks of couverture provisoire in general. This term encompasses preliminary cover granted before a future main policy and is also used to denote a definitive main insurance contract between the parties, but issued in a preliminary docu-

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ment, so as to give the insurer time to draft the main policy in further detail. As such preliminary cover is not linked directly to contract formation, it is not subject to the requirements of art. 57 para. 2 IA 2014, cf. Fontaine, para. 188. This is not to say that a couverture provisoire, namely preliminary cover before or after contract formation, is not subject to any formal requirements. Art. 64 para. 1 IA 2014 establishes an indirect requirement, in that proof of any form of insurance contract is admissible only in writing, save for avowal or oath.

Luxembourg N7. According to the second sentence of art. 9 para. 3 ICA, the cover note and the insurance offer must be issued as separate documents. The third sentence of art. 9 para. 3 ICA provides for the same information as Article 2:402 para. 1 PEICL. Additionally, the insurer must disclose the basis of the pricing system, see the sixth indent of the third sentence of art. 9 para. 3 ICA and Bisenius 41.

United Kingdom N8. In the United Kingdom, preliminary cover may be granted by way of a cover note. A written note, however, is not essential as preliminary or “interim” cover ranges from an oral agreement to formal documentation, see Birds 5.6, Clarke 12-3, Colinvaux 1-47. When temporary cover is granted neither in the form of a document specifying the terms and obligations nor a document incorporating the future terms and obligations of the main policy, the terms of the latter policy would still be decisive, given a general proposition that the application for insurance is construed to refer to the standard terms contained in the insurer’s usual form of policy, see Birds 5.6.3 ff., Clarke 12-4, Colinvaux 1-52. In such cases, though, the policyholder may not be aware of the terms which govern his claim, for example a notice duty. Accordingly, it has been held by the Court of Appeal that the beneficiary of preliminary cover, if not informed beforehand, is not bound by the terms of the policy itself, in particular the notice duty: Re Coleman’s Depositories Ltd [1907] 2 KB 798. Special rules apply to cover notes issued by brokers, see Birds 5.6, Clarke 12-2, Colinvaux 1-31.

Terms of the Cover Note N9. Since the parties may conclude a valid preliminary insurance contract without any reference to contract terms, it may be difficult to establish the terms applicable to the cover note. As pointed out above, several national statutes provide for the application of the terms habitually employed by the insurer in such cases or limit their application to what could reasonably be foreseen by the applicant, see Notes 2, 3 and 8 above. The Principles of European Insurance Contract Law do not contain such a rule since they are meant to apply only if the parties so agree, see Article 1:102 PEICL. Moreover, it would simply reflect general contract law as laid down in the Principles of European Contract Law which would fill gaps of the Principles of European Insurance Contract Law anyway, see Article 1:105 para. 2 PEICL. Under the interpretation rule of Article 5:102 PECL, the usages, previous dealings and good faith have to be considered when filling the gap of a contract; this would not lead to results which differ from those achieved by the national laws mentioned above.

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Article 2:403 Duration of Preliminary Cover (1) When an applicant for an insurance contract is granted preliminary cover, that cover shall end no sooner than at the time when the cover under the insurance contract is agreed to begin or at the time the applicant receives notice from the insurer definitively rejecting the application, as the case may be. (2) When preliminary cover is granted to a person who does not apply for an insurance contract with the same insurer, the cover may be granted for a period less than that stated in Article 2:601 para. 1. Such cover may be cancelled by either party giving two weeks notice.

Comments Duration of the Preliminary Cover C1.  The purpose of preliminary cover is to enhance the pre-contractual relationship between the applicant and the insurer. This purpose is only fulfilled if the cover does not end before the contractual negotiations. If negotiations fail because the insurer is unwilling to accept the risk, the reason for the preliminary cover vanishes and Article 2:403 para. 1 second alt. provides for the preliminary cover to end at that time, though parties may agree on a longer duration. If, however, the application is accepted by the insurer and the insurance contract is concluded, it may still be necessary for the applicant to enjoy preliminary cover. This is the case whenever the commencement of the cover under the ultimate insurance contract is delayed by clauses requiring the policyholder to pay the first premium in order to obtain cover (see Article 5:101). In order to avoid gaps in the cover period in such cases, the preliminary cover should remain in force for the period of payment of the first premium (which is at least two weeks according to Article 5:101(b)). It should, however, lapse if payment is not made upon expiry of the period. This is why Article 2:403 para. 1 first alt. mentions the time, when cover under the ultimate insurance contract should begin, as the end of the preliminary cover unless parties have agreed on a longer duration. C2.  Article 2:403 para. 1 only applies to cases in which a preliminary cover is granted because the applicant has filed an application. If in particular circumstances this is not the case, preliminary cover should end at the time agreed. Furthermore, such preliminary cover may be cancelled by either party giving two weeks notice. This right of cancellation allows the insurer to break-off dealings with a customer who has no serious intention of going through with the whole transaction.

Notes Germany N1. The German ICA regulates the duration of preliminary cover using a special and very detailed provision: The preliminary insurance contract ceases no later than at the time when cover under a further preliminary contract or the main insurance contract commences, see the first sentence of s. 52 para. 1 ICA. The same rule applies when the holder of the cover note subsequently concludes the main insurance contract with a different insurer, see the first sentence of s. 52

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para. 2 ICA. The preliminary insurer has to be notified of the subsequent contract, see the second sentence of s. 52 para. 2 ICA. If the main insurance contract made with the insurer issuing the cover note fails to operate because of a revocation or an objection by the holder of the cover note, the preliminary insurance contract ceases at the latest when the revocation or objection reaches the insurer, see s. 52 para. 3. Where the preliminary insurance contract was entered into for an indefinite period, either party may terminate the contract without notice, see the first sentence of s. 5 para. 4 ICA. However, the insurer’s termination only becomes effective two weeks after receipt, see the second sentence of s. 52 para. 4 ICA.

France N2. In France, the decisions of the Cour de Cassation have continually stressed the temporary nature of preliminary cover, see Lamy Assurances, para. 430(b), citing judgments rendered in 1994, 1999 and 2001. Where a term is specified in the cover note, cover ends at the deadline agreed upon; the compensation of losses arising from risks materialised subsequently may not be claimed by the policyholder, see Lamy Assurances, para. 430(b). French insurance law thus lacks a mandatory provision of the nature of Article 2:403 para. 1 PEICL. Under French insurance law, the duration of preliminary cover is determined independently from the state of negotiations on the main policy, Cass. civ. 1er, 9.11.1999, n° 9714.252, RCA 2000, Commentaires, n° 105. Thus, preliminary cover may end before a subsequent main policy is established between the parties. This leads to uncertainties over damages occurring subsequently in cases when no clear preliminary term was fixed, and a later contract has not been concluded. The Cour de Cassation has decided that the burden of proof that the risk materialised after expiry of the preliminary contract lies with the insurer, Cass. civ. 1er, 25.10.1994, n° 92-18.447, RGAT 1994, 1098-1100.

Section Five: Insurance Policy Article 2:501 Contents When concluding the insurance contract, the insurer shall issue an insurance policy, together with the general contract terms as far as they are not included in the policy, containing the following information if relevant: (a) the name and address of the contracting parties, in particular of the head office and the legal form of the insurer and, where appropriate, of the branch concluding the contract or granting the cover; (b) the name and address of the insured and, in the case of life insurance, the beneficiary and the person at risk; (c) the name and address of the intermediary; (d) the subject matter of the insurance and the risks covered; (e) the sum insured and any deductibles; (f) the amount of the premium and the method of calculating it; (g) when the premium falls due as well as the place and mode of payment; (h) the contract period, including the method of terminating the contract, and the liability period; (i) the right to revoke the application or avoid the contract in accordance with Article 2:303 in the case of non-life insurance and with Article 17:203 in the case of life insurance; (j) that the contract is subject to the PEICL;

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(k) the existence of an out-of-court complaint and redress mechanism for the applicant and the methods of having access to it; (l) the existence of guarantee funds or other compensation arrangements.

Comments Insurance Policy C1.  Like most national legal systems, the Principles of European Insurance Contract Law provide the policyholder with a right to an insurance policy issued by the insurer (Article 2:501). However, the validity of the contract does not depend on the issue of the policy. The insurance policy must contain at the very least the information specified in Article 2:501(a) to (l).

Evidence C2.  In some countries the law requires the insurance contract to be evidenced in writing in order to be enforceable. However, rules of this kind are not found in most countries, whether for insurance contracts or other kinds of contract. Accordingly, the Principles of European Contract Law do not contain such a rule and the Rome I Regulation (593/2008) (art. 18 para. 2) is to similar effect. Therefore, the Principles of European Insurance Contract Law do not require evidence in writing either (see also Article 2:301).

Parol Evidence Rule C3.  National laws sometimes provide for further legal consequences from the mere fact that a written document has been issued. A prominent example is the parol evidence rule in the UK. This rule and similar rules of national law should not be applied in the context of the Principles of European Insurance Contract Law without taking into account the particular weight given to oral communication under the Principles of European Insurance Contract Law (see Article 1:205). Note, however, that Article 2:502 has similar effect to the parol evidence rule.

Preliminary Insurance Contracts C4.  In order to ensure complete protection of the policyholder, Article 2:402 para. 1 deals with preliminary insurance contracts. The document required is similar to an insurance policy. The information to be provided is, however, restricted to information relevant in the pre-contractual phase. In this way, transparency interests of the applicant are balanced with the general interest to ease or at least to avoid unreasonable burdens for insurance transactions.

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Notes Issue of a Document N1. The insurer’s duty to issue an insurance policy is a common principle in European insurance acts, for example in s. 3 para. 1 Austrian and German ICA; art. 64 para. 1 Belgian IA 2014; art. 7:932 Dutch CC; s. 6 para. 1 Finnish ICA; art. 112-3 French ICA; art. 2 paras. 2 and 3 Greek ICA; art. 1888 para. 2 Italian CC; art. 809 para. 1 Polish CC; arts. 32 ff. Portuguese ICA; art. 5 Spanish ICA; art. 11 para. 1 Swiss ICA. N2. In England and Wales, there is no general rule of common law requiring an insurance document in non-marine insurance (Roberts v Security Co [1897] I QB 111, CA; Murfitt v Royal Insurance Co [1922] 38 TLR 334; Birds 88 ff., Clarke 11-2A1 and 14-1). But most insurance contracts are recorded in a policy.

Information to Be Provided – Detailed Requirements N3. Very similar to the list of information presented in Article 2:501 – with only a few exceptions and some additional requirements –, are the pertinent regulations in Belgium (art. 64 para. 2 IA 2014; additionally required: the date of conclusion of the contract); France (art. 112-4 ICA; the policy must also state the name and the address of the Insurance Supervisory Authority and the terms of rescission, art. 113-12 ICA; even more specific requirements in life assurance, see art. R. 132-4 ICA); Greece (art. 1 paras. 2 and 3 and art. 2 paras. 3 and 4 ICA: the policy must contain among other things the exceptions to cover, the place and date of issue and a note that the contract is governed by general and special insurance terms and conditions, if applicable); Luxembourg (art. 16 para. 2 ICA: instead of the law applicable, the policy has to name the competent venue; additionally to be stated: the conditions and the way of rescission and that automatic renewal of the contract is only possible for one year at a time, art. 38 ICA); Poland (art. 12a of the Act on Insurance Activity, regarding the contents of general contract terms); Portugal (art. 37 ICA, providing that particular pieces of information – for example in relation to the scope of the cover as well as the right to avoid or rescind the contract – must be prominent) and Spain (art. 8 ICA: information on the insurance concept chosen, and the amount of administrative costs and taxation must be included). N4. Since the main function of the policy is to record the insurance contract and to give evidence of its particulars, it shall describe its content (s. 3 para. 1 Austrian and German ICA, see Bruck/ Möller-Knops, § 3 VVG para. 3; art. 7:932 Dutch CC; art. 1888 Italian CC; see Donati/Volpe Putzolu 177; La Torre-Benini art. 1888 no. 3; art. 37 para. 2 Portuguese ICA; art. 11 para. 1 Swiss ICA). Likewise the practice in England (Halsbury 226).

Mixture: General Provision with Some Details N5. Some national laws have chosen a more general approach requiring only a document that contains “written confirmation of the contract” or a document “that sets out the main content of the contract”; such formulae may be supplemented with more detailed requirements, see s. 6 Finnish ICA: detailed requirements in personal insurance; see art. 809 para. 1 Polish CC as compared with art. 12a of the Polish Act on Insurance Activity regarding general contract terms;

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see also ss. 2 and 4 of Ch. 2 (consumer insurance) and ss. 2 and 4 of Ch. 10 (personal insurance) Swedish ICA.

Means of Proof N6. Depending on the national law of civil procedure the policy may acquire a particular relevance as a means of proof. It may be an indispensable tool for proving the insurance contract, while in other countries it will provide conclusive evidence of the contract without, however, being necessary for its proof. N7. In some Member States, proof of the insurance contract and its content is limited to evidence in writing, which would at least require the party bearing the burden of proof to furnish some documentary evidence to start with, a so-called commencement de preuve par écrit. In respect of insurance contracts in particular, such a requirement of written evidence of the insurance contract is established for example in Belgium (art. 64 para. 1 IA 2014), in Greece (art. 2 paras. 1 and 2 ICA), in Italy (art. 1888 para. 1 CC) and in Luxembourg (art. 16 para. 1 ICA). N8. In common law jurisdictions, the insurance contract may be proven by any means. But the policy has a particular significance: under the parol evidence rule “a document which looks like the whole of the contract, namely a document that contains all the terms of the kind one would expect in that kind of contract and which has a degree of formality that suggests the document is significant to those who made it […] a presumption that that is the whole of their contract and evidence will not be admitted to add to, vary or contradict that document” (Birds 5.4, Clarke 11-2A1 and 14-1; see also MacGillivray 11-037). There can be no doubt that a policy is such a document.

Constitutive Effect N9. Unlike in all other European laws, insurance contracts in Scotland are considered as obligationes litteris and must therefore be constituted in writing (Colinvaux (1990) 1-22). In contrast to that, some legal orders explicitly define the policy to have no constitutive effect, see the notes on Article 2:301 and for example for France art. 112-3 para. 4 ICA.

Issue of General Contract Terms N10.  Terms and conditions applicable to the insurance contract are also part of the agreement. Consequently, the insurer must furnish the policyholder with this specific information as well. This shall be done either by means of a document (see for example for Austria s. 5b para. 2(2) and para. 4 ICA, for Germany s. 305 CC and s. 7 para. 1 ICA, for Greece art. 2 paras. 4 and 6 ICA, for Poland art. 12a Act on Insurance Activity, for Spain art. 3 para. 1 ICA) or by including them in the policy or by making them available in another manner (Greece: art. 2 para. 6 ICA; Luxembourg: art. 17 ICA). N11.  The rule prevailing in England provides that when the insurer comes to issue the policy, he has to issue it with the terms and conditions usually attached to his policy, insofar as these are not inconsistent with the express terms of the parties’ preliminary contract (S E Lancs Insurance Co v Croisdale (1931) 40 Ll. L. R. 22, 24; furthermore MacGillivray 2-010; Clarke 11-1A3).

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Cover Notes N12. Several legal systems explicitly consider the foregoing provisions as equally applicable to preliminary cover notes, for example: Greece (art. 2 paras. 2 and 3 ICA). Some other countries, however, require less information to be included in a cover note, for example art. 9 para. 3 Luxembourg ICA. Occasionally, it is merely laid down that a cover note has to be issued, see for example for Spain art. 5 ICA. See also the notes on Article 2:402.

Written Form N13. By requiring a written policy, Article 2:501 is again in line with many European insurance statutes, for example Austria and Germany (s. 3 para. 1 ICA); France (art. L. 112-3 para. 1 ICA); Greece (art. 2 paras. 1 and 2 ICA); Italy (art. 1888 para. 2 CC; see also arts. 166 to 185 of the Code of Private Insurance); Luxembourg (art. 16 para. 2 ICA); the Netherlands (art. 7:932 CC); Poland (art. 809 para. 1 CC); Portugal (art. 32 para. 2 ICA); Spain (art. 5 ICA) and Switzerland (art. 11 para. 1 ICA). See further the Electronic Commerce Directive (2000/31/EC) (art. 10 para. 3). N14. In England and Wales, no insurance policy is required by law except in marine insurance (s. 22 of the Marine Insurance Act 1906). However, the effect of the parol evidence rule is that, in practice, insurance contracts have to be in writing: see Clarke 11-2A1; 14-1.

Article 2:502 Effects of the Policy (1) If the terms of the insurance policy differ from those in the policyholder’s application or any prior agreement between the parties, such differences as have been highlighted in the policy shall be deemed to have been assented to by the policyholder unless he objects within one month of receipt of the policy. The insurer shall give the policyholder notice in bold print of the right to object to the differences highlighted in the policy. (2) If the insurer fails to comply with para. 1, the contract shall be deemed to have been agreed on the terms in the policyholder’s application or the prior agreement of the parties, as the case may be.

Comments C1.  The policy is a document evidencing the contract. Often it is also used as a tool for concluding the contract: Some jurisdictions hold that the insurer tacitly accepts the application by sending the policy to the policyholder. In other jurisdictions the policy is an offer by the insurer to the prospective customer who accepts the proposal by signing the policy. In both cases there is a risk that the terms of the policy depart from what was requested by the applicant or from prior agreement. Often the insurer will intentionally issue the policy with new or modified terms as a consequence of its risk evaluation. It is in the interest of lowering transaction costs in the insurance sector to allow an insurer to issue the policy on different terms. At the same time the policyholder must be protected against unsuspected changes of terms in the policy. Under general contract law such changes could even lead to an absence of agreement that

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might affect the whole contract and leave the policyholder unprotected. Article 2:502 serves to prevent such situations. C2.  Article  2:502 serves the interests of both the insurer and the policyholder in an even-handed way. It does so by giving constitutive effects to the policy if certain conditions are met: The policy will be deemed to be agreed upon by the parties if (i) the insurer has highlighted every variation of the policy from the application or prior agreement, (ii) the policyholder does not object to the variation within one month of receipt of the policy and (iii) the insurer has informed the policyholder in writing and in bold print about his right to object to the variations. From the rationale outlined in Comment 1 it follows that the term “policy” as used in Article 2:502 includes all documents attached or incorporated thereto such as the general contract terms as mentioned in Article 2:501. C3.  In some jurisdictions the policy is required to be signed or is normally signed by the policyholder. By signing the policyholder accepts the contents of the policy as the final agreement even if its terms depart from those of a previous application or agreement. Article 2:502 does not prohibit such practice. However, Article 2:502 grants special protection to the policyholder also in those cases. C4.  By providing special protection, Article 2:502 replaces national rules with similar effects such as the parol evidence rule.

Notes Legal Presumption of Approval N1. The presumption introduced in Article 2:502 para. 1 is already the state of the law in Austria and Germany (s. 5 para. 1 ICA), Greece (art. 2 para. 5 ICA); Poland (art. 811 para. 1 CC, with small differences); Portugal (art. 35 ICA); Spain (art. 8 para. 3 ICA) and Switzerland (art. 12 para. 1 ICA). N2. In the United Kingdom, the regulation is slightly different although achieving the same results: A policy inconsistent with the policyholder’s application is regarded as a counter-offer (Canning v Farquhar (1886) 16 QBD 727; Harrington v Pearl Life Co (1914) 30 TLR 613; Allis-Chalmers Co v Fidelity & Deposit Co (1916) 114 LT 433 (HL)). Accordingly, the policyholder can reject it or ask for renegotiations. If he does not, the content of the policy is deemed to be accepted. Only in exceptional cases can the policyholder who kept the policy without noticing the alterations claim that the insurer is estopped from relying on these alterations since the insurer’s conduct made the policyholder reasonably believe that his application was fully accepted (Freeman v Cooke (1848) 2 Exch 654, 663; Smith v Hughes (1871) LR 6 QB 597, 607). These circumstances are not easily proved by the policyholder. N3. However, the fiction that the policy has been approved takes effect only in case a proposal has been made, not in cases in which a contract has been concluded informally or in which a “common intention” has already existed before the delivery of the policy. In the latter cases, the

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policy is merely of probative value and the contents can be disproved. The policyholder is then entitled to sue on the earlier agreement or to seek a rectification of the policy (MacGillivray 2-025). More or less the same applies in the Netherlands: a policy, expressing an acceptance which deviates from the offer, is considered to be a new offer and a rejection of the original offer, unless the deviation refers to points of minor importance. In that case the policy is considered to reflect the agreed coverage unless the offeror objects to the differences without delay (art. 6:225 CC)

Term for Contradiction N4. The statutes mentioned in Note 1 all require that if the policyholder is to object that must be done within one month after receipt of the divergent policy (s. 5 para. 1 Austrian and German ICA; art. 2 para. 5 Greek ICA demands the objection to be in writing; art. 811 para. 1 Polish CC: minimum 7 days; art. 35 Portuguese ICA; art. 8 para. 3 Spanish ICA; art. 12 para. 1 Swiss ICA: four weeks). N5. In the United Kingdom, rectification can be sought after a loss has occurred (Henkle v Royal Exchange Assurance Co (1749) 1 Ves Snr 317; Eagle Star and British Dominions Ins Co v Reiner (1927) 27 Ll. L. R. 173; Bates (Thomas) & Son Ltd v Wyndham’s (Lingerie) Ltd [1981] 1 All ER 1077 (CA); for a recent and helpful statement of the law see T & N Ltd v Royal & Sun Alliance plc [2003] 2 All ER (Comm) 939 at [133] ff, per Lawrence Collins J). In any case, the insured must not have sued on the uncorrected policy before because this would be deemed an approval (Foster v Mentor Life Assurance Co [1854] 3 E & B 48, 65; Xenos v Wickham (1866) LR 2 HL 296, 324, per Lord Cranworth; Baker v Yorkshire Fire Assurance Co [1892] 1 QB 144; Dawsons Ltd v Bonnin [1922] 2 AC 413, 431-432, per Viscount Cave).

Preconditions for Presumption N6. In order to make this provision more protective to the policyholder, the presumption only takes effect under certain conditions, for example if the insurer has informed the policyholder about this specific consequence at the time of delivering the document by means of an additional note or an especially highlighted perceptible endorsement in the policy itself (s. 5 paras. 1 and 2 Austrian and German ICA; moreover, the particular variations must be pointed out separately, s. 5 para. 2 Austrian and German ICA) or if the insurer has duly informed the policyholder about the variations and about the right of the latter to object (art. 2 para. 5 Greek ICA; in addition, the insurer has to issue a separate printed specimen of the notice of objection). N7. Some statutes stipulate that the insurer only has to insert this very rule into the policy (the second sentence of art. 8 para. 3 Spanish ICA; art. 12 para. 2 Swiss ICA: the exact wording of this provision has to be included).

Signature as Means of Protection N8. Italian law contains a rule saying that if the content of the policy is not identical to the policyholder’s proposal, the policy is deemed expressly accepted if the policyholder signs the document (see Donati/Volpe Putzolu 180). If, however, the insurer has already accepted the policyholder’s proposal and then issues a diverging policy, the principal proposal prevails.

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Legal Presumption of Contract in Accordance with Application N9. If the insurer’s performance fails to meet the requirements established as preconditions for the fictitious approval of the – altered – policy, the insurance contract is regarded as having been agreed upon in accordance with the application. This rule is already known in Austria and Germany (s. 5 para. 3 ICA), as well as in Greece (art. 2 para. 5 ICA) and Poland (art. 811 para. 1 CC).

Section Six: Duration of the Insurance Contract Article 2:601 Duration of the Insurance Contract (1) The duration of the insurance contract shall be one year. The parties may agree on a different period if indicated by the nature of the risk. (2) Para. 1 does not apply to personal insurance.

Comments Comparative Survey C1.  Practices in insurance differ considerably as to the time-span of contractual commitments. In the USA insurers tend to conclude short-term contracts which give them liberty to adjust premiums to changing interest rates on the capital market. While insurance terms have gone down to less than one year and in some sectors of standardised consumer insurance even to three months some states have felt the necessity to enact legislation providing for a minimum duration of insurance contracts. A similar trend has never been observed in Europe. Where brokers have a strong market position they attach great importance to periodical renewal of insurance contracts which allows them to keep contact with their clients and to adjust the contracts to market conditions. Therefore, in countries such as Spain and the UK one year contracts are conventional although national legislation provides for a much longer maximum term (Spain) or does not fix any term whatsoever (UK).

In other European countries insurers have traditionally tried to extend the duration of contractual commitments as much as possible. By tying their customers for many years they improved the bases of their calculations without losing the ability to adjust the premiums which is often specifically allowed by contract clauses. C2.  More recent developments in Europe are characterised by the adoption of maximum terms of insurance contracts. Various states have taken the view that the policyholder has to be protected against long-term contracts which tie the customers for a period of time going beyond the foreseeable future.

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Structure of the Rule C3.  Article 2:601 para. 1 is conceived as a mandatory provision which purports, as a general rule, to forbid the conclusion of insurance contracts for a period of less or more than one year. Admittedly, a specific provision on a minimum term is not required to cope with practical needs existing in Europe at present.

But the rapid development of capital markets and the experience of the United States suggest that a rule against ultra-short insurance terms should be adopted in time. By way of exception insurance terms of less than one year (or more than one year) may be agreed upon if the insured risk is of such a nature that a shorter insurance period is appropriate, for example travel insurance or the insurance of exhibition equipment. The provision does not deal with the term of insurance contracts that are covered by that exception. C4.  Limitation of the insurance term can be achieved in different ways. The parties may either be allowed to make contracts for a longer or even unlimited period of time if they are given an inalienable right to terminate the contract by unilateral declaration when the maximum time-span expires. Alternatively it is possible to invalidate a contract clause which provides for a longer term; in that case the need for an extension of the insurance cover can be served by a rule on the renewal of the policy. While the former model has been followed in some States such as France, Germany and Austria, other countries including Belgium and Sweden have preferred the establishment of a maximum contract term. While both solutions have their merits, the Principles of European Insurance Contract Law prefer the latter for its clarity and because it reduces problems connected with the adjustment of the policy; see below Article 2:602 Comments 2 and 3.

Duration of the Contract Period C5.  The Principles of European Insurance Contract Law establish a maximum contract term of one year in Article 2:601 and a provision for automatic prolongation in Article 2:602. The term of one year is in line with more recent legislation in the field, in particular with the laws of Belgium, France, Luxembourg and Sweden. Under Finnish law the policyholder is even entitled to terminate an insurance contract at any time during the insurance period. The Proposal for a Council Directive on Insurance Contract Law provided for a maximum term of three years, and Austria has adopted this rule for a termination by a consumer. In Germany a one-year term is fixed for motor liability insurance, but the general rule was five years and is now three years under the new ICA of 2007. The one-year term thus reflects the general legislative trend towards shorter contract terms in several Member States and the prevailing practice in others. It also avoids a number of inconveniences that longer terms may give rise to such as the need for an adjustment of conditions and premium, premature termination and so on.

Effects of Violation C6.  The limitation of contractual freedom by Article 2:601 para. 1 raises the question as to the legal consequences of a contract that provides for a longer or a shorter insurance term not covered by this provision. In the national legal systems the issue is not dealt with by

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insurance contract laws, but by general principles of private law. This method can equally be applied in the context of Article 2:601. Under Article 4:116 PECL the effect of avoidance is limited to the terms affected by the ground of avoidance unless it would appear unreasonable to uphold the remaining contract. Consequently, an insurance contract providing for an invalid term of five years would be regarded as a contract without a defined period. The establishment of the period of insurance would be a matter of interpretation under Article 5:101 PECL; under Article 2:601 the term would be one year.

Personal Insurance C7.  In health and life insurance the demand for insurance cover is different. Since health inevitably gets worse in the long run, short-term insurance entails the risk of a steady rise in the level of premiums over the years and of an eventual loss of insurance cover altogether in old age. Therefore, personal insurance is characterised by contracts of indefinite duration or – in some sectors of life assurance – by long-term policies, and legislation in many countries even restricts the insurer’s right to terminate such contracts. The model of the short-term policy adopted by the Principles of European Insurance Contract Law cannot be applied to personal insurance which is used in Article 2:601 as a synonymous expression covering health and life insurance (see also Article 13:101).

Notes Maximum Period N1. Much European legislation provides for protection against excessively long contract periods. Some statutes allow for termination after the expiry of a given period, others limit the duration of the contract period itself. Thus, the rule in the first sentence of Article 2:601 para. 1 corresponds to the laws of Belgium, Portugal and Sweden (the first sentence of art. 85 para. 1 Belgian IA 2014; art. 40 Portuguese ICA; s. 3 of Ch. 3, s. 4 of Ch. 8 Swedish ICA). The rule in the second sentence of Article 2:601 para. 1 is to be found only in the law of Sweden (the second sentence of s. 3 of Ch. 3 ICA). N2. In all other legal systems in Europe, subject to unilateral rights of termination, the duration of the insurance contract is a matter for the policy itself to provide. However, the period that is commonly fixed is different. In Denmark, Ireland, Spain, and the United Kingdom insurance contracts usually expire after one year (see for Denmark Basedow/Fock-Scherpe 991, Sørensen 98; for Ireland Basedow/Fock-Rühl 1508; for Spain Basedow/Fock-Schlenker 1367, Bataller/Latorre/ Olavarria 186; for Portugal Vasques 233; for the United Kingdom Birds 5.7.1, Clarke 18-3A), whereas they may run for an indefinite period in Austria, Germany, Greece, France, Luxembourg, the Netherlands, Poland, and Switzerland (see Basedow/Fock-Basedow/Fock 123 f.). For Italy, even if in principle there is no maximum period, when the period of a non-life insurance contract is longer than five years the policyholder can always terminate it (see art. 1899 CC, as modified by Law of 23 July 2009, no. 99). Specific rights of termination are provided in the event of premium variations. N3. In practice, however, the difference between the former and the latter countries is minor: To

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avoid undue hardship that might result from an indefinite insurance period, the laws of Austria, Germany, Greece, France, Italy, Luxembourg and the Netherlands allow either party to terminate the contract after a certain period of time has elapsed (see Basedow/Fock-Basedow/Fock 123 f.). In France and Luxembourg termination of the contract is possible every year on the anniversary of the policy (art. L. 113-12 para. 2 French ICA; art. 38 para. 2 Luxembourg ICA). The same is basically true for Austria, Germany and Greece: A contract made for an indefinite period may be cancelled at the end of every premium term which is one year unless the parties provide for a shorter term (ss. 8 para. 2, 9 Austrian ICA; ss. 11 para. 2 and 12 German ICA; art. 8 paras. 2 and 6 Greek ICA). In the Netherlands, insurance contracts running for more than five years may be terminated every five years (art. 7:940 para. 2 CC). In Austria, cancellation of contracts made for a definite period of more than three years is allowed after three years and every following year (s. 8 para. 3 ICA, which only applies to consumers within the meaning of the second sentence of s. 1 para. 1 of the Consumer Protection Act), in Germany, too, after three years and every following year (s. 11 para. 4 ICA). In Italy, both parties are allowed to terminate at the end of each year insurance contracts that run for an indefinite period, except where specific economic advantages have been given to the policyholder for a pluriennal contract: in this case, the policyholder can terminate the contract after five years, otherwise he will lose the economic benefits; in any case, the rule does not apply to life insurance (see new art. 1899 as modified by Law of 23 July 2009, no. 99). In Finland, the contract may be cancelled by the policyholder at any time (s. 12 ICA, unless the agreed duration of the insurance contract is shorter than 30 days). A look at the more recent enactments reveals a general trend to shorter maximum periods.

Personal Insurance N4. The rule in Article 2:601 para. 2 is in accordance with the law of Belgium (art. 85 para. 1(4) IA 2014) and the Netherlands (art. 7:940 para. 2 CC). A similar rule applies in Spain for life assurance (art. 22 para. 3 ICA). In Denmark, Ireland and the United Kingdom, where most insurance contracts expire after one year even though there is no corresponding rule of law, personal insurances, in particular life and health insurances, run for a longer period of time (see Basedow/Fock-Basedow/Fock 124 f.; see for Ireland Basedow/Fock-Rühl 1508; Vasques 233; for the United Kingdom Birds 5.7, Clarke 11-4B; Basedow/Fock-Rühl 1508). In Portugal and Sweden, on the other hand, the duration of personal insurance is also limited to one year unless the parties agree otherwise (for Portugal, this follows from the fact that the rule on duration is contained in the general part of the ICA (título I) which applies equally to indemnity insurance and personal insurance; for Sweden, see s. 2 of Ch. 11 ICA).

Article 2:602 Prolongation (1) After the one-year period referred to in Article 2:601 has expired the contract shall be prolonged unless (a) the insurer has given written notice to the contrary at least one month before the expiry of the contract period stating the reasons for its decision; or (b) the policyholder has given written notice to the contrary at the latest by the day the contract period expires or within one month after having received the insurer’s premium invoice whichever date is later. In the latter case, the one month period shall only start to run if it has been clearly stated on the invoice in bold print. (2) For the purposes of para. 1(b) notice shall be deemed to be given as soon as it is dispatched.

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Comments The Need for Prolongation C1.  The time limitation for insurance contracts established in Article 2:601 has to be accommodated with the need felt by the vast majority of insurers and their customers to maintain business relations over longer periods of time. A complete renegotiation of all insurance contracts every year which would follow from the general rules on contract law appears inappropriate.

Policyholders who, for reasons of absence, sickness and so on, cannot be contacted by the insurer would remain without insurance cover. Moreover, the general renegotiation of all policies would be excessively costly given the small number of policies which are not renewed in practice. The national legal systems of Member States therefore facilitate prolongation by two types of solution: they either mandate a prolongation of the policies by operation of law, or they allow for contract clauses which provide for such prolongation. The practical difference between the solutions is not great. Article 2:602 adopts the former model which takes precedence over the time limitation laid down in Article 2:601.

Prolongation and Renewal C2.  The prolongation is to be distinguished from renewal in the sense of a new agreement for the purposes of the applicant’s or the insurer’s information duties, of the duty to issue certain documents in relation to the conclusion of the contract, of the consequences attached to the non-payment of the first premium and of other obligations in relation to the formation phase of the contract. If, however, one of the parties gives notice in accordance with Article 2:602 and a new contract is made between the same parties afterwards, it will depend upon the particular circumstances of the case whether the rules of law relating to the formation stage of the contract apply.

Adjustment of Contract C3.  As a consequence of prolongation by operation of law, a contract incorporating the conditions of the preceding year remains in effect. However, in long-term insurance there is often a practical need for the adjustment of premium or contract clauses for a change of risk or market conditions. Under the regime of one-year policies the insurer will use the annual notice of prolongation for such adjustment. Article 2:602 allows the insurer to send at the same time a reasoned notice of termination and a proposal for a modified contract. If the notice lacks the statement of reasons required, the contract will be prolonged nonetheless on the same terms and conditions as in the previous year.

Form of Notice C4.  As regards the notice referred to in subparas. (a) and (b) it must be made in writing for reasons of clarity. This includes means of communication that provide a record readable by both sides, as defined by Article 1:301 para. 6 PECL. In particular, messages sent by telegram, telex, telefax and e-mail are equivalent to written statements under that rule.

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In order to be valid the insurer’s notice has to set forth the reasons for the insurer’s decision not to prolong the contract. This information is meant to equip the policyholder with knowledge that might be useful for him when applying for coverage with another insurer. The reasons given are not subject to judicial review unless they are against good faith or public policy. Thus, reference to the policyholder’s ethnic origin may invalidate the notice under general principles.

Term of Notice C5.  The term laid down for the notice of termination given by the insurer differs from that fixed for the policyholder. This difference is based on the consideration that continuous insurance cover is of vital importance to the vast majority of policyholders in many sectors of insurance. Therefore, the term established for the insurer’s notice of termination must allow the policyholder to compare competing offers while he is still protected by the old contract and to negotiate for a smooth transition into the new one. Under Article 2:602 para. 1(a) the insurer’s notice must therefore be given one month before the expiration of the contractual term at the latest. On the other hand, there is no need to protect the insurer against a notice of termination given shortly before the end of the contractual term. It would even appear that a policyholder, who is reminded of the end of the contractual term only by the insurer’s invoice for the subsequent year which is sent just before the end of the term or even afterwards, should be allowed to compare competing offers for the usual period of one month which in practice would extend the original term of the contract. This particular favour takes account of the typical consumer who does not think of his insurance cover until he is reminded by the insurer’s notice for the following year. The notice period of one month does not start to run unless it has been clearly stated on the invoice. If the invoice does not contain this information, the policyholder may terminate the prolonged contract at any time during the subsequent annual period. C6.  The time limits established for the notice of termination should be computed along the lines laid down in Article 1:304 PECL, insofar as Article 2:602 does not provide for different solutions. Contrary to Article 1:303 PECL but in line with various Community acts in the field of consumer protection (see, for example, art. 11 para. 2 of the Consumer Rights Directive (2011/83/EU), art. 7 of the Timeshare Directive (2008/122/EC)) the deadline laid down for a policyholder’s notice shall be deemed to have been observed if the notice has been dispatched in time. In accordance with Article 1:303 PECL the insurer’s notice of termination becomes effective when it reaches the addressee, namely when it is delivered to the addressee or to his place of business or mailing address, or, if the addressee does not have a place of business or mailing address, to his habitual residence.

Notes Statutory and Contractual Prolongation N1. The rule in Article 2:602 corresponds to the laws of Belgium, Portugal and Sweden (the second sentence of art. 85 para. 1(1) Belgian IA 2014; art. 41 para. 1 Portuguese ICA: the contract is prolonged after the lapse of one year unless the parties have agreed otherwise; s. 4 of Ch. 3, s. 4 of

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Ch. 11 Swedish ICA). In Denmark, Finland (for non-life insurance), Ireland and Portugal, similar rules may be and usually are contractually stipulated (see Basedow/Fock-Basedow/Fock 125 f.; see for Denmark Lyngsø 158, Basedow/Fock-Scherpe 992, Sørensen 98; for Finland, see s. 16 ICA (non-life insurance); for Portugal Basedow/Fock-Schlenker 1193). The same is true for Austria, France, Greece, Italy, Luxembourg, the Netherlands and Switzerland as regards those insurance contracts that do not run for an indefinite period, but for a limited period of time only (see for Austria s. 8 para. 1 ICA, Basedow/Fock-Lemmel 1112, Schauer 301; for France Bonnard, Droit et pratique, para. 594, Lambert-Faivre, para. 240, Basedow/Fock-Völker 555-556; for Greece art. 8 para. 1 ICA ; for Italy art. 1899 CC, Basedow/Fock-Brunetta d’Usseaux 741, Steidl 150; for Luxembourg art. 83 para. 3 ICA, Bisenius 63, Basedow/Fock-Völker 813; for the Netherlands Clausing/ Wansink 136, Basedow/Fock-Fock 896; for Switzerland art. 47 ICA, Basedow/Fock-Bälz 1263). In Poland, similar rules apply for compulsory insurance (see the Act on Compulsory Insurance); the Polish Civil Code does not cover issue of prolongation at all.

Period of Prolongation N2. In most countries, the prolongation of the contract will be for a limited period of time only. In Belgium, Greece, Portugal, Sweden and Spain, the contract will be prolonged for one year (art. 85 para. 1(1) Belgian IA; art. 8 para. 1(b) Greek ICA; art. 41 para. 1 Portuguese ICA; s. 4 of Ch. 3 Swedish ICA; the second sentence of art. 22 para. 1 Spanish ICA). The same effect is achieved in Austria, Germany, Luxembourg and Switzerland where the insurer may not invoke a contractual clause insofar as it provides for prolongation of more than one year (s. 8 para. 1 Austrian ICA; s. 11 para. 1 German ICA; art. 83 para. 3 Luxembourg ICA; art. 47 Swiss ICA). In Italy, the prolongation of the contract will be for two years (art. 1899 para. II CC). In the Netherlands the same rule as for the initial period of contract applies to the prolongation of the contract (art. 7:932 para. 2 CC).

Prolongation and Renewal N3. In Belgium, Denmark, Germany, the Netherlands, Portugal and Sweden, the prolongation is classified as a continuation of the original contract (see for Belgium Basedow/Fock-Fock 293294; see for Denmark Basedow/Fock-Scherpe 992; for Germany Bruck/Möller-Johannsen, § 11 VVG para. 10, Basedow/Fock-Lemmel 436, and Prölss/Martin-Armbrüster, § 11 VVG para. 2; for Portugal Basedow/Fock-Schlenker 1193 [still valid for the new ICA], Vasques 233; for Sweden Basedow/Fock-Scherpe 992 [still valid for the new ICA]). In Ireland and the United Kingdom, it is seen as the making of a new contract (see for Ireland Basedow/Fock-Rühl 1508; for the United Kingdom Stokell v Heyward [1897] 1 Ch 459; Birds 5.7, Clarke 11-4B, Basedow/Fock-Rühl 1508). Therefore, both the insurer and the policyholder have to fulfil the duties that are imposed before conclusion of any insurance contract, such as the duty to disclose material circumstances (Lambert v Cooperative Insurance Society Ltd [1975] 2 Lloyd’s Rep 485, see Basedow/Fock-Basedow/ Fock 125 f.). The law in Belgium, France, and Greece regarding this point is unsettled (see for Belgium Basedow/Fock-Fock 295, Fontaine, para. 407; for France Lamy Assurances, para. 511; Lambert-Faivre, para. 242, Picard/Besson, para. 166, Basedow/Fock-Völker 556; and for Greece Rokas, paras. 272 ff.).

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Article 2:603 Alteration of Terms and Conditions (1) In an insurance contract liable to prolongation under Article 2:602, a clause which allows the insurer to alter the premium or any other term or condition of the contract shall be invalid unless the clause provides that (a) any alteration shall not take effect before the next prolongation, (b) the insurer shall send written notice of alteration to the policyholder no later than one month before the expiry of the current contract period, and (c) the notice shall inform the policyholder about his right of termination and the consequences if the right is not exercised. (2) Para. 1 shall apply without prejudice to other requirements for the validity of alteration clauses.

Comments The Need for a Rule for Alteration C1.  Article 2:602 provides for a prolongation of one-year contracts by operation of law. Other contracts may include a clause to automatically prolong (or renew). In these circumstances, there may be a need for adjustments and for some mechanism that allows a modification of the premium or the conditions of the contract.

The Need for a Special Rule for Insurance Contracts C2.  Before deregulation within the European Community, following from the implementation of the Third Generation of Insurance Directives (92/49/EEC and 92/96/EEC), modification of contracts was mostly the function of alteration clauses. In most countries, such clauses and the way they were used by the insurers had to be approved by the supervisory authority. C3.  Since deregulation prior approval of alteration clauses is no longer allowed. Furthermore, the consent of the supervisory authority is no longer required for the use of contractual rights of alteration. Today alteration clauses can only be vetted ex post under the rules on unfair contract terms. However, these rules offer no particular guidance on the validity of alteration clauses.

Therefore, to take into account the specific features of insurance contracts, several national legislators have passed statutory provisions setting minimum standards for the validity of alteration clauses.

The Concept Underlying Article 2:603 C4.  There are at least two ways to deal with the problem by legislation: One is to specify the requirements for a valid alteration clause (for example Sweden), the other is to set minimum standards for such a clause (for example Finland). C5.  Article 2:603 adopts the second solution. This is in line with the traditional solutions in the national legal systems of several Member States.

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Furthermore, it is very difficult to specify requirements for the validity of alteration clauses in all types of insurance contracts, as they may be different. Thus, the scope of alteration allowed (premium adjustments only or also amendment of other terms and conditions) or the conditions of the market may require an “independent expert” to review and approve each alteration. Moreover, depending on the type of insurance, it might be necessary to set limitations on the contents of an alteration clause in order to protect the interests of the policyholder effectively. Therefore, a flexible approach is required and Article 2:603 only sets minimum requirements for alteration clauses, not excluding additional requirements laid down in the general law on unfair contract terms.

Minimum Standards for an Alteration Clause C6.  In general, the policyholder is sufficiently protected by the requirements stated in Article 2:603. The requirement of written notice, which must be in clear terms and in the language in which the contract was negotiated (Article 1:203 para. 1), ensures transparency of the alteration procedure. The policyholder’s right to terminate the contract ensures that no alteration will be unilaterally imposed by the insurer. The policyholder is thus put in a position to consider the alterations intended by the insurer and whether or not to exercise his right to terminate the contract.

Notes Article 2:603 para. 1 N1. In most European countries, the insurer may reserve the right to alter the insurance contract in the manner referred to in Article 2:603 para. 1 (art. 42 para. 1 Luxembourg ICA; s. 19 Finnish ICA. See for Austria Basedow/Fock-Lemmel 1075 f.; for Belgium Basedow/Fock-Fock 270; for Denmark Basedow/Fock-Scherpe 974; for Italy Basedow/Fock-Brunetta d’Usseaux 713; for Ireland Basedow/Fock-Rühl 1467; for Switzerland Basedow/Fock-Bälz 1241). Only the law of Sweden provides for a statutory right to alter the terms and conditions of the insurance contract, in conjunction with prolongation, irrespective of any alteration clause contained in the contract (s. 5 of Ch. 3 ICA). In Germany, such a statutory right to alter the terms and conditions exists only for life occupational disability insurance and health insurance (ss. 163, 164, 176 and 203 paras. 2 and 3 ICA), for all other contracts the insurer may contractually reserve the right (Wandt, para. 210). In the Netherlands, the insurer may as a condition precedent to the prolongation of an individual contract of insurance propose to alter the premium and/or the conditions of the contract. In case the policyholder refuses to accept this proposal, the insurer may terminate the contract. Art. 7:940 para. 4 CC limits a contractual right for the insurer to alter the terms and conditions of all policies belonging to the same category during the period of contract where the alteration is detrimental to the policyholder (en-bloc clauses). In Poland there is no statutory regulation of alterations of contract of this kind. In the UK, for example in respect of PHI or LTC insurance, insurers may reserve a right to vary the premium. There the understanding would be that the insurer is entitled to take account of changes, namely in practice, increases in the cost of

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matters for which there is no published (price) index. Analogy with cases in which lenders have retained a right to vary interest rates suggest that the insurer must exercise this right in good faith; in that regard see Director General of Fair Trading v First National Bank [2001] UKHL 52, [2002] 1 AC 481, [2002] 1 Lloyd’s Rep 489. N2. In all European legal systems, such clauses are regulated by the general rules of contract law or of the law on general contract terms (s. 6 para. 1(5) of the Austrian Consumer Protection Act; ss. 307 and 308 para. 4 German CC; arts. 371 and 372 Greek CC. See for Germany Wandt, paras. 215 ff.; for Denmark Basedow/Fock-Scherpe 974; for Finland Basedow/Fock-Scherpe 974). In addition, some legal systems have minimum requirements for such clauses (s. 19 Finnish ICA; s. 5 of Ch. 3 in conjunction with s. 6 of Ch. 2 Swedish ICA; art. 42 Luxembourg ICA). Those rules usually state formal requirements for the validity of such clauses that are similar to the ones mentioned in Article 2:603 para. 1. Only very few countries have established further requirements (ss. 172 and 178f Austrian ICA for health and life insurance; s. 19 Finnish ICA). In Belgium, France, Greece, Ireland, the Netherlands, Switzerland, and the United Kingdom, there are no special rules stating minimum requirements for such clauses (see for Belgium Basedow/Fock-Fock 270; for Ireland Basedow/Fock-Rühl 1467; for the United Kingdom Basedow/Fock-Rühl 1467, where, generally, unilateral alteration of terms agreed post contract is not permitted by law).

Article 2:603 para. 1(a) – Commencement of Alteration N3. Only the laws of Finland, Luxembourg and Sweden provide a rule relating to the time the clause takes effect that is similar to the rule of Article 2:603 para. 1(a). According to s. 19 para. 2 Finnish ICA, an alteration takes effect at the commencement of the insurance period which next follows after a month has elapsed from the date on which the insurer dispatched the notification of the changed conditions to the policyholder. The same rule applies in Sweden under s. 5 of Ch. 3 ICA. Art. 42 para. 2 Luxembourg ICA provides that any alteration of the premium shall not take effect before the next annual premium is due.

Article 2:603 para. 1(b) – Notice N4. Most legal systems in Europe require an insurer who wishes to alter the premium or the conditions to give written notice to the policyholder before the expiration of the current contract period. However, the national laws differ with regard to the period of time the notice has to be given in advance. The law of Finland requires a period of one month as does Article 2:603 para. 1(b), see the third sentence of s. 19 para. 2 ICA. In some countries the period is longer: in Luxembourg, the notice has to be given three months in advance (the first sentence of art. 42 para. 3 ICA). In Belgium, motor policies usually provide that the insurer has to give notice to the policyholder 90 days before the next premium is due (see Basedow/Fock-Fock 270). In Sweden, the rule is flexible: the insurer has to give notice no later than concurrently with the invoice for the prolonged insurance policy; the prolonged policy runs for the period and on the conditions specified by the insurer (s. 5 of Ch. 3 ICA).

Article 2:603 para. 1(c) – Right of Termination N5. In most legal systems in Europe and sometimes subject to further requirements, the policyholder has a right to terminate the contract either by law (s. 12 Finnish ICA, s. 40 German ICA;

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the second sentence of art. 42 para. 3 Luxembourg ICA) or by the terms of the policy itself (see for Belgium Basedow/Fock-Fock 270 and for the United Kingdom Sun Fire Office v Hart (1889) 14 App Cas 98; Clarke 18-3E2. According to the second sentence of s. 19 para. 2 Finnish ICA, the insurer must remind the policyholder of this right). However, only in Luxembourg is the insurer required to inform the policyholder about his right to terminate the insurance contract as provided in Article 2:603 para. 1(c) (the second sentence of art. 42 para. 3 ICA).

Article 2:604 Termination after the Occurrence of an Insured Event (1) A clause providing for termination of the contract after an insured event has occurred shall not be valid unless (a) it grants the right to terminate to both parties and (b) the policy is not one of personal insurance. (2) Both the provision for termination and the exercise of any right to terminate must be reasonable. (3) Any right to terminate shall expire if the party in question has not given written notice of termination to the other party within two months after becoming aware of the insured event. (4) The insurance cover shall terminate two weeks after notice in accordance with para. 3.

Comments The Need for Termination C1.  The insurance contract is characterised by deficits of information on both sides: while the insurer is often ignorant about the particulars of the risk, the policyholder has little knowledge of the insurer’s practices concerning the handling of claims. The occurrence of an insured event is the moment of truth and either party may wish to terminate the contract.

Statutory and Contractual Rights to Terminate C2.  Although that wish to terminate is less urgent under a regime of short-term policies it is still not necessarily absent. Some countries such as France and Germany grant the right to terminate a contract in their statutes. The matter can be left to the contract, however, given the strong incentive for insurers to cut short their commitment once they know the true extent of the risk. Contrary to many older national laws there must be a safeguard, however, against one-sided clauses. In accordance with more recent statutes such as the law of Belgium the option of termination must be granted to both parties.

For the reasons indicated in Article 2:601 Comment 7 personal insurance cannot be subject to this type of optional termination.

Time Limits C3.  Certainty in contractual relations requires that the option of termination be granted only for a short time. The period of two months allows for a preliminary assessment of the damage and its causes, and of the insurer’s practice with regard to the handling of claims.

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Other Rights to Terminate C4.  National insurance contract laws grant the right of termination in a number of other cases such as non-payment of premium, misinformation about the risk, aggravation of risk and non-notification of such alteration, transfer of the insured goods or property, death or insolvency of the policyholder and so on. The Principles of European Insurance Contract Law deal with some of these types of termination in the event of non-compliance with contractual duties in the context of the duty in question; other types of termination have little importance under a regime of short-term policies. It should also be borne in mind that a party is entitled to terminate a contract under general principles, if the other party’s non-performance is fundamental; see Article 9:301 PECL.

Application to Group Insurance C5.  For the meaning of Article 2:604 in the context of group insurances, see Article 18:203 para. 1.

Notes Article 2:604 para. 1 N1. The insurer’s right to terminate the insurance contract after the occurrence of an insured event provided for in Article 2:604 para. 1 is to be found in most European legal systems, except, for example, in Finland, and in Spain where a clause providing termination of the contract after the occurrence of an insured event is considered abusive (see Bataller/Latorre/Olavarria 186). It is usually of a contractual nature (see for Austria Basedow/Fock-Lemmel 1116; for Denmark Basedow/Fock-Scherpe 994; for France art. 113-12 ICA; for Germany Basedow/Fock-Lemmel 439; for Greece the second sentence of art. 8 para. 5 ICA; for Italy such a clause is allowed only if specifically agreed in non-consumer contracts, see art. 1341 CC and Basedow/Fock-Brunetta d’Usseaux 744, de Gregorio/Fanelli 106; in consumer contracts, such a clause, even if agreed, is considered to be unfair under the rules on unfair contract terms in the Consumer Code, see Cerini 74 and more recent case law; for Luxembourg Basedow/Fock-Völker 814; for the Netherlands art. 7:940 para. 3 CC; for Portugal see art. 117 ICA; for the United Kingdom Tyrie v Fletcher (1777) 2 Cowp 666; Birds 5.7.1, Clarke 18-3C, Rose 10.38 ff., Basedow/Fock-Rühl 1510). Only in Austria and Germany and only for some sorts of insurance contracts is the right to terminate based on the law (ss. 96, 113 and 158 Austrian ICA; ss. 92 and 111 German ICA). N2. Few countries impose restrictions on the validity of the insurer’s right to terminate the insurance contract similar to the ones provided for in Article 2:604 para. 1. The restriction laid down in Article 2:604 para. 1(a) comes close to the laws of Belgium, Greece, the Netherlands and Portugal. Under these legal systems, clauses like the ones referred to in Article 2:604 para. 1(a) are valid. However, by operation of law the right to terminate the contract is also granted to the policyholder (the first sentence of art. 86 para. 1 Belgian IA 2014; the second sentence of art. 8 para. 5 Greek ICA; art. 7:940 para. 3 Dutch CC; art. 117 Portuguese ICA: subject to party agreement).

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N3. The restriction of Article 2:604 para. 1(b) is to be found in the laws of Belgium, Luxembourg and the Netherlands (art. 86 para. 2 Belgian IA 2014; art. 41 para. 1 Luxembourg ICA; art. 7:940 para. 5 Dutch CC). In Belgium, the right of the motor vehicle liability insurer to terminate the insurance contract is limited to those cases where the insurer is under the obligation to cover the damage suffered by the victim. In Austria and Germany, the right to terminate the insurance contract after the occurrence of an insured event does not apply to health insurance (s. 178i para. 2 Austrian ICA; s. 206 German ICA). In Portugal, clauses giving the insurer a right to terminate are excluded in life, health and indemnity insurance (art. 117 para. 3 ICA).

Article 2:604 para. 2 – Reasonableness N4. No country apart from the Netherlands has a specific rule that termination must be reasonable as required by Article 2:604 para. 2 (see Basedow/Fock-Basedow/Fock 128-129). According to art. 7:940 para. 3 CC, the insurer may only terminate on the grounds stated in the contract, which are of such a nature that it can no longer be required to be bound by the contract. However, the exercise of the right of termination may be barred in particular cases under general principles like abuse of rights, estoppels, and so on.

Article 2:604 para. 3 – Expiration of the Right of Termination N5. In all European countries, the right to terminate the insurance contract upon the occurrence of an insured event is lost if it is not exercised within a certain period of time. However, the time limits imposed are usually different from the ones fixed by Article 2:604 para. 3. In Denmark, the right to cancel the insurance contract expires 14 days after the policyholder has given notice of the occurrence of an insured event or – in the absence of such notice – 14 days after the insurer received knowledge of the insured event (see Lyngsø 149, Basedow/Fock-Scherpe 994). In Belgium and Portugal, the right to terminate the insurance contract must be exercised within one month after payment of the claim or the insurer’s refusal to pay (the second sentence of art. 86 para. 1 Belgian IA 2014, art. 117 para. Portuguese ICA). In France, the insurer will not be allowed to cancel the contract if it has known about the occurrence of the insured event for more than one month and still accepts the insurance premium (the second sentence of art. R. 113-10 para. 1 ICA). In Austria and Germany, insurer and policyholder lose the right to terminate the contract one month after they have – with or without success – terminated negotiations about the payment of the claim (s. 96 para. 2 and the first sentence of s. 158 para. 2 Austrian ICA; the first sentence of s. 92 para. 2 and the first sentence of s. 111 para. 2 German ICA). In the United Kingdom the point is governed, if at all, by the terms of the policy.

Article 2:604 para. 4 – End of Cover N6. In most Member States the insurance cover ends some time after the policy has been terminated upon occurrence of the insured event. However, most of the countries provide for a longer period of time than Article 2:604 para. 4. In France and the Netherlands, the insurance cover ends one month from the date on which notice of termination was given to the other party (the first sentence of art. R. 113-10 para. 1 French ICA; art. 7:940 para. 3 Dutch CC). In Austria and Germany, the same rule applies where the insurer terminates the contract (s. 96 para. 2 and s. 158 para. 2 Austrian ICA; s. 92 para. 2 and s. 111 para. 2 German ICA). On the other hand, if the policyholder terminates the contract he may choose that the termination takes effect either

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immediately or at any other moment within the stipulated insurance period (the third sentence of s. 96 para. 2 and s. 158 para. 2 Austrian ICA; the third sentence of s. 92 para. 2 and s. 111 para. 2 German ICA). In Belgium, cover ends after three months (art. 84 para. 2 together with art. 86 para. 1(2) IA 2014). However, termination becomes effective one month after notification where there is a suspicion of fraud, but only if the insurer has secured a criminal prosecution of the suspect (art. 86 para. 1(3) IA). In Greece, the termination, if initiated by the insurer, shall not take effect until the lapse of thirty days from the date on which such notice of termination was communicated to the policyholder; or fifteen days, if the insurer can point to a breach by the policyholder of his disclosure duties (see the third sentence of art. 8 para. 5 and the first sentence of art. 3 para. 7 ICA). A period shorter than that laid down in Article 2:604 para. 4 is to be found only in the laws of Greece and the Netherlands and only for the special case of fraud; according to art. 7:940 para. 3 Dutch CC, if the policyholder makes a fraudulent claim, insurance cover will terminate immediately, on the date of notification, while, according to the second sentence of art. 3 para. 7 Greek ICA, in case of intentional breach by the policyholder of its disclosure duties, the termination should take immediate effect.

Section Seven: Post-contractual Information Duties of the Insurer Article 2:701 General Information Duty Throughout the contract period the insurer shall provide the policyholder without undue delay with information in writing on any change concerning its name and address, its legal form, the address of its head office and of the agency or branch which concluded the contract.

Comments The Need for Information During the Period of Insurance Cover C1.  Article 2:701, like Article 2:702, deals with the duty of the insurer to keep the policyholder informed during the contract period (for similar duties concerning the initial stage of the contract see Articles 2:201 and 2:501). It is important for the policyholder to be informed accurately in order that he can assert his contractual rights properly. Insurers should at least provide policyholders at all times with clear and accurate information as to the essential features of the insurance product held. The two provisions of Section 7 distinguish information duties imposed by law from those which are triggered by the policyholder’s request. The former concern only basic data needed by the policyholder for the purposes of communication. The latter deal with the insurance product as such.

Information to Be Given in All Cases C2.  Article 2:701 is in line with art. 185 para. 5 of the Solvency II Directive (2009/138/EC). The duty to inform should, however, not be limited to life assurance but applies to all types of insurance contracts. Nevertheless, post-contractual information duties are extended in case of life insurance in accordance with Article 17:301.

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C3.  Compared with a duty to inform when requested (see Article 2:702), a duty to inform spontaneously should be more restricted in view of the burden it puts on the insurer. Under such a duty, the insurer must contact all its policyholders. Therefore, a duty to inform spontaneously should be limited to changes considered to be so important that all policyholders need to be aware of them. C4.  Policyholders must therefore be informed of any change in the registered name of the insurer or in its corporate structure; in the address of its head office and, where appropriate, of the agency or branch which concluded the contract. This will enable them to contact the insurer if they deem it necessary.

Information about Changes in the Contract C5.  Contrary to the Solvency II Directive (2009/138/EC), art. 185 para. 5, Article 2:701 does not require information about a change in the general contract terms (see, however, Article 17:301 para. 2 concerning life insurance). This is covered by Article 2:603 para. 1(b) and (c) (“Alteration of Terms and Conditions”). For the same reason Article 2:701 does not include a duty to send information about any other essential changes in the contract.

Updating Information C6.  Article 2:701 does not oblige the insurer to update information previously given. Such a duty would either follow from the operation of Article 2:603 para. 1(b) and (c), which requires information about changes in the contract, or from the application of the principle of good faith.

Manner of Communication C7.  The information required under Article 2:701 must be given in writing and without undue delay. This is flexible enough to allow the insurer to produce the information in the normal course of business.

Notes Survey N1. Post-contractual information duties of the insurer are subject to detailed provisions in the Member States. Information duties may be contained in supervisory law as well as in insurance contract law. In Austria, Belgium, the Netherlands and the United Kingdom, post-contractual information duties of the insurer are a matter of insurance supervision. In other countries, such as France, Finland, Germany, Luxembourg and Sweden, they are regulated in the complex of insurance contract law.

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Life Insurance N2. Art. 185 para. 5(b) of the Solvency II Directive (2009/138/EC), which replaces art. 36 of the Life Assurance Consolidation Directive (2002/83/EC), provides that, during the period of the contract, the policyholder shall be informed of any changes concerning the insurer’s name and address, its legal form, the address of its head office and of the agency or branch which concluded the contract. This mirrors Article 2:701 PEICL. In case of an additional contract between the parties, or when changes occur in the legal framework, the insurer, pursuant to Art. 185 para. 5(c) of the Solvency II Directive (2009/138/EC), must provide the policyholder with information on all central aspects of the contract as set out in art. 185 para. 3(d) – (j) of the Solvency II Directive (2009/138/EC). Finally, the insurer must annually inform the policyholders on the state of their bonuses, Art. 185 para. 5(d) of the Solvency II Directive (2009/138/EC). N3. As these requirements are contained in a directive, they were enacted by national legislatures or are mirrored in pre-existing law of Member States. In Austria, specific post-contractual information duties in life assurance contracts are imposed by s. 18b para. 2 ISA. For Belgium, see art. 15 para. 2(b) of the Royal Decree of 22 February 1991 on Insurance Supervision and arts. 19 and 20 of the Royal Decree of 14 November 2003 on Life Assurance. In Italy, post-contractual information duties in life assurance are contained in arts. 182 ff. and regulations by council authorities, see Basedow/Fock-Brunetta d’Usseaux 674. For Luxembourg, see the third and fourth indents of art. 17 para. 1 ICA. For Poland, see art. 13 of the Act on Insurance Activity and Kowalewski 201. N4. For France, see art. L. 132-22 ICA. The provision distinguishes between life assurances for less than €2000 and life assurance at or above €2000, see Bonnard, para. 788. Under the rules for the latter, the insurer must inform the policyholder annually about: the repurchase value, guaranteed capital, the premium, as well as average investment yields and bonuses, the latter information being subject to further definition by way of executive decree. Under the rules for cover below €2000, the above-mentioned annual information is required on demand by the policyholder. N5. In the Netherlands, post-contractual information duties for life and non-life insurance contracts are set out in art. 4:20 para. 3 ISA in conjunction with arts. 73 and 75 of the Decree on the Supervision of the Conduct of Financial Enterprises.

Legal Expenses Insurance N6. Art. 204 of the Solvency II Directive (2009/138/EC), which replaces art. 7 of the Legal Expenses Insurance Directive (87/344/EC), calls for special post-contractual information duties in legal expenses insurance. Whenever a conflict of interest arises or a disagreement over the settlement of dispute occurs, the insurer, or, when appropriate, the claims settlement office shall inform the policyholder of the right to choose a lawyer, and the possibility of having recourse to alternative dispute resolution services. N7. In France, the requirements of the Legal Expenses Insurance Directive (87/344/EC) were transposed in arts. L. 127-5 and R. 127-1 ICA. For Belgium, see art. 156, 2° and art. 157 para. 1 IA 2014 together with art. 8 of the Royal Decree of 12 October 1990 on Legal Expenses Insurance.

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For the Netherlands, see art. 4:69 ISA. For the United Kingdom, see regulation 9 of the Insurance Companies (Legal Expenses Insurance) Regulations 1990. For Austria, see s. 158k para. 3 and s. 158l para. 2 ICA. For Ireland, see regulation 10 of the European Communities (Non-Life Insurance) (Legal Expenses) Regulations 1991. For Germany, see the second sentence of s. 128 ICA. For Luxembourg, see art. 23 of the Grand Ducal Regulation of 20 December 1991 on Insurance, now integrated into art. 96 ICA.

Further Post-contractual Information Duties under National Law N8. Some Member State laws establish information duties more or less similar to Article 2:701 PEICL. For Austria, see s. 9a para. 5 ISA. For Belgium, see art. 15 para. 2(a) of the Royal Decree of 22 February 1991 on Insurance Supervision. In Germany, s. 6 para. 1(1) of the Regulation on Duties of Information Relating to Insurance Contracts of 18 December 2007, which is based on s. 7 paras. 2 and 3 ICA, corresponds to Article 2:701 PEICL. According to s. 6 para. 1(2) of the Regulation, the insurer shall also inform about changes of fundamental contractual provisions, related costs, methods of payment, and, finally, changes in the duration of the contract, when these are caused by changes in the law. In the Grand Duchy of Luxembourg, the first indent of art. 17 para. 1 ICA corresponds to Article 2:701 PEICL. As in German law, the second indent of art. 17 para. 1 ICA further obliges the insurer to inform about changes of fundamental contractual provisions, rights of termination, costs, methods of payment, and finally, changes in the duration of the contract, when these arise from changes in the law. N9. For Finland, see s. 7 para. 1 ICA. The insurer shall dispatch to the policyholder an annual statement detailing the sum insured and any such circumstances concerning the insurance as are of manifest importance to the policyholder. For Sweden, see s. 5 para. 1 of Ch. 2 ICA: During the entire period of insurance and in conjunction with renewal of the insurance policy, the insurer shall, to a reasonable extent, inform the policyholder of circumstances relating to the insurance which are of importance to the policyholder. N10. In the United Kingdom, post-contractual information duties are covered in the Insurance Conduct of Business Sourcebook in the Financial Services Authority’s Handbook. The general rule is set out in ICOBS 6.1.6: information duties may apply pre-contract conclusion and post-contract conclusion, so as to enable customers to make an informed decision; the duties may include matters such as mid-term changes and renewals. ICOBS 6.3.3(1) corresponds to Article 2:701 PEICL. Furthermore, under ICOBS 6.3.3(2), the insurer must inform about changes in benefits, contract term, means of terminating the contract, methods and duration of payment and changes in the premium for each benefit, when such changes arise from change in policy conditions or an amendment of the applicable law. Specific post-contractual information duties for protection policies are provided for by ICOBS 6.4.11. N11. For France, where general post-contractual information duties have been developed by the courts, see Lamy Assurances, para. 47. General post-contractual information duties are unknown to the law of Switzerland. Information duties pursuant to arts. 3 and 3a Swiss ICA are limited to the pre-contractual phase.

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Article 2:702 Further Information upon Request (1) On the policyholder’s request, the insurer shall provide the policyholder without undue delay with information concerning (a) as far as can reasonably be expected of the insurer, all matters relevant to the performance of the contract; (b) new standard terms offered by the insurer for insurance contracts of the same type as the one concluded with the policyholder. (2) Both the policyholder’s request and the insurer’s response shall be in writing.

Comments Purpose C1.  The duty to inform also serves to promote competition in the insurance sector. If insurers were not obliged to keep policyholders informed about any essential change concerning their contract, policyholders would not be able to compare the product they are holding with other products on the market in order to evaluate if a change of product could be advantageous to them. Article 2:702 therefore grants the right to the policyholder to request information about several aspects of the insurance product itself, for example, the beginning or the end of the term, the substance of the contract or the question whether certain conduct is covered by the insurance.

Limits C2.  Such a duty should, however, not enable policyholders to overburden insurers with requests for information. To this end Article 2:702 para. 1(a) limits the duty to matters relevant to the performance of the contract and only to the extent that can reasonably be expected of insurers. Therefore, policyholders can only request information concerning essential elements of the contract which are of manifest importance to them such as the general contract terms or steps to be taken after the occurrence of an insured event. In such cases no fee can be charged by insurers. This does not rule out the possibility of charging for other kinds of information.

Information on Changes in Standard Terms of Insurance C3.  Article 2:702 para. 1(b) has to be distinguished from 2:603. While the latter provision deals with alteration of the terms of the policyholder’s own contract, the former addresses changes in standard terms offered by the insurer on the market. The possibility of long-term insurance contracts (see Article 2:601) and of the automatic prolongation of insurance contracts as provided for by Article 2:602 have to be reconciled with policyholders’ legitimate interest in obtaining the best product for their needs. The duty under Article 2:702 para. 1(b) is intended to enable policyholders to compare their current product with the one the insurer is offering to new customers and with other products on the market. The insurer may fulfil this duty by informing policyholders of the changes that were made and in addition sending the new standard terms of insurance in question. In view of the considerable costs incurred by providing such information, insurers will have to furnish it only upon the

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request of interested policyholders. Sending it out to all others would generate cost without promoting competition.

Manner of Communication C4.  As to the manner of communication see Article 2:701 Comment 7. In the context of Article 2:702 “without undue delay” requires insurers to answer very promptly where necessary and possible.

Remedies C5.  While the Principles of European Insurance Contract Law do not explicitly provide any remedy if the insurer does not comply with the request, several possibilities exist: for example, policyholders may claim damages if they suffer loss from the breach of the information duty; they may also complain to a supervisory authority or insurance ombudsman.

Note Article 2:702 PEICL requires further information only on request by the policyholder. Such a rule is not unknown to national law. For Sweden, see s. 5 para. 2 of Ch. 2 ICA: The insurer shall, at the policyholder’s request, provide information regarding the premium and other terms and conditions of the insurance policy. For Germany, see s. 7 para. 4 ICA: on the policyholder’s request, the insurer must transmit a copy of the contract and applicable standard terms. For the Netherlands, see art. 4:20 para. 5 ISA, which entitles the legislator to restrict post-contractual information duties in explicitly mentioned cases to information requested for by the policyholder.

Chapter Three: Insurance Intermediaries Article 3:101 Powers of Insurance Agents (1) An insurance agent is authorised to perform all acts on behalf of the insurer that according to current insurance industry practice are within the scope of his employment. Any restriction of the agent’s authority shall be clearly notified to the policyholder in a separate document. However, the authority of the insurance agent shall at least cover the actual scope of his employment. (2) In any event the authority of the insurance agent shall include the power: (a) to inform and advise the policyholder, and (b) to receive notices from the policyholder. (3) Relevant knowledge which the insurance agent has or ought to have in the course of his employment shall be deemed to be the knowledge of the insurer.

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Comments Legal and Contractual Authority of the Insurance Agent C1.  The legal authority vested in the insurance agent by the first sentence of para. 1 is designed to reflect the standard scope of employment of insurance agents which justifies expectations by policyholders of corresponding powers of the agent. The purpose of the rule is to establish conformity between the insurance agents’ role and their authority. The insurance agents’ role is directed at the promotion of the sale of insurance contracts by giving advice to policyholders about all matters relevant for their decision to buy insurance. The role usually includes support services to policyholders during the term of the insurance contract, such as proposing updates to the policy, gathering of information and providing assistance concerning claims. By contrast, the role usually does not include the granting of insurance cover on behalf of the insurer. C2.  The first sentence of para. 1 is not mandatory in the sense that it could never be derogated from by the insurer to the detriment of the policyholder. Any derogation would, however, need to be notified to the policyholder in a separate document. In this sense it is a formally cogent rule that allows an opting out but only by using a prescribed form and procedure. C3.  The insurer may grant additional powers to the agent, for example a power to conclude the insurance contract. A power of attorney of this kind is subject to the general provisions of the law of agency including the rules on implied and apparent authority; see Chapter 3 PECL. Authority according to Article 3:101 may therefore arise from the “apparent employment” of a person as an insurance agent. C4.  The role played by insurance agents may change in the course of time. The task of collecting premiums is a good example: whereas insurers formerly employed their agents to collect premiums, this business practice was given up because money transfers through banks, including e-banking, became a more convenient and secure mode of paying.

Minimum Authority C5.  The minimum extent of the authority which any insurance agent possesses is the actual scope of his employment. This scope of authority is mandatory and must not be restricted by the insurer even by obeying the formal requirements of the second sentence of Article 3:101 para. 1. The actual scope of the agent’s employment is a question of fact which requires proof by the policyholder. The insurer must, however, cooperate with the policyholder in providing the evidence of the terms of the agent’s employment. C6.  Insurance agents are expected to have wide powers in respect of the exchange of information. Therefore, para. 2 assigns to them as a minimum the power to render information and advice on behalf of the insurer and the authority to receive all notices from the policyholder. Since the provisions of the Principles of European Insurance Contract Law are mandatory in favour of the policyholder, the (minimum) powers set out in para. 2 cannot be limited or excluded by agreement of the parties.

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Imputation of the Agent’s Knowledge C7.  Para. 3 imputes relevant knowledge which the insurance agent has or ought to have acquired during the course of his employment with the insurer. Such a rule is an inevitable consequence of the insurance agent’s agency on behalf of the insurer and the insurer’s decision to delegate to the agent. Para. 3 corresponds to the imputation of knowledge of persons close to the policyholder, insured or beneficiary prescribed by Article 1:206. For para. 3 to be applicable a contractual assignment of the insurance agent’s authority to receive knowledge from the policyholder and transfer it to the insurer is not required. That is because the authority of the insurance agent arises by operation of law. Other than the employment as such, no special vesting of powers is needed.

Liability of the Agent C8.  The rule does not deal with the question of personal liability of insurance agents to the policyholder. Such questions are not within the scope of insurance contract law but are a matter of the professional liability of intermediaries.

Notes First Sentence of Article 3:101 para. 1 – Statutory Powers N1. The rule established in the first sentence of Article 3:101 para. 1 is the same as that in Switzerland (see art. 34 ICA). According to Greek law, the insurance intermediary has the powers and duties stated by statutory law but the insurer is bound by any other acts of the agent which are in accordance with normal insurance practice provided that the policyholder acted in good faith (Kiantos, Praktoras 161 and Rokas, paras. 1301 ff.). The laws of Austria, Germany, Poland, and Spain provide a list of certain activities which, in principle, are covered by the agent’s authority; thus the agent is deemed to be empowered to receive all applications, notifications and declarations concerning the insurance contract (see for Austria s. 43 para. 2 ICA, and Basedow/ Fock-Lemmel 1035; for Germany s. 69 ICA, Basedow/Fock-Lemmel 350; for Poland art. 4 of the Act on Insurance Mediation; for Spain art. 12 para. 2 of the Law on Mediation of Private Insurance and Reinsurance, Bataller/Latorre/Olavarria 142). The agent may have additional powers flowing from a contractual authorisation. N2. In Belgium, France, Luxembourg, Denmark, Finland, Portugal and the United Kingdom there is no statutory rule that determines the authority of the agent. Thus, its origin and scope are purely contractual in nature (see for Belgium Basedow/Fock-Fock 245; for France arts. 1984 ff. CC, Basedow/Fock-Völker 492; for Luxembourg arts. 1984 ff. CC, Basedow/Fock-Völker 778; for Portugal arts. 258 ff. CC, Basedow/Fock-Schlenker 1155; for the United Kingdom Birds 197 ff., Clarke 7-2 ff., Basedow/Fock-Rühl 1426). The Dutch Civil Code determines in Chapter 7:10.10 the legal position of the agent as defined in Article 1:202 para. 5 PEICL (see Asser/Clausung/ Wansink 47 ff.).

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Chapter Three: Insurance Intermediaries

Second and Third Sentences of Article 3:101 para. 1 – Contractual Limitations N3. Rules dealing with contractual limitations of the agent’s authority such as those in the second and third sentences of Article 3:101 para. 1 only make sense in legal systems that provide for a statutory basis of the agent’s authority. In Germany, standard terms providing for a limitation of the agent’s power to receive declarations addressed to the insurer are ineffective (s. 72 ICA). The same is basically true for Spain (see art. 12 para. 2 of the Law on Mediation of Private Insurance and Reinsurance, Bataller/Latorre/Olavarria 142). In other European countries, restrictions of the agent’s authority are either unusual (Basedow/Fock-Basedow/Fock 46) or do not raise legal problems because the power of the agent results from contract and not from statute.

Article 3:101 para. 2 – Minimum Powers N4. As a result of the Insurance Mediation Directive (2002/92/EC), as amended, European legal systems will require the insurance agent to provide the policyholder with information and advice (art. 12 of the Insurance Mediation Directive (2002/92/EC)). By implication the Directive confers also the power upon the agent to provide information and to give advice. N5. To date, the Directive has been implemented in Belgium, Germany, Greece, Finland, France, Luxembourg, Poland, Portugal, Spain, Switzerland, the United Kingdom and Ireland where the insurance agent is under an obligation to inform and advise the policyholder. (For Belgium see art. 273 IA 2014; for Germany see s. 61 ICA; for Greece see Rokas, para. 1277; for Finland see s. 5 ICA and ss. 19 to 22 of the Insurance Mediation Act (570/2005); for France Bonnard para. 184, Groutel 12, Basedow/Fock-Völker 481; for Luxembourg Bisenius 95, Rod 626, Basedow/ Fock-Völker 772; for Poland see for example art. 13 of the Act on Insurance Mediation; for Portugal see art. 29 ICA; for Spain art. 6 para. 1 of the Law on Mediation of Private Insurance and Reinsurance, Bataller/Latorre/Olavarria 133; for Switzerland Basedow/Fock-Bälz 1215; for the United Kingdom see, for example, ICOBS 5.1.20, Basedow/Fock-Rühl 1413 ff.; for Ireland s. 49(1) (b) and (4)(a) of the Insurance Act 1989, Basedow/Fock-Rühl 1413 f.). For the Netherlands, see arts. 4:23, 4:72 and 4:73 ISA which refer to the so-called independent insurance intermediary or broker and do not apply to the agent as defined in Article 1:202 PEICL.

Article 3:101 para. 3 – Imputation of the Agent’s Knowledge N6. The principle established in Article 3:101 para. 3 is well known in most European countries. In Germany, it has always been common legal practice that facts communicated to the insurance agent during the course of its employment are deemed to be communicated to the insurer; the agent is regarded as the insurer’s “eyes and ears” (see BGH 18.12.1991, BGHZ 116, 387 (390), BGH 23.5.1989, BGHZ 107, 322 (323), BGH 11.11.1987, BGHZ 102, 194 (197), Basedow/­FockLemmel 350). Today, the rule has been codified in s. 70 ICA. N7. Corresponding rules are also to be found in the laws of Austria, France, Greece, the Nordic Countries, Poland, Switzerland, the United Kingdom and Ireland (see for Austria the second sentence of s. 44 ICA, Basedow/Fock-Lemmel 1036; for France Lambert-Faivre, para. 186, Deschamps, para. 117, Basedow/Fock-Völker 492; for Greece art. 214 CC, Basedow/Fock-Papathoma-Baetge 594, Kiantos, Praktoras 161; for the Nordic Countries Dohr 54, Basedow/Fock-Scherpe 935; for Switzerland Basedow/Fock-Bälz 1221, Maurer 209, Roelli/Keller 162; for the United

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Kingdom Freeman & Lockyer v Buckhurst Park Properties Ltd [1964] 2 QB 480 (CA); British Bank of the Middle East v Sun Life Assurance Co of Canada (UK) Ltd [1983] 2 Lloyd’s Rep 9 (HL); Birds 12.3.3, CMS 1-35 ff., Basedow/Fock-Rühl 1430; for Ireland Buckley 25, Basedow/Fock-Rühl 1430). In Spain special rules concerning the so-called “passive representation” apply but lead to the same results in practice (see art. 12 para. 2 of the Law on Mediation of Private Insurance and Reinsurance, Bataller/Latorre/Olavarria 142).

Article 3:102 Agents of Insurers Purporting to Be Independent If an agent of the insurer purports to be an independent intermediary and acts in breach of duties imposed on such an intermediary by law, the insurer shall be liable for such breach.

Comments Rationale C1.  Policyholders trust agents purporting to be independent as though they really were independent. Article 3:102 protects the reasonable expectations of the policyholder that the independent intermediary acts in compliance with the duties imposed on such an intermediary by law. At the same time imposing liability deters insurers from taking advantage of “pseudo-brokers”. C2.  Intermediaries have to register either as being dependent or independent under the Insurance Mediation Directive (2002/92/EC) as amended. Insurers can be expected to monitor their own distribution network by inspecting the register. If they raise no objection to the agent’s registration as independent (“pseudo-brokers”) they should not be allowed to benefit from such a discrepancy between fact and appearance for which the agent is responsible. For the rule to apply, however, the insurer’s actual knowledge of the agent’s conduct or behaviour is not a requirement. The insurer is a guarantor that its agent shall comply with the obligations of independent intermediaries when purporting to be such.

Scope C3.  The rule only applies to persons who are employed by the insurers as agents. Thus, the existence of such an agency relationship has to be proven. Other persons who hold themselves out to be agents of the insurer may trigger the insurer’s liability under general rules of agency but are not covered by this Article. This applies, for example, to the former agent of an insurer who continues to conduct his business as if he were still an agent of the same insurer.

Actual Authority of “Pseudo-brokers” C4.  Since “pseudo-brokers” are employed by the insurer they hold the minimum authority granted by Article 3:101.

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Note An extension of the duties of insurance brokers to those insurance agents who act vis-à-vis the applicant as if they were insurance brokers can be found in particular in Austrian and German insurance law. Both laws subject such “pseudo-brokers” to the same duties as insurance brokers in order to protect the applicant who relies on their role as insurance brokers (for Austrian and German law, see Prölss/Martin-Dörner, § 59 VVG para. 147, OLG Oldenburg 13.1.1999, Versicherungsrecht 1999, 757, for similar views on Swiss law, see Honsell/Vogt/Schnyder-Fuhrer art. 34 VVG para. 43).

Chapter Four: The Risk Insured

Section One: Precautionary Measures Article 4:101 Precautionary Measures: Meaning A precautionary measure means a clause in the insurance contract, whether or not described as a condition precedent to the liability of the insurer, requiring the policyholder or the insured, before the insured event occurs, to perform or not to perform certain acts.

Comments General Remarks C1.  Section 1 of Chapter 4 PEICL on “The Risk Insured” deals with “Precautionary Measures” required by the insurance contract, a concept similar but not identical to that of “promissory warranties” in English law or contractual “Obliegenheiten” in German law. In order to avoid the consequences which have arisen in those countries over time the wording of the Principles of European Insurance Contract Law is inspired by art. 31 of the Finnish ICA. The section contains three articles dealing with the definition of the concept and sanctions for non-compliance, in particular termination of the contract and discharge of the insurer’s liability. C2.  Insurers use terms like “warranties” as a tool to limit the risk, to protect themselves against a temporary aggravation of risk and sometimes to avoid their obligations to the detriment of policyholders. As the Joint Consultation Paper on Insurance Contract Law (UK) indicates, the impact of these terms may defeat the insured’s reasonable expectation of cover, particularly in cases where there is a discharge from liability even in the absence of a causal connection between the breach and the loss. The Paper (p. 15 para. 73) gives the following illustration: “A policyholder who warrants to maintain a sprinkler system might expect that the insurer will not pay for fire damage while the sprinkler was not working. They would not expect the insurer to refuse a storm damage claim or a fire claim that arises after the sprinkler has been repaired”. In addition, policyholders are often not aware of the warranties imposed upon them in the terms of the policy or of the harsh consequences of a breach of warranty, as it is a matter of common knowledge that the “average” consumer or small businessman is not inclined to read the terms of the policy carefully. Therefore, the

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Principles of European Insurance Contract Law have established a new regime that seeks to be in accord with both insurers’ and policyholders’ reasonable expectations and to avoid the harsh consequences set forth above.

The Concept of Precautionary Measure C3.  According to Article 4:101 a precautionary measure means a clause in the insurance contract, whether or not described as a condition precedent to the liability of the insurer, requiring the policyholder or the insured, before the insured event occurs, to perform or not to perform certain acts. C4.  One of the major problems in identifiying a precautionary measure is that it is not always easy to draw the line between precautionary measures and other types of contractual terms which seek to limit the scope of cover. A certain conduct on the part of the policyholder can be required by a term phrased as a precautionary measure (“the policyholder must keep the vehicle in a roadworthy condition”), a condition precedent to the liability of the insurer (“cover is conditional on the vehicle being roadworthy”) or as an exception to the risk (no cover where “the vehicle is not in a roadworthy condition”). Article 4:101 is intended to cover all these situations. C5.  This does not rule out the possibility of incorporating terms which establish conditions precedent or exceptions to the insurer’s liability. However, to the extent that such clauses refer to specific conduct on the part of the policyholder or the insured intended to limit the risk they are to be treated as precautionary measures. For example, a term of the insurance contract excluding liability for fire caused by negligent handling of gas bottles in breach of specific regulations would be treated as a precautionary measure, whereas the exclusion of liability for fire caused by handling of gas bottles as such would be treated as an exclusion clause not covered by Article 4:101.

Notes General Remarks N1. It is worth noting that Community law does not regulate precautionary measures. Precautionary measures established contractually can be found in all European countries. In addition, insurance contract laws impose similar obligations on the insured, these obligations however binding the insured by statute. Such obligations are not discussed in the following notes. In light of the consequences of a breach, which range from automatic discharge to a right to termination (see notes on Articles 4:102 and 4:103), and the different requirements, such as causation, fault, and so on, precautionary measures must be distinguished from clauses specifying or delimiting the insured risk. Thus, most national insurance contract laws either provide for statutory definitions such as Article 4:101, or have established specific terminologies with regard to precautionary measures.

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Finland and Sweden N2. The Finnish ICA which has inspired Article 4:101 uses the notion of precautionary guidelines. These are defined in s. 31 para. 1 Finnish ICA, which is only applicable to indemnity insurance, as “provisions on devices, apparatuses, procedures or other arrangements introduced with an aim to prevent or restrict the occurrence of damage or loss” or “guidelines to the effect that the person using or managing the property insured shall have certain competence”. S. 31 para. 2 Finnish ICA sets forth that “the insured shall comply with the precautionary guidelines”. The Swedish ICA provides for a similar definition: s. 6 para. 2 of Ch. 4 ICA defines security provisions as “provisions set forth in the policy terms regarding pre-determined courses of action or facilities which are intended to prevent or limit loss or regarding certain pre-determined qualifications of the insured or its employees or other cooperating parties”.

Austria, Germany, Switzerland N3. Austrian, German and Swiss insurance contract law denote clauses aimed at by Article 4:101 PEICL as vertragliche Obliegenheiten, see for instance art. 29 Swiss ICA. The national provision most comparable to Article 4:101 PEICL is s. 28 para. 1 German ICA, specifying precautionary measures as vertragliche Obliegenheiten, which have to be performed before the occurrence of the insured event (“die von dem Versicherten vor Eintritt des Versicherungsfalles zu erfüllen sind”).

United Kingdom N4. Insurance law in the United Kingdom does not speak of precautionary measures as such. Contract terms which require performance of certain acts before the insured event occurs, may come in the form of warranties, more specifically promissory warranties, or conditions. The meaning of (promissory) warranties and conditions in insurance contract law differs from the meaning of these terms in the general law of obligations. In general, warranties and conditions in insurance contract law have the inverse meaning as in general contract law; warranties in insurance contract law denoting clauses of particular importance, see Birds 9.1 ff.; Basedow/Fock-Rühl 197. S. 32 of the Marine Insurance Act 1906 defines promissory warranties as promises by which “the insured undertakes that some particular thing will or will not be done or that some condition will be fulfilled”; see Birds 9.3 ff.; Clarke 20-5. This provision has been held to represent the state of law in all classes of insurance, see Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd, The Good Luck [1992] 1 AC 233. Also conditions in insurance contract are quite different from conditions in general contract law; see Clarke 20-1 ff.

France N5. French Insurance contract law does not contain a statutory provision comparable to Article 4:101 PEICL. In general terms, the clauses covered by Article 4:101 PEICL may be referred to as obligations de l’assuré avant sinistre. More specifically, they appear in the form of mesures de prévention (du risque), see Lamy Assurances, paras. 236 ff. Precautionary measures may be embedded in clauses providing for a discharge of the insurer. Such clauses are referred to as clauses de déchéance, see the second alternative in the fourth sentence of art. 112-4 ICA. There appears to be much uncertainty in French courts over the classification of contractually established pre-

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cautionary measures as clauses de déchéance or clauses on the delimitation of the insured risk, see Lamy Assurances, para. 239(b).

Belgium, Luxembourg and the Netherlands N6. Similar to French law, Belgian insurance contract law does not contain a statutory definition of precautionary measures. The terminology in (French-speaking) Belgium is similar to the French terminology. Precautionary measures aimed at preventing the materialisation of the insured risk are referred to as mesures de prévention, see Fontaine, para. 305. Art. 75 IA, although related, does not cover precautionary measures in the sense of Article 4:101 PEICL. The obligations covered by art. 75 IA only ensue after occurrence of the risk. Finally, art. 106 IA does cover precautionary measures, but only such precautionary measures to be taken under imminent danger that the risk will occur, and is limited in scope to indemnity insurance policies. Art. 27 Luxembourg ICA exactly corresponds to art. 75 Belgian IA 2014, with the sole difference of not being limited in scope to indemnity insurance. As with Belgian and Luxembourg law, the Dutch Civil Code does not refer to the subject of precautionary measures as defined in Article 4:101 PEICL. Art. 7:957 Dutch CC corresponds to art. 52 Belgian IA 2014 and is linked to measures to mitigate insured loss in the sense of Article 9:102 PEICL.

Spain N7. In Spain, obligations of the policyholder or the insured to perform certain acts, are referred to as cargas. Art. 17 ICA does not cover precautionary measures in the sense of Article 4:101 PEICL, as the obligations under this provision ensue only after the insured risk has materialised.

Poland N8. In Poland, the Civil Code does not contain a statutory definition of precautionary measures. The obligations of the policyholder or the insured covered by art. 826 CC take effect only after the insured risk has materialised. See Fuchs, Funkcja 35 ff. and Fuchs, Zakres 37 ff.

Greece N9. According to general law, the breach of a contractual precautionary measure cannot lead to loss of cover unless the insured is liable for the breach and there is a causal relation with the damage suffered, see Rokas, Eisigiseis paras. 155 ff.

Article 4:102 Insurer’s Right to Terminate the Contract (1) A clause which provides that in the event of non-compliance with a precautionary measure the insurer shall be entitled to terminate the contract, shall be without effect unless the policyholder or the insured has breached his obligation with intent to cause the loss or recklessly and with knowledge that the loss would probably result. (2) The right to terminate shall be exercised by written notice to the policyholder within one month of the time when the non-compliance with a precautionary measure becomes known or apparent to the insurer. Cover shall come to an end at the time of termination.

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Comments Termination and Non-Prolongation C1.  Article 4:102 allows the insurer to terminate while the contract period is still running compared to a non-prolongation according to Article 2:602. The right to terminate is limited to cases where the policyholder or the insured has breached his obligation with intent to cause the loss or recklessly and with knowledge that the loss would probably result. For the latter formula see Article 9:101 Comments 2 and 3. This limitation of the insurer’s right to terminate the contract is of limited relevance because according to Article 2:601 the contract period is one year only and the insurer may refuse prolongation according to Article 2:602 para. 1(a) where the policyholder or insured was in breach of precautionary measures.

Termination under Other Provisions C2.  If the insurer exercises its right of termination under Article 4:102 after the occurrence of an insured event this right may overlap with the right of termination under Article 2:604. There may also be an overlap with a right of termination under Article 4:203: If the breach of the precautionary measure occurs in the case of an aggravation of risk the insurer is entitled to terminate notwithstanding non-compliance with the strict requirements of Article 4:102 para. 1.

Manner of Termination C3.  The right to terminate must be exercised by written notice to the policyholder. “Written” statements are defined in Article 1:301 para. 6 PECL as including “communications made by telegram, telex, telefax and electronic mail and other means of communication capable of providing a readable record of the statement on both sides”. The right to terminate must be exercised within one month of the time when non-compliance with a precautionary measure becomes known or apparent to the insurer. The receipt of the notice of termination is relevant for determining the time limit (see Article 1:303 para. 2 PECL). Cover comes to an end at and from the time of termination.

Application to Group Insurance C4.  The application of Article 4:102 is modified as far as group insurances are concerned, see Article 18:203 para. 2.

Notes Ipso iure Avoidance or Declaration of Termination N1. Breach of a precautionary measure may give rise to a variety of consequences. Article 4:102 PEICL limits the effects of clauses which grant the insurer a right to terminate the contract. Under some insurance contract laws, however, compliance with a precautionary obligation is a

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condition precedent to the liability of the insurer. When such an obligation is breached, the risk has never been covered, the insurance contract has never commenced and a declaration of termination is obsolete. This may be the case in French law, see Lamy Assurances, paras. 236 ff. The same effect is known in the United Kingdom. The House of Lords held in Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd, The Good Luck [1992] 1 AC 233 (see also Basedow/Fock-Rühl 191), that breach of a warranty constitutes failure of a condition precedent to cover, and terminates the contract. Although the judgment concerned the Marine Insurance Act, it is widely acknowledged that its findings apply to all types of insurance contracts, see Birds 152 ff., Clarke 20-6C1 and Basedow/Fock-Rühl 194. This may be the case also in Polish law, see art. 826 para. 3 CC.

Termination ex tunc or ex nunc N2. With regard to the clauses covered by Article 4:102 PEICL, a further distinction must be drawn. Article 4:102 limits the effects of clauses providing for termination of the contract ex nunc. This must be distinguished from avoidance taking effect ex tunc. The Austrian and German ICA emphasise this distinction by explicitly banning clauses providing for a right to avoid, see s. 6 para. 4 Austrian ICA and s. 28 para. 5 German ICA respectively. The state of the law in the United Kingdom is comparable, equating in substance to an ex nunc effect. Although breach of a (promissory) warranty constitutes failure of a condition precedent (see above), duties which had fallen due before breach remain due; and procedural conditions for the settlement of earlier claims must still be performed, see Pawson v Watson (1778) 2 Cowp 785, De Hahn v Hartley (1786) 1 TR 343, Clarke 20-6C2. According to Dutch insurance contract law, the only consequence of breach of a precautionary measure is loss of coverage during the period of breach.

Causation: France and United Kingdom N3. When breach of precautionary obligations amounts to a failure of a condition precedent to cover, it is not necessary for the insurer to establish a causal relationship between the breach and the materialisation of the risk insured: for France, see Lamy Assurances, para. 239(a); for the United Kingdom, see Clarke 20-3 and Basedow/Fock-Rühl 187. The harsh results of this absence of a nexus requirement are mitigated in practice. In France, courts may refrain from classifying precautionary measures as conditions precedent to cover, and instead submit such clauses to the regime of the exclusion de garantie (in substance, a form of “clause de déchéance”), which requires causation to be established, see Lamy Assurances, para. 239(b) and the notes on Article 4:103, below. N4. In the United Kingdom, special rules apply for consumer and small business insurance. ICOBS 8.1.1(3) provides that insurers must not “unreasonably reject a claim (including by terminating or avoiding a policy)”; and ICOBS 8.1.1 provides that “rejection of a consumer policyholder’s claim is unreasonable, except where there is evidence of fraud, if it is for […] (3) breach of warranty or condition unless the circumstances of the claim are connected to the breach and unless certain other conditions are required in the case of a pure protection contract.” Note also the Consumer Insurance (Disclosure and Representations) Act 2012, s 6(2); Clarke 23-19A. Furthermore, insurance policies in the United Kingdom may contain clauses requiring a causal link between breach and loss.

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Causation in Other Member State Laws N5. Given the various exceptions in France and the United Kingdom, and in light of the other continental jurisdictions, the solution adopted by Article 4:102 PEICL reflects a growing European consensus. The various codifications subject a right of termination to: failure to comply with precautionary measures, see s. 6 para. 1 Austrian ICA, s. 15 para. 1(3) Finnish ICA and s. 28 para. 1 German ICA; material breach or other due cause, see s. 7 para. 1 of Ch. 3 Swedish ICA; failure to comply with a precautionary obligation aimed at reducing the risk or preventing the materialisation of the risk, see art. 29 Swiss ICA. Art. 29 para. 2 Swiss ICA clarifies that the insurer may not invoke such a termination clause when a nexus between the loss and the breach cannot be established. This requirement of causation is recognised by the other laws as well. Whether or not the respective countries provide for a separate provision on causality in their insurance codes as opposed to the criteria of the general law of obligations appears above all to be a matter of the onus of proof.

Fault: France, the Netherlands and United Kingdom N6. In France, when precautionary obligations are classified as conditions precedent to cover, fault of the insured in failing to comply is not a necessary condition, see Lamy Assurances, para. 239. For the same view in the Netherlands, see Asser/Clausing/Wansink 418 ff., and in the United Kingdom, see Basedow/Fock-Rühl 186 f. The results are mitigated in practice either by subjecting a breach of precautionary obligations to a different set of rules, such as the exclusion de garantie in France, see Lamy Assurances, para. 239(b), or through construction, leading to the conclusion that the precautionary obligation was not violated, see Clarke 20-6B for the United Kingdom.

Fault: Other European Laws N7. Under Article 4:102 para. 1, the policyholder or the insured must have acted with intent or recklessly and with knowledge that the loss would probably result. This formula is to be found in international transport conventions; see, for example, the Article 22 para. 5 of the Montreal Convention 1999. The formula is also mirrored in national insurance laws. Under the pertinent provisions, the insured/policyholder must have acted: at least negligently in Austria, see the second sentence of s. 6 para. 1 ICA; however, if breach of the precautionary obligation was merely negligent, and not grossly negligent, reckless or intentional, the insurer may only terminate the contract when the insured was initially advised against this consequence by way of a formal document, s. 6 para. 5 ICA. In Germany, the insured/policyholder must have acted intentionally, knowingly or through gross negligence, see s. 28 para. 1 ICA. Finnish law requires non-compliance to have occurred wilfully or through gross negligence, s. 15 para. 1(3) ICA. For United Kingdom law, see Clarke 19-2E.

Written Notice and Time Limits N8. In line with Article 4:102 para. 2 PEICL, the Austrian and German laws set a time limit, for the exercise of the right of termination, of one month from the time when non-compliance with a precautionary measure becomes known to the insurer, see the second sentence of s. 6 para. 1 Austrian ICA and s. 28 para. 1 German ICA respectively. The Nordic codifications are more flexible. Finnish law mandates exercise of the right of termination without undue delay, s. 15 para.

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2 ICA. Under Swedish law, the right to termination expires after unreasonable delay, s. 7 para. 2 of Ch. 3 ICA. According to s. 7 of Ch. 3 ICA, there is no time limit on the insurer’s right to terminate the contract when the insured or the policyholder acted fraudulently or in contravention to good faith. N9. Like the first sentence of Article 4:102 para. 2 PEICL, s. 15 para. 2 Finnish ICA and s. 7 para. 2 of Ch. 3 Swedish ICA mandate a written notice of termination.

End of Cover N10. The second sentence of Article 4:102 para. 2 PEICL seems to reflect an international consensus. With the exception of Finland, European insurance contract laws either provide for immediate end of cover or submit the question to the general law of obligations. S. 15 para. 2 Finnish ICA differs from the PEICL rule in that the policy remains valid one month after dispatch of the notice of termination.

National Peculiarities N11. Under the German ICA, when breach of a precautionary obligation relates to a severable part of the contract, the insurer may only terminate the contract in its entirety if proof is delivered by the insurer that it would not have concluded the remaining contract as it stands, s. 29 para. 1 ICA. Furthermore, if a severable breach, under s. 29 para. 1 ICA, gives rise to a partial termination by the insurer, the policyholder may terminate the remaining part of the contract. In the other European countries, the issue of severability would be a question of the general law of obligations. But it seems German law stands out in providing a subsequent right of termination for the policyholder.

Article 4:103 Discharge of the Insurer’s Liability (1) A clause that non-compliance with a precautionary measure totally or partially exempts the insurer from liability, shall only have effect to the extent that the loss was caused by the non-compliance of the policyholder or insured with intent to cause the loss or recklessly and with knowledge that the loss would probably result. (2) Subject to a clear clause providing for reduction of the insurance money according to the degree of fault, the policyholder or insured, as the case may be, shall be entitled to insurance money in respect of any loss caused by negligent non-compliance with a precautionary measure.

Comments General Remarks C1.  Article 4:103 deals with contract clauses which discharge the insurer from liability if the policyholder or insured is in breach of a precautionary measure. If there is no such clause the provision remains irrelevant because the Principles of European Insurance Contract Law do not discharge the insurer automatically. Article 4:103 seeks to limit the consequences

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of such clauses (see Article 4:101 Comment 2) for the policyholder or insured by requiring both causation and fault.

Causation C2.  Article 4:103 para. 1 is clear: non-compliance with a precautionary measure shall only have effect to the extent that the loss was caused by the non-compliance by the policyholder or insured. Non-compliance with a requirement of a sprinkler in full operation in a fire policy therefore may have the effect of excluding the insurer’s liability for loss caused by fire if the loss would have been avoided by a fully operating sprinkler. In addition, the insurer’s liability may be reduced if the loss caused by fire could not have been fully avoided by an operating sprinkler (for example in case of lightning) but has increased due to the absence of such a sprinkler. In that case the insurer’s liability would only be reduced as far as the non-compliance contributed to the extent of the loss. The onus of proving the prerequisites for a discharge of the insurer’s liability, including a causal link between non-compliance and loss, is on the insurer.

Fault C3.  As mentioned above, Article 4:103 introduces a second requirement for the discharge of the insurer’s liability: the loss must be caused with intent to cause the loss or recklessly and with knowledge that the loss would probably result, on the part of the policyholder or insured. For intent and recklessness see Article 9:101 Comments 2 and 3. C4.  Under Article 4:103 para. 2 the policyholder or the insured will be entitled to insurance money in respect of any loss caused by negligent but non-reckless breach of a precautionary measure. The basic philosophy is that insurance is taken out not just for accidental risks but also for cases of negligent behaviour. The parties may however deviate from the basic rule by an appropriate contract clause. Such a clause must satisfy the requirements of Article 1:203. The additional requirement that it has to be clear indicates that it must be in a very specific language in order to discharge the insurer in cases of negligence. If such a clause is applied in a specific case the discharge of the insurer from liability is limited by the degree of causation (Article 4:103 para. 1) and additionally by the degree of fault. If the fault is very slight there is no discharge, if the degree of fault comes close to recklessness the discharge may be almost complete.

Notes General Remarks N1. As Community law does not cover precautionary measures, comparisons can only be drawn to national provisions. An important distinction must be made between clauses providing for a discharge of the insurer (discharge clauses) and clauses excluding certain risks (exclusion clauses), as the two types of clauses are subject to different rules. Whereas discharge clauses generally require fault on the part of the policyholder/insured, exclusion clauses generally require neither causation nor fault to be established. In substance, however, both techniques often lead to the

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same result: the policyholder and/or the insured obtain only part of the insurance money or no insurance money at all.

Causation N2. Article 4:103 para. 1 PEICL stipulates that the loss must have been “caused by the non-compliance”. The same requirement applies under Article 4:103 para. 2 PEICL, as can be inferred as a matter of systematic interpretation.

France N3. In France, precautionary measures may either be classified as conditions precedent to cover (conditions de garantie) or as exclusionary clauses (clauses d’exclusion). The terminology in French insurance law can be misleading. Even though courts may hold precautionary measures to fall under the regime of the clauses d’exclusion, this regime, as it is applied, follows the rules of discharge clauses, see Lamy Assurances, para. 239(b): «On se place de la sorte dans le droit fil du mécanisme de la déchéance.» When precautionary measures are regarded as conditions precedent to the insurer’s liability, non-compliance as such bars any claim by the policyholder, see Lamy Assurances, para. 239(a). When precautionary measures, however, are submitted to the rules applying to discharge clauses, discharge of the insurer takes effect only when a causal link between breach and loss can be established, see Lamy Assurances, para. 239(b). Given the harsh consequences in the absence of a nexus requirement, it appears that there is a recent tendency in French jurisprudence to submit clauses providing for a discharge to the regime of discharge clauses, see Lamy Assurances, para. 239(b).

United Kingdom N4. If the policy stipulates for precautionary measures in the form of warranties, breach of such warranties automatically terminates the contract and discharges the insurer from its liability under the contract (see above, notes on Article 4:102, in particular the Good Luck case). Causation is not required. However, special rules apply for consumer and small business insurance. ICOBS 8.1.2 provides that an insurer may invoke non-compliance with a warranty only when there is evidence of fraud, or when the circumstances of the claim are sufficiently connected with the breach. Moreover, automatic termination being considered harsh, the effect of breach of warranty is to be moderated by the Insurance Act 2015, when it comes into force in 2016. Furthermore, to mitigate the harsh results of the absence of a nexus requirement, insurance policies in the United Kingdom may contain clauses requiring a causal link between breach and loss. For a recent example with respect to breach of warranty, see Bennett v Axa Insurance Plc [2003] EWHC 86 (Comm), [2004] Lloyd’s Rep IR 615.

Italy N5. In Italy, precautionary measures fall under the topic of perfection of cover. It is a condition precedent to the liability of the insurer that precautionary measures be complied with, see Basedow/Fock-Brunetta d’Usseaux 707.

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Belgium and Luxembourg N6. Art. 65 para. 1 Belgian IA 2014 stipulates that the insurer may only invoke a contractual discharge clause provided that a causal link be established between the occurrence of the insured event and the breach of a precautionary obligation, which must be one which is imposed by the contract (“une obligation determine impose par le contrat”). Art. 65 para. 2 IA 2014 authorises the government to further regulate questions of discharge. However, up to now no such regulation (arrêté royal) relating to art. 65 IA has been enacted. The provisions in the Luxembourg ICA are almost identical; see art. 18 Luxembourg ICA.

Austria and Germany N7. In Austrian law, discharge clauses may not be invoked if the breach of the precautionary measure had no impact on the occurrence of the insured event, see s. 6 para. 2 ICA. In Germany, causation is required by s. 28 para. 3 ICA. However, when the insured acted fraudulently, the insurer is discharged even without causal relationship, see the second sentence of s. 28 para. 3 ICA.

The Netherlands N8. According to the jurisprudence of the Dutch Supreme Court, the breach of a precautionary measure leads de iure to a loss of coverage during the period of breach, However the insured may prove a lack of causal relationship between the breach and a materialisation of the risk insured, in which case the respective claim has to be paid by the insurer (see Asser/Clausing/Wansink 418 ff.).

Further Objective Elements N9.  Further objective elements necessary for a discharge of the insurer are imposed by the laws of Austria and Germany. For Austria, see s. 6 para. 5 ICA: if non-compliance with a precautionary measure was merely negligent, discharge only takes effect if the insured was previously informed of this consequence by way of a formal document.

Fault N10.  Most European insurance laws require some degree of fault for a discharge of the insurer to take place. The United Kingdom and the Netherlands are the exceptions. Breach of precautionary obligations construed as warranties discharges the insurer regardless of the policyholder’s fault (see for the United Kingdom Basedow/Fock-Rühl 199 and for the Netherlands Asser/Clausing/Wansink 418 ff.), unless the wording of a warranty requires or implies it. In France, fault is not necessary for a discharge of the insurer, when precautionary obligations are held to constitute a condition precedent to cover (condition de garantie), see Lamy Assurances, para. 239(a). When precautionary measures are held to constitute an exclusion de garantie, and thus, in fact, a form of discharge clause, the party in breach must have acted with fault (faute), see Lamy Assurances, para. 239(b). It appears this encompasses all degrees of fault. N11.  Article 4:103 PEICL establishes a two-fold regime: intention or recklessness with “knowledge that the loss would probably result” has the consequence in law of total discharge of the

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insurer from liability under the contract, and according to Article 4:103 para. 1, degrees of fault below this level permit a proportionate reduction of insurance money, to the extent that they remain above the level of simple negligence, Article 4:103 para. 2.

Germany N12.  This regime corresponds to s. 28 para. 2 German ICA: When non-compliance with a precautionary measure is wilful, the insurer is discharged of his liability entirely, the first sentence of s. 28 para. 2 ICA. When non-compliance is grossly negligent, the insurer may reduce payment according to the degree of fault, the onus of proof for exculpation lying with the insured, the second sentence of s. 28 para. 2 ICA.

Finland N13. Similar results are provided by Finnish law, which combines a two-fold regime in a single provision. According to s. 31 para. 3 ICA, any compensation may be refused or reduced if the insured has wilfully or through negligence which cannot be considered slight failed to comply with a precautionary guideline as defined in s. 31 para. 1 ICA. S. 31 para. 4 ICA supplements special rules for general liability insurance policies: negligence must either be gross, or, where so provided in the policy, be caused by the use of alcohol or narcotics.

Austria N14.  For the necessity of fault in Austria, see the first sentence of s. 6 para. 1 ICA: a contractual provision exempting the insurer from liability when a precautionary obligation is breached shall be without effect when non-compliance can be excused. As a consequence the insurer is discharged entirely when non-compliance results from simple negligence. S. 6 para. 1a ICA provides for a proportionate reduction of insurance money; but it does not relate to precautionary measures in the sense of Article 4:101 PEICL.

Belgium and Luxembourg N15.  The first sentence of art. 65 Belgian IA 2014 leaves open the possibility for a partial discharge, but does not state a threshold degree of fault necessary for total discharge. For the degree of fault admissible, see the third sentence of art. 62 Belgian IA 2014. Pursuant to this provision, the insurer is not liable when the policyholder, the insured or the beneficiary acted either intentionally or with grave fault. For grave fault to result in a discharge, the relevant behaviour must be expressly and exhaustively mentioned in the contract. Although art. 62 IA 2014 is to be found in the section on the delimitation of the risk, the third sentence of art. 8 applies to discharge clauses as well, see Fontaine, para. 378. The law is construed as allowing for the exclusion of damages caused with a lesser degree of fault, see Fontaine, para. 379. Thus, any degree of fault on the part of the policyholder may lead to a (partial) discharge, as long as the obligations in question are clearly and exhaustively mentioned in the policy. N16.  The Luxembourg ICA contains an almost identical provision. Art. 18 ICA leaves open the possibility for partial discharge, but, like its Belgian counterpart, does not elaborate further on the fault – discharge ratio. Under art. 14 ICA, intentional causation of damage discharges the insurer

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entirely. Pursuant to the third sentence of art. 14 ICA, grave fault may also lead to a discharge, when the behaviour in question is expressly and exhaustively listed in the policy. Like its Belgian counterpart, art. 14 Luxembourg ICA is to be found in the section on the delimitation of the risk. However, the analogy to Belgian insurance law suggests that it is equally applicable to discharge clauses. Furthermore, the resemblance to Belgian law suggests that, as under the Belgian ICA, degrees of fault below grave fault may lead to (partial) discharge.

Section Two: Aggravation of Risk Article 4:201 Clauses Concerning Aggravation of Risk If the insurance contract contains a clause concerning aggravation of the risk insured, the clause shall be without effect unless the aggravation of risk in question is material and of a kind specified in the insurance contact.

Comments Allocation of Risk C1.  Insurers contract on the basis of their assessment of the risk at the time that the contract of insurance is concluded. Once a policy has been issued, they hope that the risk undergoes no significant aggravation or increase during the insurance period. Policyholders, however, do not want their activity during the period to be unduly restricted. Moreover, society, which has an interest in an effective and solvent insurance sector, also has an interest in fostering useful entrepreneurial activity. Insurance contract law seeks to balance these sometimes conflicting interests. C2.  In countries where the insurance period is usually one year or less, the law tends to favour policyholders: it does not provide any legal mechanism to enable insurers to change policy terms in the light of any significant aggravation of the risk during the period. On the one hand, the law in these countries does not countenance wilful or reckless conduct by policyholders resulting in loss but, on the other hand, it does not relieve insurers of poor underwriting. For the rest it is insurers who, for a limited period of time, bear the risk of the unexpected. In these countries attempts by insurers to establish an escape route in the policy by means terms such as promissory warranties or notification clauses have met with hostile and restrictive interpretation by the courts. In most countries in Europe, however, insurance periods are commonly longer than one year and the law does make some provision for policy change in the event of a significant aggravation of risk during the insurance period.

The Need for Rules of Law C3.  Under Article 2:601, except in the case of personal insurance, “the duration of the insurance contract” is one year but the “parties may agree a different period”, when appropriate to the particular risk. Moreover, Article 2:602 provides that in any event, unless one of the parties to the contract gives notice to the contrary, the one-year period provided for in Article 2:601 shall be “prolonged”. This being so, the issue of aggravation of risk cannot

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be ignored because even in the countries with law to provide for aggravation of risk, the rules tend to differ; and because, the nature of the issue is such that it is not covered by the Principles of European Contract Law, rules are needed. In the Principles of European Insurance Contract Law the response to this need is not to prescribe rules for all cases of aggravation of risk but for cases in which, as is likely, policies contain terms on the issue, and to establish minimum safeguards for policyholders. Note that the relevant rules of the Principles of European Insurance Contract Law do not apply to personal insurance, such as life and health insurance, for which different and more appropriate rules are to be prescribed in due course.

Aggravation of Risk C4.  Aggravation of risk is defined in Article 4:201, in which the reference to what is “material” envisages the corresponding delimitation of the duty of disclosure stated in Article 2:103(b). An aggravation which is due to natural wear and tear of property insured in indemnity insurance or to the increasing age of the person insured in life assurance is not material. The further requirement, that the aggravation of risk be “of a kind specified in the contract of insurance”, is to meet the need to alert and inform policyholders about what is a material aggravation of risk, and assumes that reasonable policyholders read their policy. Reference might have been made, as does the law in some countries, to elements of risk which are the subject of questions in the application. However, reference to the policy was preferred as being an intuitive and convenient reference point for policyholders.

Clauses C5.  When the aggravation of risk is such that insurers wish to reconsider the risk and decide whether to continue cover and, if so, on what terms, they usually seek to achieve that wish by means of policy clauses. One possibility in the past has been the inclusion of promissory warranties. The Principles of European Insurance Contract Law neuter such clauses in Articles 4:101 ff., insofar as failure to take precautionary measures required by the policy does not entitle insurers to terminate the cover, except when failure occurs with intent to cause the loss or recklessly and with knowledge that loss or damage would probably result. Another possibility hitherto has been a policy term that simply entitles insurers to terminate cover in the event of aggravation of risk. Such clauses are not prohibited altogether by the Principles of European Insurance Contract Law but are regulated by Article 4:203.

Notes Information Requirements N1. In many countries a duty to inform the insurer of an aggravation of risk is imposed on the policyholder by law, for example, in Germany (s. 23 para. 2 ICA), in Italy (art. 1898 para. 1 CC), in Poland (art. 815 CC) and in Switzerland (arts. 28 ff. ICA); some reservations concerning life assurance, see Kowalewski 197. In other countries, notably common law countries such as the United Kingdom as well as the Netherlands, there is no such requirement. Indeed the basic position is to the contrary (Pim v Reid (1843) 6 M & G 1; Kausar v Eagle Star Insurance Co Ltd [1997]

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CLC 129). Although a similar duty may be imposed by the contract of insurance (Birds 7.17), the courts are inclined to construe against such a duty: Clarke 20-5A4. See for the Netherlands Asser/ Clausing/Wansink 410 ff.

Material Aggravation of Risk N2. A rule limiting the effect of contract clauses to cases of material aggravation, such as that in Article 4:201, is found, for example, in art. 113-4 para. 1 French ICA, s. 27 German ICA, art. 4 para. 1 Greek ICA, art. 1898 para. 1 Italian CC (as interpreted by commentaries) and art. 11 Spanish ICA.

Aggravation Specified in the Contract N3. A further limitation of contract clauses on the aggravation of risk laid down in Article 4:201 is the requirement that the aggravation shall be specified in the contract of insurance. A similar rule can be found in Denmark (s. 45 para. 1 ICA). A rule of this kind designed to assist the policyholder who is ignorant of matters that might influence insurers, is not common in other national laws of insurance in Europe, however, experience in various countries indicates that such a rule is desirable in the interest of the private policyholder.

Article 4:202 Duty to Give Notice of an Aggravation of Risk (1) If a clause concerning aggravation of the risk insured requires notification of an aggravation, notification shall be given by the policyholder, the insured or the beneficiary, as appropriate, provided that the person obliged to give notice was or should have been aware of the existence of the insurance cover and of the aggravation of the risk. Notice by another person shall be effective. (2) If the clause requires notice to be given within a stated period of time, such time shall be reasonable. Notice shall be effective on dispatch. (3) In the event of breach of the duty of notification, the insurer shall not on that ground be entitled to refuse to pay any subsequent loss resulting from an event within the scope of the cover unless the loss was a consequence of the failure to notify the aggravated risk.

Comments The Need for Notification C1.  If insurers are to be in a position to decide how to respond to an aggravation of risk, they must first be made aware that an aggravation has occurred. For insurers to monitor individual risks is not likely to be cost efficient in most cases, so in practice they often insert a policy clause requiring policyholders to notify them of an aggravation of risk of which they are or should be aware. This is the situation dealt with by Article 4:202.

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The Manner of Notification C2.  When a policy duty of notification is triggered, Article 4:202 provides some means of ensuring that policyholders are given a reasonable time in which to respond, and are allowed to do so in a reasonable manner. In particular, the duty does not have to be performed personally but can be delegated. Moreover, given that in law notice or notification may be effective either on receipt or on dispatch, Article 4:202 para. 2 favours policyholders, like other provisions of the Principles of European Insurance Contract Law such as Articles 2:602 and 6:101, by stating that dispatch of the notice is sufficient for this purpose. They know when a notice has been dispatched but in many cases can be less sure when it has been received. Moreover, in the event of dispute, dispatch is easier for policyholders to prove than receipt by the insurer. Provided that a reasonable mode of transmission is employed, risks associated with the medium are for insurers to bear rather than policyholders. C3.  What is a reasonable time in which to notify aggravations of risk, as with notice of loss clauses, depends on the particular circumstances. Insurers want notice as soon as possible in order to reach a decision before loss occurs. However, policyholders must be given time to appreciate that the notice clause has been triggered. When the aggravation of risk is one intentionally brought about by a policyholder, the time may be relatively short. When the aggravation of risk has not been brought about by the policyholder but by forces of nature or by a third party, which may be the case of increased risk of flooding or subsidence for example, the time may well be longer, even though these are changes of which policyholders are likely to be aware. Awareness is central to this provision, and in that regard the rule reflects the current rule found in many countries in Europe, in which the law provides for aggravation of risk.

Breach C4.  Breach of the duty of notification on the part of policyholders does not necessarily have serious consequences for insurers. Thus, Article 4:202 para. 3 seeks to nullify policy clauses whereby, in the event of breach, cover is automatically terminated. Concerning the possibility of termination see Article 4:203. In that regard the intention behind Article 4:202 is that the legal consequences of breach should be related and proportionate to the breach. In particular, as provided by Article 4:202 para. 3, insurers are not on that ground entitled to refuse to pay any subsequent loss resulting from an event within the scope of the cover but not a consequence of the lack of notification. Other losses resulting from events within the scope of the cover may be a consequence of the aggravation of risk but not of the lack of notification; Article 4:203 para. 3 applies to such losses.

Notes Notice in Reasonable Time N1. A rule such as that in Article 4:202 para. 1 requiring the policyholder to notify the insurer is found in Germany (s. 23 paras. 2 and 3 ICA: notification “without delay”, as interpreted by courts and commentators) and Switzerland (art. 30 para. 1 ICA “without delay”). In Greece and

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Portugal, the policyholder ought to give notice within 14 days from the moment when he learns about the aggravation (see art. 4 para. 1 Greek ICA and art. 93 para. 1 Portuguese ICA). In Sweden s. 3 of Ch. 4 ICA (covering consumer insurance) explicitly allows the insurer to include in the contract a clause to the effect that the policyholder shall inform the insurer about an important change in circumstances of a type specified in the contract.

Insurer’s Duty to Pay Insurance Money N2. A rule such as that in Article 4:202 para. 3 requiring the insurer to pay insured losses unconnected with the aggravation of risk, is found, for example, in Denmark (s. 55 para. 2 and s. 45 para. 3 ICA) and in Germany (s. 26 para. 3(1) ICA). The same is true of Portugal. Under the Portuguese ICA, the insurer may refuse payment only in respect of losses resulting from the aggravation of risk (see art. 94 para. 1 ICA). Swedish law enables the insurer to reduce the insurance money in accordance with what is reasonable in light of the significance which the fact would have had for the insurer’s risk assessment, whether such disregard was intentional or negligent, and other circumstances. For business insurance the all-or-nothing principle applies, see s. 10 of Ch. 8 ICA.

Article 4:203 Termination and Discharge (1) If the contract provides that, in the event of an aggravation of the risk insured the insurer shall be entitled to terminate the contract, such right shall be exercised by written notice to the policyholder within one month of the time when the aggravation becomes known or apparent to the insurer. (2) Cover shall expire one month after termination or, if the policyholder is in intentional breach of the duty under Article 4:202, at the time of termination. (3) If an insured event is caused by an aggravated risk, of which the policyholder is or ought to be aware, before cover has expired, no insurance money shall be payable if the insurer would not have insured the aggravated risk at all. If, however, the insurer would have insured the aggravated risk at a higher premium or on different terms, the insurance money shall be payable proportionately or in accordance with such terms.

Comments Reconsideration of the Risk by Insurers C1.  When a material aggravation of risk, as defined in Article 4:201, occurs during the insurance period, insurers may, subject to Article 4:203, rely on any policy term that entitles them to terminate the contract. Generally speaking the decision to terminate or not is a decision that the Principles of European Insurance Contract Law leave to the market, provided that the aggravation is indeed material and that policyholders are not unduly prejudiced. In particular, policyholders must not be left in undue uncertainty about what their insurer will decide.

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Time for Policyholders to Find Alternative Cover C2.  In the event of termination policyholders must have time in which to find alternative cover. Thus, Article 4:203 para. 1 states that insurers must exercise their right to terminate by notice to the policyholder within one month of the time when they were or should have been aware of the aggravation. In the Principles of European Insurance Contract Law there is a presumption in favour of policyholders, sometimes expressed, for example in Article 2:102 para. 2, that notice from insurers is not effective until receipt of notice. C3.  Exception is made for cases in which policyholders are “in intentional breach of the duty of notification at the time of termination”, for example when they may well have sought to deceive the insurer concerned about the level of risk in order to avoid an increase in premium. In such circumstances, policyholders should have contemplated the possibility of having to seek alternative cover, if available, and do not merit a further month’s cover while they do so.

Discharge C4.  Article 4:203 para. 3 contains a rule parallel to Article 2:102 para. 5 (breach of the applicant’s pre-contractual information duty). When the policyholder neither knows nor ought to know about the aggravation of the risk, he should not be unduly prejudiced. Thus, Article 4:203 para. 3 provides that in such an eventuality the insurance money shall remain payable to a policyholder in full. The same is true when the policyholder knows or ought to know about the aggravation of the risk, as long as there is no causal connection with the loss. However, when the policyholder knows or ought to know and there is also a causal connection, the insurance money payable is qualified in the way set out in Article 4:203 para. 3 and in the same way as in Article 2:102 para. 5.

Application to Group Insurance C5.  The application of Article 4:203 para. 1 is modified as far as group insurances are concerned, see Article 18:203 para. 2.

Notes Expiry of Cover N1. A rule permitting the insurer to terminate cover in the event of aggravation of risk is found in many countries, although the period after which termination takes effect and insurance cover ends, varies: 7 days in Denmark (s. 47 ICA), 10 days in France (art. 113-4 para. 2 ICA), 15 days in Greece (art. 4 para. 2 and the first sentence of art. 3 para. 7 ICA), one month in Belgium (art. 81 para. 1(2) IA 2014) and Luxembourg (art. 34 para. 1(3) ICA). In Italy termination takes effect immediately or after 15 days depending on the degree of aggravation (art. 1898 para. 3 CC). The United Kingdom is the exception: no termination at all on that ground.

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Discharge N2. As with other cases of breach of a duty of the policyholder, national laws exhibit a gradual change from the all-or-nothing principle to a proportionate reduction of the insurance money, when the insured event occurs before the termination of the insurance contract. In the case of a fraudulent increase of risk the insurer will generally be entitled to withhold payment completely, see for Germany s. 26 para. 1 ICA; for Greece art. 4 para. 2 in conjunction with art. 3 para. 6 ICA; for Portugal art. 94 para. 1(c) ICA; for Spain the second sentence of art. 12 para. 2 ICA; in Sweden (consumer insurance), where the policyholder fails to notify the insurer about the increase in risk, insurance money may be reduced in accordance with what is reasonable, taking into account, among other factors whether the failure is intentional. N3. The rule emerging from national laws in respect of a breach of the notification duty is in line with Article 4:203 para. 3: it is the proportionate reduction of the insurance money. The first step will be the hypothetical ascertainment of the premium that would have been due had the policyholder complied with his duty of notification. The insurance money will then be reduced in the proportion established between that hypothetical premium and the actual premium. Rules of this kind can be found in Belgium (art. 81 para. 3(b) IA 2014); France (art. 113-9 para. 3 ICA); Greece (art. 4 para. 2 in conjunction with art. 3 para. 5 ICA); Luxembourg (art. 34 para. 3(b) ICA); Portugal (art. 94 para. 1(b) ICA); Spain (the third sentence of art. 12 para. 2 ICA). Some of these provisions entirely exclude payment if the insurer, being aware of the increased risk, would not have insured it at all. N4. Yet another group of national laws provides for a reduction of the insurance money in accordance with the degree of fault of the policyholder. This relates to Finland (with regard to indemnity insurance only, s. 26 para. 3 ICA), Germany (the second sentence of s. 26 para. 1 ICA) and Sweden (the second sentence of s. 3 para. 1 of Ch. 4 and s. 2 of Ch. 4 ICA).

Section Three: Reduction of Risk Article 4:301 Consequences of the Reduction of Risk (1) If there is a material reduction of risk, the policyholder shall be entitled to request a proportionate reduction of the premium for the remaining contract period. (2) If the parties do not agree on a proportionate reduction within one month of the request, the policyholder shall be entitled to terminate the contract by written notice given within two months of the request.

Comments Purpose and Scope C1.  Article 4:301 deals with situations in which there is a material reduction of the risk under the insurance contract, but one that does not arise from compliance with any precautionary measures required by the policy in accordance with Article 4:101 ff. A material reduction of the risk subject to Article 4:301 could occur as a result not only of action by

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policyholders (or other persons insured) but also as a result of action by third parties or other causes. C2.  Examples of such action include the installation of security measures that are not required by the terms of a household insurance policy, such as burglar alarms, special locks or smoke detectors. Policyholders should be encouraged to take voluntary steps to reduce risks, and the prospect of a lower premium held out by Article 4:301 provides a degree of encouragement. Examples of third party action include the construction of flood defences by government where insured property is situated in an area prone to flooding. C3.  Article 4:301 para. 1 is not meant to encourage good risk management but considerations of fairness suggest that policyholders should have the possibility of paying less for the cover on request. Any overpayment of premium for the past is a loss which lies where it falls – on the policyholder in question. Article 4:301 para. 1 is concerned only with material reductions of risk that occur after conclusion of the contract. C4.  By extension, this provision should also apply to the situation where a policyholder over-estimated the risk when completing the application for insurance; for example the application for a property about to be purchased states that there is no alarm system, but when the purchase is completed the policyholder discovers that in fact there is such a system. If the property is over-valued, Article 8:103 will apply.

Materiality C5.  To benefit from Article 4:301, policyholders must be able to establish, if required, that the reduction in risk is material. “Material” is to be understood in the same sense as in other provisions of the Principles of European Insurance Contract Law; see Article 2:103(b) Comment 2.

Policyholder’s Initiative C6.  To benefit from Article 4:103, policyholders must also take the initiative by requesting a reduction of the premium; and any reduction, if agreed, takes effect only from the date of the request under Article 4:103. Thus, policyholders cannot require a retrospective reduction, although that does not rule out the possibility of party agreement to such a reduction. If, on the contrary, the parties do not reach any agreement on reduction within four weeks, policyholders are entitled to terminate the contract and seek cover elsewhere. Termination would take effect immediately and policyholders would be entitled to a return of premium for the remaining insurance period in accordance with Article 5:104.

Notes Reduction of the Premium N1. A right to request a proportionate reduction of the premium, as set forth in Article 4:301, can be found in the laws of Belgium (art. 80 IA 2014), France (art. 113-4 para. 4 ICA), Greece

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(art. 5 para. 1 ICA), Italy (art. 1897 CC), Luxembourg (art. 33 ICA), Portugal (art. 92 para. 1 ICA), and Spain (art. 13 ICA). Only the wordings chosen by the national legislators seem to indicate slight differences regarding the substance of the reduced risk. What is called “material reduction of risk” in Article 4:301 meets similar qualifications under the laws of Belgium and Luxembourg (“sensible et durable”), Portugal (“unambiguous and durable”) or Greece (“substantially diminished”). Other laws do not characterise the reduction of the risk any further, see for example the French law where “en cas de diminution de risque” the policyholder is simply entitled to pay a lower premium. N2. A narrower approach is taken in Germany, Austria and Switzerland. Under the laws of these countries a reduction of the premium may only be applied for in respect of risks which, when the contract was concluded, had been assessed as special, aggravating risks justifying an additional premium. See for Austria s. 41a ICA, for Germany s. 41 ICA and for Switzerland art. 23 ICA. N3. The effect of a reduction of the premium also depends on when it takes effect. Under art. 80 Belgian IA 2014 and s. 41 German ICA, the relevant point in time is the receipt of the policyholder’s application by the insurer, namely when the insurer became aware of the reduction of the risk; this is in line with Article 4:301 as can be inferred from the words stating that the request is justified “for the remaining contract period.” The solution is the same in art. 23 Swiss ICA. But according to s. 41 of the Austrian ICA, and under art. 13 of the Spanish ICA, the reduction of the premium does not become effective before the beginning of the subsequent insurance period. N4. In the countries not mentioned above the written laws do not contain provisions on the reduction of risk. This includes countries with rather recently introduced insurance codes, such as the Netherlands and Sweden. United Kingdom and Irish case law deals only with the aggravation and its consequences for the obligations of the insurer, but not with the reduction of risk. Accordingly, no reduction of the premium can be requested by the policyholder if not explicitly provided for in the contract. Given the short contract periods that prevail in these countries this is not considered as a matter of concern.

Termination of Contract N5. Several countries have provisions virtually identical to Article 4:301 para. 2, including the one-month period preceding the right to terminate the contract. These are the laws of Belgium (art. 80 IA 2014), Greece (art. 5 para. 1 ICA) and Luxembourg (art. 33 ICA). In Portugal, the law grants the policyholder a right to terminate in case the parties fail to reach an agreement on the new premium (see art. 92 para. 2 ICA). There is no express requirement, however, as to how much time needs to elapse before the right of termination arises. Under French law (art. L. 113-4 para. 4 ICA) and under Spanish law (art. 13 para. 2 ICA), the policyholder’s right to terminate the contract is triggered by the insurer’s refusal to lower the premium in the case of reduction of risk. The termination, then, becomes effective after 30 days under French law and with the closing of the insurance period under Spanish law. For the period of time between the termination of the contract and its effect, the insurer must reimburse the policyholder for the proportionate “over”-premium. N6. Contrary to these provisions, the Italian Code allows for the termination of the contract by the insurer only. It is entitled to terminate the contract within two months after it has received

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notice of the reduced risk which leads to a reduction of the premium (see above Note 1 and art. 1897 CC). Going a step further, the laws of Austria, Germany and Switzerland which grant the right to a proportionate reduction of the premium only in rare cases (see above Note 2) do not allow either party to terminate the contract by unilateral declaration.

Exceptions for Personal Insurance N7. It is a common occurrence that countries which have provisions on the reduction of risk at the same time limit the scope of those provisions. They usually exclude contracts dealing with either health or life insurance, see: Belgium (art. 80 IA 2014), France (art. L. 113-4 para. 6 ICA), Greece (the third sentence of art. 5 para. 1 ICA), Austria (s. 164a ICA for life assurance), and Luxembourg (art. 33 ICA). Under the new German law, the provision governing the reduction of risk shall only apply to life assurance contracts when the risk which is said to be reduced had been specified by the parties when the contract was concluded (s. 158 para. 3 ICA).

Chapter Five: Insurance Premium Article 5:101 First or Single Premium When the insurer makes payment of the first or single premium a condition of formation of the contract or of the beginning of cover, that condition shall be without effect unless (a) the condition is communicated to the applicant in writing using clear language and warning the applicant that he lacks cover until the premium is paid, and (b) a period of two weeks has expired after receipt of an invoice which complies with requirement (a) without payment having been made.

Comments Scope of Regulation C1.  The scope of regulation of Article 5:101 is limited in several ways. First of all, it only deals with certain aspects of non-payment of premium leaving questions of performance such as the place, time and mode of payment of the premium to the general rules as contained in the Principles of European Contract Law (see Articles 7:101, 7:102, 7:107 and 7:108). Secondly, Article 5:101 only deals with first premiums or single premiums (as to the meaning of these terms below Comments 5 to 7) whereas subsequent premiums are dealt with in Article 5:102. Thirdly, Article 5:101 only deals with the impact of non-payment of a first or single premium on the formation of the contract and the commencement of cover under the policy, whereas the right of the insurer to terminate the contract following non-payment of premium is dealt with in Article 5:103.

Regulatory Approach C2.  Article 5:101 restricts itself to limiting the effect of any condition imposed by the insurer by which the formation of the contract or the commencement of the cover under the

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policy depends on prior payment of the first or single premium. Article 5:101 itself neither requires pre-payment of the premium nor does it revoke cover in case of non-payment. Thus, in the absence of a condition imposed by the insurer, non-payment of the first or single premium will have no impact on the conclusion of the contract and the provision of cover by the insurer. In such cases the insurer will be restricted to enforcing its claim for premium in accordance with Article 9:101 para. 1 PECL and for interest in accordance with Article 9:508 PECL or terminating the contract in accordance with Article 5:103 PEICL. C3.  On the other hand, Article 5:101 does not prohibit a condition requiring payment of premium prior to the formation of the contract or the beginning of the cover. Such a condition is looked upon as a means to deter fraudulent contracting by policyholders. In particular, it makes it impossible for them to enjoy cover, at least for a certain amount of time, under a contract which was concluded knowing that they were not going to pay the premium – whether they were unable or simply unwilling to do so. Of course, policyholders could nevertheless obtain cover without advance payment of premium by means of preliminary cover if the insurer is willing to grant it (see, however, Article 2:403 and especially its para. 2 addressing the problem of preliminary cover obtained fraudulently). C4.  Article 5:101 applies no matter what kind of condition the insurer chooses to impose. In practice, mainly two patterns are followed by insurers. In some countries the offer of the insurer or the insurer’s acceptance of the application for insurance, as the case may be, is conditional on the advanced payment of premium. As a consequence, subject to Article 5:101, a contract of insurance will only be formed and cover will only start to run upon payment of the premium. In other countries insurers insert specific clauses into their general contract terms which become part of the contract by parties’ agreement and make the commencement of the cover but not the conclusion of the contract depend on payment of the first or single premium.

First and Single Premium C5.  In view of Article 5:102 the distinction between first premiums and subsequent premiums becomes vital. In principle, “first premium” is the premium which falls due immediately after the conclusion of the contract. Since contracts concluded under the Principles of European Insurance Contract Law normally last for one year (see Article 2:601) the premium due for the year after the initial conclusion of the contract is a first premium. In contrast, all premiums due after a prolongation of the contract according to Article 2:602 will be subsequent premiums and not governed by Article 5:101 but by Article 5:102. C6.  The issue described above in Comment 5 does not arise when a single premium is due. A single premium is the only premium which will ever be paid by the policyholder under the policy. Therefore, there will be no subsequent premiums within the meaning of Article 5:102 and Article 5:101 will apply to the single premium. In order to avoid any argument to the contrary the wording of Article 5:101 makes its application to single premiums explicit. C7.  Insurers frequently agree that policyholders may pay the premiums by instalments. A premium which is calculated, for example, on a yearly basis may be paid by the policyholder by monthly instalments. In such cases “the premium” will only be fully paid about

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one month before the regular one year period of the insurance contract comes to an end in accordance with Article 2:601. In such cases it would be contrary to the purpose of Articles 5:101 and 5:102, as well as the parties’ intention which is expressed in the agreement allowing payment of the first premium by instalments, to apply Article 5:101 to the full amount of the first premium. This is because the conclusion of the contract and/or the commencement of cover would be delayed by about 11 months. It follows that only the first instalment can be considered a first premium whereas all following instalments are subsequent premiums and subject to Article 5:102.

Prerequisites for Giving Effect to a Condition which is Subject to Article 5:101 C8.  A condition subject to Article 5:101 and imposed by the insurer will only take effect if specific criteria are met. First of all, the policyholder must be warned about the condition and its consequences (Article 5:101(a)). For that purpose the insurer must give written notice of the condition to the policyholder; for the meaning of written notice see Article 2:602 Comment 4. Like all documents issued by the insurer the notice must use plain and intelligible language and must be issued in the language in which the contract was negotiated, as required by Article 1:203 para. 1. The notice must set out the condition imposed by the insurer as well as the consequence of non-payment of the premium, namely the lack of cover. C9.  The warning to be given under Article 5:101(a) may partly overlap with the general duty of the insurer to warn the applicant about the commencement of cover in accordance with Article 2:203, where applicable. In such cases the insurer must comply with both duties in a manner which is mutually consistent. C10.  The second requirement for a condition subject to Article 5:101 is the receipt of an invoice (Article 5:101(b)). The invoice must not only state the amount of the (first or single) premium but must also comply with the duty to warn which is required of the insurer by Article 5:101(a). C11.  Finally, Article 5:101(b) allows the policyholder a period of two weeks after receipt of an invoice for payment of premium. As long as this period has not expired the policy condition is without effect (for more details, see below Comment 12).

Consequences of Payment or Non-Payment within the Two Week Period C12.  If the policyholder pays premium within the two week period, the condition imposed by the insurer “shall be without effect” and, therefore, the policyholder, insured or beneficiary, as the case may be, will enjoy cover irrespective of whether an insured event has occurred before or after payment of the first premium. If, in turn, the policyholder does not pay premium within the two week period, cover only commences with actual payment and only for the future. During the period until payment is made, including the period of two weeks referred to in Article 5:101(b), the risk will not be covered. However, if the policyholder is prevented from paying, Article 8:108 PECL may apply.

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Notes Postponement of Cover N1. In most European countries the beginning of insurance cover is linked to the payment of the first or single premium (“Einlöseprinzip”). This rule can be found as a non-mandatory provision in the laws of Austria (s. 38 para. 2 ICA), Denmark (s. 14 ICA); Germany (s. 37 para. 2 ICA), Greece (art. 6 para. 1 ICA), Italy (art. 1901 para. 1 CC), Poland (art. 814 para. 1 CC), and Portugal (art. 59 ICA: not applicable to life assurance and certain other types of insurance). N2. In other countries, even though no similar rule can be found in the insurance laws, a contractual clause having the same effect is permitted by the law (see for Belgium art. 69 para. 2 IA 2014, Basedow/Fock-Fock 267-268; for England and Wales Clarke 13-9, Basedow/Fock-Rühl 1464; for France Picard/Besson, Contrat para. 100, Basedow/Fock-Völker 520; for Ireland Doolan 361; for Luxembourg art. 37 para. 2 ICA, Basedow/Fock-Völker 796; for Scotland Forte, para. 834; for Sweden the second sentence of s. 1 of Ch. 5 ICA; for the Netherlands Basedow/Fock-Fock 869; and for Switzerland art. 19 para. 2 and art. 20 para. 3 ICA). Consequently, in many of these countries the same rule exists as a result of contractual practice (see for Belgium Cousy/Schoorens 119, Basedow/Fock-Fock 267-268; for the Netherlands Basedow/Fock-Fock 869; for England and Wales Clarke 13-9, Basedow/Fock-Rühl 1464; for Scotland Forte, para. 834; for Ireland Doolan 361). Only Finnish law (s. 11 para. 3 ICA) requires an additional justification by the nature of insurance or another particular reason for a contractual clause in the abovementioned manner to be effective.

Protection of the Applicant’s Expectations N3. Even though almost all European legal systems make it possible to require payment of the first or single premium for the insurance cover to begin, many laws establish some form of protection for the policyholder before the putative insurance cover is lost. One form of protection which can be found is a requirement of warning of the consequences of non-payment before they materialise. This requirement (similar to Article 5:101 para. 1(a)) can be found in the laws of Austria (s. 38 para. 3 ICA), Germany (the second sentence of s. 37 para. 2 ICA), Portugal (art. 60 para. 1 ICA) and Switzerland (art. 20 para. 1 ICA). In those countries where the Einlöseprinzip is established as a result of contractual practice, at least some form of warning is achieved by the fact that the consequences of non-payment are expressly spelled out in the insurance contract or shall be set forth in pre-contractual information (for Belgium Basedow/Fock-Fock 268; for Sweden the fourth sentence of s. 2 para. 1 of Ch. 2 ICA). N4. Another form of protection is the allowance of a “period of grace” (similar to Article 5:101 para. 1(b)) between receipt of an invoice (possibly containing a warning of the consequences of non-payment) and the actual payment by the policyholder. If the policyholder pays the first or single premium within this period of usually seven to fourteen days, insurance cover is granted even for the time before the payment was effected. Forms of such “periods of grace” can be found in the laws of Austria (s. 38 para. 2 ICA: two weeks), Denmark (s. 14 ICA: one week; usually longer in contractual practice, see Basedow/Fock-Scherpe 971), Portugal (art. 60 ICA), Sweden (s. 1 of Ch. 5 ICA: 14 days – applies to consumer insurance only), and Switzerland (art. 20 para. 1 ICA in accordance with art. 107 of the Code of Obligations (a reasonable period for execution

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has to be fixed by the creditor) foresees a “period of grace”). No “period of grace” exists in the laws of Germany (Basedow/Fock-Lemmel 390), Greece (Basedow/Fock-Papathoma-Baetge 620), and Italy (Basedow/Fock-Brunetta d’Usseaux 710). However, some of the countries which do not have a “period of grace” require fault of the policyholder regarding non-payment for the commencement of cover to be delayed (for example s. 37 para. 2 German ICA and s. 2 of Ch. 5 Swedish ICA).

Article 5:102 Subsequent Premium (1) A clause, providing for the insurer to be relieved of its obligation to cover the risk in the event of non-payment of a subsequent premium, shall be without effect unless (a) the policyholder receives an invoice stating the precise amount of premium due as well as the date of payment; (b) after the premium falls due, the insurer sends a reminder to the policyholder of the precise amount of premium due, granting an additional period of payment of at least two weeks, and warning the policyholder of the imminent suspension of cover if payment is not made; and (c) the additional period in requirement (b) has expired without payment having been made. (2) The insurer will be relieved of liability after the additional period in para. 1(b) has expired. Cover will be resumed for the future as soon as the policyholder pays the amount due unless the contract has been terminated in accordance with Article 5:103.

Comments Scope of Regulation C1.  The scope of regulation in Article 5:102 is subject to the same limitations as Article 5:101; see above Comment 1 on Article 5:101. However, in contrast with Article 5:101, Article 5:102 deals with non-payment of subsequent premiums; as to the meaning of this term see below Comment 3. As a consequence it only deals with contract clauses, providing for the insurer to be relieved of its obligation to provide cover, but not with conditions unilaterally imposed by the insurer in its initial offer or acceptance; see, in contrast, Article 5:101 Comment 4.

Regulatory Approach C2.  Article 5:102 applies the same regulatory approach as Article 5:101. Therefore, it is restricted to limiting the effect of any contract clause by which the provision of cover under the policy depends on prior payment of a subsequent premium. Article 5:102 itself neither requires pre-payment of the premium nor does it revoke cover in case of non-payment. Thus, subject to a clause in the contract providing otherwise, non-payment of a subsequent premium will have no impact on the provision of cover by the insurer. In such cases the insurer will be restricted to enforcing its claim for premium in accordance with Article 9:101 para. 1 PECL and for interest in accordance with Article 9:508 PECL or, alternatively, terminating the contract in accordance with Article 5:103 PEICL.

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Subsequent Premium C3.  In the context of Article 5:101 the terms “first premium” and “single premium” have been defined; see Comments 5 to 7. It follows from these definitions that the term “subsequent premium” must be understood as any premium or instalment of a premium due following payment of a first premium within the meaning of Article 5:101.

Prerequisites for Giving Effect to a Clause which is Subject to Article 5:102 C4.  The criteria to be met under Article 5:102 in order to relieve the insurer of its obligation to cover the risk go beyond what Article 5:101 requires in the case of non-payment of a first or single premium. This is justified because at that stage sanctions do not have to deter fraudulent contracting on the part of the policyholder. C5.  First of all, Article 5:102 para. 1(a) requires the insurer to send an invoice to the policyholder in order to make him aware of the premium due. The invoice must at least provide the policyholder with the two most important pieces of information concerning the subsequent premium, namely its precise amount and the date of payment. C6.  If payment is not made in accordance with the invoice, the insurer must send a reminder to the policyholder; see Article 5:102 para. 1(b). The reminder must state the precise amount of the premium due. In addition, it must grant the policyholder a period of grace of at least two weeks. Finally, the reminder must state the consequences of non-payment of the premium within the period of grace, namely the suspension of cover provided for by the contract.

Consequences of Payment or Non-Payment within the Period of Grace C7.  If the policyholder pays premium within the period of grace, any insured event will be covered irrespective of whether it occurred before or after payment of premium. C8.  If the policyholder does not pay premium within the period of grace, cover will be suspended with effect from the end of the period of grace; see the first sentence of Article 5:102 para. 2. As a consequence, insured events which occurred before the period of grace has ended will be covered. C9.  If the period of grace has ended and cover has been suspended, the policyholder still has the option to resume cover by paying the premium; see the second sentence of Article 5:102 para. 2. Cover will, however, be resumed only for the future. As a consequence, insured events occurring between the end of the period of grace and the payment of premium remain uncovered under the policy. C10.  The option to resume cover by paying premium as provided for in the second sentence of Article 5:102 para. 2 is lost as soon as the contract is terminated. Termination for non-payment of a subsequent premium is regulated in Article 5:103.

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Notes N1. Almost all European insurance laws provide for insurance cover to be suspended on default of payment of subsequent insurance premiums. This is true for the law of Austria (s. 39 para. 2 ICA), Belgium (standard contractual clause permitted by art. 69 para. 1 IA 2014, see Vandeputte 84 and Basedow/Fock-Fock 268), Denmark (s. 14 ICA), France (art. L. 113-3 ICA), Italy (art. 1901 para. 2 CC), Luxembourg (art. 21 ICA), the Netherlands (art. 7:934 CC), Poland (art. 814 para. 3 CC), Portugal (art. 61 para. 2 ICA), Spain (art. 15 para. 2 ICA), Switzerland (art. 20 para. 3 ICA), England and Wales (Clarke 13-9 and 18-3), Scotland and Ireland (Basedow/Fock-Rühl 1465). N2. Exceptions seem to be Greece and Sweden. In Greece, the insurer has the choice between termination and continuation of the insurance contract. If the contract is not terminated, the insurance cover is preserved even in default of premium payment (art. 6 para. 2 ICA and Basedow/ Fock-Papathoma-Baetge 621). In Sweden, likewise, insurance cover is not lost by operation of law where the policyholder defaults on the subsequent premium. Rather, the insurer has a right to terminate the contract pursuant to s. 2 of Ch. 5 ICA (see also the notes on Article 5:103). N3. At the same time most European legal systems stipulate additional requirements for the insurance cover to be lost in the case of non-payment of subsequent insurance premiums. Usually insurance cover is not lost unless an additional period of payment set by the insurer has run out and the policyholder has been warned of the forfeiture of cover. The requirement of an additional payment period exists in the laws of Austria (s. 39 para. 1 ICA: two weeks), Belgium (art. 70(2) IA 2014: 15 days, see Cousy/Schoorens 120), Denmark (s. 14 ICA: one week), France (art. L. 113-3 ICA: 30 days), Germany (s. 38 para. 1 ICA: two weeks as a minimum), Luxembourg (art. 21 ICA: 30 days), the Netherlands (art. 7:934 CC: 14 days), Poland (art. 814 para. 3 CC: 7 days from receipt of a notice posted by the insurer), Spain (art. 15 para. 2 ICA: one month; Basedow/Fock-Schlenker 1329-1330), Sweden (the first sentence of s. 2 para. 2 of Ch. 5 ICA: within two weeks from receipt of a notice posted by the insurer), Switzerland (art. 20 para. 1 ICA: 14 days), and in art. 6 para. 1 of the Amended Proposal for a Council Directive on Insurance Contract Law (two weeks). A rule to the effect that the additional payment period may not be set before the premium fell due exists in the Netherlands (art. 7:934 CC). N4. The requirement of a warning of the forfeiture of coverage can be found in the laws of Austria (s. 39 para. 1 ICA), Belgium (art. 70 para. 3 IA 2014), France (Basedow/Fock-Völker 521), Germany (s. 38 para. 1 ICA), Luxembourg (art. 22 ICA), the Netherlands (art. 7:934 CC), Poland (art. 814 para. 3 CC), Sweden the second sentence of s. 2 para. 2 of Ch. 5 ICA), Switzerland (art. 20 para. 1 ICA), and in art. 6 para. 1 of the Amended Proposal for a Council Directive on Insurance Contract Law. No requirement of warning exists in Italy where insurance cover is lost automatically 15 days after the subsequent premium fell due (art. 1901 para. 2 CC). It may be added that special rules exist for life assurance contracts in many countries, for example Austria (ss. 173 and 175 ICA), France (art. L. 132-20 para. 1 ICA), Germany (s. 166 para. 2 ICA), Luxembourg (art. 24 ICA) or the Netherlands (art. 7:980 CC). The same is true of the law in the United Kingdom, although there is a long established insurance practice of issuing life assurance policies with a “period of grace” for payment of subsequent premiums: Birds 5.7.3, Clarke 13-8A.

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Article 5:103 Termination of the Contract (1) On expiry of the period referred to in Article 5:101(b) or Article 5:102 para. 1(b), without payment of the premium being made, the insurer shall be entitled to terminate the contract by written notice, provided that the invoice required by Article 5:101(b) or the reminder required by Article 5:102 para. 1(b), as the case may be, states the right of the insurer to terminate the contract. (2) The contract shall be deemed to be terminated if, as the case may be, the insurer does not bring an action for payment (a) of the first premium within two months after expiry of the period mentioned in Article 5:101(b); or (b) of a subsequent premium within two months of expiry of the period mentioned in Article 5:102 para. 1(b).

Comments Scope of Regulation C1.  Article 5:103 regulates the insurer’s right to terminate the contract in case of non-payment of premium. It covers non-payment of both a first or single premium and a subsequent premium. However, termination only applies to cases in which a contract has actually been formed. This is not the case if the insurer makes payment of a first or single premium a condition of formation of the contract in accordance with the first of the alternatives stated in Article 5:101. Thus, non-payment of the first or single premium prevents the formation of the contract and, therefore, there is no question of termination. C2.  Article 5:103 states a special, mandatory and comprehensive rule. Thus, it overrides the provisions of the Principles of European Contract Law on delay in payment as well as non-payment of money otherwise applicable, namely Articles 8:106 para. 3 and 9:301 to 9:304 PECL.

Regulatory Approach C3.  Article 5:103 grants the insurer a right to terminate the contract in case of non-payment of the premium by the policyholder. The rule serves, first of all, the interest of the insurer to be able to terminate its contractual relationship with a policyholder, who has proved to be unreliable in paying the premium. Indeed, relief from the obligation to provide cover in accordance with conditions of the kind referred to in Articles 5:101 and 5:102 does not fully satisfy the interest of the insurer in termination because it would remain in a relationship which involves some obligations to the policyholder. C4.  On the other hand, Article 5:103 was not needed solely for the purpose of giving a right of termination to the insurer, because Articles 8:106 para. 3, 9:301 and 9:304 PECL, which would apply as the lex generalis by virtue of Article 1:105 PEICL give a right to termination anyway. Article 5:103 also lays down mandatory limits on the insurer’s right of termination.

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Termination in Case of Non-Payment of a First or Single Premium C5.  The insurer will only be entitled to terminate the contract if, first of all, the period of two weeks for payment of premium under Article 5:101(b) has ended. Since this period will only start to run if the further conditions set out in Article 5:101 are fulfilled, these conditions must also be met. However, in the unlikely case that an insurer does not use the option granted by Article 5:101 it may nevertheless send an invoice to the policyholder and trigger the two week period for payment of premium. C6.  Furthermore, Article 5:103 para. 1 requires information about the right of termination to be given to the policyholder. This information must be included in the invoice mentioned in Article 5:101(b); see Article 5:103 para. 1.

Termination in Case of Non-Payment of a Subsequent Premium C7.  Termination in the case of non-payment of a subsequent premium is regulated in the same way as in the case of non-payment of a first or single premium, with one exception. The exception is that, in the case of non-payment of a subsequent premium, Article 5:103 para. 1 refers to the additional period of payment of at least two weeks and to the reminder mentioned in Article 5:102 para. 1(b) instead of the period of payment and the invoice mentioned in Article 5:101(b).

Notice of Termination C8.  If the insurer wishes to exercise its right to terminate, it must do so by giving the policyholder written notice of termination; for the meaning of written notice see Article 2:602 Comment 4.

Effects of Termination C9.  The contract will come to an end upon receipt of notice of termination by the policyholder. C10.  Termination under Article 5:103 has no retroactive effects. Therefore, the insurer is entitled to the premium due for the period in which the contract remains in force; concerning divisibility of the premium see Article 5:104. This period is, however, restricted by Article 5:103 para. 2; see below Comment 11.

Automatic Termination C11.  According to Article 5:103 para. 2 the insurer must either terminate the contract or bring an action for payment of premium within a period of two months following the payment periods mentioned in Article 5:103 para. 1. The contract is deemed to be terminated and end automatically, if the insurer fails to act in either way within such period. Thus, the insurer cannot let the contract go on indefinitely and collect the premium while cover is withheld in accordance with Article 5:101 or suspended in accordance with Article 5:102.

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C12.  Article 5:103 para. 2 must not be applied in the unlikely case that the insurer does not use the options granted by Articles 5:101 and 5:102. In such case, if the insurer has a right to terminate under Article 5:103 para. 1 but decides not to use it, no harm is done to the policyholder. Because cover must be provided by the insurer it is only reasonable that the policyholder owes any premium due as long as the insurer does not terminate.

Notes Article 5:103 para. 1: The Right to Terminate N1. The right of an aggrieved party to terminate a contract after giving the other party a reasonable time in which to perform is accepted by the Principles of European Contract Law (Article 8:106 para. 3), the United Nations Convention on Contracts for the International Sale of Goods (CISG) (arts. 47, 49 para. 1(b), 63, and 64 para. 1(b)) and the laws of many European countries (Lando/Beale 376-377). The first sentence of Article 5:103 para. 1 establishes this principle for insurance law and refers back to the time periods of Article 5:101(b) and Article 5:102 para. 1(b) as reasonable time periods for performance. N2. The right to terminate the insurance contract if the policyholder has delayed performance and a reasonable time to perform has lapsed can be found in the insurance laws of Austria (s. 39 paras. 1 and 3 ICA: two weeks), Belgium (art. 71 paras. 1 and 3, art. 70 para. 2 IA 2014: not less than 15 days), Denmark (s. 13 ICA: one week and three days after termination notice), Finland (s. 39 para. 1 ICA: 14 days from the dispatch date of the termination notice; this does not apply to automatically renewed non-life insurance policies), France (art. L 113-3 para. 3 ICA: 30 + 10 days), Germany (s. 38 paras. 1 and 3 ICA: two weeks), Greece (the second sentence of art. 6 para. 2 ICA: one month), Luxembourg (art. 22 para. 2 and art. 21 ICA: 30 + 10 days), the Netherlands (art. 7:934 CC: 14 days), Spain (Bataller/Latorre/Olavarria 193, Sánchez Calero, (art. 15) 255-256, Basedow/Fock-Schlenker 1329-1330), Sweden (s. 2 of Ch. 5 ICA), and Switzerland (arts. 20 para. 1 and 21 para. 1 ICA: 14 days; Basedow/Fock-Bälz 1240). In England and Wales, Scotland and Ireland, except in the case of life assurance, delayed payment leads to termination of the insurance contract even if the insurer does not set an additional payment period (Clarke 13-9; Basedow/ Fock-Rühl 1465). The contract remains valid, however, if the insurer accepts late payment of the premium (Basedow/Fock-Rühl 1465). In Poland: art. 814 paras. 2 and 3 CC. In Portugal the insurance contract ends automatically subject to the conditions laid down in art. 61 ICA.

Form of Termination N3. Explicit formal requirements (“by notice in writing”) for the termination of the insurance contract (at least for some forms of termination) can be found in Austria (see Basedow/Fock-Lemmel 1118), Belgium (art. 71 para. 4 and art. 70 para. 1 IA 2014, see Basedow/Fock-Fock 299), Finland (s. 39 ICA), France (arts. L. 113-14 and R. 113-6 ICA), Greece (the second sentence of art. 6 para. 2 ICA), Italy (Basedow/Fock-Brunetta d’Usseaux 746), Luxembourg (art. 39 para. 1 ICA) and Sweden (s. 2 of Ch. 5 ICA: notice of termination must contain information on the date from which the termination takes effect; where such information is omitted, the termination is without effect). The possibility to combine the notice of termination with the invoice or the

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reminder is explicitly permitted by the insurance laws of Austria (s. 39 para. 3 ICA), Belgium (art. 71 para. 3 IA 2014) and Germany (s. 38 para. 3 ICA). N4. The second half of Article 5:103 para. 1 makes it possible to combine the invoice or the reminder with the sanction of automatic termination of the insurance contract if payment is not effected in the period fixed. Similar rules can be found in the insurance laws of Austria (s. 39 para. 3 ICA), Belgium (art. 71 para. 3 IA 2014) and Germany (s. 38 para. 3 ICA).

Article 5:103 para. 2 N5. In order to avoid the insurer taking advantage of a forfeiture of cover while keeping the right to the premium, some European insurance codifications have developed a presumption of termination similar to Article 5:103 para. 2. Such a presumption exists in Spain (art. 15 para. 2 ICA: six months after the additional payment period has expired) and Switzerland (art. 21 para. 1 ICA: two months after the additional payment period has expired). As already mentioned, Portuguese law regards the insurance contract as terminated by operation of law if the policyholder defaults on the premium (art. 61 paras. 2 and 3 ICA).

Article 5:104 Divisibility of Premium If an insurance contract is terminated before the contract period has expired, the insurer shall only be entitled to premium in respect of the period prior to termination.

Comments The Principle C1.  Article 5:104 establishes the principle of divisibility of premium. Therefore, if a contract is terminated early, the insurer will only be entitled to claim an amount of premium which relates to the period of time before termination took effect. If premium is pre-paid, the insurer must pay back a pro rata share of the premium to the policyholder. For example, a contract concluded for one year but terminated after 10 months will give rise to a claim for repayment of one sixth of the yearly premium which was paid in advance.

Abolition of a Principle of Indivisibility of Premium C2.  Article 5:104 excludes the principle of indivisibility of premium found in some countries because it is not justifiable in this context. Indivisibility is, first of all, no longer required for reasons of practicability. Modern information technology allows virtually costless calculation of pro rata premium. Secondly, the argument, that the insurer needs the premium to fund the relevant risk pool as originally conceived, is unfounded. Following early termination of the contract, the overall exposure of the insurer to risk decreases and the unearned premium is no longer needed to maintain the solvency of the insurer. Thirdly, the risk covered is not indivisible itself. Insurance practice shows that premium for a risk can be calculated on a daily, monthly or yearly basis. Clearly, premiums for cover of a shorter

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period are lower in absolute terms than premiums for cover of a longer period. Therefore, at least from an economic point of view, risks are divisible in time. There is, of course, an argument, that the risk is not even throughout a given period, such as one year. For example in the case of flood insurance, the risk is higher at some seasons than others. However, insurers can tackle this problem, for example, by calculating and charging premiums on a monthly basis instead of a yearly basis. The principle of divisibility of premium neither prevents nor interferes with such calculation and charging of premium. Fourthly, the right of the insurer to keep unearned premium cannot be justified as a provision for liquidated damages. In fact, many cases of early termination are not based on a breach of contract on the side of the policyholder. Moreover, the amount of unearned premium depends on the time of termination and, therefore, the amount of liquidated damages will be high if termination comes early but low if it comes relatively late. Finally, indivisibility may be looked upon as a “penalty” against the policyholder. However, as has been mentioned, many cases of early termination do not involve any breach of contract on the side of the policyholder and, therefore, there is no ground for a penalty. Again, the amount of the penalty depends on the time of termination which is merely fortuitous. For all these reasons, any such penalisation of the policyholder must be restricted to extreme cases; see below Comment 3. C3.  Exceptionally, in case of fraudulent breach of pre-contractual information duties, the insurer may keep all premiums paid in spite of retroactive effect of avoidance under Article 2:104. This rule serves as a deterrent to fraud on part of the applicant when carrying out pre-contractual information duties.

Notes N1. Many insurance laws regard the insurance premium as divisible and limit the premiums which the insurer may collect to those owed pro rata temporis at the time of termination of the insurance contract. This is true for the laws of Austria (s. 40 ICA), Belgium (art. 73 IA 2014), Denmark (s. 16 ICA), Germany (s. 39 ICA), Finland (s. 45 ICA), Poland (art. 813 para. 1 CC), Portugal (art. 61 para. 3 ICA), Sweden (s. 3 of Ch. 5 ICA), and Switzerland (art. 24 ICA with an exception made, in case of partial damage, by art. 42 para. 2 ICA where the policyholder terminates the contract in the year following its conclusion). The Dutch Civil Code applies the principle of divisibility according to what is fair (see art. 7:939 CC). In Greece, the principle of divisibility is derived from the second sentence of art. 7 para. 6 ICA which provides that the parties can agree that the premium shall be indivisible in the event of termination of the contract after the occurrence of the insurance event. N2. On the other hand, the traditional contrast to the principle of divisibility, the principle of indivisibility of premium which has traditionally been the position in particular of German-influenced legal systems, seems to be in decline. Law reform in Austria and Germany shifted the respective laws towards the principle of divisibility (for Austria see Fenyves/Kronsteiner/Schauer-Fenyves, § 2 VersVG para. 1 and § 40 VersVG para. 1, Heiss/Lorenz-Heiss, § 40 VersVG para. 1, and Basedow/Fock-Lemmel 1113-1114; for Germany compare s. 39 ICA with s. 40 former ICA, see Wandt, para. 500), and even in those countries where the principle of indivisibility is still in force, it is either limited to insurance of business risks or at least the scope of application of the principle of indivisibility is limited and its extension by way of analogy rejected (for criticism in

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Switzerland, see Basedow/Fock-Bälz 1239, 1263-1264, Honsell/Vogt/Schnyder-Fuhrer, art. 25-27 paras. 60 ff., and Maurer 291). At present, the principle of indivisibility of premium is still in force in the United Kingdom (see Tyrie v Fletcher (1777) 2 Cowp 666, Birds 10.2, and Clarke 13-12).

Article 5:105 Right to Pay Premium The insurer shall not be entitled to refuse payment by a third party if (a) the third party acts with the assent of the policyholder; or (b) the third party has a legitimate interest in maintaining the cover and the policyholder has failed to pay or it is clear that he will not pay at the time payment is due.

Comments Obligation of the Insurer to Accept Payment C1.  The policyholder is the person who owes the premium. He is obliged to pay and the insurer must accept his payment. In contrast, third parties – including the insured and beneficiary – do not owe the premium and, therefore, do not have to make payment. However, sometimes third parties want to pay so that the insurer is not relieved of its obligation to cover the risk. Usually this is the case when the third party benefits from cover, for example, either directly as an insured, or indirectly as a pledgee. In other cases payment by a third party is intended as a gift to the policyholder, for example, when a mother keeps paying health insurance premiums for her bankrupt son. Both cases raise the question, whether an insurer must accept payment from a third party as the payment of the policyholder, even though it seeks to be relieved of its obligation to provide cover in accordance with Article 5:101, 5:102 and to obtain early termination of the contract in accordance with Article 5:103. C2.  Article 5:105 establishes the right of certain third parties to pay the premium on behalf of the policyholder. The wording of the provision is flexible and modelled on the parallel rule contained in Article 7:106 PECL. The wording of Article 7:106 PECL has been adapted to the context of insurance premiums and its contents are made mandatory by virtue of Article 1:103 para. 2.

Consent of the Policyholder C3.  Payment by a third party must be accepted by the insurer if it is made with the consent of the policyholder (Article 5:105(a)). This will usually be the case when the third party wishes to benefit the policyholder.

Legitimate Interest of Third Party C4.  Payment by a third party, even if made without the consent of the policyholder, must be accepted by the insurer, if the third party has a legitimate interest in maintaining the cover (Article 5:105(b)). However, this option is restricted to cases where the policyholder has already failed to pay on time or where it is clear that he is not going to make payment.

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This restriction is appropriate because, without it, there appears to be no good reason for giving a third party, even one with a legitimate interest a right to pay premium. C5.  A third party has a legitimate interest in maintaining the cover whenever he benefits from it either directly or indirectly. The insured and the beneficiary under the policy both benefit directly from cover and are thus entitled to pay premium in accordance with Article 5:105(b). Third parties who have an interest in the subject matter of insurance or who would otherwise have to cover losses resulting from an insured event benefit indirectly from cover and are also entitled to effect payment. This is the case, for example, with a relative who would otherwise have to cover losses resulting from an insured event because he may be obliged to provide maintenance for the policyholder. It applies also to pledgees who would lose their security if the property pledged was destroyed after the insurer was released from its obligation to provide cover on account of non-payment of premium. Moreover, a tenant may also have a legitimate interest in effecting payment of premium for insurance taken on the tenanted property, if he has reason to fear that it could not be rebuilt for lack of funds if it were destroyed by fire. The cases mentioned are only examples and, thus, do not represent an exhaustive list.

Notes N1. The dispositive rule of Article 7:106 para. 1 PECL admits performance by a third person either if the debtor assents or if the third person has a legitimate interest in performance and the debtor has failed to perform or it is clear that the debtor will not perform at the date due. Similarly the law of obligations on the European continent generally allows third parties to perform the contract, albeit on varying conditions, while English law is much more restrictive and only in specific situations favourable to third parties’ performance (for the general law see Lando/Beale 340; for the law of insurance contracts, see Clarke 13-5)). N2. The mandatory provision of Article 5:105 slightly varies the rule of Article 7:106 para. 2 PECL for the field of insurance law (where a large number of contracts affect the interests of third parties) and allows payment by third parties without the further requirement of default of the policyholder being a precondition of payment. Similar rules can be found in Austria (s. 35a ICA), France (Picard/Besson, Contrat para. 270; Basedow/Fock-Völker 536), Germany (s. 34 ICA), Luxembourg (art. 70 para. 3 ICA), Portugal (art. 55 ICA which permits the payment by a third party with or without a legitimate interest in the fulfilment of the obligation) and Spain (art. 7 para. 3 ICA).

Chapter Six: Insured Event Article 6:101 Notice of Insured Event (1) The occurrence of an insured event shall be notified to the insurer by the policyholder, the insured or the beneficiary, as appropriate, provided that the person obliged to give notice was or should have been aware of the existence of the insurance cover and of the occurrence of the insured event. Notice by another person shall be effective.

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(2) Such notice shall be given without undue delay. It shall be effective on dispatch. If the contract requires notice to be given within a stated period of time, such time shall be reasonable and in any event no shorter than five days. (3) The insurance money payable shall be reduced to the extent that the insurer proves that it has been prejudiced by undue delay.

Comments Channels of Communication C1.  The obligation to give notice of an insured event to the insurer on risk without undue delay applies (as a default rule) in all cases. No single person subject to the obligation is identified in Article 6:101. In practice, the person with an obvious interest in giving notice of an event is one or more of those referred to in Article 6:101 para. 1, who may do so personally or through an agent. As the rule is framed as an obligation, breach of which may have adverse consequences to those concerned, the provision concerning awareness is included to safeguard their position. C2.  Notice by another person is effective, it being understood that insurers are not obliged to act on information that does not appear to be reliable. The rule envisages, for example, catastrophic events reliably reported in mass media or notified by friends and neighbours where the event is such that policyholders with potential claims may have been incapacitated from carrying out day to day functions. In such instances potential claimants are not compelled to claim but, if they do so, insurers cannot reduce the amount payable by reference to Article 6:101 para. 3.

Balancing Interests C3.  Due performance of the notice obligation is beneficial to insurers because it affords them an opportunity for investigation and the prevention of fraud, before the trail becomes cold and information about the occurrence becomes more difficult and unduly expensive to obtain. Moreover, it assists insurers to form an intelligent estimate of their liabilities, their financial exposure, in general. Still, some delay is inevitable. However, there is undue delay when the time taken to notify insurers is longer than is reasonable in the circumstances. Circumstances vary. On the one hand, in life assurance it may be some time before interested persons even discover the existence of the policy. In house insurance, on the other hand, unless the policyholder occupant has been away on holiday or on business, the time required to notify a burglary is likely to be short. Indeed, lengthy periods are unlikely to be reasonable in the case of indemnity insurance unless, for example, a person with fire insurance perishes in the fire together with the policy. In all cases, however, the five day period referred to in Article 6:101 para. 2 indicates the minimum period that people can expect to be allowed.

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Notice Periods C4.  Policies sometimes state a certain number of days for notice to be given of the loss. In some countries courts have applied such conditions to the letter whether, in the particular case, it was reasonable to expect notice in the stipulated time or not. The Principles of European Insurance Contract Law protect policyholders by providing that the policy period, if any, shall not be shorter than five days, as well as requiring that it must be reasonable in the particular case which, of course, may extend the number of days allowed in that case. Moreover, as with other notice rules in the Principles of European Insurance Contract Law, notice is effective on dispatch, and this must be stated in the policy. See Article 4:202 Comment 2.

Contents of the Notice C5.  The contents of a notice of loss must be sufficient to achieve the purpose of such notice; see Comment 2. They include the time, place, and circumstances of the insured event, and any other available information which might assist insurers to decide whether and, if so, how to undertake an investigation of the loss. Notice does not have to amount to a precisely formulated claim with full details, such as an estimate of the value of what has been damaged or lost. Distinguish notice of an insured loss from proof of its occurrence. Statements in the notice are no more than assertions of fact. Sooner or later claimants must be in a position to prove the facts on which their claim is based but that is not required of them for the purpose of notice. C6.  In practice, once insurers have received due notice, it is then for them to indicate, if the policy does not do so, what further particulars are reasonably required. See Article 6:102. Commonly insurers do this simply by sending claimants a form to complete. The wording of both policy notice terms and claim forms are likely to be construed in favour of claimants. Words such as “full particulars of loss” are not taken literally but mean “the best particulars the insured can reasonably give”. A requirement of “true” particulars is taken to mean true to the best of the claimant’s belief.

Breach of Duty C7.  The effect of breach of notice requirements varies in the law of European countries. In particular, there is no universal agreement about whether it is a condition of any sanction against claimants that insurers have been prejudiced by any undue delay. Article 6:101 para. 3 resolves this issue in favour of claimants. Moreover, first, as insurers usually raise breach of the notice duty as a ground for refusing to pay a claim, it is for insurers to prove prejudice which, in many if not most cases, insurers will find it either difficult or inexpedient to do. Second, it can be inferred that a reduction in the amount of insurance money payable, the remedy stated in Article 6:101 para. 3, is the only sanction. Thus, insurers will not be allowed to plead policy terms whereby performance of a notice duty is a “condition precedent” of payment of any insurance money at all. In that regard note also the rules on precautionary measures: Articles 4:101 ff.

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Notes Article 6:101 para. 1: Duty to Notify N1. Obligations of the policyholder to give notice to the insurer that an insured event has occurred are common to most European insurance statutes (see for Austria s. 33 para. 1 ICA, Basedow/Fock-Lemmel 1077; for Belgium art. 74 para. 1(1) IA 2014, Basedow/Fock-Fock 271; for Denmark s. 21 para. 1 ICA, Basedow/Fock-Scherpe 974; Basedow/Fock-Scherpe 974; for France art. 113-2 para. 4 ICA, Basedow/Fock-Völker 523; for Germany s. 30 para. 1 ICA; for Greece art. 7 para. 1 ICA, Basedow/Fock-Papathoma-Baetge 623 and Rokas, paras. 429 ff.; for Italy art. 1913 para. 1 CC, Basedow/Fock-Brunetta d’Usseaux 714; for Luxembourg art. 26 para. 1 ICA, Basedow/ Fock-Völker 798; for the Netherlands art. 7:941 para. 1 CC, Asser/Clausing/Wansink 230 ff.; for Poland art. 818 para. 1 CC (not mandatory); more detailed: Kowalewski 299; for Portugal art. 100 para. 1 ICA; for Spain art. 16 ICA, Basedow/Fock-Schlenker 1330 ff.; for Sweden s. 2 of Ch. 7 ICA; the same rules apply to business insurance with one exception, see s. 19 para. 2 of Ch. 8 ICA; and for Switzerland the first sentence of art. 38 para. 1 ICA and Basedow/Fock-Bälz 1241). N2. Even the insurance contract laws of the United Kingdom and the Republic of Ireland provide for a duty by law to give notice, although the basis of the rule in law is not clear: Birds 14.5; Clarke 26-2A. Although this duty is normally regulated in the insurance contract, the duty of utmost good faith comprises, according to the prevailing opinion, an obligation of the policyholder to give notice that the insured event has occurred (cf. Haydenfare v British National Ins Soc Ltd [1984] 2 Lloyd’s Rep 393 (402); Clarke 26-2A; Rühl 285 ff.).

Who Owes The Duty to Notify N3. In some European jurisdictions the duty to give notice of the insured event is not limited to the policyholder; under certain circumstances, it may be incumbent upon third parties (see for Austria ss. 158d and 158e ICA, Basedow/Fock-Lemmel 1078; for Germany the second sentence of s. 30 para. 1 ICA; for Poland art. 818 para. 4 CC) or upon the insured or even the beneficiary (for the Netherlands art. 7:941 para. 1 CC; for Switzerland the first sentence of art. 38 para. 1 ICA and Basedow/Fock-Bälz 1241). N4. Apparently European insurance laws do not contain explicit provisions comparable to the second sentence of Article 6:101 para. 1. Although the notice is not a declaration of intent but rather a declaration of knowledge (Wissenserklärung) (cf. for example for Germany Münchener Kommentar-Wandt, § 30 VVG para. 2), it appears that the general rules on representation and agency apply at least by analogy (see, for example, for Germany Palandt-Ellenberger, Einf. v. § 164 BGB para. 3). This is also true in the United Kingdom, provided that the source of the information is reliable: Clarke 26-2C.

Article 6:101 para. 2: Time Allowed for Notification N5. However, European insurance laws differ as to the time period allowed for notice. In some countries the policyholder has to notify the insurer as soon as possible (see for Belgium art. 74 para. 1(1) IA 2014, Basedow/Fock-Fock 271; for Denmark s. 21 para. 1 ICA, Basedow/Fock-Scherpe 974; for France the general rule in art. 113-2 para. 4 ICA, Basedow/Fock-Völker 523; for

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Luxembourg art. 26 para. 1 ICA, Basedow/Fock-Völker 798; for the Netherlands art. 7:941 para. 1 CC). According to other European insurance laws, notice shall be given without undue delay (see for Austria the general rule in s. 33 para. 1 ICA, Basedow/Fock-Lemmel 1077; for Germany the general rule in s. 30 para. 1 ICA; for Greece the special rule in art. 278 of the Code on Private Maritime Law; Basedow/Fock-Papathoma-Baetge 625; for Switzerland the first sentence of art. 38 para. 1 ICA; Basedow/Fock-Bälz 1241; however it is also possible to agree on or within an appropriate and reasonable time period (for the Netherlands the second sentence of art. 7:941 para. 1 CC, Basedow/Fock-Fock 873; or as soon as reasonably possible (for the United Kingdom Birds 14.6, Clarke 26-2E). N6. Some jurisdictions clearly establish that the event shall be notified within a fixed period of time which may vary between 24 hours and 8 days after the occurrence (see for Austria the special rules in the first sentence of s. 92 para. 1, s. 110 para. 1, the first sentence of s. 153 para. 1, and s. 153 para. 2 ICA; Basedow/Fock-Lemmel 1077; for France the special rule in art. 123-1 ICA; Basedow/Fock-Völker 523; for Greece art. 7 para. 1 ICA and art. 9 para. 1 of the Code on Motor Liability Insurance providing for notice as soon as possible but not later than eight days; for Italy art. 1913 para. 1 CC, Basedow/Fock-Brunetta d’Usseaux 714; for Portugal art. 100 para. 1 ICA; for Spain art. 16 ICA, Basedow/Fock-Schlenker 1330 f.). In Poland, the period of time can be settled by parties in the insurance contract.

Contractual Derogations N7. Commonly the duty to give notice of the insured event is and can be regulated by special contractual stipulations and contracts of insurance determine the requirements for a valid notice in detail. In order to keep those requirements reasonable and fair, most European insurance laws put some limit on the contractual freedom of the parties (Basedow/Fock-Basedow/Fock 92 f.). N8. Similarly to what is laid down in Article 6:101 para. 2, a time period fixed in the insurance contract is declared ineffective if the policyholder gives notice within a reasonable time period (see for Belgium art. 19 para. 1(2) IA 2014, Basedow/Fock-Fock 271; for Luxembourg art. 26 para. 1 ICA, Basedow/Fock-Völker 798) or within a fixed statutory time period (for France art. 113-2 para. 4 ICA: 5 working days; Basedow/Fock-Völker 523), or if the stipulated time period is so short that the rights of the policyholder may be impaired (for Italy art. 2965 CC, Basedow/Fock-Brunetta d’Usseaux 714). Other insurance laws do not allow insurance contracts to derogate from statutory notice periods to the detriment of the policyholder (see, for example, for Portugal art. 13 ICA and the Netherlands art. 7:943 para. 2 CC). N9. Like Article 6:101 para. 2, many European insurance laws regard the dispatch of the notice by the policyholder within the time period as sufficient (see for France Cass. civ. 21.2.1989, RGAT 1989, 421 (422), Basedow/Fock-Völker 523; for Germany as a general rule of law OLG Hamm 18.5.1988, Recht und Schaden 1988, 302 and OLG Köln 16.8.1994, Versicherungsrecht 1995, 567).

Article 6:101 para. 3: Sanction – Reduction of Insurance Money N10.  According to most European insurance laws, the insurer is entitled to damages if the policyholder breaks the duty to give notice and the insurer can prove that, as a consequence, it has suffered loss (see for Belgium art. 76 para. 1 IA 2014, Basedow/Fock-Fock 271 ff.; for France

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art. 113-11 para. 4 ICA; for Greece art. 7 para. 2 ICA and art. 9 para. 3 of the Code on Motor Liability Insurance, see Chatzinikolaou-Aggelidou 182 ff.; for Italy art. 1915 CC, Basedow/Fock-Brunetta d’Usseaux 715; for Luxembourg art. 28 para. 1 ICA, Basedow/Fock-Völker 798; for the Netherlands art. 7:941 para. 3 CC, Asser/Clausing/Wansink 233 ff.; for Switzerland art. 38 para. 2 ICA and Basedow/Fock-Bälz 1241). Some jurisdictions grant the insurer the right to withhold the insurance money only in the case of fraud or dolus directus (see for Belgium art. 76 para. 2 IA 2014, Basedow/Fock-Fock 272; Italy art. 1915 CC, Basedow/Fock-Brunetta d’Usseaux 715; for Luxembourg art. 28 para. 2 ICA, Basedow/Fock-Völker 798; for the Netherlands art. 7:941 para. 5 CC, Asser/Clausing/Wansink 238 ff.; for Switzerland art. 38 para. 3 ICA and Basedow/ Fock-Bälz 1241 f.).

Contractual Arrangements N11. However, insurance contracts often stipulate that the insurer is discharged from its duty to perform if the policyholder does not comply with its duty to give notice of the insured event (Basedow/Fock-Basedow/Fock 94; see also art. 101 para. 1 Portuguese ICA which expressly allows such clauses). In response to such stipulations, many European insurance laws limit contractual arrangements which allow the insurer to cut insurance money in general (for France art. 11311 ICA; for Greece Areopag 1805/1986, NoB 1987, 1609 and Rokas, para. 432; for Luxembourg art. 26 para. 1 ICA, Basedow/Fock-Völker 798; for Poland art. 818 para. 3 CC; for Portugal art. 101 para. 3 ICA). Others release the insurer only of its duties in case of fraudulent, intentional or grossly negligent breaches of the duty to notify the insurer of the occurrence of the insured event (see for Austria the first sentence of s. 6 para. 3 ICA, Basedow/Fock-Lemmel 1077; for Belgium art. 76 para. 2 IA 2014, Basedow/Fock-Fock 271; for Germany s. 28 para. 2 ICA, Basedow/Fock-Lemmel 396; Italy art. 1915 CC, Basedow/Fock-Brunetta d’Usseaux 715; for Switzerland art. 45 ICA, BG 9.1.1989, BGE 115 II 88 (90), Basedow/Fock-Bälz 1241). N12. Additionally, some European jurisdictions allow contractual stipulations which provide for a release of the insurer’s duty to perform only if the breach of the duty to give notice was objectively suited to seriously harm the interests of the insurer (see for Austria the second sentence of s. 6 para. 3 ICA, Basedow/Fock-Lemmel 1077 ff. and for the Netherlands art. 7:941 para. 4 CC, Asser/Clausing/Wansink 235 ff.). In Germany and Portugal, a clause limiting or excluding the insurer’s liability in case the policyholder fails to report the loss in time may not be invoked if the insurer obtained notice of the occurrence of the event through some other source (see s. 30 para. 2 German ICA; art. 100 para. 3 Portuguese ICA). Similar in Poland – see art. 818 para. 3 CC. In the United Kingdom and the Republic of Ireland there are no restrictions on contractual stipulations regarding the discharge of the insurer’s duty to perform (cf. Basedow/Fock-Basedow/Fock 95 and Basedow/Fock-Rühl 1470); if performance is expressly stated to be a condition precedent to the insurer’s liability, breach will entitle the insurer to repudiate liability, but if not, breach will only entitle the insurer to claim damages (Friends Provident Life & Pensions Ltd v Sirius International Insurance [2006] Lloyd’s Rep IR 45), in accordance with (disputed) rules of general contract law (see, for example, Alfred McAlpine v BAI [1998] 2 Lloyd’s Rep 694; [2001] 1 Lloyd’s Rep 437 (CA); The Mercandian Continent [2000] 2 Lloyd’s Rep 357; and The Beursgracht, Glencore Int v Ryan [2001] EWCA Civ 2051, [2002] Lloyd’s Rep IR 335; Birds 14.6 ff.; Clarke 26-2G).

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Article 6:102 Claims Cooperation (1) The policyholder, insured or beneficiary, as appropriate, shall cooperate with the insurer in the investigation of the insured event by responding to reasonable requests, in particular for – information about the causes and effects of the insured event; – documentary or other evidence of the insured event; – access to premises related thereto. (2) In the event of any breach of para. 1 and subject to para. 3, the insurance money payable shall be reduced to the extent that the insurer proves that it has been prejudiced by the breach. (3) In the event of any breach of para. 1 committed with intent to cause prejudice or recklessly and with knowledge that such prejudice would probably result, the insurer shall not be obliged to pay the insurance money.

Comments Information about the Occurrence of the Insured Event C1.  As noted in Article 6:101 Comment 5, once insurers have received notice of the occurrence of an insured event and thus of a pending claim, they commonly respond by sending claimants a form to complete or by seeking further particulars of the occurrence or its consequences in some other way. Such information may be necessary if insurers are to investigate the claim or seek to mitigate the extent of the insured loss. Accordingly, a duty to cooperate in this and other respects is sometimes implied in the law of European countries as an aspect of the mutual duty of good faith. Such a duty is confirmed by Article 6:102. The duty must be performed by the policyholder, insured or beneficiary, as the case may be: the person or persons to whom the request for information is made. In practice this will be the one most likely to possess the information and, usually, the one that makes a claim under the policy.

Reasonable Requests C2.  In contrast with the law of certain countries, in Article 6:102 the duty of cooperation is limited to a duty to respond to reasonable requests from the insurer for information about the causes and effects of the insured event. The duty does not extend to more intrusive matters, such as giving insurers access to financial information, or to more stressful matters such as submission to examination under oath. Nor does it extend to a duty, sometimes found in liability policies, to attend the proceedings of a court or tribunal. The duty does extend, however, to reasonable requests for information that might assist a defence to actions brought against liability policyholders. It is implicit that the response must be made within a reasonable time and that it is limited to information that is reasonably available then.

Breach of Duty C3.  As in the case of breach of the duty in Article 6:101 para. 1, according to Article 6:102 para. 2 it is for insurers to prove that a breach of the duty to respond to reasonable requests for information has occurred, and that they have suffered prejudice as a result; see Article 6:101 Comment 6. Moreover, it can be inferred from Article 6:102 para. 2 that, subject

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to para. 3, a reduction in the amount of insurance money payable is the only sanction for breach of the duty of cooperation. As to the circumstances that justify non payment under para. 3, namely intent to cause loss or damage or recklessly and with knowledge that loss or damage would probably result, see Article 9:101 Comments 2 and 3.

Notes Article 6:102 para. 1: Duty to Cooperate N1. Many European insurance laws require the policyholder and/or the insured to cooperate and especially to provide the insurer with all relevant information and documents (see for Austria s. 34 ICA, Basedow/Fock-Lemmel 1079; for Belgium art. 74 para. 2 IA 2014, Basedow/Fock-Fock 271; for Denmark s. 22 ICA, Basedow/Fock-Scherpe 975; for Finland s. 69 ICA, Basedow/Fock-Scherpe 975; for Germany s. 31 para. 1 ICA, for Greece the second sentence of art. 7 para. 1 ICA, Rokas, Eisigiseis para. 152, for Luxembourg art. 28 paras. 1 and 2 ICA, Basedow/Fock-Völker 798; for the Netherlands art. 7:941 para. 2 CC, Asser/Clausing/Wansink 232 ff.; for Portugal art. 100 para. 2 ICA; for Spain art. 16 para. 3, art. 38 ICA, Basedow/Fock-Schlenker 1331; for Sweden s. 2 of Ch. 7 ICA; the same rules apply to business insurance with one exception, see s. 19 para. 2 of Ch. 8 ICA; for Switzerland art. 39 para. 1 and Basedow/Fock-Bälz 1243, 1245; in the United Kingdom and the Republic of Ireland, this will be the consequence of standard terms: Birds 14.5; Colinvaux 9-09; Basedow/Fock-Rühl 1470 f.), although it could also be seen as an aspect of a general and continuing duty of utmost good faith: Clarke 27-1A and for consumers as being based on the FCA Rules: Lowry/Rawlings 251. N2. In addition, in some countries the notice of the insured event given by the policyholder (the point dealt with by Article 6:101) must contain enough information to enable the insurer to investigate the damage (see for example for Germany BGH 23.11. 1967, Versicherungsrecht 1968, 58, 59 and OLG Köln 21.4.1998, Recht und Schaden 1998, 458). Under certain circumstances, some European insurance laws even require the policyholder to deliver evidence by expert opinion (see for France art. 122-2 ICA, Basedow/Fock-Völker 525 ff.). The duty to cooperate may be incumbent, not only on the policyholder, but in some jurisdictions also on a victim (see for Austria ss. 158d and 158e ICA, Basedow/Fock-Lemmel 1077; for Germany s. 31 para. 2 and s. 100 para. 3 ICA)

Article 6:102 paras. 2 and 3: Sanctions N3. The sanctions for a violation of the duty to cooperate are in some countries a matter of contract (see for Germany Wandt, paras. 568 ff. and 939; in Portugal, the same remedies apply as in the event of the policyholder’s breach of the duty to cooperate, see art. 101 ICA); however, if a release of the insurer’s duty to perform is stipulated, freedom of contract is restricted in a similar way as it is in relation to the breach of the policyholder’s duty to give notice of the insured event (see Notes 10 ff. under Article 6:101 (see for the Netherlands art. 7:941 paras. 3 and 4 CC, Asser/ Clausing/Wansink 233 ff.; for Portugal art. 101 para. 3 ICA). N4. If the contract does not provide for any sanctions, the consequences of a breach of the duty to cooperate are like those provided for a breach of the duty to give notice of the insured event (see

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the notes on Article 6:101 para. 3); see for Denmark ss. 21 and 23 ICA, Basedow/Fock-Scherpe 975; for Greece art. 7 para. 2 ICA, for Luxembourg art. 28 paras. 1 and 2 ICA, Basedow/Fock-Völker 798; for the Netherlands art. 7:941 paras. 4 and 5 CC. According to Swiss law in cases of non-cooperation by the policyholder the court has to appoint an expert to give evidence of the damage (art. 67 para. 2 ICA; Basedow/Fock-Bälz 1243).

Article 6:103 Acceptance of Claims (1) The insurer shall take all reasonable steps to settle a claim promptly. (2) Unless the insurer rejects a claim or defers acceptance of a claim by written notice giving reasons for its decision within one month after receipt of the relevant documents and other information, the claim shall be deemed to have been accepted.

Comments Settlement C1.  In the language of insurance practice, there is an important difference between settling a claim and settling a dispute. The settlement of a claim is the normal process, whereby insurers assess the claim presented in the light of the evidence and of the terms of the policy concerned and, all being well, “clear the file” by payment of insurance money to the claimant. In Article 6:103 para. 1, however, acceptance of a claim has the more limited meaning of assessing the validity of a claim as being one covered by the policy in question. Only after a positive assessment of the claim does an insurer proceed to settlement of the claim in the broader sense that includes payment. Duties relating to payment are regulated by Article 6:104. C2.  Distinguish also from settlement of claims, even in the broader sense that includes payment, the settlement of disputes over the validity or scope of insurance claims. That kind of settlement is a contract of compromise, a contract distinct from the contract of insurance to which the compromise relates, whereby, claimant and insurer, having disagreed on some aspect of the claim such as the amount of insurance money due, settle their disagreement with the compromise.

Prompt Settlement of Claims C3.  Article 6:103 para. 1 obliges insurers to take reasonable steps to settle undisputed claims promptly. The insurers’ obligation should be read in conjunction with the obligation to assist in the matter by responding to reasonable requests from insurers for information: Article 6:102 para. 1. Requests for information usually come to persons who have every interest in responding to such requests in order to expedite payment of the claim. Indeed that is also in the interest of society at large. Those who have suffered insured losses should be indemnified as soon as reasonably possible. In these circumstances Article 6:103 para. 2 establishes a presumption that claims have been accepted in the relatively short period of one month. When that is too short, as might be true of large or complex claims, Article 6:103

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para. 2 allows insurers to give reasoned notice of deferral. Mere suspicion of fraud would not normally be a valid reason.

Notes N1. The duty of the insurer to settle a claim promptly is, in effect, inherent to most European insurance laws although apart from Sweden (see s. 1 para. 1 of Ch. 7 ICA) apparently none of them enunciates the principle contained in Article 6:103 para. 1 expressly. However, several European countries provide mechanisms to facilitate swift claims settlement by requiring the insurer to accept or reject a claim in due time. N2. For example, similar in its effects to Article 6:103 para. 2, the insurance money becomes due under Austrian law if the insurer does not react within one month to an inquiry by the policyholder about the reasons of non-payment, if that inquiry was submitted within two months of the claim by the policyholder (see the second sentence of s. 11 para. 1 ICA; Basedow/Fock-Lemmel 1082). German and Swiss insurance law contain a special rule on the time of performance which is applicable if the insurer does not investigate properly and delays the acceptance of the claim. In that case, the insurance money is deemed to fall due at the time the claim would have been settled in the case of a proper investigation (see for Germany OLG München 13.11.1964, Versicherungsrecht 1965, 173, OLG Hamburg 19.8.1966, Versicherungsrecht 1967, 392 (393), OLG Hamburg 6.8.1981, Versicherungsrecht 1982, 543, OLG Köln 21.1.1982, Versicherungsrecht 1983, 922 (923), OLG Saarbrücken, 20.9.1995, Versicherungsrecht 1996, 1494 (1495), Basedow/ Fock-Lemmel 404 f., Wandt, para. 943; for Switzerland Roelli/Keller 567, Basedow/Fock-Bälz 1245). According to French law, fraudulent delay on the part of the insurer in settling the claim can interrupt the prescription of the duty of performance (see art. 114-1 ICA, Cass. civ. 10.5.2000, RGDA 2000, 514 (515), Basedow/Fock-Völker 529 f.). For further examples, see the notes on Article 6:104 para. 2 and Article 6:105.

Article 6:104 Time of Performance (1) When a claim has been accepted the insurer shall pay or provide the services promised, as the case may be, without undue delay. (2) Even if the total value of a claim cannot yet be quantified but the claimant is entitled to at least a part of it, this part shall be paid or provided without undue delay. (3) Payment of insurance money, whether under para. 1 or para. 2, shall be made no later than one week after the acceptance and quantification of the claim or part of it, as the case may be.

Comments The Importance of Performance C1.  Prompt payment of claims, which have been accepted as valid in accordance with Article 6:103, is self-evidently important to claimants who have suffered financial loss of such significance to them that they have bought indemnity insurance to cover it. The insurance money due to them may be urgently needed to repair a roof or to enable them to carry on

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business. The same is likely to be true of services promised by insurers, such as the services of a driver to a policyholder unable to drive a motor vehicle.

Undue Delay C2.  Under Article 6:104 para. 1 insurers are obliged to pay without “undue delay”. To avoid possible unjustifiable delay by reference to what that means in a particular case, para. 3 also requires payment of insurance money not later than one week after acceptance of the claim in accordance with Article 6:103. Moreover, it is no excuse for non-payment that total value of a claim cannot yet be quantified: Article 6:104 para. 2: insurers must pay part of the claim.

The Amount Payable C3.  What is required by Article 6:104 is not necessarily payment of all of the insurance money that may finally be payable in respect of the claim but such insurance money as has been determined to be due under the policy by that time, as provided by Article 6:104 para. 2. In some instances, for example, ongoing damage to property caused by storms or by subsidence, more time will be needed to adjust loss and determine the full amount due. Note that what is required to be paid is not an arbitrary amount but the part to which claimants are “entitled”, which means the full amount of insured loss which has been already determined to be due. C4.  The legal consequences of any breach by insurers of the payment duty under Article 6:104 are regulated by Article 6:105.

Notes Article 6:104 paras. 1 and 3: Rules on the Time of Payment N1. Most European insurance laws contain provisions on the time of performance. Time periods vary. In some jurisdictions performance is due immediately after the acceptance of the claim (see for Austria the first sentence of s. 11 para. 1 and the first sentence of s. 154 para. 1 ICA, which contains a time limit within which payment must be made of two weeks, Basedow/Fock-Lemmel 1082 f.; in Belgium, as to some types of insurances, 30 days after acceptance of the claim (see the special rule in art. 121 para. 2 IA 2014, Basedow/Fock-Fock 274); in Denmark 14 days after the insurer has obtained all facts to assess the claim (see the first sentence of s. 24 para. 1 ICA, Basedow/Fock-Scherpe 976 ff.); and in Finland one month after the insurer has obtained all facts to assess the claim (see s. 70 para. 1 ICA, Basedow/Fock-Scherpe 977)). In France payment is due, in general, immediately after the occurrence of the insured event, but, as to some types of insurances, 60 or 90 days after the notice of the insured event (see arts. 113-5, 242-1, 211-9 ICA, Basedow/Fock-Völker 528); in Germany immediately after the acceptance of the claim (see ss. 14 para. 1 and 106 ICA, Basedow/Fock-Lemmel 404); in Italy, provisions for the time of payment exist only in respect of motor insurance (see the special rules in the Code of Private Insurance) and the terms vary according to the types of damage (Cerini 279 ff.); in Luxembourg immediately after the insurer has obtained all information necessary to assess the claim but, at the latest, 30 days after the acceptance of the claim (see art. 29 paras. 1 and 2 ICA, Basedow/Fock-Völker 801);

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and in Switzerland four weeks after the insurer has obtained all information necessary to assess the claim (art. 41 ICA). In the Netherlands performance is due in accordance with the general rules of debtor’s default (arts. 6:81 ff. CC), in Poland, as a rule: in 30 days after the notice of the insured event (art. 817 para. 1 CC, Kowalewski 307 ff.); in Portugal in 30 days after the insurer has obtained all information necessary to assess the loss (art. 104 ICA), and in Spain immediately after the investigations have been concluded – insurer has maximum 40 days in order to investigate – (see art. 18 ICA, Bataller/Latorre/Olavarria 205, Basedow/Fock-Schlenker 1334). Spanish law contains a special rule, if an expert is involved in the assessment of the damage; in that case, the insurance money has to be paid within 5 days after the time period in which the insurer can challenge the expert opinion has elapsed (see art. 38 ICA, Bataller/Latorre/Olavarria 228, Basedow/Fock-Schlenker 1334, 1340 ff.). In Sweden performance is due one month after the notice of the insured event (see s. 1 para. 2 of Ch. 7 ICA). Greek general insurance contract law does not set any exact time periods, but merely requires the insurer to pay without undue delay (art. 7 para. 7 ICA and Basedow/Fock-Papathoma-Baetge 631; for non-life insurance the law obliges the insurer to pay without undue delay the insurance money upon acceptance on behalf of the insurer of the results of the adjusters’ report, see art. 29 para. 1 of the Legislative Decree on Insurance Undertakings and Rokas, paras. 364 ff.). Some countries have not enacted specific rules on the time of performance for insurance contracts (see for Belgium Basedow/Fock-Fock 274, for Italy Basedow/Fock-Brunetta d’Usseaux 717). The general rules on obligations apply. For the uncertain state of the law in the United Kingdom, see Birds 14.13 ff.; Clarke 30-2, and Sempra Metals v IRC [2007] UKHL 34; note Clarke, Compensation 291.

Article 6:104 para. 2: Partial Payment N2. Some European insurance laws provide for partial payment as a step in the direction of prompt payment of full indemnity. Time periods vary. In Austria partial payment is due one month after the notice of the insured event (see s. 11 para. 2 ICA, Basedow/Fock-Lemmel 1083); in Belgium, as to some types of insurances, 30 days after agreement on the expert decision concerning the amount of the loss (see the special rule in art. 121 para. 2 IA 2014, Basedow/ Fock-Fock 273); in Denmark 14 days after the insurer has obtained all facts to assess the claim (see s. 24 para. 2 ICA, Basedow/Fock-Scherpe 977); in Finland one month after the insurer has obtained all the facts to assess the undisputed part of the compensation (see s. 70 para. 4 ICA, Basedow/Fock-Scherpe 977); in Germany one month after the notice of the insured event (see s. 14 para. 2 ICA, Basedow/Fock-Lemmel 405); in Greece without undue delay to pay the undisputed amount of insurance money if a longer period is required for the assessment of the loss (see the second sentence of art. 7 para. 7 ICA, Basedow/Fock-Papathoma-Baetge 630); in Poland payment of the unquestionable part of the insurance money is due in 30 days after the notice of the insured event (art. 818 para. 2 CC); in Spain 40 days after the notice of the insured event (see art. 18 ICA, Basedow/Fock-Schlenker 1334); in Sweden immediately upon notice of the insured event (see s. 1 para. 3 of Ch. 7 ICA).

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Article 6:105 Late Performance25 (1) If insurance money is not paid in accordance with Article 6:104, the claimant shall be entitled to interest on that sum from the time when payment was due to the time of payment and at the rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half-year in question, plus eight percentage points. (2) The claimant shall be entitled to recover damages for any additional loss caused by late payment of the insurance money.

Comments Compensation C1.  Payment is late or delayed when it has not been made by the time that it is due in accordance with Article 6:104. As to the consequences, Article 6:105 para. 1 provides for interest and is inspired by the Motor Insurance Directive (2009/103/EC). In cases in which liability is not contested and the damages have been quantified, art. 22 of the Directive obliges Member States to require insurers “to make a reasoned offer of compensation in cases where liability has not been contested and the damages have been quantified” within three months of the date when the injured party presented his claim for compensation. If such an offer is not made within three months, insurers must pay the claimant interest. Interest is the least amount of which, in practice, unsatisfied claimants are likely to have been deprived by not having received the money due. The “rate applied by the European Central Bank” is modelled on the “reference rate” defined by art. 2 para. 7(a) of the Late Payment Directive (2011/7/EU). Reference is made to this rate in Article 6:105 solely as a mode of calculation in case of late payment of insurance money, and for no other purpose.

Damages C2.  In practice “statutory” interest alone may not be sufficient to indemnify claimants against the consequences of late payment of insurance money due. When motor insurers or fire insurers delay payment, and a claimant urgently needs the money to buy another van for the business to replace the one stolen or to repair the fire damage to the factory, subject to the normal legal limits, the insurer in question should be liable for the consequences. The same is true when an insurer has exercised a policy option not to pay insurance money as such but to have property, which the subject of the insurance, reinstated or otherwise to provide services. If insurers fail to do what they have promised to do without undue delay, commercially and legally their liability is the same as that of any other contract breakers: dealers that have failed to supply a van or contractors who have failed to repair a factory roof. For that reason the liability envisaged in Article 6:105 para. 2 is not a liability particular to insurance contract law but is liability in accordance with the general rule established by Article 9:508 PECL.

25

This Article is modelled on art. 3 para. 1(d) of the Late Payment Directive (2000/35/EC).

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The Conceptual Basis of Liability C3.  Under Article 9:508 para. 2 PECL damages are recoverable for any “further loss”, namely loss not indemnified by an award of interest, so far as it is “recoverable under this Section”. The Section, headed “Damages and Interest”, includes Article 9:502 PECL whereby “the general measure of damages” is the sum that puts claimants into the position that they would have been “if the contract had been duly performed”, namely if the insurance money had been paid on time. Thus, both the Principles of European Contract Law and the Principles of European Insurance Contract Law adopt the widely accepted expectation interest as the conceptual basis for damages. However, under Article 9:503 PECL the limit of liability of parties in breach in respect of loss that they “foresaw or could reasonably have foreseen at the time of the conclusion of the contract as a likely result of its performance”, namely the expectation interest, is qualified when “the non-performance was intentional or grossly negligent”. The qualification contemplates what in some countries is referred to as breach of contract in bad faith. Although such cases may not occur at all often in the context of insurance, when they do insurers are liable in full for all loss consequential on their failure to pay on time.

Assessment of Loss C4.  Generally, according to the rule in the Article 9:503 PECL, contract breakers, including insurers, are liable only for loss which they “foresaw or could reasonably have foreseen at the time of the contract” as a likely result of non-performance (emphasis added). This limit on liability applies to heads or categories of loss in a particular case rather than to the precise amount. So, although the precise amount of insurance indemnity is normally calculated on values later at the time of loss, their liability for late payment in principle is nonetheless limited to what they could or should have foreseen at the time that the insurance contact was concluded.

Instances of Loss C5.  It is the business of insurers to provide protection for their policyholders. They are deemed to know, for example, why people, consumers or businesses, buy fire insurance, and hence the likelihood that an undue delay in payment is likely to result in at least some of the very kinds of loss for which the policyholders sought protection in the first place. C6.  For policyholders in business those kinds of loss might include profits lost when business premises are destroyed by fire or when a commercial vehicle is stolen, or the cost of borrowing from a bank to keep a business going until the insurer pays, or even loss of credit or injury to credit reputation, when that was a foreseeable consequence of late payment. C7.  For consumers, in particular, a more problematic consequence of non-payment is distress. Peace of mind and at least a degree of freedom from distress are not infrequently used as selling points for insurance cover. A court once observed that a “contract of insurance differs from most commercial contracts, in that the insured is offered and buys peace of mind against the designated risks”. This being so, in appropriate cases, disappointed claimants will be entitled to damages for distress.

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Notes General Rules on Interest N1. Some European insurance laws have no special rules on interest or damage claims for delayed payment of the insurance money as such (for France Groutel 124, Favre Rochex/Courtieu, paras. 1-285 f., Basedow/Fock-Völker 529; for Germany Basedow/Fock-Lemmel 404 f., Wandt, para. 942, but see s. 91 which provides for a special interest rate in property insurance; for Greece Basedow/Fock-Papathoma-Baetge 630 f.; for the Netherlands Scheltema/Mijnssen 256; for Poland Kowalewski 226; for Portugal Basedow/Fock-Schlenker 1180; for Switzerland BG 22.11.1990, SVA XVIII No. 7, 35 f., Basedow/Fock-Bälz 1246; for the United Kingdom, see Article 6:104 Note 1, above). In those countries the general laws on delayed performance of obligations apply.

Specific Interest Rules for Insurance Law N2. However, in some countries the general rules are mandatory at least as far the duties of the insurer are concerned (see for Austria s. 11 para. 4 ICA, Basedow/Fock-Lemmel 1082; for Germany s. 14 para. 3 ICA). In most jurisdictions interest according to the general statutory interest rates has to be paid (see for Denmark s. 24 para. 3 ICA, Basedow/Fock-Scherpe 977; for Finland s. 70 para. 3 ICA, Basedow/Fock-Scherpe 977; for Luxembourg the second sentence of art. 29 para. 2 ICA, Basedow/Fock-Völker 801; for the United Kingdom, see s. 35A para. 1 of the Supreme Court Act 1981). These laws may be mandatory or provide for minimum standards that cannot be derogated from.

Punitive Interest Rates N3. If payment of the insurance money is delayed, some jurisdictions provide for higher interest rates (see for France art. 211-13 ICA: twice the legal interest rate in motor liability insurance, art. 242-1 para. 5 ICA; twice the legal interest rate in compulsory construction insurance; see also Basedow/Fock-Völker 528). According to Spanish law the insurer has to pay penalty interest (statutory interest rate plus 50 percent; 20 percent from the second year) if insurance money is not paid within 3 months after the occurrence of the insured event (see art. 20 para. 3 ICA; for details on this contentious rule, see Bataller/Latorre/Olavarria 207, Sánchez Calero, Mora del asegurador 336 f. and 344 f., Basedow/Fock-Schlenker 1335-1140). In the United Kingdom unpaid premium due is a “simple” contractual debt and may be claimed as such by the insurer, until the limitation period of “six years from the date on which the cause of action accrued” expires: s. 5 of the Limitation Act 1980, applicable in England and Wales.

Chapter Seven: Prescription Article 7:101 Action for Payment of Premium Action for payment of premium shall be prescribed after a period of one year from the time when payment is due.

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Comments C1.  The rules on prescription relate to contractual claims in general and not to specific types of contracts. That is why the Principles of European Contract Law contain a full set of rules on prescription. However, there are certain specific problems which attach to insurance contracts in particular. They are dealt with in Articles 7:101 and 7:102. For the remaining issues Article 7:103 refers to the Principles of European Contract Law. C2.  According to Article 7:101, the general period of prescription for claims to insurance premiums is one year. In that respect Article 7:101 deviates from Article 14:201 PECL which provides for a prescription period of three years. The shorter period is justified by the fact that premiums are usually paid periodically, quite frequently even in monthly instalments. Moreover, insurers usually set up claim enforcement processes which will ensure that they do not need a longer period of prescription than one year. C3.  The prescription period starts running from the moment the payment is due. The Principles of European Insurance Contract Law do not define this moment but reference may be made to Article 7:102 PECL. In the case of the insurance premium, the insurance contract will usually provide for a fixed time for payment, for instance at the beginning of the insurance period (see Article 1:202 para. 8) or at the beginning of every month.

Notes Community Law N1. The pertinent body of Community law does not contain any provision governing the law of prescription in insurance matters.

General Rules for All Claims Arising from Insurance Contracts N2. Most jurisdictions do not provide for a specific rule governing the prescription of actions for payment of the premium. Instead, general rules apply to all or most claims that flow from insurance contracts irrespective of the cause of action. If exceptions from the general rule exist, they mostly do not pertain to the insurer’s claim for the premium. According to these general rules, actions for payment of the premium are prescribed after two years in France (art. 114-1 para. 1 ICA: «toutes actions dérivant d’un contrat d’assurance»; cf. also Lamy Assurances, para. 974), and in Switzerland (art. 46 para. 1 ICA), after three years in Austria (s. 12 para. 1 ICA), in Belgium (art. 88 para. 1 IA 2014), in Luxembourg (art. 44 para. 1 ICA), and in Poland (art. 818 para. 1 CC), after four years for non-life and five for life insurance in Greece (art. 10 ICA). Various exceptions apply in cases of personal or life insurance contracts and thereby affect the action for payment of the premium.

Specific Rules on Prescription of Premiums N3. Some codes, however, contain an explicit rule governing the action for payment of the premium. In Italy, for example, actions for payment of the premium are prescribed after a period of

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one year after the payment has fallen due (art. 2952 para. I CC; cf. also Cerini 253). In Portugal, the period of prescription is two years (see art. 121 para. 2 ICA. In accordance with art. 121 para. 2 ICA, the period of prescription for all other claims arising from the insurance contract is 5 years from the time when the claimant had knowledge of his right, notwithstanding the general prescription period stated in the Civil Code). Under Spanish law, an action for payment of the premium has to be brought within 6 months after the premium, which is not the first premium, has fallen due (art. 15 ICA, see Bataller/Latorre/Olavarria 193 and Basedow/Fock-Schlenker 1372). The same short prescription period of 6 months applies in Danish law (s. 40 ICA, see Basedow/Fock-Scherpe 997). Swedish law determines in s. 7 of Ch. 5 ICA (as well as in s. 7 of Ch. 13 ICA for individual personal insurance cases) that the insurer forfeits “the right to an unpaid premium when 6 months have elapsed since the premium should have been paid”, provided that the insurance policy has not been terminated or ceased to apply before then.

General Rules of the Law of Prescription N4. Neither the United Kingdom nor Ireland provide for specific rules on prescription of insurance claims. The statutory limitations of the Limitation Act 1980, applicable in England and Wales, and of the Irish Statute of Limitations 1957 – albeit subject to contractual stipulations (see Article 7:101 Note 2 and Article 7:103 Note 2) – as well as equitable limitations apply. Thus, if the parties do not shorten the period of prescription by contract, actions derived from simple contracts are barred after six years, and those arising from contracts under seal after 12 years (Clarke 26-5, Colinvaux 9-32). The Prescription and Limitation (Scotland) Act 1973 provides for a prescription period of 5 years applying to all contractual claims in Scottish law (see Basedow/ Fock-Rühl 1516).

Comparison of Prescription Periods N5. This comparative survey provides evidence of a very wide range of prescription periods relating to claims and actions for premium. Such actions are prescribed after 6 months in Denmark (s. 40 ICA, see Basedow/Fock-Scherpe 997), Spain (art. 15 ICA, see Basedow/Fock-Schlenker 1372), and Sweden (s. 7 of Ch. 5 ICA, as well as in s. 7 of Ch. 13 ICA for individual personal insurance cases), after two years in France (art. 114-1 para. 1 ICA), in Italy (art. 2952 CC as modified by art. 3 of the Decree of 28 August 2008), in Portugal (art. 121 para. 1 ICA), and in Switzerland (art. 46 para. 1 ICA), after three years in Austria (s. 12 para. 1 ICA), in Belgium (art. 88 para. 1 IA 2014), in Luxembourg (art. 44 para. 1 ICA), in the Netherlands (art. 7:942 para. 1 CC) and in Poland (art. 818 para. 1 CC), after four or five years in Greece (art. 10 ICA), after five years in Scotland (s. 6 para. 1 of the Prescription and Limitation (Scotland) Act 1973), and after 6 years (12 years if under seal) in Ireland and the United Kingdom. In the United Kingdom, however, contractual stipulations commonly and significantly shorten the prescription periods to one year in commercial cases (Clarke 26-5C).

Article 7:102 Action for Payment of Insurance Benefits (1) In general, action for insurance benefits shall be prescribed after a period of three years from the time when the insurer makes or is deemed to have made a final decision on the claim in accordance with Article 6:103. In any event, however, action shall be prescribed at the latest

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after a period of ten years from the occurrence of the insured event, except in the case of life insurance for which the relevant period shall be 30 years. (2) Action for payment of the surrender value of life insurance shall be prescribed after a period of three years from the time when the policyholder receives the final account from the insurer. In any event, however, action shall be prescribed at the latest after a period of 30 years from the termination of the life insurance contract.

Comments General Period of Prescription and its Commencement C1.  According to Article 7:102, the general period of prescription for claims to insurance benefits is three years. In that respect Article 7:102 is in line with Article 14:201 PECL. C2.  According to the Principles of European Contract Law, the period of prescription begins to run from the time “when the debtor has to effect performance” (Article 14:203 para. 1 PECL). This rule requires some clarification if applied to insurance cases because the general rule on time of performance under Article 7:102 PECL does not fit such cases. This is why Article 7:102 PEICL (sic) takes a different approach by referring to the time when the insurer has or is deemed to have made a final decision on the claim in accordance with Article 6:103. On the other hand the Principles of European Insurance Contract Law do not contain a comprehensive rule on the time of performance by the insurer either. Three cases have to be distinguished: acceptance (Article 6:103), rejection (Article 6:103 para. 2) and constructive acceptance in the case of an insurer’s inertia (Article 6:103 para. 2). The time of performance is regulated only for the first and third case but not for the case where the insurer wrongfully rejects the claim (see Article 6:104). However, since rejection is a final decision of the insurer, insurance money will fall due at the time of this final (though negative) decision and prescription will start to run. This is why Article 7:102 connects the commencement of the prescription period to the final decision of the insurer and thereby covers all cases. C3.  The decision of the insurer depends on the statement of claim by the policyholder. Nevertheless, the policyholder is not in a position to postpone the commencement of the prescription period arbitrarily because he is under a duty to notify the insurer about an insured event in accordance with Article 6:101. After notification the insurer can ask the policyholder to state his claim, if necessary. A policyholder, who does not respond to the insurer’s request, may violate the duty of good faith (Article 1:201 PECL) if he delays his claim unduly.

Absolute Period of Prescription and its Commencement C4.  If in exceptional circumstances the policyholder does not know about the occurrence of the insured event, he will not be able to notify the insurer and the insurer will not be able to deliver a final decision in accordance with Article 6:103. In such a case the absolute prescription period stated in Article 7:102 will apply, namely ten years, except in life assurance where the period is thirty years. In contrast to the general prescription period the absolute

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prescription period commences with the occurrence of the insured event. Therefore, the time of its commencement is objectively determined and will not depend on the knowledge and/or acts of either one of the parties.

Notes Introduction N1. Whereas Article 7:101 deals with the prescription of actions for payment of the premium, Article 7:102 governs the prescription of actions brought against insurers for the benefit of the insurance. As its characteristic feature the provision combines a subjective and an objective element. According to the subjective element, which is laid down as the primary factor in the first sentence of Article 7:102 para. 1, the prescription period only starts to run after the insurer has made or was deemed to have made a final decision on the claim. The second sentence of Article 7:102 para. 1, which is referred to as the secondary, objective element, determines prescription after 10 years (30 years in life assurance cases) from the occurrence of the insured event in any case, irrespective of what the insurer may or may not have decided. N2. The subsequent notes will illustrate the diversity of the national laws with respect to the prescription of claims for the insurance money or benefit. As will be shown in Note 5, the laws of some countries regard the objective element (the occurrence of the insured event) as the sole trigger for the running of the prescription period. Except for cases of fraud the claimant’s ignorance of his claim, in other words, is not taken into account. In Note 6, other laws are reported where such an objective rule (event) is supplemented by an additional requirement of knowledge. Reliance on the insurer’s decision as another key factor to determine prescription, however, is not without antecedents as will be illustrated in Note 11. An account of all the different statutory periods of limitation is finally provided in Notes 8 to 10. The final Note refers to exceptions for life assurance contracts. N3. In accordance with this distinction two groups of national laws can be identified. The first group, namely those adopting the objective element of the occurrence of the insured event as the sole factor triggering the running of the prescription period, consists of Greece, Ireland, Italy and the United Kingdom (cf. the subsequent Note 5). The jurisdictions of Belgium, Germany, France, the Netherlands, Portugal, Sweden, Denmark and Luxembourg form the second group (cf. Note 6). The prescription period in these countries does not run unless the claimant is aware of his case. N4. Where the prescription period does not start to run without the insured’s knowledge of his case, the insurer’s position may become excessively insecure over time. In order to protect the insurer’s legitimate claim to know where he stands, some national laws establish additional maximum periods of prescription that start to run on the occurrence of the insured event (see Notes 6 and 9). A second time barrier is available for the insurer who knows about the insured event and has already been confronted with a claim for insurance money: in the laws of Austria and the Netherlands, it can speed up prescription by rejecting the claim (see Notes 7 and 9).

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A Single Rule without Any Requirement of Knowledge N5. Several countries take the occurrence of the insured event as the sole factor for the running of the prescription period. The claimant’s ignorance of his case, therefore, is not taken into account, but the prescription period is rather long in these countries. Most prominently, English law provides such an example where the statutory period runs even though the claimant may be unaware of his cause of action. According to s. 32(1)(b) of the Limitation Act 1980, applicable in England and Wales, exceptions to this rule only apply in cases of fraud or concealment (Clarke 26-5A, Colinvaux 9-32, and for Greece Rokas, Eisigiseis paras. 112-116 ff.).

A Double Standard: Knowledge plus Time N6. The laws of the second group share the view that the running of the prescription period is principally hindered by the claimant’s ignorance of his case. They also have in common that this requirement is not strict, meaning that the provision has to be complemented by a rule that finally precludes claims at some point in time irrespective of the claimant’s ignorance. An additional rule therefore sets an absolute time limit after which any claim is prescribed, and thus secures the insurer’s interests. This time limit starts to run on the occurrence of the insured event. This model can be found in Belgium (art. 88 para. 1(2) IA 2014), Denmark (s. 29 ICA, Basedow/Fock-Scherpe 996), Luxembourg (art. 44 para. 1 ICA), France (art. 114-1 ICA), Portugal (art. 121 para. 2 ICA), and in Sweden (s. 4 of Ch. 7 ICA). German law takes the same approach: in the absence of a special regime under the ICA, prescription is subject to the general rules of the Civil Code (s. 195 CC) which also provide for a double-standard analogous to the aforementioned legal systems (see Wandt, para. 945).

The Insurer’s Decision on the Claim as Starting Point of Prescription N7. Making the insurer’s decision an important element for determining prescription, as Article 7:102 para. 1 does, is not without antecedents in particular under Austrian (s. 12 para. 3 ICA), Dutch (art. 7:942 para. 3 CC) and Finnish law (s. 74 ICA). In the first two countries mentioned, the rule requiring the claimant to bring the action within a certain time period from the insurer’s refusal to settle the claim is to be viewed as a lex specialis supplementing the general rules on prescription of claims against the insurer. In other words: in the absence of the insurer’s rejection of the claim, the ordinary rules apply. Once the insurer has rejected a claim, however, the claims are subject to prescription in accordance with the aforementioned special rules.

The Duration of the Prescription Periods N8. Under Dutch law, an action is time-barred if it is not brought within three years after the claimant has become aware of his claim (art. 7:942 para. 1 CC). In Austria, the claimant has to bring the action within one year from the insurer’s refusal to settle the claim. The general limitation period, however, is also three years (see s. 12 paras. 1 and 3 ICA). In Finland, the claimant is still granted three years from the date of receipt of the insurer’s decision to bring suit before the claim is prescribed (s. 74 ICA).

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N9. In France, the prescription period of two years begins to run with the occurrence of the insured event; the claimant, however, can prove ignorance with the effect that prescription only starts to run afterwards (art. 114-1 ICA). In Belgium, the period of prescription is three years beginning with the occurrence of the insured event and, in case of the claimant’s ignorance, with the day of knowledge. An action is always prescribed if it is brought later than 5 years after the occurrence of the insured event (art. 88 para. 1(2) IA 2014). In Luxembourg, the prescription period is three years starting with the occurrence of the insured event only if the claimant cannot prove ignorance. Again, an action is prescribed five years after the occurrence of the insured event in any case (art. 44 para. 1 ICA). Under Danish law, an action is prescribed two years after the claimant receives knowledge of his claim. No action, however, can be brought later than 5 years after the claim fell due (Basedow/Fock-Scherpe 996). The prescription period in Sweden is three years after the claimant knows that the claim could be made, with a maximum of 10 years from the earliest time at which the claim could have been made (s. 4 of Ch. 7 ICA). The German law is similar: the Civil Code provides for a limitation period of three years from the moment the claimant has notice of the occurrence of the insured event (s. 195 CC). Irrespective of the claimant’s ignorance, however, the claim shall be prescribed not later than after ten years from the insured event (see s. 199 CC). In Italy, the prescription period for insurance contracts other than life insurance is two years, following the amendment introduced by Law of 17 December 2012, no. 294 (see Cerini 245). N10.  In England and Wales, as stated in the notes on Article 7:101, actions derived from simple contracts are barred after six years, and those arising from contracts under seal after 12 years. In commercial cases, however, they may be subject to contractual stipulations shortening the prescription period to one year (Clarke 26-5A, Colinvaux 9-32 and 9-35).

Exception for Life Assurance Contracts N11.  Various national laws provide for exemptions from the general prescription period in case of life assurance contracts. These exemptions extend the prescription period to 5 years in Greece (art. 10 ICA) and the Netherlands – allowing a further extension of the prescription period by contract – (art. 7:985 CC), to 10 years in France (art. 114-1 para. 4 ICA) and Italy (art. 2952 para. II, as amended by Law of 17 December 2012, no. 294) and even to 30 years in Belgium (art. 88 para. 1(2) IA 2014).

Article 7:103 Other Issues Relating to Prescription Subject to Article 7:101 and Article 7:102 of the PEICL, Articles 14:101–14:503 of the Principles of European Contract Law (PECL)26 shall apply to claims arising out of a contract of insurance. The insurance contract may derogate from these provisions in accordance with Article 1:103 para. 2 of the PEICL.

26

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Comments Prescription of Claims Not Covered by Articles 7:101 and 7:102 C1.  Chapter 7 deals with prescription of certain claims arising from the contract of insurance. Typically, it covers the claim of the insurer for payment of a premium (Article 7:101) as well as the claim of the insured or beneficiary for payment of insurance benefits (Article 7:102). The contract of insurance may, however, give rise to other claims, for example for damages if a business interruption insurer fails to provide the promised computer support. Such claims based on remedies for a breach of contract in general are not covered by Chapter 7 and are subjected by virtue of Article 7:103 to the general rules on prescription of the Principles of European Contract Law.

Unregulated Issues of Prescription C2.  Articles 7:101 and 7:102 do not rule on all issues of prescription. Unregulated issues are subjected by virtue of Article 7:103 to the rules on prescription of the Principles of European Contract Law. In fact, most of the latter remain applicable also in matters of insurance.

Only some provisions of the Principles of European Contract Law are replaced by the Principles of European Insurance Contract Law: Article 14:201 PECL by Article 7:101, Article 14:203 para. 1 PECL by Article 7:102 and Article 14:601 PECL by the second sentence of Article 7:103.

Contractual Derogations C3.  Articles 7:101 and 7:102 may be derogated from by the contract of insurance, only to the benefit of the policyholder (see first sentence of Article 1:103 para. 2), unless the contract covers a large risk as defined in the second sentence of Article 1:103 para. 2. In contrast, the provisions of the Principles of European Contract Law are to a large extent non-mandatory (see Article 14:601 PECL). The second sentence of Article 7:103 ensures that the general limitations on freedom of contract (Article 1:103 para. 2) will also apply the provisions of the Principles of European Contract Law as referred to in the first sentence of Article 7:103.

Notes General Remark N1. The reference to the various provisions of the Principles of European Contract Law under the heading of “Other Issues of Prescription” indicates the variety of topics possibly covered by this single provision. However, the reference does not include Article 14:601 PECL dealing with parties’ agreements on an extension or reduction of the prescription period. Rather, the provision itself expressly allows for the derogation in accordance with Article 1:103 para. 2. Therefore, the invoked principles mainly apply with respect to questions of suspensions and renewals (as the Principles of European Contract Law refer to what is more traditionally called interruption). The following notes focus on the specifics related to insurance matters and, hence, cannot be fully

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understood without reference to the notes covering the incorporated articles of the Principles of European Contract Law.

Contractual Derogation N2. The national laws vary with respect to the possibility of contractual derogation. Whereas some jurisdictions have generally acknowledged the parties’ powers to extend or shorten the period of prescription, a number of national laws provide for mandatory rules prohibiting derogatory agreements on prescription. Derogation is excluded in the Netherlands (art. 7:943 para. 2 combined with art. 7:942 CC) and in Greece (art. 275 CC); in Italy, the prescription period cannot be modified by agreement between the parties; any agreement intended to modify the prescription or to modify the rules of suspension and/or interruption of the prescription period is void – art. 2936 CC – Cerini 100), in Luxembourg (art. 44 ICA), in Poland (art. 119 CC), and in Switzerland (art. 46 ICA – concerning the shortening of the prescription period). In the United Kingdom and in Ireland, however, courts have endorsed agreements on prescription in commercial cases to one year (Clarke 26-5A f. Colinvaux 9-32 f.). Portuguese law, too, allows for agreements on prescription under art. 330.1 CC; the special rules on prescription of art. 121 ICA are not part of the list of minimum standards laid down in art. 13 ICA. In Denmark, the insurer is only allowed to rely upon derogatory stipulations detrimental to the insured after the insured has been notified and given the right to declare his claim within a time period of 6 months (Basedow/ Fock-Scherpe 997).

Suspension in Case of Negotiations N3. By reference to Article 14:304 PECL, negotiations postpone the period of prescription. Thus, an action is not prescribed “before one year has passed since the last communication made in the negotiations”. Negotiations suspend the running of prescription in Denmark (Basedow/Fock-Scherpe 998), Germany (s. 203 CC), Austria (Basedow/Fock-Lemmel 1120). In other countries, however, limitation sometimes runs notwithstanding negotiations (see for the United Kingdom: Clarke 26-5C). If negotiations happen to be close to expiry of the prescription period, it is common in the United Kingdom, in order to prevent expiry, to enter into a “standstill” agreement, if the policy itself does not already provide for the matter (Colinvaux 9-37).

Suspension when Notice or Claim is Lodged N4. Many national laws face the intricacies of prescription following the negotiation on the validity of the claim by accepting the notice of the insured as a proper reason to suspend prescription. Provisions according to which prescription is suspended when the insured has lodged a notice or claim with the insurer can be found in: Austria (s. 12 para. 2 ICA), Germany (s. 15 ICA), Belgium (art. 88 para. 3 IA 2014), Luxembourg (art. 45 para. 3 ICA), the Netherlands (art. 7:942 para. 2 CC), and Poland (art. 819 para. 4 CC). Swedish insurance law explicitly refers to the lodging of a claim with the insurer in such a way as to guarantee, without exception, a time period of 6 months after the insurer’s final decision to bring suit (s. 4 of Ch. 7 and s. 5 of Ch.16 ICA). Additionally, it should be mentioned that it suffices in some legal regimes to suspend expiry by issuing a notice with some kind of agency. Such provisions are contained in the laws of Luxembourg (art. 45 para. 4 ICA), Denmark, Sweden and Finland (Basedow/Fock-Scherpe 998).

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Additional Reason for Suspension or Renewal N5. Most circumstances covered by the incorporated articles of the Principles of European Contract Law are to be found in the general rules of the Member State jurisdictions. Some countries, however, provide for additional rules in the Insurance Contract Act. This includes provisions acknowledging vis major as, to put it in the language of the Principles of European Contract Law, an impediment beyond the creditor’s control: in Belgium (art. 89 para. 2 IA 2014), in Luxembourg (art. 45 para. 2 ICA), France (Cass. civ. 1re, 13.2.1979, RGAT 1980, 62). See as well the notes on Article 14:303 PECL.

Part Two: Provisions Common to Indemnity Insurance Chapter Eight: Sum Insured and Insured Value Article 8:101 Maximum Sums Payable (1) The insurer shall not be obliged to pay more than the amount necessary to indemnify losses actually suffered by the insured. (2) A clause which provides for the agreed value of the subject-matter insured shall be valid even if the said value exceeds the actual value of the subject-matter, provided that there was no operative fraud or misrepresentation on the part of the policyholder or insured at the time the value was agreed.

Comments The Indemnity Principle and the Sum Insured C1.  In the case of indemnity insurance, the insurance money paid by the insurer, if the insured event occurs, must in principle not exceed the amount of claimants’ actual loss at the relevant time. This is the indemnity principle, which has a central role in all legal systems: to compensate the insured for loss sustained without undue enrichment. The principle is reaffirmed by Article 8:101. It applies whether the loss is total or partial. C2.  The principle is not a mandatory rule of the kind referred to in Article 1:103 para. 1. The parties may derogate from the indemnity principle in accordance with Article 1:103 para. 2. An important example is found where they specify the mode of calculating “loss”. Their policy may refer to market value at a specified time and place, or the cost of repairing or replacing lost or damaged property (“repair or replacement cost cover”). An important instance of the latter is a provision “new for old”. In this case, it is not the actual value of property at the time of the insured event, allowing for depreciation, that determines the amount of insurance money payable but the cost of replacement by new or equivalent property. The clause is valid because, in line with the indemnity principle, it places persons insured in the same position they were in before the event occurred even though, in strictly monetary terms, they are better off.

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Mitigation Costs C3.  Derogation from a narrow construction of the indemnity principle may occur where, in accordance with Article 9:102 para. 2, the cost of justifiable measures taken to mitigate loss is payable by insurers, even if together with the compensation for the loss of property insured the amount payable exceeds the sum insured.

The Sum Insured C4.  The sum insured under the policy is the maximum sum the insurer has agreed to pay. It is determined by party agreement taking into consideration the purpose of the contract, except for example in cases of compulsory insurance in which the amount may be determined by law.

Valued Policies C5.  The parties may derogate from the indemnity principle by means of valued policies, as is stated in Article 8:101 para. 2. Parties may agree at the time of the contract on the value of property to be insured for the purpose of indemnity, even if the value agreed exceeds the actual value of the subject-matter. C6.  Whether a policy is a valued policy is a matter of contract construction, no particular wording, such as “valued at”, being required; however, merely to state the sum insured is not enough for this purpose. Party intention is objectively assessed, and parties are more likely to intend a valued policy where it would be most useful, such as the insurance of property whose value fluctuates considerably or is a matter for debate; or in cases in which it may be difficult to assess the actual amount of loss. In this respect the role of the statement of value has been likened to that of a liquidated damages clause: it saves some of the expense of settling the amount of actual loss. C7.  Being based on party intention, value clauses in valued policies are not applied where party consent is flawed: (a) where the value stated is based on a significant mistake; (b) where the value of the property is material to the risk, and the amount stated is based on misrepresentation or non-disclosure and, in particular, (c) where it is based on fraud: serious over-valuation usually indicates that it may be a case of fraud. The impact of fraud and misrepresentation is underlined by Article 8:101 para. 2.

Notes The Indemnity Principle N1. The “principle of indemnity” (“principe indemnitaire”, “principio indennitario” or “Bereicherungsverbot”) finds expression in many national laws: Austria (s. 55 ICA), Belgium (art. 93 para. 1 IA 2014), France (art. 121-1 ICA), Finland (ss. 57 para. 2 and 59 ICA), Greece (art. 16 paras. 1 and 2 ICA), Italy (art. 1908 CC), Luxembourg (art. 50 ICA), the Netherlands (art. 7:960 CC), Poland (art. 824(1) para. 1 CC – not mandatory), Portugal (art. 128 ICA), Spain (art. 26

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ICA), and the United Kingdom (Castellain v Preston (1883) 11 QB 380 (386)). The Swedish legislator has abandoned the indemnity principle. It was first done in the Consumer Insurance Act in 1980, mainly because insurers themselves had created a new kind of insurance, covering the damage of buildings being burnt down and compensating the policyholder with a new house (which might have a higher value than the old one had). Later the same approach was taken in the ICA, covering all kinds of insurance. It should be noted that the German ICA does not contain a provision similar to s. 55 former German ICA which was initially understood as reflecting the principle of indemnity. The legislator’s decision to strike out such a provision is in line with the more recent jurisprudence of the Bundesgerichtshof according to which also the former German ICA did not embrace a general and mandatory principle of indemnity (see BGH 4.4.2001, BGHZ 147, 212 (216); Wandt, paras. 725 ff.).

Value Agreements N2. Contract clauses fixing the value of the insured property are explicitly allowed in most Member States. Pertinent provisions can be found in the laws of Austria (s. 57 ICA), Belgium (art. 109 para. 1 IA 2014), France (Basedow/Fock-Völker 502), Germany (s. 76 ICA), Greece (art. 16 para. 3 ICA), Italy (art. 1908 para. 2 CC, see for the prevailing view: Donati 247), Luxembourg (art. 67 ICA), Portugal (art. 131 ICA), Spain (art. 28 ICA), Sweden (s. 2 of Ch. 6 ICA), Switzerland (art. 65 ICA), as well as England and Scotland (Birds 292-293, Colinvaux 10-06, Wilson/Forte-Forte, para. 888).

Effect of Value Agreements N3. Even though all the laws mentioned in Note 2 permit value agreements of the insured property, they differ with respect to the effect they attribute to such agreements. In some of them, the agreements conclusively fix the value of the insured property. Without prejudice to rules of general contract law, the agreed values, in other words, cannot be challenged by any party to the contract (Belgium: Basedow/Fock-Fock 253; United Kingdom: Colinvaux 10-06; Clarke 28-7; Scotland: Wilson/Forte-Forte, para. 888; Ireland: O’Regan Cazabon 20; Italy: Donati 247; Greece: art. 16 para. 3 ICA; Luxembourg: art. 67 para. 1 ICA). N4. Other jurisdictions show less respect for value agreements. Rather, those laws grant the insurer the possibility to prove that the real value is lower than the agreed one. The value agreement, then, has the effect of shifting the burden of proof of the value of the insured property to the insurer (France: Basedow/Fock-Völker 502; Denmark: s. 39 para. 2 ICA, see also Basedow/ Fock-Scherpe 945; Switzerland: art. 65 ICA). N5. Under the laws of Austria (the second sentence of s. 57 ICA), Germany (the second sentence of s. 76 ICA), Greece (Areopag 6/1990, NoB 1990, 1321) and Spain (art. 28 para. 3 ICA), the insurer can only challenge the value agreements when it proves that the difference between the agreed value and the real value is significant. Even though, as a rule of thumb, it has been assumed that a difference of 10 % shall be considered significant, the Bundesgerichtshof held that the assumption of a significant difference cannot be made regardless of the facts of the case (BGH 4.4.2001, BGHZ 147, 212 (216)). This rule remained untouched by the new German ICA. Similarly, a value agreement produces no effects under Portuguese law if it is evident that the agreement misstates the real value of the insured interest (art. 131 para. 1 ICA).

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N6. The new Dutch law seems to deviate from the previously presented provisions through the possibility of introducing an expert opinion. According to the second sentence of art. 7:960 CC, an exception to the principle of indemnity is only granted for those cases in which the value agreement concluded by the parties is based upon an expert’s assessment made beforehand.

Fraud or Misrepresentation on the Part of the Insured N7. In several of the Member States’ laws the validity of the value agreement is explicitly subjected to the absence of fraud or misrepresentation on the part of the insured, as Article 8:101 para. 2 prescribes. Under Greek (the third sentence of art. 16 para. 3 ICA) and Spanish (art. 28 para. 3 ICA) law, any assessment based on the parties’ agreement can only be challenged on grounds of “error, fraud, threat, or a fictitious simulation”. Similarly, the laws of Luxembourg (art. 67 para. 1 ICA) and Belgium (art. 109 para. 1 IA 2014) have explicitly introduced exceptions in case of fraud. In practice this is true also in countries without specific legislation on the matter such as the United Kingdom (Birds 15.8, Clarke 28-7A). However, the consequences of fraudulent claims are dealt with in some detail by the Insurance Act 2015.

Article 8:102 Underinsurance (1) The insurer shall be liable for any insured loss up to the sum insured even if the sum insured is less than the value of the property insured at the time when the insured event occurs. (2) However, when the insurer offers cover in accordance with para. 1, it shall be entitled alternatively to offer insurance on the basis that the indemnity to be paid shall be limited to the proportion that the sum insured bears to the actual value of the property at the time of the loss. In that case, moreover, mitigation costs, as defined in Article 9:102, shall be reimbursed in the same proportion.

Comments Basic Principle: First Loss Cover C1.  If the sum insured under a policy is less than the true value of the insured property or of the insured’s interest in the property, there is underinsurance to which Article 8:102 applies. In spite of the “imbalance” inherent in underinsurance, Article 8:102 para. 1 provides for full recovery on the basis of the stated value, as if the cover were provided on a first loss (premier risque) basis. Thus, contract administration will be simpler as the persons insured (especially consumers) do not have to check property values regularly to adjust the sums insured and, in particular, there is no danger of their receiving less than full compensation in case of loss.

Permitted Derogation: Proportionate Recovery C2.  The Principles of European Insurance Contract Law do allow parties to contract out of the basic rule in Article 8:102 para. 1, however, in only one direction, that of calculation based on less than the stated sum. According to Article 8:102 para. 2 the parties may agree that compensation paid by the insurer be reduced in the same proportion to the loss as the

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sum insured relates to the value of the property (pro rata), which is the solution typical in the law of most Member States. Insurers may well provide for such a rule in the case of higher value property (or property rights). Note that this is the only derogation that is less favourable to policyholders which is permitted in view of the mandatory character of the Principles of European Insurance Contract Law. It is only a proportional reduction of compensation that may be validly agreed. However, the rule about recovery of the costs of mitigation (Article 9:102) referred to above (see Article 8:101 Comment 3) applies also to cases of underinsurance.

Alternative Remedies C3.  Payment in case of underinsurance, whether on the basis of proportional payment (Article 8:102 para. 2) or on the basis of the stated value (Article 8:102 para. 1) is subject to wider considerations, not least the circumstances in which underinsurance came about. It should not be overlooked, for example, that if the true value was not disclosed when the contract was concluded, as required by Article 2:101, the contract of insurance may be varied or terminated (Article 2:102 para. 1). Moreover, if the property value was misrepresented negligently by the applicant, the amount of money payable may be affected by Article 2:102 para. 5.

Notes The Principle of Proportionate Reduction N1. Most continental jurisdictions permit contract clauses giving effect to the principle of proportionate reduction set forth in Article 8:102 para. 2 or have even conveyed the force of law to this principle: Belgium: art. 98 para. 1 IA 2014; Germany: s. 75 ICA; France: art. 121-5 ICA; Greece: art. 17 para. 1 ICA; Italy: art. 1907 CC; Luxembourg: art. 56 para. 1 ICA; the Netherlands: art. 7:958 para. 5 CC; Denmark: s. 40 ICA; Austria: s. 56 ICA; Portugal: art. 134 ICA.; Switzerland: art. 69 ICA; Spain: art. 30 ICA; and Sweden: s. 3 of Ch. 6 ICA. In the United Kingdom, the principle of proportionate reduction is only applicable under the regime of the Marine Insurance Act of 1906. If this statute does not apply, the parties must agree so, conventionally by making payment “subject to average”, or, at least in consumer policies, the insurer is required to pay up to the insured sum (Sillem v Thornton (1854) 3 E & B 868).

Exceptions N2. Several countries have however established conditions under which the insurer is not allowed to hold back any payment on the basis of the principle of proportionate reduction. In Finland (s. 58 para. 2 ICA) and in Luxembourg (art. 56 para. 2 ICA), the principle of proportionate reduction does not apply where the calculation of the insured sum was made by the insurer or its representative. It is noteworthy in this context that s. 58 para. 2 Finnish ICA applies the same principle to underinsurance as it does to overinsurance (s. 57 para. 2): Whenever the insured sum in substance is based on an assessment made by the insurer itself, the insurer can be held on to its assessment (see also Article 8:101 Note 2).

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N3. This idea of policyholder protection is echoed in Belgium, where a special decree prescribes that the insurer is not entitled to rely on the principle of proportionate reduction if the calculation of the insured sum was based on information provided by the insurer itself. The decree additionally requires that the insurer must provide the relevant factors for the calculation to the insured (Royal Decree of 24 December 1992 on Fire Insurance of Normal Risks; Fontaine (1996), para. 798). Under Finnish law, the application of the principle of proportionate reduction is additionally limited to cases where the difference between the insured sum and the insured value is significant (s. 58 para. 1 ICA).

Contractual Derogations N4. It is assumed in most jurisdictions that the provision prescribing the principle of proportionate reduction is not mandatory. Rather, the parties can derogate from the application of the principle: Austria: Bruck/Möller-Möller, § 56 VVG para. 55; Belgium: Fontaine (1996), para. 508; Denmark: Basedow/Fock-Scherpe 946; France: Basedow/Fock-Völker 503; Germany: Schwintowski/ Brömmelmeyer-Kloth/Neuhaus, § 75 VVG para. 40; Greece: Basedow/Fock-Papathoma-Baetge 604 and Rokas, Greece, paras. 124-125; Italy: art. 1907 CC; Luxembourg: art. 3 para. 3 ICA; the Netherlands: Asser/Clausing/Wansink 327; Poland: Kowalewski 216; for Portugal the non-mandatory character results from the fact that the rules on underinsurance are not included in the list of mandatory and semi-mandatory terms pursuant to arts. 12 and 13 ICA; Spain: Bataller/Latorre/ Olavarria 216 and Basedow/Fock-Schlenker 1310; Sweden (in case of business insurances): s. 18 of Ch. 8 ICA; and Switzerland: Koenig 331. With the exception of the Marine Insurance Act 1906 (above Note 1), the principle of proportionate reduction applies in England only if the parties have agreed on it (Birds 15.9, Clarke 28-8A). Otherwise, the rule as laid down in Article 8:102 para. 1 PEICL applies. However, when the Insurance Act 2015 comes into force in 2016 the principle of proportionate reduction will apply in certain cases listed in Schedule 1 of the Act.

Article 8:103 Adjustment of Terms in Case of Overinsurance (1) If the sum insured exceeds the maximum possible loss under the insurance, either party shall be entitled to request a reduction of the sum insured and a corresponding reduction of premium for the remaining contract period. (2) If the parties do not agree on such a reduction within one month of the request, either party shall be entitled to terminate the contract.

Comments Basic Principle: Adjustment of Terms C1.  If the sum insured under a policy exceeds the true value of the insured property or of the insured’s interest, there is overinsurance to which Article 8:103 applies. The situation is treated simply as one of parties mutually mistaken about the true value of the subject-matter of insurance. They are given, first, an opportunity to correct their mistake. If they are unable to agree the corrected value, then they are given the opportunity to terminate the contract.

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Overinsurance Caused by Multiple Insurance C2.  Overinsurance may result from multiple insurance taken out by the same policyholder. In such cases, Article 8:103 should be applied in a way that gives the parties to the insurance contract which caused the overinsurance a right to adjustment of its terms.

Determination of Insurance Money C3.  If an insured event occurs the insurance money payable will be determined in accordance with the indemnity principle under Article 8:101. In so far as overinsurance is caused by multiple insurance, Article 8:104 must also be taken into consideration.

Alternative Remedies C4.  Overinsurance, like underinsurance (see Article 8:102 Comment 3), is subject to wider considerations, including the circumstances in which overinsurance came about. It should not be overlooked that, if the true value was not disclosed when the contract was concluded, as required by Article 2:101, the contract of insurance may be varied or terminated (Article 2:102 para. 1). Moreover, if the property value was misrepresented negligently by the applicant, the amount of money payable may be affected by Article 2:102 para. 5.

Notes General N1. Most European legislations dealing with the issue of oversinsurance differentiate between two different scenarios. If the policyholder causes the overinsurance with fraudulent intent, the insurance contract is void (see s. 51 para. 4 Austrian ICA, the second sentence of art. 97 Belgian IA 2014, art. 121-3 para. 1 French ICA, s. 74 para. 2 German ICA, art. 17 para. 3 Greek ICA, art. 1909 Italian CC, art. 54 Luxembourg ICA, art. 31 para. 2 Spanish ICA, and art. 51 Swiss ICA. In the absence of any fraudulent behaviour, the contract is valid. However, the law will generally provide for a reduction of the premium to compensate for the fact that the insurer is not obliged to pay in excess of the actual loss. As will be shown below, the technicalities of the reduction of the premium may differ in the various legislations. N2. On the other hand, the laws of Finland, Ireland, the Netherlands, and the United Kingdom differ from the aforementioned ones. Although acknowledging the principle of indemnity, according to which the actual value of the insured interest is generally a ceiling on the recoverable sum (see s. 57 Finnish ICA, art. 7:960 Dutch CC, for Ireland see Basedow/Fock-Rühl 1446, for the United Kingdom see Clarke 28-1A), the law does not provide for adjustment of contractual terms in the event of overinsurance.

The Claim for Reduction, Article 8:103 para. 1 N3. Among the countries providing for an adjustment of the contract in the event of overinsurance, two different approaches can be found. Thus, in Austria, Germany, Poland and Spain the

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adjustment is available only if the sum insured exceeds the actual value of the subject-matter by a substantial amount (see s. 51 para. 1 Austrian ICA and s. 74 para. 1 German ICA: “erheblich”, art. 816 Polish CC: “istotna zmiana”, art. 31 para. 1 Spanish ICA). In Belgium, France, Italy, Luxembourg, and Portugal, on the other hand, the statutory language does not provide for a similar threshold (see art. 96 para. 1 Belgian IA 2014, art. 121-3 para. 2 French ICA, art. 1909 Italian CC, art. 53 para. 1 Luxembourg ICA, art. 132 Portuguese ICA). N4. Another difference concerns the modalities of adjustment. The bulk of legal systems grant the parties the right to request the adjustment of the contractual terms. In France, on the other hand, the adjustment is carried out by operation of law regardless of whether a party makes a request (see art. 121-3 para. 2 ICA). In the latter case, however, the adjustment has no immediate effect: the premium is reduced starting from the subsequent year.

Termination, Article 8:103 para. 2 N5. The legal systems granting the parties the right to request the adjustment of the contract in the event of overinsurance contain no provision as to the consequences in case the parties fail to reach an agreement on the new terms. Rather, the provisions in question provide for a reduction of the premium in proportion to the extent of overinsurance (see, for example, s. 51 para. 1 Austrian ICA and art. 1909 Italian CC), thus suggesting that the adjustment process is a merely “mechanical” act and the parties have no scope of bargaining.

Article 8:104 Multiple Insurance (1) If the same interest is separately insured by more than one insurer, the insured shall be entitled to claim against any one or more of those insurers to the extent necessary to indemnify losses actually suffered by the insured. (2) The insurer against which a claim is brought shall pay up to the sum insured under its policy, together with the mitigation costs if any, without prejudice to its rights to contribution from any other insurer. (3) As between insurers, the rights and obligations referred to in para. 2 shall be in proportion to the amounts for which they are separately liable to the insured.

Comments Background C1.  There may be a number of situations where, following the occurrence of an insured event, an insured is entitled to claim on more than one policy; see the examples given in Comment 2. This may be because a risk has been deliberately insured with more than one insurer or this may have arisen inadvertently. The Principles of European Insurance Contract Law, though, do not differ depending on whether the insured acted deliberately or not in being covered by more than one policy. On the other hand, the insured cannot be permitted to recover in total more than he is entitled to in accordance with the principle of indemnity set out in Article 8:101. Further, to require any one of the insurers to bear the whole burden of a loss when others have received premiums to cover the same interest

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would be unacceptable. Article 8:104 regulates these matters, which is necessary not least because the rules of the Principles of European Contract Law are insufficient in the context of insurance contract law.

Key Elements of Multiple Insurance C2.  The essence of multiple insurance is that the same interest is covered in respect of the same risk by more than one insurer. For the purposes of Article 8:104, the relevant time for judging whether multiple insurance exists is not the time of the conclusion of the contract but the time of the occurrence of the loss. There is no multiple insurance where two or more people have different interests in the same property and each insures his own interest, for example, where the interests of the owner, the tenant and the mortgagee of the same building are all insured. C3.  On the other hand, the same interest can be covered under separate policies taken out by different policyholders or separate policies taken out by the same policyholder. A simple example of the latter is where a policyholder insures his house with more than one insurer. Another example is where belongings are insured when a policyholder is on holiday both under the terms of his household insurance policy and under his travel insurance policy. An example of multiple insurance arising when there are different policyholders is the case of goods stored in a warehouse and insured by both the owner and the warehouseman. A second is the case of a car that is at a garage for repair being insured under the owner’s motor policy and the policy taken out by the garage covering all vehicles while they are in its possession. Another is the situation where someone who is insured against third party liability when driving a vehicle other than his own under his own insurance policy is also covered by the policy taken out by the vehicle’s owner. C4.  Situations where property is insured by different policyholders will not, though, necessarily amount to multiple insurance within the terms of Article 8:104. The same interest must be insured under both or all policies. If, for example, the warehouseman’s policy covers him only against his legal liability in respect of the stored goods, and the loss is not caused in such a way as to render him liable, there is no multiple insurance. The same would be true if a policy effected by a garage on vehicles in its possession was similarly restricted in its cover. C5.  On the other hand, whether or not the same interest is separately insured is not affected by a clause contained in one or more of the policies stating that cover does not attach to an event covered by another policy. It is important for the protection of policyholders that they are not put into a situation where they may be passed between one insurer and another without getting a satisfactory response from any of them. Clauses that had this effect, often known as double insurance clauses or escape clauses, used to be common in some systems, but should now be regarded as abusive clauses and ineffective under Article 2:304.

The Insured’s Choice C6.  It is not uncommon for the laws of the Member States to confer free choice on the insured to seek recovery of his entire loss from one or more of the insurers up to the limits of the obligations of each of them, but only overall up to the amount of the indemnity to

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which he is entitled. This system is more favourable to the insured than the alternative system, which is based upon the application of the so-called chronological principle; according to this, insurers are liable successively depending on the times at which their policies were issued. Article 8:104 is drafted on the basis that the insured has this free choice. C7.  Article 8:104 para. 2 addresses the situation where there is under-insurance under each of the policies. This is necessary because some systems would limit the insured’s recovery to the amount of the sum insured under each of the policies, even if the total amount of the different sums insured would provide sufficient cover to compensate the insured for his loss. Thus, the insured may claim against all insurers of the same interest to the extent necessary to indemnify all losses actually suffered by him. The principle laid down in Article 8:101 applies as regards the maximum sum payable by all the involved insurers taken together, to ensure that the insured does not profit from his loss.

Contributions by Different Insurers C8.  Article 8:104 also deals with the question of the contributions by the insurers to the amount paid or payable to the insured. The basic principle that the insurer who has paid the insured is entitled to a contribution from the other insurers is confirmed by Article 8:104 para. 1, but the Principles of European Insurance Contract Law do not deal with this question any further, not least because it is quite possible that, in some cases of multiple insurance, not all the insurers involved are covered by the Principles of European Insurance Contract Law. In such conflict of law situations, art. 16 of the Rome I Regulation (593/2008) can be applied by analogy. C9.  Article 8:104 para. 3 obliges each insurer involved to contribute in proportion to the amount for which it would be liable if its policy stood alone (independent liability basis). This permits any agreed deductible to be taken into account. The amount to be shared should include all expenses reasonably incurred by the insurer in indemnifying the insured.

Notes General N1. At the national law level, the issue of multiple insurance is generally dealt with in connection with overinsurance. However, it must be noted that the cover of the same interest by more than one insurance contract does not necessarily result in overinsurance. It may be the case that, on aggregate, the sums insured under the various contracts remain below the actual value of the insured interest. Accordingly, two different legislative approaches can be found. Some statutes are only concerned with multiple insurance that actually causes overinsurance. Other laws also contain provisions applicable to multiple insurance in general, no matter whether overinsurance is actually involved. N2. Examples for the latter are the duties of notification some countries prescribe in the event of multiple insurance. If the insured takes out more than one insurance covering the same interest in Austria, France, Germany, Greece, Portugal, and Spain, he or she must give immediate notice to

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each insurer (see s. 58 Austrian ICA, art. 7:961 para. 1 Dutch CC, art. 121-4 para. 1 French ICA, s. 77 para. 1 German ICA, art. 15 para. 1 Greek ICA, art. 1910 para. 1 Italian CC, art. 133 para. 1 Portuguese ICA, and art. 32 para. 1 Spanish ICA). In some countries, the insured is under a duty to inform each insurer of the existence of any other insurer once the insured event has occurred (see art. 1910 para. 3 Italian CC, art. 133 para. 1 Portuguese ICA, and art. 32 para. 2 Spanish ICA; note that in Italy, Portugal, and Spain, this duty exists in addition to the duty of notification at the time of the formation of the contract). If the insured fails to provide the information, the insurer can deny payment (Cerini 87-90). There is no such notification obligation in the Polish Civil Code.

Indemnity Principle, Article 8:104 para. 1 N3. If the multiple insurance results in overinsurance, namely the sums insured under the various contracts exceed in the aggregate the actual value of the insured interest, it is generally agreed that the insured is not entitled to recover in excess of the loss actually suffered (indemnity principle). N4. As in other cases of overinsurance, many countries differentiate between fraudulent and non-fraudulent behaviour on the part of the policyholder. Thus, if the policyholder concludes multiple insurance contracts with a view to recover more than the actual loss, each contract based on such fraudulent intent is void (see s. 59 para. 3 Austrian ICA, art. 97 Belgian IA 2014, art. 121-4 para. 3 and art. 121-3 para. 1 French ICA, s. 78 para. 3 German ICA, art. 17 para. 3 in conjunction with the second sentence of art. 15 para. 3 Greek ICA, art. 54 Luxembourg ICA, and art. 53 para. 2 Swiss ICA). N5. Where the policyholder acted in good faith, the contracts are valid, but the insured may only recover to the extent of the actual loss (see s. 59 para. 1 Austrian ICA, art. 121-4 para. 4 and art. 121-1 French ICA, s. 78 para. 1 German ICA, art. 15 para. 2 Greek ICA, art. 1910 para. 3 Italian CC, and the fourth sentence of art. 32 Spanish ICA). The same rule applies in jurisdictions lacking the distinction between fraudulent and non-fraudulent behaviour (see s. 59 Finnish ICA, s. 4 of Ch. 6 Swedish ICA, art. 7:961 para. 1 and art. 7:961 Dutch CC, and for the United Kingdom see Clarke 28-9, but note that this aspect of the law is affected by the Insurance Act 2015). N6. Finally, it is noteworthy that the Austrian and the German Insurance Contract Acts contain special provisions concerning the rights of the policyholder in the event of overinsurance caused by multiple insurance contracts. Unless the overinsurance results from fraudulent behaviour, the policyholder may terminate or ask for an adjustment of the insurance contract concluded later in time in order to eliminate the overinsurance (see s. 60 para. 1 Austrian ICA and s. 79 para. 1 German ICA).

Full Liability of Each Insurer, Article 8:104 para. 2 N7. Most national laws allow the insured to claim from any one or more insurers the full amount insured under the respective contract (as long as the payments do not exceed the actual loss) (see s. 59 para. 1 Austrian ICA, art. 99 para. 1 Belgian IA 2014, art. 7:961 para. 1 Dutch CC, s. 59 Finnish ICA, art. 121-4 para. 4 French ICA, s. 78 para. 1 German ICA, art. 15 para. 3 Greek ICA, art. 1910 para. 3 Italian CC, art. 55 para. 1 Luxembourg ICA, art. 824(1) para 2 Polish CC, s. 4

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of Ch. 6 Swedish ICA, and for English law see Clarke 28-9). In other words, the insurer from whom indemnity is sought may not refuse or reduce payment on the ground that there are other insurers liable for the same loss. Essentially, this means that, vis-à-vis the insured, each insurer is treated as though there were no other insurers alongside, covering the same interest. N8. Portugal and Switzerland, on the other hand, adopt a different approach. Here, the insured is only entitled to recover on a pro rata basis from each insurer, namely in proportion to the amounts insured under the various contracts (see art. 133 para. 4 Portuguese ICA and art. 71 para. 1 Swiss ICA). N9. As far as the first group of countries is concerned, however, it must be noted that the rule allowing the insured to recover the whole loss from any insurer is mostly non-mandatory (see s. 68a Austrian ICA, art. 7:961 Dutch CC, s. 87 German ICA, art. 15 para. 3 Greek ICA, art. 1932 Italian CC, art. 824(1) para. 2 Polish CC; see Fuchs, Podwójne 24 ff., and for English law see Clarke 28-9A). This marks an important difference to Article 8:104 para. 2 PEICL. Thus, in the aforementioned countries the parties may agree for example on a pro rata liability of the insurer where multiple insurance is involved (in the United Kingdom, such an agreement is referred to as “rateable proportion clause”, see Clarke 28-9A). Likewise, the parties may stipulate in the contract that the insurer is under a duty to pay compensation only subject to the condition that no indemnity can be obtained from other insurances covering the same interest (such clauses are known as “Subsidiaritätsklauseln” under German law, see Wandt, para. 769).

Recourse against Other Insurer(s), Article 8:104 para. 3 N10. Where the insurer’s liability is not limited to a pro rata share and the insured has recovered the entire loss from one insurer, it is generally accepted that the insurer in question is entitled to contribution from the other insurers (see s. 59 para. 2 Austrian ICA, art. 7:961 para. 3 Dutch CC, s. 60 Finnish ICA, s. 78 para. 2 German ICA, art. 15 para. 3 Greek ICA, art. 1910 para. 4 Italian CC, art. 824(1) para. 2 Polish CC, and for the United Kingdom see Birds 335, Colinvaux 11-46). Each insurer is liable in proportion to the amounts stated in the various insurance policies, or – see the Dutch Civil Code – in proportion to the amounts recoverable under each policy involved.

Chapter Nine: Entitlement to Indemnity Article 9:101 Causation of Loss (1) Neither the policyholder nor the insured, as the case may be, shall be entitled to indemnity to the extent that the loss was caused by an act or omission on his part with intent to cause the loss or recklessly and with knowledge that the loss would probably result. (2) Subject to a clear clause in the policy providing for reduction of the insurance money according to the degree of fault on his part, the policyholder or insured, as the case may be, shall be entitled to indemnity in respect of any loss caused by an act or omission on his part that was negligent. (3) For the purposes of paras. 1 and 2 causation of loss includes failure to avert or to mitigate loss.

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Comments Limits on Recovery of Indemnity C1.  As stated in Article 9:101 para. 2, in principle policyholders (or other persons insured) are entitled to indemnity in respect of loss or damage within the scope of the cover, even though the loss or damage was caused by their own negligent act or omission. This provision stresses the central purpose of insurance to cover not only what Shakespeare called “the slings and arrows of outrageous fortune” but also the foolishness and carelessness of men and women. On this premise the main purpose of Article 9:101, however, is to establish limits on the kinds of human conduct that may be covered by insurance and, in particular, to delimit kinds of conduct that are so unacceptable that they are not normally covered.

Intention C2.  Insured events brought about intentionally by third parties are usually covered but not events caused intentionally by policyholders. The juristic basis of this position is sometimes said to be the presumed intention of insurers, in which policyholders have concurred by concluding the contract. Cover for loss or damage intentionally caused by policyholders would be difficult to rate on account of the inherent element of moral hazard and, in any event, insurance would be so costly that it would not find a market. In some national laws, however, enforcement of such cover is prohibited by legislation or refused as a matter of public policy by the courts. For the avoidance of doubt entitlement to the enforcement of such cover is prohibited by Article 9:101 para. 1.

Recklessness C3.  Article 9:101 para. 1 establishes a similar prohibition in respect of recklessness. This too is widely regarded as culpable. The provision amplifies the concept of recklessness by means of an objective test: to be culpable policyholders must act “with knowledge that the loss or damage would probably result”. The test has been taken from the law of international carriage, notably the Montreal Convention 1999. This formulation is well understood, having been refined by courts across the world over many years. It envisages conduct less serious than that actually intended to bring about loss but more serious than gross negligence. However, the prohibition in Article 9:101 is a restriction on cover which is not to go any further than required by public policy, and thus does not preclude the possibility that in such cases insurance might be enforced by a third party victim under special rules applicable to liability insurance. This possibility will be dealt with by the PEICL at a later stage in the provisions specific to liability insurance. For the time being, the second sentence of Article 1:105 para. 1, providing for the application of mandatory national rules on liability insurance, will apply.

Failure to Avert or Mitigate C4.  Article 9:101 para. 3 provides that the foregoing rules about culpability apply not only to the initial cause of loss but also to the response of policyholders to the occurrence of insured events for which they were not initially responsible – response to events which

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are imminent as well as events that have already occurred. The provision envisages cases in which policyholders, perhaps attracted by the prospect of insurance money, deliberately make little or no serious attempt to avert or mitigate loss, when such an attempt was viable, with the result that the extent of loss or damage is greater than it would have been, if policyholders’ response had been less culpable.

Duty and Causation C5.  The law in many countries contains what has been described as a “duty” to avert loss that is imminent, and a “duty” to mitigate loss that has occurred. However, these so-called duties are not duties in the usual sense of private law obligations actionable in damages, when unfulfilled. The impact of breach of these “duties” is in the domain of causation: a breach of duty by a policyholder breaks the “chain” of causation between the insured event and some or all of the resulting loss or damage, and to that extent insurers are not liable. C6.  Only a serious breach of such “duties” is regarded as breaking the chain of causation. Otherwise the insurance would not cover policyholders’ negligence; see Comment 1. Consequently the breach must be culpable in the sense of Article 9:101 paras. 1 and 2 – whether the breach be in failure to avert or failure to mitigate, the rule is the same. The reason is that it may be difficult, for example during a storm or fire, to draw a line between aversion and mitigation. Pouring water on one pile of wood may avert the outbreak of fire there and at the same time mitigate the extent of the fire that has already started in the pile of wood that is next to it.

The Persons Prohibited C7.  Note that the prohibition in Article 9:101 applies to both the policyholder and the insured, when they are different persons, and that, when loss is caused by one, in general the other will be entitled to indemnity nonetheless. Further, whether or not the policyholder and the insured are different persons, the prohibition is subject to the possibility of contractual derogation of the kind permitted by Article 1:103 para. 2. In cases in which policyholder and insured are different persons, reference in these Comments to the policyholder are to be read as reference to the insured, where appropriate.

Notes Survey N1. In European legal systems, it is a well-established principle that the insurer may be exempted from the duty to pay compensation if the insured event was deliberately caused by the policyholder or the insured himself. Nonetheless, the various national rules on the exclusion of the insurer’s liability differ considerably. While it is uncontested that the insurance does not cover the loss if it was caused by an intentional act on the part of the policyholder, it is a highly controversial issue which sorts of careless conduct, if any, may affect a claim. Moreover, the legal consequences of such careless behaviour differ among the laws: some statutes provide for the total forfeiture of the claims against the insurer, while others provide for a reduction only, see Notes 3 and 4 and,

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with regard to the admissibility of contractual derogations, Notes 7 and 8. Moreover, there are controversies as to whose behaviour matters: the insured’s, the policyholder’s, and maybe also that of servants and family (see Notes 5 and 6). Yet another question is whether the causation of the insured event and the failure to mitigate the loss (in the aftermath of the occurrence) are to be treated alike, see Notes 9 and 10. N2. Not only do the rules on causation of loss differ from country to country, inconsistencies can even be found in respect of different branches of insurance within the same legal system (see, for example, for Germany ss. 81, 82, 137, 161 and 162 ICA, for Spain arts. 19, 48 and 92 ICA). Fire insurance, cargo insurance, and other forms of indemnity insurances are often subject to distinct rules. Thus, the references to the national rules in the following paragraphs are only indicative of the general rules adopted by the respective country.

Intention and Gross Negligence, Article 9:101 para. 1 N3. As stated above, it is a universally accepted rule that the insurer owes no compensation if the policyholder caused the loss through intentional behaviour. With respect to negligent behaviour, the various statutory rules are far less consistent. Speaking generally, most statutes draw a distinction between gross negligence (sometimes also referred to as recklessness, for example in the Netherlands and Sweden) and other degrees of negligence. While the former tends to exclude or to reduce the claims against the insurer, the latter has usually no bearing on the policyholder’s rights. N4. Austria, Greece, Italy, the Netherlands and Poland, equate gross negligence with intentional behaviour and allow the insurer to refuse any payment (s. 61 Austrian ICA, art. 7 para. 5 Greek ICA (for indemnity insurance), art. 1900 para. 1 Italian CC, art. 7:952 Dutch CC: opzet of roekeloosheid, and art. 827 para. 1 Polish CC). In Finland, Germany, Sweden, and Switzerland, on the other hand, gross negligence on the part of the insured only gives the insurer the right to reduce compensation (see ss. 28 to 30 Finnish ICA, s. 81 para. 2 German ICA, s. 5 para. 2 of Ch. 4 Swedish ICA, and art. 14 para. 2 Swiss ICA). In other legislations, the policyholder is entitled to full indemnity even if he caused the loss through grossly negligent conduct (see art. 62 Belgian IA 2014, see Cousy/Schoorens 91, art. 113-1 French ICA, art. 14 Luxembourg ICA, art. 46 para. 1 Portuguese ICA, and art. 19 Spanish ICA). For the United Kingdom see Birds 13.2.1, Clarke 19-2A, and Basedow/Fock-Rühl 1468: if a policy contains a term requiring the insured to take reasonable care, indemnity will be denied in the event of recklessness: Fraser v Furman (Productions) Ltd [1967] 1 WLR 898 (CA); Sofi v Prudential Assurance [1993] 2 Lloyd’s Rep 559 (CA). However, it must be stressed that, in practice, the gaps between the various rules will be narrower than the differences in the rules may suggest. The reason is that, in most cases, the provisions concerning gross negligence are non-mandatory and, hence, the parties are free to make their own arrangements (see also below).

Intention and Recklessness of Third Parties N5. Most legal systems expressly provide that the rules on causation of loss equally apply if it was the insured who caused the insured event (see s. 78 Austrian ICA, art. 62(2) Belgian IA 2014, art. 7:952 Dutch CC, ss. 28 and 30 Finnish ICA, s. 47 German ICA, art. 7 para. 5 Greek ICA,

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art. 1900 para. 1 Italian CC, art. 14 para. 2 Luxembourg ICA, art. 827 para. 4 Polish CC, art. 46 Portuguese ICA, art. 19 Spanish ICA, and art. 14 Swiss ICA). N6. Moreover, under some national laws, the insurer is also exempted from the duty to pay compensation in cases where certain third parties other than the insured or the policyholder caused the loss. As far as the imputation of knowledge is concerned this issue is covered by Article 1:206 PEICL, see the notes on that provision. In most countries this is a matter left to general private law. However, the details vary considerably on this point. In Finland and Poland, the insured is also responsible for third parties such as co-owners and individuals living in the same household (see s. 33 Finnish ICA and art. 827 para. 3 Polish CC). In Germany, the rules of causation of loss also apply to individuals who qualify as “representatives” of the insured under the doctrine of Repräsentantenhaftung (see Wandt, paras. 633 ff. and 910). In Greece the rules on causation of loss also apply to third parties entrusted professionally to safeguard the insured interest (see the first sentence of art. 7 para. 5 ICA). Similar rules can be found in Switzerland and the United Kingdom (see for Switzerland art. 14 para. 3 ICA, for the United Kingdom see Basedow/Fock-Rühl 1480), at least, so far as the United Kingdom is concerned, if the actions of a third party can be attributed to the insured or policyholder under normal agency principles; the deliberate acts of the insured’s spouse or employee do not prevent an innocent insured from recovering (Midland Insurance Co v Smith (1881) 6 QBD 561, Shaw v Robberds (1837) 6 Ad & El 75). In some laws, on the other hand, the law explicitly provides that third party conduct does not affect the insured’s claim against the insurer (see art. 1900 para. 2 Italian CC). Once again, however, since the rules on third party causation are non-mandatory in most countries, the statutory provisions will only play a marginal role. Instead, the terms and conditions of the insurance contract will prevail.

Contractual Derogations in Case of Negligence N7. As shown above, in almost all legislations the insured is entitled to full indemnity even if he or she caused the loss through negligent behaviour falling short of gross negligence. In many legal systems, however, the parties are allowed to derogate from that rule and to exclude the insurer’s liability in the event of simple negligence on the part of the policyholder (or that of the insured). In particular, this holds true for Austria, France, Germany, Italy, the Netherlands, and the United Kingdom (see s. 68a Austrian ICA, s. 87 German ICA, art. 1932 Italian CC, arts. 7:952 and 7:963 Dutch CC; note that in France such agreement must be “formelle et limitée contenue dans la police”, art. L 113-1 French ICA; in the United Kingdom, the agreement must be explicit, for example by restricting cover to “accidental” losses; a clause merely requiring the insured to act with reasonable care will not have this effect: Fraser v Furman [1967] 1 WLR 898, Sofi v Prudential Assurance [1993] 2 Lloyd’s Rep 559, see Birds 13.2.2, Clarke 19-2A. Covering policyholder negligence has been regarded as a central purpose of insurance, from at least the time of Shaw v Robberds (1837) 6 Ad & El 75). N8. In other countries, the scope of contractual freedom is restricted. In Greece, for instance, the parties may enter an agreement excluding compensation for simple negligence only with respect to professional risks (art. 7 para. 6 Greek ICA; see also s. 5 para. 2 of Ch. 4 Swedish ICA allowing a party agreement only “where special reasons exist”). Luxembourg, Poland, and Spain do not permit the exclusion of indemnity for any degree of fault below gross negligence (for Luxembourg, see art. 14 para. 2 ICA e contrario; for Poland, art. 827 para. 1 CC; for Spain, the rule results from the mandatory character of art. 19 ICA, see art. 2 ICA).

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Failure to Avert and Mitigate Loss, Article 9:101 para. 3 N9. The duty to mitigate loss once the insured event has occurred (sometimes also referred to as “duty of salvage”) is recognised in most legal systems (the United Kingdom forms an exception in that it lacks a statutory duty to mitigate loss; however, such a duty may be stipulated by the parties in the insurance contract, see Clarke 27-5A). However, a duty to mitigate loss or damage may be regarded as an issue for the general law of obligations and failure to perform that duty as a kind of negligence; it is clearly possible to insure against loss caused by negligence on the part of the insured; see Note 7 above). N10.  The legal consequences arising from the failure to observe that duty, however, differ to some extent. In Austria, Germany, and Poland, the failure to mitigate loss is is treated in a similar manner as the causation of the insured event: the insurer may deny (or reduce) compensation if the insured or the policyholder acted deliberately or through gross negligence (see s. 62 para. 2 Austrian ICA, s. 82 para. 3 German ICA, and art. 826 para. 3 Polish CC). Other legislations establish special rules for the failure to mitigate loss. Generally, the insurer has the right to reduce compensation to the extent the insured failed to contain the damage. Simple negligence on the part of the insured is sufficient (see art. 76 para. 1 Belgian IA 2014, s. 32 Finnish ICA (only slight negligence excluded), art. 1915 para. 2 Italian CC, art. 28 para. 1 Luxembourg ICA, art. 7:957 para. 3 Dutch CC, art. 17 para. 1 Spanish ICA, and art. 61 para. 2 Swiss ICA). If the insured acted intentionally, the insurer may be entitled to refuse any payment (see art. 21 para. 2 Belgian IA 2014, art. 28 para. 2 Luxembourg ICA, art. 101 para. 2 and art. 126 para. 3 Portuguese ICA (subject to agreement in the insurance contract), and art. 17 para. 2 Spanish ICA). For the United Kingdom, see Note 9 above.

Article 9:102 The Costs of Mitigation (1) The insurer shall reimburse the costs incurred or the amount of damage suffered by the policyholder or the insured in taking measures to mitigate insured loss, to the extent the policyholder or the insured was justified in regarding the measures as reasonable under the circumstances, even if they were unsuccessful in mitigating the loss. (2) The insurer shall indemnify the policyholder or the insured, as the case may be, in respect of any measures taken in accordance with para. 1, even if together with the compensation for the loss insured the amount payable exceeds the sum insured.

Comments Establishment of a Right to Recover Certain Costs C1.  A successful attempt to mitigate loss and damage is in the interest of all concerned, and it is a clear implication of Article 9:101 para. 3 that, if there is to be recovery under the policy, under certain circumstances measures of mitigation must be attempted by the appropriate person. Article 9:102 addresses the question of meeting the cost of mitigation. This is necessary because, although policyholders are usually required to mitigate by national law, in some countries insurers are automatically obliged to reimburse the cost of mitigation but in some they are not. Moreover, when they are so obliged rules tend to differ in the detail.

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Scope of the Right of Recovery C2.  Under Article 9:102 para. 1 the right to recover the cost of mitigation extends not only to payments made to salvage operators or for other service providers but also to an indemnity in respect of “the amount of damage suffered by the policyholder” in cases in which physical damage has been deliberately inflicted to reduce the extent of ultimate damage. One example is the creation of a fire break to stop the spread of fire. Another might be the abandonment of some goods to save others. C3.  The right of recovery provided for by Article 9:102 para. 1 is a qualified right. Special circumstances apart, insurers cannot be expected to assume responsibility for a cost that, being beyond their control, might be grossly out of proportion. Potentially extravagant measures, which have been commissioned by a distraught policyholder anxious to save cherished possessions, would be a hazard difficult to rate and result in cover at a price difficult to sell. On the one hand, therefore, Article 9:102 states that policyholders must be justified in regarding the measures taken as “reasonable under the circumstances”. C4.  On the other hand, policyholders should not be unduly inhibited from taking reasonable measures of mitigation by fears that they might have to retain some of the cost. Thus, as long as measures taken are reasonable in accordance with Article 9:102 para. 1, policyholders are entitled to recover the full cost, even for measures that are not successful, and “even if together with the compensation of the loss insured the amount payable exceeds the insured sum”. This risk is one that may not have entered into an insurer’s calculations when setting the premium, but allocation of this risk to insurers rather than policyholders appears to be the more equitable outcome. Moreover, it is the more practicable outcome, if policyholders are to take effective measures of mitigation. Otherwise they might well find it difficult to be certain that their measures will succeed or to assess the point at which the cost incurred has reached the amount of the insured sum, and thus hesitate to take the measures that should be taken for effective mitigation. C5.  In cases in which policyholder and insured are different persons, reference in these Comments to the policyholder are to be read as reference to the insured, where appropriate.

Underinsurance C6.  In case of underinsurance, the pro-rata-rule of Article 8:102 para. 2 also applies to the reimbursement of mitigation costs; see the last sentence of Article 8:102 para. 2.

Notes General N1. Most national laws provide for a duty to avert or mitigate the loss insured (often also referred to as “duty of salvage”). Moreover, in some legal systems the policyholder and the insured are bound to comply with any instruction given by the insurer in order to contain the damage (see s. 62 para. 1 Austrian ICA, s. 82 para. 2 German ICA, art. 7 para. 3 Greek ICA and art. 61 para.

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1 Swiss ICA). The United Kingdom forms an exception in that its insurance law lacks a duty to mitigate; consequently, mitigation costs are only recoverable if stipulated in the contract (see Yorkshire Water Services v Sun Alliance & London Insurance [1997] 2 Lloyd’s Rep 221, Clarke 27-5A and 28-8G3 and Basedow/Fock-Rühl 1475). The parties do not usually include such an obligation in the insurance contract. However, it is generally accepted among the other legal systems that, subject to certain exceptions, the costs of mitigation are recoverable from the insurer. Nonetheless, as will be shown below, national laws differ on some points.

Reasonable Mitigation Costs, Article 9:102 para. 1 N2. Under most national laws, the insurer covers the costs of mitigation provided that the mitigating measures were reasonable regardless of whether the measures were actually successful in containing the damage. It must be noted, however, that the test adopted to determine the reasonableness of the measure differs slightly among European countries. N3. The language of some statutes suggests that a purely objective standard is applied: the question is whether or not the measure was “objectively” reasonable (see art. 7:957 paras. 1 and 2 Dutch CC, s. 61 Finnish ICA, the first sentence of art. 7 para. 3 Greek ICA, art. 826 para. 4 Polish CC, art. 127 para. 1 Portuguese ICA, the fourth sentence of art. 17 Spanish ICA, and art. 70 para. 1 Swiss ICA). Other countries adopt a more subjective approach and ask whether the insured or the policyholder was justified in taking the measure in question (see s. 63 para. 1 Austrian ICA, s. 83 para. 1 German ICA). According to art. 106 Belgian IA 2014, art. 64 Luxembourg ICA, and art. 1914 Italian CC, the decisive test is whether the insured acted with due diligence under the “bonus pater familias” standard. N4. Another difference concerns the burden of proof: while in most systems it is up to the claimant to prove the reasonableness of the mitigation efforts (see, for example, for Austria and Germany Schwintowski/Brömmelmeyer-Kloth/Neuhaus, § 83 VVG para. 18), the insurer bears the onus of proving the unreasonableness of the measures under the Italian CC (see art. 1914 paras. 2 and 3 CC). N5. France, on the other hand, differs considerably from the aforementioned countries. Unless the insurance contract provides otherwise, the insurer does not cover mitigation costs. The rules on fire insurance provide that the damage arising from salvage measures is recoverable (see art. L. 122-3 ICA). However, the expenses of the salvage do not fall within that rule. In some cases, however, mitigation costs may be recovered under the general doctrines of “gestion d’affaires” or “enrichissement sans cause” provided the insurer benefited from the mitigation efforts (see Basedow/Fock-Völker 530).

The Sum Insured as Limit, Article 9:102 para. 2 N6. In general, where mitigation costs are covered by the insurer, the sum insured under the contract is not a ceiling on the payment owed by the insurer. Thus, the expenses for the mitigation efforts are recoverable even if this sum, together with the compensation for the loss, exceeds the sum insured (see art. 106 Belgian IA 2014, s. 61 Finnish ICA, the second sentence of art. 7 para. 3 Greek ICA, art. 1914 para. 2 Italian CC, art. 64 Luxembourg ICA, art. 7:959 para. 1 Dutch CC, s. 5 of Ch. 6 Swedish ICA, and art. 70 para. 1 Swiss ICA). In Austria, Germany, Poland, and

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Portugal, this only applies to mitigation costs arising from compliance with instructions given by the insurer (see the second sentence of s. 63 para. 1 Austrian ICA, s. 83 para. 3 German ICA, art. 826 para. 4 Polish CC, and art. 127 para. 3 Portuguese ICA). N7. However, it must be noted that, at least in practice, the extent to which mitigation costs are recoverable will vary less significantly from country to country than it might appear at first sight. Firstly, in those jurisdictions where the sum insured is no absolute cap on the recoverability of mitigation costs similar limitations will arise nonetheless on the basis of the reasonableness test: mitigation costs that exceed the insured sum will rather likely be deemed unreasonable. N8. Secondly, some of the national laws allowing for the reimbursement of mitigation costs in excess of the sum insured are non-mandatory (see art. 7 para. 3 Greek ICA (except for consumer contracts), art. 7:963 para. 6 Dutch CC (except for consumer contracts and mitigation costs exceeding the sum insured), and art. 90 para. 1 Swiss ICA). In these cases, the parties to the insurance contract are free to limit the insurer’s liability through contractual stipulation. In Belgium, the amount of reasonable costs can be limited in most insurance branches by royal decree (art. 106 para. 2 IA and the Royal Decree of 24 December 1992 implementing the IA 2014).

Chapter Ten: Rights of Subrogation Article 10:101 Subrogation (1) Subject to para. 3 the insurer shall be entitled to exercise rights of subrogation against a third party liable for the loss to the extent that it has indemnified the insured. (2) To the extent that the insured waives a right against such a third party in a way that prejudices the insurer’s right of subrogation, he shall forfeit his entitlement to indemnity in respect of the loss in question. (3) The insurer shall not be entitled to exercise rights of subrogation against a member of the household of the policyholder or insured, a person in an equivalent social relationship to the policyholder or insured, or an employee of the policyholder or insured, except when it proves that the loss was caused by such a person intentionally or recklessly and with knowledge that the loss would probably result. (4) The insurer shall not exercise its rights of subrogation to the detriment of the insured.

Comments Introduction C1.  It is a common feature of all legal systems that the insurer who indemnifies a policyholder or insured against an insured loss succeeds to any rights of action against a third party that the policyholder or insured may have in respect of the loss. Its major purpose is to prevent the unjust enrichment of the policyholder or insured so that he does not benefit from both the insurance money and from any damages that he obtains from the third party and thus receives more than is sufficient to compensate him for his loss. This provides justification for a mandatory rule in the Principles of European Insurance Contract Law.

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In some legal systems, this principle gives the insurer the right to sue the third party in the name of the insured; in other systems the insurer is assigned the right to sue in its own name by operation of law (cessio legis). This Article covers both types of right and refers to the insurer’s right as the right of subrogation. For the purposes of the application of this principle, it will not matter whether the action by the insurer is in its own name or that of the insured that it has indemnified. C2.  The principle of subrogation is applicable only to contracts of indemnity insurance and hence is included in this part of the Principles of European Insurance Contract Law. It cannot apply to insurances of fixed sums. C3.  The thrust of Article 10:101 is, while ensuring that the policyholder or insured is not unjustly enriched, to give him priority over the insurer when it comes to the recovery of compensation from a third party responsible for the loss. This seems an appropriate position in the Principles of European Insurance Contract Law which are intended to provide adequate protection for the weaker party. C4.  Nothing in Article 10:101 precludes the parties from agreeing that the insurer will not exercise subrogation rights or from insurers agreeing among themselves that they will not exercise such rights in certain situations. They may go beyond the restrictions in para. 3, explained below.

Need for Indemnity C5.  However, as well as conferring the right of subrogation, Article 10:101 para. 1 imposes the first important limitation on the right, namely that it applies only in so far as and to the extent that the insurer has indemnified the insured. The rule comprises two linked but distinct elements. The insurer cannot have the right to claim from the third party until it has actually paid the insured according to the entitlement of the latter under the policy, as until then it cannot be said that the insured would be unjustly enriched. Further, the insurer can itself recover from the third party only such amount as it has paid to the insured. This is necessary in order to safeguard the position of the insured who may himself be able to take action against the third party to recover for any loss that was uninsured. C6.  For example, it is common that the policy contains a deductible and thus the insured has to bear the first part of any loss. Such provision is often found, for example, in motor insurance and household insurance. The insurer will indemnify the insured less the amount of the deductible and the insurer’s right against the third party should be limited to reclaiming the amount actually paid out. The same principle should apply where the insured fails to recover a full indemnity because the maximum he can recover under the policy is less than the actual amount of his loss.

Protection for Insurer C7.  However, in order to provide a fair balance of the rights of the parties, it is necessary to ensure that the insured does not act in a way that prejudices the insurer’s right of subrogation where the cause of a loss is the actions or omissions of a third party who is legally liable.

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This is the intention behind para. 2. It operates when the insured waives a right against the third party that he would otherwise have, which means that the insured must act in such a way that the third party would have a defence to a claim by the insured or by the insurer exercising subrogation rights. This might take the form of a binding agreement under which, for example, the insured forfeits all or some of a potential claim against the third party. In such circumstances the insured forfeits his claim to indemnity under the policy, although only in respect of the particular loss. There is no reason to penalise the insured in respect of a claim for a different loss.

Third Party C8.  Article 10:101 grants the insurer a subrogated right against third parties. This does not include the policyholder and the insured. This is important in a situation, for example, where in an insurance of property that is leased and insured by the landlord for the benefit of both himself and his tenant, the insurer indemnifies the landlord following an insured loss and seeks to claim against the tenant on the basis that the latter was legally responsible.

Protection of Third Parties in a Close Relationship with the Insured C9.  Article 10:101 para. 3 contains clear exclusions of subrogation rights against family members, employees and so on. National legal systems deal with the issue covered by this paragraph in different ways, but at least some of them provide for similar restrictions on insurer’s subrogation rights and there are equivalent voluntary ones elsewhere. The purpose of these restrictions is to prevent the social harm that could result from a person appearing to bring a legal action against someone with whom he or she might be in an extremely close relationship, even if in reality the action is brought by the insurers. There are sound policy reasons for providing for such exclusions. To take a simple example, it does not seem sound to allow an insurer who has indemnified the owner of, say, a vase whom it has indemnified, to claim against the owner’s partner who was simply careless in causing the vase to fall to the floor and break. C10.  It is clear that such restrictions do not apply when the insurer can prove that the defendant caused the loss deliberately or recklessly and with knowledge that loss or damage would probably result. This is, deliberately, the same wording as that in Article 9:101 para. 1 and is to be construed in the same way, so that knowledge for these purposes can be inferred objectively from the facts. There is no good policy reason to exempt from liability someone who has caused loss in such circumstances. On the other hand, the paragraph does protect the defendant who has been negligent. C11.  Three categories of persons are protected by Article 10:101 para. 3. The restrictions extend to persons connected with the policyholder and not just with the insured. “Member of the household” should be understood to mean someone living in the same household as the policyholder or insured. The second category – those in an equivalent social relationship – should be construed to cover members of the family of the policyholder or insured who do not live with the latter and such persons as close friends or neighbours because action against such persons could lead to a breakdown in relationships. As to the third category, it should always be clear whether or not a person is an employee of the policyholder or insured.

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C12.  Article 10:101 para. 4 protects the insured against detrimental exercise of the subrogation rights of the insurer. For example, if the insured is not fully indemnified by the insurer, but the means of the third party are insufficient to cover his tort claim as well as the subrogated claim of the insurer, the insured’s claim will enjoy priority. In effect, Article 10:101 para. 4 shifts the risk of third party insolvency to the insurer.

Notes General N1. The notion of subrogation can be found, in one form or another, in all European legal systems. Generally speaking, if a third party caused the insured event and the insurer compensated the loss, it is recognised that the insurer has an interest in the claims of the insured or the policyholder against that third party. However, the technicalities of subrogation differ among the various legislations. Thus, in most countries the insurer is automatically subrogated to the claims against the third party by operation of law. In Spain, on the other hand, subrogation is at the option of the insurer (“facultad de la subrogación”, see Basedow/Fock-Schlenker 1355): the subrogation does not take effect unless the insurer exercises the option. Moreover, in most legislations the subrogation is considered as an assignment effected by law (cessio legis) and the insurer/subrogee consequently exercises the subrogation rights in its own name, whereas, for example, in the United Kingdom and Ireland, the insurer/subrogee acts on behalf of the creditor and may only bring a claim in the name of the policyholder/subrogor, unless there is an express assignment of the right of action (see Birds 17.2 ff., Clarke 31-2, Basedow/Fock-Rühl 1497, for England, in particular, see Castellain v Preston (1883) 11 QB 380 and Napier v Hunter [1993] AC 713). N2. It is important to note from the outset that the insured is not a “third party” for the purpose of subrogation (see Birds 17.14, Clarke 31-5D, Basedow/Fock-Völker 583, Wandt, para. 998). The explanation is that the insurance contract might be (partially) frustrated if the insurer was allowed to exercise subrogation rights against a person insured under the same contract.

Basic Principle, Article 10:101 para. 1 N3. It is a universally accepted principle in the national laws of the Member States that the insurer is subrogated to the claims against third parties only to the extent it has actually indemnified the insured for the loss suffered (see s. 67 para. 1 Austrian ICA, art. 95 paras. 1 and 3 Belgian IA 2014, the first sentence of art. 7:962 para. 1 Dutch CC, s. 75 Finnish ICA, art. 121-12 para. 1 French ICA, s. 86 para. 1 German ICA, art. 14 para. 1 Greek ICA, art. 1916 Italian CC, art. 52 Luxembourg ICA, art. 828 para. 1 Polish CC, art. 136 para. 1 Portuguese ICA, art. 43 para. 1 Spanish ICA, s. 9 of Ch. 7 Swedish ICA, art. 72 Swiss ICA and for the United Kingdom Page v Scottish Insurance Corporation (1929) 98 LJKB 308, Birds 17.6, and Clarke 31-3B). This common feature reveals that in all European countries the doctrine of subrogation is based on the same rationale, namely to avoid the insured’s over-compensation (see, for example, Clarke 31-7, Wandt, para. 952 and Rokas, para. 538).

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Protection of Subrogation Rights, Article 10:101 para. 2 N4. Various European regimes contain rules designed to protect the insurer’s subrogation rights. In particular, the insured and the policyholder ought to refrain from acts that prejudice the insurer’s subrogation rights. However, the scope of that duty as well as the legal effects of its breach may take different forms. N5. Some national laws confine themselves to providing that the insured forfeits the claim against the insurer to the extent he or she has vitiated the exercise of the subrogation rights, for example by waiving the rights or a security interest against the third party (see s. 67 para. 1 Austrian ICA, art. 95 para. 2 Belgian IA 2014, art. 121-12 para. 2 French ICA, and art. 52 para. 2 Luxembourg ICA). Other countries take a broader approach: they impose a duty on the insured and the policyholder to safeguard the subrogation rights in the insurer’s interest (see the second sentence of art. 7:962 para. 1 Dutch CC). Sometimes, as in the case of Germany or England, this duty is coupled with an obligation to actively assist the insurer in enforcing the subrogation rights (see s. 86 para. 2 German ICA, for English law, where the point is often normally covered by express contract provision, see Birds 17.8 and Clarke 31-6C). N6. If that duty is breached, the insurer is entitled to damages (see the second sentence of art. 14 para. 3 Greek ICA, art. 1916 para. 3 Italian CC, art. 43 para. 2 Spanish ICA, and art. 72 para. 2 Swiss ICA). As a matter of fact, this remedy will generally result in the reduction of the compensation paid by the insurer. Under certain circumstances, the insured might even completely forfeit the claim against the insurer (see also s. 86 para. 2 German ICA, which provides for the reduction or the forfeiture of the compensation claim if the insured has prejudiced the insurer’s subrogation rights; see also art. 136 para. 2 Portuguese ICA, which states that the policyholder or the insured is liable up to the sum insured under the contract).

Protection of the Insured’s Entourage, Article 10:101 para. 3 N7. The bulk of national laws bar the insurer from exercising the subrogation rights against certain third parties who are in a close relationship with the insured. The rationale of the rule is that the insurer may not recover from parties against whom the insured himself would have brought no claim and who might take de facto or de iure recourse against the policyholder or the insured. Another argument is that the insurance is often taken out also in the interest of those individuals (see Kamphuisen 47 and Wandt, paras. 987 ff.). The United Kingdom differs from other countries in that it lacks such a rule, although there is an industry agreement that the liability insurer of an employer will not take action against an employee who has negligently injured a fellow employee; this has been relied upon in denying subrogation rights to the insurer of one employer against an employee of another employer working in the same place (Morris v Ford Motor Co [1973] QB 792), but the status of this decision as a matter of strict law has been doubted: see Birds 331-333. N8. The group of protected persons varies from country to country. It is generally agreed that close family members such as the insured’s spouse, children, and parents as well as persons living with the insured in the same household are protected under the exemption clause (see s. 67 para. 2 Austrian ICA, s. 86 para. 3 German ICA, art. 14 para. 2 Greek ICA, art. 828 para. 2 Polish CC, art. 136 para. 4(b) Portuguese ICA, art. 43 para. 3 Spanish ICA, and art. 72 para. 3 Swiss ICA). In addition, some statutes also include persons employed in the household of the insured (see

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art. 95 Belgian IA 2014, art. 121-12 para. 3 French ICA, art. 1916 para. 2 Italian CC, and art. 52 Luxembourg ICA). The Netherlands adopts the broadest approach extending the protection also to the employer or employee of the policyholder or insured, or to persons employed with the same employer (see art. 7:962 para. 3 CC). N9. As a general rule, the exception to subrogation does not apply where the third party caused the insured event intentionally, see for example the second sentence of art. 7:962 para. 3 Dutch CC, art. 14 para. 2 Greek ICA, and art. 828 para. 3 Polish CC. In Switzerland, on the other hand, the exemption clause is only applicable if the third party in question acted with slight negligence or with no fault at all (see art. 72 para. 3 ICA).

No Subrogation Rights against the Insured, Article 10:101 para. 4 N10.  The rule that the insurer is not allowed to exercise the subrogation rights to the prejudice of the insured is expressly recognised in a number of legal systems (see s. 67 para. 1 Austrian ICA, art. 7:962 para. 2 Dutch CC, s. 86 para. 1 German ICA, the second sentence of art. 828 para. 1 Polish CC, and art. 43 para. 2 Spanish ICA). However, even in the absence of such an express provision, the designation of the insured as a person whose risk is covered by the policy to the same extent as that of policyholder would bar the exercise of any subrogated rights against the insured.

Chapter Eleven: Insured Persons other than the Policyholder Article 11:101 Entitlement of the Insured (1) In the case of an insurance taken out for a person other than the policyholder, if the insured event occurs, that person shall be entitled to the insurance money. (2) The policyholder shall be entitled to revoke such cover, unless (a) the policy provides otherwise; or (b) the insured event has occurred. (3) Revocation shall take effect when written notice of revocation is given to the insurer.

Comments Concept C1.  Frequently, the person whose interest is protected against loss under indemnity insurance is someone other than the policyholder. Such insurance is commonly referred to as a contract in favour or on account of a third party. This kind of contract is sometimes characterised as a stipulation in favour of a third party; see Article 6:110 para. 1 PECL. The policyholder makes the contract, however the third party is insured and also entitled to enforce the contract.

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Protection of the Insured and Scope C2.  Effective protection of the third party (insured) requires mandatory rules which are set out in Chapter 11 of the Principles of European Insurance Contract Law which forms part of Part 2 of the Principles of European Insurance Contract Law and is therefore only applicable to indemnity insurance. Third party rights arising in respect of the insurance of fixed sums have to be dealt with separately.

Basic Rule C3.  From the perspective of general contract law, the mere fact that a contract has been taken out for a third party does not necessarily mean that the third party gets a claim of his own against the debtor. However, unless the policyholder revokes the cover in accordance with Article 11:101 para. 2, Article 11:101 gives the insured an express right to claim the insurance money. C4.  The insured may but does not have to be named in the policy but must be identifiable in the manner laid down in it. Subject to this, insurance may be taken out in favour of whomever it may concern. C5.  The entitlement of the insured does not depend on his acceptance of the right. However, the insured can at any time decline entitlement; see also Article 6:110 para. 2 PECL.

Other Third Party Claims C6.  The rule covers cases where the person entitled to the insurance money is an insured. A person not qualifying as an insured may also be entitled to the insurance money, for example by a provision in the policy or by an assignment, but these are not within Article 11:101.

Revocation of Cover C7.  Under para. 2 the policyholder is free to revoke cover except in two cases: either the policy provides otherwise or the insured event has already occurred. This rule differs from Article 6:110 para. 3(b) PECL which allows the third party beneficiary to accept his right and thereby prevent it from being revoked. Given the mandatory character of Article 11:101, the policyholder should have greater rights of revocation. The practical effect of Article 6:110 para. 3(b) PECL can be achieved by the exclusion of the right of revocation in the insurance policy in accordance with Article 11:101 para. 2(a). In this context, it should be noted that the exclusion of revocation in the insurance policy is effective even without notification to the insured; see the opposite approach taken by Article 6:110 para. 3(a) PECL for general contract law. Again, the practical effect of the latter rule can be achieved by appropriate drafting of the policy which is common in the insurance industry. C8.  Article 11:101 para. 2(a) does not protect the insured against a termination of the contract as a whole, in particular for non-payment of the premium by the policyholder; see

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Article 5:103. That is why in this case the insured will have the right to step in to preserve his interests by paying the premium himself; see Article 5:105. C9.  Article 11:101 para. 2(b) protects the insured against a loss of a claim for insurance money that has already accrued by the occurrence of the insured event. In contrast to a revocation prior to the insured event, the insured is already entitled to a direct claim against the insurer. Moreover, the insured is no longer able to obtain insurance cover for that event himself. It is obvious that even in this case the insured is entitled to renounce the benefit.

Form of Notice C10.  Contrary to the general rule in Article 1:205, notice of revocation has to be given in writing; see Article 11:101 para. 3. The rule aims to avoid uncertainty as to whether a revocation has been exercised and thus as to whether the third party has in fact lost insurance cover.

Effects of Revocation C11.  In accordance with Article 1:303 PECL, notice of revocation takes effect on receipt by the insurer. It does not have retroactive effect. In the case of a revocation, Article 11:101 does not impose an obligation to give notice to the insured but such a duty may flow from contract or general principles in appropriate cases.

Notes Article 11:101 para. 1: General Principle N1. The possibility for the policyholder to stipulate an insurance for the account of another person and the relevant rights of that person is widely accepted and regulated (see for example ss. 74 to 80 Austrian ICA, art. 77 of the Belgian IA 2014, s. 2768 Czech CC, arts. 7:946 ff. Dutch CC, art. 112-1 French ICA, ss. 43 to 48 German ICA, art. 9 Greek ICA, s. 547 Hungarian CC, art. 1891 Italian CC, art. 49 Luxembourg ICA, art. 808 Polish CC, art. 48 Portuguese ICA, arts. 16 to 18 Swiss ICA, art. 7 Spanish ICA, Chapter 9 Swedish ICA; for English law likewise in spite of the rule of “privity of contract”, but depending especially on the construction of the insurance policy see, for example, Hepburn v Tomlinson [1966] AC 451; see Birds Chapter 4, Clarke, Chapter 5, see Basedow/Fock-Rühl 1482 ff.). N2. The entitlement of the insured to directly claim insurance money from the insurer is also widely accepted (see for example s. 44 German ICA which is identical to the previous law according to which the insured can claim the insurance money without the policyholder’s approval if he is in possession of the policy; see Römer/Langheid-Römer, § 75-76 VVG para. 17, art. 7:945 Dutch CC, art. 808 para. 3 Polish CC according to which if it is not agreed otherwise the insured can directly claim payment from the insurer, art. 48 para. 3 Portuguese ICA, and art. 7 para. 3 Spanish ICA). On the contrary under s. 2767 para. 1 Czech CC insurance benefits may only be claimed by the policyholder.

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N3. Where there are no specific provisions regulating the right of the insured to directly claim payment from the insurer, that right might be attributed to him in accordance to the provisions of the general law on the stipulation in favour of a third party (see for France: Lamy Assurances, para. 166 note 1, for Greece Rokas, para. 308).

Artikcle 11:101 para. 2: Revocation N4. Revocation and/or alteration of the cover to the detriment of the insured and the conditions under which such right can be exercised by the policyholder are regulated in detail for personal and especially for life assurance in the laws of several countries, while in indemnity insurances this is not the case. Under the first sentence of art. 7:947 Dutch CC, the policyholder may revoke the designation of the insured only in agreement with the insurer or the insured. The German law basically acknowledges the policyholder’s right to revoke, but excludes the acceptance of payment or assignment if the insured is in possession of the policy (Wandt, paras. 693 ff.; see also for Austria s. 76 para. 2 ICA). On the other hand, art. 1891 para. 2 Italian CC and art. 48 para. 3 Portuguese ICA do not permit the policyholder to invoke any rights arising from the insurance contract without the consent of the insured, even if the policyholder himself is in possession of the policy. N5. The conditions under which the policy can be altered are not always the same as the conditions under which coverage can be revoked: Even if the insurance has been concluded with the consent of the insured the policyholder can proceed to the alteration of its terms to the detriment of the insured as long as the latter has not yet become a party to the contract according to the provisions of the general civil law (see for Austria: Berliner Kommentar-Hübsch, § 75 VVG para. 4). According to art. 808 para. 3 Polish CC the parties to the insurance contract cannot agree that the insured not be entitled to the performance if the insured event has already occurred. N6. As to the possibility to name a person as irrevocably entitled to the insurance money, this is commonly allowed in general private law only with the consent of the person in question (see, for example, art. 1121 French CC, art. 411 in conjunction with art. 413 Greek CC, art. 1411 Italian CC). N7. The rule in Article 11:101 para. 2(b) is found exceptionally in insurance contract acts (see the second sentence of art. 7:947 Dutch CC).

Acceptance N8. Acceptance of the designation by the insured does not constitute a prerequisite for its validity; this corresponds to rules laid down in many laws (see for Austria OGH 19.4.1979 SZ 52/65, Heiss/Lorenz-Heiss, § 74 VVG para. 4; for Germany BGH 25.11.1963, BGHZ 40, 297 (301), see Schwintowski/Brömmelmeyer-Hübsch, § 44 VVG para. 2; arts. 22 f. Belgian IA 2014, art. 9 Greek ICA, art. 1891(b) Italian CC, art. 808 Polish CC, and art. 7 Spanish ICA). N9. A different view is generally laid down in insurance contract legislation with regard to the designation of a third party as insured in life assurance. If the policyholder and the insurer were allowed to make an insurance contract on the life of a third party insured, this might convey incentives to kill the insured, and the insured would bear the consequences of the moral risk while

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not being able to receive the benefit of the contract. That is why national laws require the third party’s acceptance as a condition for such contracts (see for example the first sentence of s. 159 para. 2 Austrian ICA, s. 2826 para. 1 Czech CC, art. 132-2 para. 1 French ICA, the first sentence of s. 150 para. 2 German ICA, the first sentence of art. 28 para. 2 Greek ICA, art. 1919(b) Italian CC, art. 83 para. 4 Spanish ICA, art. 74 para. 1 Swiss ICA).

Insurance for Whom It May Concern N10.  Several insurance contract laws refer to an insurance taken out for an insured who may be named or unnamed. No additional or different rules are provided for the latter case; in some laws it is mentioned by means of an explanatory provision that the regulations applying on the named insured are equally applied to the unnamed (see for example s. 80 para. 2 Austrian ICA, art. 77 Belgian IA 2014, the second sentence of art. 112-1 French ICA, s. 48 German ICA, the first and second sentences of art. 9 para. 1 Greek ICA, the second sentence of art. 808 para. 1 Polish CC, and art. 7 para. 1 Spanish ICA). Article 11:101 does not require the insured to be named and is therefore in line with these national laws.

Article 11:102 Knowledge of the Insured Knowledge of a person insured in accordance with Article 11:101 shall not be attributed to the policyholder, unless that person is aware of his status as insured, when the policyholder is obliged to provide relevant information to the insurer.

Comments Rationale C1.  Where an insured has knowledge of material facts unknown to the policyholder which he would have to disclose to the insurer if he took out the insurance himself, this would result in an undesirable situation under general rules: the policyholder would not have to disclose such facts since he is unaware of them, and the insured would not be under any obligation arising out of the contract since he is not a party to it. Thus, the designation of a third party as insured, a person who is more familiar with the risk than the policyholder, would be detrimental to the insurer. This would reduce the willingness of insurers to offer cover for third parties and might also increase the risk of collusion between policyholders and such third parties. C2.  In order to deal with this situation, insurers might introduce contract clauses equating the insured’s knowledge with that of the policyholder, thus triggering the policyholder’s obligation to disclose facts unknown to him but known to the insured. However, such clauses will lead to inappropriate results in some cases: where an insured does not know about the rights he is granted under an insurance contract there is no reason for him to disclose material facts. For example, why should a worker who does not know about the liability insurance taken out by the employer in favour of his employees disclose a criminal conviction, which employment law would not require him to disclose? Article 11:102 strikes a balance between

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the interests of the insurer on the one side and the policyholder and insured on the other, taking into account the latter’s knowledge of his position under the contract of insurance.

Relation with Article 1:206 C3.  An insured may at the same time be a person entrusted with responsibilities essential to the conclusion or performance of the contract as referred to in Article 1:206. In such a case that provision allows for the imputation of knowledge of such a person to the policyholder. While that person would be aware of those responsibilities, for example in the maintenance of fire alarm installations, he might not know that the employer’s fire policy does not only cover the risk of loss caused by fire, but also the liability of the policyholder’s personnel entrusted with the supervision of the fire alarm installations. Thus, an imputation of that person’s knowledge of the bad condition of the fire alarm installations to the policyholder would not be justified under Article 11:102, but his knowledge would be imputed to the policyholder under Article 1:206 which is grounded on a different rationale.

Elements of the Rule C4.  Under Article 11:102 knowledge of the insured is not equivalent to the policyholder’s knowledge as a matter of law. The provision is limited to giving effect to a clause in the policy which leads to an imputation of the insured’s knowledge to the policyholder, provided that the insured was aware of his status as an insured at the relevant time. C5.  The relevant time is to be determined in accordance with the provision of the Principles of European Insurance Contract Law or the clause of the contract that imposes certain duties of disclosure of information on the policyholder. Thus, when the applicant’s knowledge has to be ascertained at the time he answers the questions put by the insurer (see Article 2:101), the insured’s state of knowledge may become relevant under Article 11:102 if the insured knew about his status as insured at that time. If he becomes aware of being insured only later Article 11:102 does not allow for an imputation of his knowledge, and his later becoming aware will not lead to imputation of his knowledge retroactively to the policyholder. C6.  Article 11:102 also applies where an imputation clause refers to what the insured ought to have known and not only what he actually knew. Constructive knowledge of this kind on the part of the insured can only be attributed to the policyholder if the insured was aware of his status as insured at the relevant time. C7.  Article 11:102 is restricted to cases where the insured has actual knowledge of his status as insured, namely of the existence of cover in his favour. Constructive knowledge of that status is not sufficient.

Legal Consequences C8.  Article 11:102 provides for the imputation of the insured’s knowledge, but does not impose a duty of notification on him. Such a duty is explicitly laid down, however, in other provisions of the Principles of European Insurance Contract Law such as Articles 4:202

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and 6:101. In respect of these provisions, imputation of the insured’s knowledge to the policyholder will usually be redundant. Article 11:102 is mainly relevant where the Principles of European Insurance Contract Law or contract clauses or other applicable principles refer to the knowledge of, or information to be provided or actually provided by, the sole policyholder; see for example Articles 2:101 and 2:105. In the situations covered by those provisions the policyholder will be treated as if he had the knowledge of the insured.

Notes Imputation to the Policyholder N1. The imputation, in the context of notification duties, of the insured person’s knowledge to the policyholder flows from the principle that the promisor (namely the insurer) of a performance in favour of a third party (the insured) should not have less contractual rights than if he had promised the performance only for the benefit of his counterparty (the policyholder). A usual expression of that principle is that the promisor may assert against the beneficiary all defences which the promisor could assert against the promisee (see for example art. 5.2.4 of the UNIDROIT Principles, s. 882 Austrian CC, s. 334 German CC, art. 414 Greek CC, arts. 1413 and 1891 para. 3 Italian CC, the third sentence of art. 49 Luxembourg ICA, and the second sentence of art. 808 para. 2 Polish CC). As a consequence the insurer is also able to invoke, as against the insured, the breach of the notification duties related to the risk of the policyholder; see the Comments. N2. As between the promisor (insurer) and the promisee (policyholder) the latter’s obligations of disclosure and notification will generally not be reduced by the fact that the relevant knowledge is not vested in him, but in the insured designated by him. It is up to the policyholder to organise the flow of information from the insured to himself or to the insurer in an appropriate way. Therefore, rules and contract clauses providing for an imputation of the insured’s knowledge to the policyholder are common. But the rationale for that imputation is lacking when the insured does not even know about the existence of the insurance contract or about his status as insured under that contract. Therefore, some national insurance contract laws make an exception from the imputation principle in such cases, see s. 79 para. 1 Austrian ICA, the first sentence of s. 47 para. 2 German ICA, and art. 5 para. 2 Swiss ICA.

Direct Notification Duties of the Insured N3. The effect of an imputation is achieved, in other countries, by legal provisions which directly impose duties upon the insured, see for example s. 2788 para. 1 Czech CC, art. 7:941 para. 1 Dutch CC, s. 22 Finnish ICA, the second sentence of art. 9 para. 2 Greek ICA, s. 547 para. 2 Hungarian CC, art. 808 para. 2 Polish CC, and art. 7 Spanish ICA.

Article 11:103 Breach of Duty by One Insured Breach of duty by one insured shall not adversely affect the rights of other persons insured under the same insurance contract, unless the risk is jointly insured.

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Comments Rationale and Purpose C1.  Where one insurance contract protects the interests of several persons, one of them may breach his duties while the others comply with theirs. The question arises whether the breach affects the rights of all persons insured under the policy. For example, one of several apartment owners insured under a single fire insurance policy taken out for the whole building may breach his contractual obligation to ensure the regular maintenance of a gas heating system in his apartment while the other owners subscribe to a maintenance service. The question arises whether in the event of a fire caused by defects of the gas heating of the owner in breach the insurer should be entitled to refuse payment of the insurance money to that insured only or to the other co-insured owners as well. One may also think of an accident insurance taken out by an association in favour of its members; suppose the cover for new members is subject to their answering certain questions put by the insurer, and that one new member does not disclose information as he should. Then the question arises whether where several members are involved in an accident, the insurer should be entitled to decline cover to all of them on the ground that one has not given correct answers to the questions. C2.  The answer given by Article 11:103 is in the negative: the insurance relationship between the insurer and each insured is considered to be separate, so that a breach of obligations on the part of one of them does not affect the others. In other words, an “innocent” insured will not be affected by the breach of a co-insured’s duty under the same insurance contract.

Scope: the Policyholder as an Insured C3.  Article 11:103 applies if there is more than one insured under a single insurance contract. One of the insured persons may be the policyholder if his interest is protected under the insurance contract, see the definition in Article 1:202 para. 1. Where such a policyholder breaches an obligation under the contract the effect of that breach on other persons insured under the same contract depends upon the nature of the obligation breached. C4.  Where the obligation is incumbent upon the policyholder as the contracting party, the breach will affect the whole contract and consequently also the rights of other persons insured under it provided that the obligation in question is not intrinsically separable. This may relate, for example, to the incorrect disclosure of some material facts at the pre-contractual stage, see Article 2:101, or to the non-payment of the premium, see Article 5:103; in the latter case, the insured will, however, be entitled to avoid the consequences of the policyholder’s non-payment by paying himself, see Article 5:105. C5.  As distinct from these obligations there are others which have to be performed by the policyholder and any insured or other person who wants to derive rights from the contract likewise; see, for example, the notification duties in the case of aggravation of risk, Article 4:202, or after the occurrence of an insured event, Article 6:101. The rationale of such cooperation duties is not the position of the obligor as the contracting partner of the insurer, but his designation as a person entitled to the benefit of the insurance; this rationale

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also applies to the imposition of those duties to the policyholder. Consequently, where he breaches such an obligation in respect of his interest insured under the contract, but another insured does not with regard to his interest insured under the same contract, the policyholder’s breach will not affect the rights of the other insured in accordance with Article 11:103. C6.  Where the policyholder’s own interest is not protected by the insurance contract, he is not an insured, and Article 11:103 will consequently not apply. An illustration would be the accident insurance taken out by an association in favour of its members, see above Comment 1. Breaches of such a policyholder’s duties will invariably affect the whole contract and all insured persons in accordance with the relevant provisions of the Principles of European Insurance Contract Law. Article 11:103 will, however, apply to breaches of contractual obligations by a single insured irrespective of whether the policyholder is co-insured or not.

Scope: Group Insurance C7.  A significant field of application of Article 11:103 is group insurance taken out by one policyholder in favour of a group of persons who may be designated by their names or by general criteria identifying the insured persons, such as “employees of the policyholder” or “members of the policyholder” where the policyholder is an association. Here, Article 11:103 applies to the breach of an insured’s duties. Breaches of the policyholder’s obligations will be assessed in accordance with Comments 3 to 6. C8.  Where, however, group insurance is contracted by an agent of the various protected persons the resulting insurance contracts will come into existence between the separate policyholders and the insurer. Even where that occurs under a framework contract made by the agent with the policyholder the single persons protected are not “insured under the same insurance contract” as required by Article 11:103. But in such cases the single policyholders do not need to be protected by Article 11:103 either since their relation with the insurer is governed by individual contracts.

Relation to Article 1:206 C9.  The protection of the insured by Article 11:103 in the case of a breach of duty by another insured does not preclude imputation on other grounds. The insured who is in breach of duty may be entrusted with responsibilities essential to the conclusion or performance of the contract as referred to in Article 1:206. In such a case that provision would allow for the imputation of the insured’s knowledge to the policyholder who may be co-insured under the contract and would thus be affected also in that capacity. However, the knowledge of the person in breach could not be attributed to other insureds under that provision.

Legal Consequences C10.  The legal consequences of a breach of duty by one insured will not affect other persons insured under the same contract. For example, the discharge of the insurer’s obligation to cover the risk under Article 2:102 para. 5, Article 4:103 or Article 4:203, or the reduction of the insurance money in the case of refusal of claims cooperation, Article 6:102 para. 2, will be limited to the insured in breach and without effect as against other persons insured. In a

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similar vein, the termination of the insurance contract declared by the insurer will remain ineffective as against all insured persons except the one who was in breach. C11.  Illustration: A condominium located in a summer resort is insured against fire under a single policy; the apartments are owned by different persons insured under that policy. In winter when the apartments are not inhabited a fire occurs due to a short circuit and causes damage to several apartments. While the absent owners are not aware of the event, one of them is informed but fails to notify the insurer. While this owner will be subject to the consequences flowing from Article 6:101 para. 3, the other owners are not adversely affected. Suppose, however, that the owner who is informed is the caretaker who is entrusted by the condominium operator with the responsibilities under the insurance contract: in that case the consequences drawn by the insurer from the caretaker’s breach of notification duty would affect all owners because his knowledge would be attributed to the condominium operator, which is the policyholder, under Article 1:206. If the caretaker is entrusted, not by the operator, but by some owners only, his breach will affect the rights of these owners and not the other owners.

Joint Insurance C12.  Article 11:103 provides for an exception if the interest insured is a joint interest. This is the case where it is vested in more than one insured person, for example where it belongs to a community of heirs or to a partnership forming a “Gesamthand” under the laws of some Member States or to husband and wife living in the matrimonial property regime of “communauté de biens”. In such situations the limitation of the effects of a breach by one insured to this person cannot be put into effect because the legal rules applicable to the legal relation between that insured and the other insureds do not admit any separate affectation. If construed correctly, these regimes would not even allow for the single persons involved to be considered as insured; it would rather be the community of heirs, the “Gesamthand” or the “communauté de biens”, which would be insured. C13.  Illustration: A building is insured against fire; upon the owner’s death the property passes to his heirs, for example his widow who continues to live in the house, and two sons living in other cities. Under the applicable law of succession the heirs form a community of heirs which takes over the position of the policyholder and owns the estate until it is dissolved and the single assets are attributed to the individual heirs by agreement. Before such an agreement is made, a fire breaks out in the house destroying parts of it. The widow fails to comply with her duties of claims cooperation under Article 6:102 para. 1. The consequences of this behaviour, in particular the reduction of the amount of the insurance money payable (Article 6:102 para. 2), will by necessity affect the community of heirs as a whole, including the two sons.

Note According to art. 7 Swiss ICA, the breach of the pre-contractual information duties by one insured of a collective insurance does not, under certain circumstances, harm the interests of the other insureds. The wording of the article partially covers the case described by Article 11:103

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PEICL. In some other countries, the protection of the insured under a group policy usually is determined by contract terms and their interpretation rather than by statutory provisions (for France see Basedow/Fock-Völker 550). Sweden has however introduced statutory provisions for the protection of the insured in group insurances; see Ch. 17 to 19 ICA; a rule limiting the legal effect of the breach, by one insured, of his obligations to this insured can be found in s. 17 para. 2 of Ch. 17 ICA. The principle provided by Article 11:103 can also be found in Germany in s. 123 para. 1 ICA (applicable to mandatory motor liability insurance) and is accepted as a general rule of law applicable to all cases where several insured are grouped together under one contract for the benefit of a third-party (see Wandt, paras. 629 and 707).

Chapter Twelve: Insured Risk Article 12:101 Lack of Insured Risk (1) If the insured risk exists neither at the time of conclusion of the contract nor at any time during the insurance period, no premium shall be due. However, the insurer shall be entitled to a reasonable sum for expenses incurred. (2) If the insured risk ceases to exist during the insurance period, the contract shall be deemed to have been terminated at the time that the insurer is notified thereof.

Comments Structure and Position of the Rule C1.  Article 12:101 deals with situations where there is no risk for the insurer to bear, even if it wished to, because the insured event cannot possibly occur. This could be the case either throughout the whole insurance period (para. 1) or only over a certain part of it (para. 2). The difference between these two situations is obvious: whereas the insurer never bore any risk in the first case, it did bear the risk – although not for as long as expected at the time of formation of the contract – at least for a certain time in the second case. Hence, the legal consequences, notably the claims of the insurer are different. C2.  Article 12:101 belongs to the chapter on indemnity insurances and is therefore not applicable to insurances of fixed sums, not even by analogy. In the latter cases a solution may be found sometimes in the Principles of European Contract Law, particularly in Article 6:111 (“Change of Circumstances”). C3.  In view of the purpose of protecting policyholders it is necessary to regard Article 12:101 as a semi-mandatory provision, so derogations are only allowed for the benefit of policyholders. For example, the insurer may under para. 1 renounce its right to claim a reasonable sum for the expenses incurred, whereas under para. 2 an agreement, which entitles the insurer to claim premium for the whole insurance period even after being informed about the cessation of the insured risk, would be invalid.

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Non-Existence of Insured Risk C4.  If, for example, pictures are insured against theft during an exhibition which in the end never takes place, the insurer never ran the risk of paying insurance money. In such cases the insurer has no justifiable claim to the premium. However, a claim for expenses which arose in connection with the processing of the application is fair and reasonable. What “reasonable sum” means in this context has to be assessed by the court from case to case, for example by reference to industry average costs.

Cessation of Insured Risk C5.  Para. 2 deals, for example, with the case where an architect is insured on an occurrence basis against risks arising from his professional activities and dies during the insurance period. Here, the insurer bore the insured risk only until the time the architect died, thus it should only be entitled to premium corresponding to the time prior to the cessation of the insured risk. This means that Article 5:104 (“Divisibility of Premium”) applies accordingly. C6.  The legal consequence of para. 2, namely termination of the insurance contract, could in theory take effect at two different points in time: either at the time when the insured risk actually ceases (in the example under Comment 5 that would be the death of the architect) or at the time when the insurer gets notice of the cessation of the risk. Article 12:101 para. 2 adopts the second alternative. The reason for that is the practical consideration that it may be extremely difficult for the insurer to verify the cessation of risk. In order to get a premium refund, the policyholder might be tempted to allege cessation of the risk at a point in time prior to the actual cessation. Article 12:101 reduces the risk of false allegations by obliging the policyholder to notify the cessation. In any event, reliable information of this kind is important to insurers for an accurate assessment of their costs. C7.  Para. 2 also applies if a cessation of the insured risk is the result of an occurrence of the insured event, for example when an insured house burns down. In such cases, the insurer shall only be entitled to premium in respect of the period prior to the notification of the insured event. C8.  The cessation of risk referred to in the Principles of European Insurance Contract Law must be permanent. It would therefore not be sufficient, if, for example, the insured under annual travel insurance cancels one trip but could go on other journeys which would be covered. The same applies in motor vehicle liability insurance if the insured vehicle is just temporarily taken off the road.

Transfer of Title C9.  Transfer of title to property is not a cessation of the insured risk within the meaning of Article 12:101 but is subject to the special provisions contained in Article 12:102.

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Notes General N1. Most European legislation contains provisions dealing with the non-existence of the insured risk. The scope of the various rules differs from country to country. Some statutes are only concerned with the absence of the insured risk at the time of the formation of the insurance contract. Other legal systems take a broader approach, addressing also the problem of cessation of the risk subsequent to the conclusion of the contract. N2. Where the specific insurance contract law lacks an express provision (such as in Finland, France or in Sweden), recourse is sometimes had to rules of general contract law. In France, for example, it is argued that the non-existence of the insured risk falls under art. 1108 CC. According to this rule, any contract lacking an “objet du contract” is void (see Basedow/Fock-Völker 500).

Initial Absence of Risk, Article 12:101 para. 1 N3. Under several national laws, the insurance contract is generally void if no risk exists at the time the contract is concluded (see art. 79 para. 1 Belgian IA 2014, art. 1895 Italian CC, art. 32 para. 1 Luxembourg ICA, art. 806 Polish CC, art. 44 para. 1 Portuguese ICA, art. 4 Spanish ICA, and art. 9 Swiss ICA; in the United Kingdom see with respect to marine insurance s. 4 of the Marine Insurance Act 1906); in the absence of a valid contract no premium is due. In other countries, the statutory language does not provide for the nullity of the insurance contract; instead, the rules directly address the premium issue and state that the policyholder owes no premium (see s. 68 para. 1 Austrian ICA, art. 7:938 para. 1 Dutch CC, and s. 80 para. 1 German ICA). Generally, the same rules apply if the contract has been entered to cover a future risk and that risk never comes into being (see the express provisions in s. 68 para. 1 Austrian ICA, art. 79 para. 2 Belgian IA 2014, s. 80 para. 1 German ICA, art. 1896 para. 2 Italian CC, art. 32 para. 1 Luxembourg ICA, and art. 44 para. 3 Portuguese ICA). N4. Under certain circumstances, the forfeiture of the premium may be unfair to the insurer. Consequently, the majority of jurisdictions afford some degree of protection. In a couple of legal systems, the insurer is entitled to a fair sum to cover the expenses incurred (see s. 68 para. 1 Austrian ICA, the third sentence of art. 7:938 para. 1 Dutch CC, s. 80 para. 1 German ICA, the second sentence of art. 5 para. 2 Greek ICA, art. 1896 para. 2 Italian CC, art. 32 para. 2 Luxembourg ICA, and art. 44 para. 4 Portuguese ICA). In some countries, on the other hand, the insurer may claim the full premium where the policyholder was “at fault” when the contract was concluded, namely where the policyholder acted in bad faith or was under an inexcusable mistake (see art. 79 para. 3 Belgian IA 2014, the first sentence of art. 7:938 para. 1 Dutch CC, s. 80 para. 3 German ICA (only if the policyholder intended to obtain an unlawful pecuniary advantage), art. 32 para. 3 Luxembourg ICA, and art. 44 para. 5 Portuguese ICA). However, the insurer forfeits the entitlement as soon as he has notice of the non-existence of the risk. Switzerland follows a distinct rule, allowing the insurer to recoup the expenses incurred subject to the condition only that the policyholder acted in bad faith and the insurer itself was not aware of that fact (see art. 10 para. 3 ICA).

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Subsequent Cessation of Risk, Article 12:101 para. 2 N5. Only a minority of legal systems specifically addresses the issue of cessation of the insured risk during the insurance period. Austria, Germany and Italy adopt similar rules on this point. Essentially, the insurer is entitled to the premium up to the moment when he is given notice of the cessation of the risk (see s. 68 para. 2 Austrian ICA, s. 80 para. 2 German ICA, and art. 1896 para. 1 Italian CC). The Netherlands, on the other hand, take an approach more favourable to the policyholder. If no risk existed for a full insurance year, no premium is due for that year and the insurer may only claim reimbursement for the expenses incurred (the second and third sentences of art. 7:938 para. 1 Dutch CC). After the end of the insurance year either party may terminate the insurance contract within one month. Finally, in Spain it is debated whether the cessation of risk allows the policyholder to recover a proportional part of the premium or the insurer receives the whole premium amount (Bataller/Latorre/Olavarria 175).

Article 12:102 Transfer of Property (1) If the title to insured property is transferred, the insurance contract shall be terminated one month after the time of transfer, unless the policyholder and transferee agree on termination at an earlier time. This rule shall not apply if the insurance contract was taken out for the benefit of a future transferee. (2) The transferee of the property shall be deemed to be the insured from the time that the risk in the insured property is transferred. (3) Paras. 1 and 2 shall not apply (a) if insurer, policyholder and transferee agree otherwise; or (b) to a transfer of title by inheritance.

Comments The Need for a Rule concerning Transfer of Property C1.  If the policyholder transfers title to insured property, the transferee will in many cases have a legitimate interest in the maintenance of cover. For example, the purchaser of a house which is insured against fire should not lose cover just because the seller of the house (policyholder) is not interested any more in maintaining the cover, knowing that he cannot suffer an economic loss after the passing of the risk to the purchaser. It would therefore be inappropriate to simply apply the provision of Article 12:101 (“Lack of Insured Risk”) to such cases. The transferee must be protected against loss of cover, since there may not be time to conclude a new insurance contract or he may be unaware of his need for cover. C2.  For all this, it is clear that the automatic transfer of a person to an existing insurance contract does not solve the problem sufficiently: On the one hand, the insurer cannot be forced to accept a policyholder it does not want to insure. On the other hand, the transferee may have good reasons not to enter into the existing contract which possibly does not conveniently protect his (economic) interests. Thus, the Principles of European Insurance Contract Law opt for a flexible provision which meets the principle of freedom of contract as well as the need of the transferee for maintenance of insurance cover for a limited period.

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The Underlying Concept C3.  Transferees who have an economic interest in property shall in principle be protected during a transit time of one month whereas policyholders who – due the transfer of property – cannot suffer financial loss shall not be bound to an existing insurance contract which does not make legal and/or economical sense anymore for too long time. After the one month period the contract shall be terminated automatically. As a consequence the transferee is deemed to be insured under the policy held by the seller from the passing of the risk until one month after the transfer of title. C4.  Article 12:102 para. 2 stipulates that the transferee of the transferred property shall be deemed to be an insured under the existing insurance contract. That means that (unless otherwise agreed) the interests of, for example, a buyer of a house which was insured by the purchaser against fire is at least insured during the one-month-period after the time of transfer. By the end of that period, the transferee can be expected to recognise his need for insurance cover.

Non-Mandatory Character of the Rule C5.  The need for flexibility as described in Comment 3 may most suitably be met by establishing a non-mandatory provision. Article 12:102 para. 3(a) therefore provides that agreements between all three persons involved, namely insurer, policyholder and transferee, will override the provisions contained in paras. 1 and 2. C6.  Moreover, policyholder and transferee may agree between the two of them on an earlier time for termination. There is no need to protect the transferee if he agrees to such early termination of cover. C7.  A special case is addressed in the second sentence of para. 1. It refers to cases in which the insurance contract was specifically taken out for the benefit of a future transferee. This is often the case, for example, in transport insurance where the distance purchaser of goods (who is not yet their owner) agrees with the seller on a cif clause, under which the seller is obliged to insure the goods for the benefit of the purchaser. Here there is no automatic termination as provided for in the first sentence of para. 1.

Scope of Application C8.  Article 12:102 is only applicable to property insurance. The explicit reference to “property” makes clear that the scope of application of Article 12:102 cannot be extended to other kinds of indemnity insurance.

Inapplicability to Transfer of Title by Inheritance C9.  According to para. 3(b), the provisions of Article 12:102 paras. 1 and 2 shall not apply to transfer of title by inheritance. The reason for this exclusion is that Article 12:102 is only in line with cases where the transfer of property is based on a legal transaction. In contrast to that, solutions to cases of universal succession have to be found under general private law.

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The Fiction of an Insurance Contract for the Benefit of a Third Party C10.  The statutory fiction of an insurance contract for the benefit of a third party (Article 12:102 para. 2) clarifies three matters: first of all, the transferee is entitled to claim the insurance money; secondly, a policyholder who is paid insurance money in case of occurrence of the insured risk, is obliged to account for that money to the transferee. Thirdly, the policyholder and not the transferee of property has the duty to pay the premium to the insurer. In view of the short span of one month and the possibility to agree, for example, on a proportionate reimbursement of the premium by the transferee, there are no serious concerns against such a payment duty.

Application to Group Insurance C11.  The application of Article 12:102 is modified as far as group insurances are concerned, see Article 18:203 para. 3.

Notes General N1. The effects on the insurance contract resulting from the transfer of the insured good vary among the European legal systems. In essence, two distinct legislative approaches can be found. Some countries provide for the automatic termination of the insurance contract (usually after the lapse of a brief transition period) once the subject-matter of the contract is transferred to a new owner. In other countries, the insurance contract continues to be in force and the transferee of the insured property is substituted for the transferor by operation of law. However, it must be noted that the difference between the two rules is attenuated by two important aspects. First, in the legal systems following the “termination approach” the parties are generally allowed to agree on the continuation of the insurance contract. In a similar vein, the national laws adopting the “substitution approach” grant the insurer and the transferee the right to terminate the insurance contract. Thus, the parties may actually achieve the same outcomes under either rule. N2. The national rules dealing with insurance contracts in the case of transfer of property differ considerably in their scope of application. While in most jurisdictions the provisions are confined to inter vivos transfers, in other legal systems they may also encompass transfers by way of inheritance (see art. 121-10 French ICA and art. 37 Spanish ICA). In a minority of countries, the rules also apply to foreclosure sales (see s. 73 Austrian ICA, s. 99 German ICA, and art. 37 Spanish ICA). Not only do some legal systems differentiate on the mode of transfer, they may also provide special rules dependent on the insured good. Thus, for instance, chattel and real estate may be subject to distinct rules (see art. 57 paras. 1 and 2 Belgian IA 2014 and art. 69 paras. 1 and 2 Luxembourg ICA). Likewise, special rules may apply to the transfer of cars and other vehicles (see art. 121-11 French ICA, and for Italy see Cass. 25.9.1972, no. 2781, Foro it. 1973).

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The Termination Approach, Article 12:102 para. 1 N3. Belgium, Luxembourg and the Netherlands adopt the “termination approach” mentioned above: the insurance contract comes automatically to an end when the title to the insured property passes to a new owner (see art. 111 Belgian IA 2014, art. 7:948 para. 2 Dutch CC and art. 69 Luxembourg ICA). The United Kingdom also follows this rule: absent an assignment agreement, the conveyance of the insured property does not result in the passage of any rights under the insurance contract to the transferee: Rayner v Preston (1881) 18 Ch D 1. N4. In some of the aforementioned countries, however, the transferee may still be covered by the insurance contract for a brief transition period. Thus, in Belgium and Luxembourg, an insurance contract covering real estate remains in force for the benefit of the new owner for three more months following the conveyance (see art. 111 para. 1 Belgian IA 2014 and art. 69 para. 1 Luxembourg ICA). The same applies to any kind of insured good for a period of one month under Dutch law (see art. 7:948 paras. 1 and 2 CC). Similar rules can be found in Finland and Sweden. Here, the law is silent as to the consequences for the insurance contract in the event of the transfer of the insured good. Rather, it is left to the parties of the contract to decide whether or not the contract is to be continued. However, the law provides that, no matter what the policyholder and the insurer agree upon, the insurance cover will not end before the lapse of a mandatory transition period for the benefit of the transferee (see s. 63 Finnish ICA: 14 days if the new owner does not have insurance himself; and s. 2 of Ch. 9 Swedish ICA: 7 days).

The Substitution Approach N5. In other countries, the rights and duties under the insurance contract automatically pass to the transferee of the insured property. However, the transferee and the insurer may both terminate the contract (see s. 70 Austrian ICA, art. 121-10 para. 2 French ICA (not applicable to cars), s. 96 German ICA, art. 12 para. 2 Greek ICA, art. 1918 Italian CC (not applicable to cars), art. 95 para. 2 Portuguese ICA, art. 35 Spanish ICA and art. 54 paras. 2 and 3 Swiss ICA). Also, the insurer is not liable to the transferee unless he was notified of the conveyance in due course. However, an exception may apply to losses occurring within a brief transition period from the transfer of ownership: the transferee may recover these losses even if he failed to inform the insurer about the conveyance (see s. 71 para. 1 Austrian ICA and s. 97 German ICA).

Transferable Insurance Policies N6. Furthermore, it must be noted that a couple of legal systems contain special rules concerning insurance contracts taken out for the benefit of certain third parties. Italy and Spain provide that where the insurance policy is issued to order or to bearer the contract passes automatically to the transferee; no notification is required and no right of termination is available (see art. 1918 para. 5 Italian CC and art. 36 Spanish ICA). In the Netherlands, the rules on the termination of the insurance do not apply if the policy designates the transferee as the beneficiary of the insurance (see art. 7:948 para. 5 CC).

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Passing of Insurance Cover, Article 12:102 para. 2 N7. Where the law provides that the rights and obligations under the insurance contract pass to the transferee of the insured property, the language of the statutory provisions in question generally suggests that those rights and duties vest in the transferee the very moment the title to property is passed (see for example for Germany Wandt, para. 715; for Switzerland art. 54 para. 1 Swiss ICA). Only art. 7:948 para. 1 Dutch CC marks an exception: here, it is expressly provided that the rights and duties under the contract are passed to the acquirer “with the risk, even if the risk was passed on before transfer.”

Exceptions, Article 12:102 para. 3 N8. As already indicated at the outset, the rules on transfer of insured property generally leave a wide margin for party autonomy. Since the Principles of European Insurance Contract Law are generally conceived as mandatory this margin has to be specifically pointed out in this context which is not necessary in many national laws. Where default rules provide for the continuation of the contract with the transferee, the parties can exercise termination rights to end the insurance. On the other hand, the rules providing for the automatic termination of the insurance contract are generally not mandatory either (see art. 111 para. 2 Belgian IA 2014 and art. 69 para. 2 Luxembourg ICA (both with respect to chattel only) and art. 7:948 Dutch CC). In the United Kingdom, in particular, the transferee can succeed to the insurance contract on the basis of an assignment. The requirements for the assignment agreement differ to some extent, dependent on whether the assignment is based on statute (for example s. 136 of the Law of Property Act 1925, applicable in England and Wales), on common law rules, or on equity. In any case, the insurer must be notified and give its consent to the assignment of the insurance contract (see Clarke, Chapter 6). N9. As pointed out above in Note 2 there are provisions in some Member States which extend the application of the insurance-specific transfer of property regime also to inheritance which is however outside the scope of the Principles of European Insurance Contract Law.

Part Three: Provisions Common to Insurance of Fixed Sums Chapter Thirteen: Admissibility Article 13:101 Insurance of Fixed Sums Only accident, health, life, marriage, birth or other personal insurance may be taken out as insurances of fixed sums.

Comments C1.  The main characteristic of an insurance of fixed sums is that the sum agreed will be paid to the beneficiary upon the occurrence of the insured event, since, in contrast to indemnity insurance including valued policies (see Article 8:101 Comments 5 to 7), it does not

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matter whether the beneficiary has suffered any financial loss; see Article 1:201 para. 4. Thus, a “net profit” to the beneficiary when taking out insurance is possible and often intended which may give rise to undesirable incentives. For that reason, Article 13:101 restricts the taking out of an insurance of fixed sums to branches of insurance where no serious moral hazard is to be expected. It follows from the rationale of the rule that it cannot be derogated from either for the benefit of the insurer or for that of the policyholder; see Article 1:103 para. 1. C2.  The branches of insurance in question are listed in Article 13:101. All such branches are personal insurance where a monetary incentive will, at least under normal circumstances, not be strong enough to induce deliberate causation of the insured event by the beneficiary. The remaining cases can be left to the insurer’s discretion in agreeing the insured sum, and to criminal law. In branches not listed in Article 13:101, an insurance contract may be concluded as indemnity insurance only; consequently, the insurer shall not be obliged in those other branches to pay more than what is needed to indemnify losses actually suffered by the insured; see Articles 1:201 para. 3 and 8:101. C3.  Article 13:101 allows the insurance of fixed sums in the listed branches. It does not, however, prohibit the conclusion of indemnity insurance in those branches. In fact it is very common to conclude, for example, health insurance as indemnity insurance covering medical expenses.

Notes General N1. Insurance of fixed sums is a concept familiar to all European legal systems. The terminology varies among the different countries: Greece refers to it as insurance of fixed sums, while the Netherlands refer to it as “benefit insurance” (see the definitions in art. 27 para. 1 Greek ICA and art. 7:964 Dutch CC), Belgium and Luxembourg as “assurance à caractère forfaitaire” (see art. 55, 4° Belgian IA 2014 and art. 1(L) Luxembourg ICA). Some statutes lack a specific term and describe the insurance of fixed sums by contrasting it to indemnity insurance (see s. 1 para. 1 Austrian ICA and art. 1882 Italian CC): whereas indemnity insurance is designed to redress the losses arising from a particular event, the insurance of fixed sums involves the payment of an agreed-upon amount on the occurrence of a particular event. N2. Some countries adopt yet a different approach and refer to the insurance of fixed sums under the label of “personal insurance” given that insurances of fixed sums are generally only admissible for personal insurance (see art. 131-1 French ICA, art. 805 para. 2 p. (a) Polish CC, and part. III Swiss ICA). The same language could be found in Germany prior to 2008 (see the second sentence of s. 1 para. 1 former German ICA). In the meantime, the German legislator has abandoned this approach pointing to the fact that a personal insurance is not necessarily an insurance of fixed sums since it may also be taken out as indemnity insurance (see Wandt, para. 36). N3. In the United Kingdom, finally, the notion of insurance of fixed sums emerged from case law (see Clarke 3-6D; Colinvaux 18-04). Originally, in cases of life assurance the law was prepared to

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enforce contracts where the insured had no interest in the life insured, but that was halted by the passage of the Life Assurance Act 1774. Although s. 3 of that Act allows recovery from the insurer only to the extent the insured actually has an interest in the life in question, this provision was held not to apply to insurance on the life of a spouse. In practice, in many situations a beneficiary will recover in excess of their actual interest.

Content N4. Regardless of the terminological differences, the characteristic features of the insurance of fixed sums are common to almost all European legal systems. Unlike in the case of indemnity insurance, the amounts paid under an insurance of fixed sums bear no direct relationship to the extent of the loss suffered by the insured. Under some national statutes, this principle is expressly recognised (see art. 55, 4° Belgian IA 2014, art. 7:964 Dutch CC, art. 27 para. 5 Greek ICA, and art. 1(L) Luxembourg ICA). In the absence of an express provision, the principle can be derived from the fact that insurances of fixed sums are generally not subject to the indemnity principle, namely the rule limiting the recoverable compensation to the loss actually incurred by the insured. This conclusion can be drawn by way of a systematic comparison of the statutory provisions on indemnity insurance on the one hand and those on insurances of fixed sums on the other. A consistent pattern can be found: the statutes in Finland, France, Germany, Poland, Spain, Sweden, and Switzerland all implement the indemnity principle solely in provisions pertaining to the various forms of indemnity insurance; this indicates that the principle is inapplicable to insurances of fixed sums.

Relationship to Personal Insurance N5. Insurance of fixed sums is limited to personal insurance, the most common types being life and accident insurance. Generally, the insurance payments can take the form of a lump sum or an annuity (see, for example, s. 1 para. 1 Austrian ICA, art. 27 para. 1 Greek ICA, art. 1882 Italian CC, and art. 1 Spanish ICA).

N6. While it is generally true that an insurance of fixed sums is a personal insurance, the inverse statement, namely that a personal insurance is always an insurance of fixed sums, does not hold true. A personal insurance, for example accident insurance, may be also taken out as indemnity insurance. In this case, instead of paying an agreed sum, the insurer covers all losses arising from the accident. This option is expressly recognised under the Greek and the Portuguese statutes (see art. 27 para. 1 Greek ICA and art. 175 para. 2 Portuguese ICA) and it is also accepted in legal systems lacking a similar provision (see for Austria and Germany Bruck/Möller-Baumann, § 1 VVG para. 56).

Part Four: Liability Insurance Chapter Fourteen: General Liability Insurance Article 14:101 Defence Costs The insurer shall reimburse defence costs incurred in accordance with Article 9:102.

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Comments Underlying Principle C1.  The right of an insured faced with a claim by a victim should in principle include the right to the costs of his defence as well as any compensation payable. Indeed, the liability insurer must pay for these costs irrespective of whether or not the insured is actually adjudged liable to the victim. Article 14:101 makes defence costs subject to Article 9:102 as defending a claim is to be regarded as a special form of mitigation of loss. Under the PEICL, liability policies excluding the reimbursement of defence costs will not be possible.

Scope of Defence Costs C2.  Defence costs include the costs of litigation but are not confined to these. For example, a claim by a victim may be so clearly established in law that the case does not proceed to litigation and the insurer simply accepts liability on behalf of the insured. Nonetheless costs will be incurred by the insured and/or the insurer, even if these amount only to relatively minimal costs of investigating the victim’s claim.

Reasonableness of Defence Costs (Article 9:102) C3.  Article 9:102 requires the reimbursement of costs of mitigation to the extent that the policyholder or insured was justified as regarding the measures as reasonable. This principle of reasonableness has very important consequences in the context of defence costs. First, the test of reasonableness is to be judged from the point of view of the insured. If he reasonably thinks that the claim by the victim is ill-founded or that the compensation claimed is excessive, the insurer must respect his wishes even if the insurer would wish to settle the claim without incurring further costs. However, this must be subject to the insured’s view being one that a reasonable insured could hold. There can be no justification for holding an insurer liable for costs where the insured’s case would be regarded as baseless by a reasonable insured.

Reasonableness and Sum Insured C4.  Secondly, the principle of reasonableness applies to any term in the policy that gives the insurer control of the proceedings brought by the victim against the insured. Such terms are commonplace in liability insurance policies and may well give rise to conflicts of interest between the insured and the insurer. Situations may arise where the amount of compensation claimed by the insured and the defence costs will exceed the sum insured by the policy. For obvious reasons the insured may want to settle the claim for an amount (including defence costs) that is within that sum insured or hardly in excess of it. The insurer, on the other hand, may wish to continue to fight the claim, knowing that it is likely to have to pay out the maximum under the policy in any case. If the victim is willing to compromise, then the insurer that insisted on continuing to resist the claim would be in breach of the requirement of reasonableness. For the same reason, the insurer must not settle a claim by the victim if the insured reasonably protests that he is not in fact legally liable to the victim and that such a settlement would be adverse to his interests.

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C5.  The terms of the policy normally specify whether or not the costs of defence are included within the overall sum insured or whether they are separately insured up to a specified limit. However, such clauses are subject to Article 9:102 para. 2 which provides for a minimum standard. Where the compensation and defence costs exceed the sum laid down in the policy, the insured who has acted reasonably will be entitled to recover in excess.

Free Choice of Defence Lawyer C6.  The principle of reasonableness also provides the test for clauses of the liability insurance policy that restrict the policyholder’s choice of defence lawyer. While such clauses reflect the insurer’s legitimate interest in lowering the cost of defence, they may violate the requirements of good faith and fair dealing and therefore be invalid under Article 2:304, for example where the lawyer proposed by the insurer is unacceptable to the policyholder for personal reasons or where that lawyer is involved in a conflict of interest between the policyholder and the victim. In such cases, the employment by the policyholder of an independent lawyer may meet the standard of reasonableness under Article 9:102 even if that lawyer charges higher fees than the lawyer proposed by the insurer. The standard of reasonableness as applied here reflects the principle of free choice of the lawyer that is explicitly laid down for legal expenses insurance in arts. 201 and 202 of the Solvency II Directive (2009/138/EC).

Costs of Criminal Proceedings C7.  Whether or not defence costs incurred in criminal or disciplinary proceedings, as opposed to or in addition to civil proceedings, are covered depends primarily on the terms of the policy. However, Article 14:101 applies to the extent that a criminal court also determines civil liability. This is the case where the criminal court also has jurisdiction under its own law to entertain civil proceedings (cf. art. 7 no. 3 of the Brussels Ibis Regulation (1215/2012)) or where civil courts are bound by the findings of a criminal court.

Multiple Insurance C8.  Defence costs to be reimbursed under Article 14:101 may at the same time be covered under a legal expenses policy. In such case, Article 8:104 applies appropriately. The same would apply if there is more than one liability policy.

Article 14:102 Protection of the Victim Unless the victim gives consent in writing, his position shall not be affected by any settlement of the insurance claim under the policy by the policyholder or the insured and the insurer, whether by agreement, waiver, payment or an equivalent act.

Comments Underlying Principle C1.  It is of paramount importance that the victim is not affected by actions of the policy-

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holder or insured and the insurer that prejudice his claim. Article 14:102 makes it clear that these actions include any steps taken by the policyholder or insured and/or the insurer and not simply a formal binding agreement between them. To any such action the victim must give his consent in writing. C2.  It is common that the insurer pays the victim directly even in the absence of a direct claim. However, Article 14:102 covers a situation where the insurer makes payment to the policyholder or insured rather than directly to the victim, and this includes even the case where such payment is of the full amount of the victim’s claim. Payment by the liability insurer to the policyholder does not necessarily discharge the insurer.

Scope C3.  The provision is relevant only in cases where the victim does not hold a direct claim against the insurer in accordance with Article 15:101. By definition, an agreement or act of the parties to the insurance contract is without effect on an existing direct claim. However, the direct claim against the insurer is subject to a reduction in accordance with Article 15:104 if it is one out of several direct claims which in total exceed the insured sum.

Agreement on Defence Costs C4.  However, Article 14:102 does not apply to an agreement or equivalent regarding defence costs, since an arrangement between the policyholder or insured and the insurer in this respect is of no concern to the victim.

Article 14:103 Causation of Loss (1) Neither the policyholder nor the insured, as the case may be, shall be entitled to indemnity to the extent that the loss was caused by an act or omission on his part with intent to cause the loss; this shall include non-compliance with specific instructions of the insurer after the occurrence of the loss, if done recklessly and with knowledge that otherwise the loss would probably be aggravated. (2) For the purposes of para. 1 causation of loss includes failure to avert or to mitigate loss. (3) Subject to a clear clause in the policy providing for reduction of the insurance money according to the degree of fault on his part, the policyholder or insured, as the case may be, shall be entitled to indemnity in respect of any loss caused by negligent non-compliance with specific instructions of the insurer after the occurrence of the loss.

Comments Underlying Principle C1.  Para. 1 of Article 14:103 reiterates the rule of public policy that, whereas loss caused by negligence is coverable by insurance, loss caused intentionally or recklessly is not: see Article 9:101 Comments 1 to 3. For example, a roof repairer covered for negligent work is not covered where he damages a customer’s roof intentionally, motivated by malice or

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prompted by a cousin who is a competitor of the customer. On the other hand, the rule is not infringed by an act which is committed knowingly and willingly but without any intention to cause damaging consequences. Such act would be considered, for the purpose of para. 1, as negligent and hence insurable when viewed in the context of the work as a whole. For example, a roof repairer intended to install a certain kind of tile and did so, however, the tile was unsuitable for the work in question. C2.  Whereas, in accordance with the principle of freedom of contract, the policy may impose specific precautionary measures in accordance with Article 4:101 or exclude specific activities from cover, exclusion of the rule in Article 14:103 para. 1 shall be without effect. C3.  Para. 2 of Article 14:103 reflects the fact that often a clear line cannot be drawn between external events and the response to such events by policyholders or persons insured. Envisaged are cases where such persons deliberately make little or no serious attempt to avert or mitigate loss even though an attempt was perfectly viable, with the result that the extent of the loss is greater than it would have been if their response had been more effective. Such a case might arise where tiles on a building owned by the insured fall off and the insured knows that this is likely to happen again and cause damage, and nevertheless does not take any measures to avoid that.

Specific Instructions C4.  The reference in para. 3 to compliance with the specific instructions of the insurer rests on the presumption that liability insurers usually know how best to “salvage the situation”. Moreover, if the instructions are given by public authorities, such as the police, fire brigade, or army, a court seized of the issue may consider that such instructions have been accepted and adopted by the insurer concerned, and that the instructions should be complied with in accordance with para. 3. In principle, negligent non-compliance with such instructions does not affect the policyholder’s claim to full indemnity. However, the parties are entitled to derogate from this principle, if a term of the contract in question provides for a reduction of the indemnity in accordance with the degree of the policyholder’s fault. Thus, a total exclusion of indemnity in the case of negligence is without effect.

Relation to Article 6:102 C5.  While the specific instructions addressed in Article 14:103 para. 1 are intended to contain the consequences of the insured event and to prevent further loss, the request for information under Article 6:102 para. 1 is aimed at the retrospective investigation of the insured event.

Article 14:104 Acknowledgement of Liability (1) A clause in the insurance contract releasing the insurer from its obligations in case the policyholder or insured, as the case may be, accepts or satisfies the victim’s claim shall be without effect. (2) Unless it consents, the insurer shall not be bound by an agreement between the victim and the policyholder or insured, as the case may be.

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Comments Acceptance of the Victim’s Claim C1.  Some national laws require policyholders or insureds to observe “a duty of cooperation”.27 A specific instance of the duty might be that, although they may admit facts about what occurred, they must not accept or settle a victim’s claim without the consent of the insurer. Under such laws the policy may provide that, if the policyholder or the insured is in breach of duty in this respect, the insurer shall be released from all further obligations under the insurance. Such clauses, being unduly onerous for the policyholder or the insured, are without effect under para. 1 of Article 14:104. As a result, an insurer is not released from its duty under the policy.

Insurer’s Consent C2.  Article 14:104 para. 1 does not have the effect that the insurer is bound by the policyholder’s settlement with the victim. Para. 2 of Article 14:104 makes this clear. In order to bind the insurer, the settlement must be made with its consent. Such consent does not require any specific form.

Article 14:105 Assignment A clause in an insurance contract depriving the insured of his right to assign his claim under the policy shall be without effect.

Comments Interests Involved C1.  Whereas a person with liability insurance cannot assign the insurance, it may be in the interests of that person (and that person’s associates) that particular claims under the insurance be assigned. In particular, the insured may be interested in assigning a claim for 27

See, for example, art. 6:474 para. 1 Hungarian CC (note, however, that under para. 2 of the same article, the insurer shall not be released from its liability in case the claim, acknowledged or satisfied, is manifestly well founded) and art. 74 Spanish ICA. A provision similar to Article 14:104 can be found in s. 154 para. 2 of the Austrian ICA (however, this provision in general permits a contractual clause releasing the insurer from its obligation when the policyholder accepts the victim’s claim). Such clauses are invalid in Germany due to s. 105 ICA. For Belgian law concerning insurance contracts in general, see for example art. 74 IA 2014 (duty of the insured to inform the insurer immediately of any claim and to transmit any relevant information), art. 75 IA 2014 (concerning the insured’s duty to prevent and mitigate the loss); and concerning liability insurance, art. 144 IA 2014 (the duty of the insured to transfer documents about the claim immediately), art. 145 IA 2014 (the duty of the insured to show up in court when asked to do so). In the UK, in the case of liability insurance, the contract commonly contains a co-operation clause, in which the insured promises not to admit liability or to settle a claim without the consent of the insurer; see Terry v Trafalgar Ins Co Ltd [1970] 1 Lloyd’s Rep 524; and Rambharose v Bovell [2009] UKPC 6.

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indemnity to the victim who would thereby get a direct claim against the liability insurer. In the circumstances of the case, this might even be of vital importance for the relationship between the insured and the victim. C2  Insurers try to avoid procedural confrontation with a victim’s claim. They are afraid of collusion between the victim and the insured. For instance, under national procedural law, the insured may be able to testify in the (more effective) role of a witness instead of in the role of a party following the assignment of the claim. That is why some standard conditions of liability insurance declare the assignment of claims to be inadmissible.

Rationale C3.  Since, however, a claim for indemnity against an insurer is a part of the insured’s assets he should be free to dispose of that claim as he is in respect of other assets. There is in general no serious disadvantage to the insurer, assuming that the assignee acquires no better rights against the insurer than the assignor. Therefore clauses prohibiting assignment are nullified by Article 14:105. C4.  Insurers are moreover able to pursue their interests by other means. Apprehension about being confronted with unjustified claims can for example be reduced by no-claims-bonuses which provide an incentive to the insured not to assign and thereby lose control over claims against the insurer. Where the claims record is made accessible to other insurers (see Article 14:106), the insured will have to pay higher premiums over a number of years irrespective of a change of the insurer.

Article 14:106 No-Claims-Bonuses / Bonus-Malus-Systems (1) The policyholder shall have the right to request at any time a statement relating to his claims record for the past five years. (2) If an insurer makes the premium or other conditions dependent on the number or the amount of claims paid under the policy, due consideration shall be given to the policyholder’s claims record with other insurers for the past five years.

Comments Background C1.  It is commonplace in a number of different types of insurance for the insurer to reward the policyholder who has not made a claim with a discount on future premiums (a no-claims bonus). If no claim is made for a number of years, the discount over the amount of premium that would otherwise be charged can be quite substantial.

Transfer of Bonuses C2.  Furthermore, in this situation, such discounts may be transferable to a policy taken out with a new insurer and Article 14:106 para. 2 is to this effect (see below). Therefore,

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when a policyholder is considering changing his insurer, it is vital that he is able to obtain a statement of his claims record from his existing insurer so that he can produce this to a new insurer and Article 14:106 para. 1 confers such a right on him, which is exercisable at any time. This rule corresponds to art. 16 of the Solvency II Directive (2009/103/EC) and fulfils the principle that policyholders should receive equal treatment from insurers. The five year period is chosen because it achieves a fair balance and does not require an insurer to keep records for an unduly long period.

Claims Record C3.  Article 14:106 para. 2 requires a new insurer to give due consideration to the policyholder’s claims record with other insurers for the past five years when assessing the premium chargeable or imposing other terms. The latter might include any deductible payable by the policyholder in the event of a claim against him. However, as para. 2 makes clear, this is applicable only when the new insurer takes a claims record into account. C4.  For these purposes, claims include all claims which have actually been paid and recorded on the policyholder’s file by the insurer, irrespective of whether they were made by the policyholder, an insured or a victim by way of a direct claim.

Article 14:107 Insured Event (1) The insured event shall be the fact giving rise to the insured’s liability that occurred during the liability period of the insurance contract unless the parties to an insurance contract for commercial or professional purposes define the insured event with reference to other criteria such as the claim made by the victim. (2) When the contracting parties define the insured event with reference to the claim made by the victim, cover shall be granted in respect of claims made within the liability period or within a subsequent period of no less than five years and which are based on a fact occurred before the end of the liability period. The insurance contract may exclude cover on the basis that, at the time of conclusion of the contract, the applicant was or ought to have been aware of circumstances which he should have expected to give rise to claims.

Comments Background: Triggers for the Insurer’s Liability C1.  A distinctive particularity of liability insurance is that the insured event (the materialisation of the risk) may not be a single event but a gradual process that is spread out in time, during which the insured incurs liability to a victim. In this process different successive steps can be distinguished: (i) when the initial act of the insured causing damage (or another fact for which the insured is legally liable) occurs, (ii) when the latter leads to the actual occurrence of loss or damage to a third person (or, in slightly different versions, the phase in which such loss is “first sustained” or “first appears” or “becomes manifest”) and (iii) when the victim makes a claim for damages against the insured or (where the law allows it) directly against the liability insurer.

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C2.  The question which of the steps mentioned determines whether an insured event has occurred within the liability period of a given insurance contract (and is therefore the trigger) will either be decided by law or a clause in the insurance contract. As long as there is no mandatory rule of law, parties are free to choose the decisive step in their contract, including choice of a mixture or combination of steps or an intermediate step. C3.  For instance, the contract may be made on an act committed basis. In that case, the insurer will remain liable after the end of the liability period (posterior liability). Where, however, the contract is made on a loss occurrence basis, the insurer will be liable for losses occurring within the liability period even if the fact giving rise to liability took place before the liability period (anterior liability) and, in addition, for losses occurring within the liability period but giving rise to claims made only after it ends (posterior liability). The traditional solution in many countries28 was that contracts were concluded on an act committed basis.

New Arrangements for the Insurer’s Liability C4.  In the 1980s, the asbestos cases made the insurance and reinsurance world aware of the problems caused by the unlimited cover of long lasting, and sometimes even unforeseeable, “long tail risks” which might materialise decades after the end of the liability period. To cope with these problems, insurers have developed new formulas of coverage, like cover “on loss occurence basis”, but also by linking cover to the sole requirement that the claim for damages (against the insured or against the insurer) is made during the liability period (cover on “claims made basis”). C5.  Claims made policies in particular gave rise to debate. It was pointed out that they entail particular dangers for the insured. The main problem is that under a claims-made policy the question whether the insured will actually enjoy cover depends on what is for him a purely fortuitous condition, namely, whether the victim happens to make the claim inside or outside the liability period. If the liability period of the insurance contract happens to have expired at the moment when the victim lodges the claim, the insured will not get cover (unless special arrangements were made by the parties). What makes this problem even worse for the insured is that he will possibly not be able to benefit from a subsequent insurance contract with another insurer. Even if the insured is successful in finding a subsequent insurer, chances are that this insurer will exclude from the cover the consequences of all acts or of losses that occurred under the previous contract, especially if they were known to the insured when applying for cover with the subsequent insurer. Gaps in cover will emerge between the contracts.

28

See, for instance, Austrian practice in the field of pure economic loss liability insurance. In the UK, the act committed is the norm as a result of contract provisions in most types of liability insurance. Professional indemnity insurance is the notable exception to that. This seems to have been the traditional point of departure of the Swedish law. When the ICA was adopted in 2005, the legislature was well aware of the problems concerning the triggers for the insurer’s liability. However no step in favour of one or another solution was taken.

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Different National Solutions C6.  In some countries the introduction of claims made policies by insurers has given rise to highly critical reactions from the courts29, or from legislation30 which have either prohibited claims made policies or have submitted them to strict conditions. At present, the situation in the Member States is very different: Whereas in some countries the parties enjoy a high degree of freedom,31 in others the matter is dealt with by industry-wide standard terms and in some there are statutory rules. C7.  For example, in the Netherlands, the “General Policy Clauses” apply a loss occurrence system for private insurance, and a claims-made system for business insurance. The Dutch CC does not interfere with the core terms that state the essential description of the cover granted; the limitation of the cover in time, including the claims made principle, is considered to be such a core term. It is the practice in claims made insurance that the cover basically grants an extended claims reporting period of one year if the insurer exercises its right to terminate the contract. However, it is five years if termination is due to cessation of the professional activity of the particular insured. C8.  In Austria, the insured event is defined32 as the fact giving rise to liability. Standard contract terms may derogate from this definition. They often distinguish between various kinds of liability insurance: As for liability insurance covering the death of a person, personal injury and damage to property, the insured event is defined as the occurrence of the damage. If liability insurance covers pure economic loss only, the insured event is defined as the negligent act causing the damage. Claims made policies are used mostly in the case of D&O insurances. C9.  In Germany, the legislator refrains from giving a definition33 of what constitutes an “insured event” leaving a more precise definition to the standard terms of liability insurance, in which different “triggers” are used for different kinds of risks. For a number of categories of professionals, tailor-made solutions have been drafted. 29

In France the clause de réclamation (claims made clause) was considered to be illicit by the French Cour de Cassation (Cass. fr. 19.12.1990 (7 decisions), RGAT 1991, 155). In Spain, Tribunal Supremo (Supreme Court) in decisions of 20 March 1991, 23 April 1992, 14 July 2003, 1 December 2006, 28 May 2007 and 3 July 2009 voided claims made clauses. Also in Italy, courts were initially divided over the validity of claims made clauses. More recent case law (see, for example, Cass. 13.1.2005, no. 562 (Court of Cassation)) decided that such clauses are valid, but their validity is subject to the formal requirements that are imposed on some restrictive contract terms under art. 1341 para. 2 CC. In Greece, concerns regarding the validity of claims-made clauses have also been raised in legal insurance doctrine (see Rokas para. 268 ff.); there has been case law which has accepted the validility of a claims-made clause in the context of professional insurance contracts (see Athens Court of Appeal 110/2011, EEmpD 2011, 119). 30 In its original version, The Belgian ICA of 1992 imposed compulsory coverage on “act committed basis”, with unlimited posteriority coverage. 31 For example, in Finland, Germany, Hungary, the United Kingdom and Ireland. For Germany, BGH 26.3.2014, Versicherungsrecht 2014, 625. 32 S. 149 Austrian ICA. 33 See s. 100 German ICA.

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C10.  As a reaction to the decision by the French Cour de Cassation34 , comprehensive legislation on claims made polices has been introduced. According to the French ICA35 the parties can choose between two triggers, fait dommageable (fact giving rise to the liability) or réclamation (making of the claim), but the first is obligatory when the contract covers the liability of natural persons, except for professional indemnity insurance. Here, cover is conditional on the fait dommageable taking place during the liability period of the contract. French law36 further prescribes that under a claims-made policy cover is granted when the fait dommageable took place before the end of the liability period and the first claim was made (against the insured or the insurer) during that period or during a subsequent period which cannot be shorter than five years. Cover is refused if the policyholder was aware of the fait dommageable at the moment of the conclusion of the contract. C11.  In Spain, in response to the Supreme Court judgment37 the legislator intervened in 199538 and allowed a claims-made system but only if the policy provides for (i) cover for claims made within one year after the end of the contract for loss occurring during the contract period, or (ii) cover for acts committed within one year before the commencement of the cover. C12.  Under art. 142 Belgian IA (corresponding to art. 78 of the former ICA) in contracts for common risks such as motor vehicle liability insurance, or consumer liability insurance contracts it is compulsory for cover to be on a “loss occurrence” basis with unlimited posterior cover. In other contracts, parties may agree that cover will be limited to claims made during the contract period for losses that occurred during that period. However, if the parties so agree, cover will extend to claims made within thirty-six months after the end of the contract, if (i) these claims relate to loss occurring during the contract period and not covered by another insurance; or (ii) if acts or facts that may give rise to liability during the contract period were notified to the insurer before the end of the contract period. C13.  In Luxembourg,39 the insurance contract covers loss occurring during the contract period even if the claim is made after the termination of the contract. However, for all branches other than motor vehicle insurance, the parties may agree that cover will be limited to claims that are made within three years after the occurrence of the loss.

The Basic Rule (Article 14:107 para. 1) C14.  The PEICL set out a general definition of the insured event which refers to the fact which gives rise to the liability of the insured. If this fact occurred during the liability period of an insurance contract, cover will be due on the basis of this contract. The general definition applies in principle to all liability risks. However, here the PEICL make – contrary to their general approach – a distinction between consumer contracts and liability insurance 34

36 37 38 39 35

See above, note 29. Art. L. 124-5. Art. L. 124-5. See above, note 29. Art. 73 para. 2 Spanish ICA. Art. 81 Luxembourg ICA.

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contracts covering business risks. This is due to the nature of liability risks. In consumer liability insurance such risks have a standard character usually known to the insurer. By contrast, commercial and professionals risks, even those below the threshold of large risks, may be highly individual, involve large sums and materialise only after years. Often the policyholder has a better awareness of this risk than the insurer. The distinction made by the PEICL when it comes to liability insurance concerns the mandatory or non-mandatory character of the general definition.

Consumer Liability Insurance – Mandatory Rule C15.  In consumer liability contracts, like in UK home insurance or in insurance of liability arising from non-professional activities, there are rarely “long tail” risks. Losses usually occur and claims for damages will usually be made soon after the incident giving rise to liability has happened. Even in those cases where a long time elapses between the act causing the damage and the occurrence of the loss (for example, in cases of liability of a private person for damage to the environment), the insured will expect to be covered by the insurance contract operative when the fact giving rise to the insured’s liability takes place. Thus, Article 14:107 para. 1 contains a general rule for consumer contracts that the insured event shall be the fact giving rise to the insured’s liability. C16.  This rule implies that cover is effective if the fact giving rise to liability took place during the liability period, even if the loss to the victim occurred only later after the end of that period, and even if the claim against the insured (or where the law allows it, directly against the liability insurer) was lodged after the liability period. C17.  “Fact” is used in Article 14:107 to mean acts, omissions and other circumstances which give rise to liability.

Commercial and Professional Risks – Default Rule C18.  In commercial and professional liability insurance, the insured also expects the insurance contract to cover facts occurring during the liability period. In accordance with the law of some Member States and policy practice, the rule in para. 1 applies to insurance contracts for commercial or professional purposes as well. However, for the reasons explained in Comment 19, the parties must be allowed to derogate from the general rule, so when it comes to professional and commercial risks, Article 14:107 para. 1 is only a default rule. C19.  As regards insurance contracts for commercial or professional purposes long tail risks are more frequent, and also more problematic than they are for consumer liability contracts. Bearing in mind the diversity of the situations, the varying needs of the parties, and the particularities of specific risks and branches of insurance, it does not seem appropriate to impose the basic rule nor any other specific formula concerning the duration of cover. It would be unwise to utterly restrict the freedom of the parties in their search for adequate solutions. In addition, legal limitations that are too strict might impede new developments. The parties must have the freedom to derogate from the basic rule and to opt for one of the manifold solutions and formulae or a combination thereof. It is consequently up to the parties and to the insurance intermediary to be attentive to these problems. However, there

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are good reasons for making an explicit legal rule for those contracts where the parties have chosen a claims-made solution.

Claims Made Clauses C20.  Claims made clauses deserve particular attention because they are very common, they are often unclear and they entail serious dangers for the insured (see Comment 5, above). C21.  To deal with these problems, para. 2 contains a specific rule as regards the duration of cover in claims made policies. If the parties to a contract covering professional or commercial risks opt for a formula of cover on a claims-made basis, the contract is deemed to provide cover not only for claims made during the liability period but also for claims made during a subsequent period. It is up to the parties to determine the duration of this period but it can never be shorter than five years starting from the end of the liability period. C22.  The posterior cover applies where the fact on which the claim is based occurred before the end of the liability period and even if it occurred before the commencement of the liability period. The logic of a claims-made formula implies that there is anterior cover, namely for facts and even losses that preceded the insurance contract. C23.  The second sentence of Article 14:107 para. 2 allows the insurer to exclude the anterior cover. The insurance contract may exclude cover for all claims that are based on facts and losses that occurred before the liability period, if the applicant at the time of the conclusion of the contract was aware or ought to have been aware of them and he should have expected them to give rise to claims. The logic of a claims-made policy does not go so far as to oblige the insurer to extend the anterior cover to facts of which the applicant had actual or constructive knowledge at the time of concluding the contract. Whereas the insurer who contracts on a claims-made basis is obliged to give posterior cover of no less than five years, it can limit the anterior cover to only those facts which were unknown to the applicant.

Other Clauses C24.  The fact that Article 14:107 deals explicitly with the conditions and limits of a claimsmade policy does not imply that the parties have entire freedom with respect to the effects of other clauses which derogate from the general rule that prescribes cover on an act committed basis. Examples are clauses based on loss occurrence or clauses using other triggers or combinations of triggers. C25.  Whatever choice the parties make, they must take into account all the concerns which underlie the solution applied to claims made policies in Article 14:107 para. 2. In some Member States such clauses are submitted to an unfairness test as are other standard clauses. This is also the standard under the PEICL, see Article 2:304. Article 14:107 should serve as a guideline for the assessment of other clauses under Article 2:304.

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Article 14:108 Claims Exceeding the Sum Insured (1) If the total payments due to several victims exceed the sum insured, the payments shall be reduced proportionately. (2) An insurer who, being unaware of the existence of other victims, has in good faith paid out insurance money to the victims known to it, shall be liable to the other victims up to the balance of the sum insured.

Comments Rationale C1.  Unless an insurer offers liability insurance with unlimited coverage, its liability will be limited by the insured sum. Any claim exceeding the insured sum will not be fully covered and, thus, the victim(s) will have to recover the amount of the excess from the person liable under the law of torts. This applies in all cases irrespective whether it is the claim of a single victim or the aggregate of claims of several victims which exceed the insured sum. In the latter case the question arises which claim(s) will be covered in total or in part by the insured sum and which others must be recovered from the person liable. The law of obligations usually follows the “first come, first served” model. Following this principle, an insurer that pays out the insured sum to victim A would perform its obligation under the liability insurance contract and would not be liable for any further claims brought by victims B and C. C2.  This result appears to be unfair: There is no reason why a victim who is in a position to bring his claim relatively quickly against the person liable, for instance because he has only suffered damage to property, should enjoy the privilege of recovering under the liability insurance contract, whereas a person who is hindered from bringing a claim, for instance because he is severely injured and hospitalised, should have to claim in tort not covered by the insurance contract because the insured sum is exhausted. The law should not provide such incentives to rush to the courts. Equally, there is no convincing reason why a tortfeasor and/or his insurer should have the power to determine freely which of several claims brought at the same time will be covered under the insurance contract. This is why Article 14:108 distributes the insured sum proportionally among the victims in a way that is similar to the distribution of the assets of a bankrupt debtor to his creditors. C3.  Strict application of the proportionality rule under para. 1 would create the risk for the insurer of being held liable for more than the insured sum. This would be the case if further victims unknown to the insurer when the insurance money is distributed bring claims later. Such an outcome would be unfair. Thus, an insurer which acts in good faith and complies with the duty of equal treatment of all victims and pays out the insured sum will be protected against further claims brought later. Having obliged the insurer to distribute the insured sum proportionally, this protection is simply the other side of the coin.

Proportionality C4.  The only precondition for the application of the proportionality rule is the mere fact that the claims exceed the insured sum. Such being the case, Article 14:108 para. 1 provides

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for a proportionate reduction of each and every claim made. For example: Victim A suffered a loss of 1 million, B a loss of 2 million and C a loss of 3 million. This means a total loss of 6 million. The sum insured is 4 million which is the ultimate limit for all payments by the insurer. Thus, all payments must be reduced to 4/6 = 2/3 of their losses: A will receive 1/6 of 4 million, B 2/6 = 1/3 of 4 million and C 3/6 = 1/2 of 4 million. C5.  In cases where the insured has cover under more than one liability insurance contract, the insured sums must be added and Article 14:108 applied as though the aggregate insured sum were under one insurance contract only.

Multiple Events C6.  Article 14:108 typically applies where several victims of a single event, for instance an explosion, bring claims exceeding the insured sum. To what extent the same rule may be applied to cases where several victims of two or more events bring claims exceeding the insured sum (potentially also the aggregate sum for the current insurance period) has to be determined by the judge in the light of the circumstances of the case. A series of events may be considered as a single insured event or as several insured events (depending on the terms of the insurance contract, the length of the time between the events, questions of causation and so on). C7.  In general, an insurer will be required to treat victims equally also in such situations where several victims of two or more events bring claims exceeding the insured sum. On the other hand, it cannot be asked more than to act in good faith. For instance, if a series of acts committed by the insured is considered to be several insured events, Article 14:108 may be applied mutatis mutandis. Whereas, if a single event has taken place and the liability issue has been assessed, an insurer will neither be allowed nor obliged to withhold payment because of the mere possibility of another insured event occurring within the same insurance period.

Protection of the Insurer C8.  Protection of the insurer which pays for claims of victims known to it will depend on its acting in good faith. An insurer acts in good faith when it pays to known victims without negligently overlooking other victims. The application of the relevant standard of care will depend on the circumstances of the case. C9.  An insurer acting in good faith will be protected in cases where indemnification of known victims exhausts the insured sum as well as where a part of the insured sum has not been exhausted but is at the same time insufficient to cover the share the unknown victim would have received had the insured sum been distributed among all victims. For instance, where two victims known to the insurer bring claims for 1 million each and the insured sum is 1 million, each of them will be paid 500,000 and nothing will be paid to a third victim bringing his claim for yet another 1 million later. He will thus not be able to recover 333,333.33 he would have recovered had the insured sum been paid out proportionately in accordance with Article 14:108 para. 1. If, however, the insured sum is 2.5 million, the two victims known to the insurer will be fully covered and the third victim who brought

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his claim later will be covered for the remaining 500,000. He will, however, not be able to recover the 833,333.33 he would have recovered had the insured sum been paid out proportionally in accordance with Article 14:108 para. 1.

Chapter Fifteen: Direct Claims and Direct Actions Article 15:101 Direct Claims and Defences (1) To the extent that the policyholder or the insured, as the case may be, is liable, the victim shall be entitled to a direct claim for compensation against the insurer under the insurance contract provided that (a) the insurance is compulsory, or (b) the policyholder or insured is insolvent, or (c) the policyholder or insured has been liquidated or wound up, or (d) the victim has suffered personal injury, or (e) the law governing the liability provides for a direct claim. (2) As against the victim, the insurer may raise defences available under the insurance contract unless prohibited by specific provisions making the insurance compulsory. However, the insurer is not entitled to raise any defence based upon the conduct of the policyholder and/or the insured after the loss.

Comments Rationale C1.  A direct claim against the insurer is provided by para. 1 in order to streamline compensation procedures and to protect the victim. Such protection appears justified on the assumption that private liability insurance does not exclusively serve the interests of the policyholder and/or insured but at the same time also serves the interests of the victim representing a social dimension of liability insurance. This assumption is supported by the law of the Member States all of which provide for direct claims at least to a certain extent. While some grant victims a direct claim in any case40, others restrict it to motor vehicle liability insurance41 where a direct claim is provided following art. 18 of the Motor Vehicle Liability Insurance Directive (2009/103/EC) whereas other Member States apply interme-

40

The general principle of direct claims was developed by the courts in France (Cass. civ., 14.6.1926, DP 1927.J.57), and since 2007, art. L. 124-3 French ICA. See also art. 76 Spanish ICA and art. 150 Belgian IA 2014 (first introduced in 1992; which gives the injured party a “ius proprium” against the insurer in every type of liability insurance). Art. 151 Belgian IA 2014, however, makes a distinction between compulsory and non-compulsory liability insurance, but only as regards the contention of the defences of the insurer against the injured party. 41 See, for instance, s. 25 of the Austrian Motor Insurance Act; art. 10 para. 1 of the Greek Code on Motor Liability Insurance, see also n. 42; art. 6:473 para. 1 Hungarian CC and art. 28 para. 1 of the Hungarian Law on Motor Liability Insurance.

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diate solutions granting a direct claim only in a list of situations.42 In accordance with the social dimension of liability insurance, while at the same time seeking a compromise between the different solutions in the Member States, Article 15:101 lists the cases where a direct claim is granted. C2.  According to the concept underlying the PEICL, the direct claim does not provide the victim with more than what the insured is entitled to under the insurance cover. Thus, an insurer being sued directly by the victim will be able to rely on defences available under the insurance contract. Exceptions to this principle are left to specific provisions on compulsory liability insurance such as, for instance, art. 13 of the Motor Vehicle Liability Insurance Directive (2009/103/EC) deeming certain exclusion clauses to be void in respect of claims brought by victims. The only general exception in the second sentence of Article 15:101 para. 2 of the PEICL is intended to avoid moral hazard on the part of the policyholder and insured once the direct claim has come into existence.

Compulsory Insurance C3.  The victim enjoys a direct claim if the liability insurance has been taken out in compliance with a rule making it compulsory (para. 1(a); see also Article 16:101). In compulsory insurance the social dimension of protecting the victim is particularly important and usually justifies the imposition of an insurance requirement on the policyholder as well as granting the right of direct action for the victim.

Insolvency C4.  If the policyholder or the insured becomes insolvent the claim against the liability insurer following from an insured event would normally form part of the bankrupt estate of the policyholder or insured and would therefore be distributed among all creditors, the victim being only one of them and receiving only a share of it. Para. 1(b) prevents this result by giving the victim a direct claim which is not part of the bankrupt estate of the policyholder or insured and, thus, will allow the victim to recover damages up to the sum insured. This case of a direct claim appears to be justified because the victim deserves to be in a stronger position as regards the insured sum than other creditors of the policyholder or the insured. Moreover, several of those Member States which do not grant a direct claim in this case pro42

See art. 7:954 Dutch CC limiting a direct claim to loss as a result of death or bodily injury; s. 67 of the Finnish ICA providing a direct claim if 1) the insurance is statutory, 2) the insured has been declared bankrupt or is otherwise insolvent, or 3) the general liability insurance has been mentioned in marketing efforts launched to promote the insured‘s business; s. 115 of the German ICA providing a direct claim in all compulsory insurances if certain criteria are met. A similar position is encountered in Greece. Art. 26 of the Greek ICA (which does not apply to motor third party liability insurance governed by the Code on Motor Liability Insurance) provides for a direct claim of third parties in all compulsory insurances if certain criteria are met. Yet the stipulations of this provision have not been applied in practice so far due to non-issuance of the secondary legislation which is necessary for the implementation of such provision. See for Sweden, ss. 7 and 8 of Ch. 9 ICA. See also van der Sluijs, Direktkrav; Johansson/van der Sluijs, Direktkrav vid ansvarsförsäkring enligt den nya försäkringsavtalslagen (2006); and van der Sluijs, Studier i försäkringsrätt, 15-29. For further references, see also Bengtsson 389-393.

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vide that the victim has a priority interest in the rights of the policyholder or insured against the liability insurer.43 In these Member States the law is close to providing a direct claim.

Liquidation or Winding up C5.  Granting a direct claim in cases where the policyholder or insured has been liquidated or wound up (para. 1(c)) is based on considerations similar to the direct claim in cases of insolvency because the assets of the liquidated policyholder or insured are distributed among the creditors. Moreover, it will not be necessary for the victim to sue a legal entity which might have ceased to exist. Ultimately, para. 1(c) gives victims privileged access to the insurance claims held by the policyholder or insured.

Personal Injury C6.  Para. 1(d) grants a direct claim in all cases where personal injury has been suffered by the victim. This case is based on equitable considerations and provides for a strong social dimension in liability insurance. The victim suffering personal injury should not be compelled to first bring a claim against the tortfeasor who might be unable to satisfy the victim. This aspect is of particular importance in the case of personal injuries.

Law Governing Liability C7.  Finally, para. 1(e) grants a direct claim in cases where such a claim is provided for under the law governing liability. This provision may be of a declaratory nature only. Article 15:101 para. 1(e) PEICL follows art. 18 of the Rome II Regulation (864/2007): “[t]he person having suffered damage may bring his claim directly against the insurer of the person liable to provide compensation if the law applicable to the non-contractual obligation or the law applicable to the insurance contract so provides”. Among these two alternatives, the PEICL will cover only alternative 2 (the law applicable to the insurance contract) if chosen by the parties. Choice of the PEICL does not, however, have any impact on alternative 1 (the law governing the liability). Thus, the Rome II Regulation (864/2007) predicates that such a direct claim must be provided for and para. 1(e) avoids any conflict between the PEICL and art. 18 of the Rome II Regulation (864/2007).

Limits to the Direct Claim C8.  There are at least two “inherent” limits to a direct claim under the PEICL. The first concerns liability. The claim of the victim against the insurer should not go beyond the claim in liability against the insured (insurance follows liability). Thus, no direct claim is provided by Article 15:101 para. 1 where there is no liability on the part of the insured (above Comment 2). The second limit concerns cover. Subject to what is said in Comment 9, the direct claim will not provide the victim with more than what the insured is entitled to under the insurance contract. Consequently, as a matter of procedure, in a direct action 43

See s. 157 Austrian ICA; art. 3:287 Dutch CC granting the victim a priority interest in the rights of the policyholder or insured against the liability insurer in case of other types of loss than death and bodily injury.

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brought by the victim the court will have to ascertain both the existence of liability as well as corresponding insurance cover.

Defences C9.  It is debatable to what extent the insurer should be allowed to raise defences under the insurance contract as, for instance, discharge due to non-payment of premium or breach of precautionary measures by the policyholder, against the victim making a direct claim. Bearing in mind the “inherent limits” to a direct claim under the PEICL and as described in Comment 8, a victim should not benefit from insurance which does not cover liability of the insured. C10.  The only general exception refers to defences “based upon the conduct of the policyholder and/or the insured after the loss” (second sentence of Article 15:101 para. 2). The direct claim arises when the loss occurs and cannot be obstructed by the subsequent behaviour of the policyholder or the insured. Otherwise a moral hazard problem could emerge allowing the policyholder to get rid of the claim of the victim, for instance, by misconduct. Therefore, second sentence of Article 15:101 para. 2 prevents the insurer from invoking such defences against the victim. This will, however, not prevent it from relying on the misconduct of the policyholder or insured and thus having recourse against either of them. C11.  The picture changes fundamentally when it comes to compulsory insurance. Compulsory insurance primarily protects the victim against the inability of the policyholder or insured to pay damages. Thus, many national laws preclude the insurer from relying on defences under the insurance contract. The extent to which this is the case varies within the Member States and branches of liability insurance. Such rules will still apply even if the PEICL are chosen as the applicable law (see also Article 16:101 para. 2).

Article 15:102 Information Duties (1) Upon request by the victim, the policyholder and the insured shall provide the information needed for making a direct claim. (2) The insurer shall notify the policyholder in writing of any direct claim made against it without undue delay and, at the latest within two weeks following receipt of the claim. If the insurer breaches this obligation, a payment to or acknowledgement of debt towards the victim shall not affect the rights of the policyholder. (3) If the policyholder fails to provide the insurer with information about the insured event within one month of receiving notice in accordance with para. 2, the policyholder is deemed to agree to a direct settlement of the claim by the insurer. This rule also applies to insureds who have actually received such notice in time.

Comments Rationale C1.  Article 15:102 responds to situations of imbalance of information as between the three

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parties involved – the insurer, the policyholder or insured, as the case may be, and the victim. Para. 1 ensures that the victim obtains all information necessary from the policyholder and the insured to enforce a direct claim. Para. 2 ensures that a policyholder is informed by the insurer about any direct claim made by the victim so that the policyholder gets a chance to contribute to the settlement negotiations or even pay the claim personally. Para. 3 ensures that the insurer will obtain any information about the insured event known to the policyholder and relevant for the settlement of the direct claim.

Information Duty of the Policyholder and the Insured (para. 1) C2.  Unless there is a duty to insure, a victim cannot know whether the person liable has cover under a liability insurance contract and on which conditions exactly. Thus, victims will not know whether they have a direct claim, who is the insurer, what are the insured sums available, whether the insurer has been discharged and so on. A duty to inform the victim may result from the liability regime applicable as between the person liable and the victim which is not subject to the PEICL. Independently thereof, Article 15:102 para. 1 imposes a corresponding information duty on the policyholder and the insured. Thus, if the policyholder and the insurer agree on the PEICL in accordance with Article 1:102, they benefit the victim as a third party to the contract by making Article 15:102 applicable. C3.  What is “needed” must be decided in the light of the circumstances of the individual case. Usually, the existence of a liability insurance contract, the insured sums available and the scope of cover will be sufficient. Reasons for assuming that the insurer may be discharged may also be relevant. In general, a policyholder will have fulfilled the obligation under para. 1 by submission of copies of the contractual documents to the victim.

Information Duty of the Insurer (para. 2) C4.  A policyholder may not know that the victim has made a claim against the insurer directly. In this context, it must be noted that a claim is not only made when an action is brought against the insurer but also when it is notified to the insurer or if mechanisms of alternative dispute resolution are initiated, for example, when a complaint is filed with the insurance ombudsman. There is a clear interest of policyholders in learning about a claim made. First of all, they will want to contribute to the settlement negotiations. Secondly, they may wish to pay damages themselves if they fear that otherwise the premium will be raised or that they might even be without cover at all. Thus, para. 2 obliges the insurer to notify the policyholder of a claim made against it directly. Notice must be given without undue delay but no later than two weeks after the claim is made.

Sanctions C5.  If an insurer is in breach of its information duty, any settlement between it and the victim will not be binding on the policyholder. The latter may rely on the settlement but does not have to. Claims for compensation in accordance with Article 1:105 may also be available.

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Information Duty of the Policyholder (first sentence of para. 3) C6.  A policyholder who has been informed about a direct claim made against the insurer in accordance with para. 2 will be obliged to provide the insurer with information about the insured event. In principle, this follows from the general duty of the policyholder to cooperate with the insurer in the investigation of the insured event in accordance with Article 6:102. The first sentence of para. 3 goes even further and prescribes that a policyholder in breach of the information duty will be deemed to have agreed to the settlement. Thus, a policyholder will not be able to maintain against the insurer that a victim’s claim was unfounded, whether as a whole or in part.

Information Duty of the Insured (second sentence of para. 3) C7.  A corresponding duty to inform is imposed on the insured in the second sentence of para. 3. This duty arises when the insured has actually received a notice of the claim made by the victim in time. The term “in time” does not refer to the two-week period provided for in para. 2. It only requires sufficient notice to give the insured the chance to provide relevant information. C8.  Where the insured is in breach of this duty, he will be deemed to have agreed to a direct settlement of the claim by the insurer. This may lead to economic consequences such as an increase in premium for the policyholder.

Period for the Provision of Information C9.  An insurer relying on para. 3 will have to grant the policyholder or insured, as the case may be, a reasonable period of time for fulfilling the information duty. One month is deemed to be a reasonable time.

Analogous Application of para. 3 C10.  The first and second sentences of para. 3 only refer to the standard case where the policyholder or insured finds out about the direct claim being made by notification from the insurer. However, it applies equally whenever the policyholder or insured finds out about the direct claim being made by other means. An example would be where the insurer has notified the policyholder about the direct claim and the latter has forwarded such information to the insured.

Article 15:103 Discharge The payment of insurance money to the policyholder or insured, as the case may be, will only discharge the insurer from its obligation towards the victim if the victim (a) has waived his direct claim or (b) has not notified the insurer about his intention to make a direct claim within four weeks of receiving the insurer’s request in writing.

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Comments Rationale C1.  It has been mentioned that a primary purpose of the direct claim is to protect the victim upon an insolvency of the policyholder or insured, as the case may be (see Article 15:101 Comment 4). Such purpose would be undermined if the insurer could discharge itself as against the victim by paying insurance money to the policyholder or insured, as the case may be. Insurance money received by the policyholder or insured would form part of the assets of the payee and, thus, would be distributed among all of the creditors participating in the insolvency proceeding. The intention underlying Article 15:103 is to avoid such results.

Principle C2.  In principle, any payment made by the insurer to the policyholder or insured will not discharge the insurer as against the victim. The insurer will only be discharged if and to the extent that the insurance money is actually received by the victim.

Exceptions C3.  Article 15:103 sets out two exceptions where the insurer will be discharged. Both exceptions are based on the idea that a victim, who does not even intend to enforce the claim directly, should not be able to prevent an insurer from paying insurance money to the policyholder or insured. C4.  The first exception (in (a)) refers to the case where the victim has straightforwardly waived the right to claim compensation directly with the insurer. Once the right is waived, that is that. C5.  The second exception (in (b)) is similar. Where a victim does not show any interest in bringing a claim directly, even though requested to do so in writing by the insurer, the victim no longer needs protection against payments to the policyholder or insured. Under (b), the victim is granted a period of four weeks after the request of the insurer to bring the direct claim.

Article 15:104 Prescription (1) Action against the insurer, whether brought by the insured or by the victim, shall be prescribed when the victim’s action against the insured is prescribed. (2) The period of prescription for a claim made by the victim against the insured is suspended from the time, if any, that the insured becomes aware that a direct claim against the insurer has been made until the time that the direct claim is settled or unequivocally rejected by the insurer.

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Comments Rationale C1.  Article 15:104 adds specific provisions to the general rules on prescription, as set out in Articles 7:101 ff. It deals with specific aspects which most of all relate to the hybrid nature of a direct claim combining elements of insurance contract and liability law. Para. 1 seeks to bring in line the prescription period for a direct claim with the period for the underlying liability claim. Para. 2 gives parties (the victim and the insurer) time to negotiate and settle or reject the claim without having to be concerned about the prescription of the victim’s claim against the insured.

Prescription Period C2.  Para. 1 establishes a special prescription period for a direct claim against the insurer and subjects such a claim to the period of prescription applicable to the victim’s claim. This follows from the fact that the direct claim makes the insurer jointly and severally liable with the insured. It should not be possible for the victim to sue the insurer and collect insurance money at a time when his rights to claim damages against the insured are prescribed. C3.  The same applies to the claim of the insured under the insurance contract. Thus, an insurer will be able to raise prescription as a defence against both the insured and the victim. C4.  The prescription period for the liability claim against the insured will be determined by the law applicable to the liability. This law is to be determined in accordance with the conflict rules of Rome I Regulation (593/2008), where liability is contractual, or Rome II Regulation (864/2007), where liability is non-contractual.

Exception: Defence Costs C5.  Even if the victim’s claim against the insured is prescribed, the prescription itself may be the object of litigation between them which gives rise to costs. Defence costs incurred by the insured are mitigation costs as defined in Article 14:101. The insurer is obliged to cover those costs and will not be able to rely on prescription of the insured’s claim under Article 15:104 para. 1. Any other interpretation of the rule would contradict its purpose and that of Article 14:101. Moreover, it would deprive the insured of any incentive to invoke prescription which would also be against the insurer’s interests.

Suspension C6.  A victim with a direct claim will usually start negotiating his claim with the insurer. These negotiations should not be put under time pressure by the fact that the prescription period of the claim against the insured under liability law will keep running during the victim’s negotiations with the insurer. This is why para. 2 suspends prescription of this (the liability) claim from the time the insured acquires knowledge of the claim being made against the insurer until the settlement or final rejection of the claim.

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C7.  It must, however, be borne in mind that prescription of the claim of the victim against the insured is not subject to the PEICL but the law governing liability. Under that law, the insured will be entitled to raise the defence of prescription or not. By the agreement on the applicability of the PEICL, the insured agrees not to invoke prescription as against the victim as long as prescription is suspended under para. 2. This agreement is intended to benefit the victim who will be entitled to invoke suspension. Where the law which governs liability goes even further, the victim may rely on it. C8.  An important and intended effect of para. 2 is to preclude an insurer from negotiating the direct claim and ultimately relying on it being prescribed due to the prescription of the underlying liability claim in accordance with para. 1.

Chapter Sixteen: Compulsory Insurance Article 16:101 Scope of Application (1) The PEICL may be chosen by the parties to an insurance contract concluded in performance of an obligation to insure (a) prescribed by Community law, (b) prescribed in a Member State, or (c) prescribed in a Non-Member State to the extent allowed by the law of that State. (2) The insurance contract shall not satisfy the obligation to take out insurance unless it complies with the specific provisions imposing the obligation.

Comments Rationale C1.  Liability insurance has evolved as a voluntary transaction designed to avert the ruinous consequences civil liability vis-à-vis third parties may have for the policyholder. Over time, scientific and technological progress have considerably increased the risks inherent in certain activities and have given rise to new, formerly unknown and particularly risky types of action. Those engaging in such activities have often no sufficient means to meet the consequences of those risks or have tried to reduce their risk exposure, for example, by means of corporate veils. The consequence of these developments has been a shift of risks to third parties uninvolved in, but affected by, the policyholder’s activities. At the same time, this shift of risks could not be avoided by strengthening the liability regime by introducing strict liability of persons engaging in hazardous activities. C2.  Legislatures in many countries have tried to protect the third parties thus affected by subjecting the exercise of certain activities to the compulsory conclusion of liability insurance contracts. The activities thus affected, the scope of the liability insurance required, and the defences permitted differ from country to country; differences may even exist within a country in respect of the same activity as between various regions. But there are certain

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common features. In any event, compulsory liability insurance is meant to protect the third party suffering loss from the policyholder’s activity, and not primarily the policyholder.

The duty to insure and the applicable contract law C3.  It is not the purpose and beyond the scope of the PEICL to harmonise or unify the numerous and divergent duties to insure liability that exist in the European Union. These duties often form an integral part of the economic regulation of a trade or profession from which they can hardly be separated. However, the respect for specific regulatory requirements concerning for example the extent of cover or the exclusion of certain defences does not necessarily exclude the use of a common contractual framework such as the PEICL. C4.  In substance, art. 7 para. 4(a) of the Rome I Regulation (593/2008/EC) makes clear that a conflict between the applicable contract law and the law of the state imposing the obligation to insure has to be resolved in favour of the latter. This rule has inspired Article 16:101 para. 2; it is sufficient to safeguard the regulatory purpose of the duty to insure. C5.  The additional reservation for a Member State, permitted by art. 7 para. 4(b) of the Rome I Regulation (593/2008/EC), to prescribe that its own contract law governs an insurance made compulsory under its law, will not exclude the PEICL once it is accepted as an optional instrument through a European regulation. Such regulation will be “directly applicable in all Member States” in accordance with art. 288 para. 2 TFEU and will therefore form part of the law of each Member State. Consequently the requirement established by a Member State under art. 7 para. 4(b) of the Rome I Regulation (593/2008/EC) will encompass both the autonomous national contract law and the PEICL.

The Origins of Duties to Insure C6.  Compulsory insurance may result from duties originating in the law of the European Union, in the law of Member States, in the law of third States, or in private instruments such as a contract or the articles of an association. Article 16:101 does not aim at insurance obligations of the latter kind; they are of private origin and are therefore classified as voluntary for the purposes of the PEICL which can be used for such insurance contracts anyway. C7.  EU law itself has established obligations to insure for a number of activities including those of air carriers,44 users of motor vehicles,45 ship-owners46 or insurance intermediaries.47 Where a duty to insure arises from the law of the Union, insurance taken out to satisfy that duty may be based either on national contract law or on the PEICL. In other cases, EU law explicitly allows Member States to establish an insurance obligation as a condition precedent 44

Concerning the liability in respect of passengers, baggage, cargo and third parties see Aircraft Insurance Regulation (785/2004); for the carriage of mail see art. 11 of the Air Services Operation Regulation (1008/2008). 45 Art. 3 of the Motor Vehicle Liability Insurance Directive (2009/103/EC). 46 Art. 4 of the Maritime Insurance Directive (2009/20/EC); on the application of the PEICL to marine insurance see Article 1:101 Comment 7 and Notes 3 to 5. 47 Art. 4 para. 3 of the Insurance Mediation Directive (2002/92/EC), as amended.

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to the provision of services offered by foreign suppliers on their respective markets; this is for example the case for lawyers.48 Where host Member States make use of that permission the PEICL are equally available for the insurance contracts in question. C8.  Most duties to insure are laid down at the level of Member States, either in national law or at a lower level in instruments adopted by official entities invested with regulatory powers such as autonomous regions in federal Member States, municipalities or professional bodies. These obligations exist in great variety within the EU. In some Member States their number exceeds one hundred, in others there are not more than a few. Sometimes the instruments simply enunciate the duty to insure as such, in other instances the duty is specified in respect of the amount of the insurance sum, the persons to be covered, the defences permitted or excluded, and so on, by rules which affect the contractual relationship between the insurer and the insured. Article 16:101 para. 1(b) permits the parties to opt for the PEICL as the contract law governing their contract. This gives rise to problems of coordination, see below Comment 11. C9.  An applicant and an insurer, whether located inside or outside the European Union, may conclude the contract in view of a risk located outside the Union which is the object of a duty to insure established by the law of a third state. There is nothing in the PEICL to preclude the parties from using the PEICL for that purpose. However, the Union is not able to give an authoritative answer to the question whether a contract subject to the PEICL will satisfy the insurance obligation laid down in the third country. This is a matter to be decided by the law of that third State, as made clear by Article 16:101 para. 1(c).

The priority of national requirements, para. 2 C10.  Just as national contract law can be made compatible with the divergent rules on duties to insure adopted in a Member State (see above Comment 8), the PEICL can be reconciled with them. That is the purpose of Article 16:101 para. 2 which – contrary to Article 1:105 – gives priority to national law in the case of a conflict with the PEICL. This priority rule is necessary to make the PEICL applicable to insurance contracts satisfying duties to insure imposed by national law. In respect of the victim’s direct claim against the insurer the same principle is expressed in Article 15:101 para. 2 which excludes defences of the victim where specific rules of the law making the insurance compulsory so provide. C11.  However, para. 2 has the inconvenient effect of imposing additional costs in the drafting of insurance policies designed to satisfy duties to insure in different Member States. Take for example the case of an insurer who wants to offer cover for motor vehicle liability in respect of vehicles “normally based” in different Member States. The law of the “territory in which the vehicle is normally based” is relevant for determining the details of the duty to insure under art. 3 of the Motor Vehicle Liability Insurance Directive (2009/103/EC). Thus, that insurer will have to check the law of targeted Member States to find out, for instance, whether non-payment of the premium discharges the insurer from the duty to pay compensation to a victim suffering loss for which the policyholder is liable, whether there is an insurance sum exceeding the minimum amount established by the Directive and so on. It 48

Art. 6 para. 3 of the Lawyers’ Establishment Directive (98/5/EC).

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is up to the Union’s further harmonization efforts in this field to overcome the difficulties involved.

Part Five: Life Insurance Chapter Seventeen: Special Provisions for Life Insurance Section One: Third Parties

Article 17:101 Life Insurance on the Life of a Third Party An insurance contract on the life of a person other than the policyholder shall be invalid, unless the informed consent of the person at risk is obtained in writing and evidenced by signature. Any substantial later change to the contract, including a change of the beneficiary, an increase in the sum insured and a change in the duration of the contract shall be without effect without such consent. The same applies to an assignment of or encumbrance on the insurance contract or the right to the insurance money.

Comments Rationale C1.  It is common practice in all Member States that a life insurance contract may be taken out on the life of either the policyholder or a third person. Article 17:101 is based on this principle. Even though the provision refrains from stating in a positive manner49 that taking out a life insurance contract on the life of a third party is permitted, it only restricts but does not rule out such a possibility and, thus, accepts it implicitly. Indeed, there are many situations where insurances on the life of a third party serve important functions. For instance, an employer may take out life insurance on the life of employees in order to finance private pension schemes in favour of employees and/or financial support for their families in case of death. Such conduct should therefore be accommodated. C2.  If insurance is taken on the life of a third party, the policyholders conclude the insurance contract in their own names whereas the third person, upon whose life the policy is taken, is the “person at risk” as defined in Article 1:202 para. 3. Here the position of the person at risk poses two problems: Firstly, any insurance on the life of the third party creates an economic interest of the beneficiary in the death of the person at risk. Secondly, insurances taken out on the life of a given third party may be used as a kind of gambling or wagering. For instance, policyholders may pay premiums for gambling on the lives of famous persons such as the king or queen of a particular country. Article 17:101 seeks to solve both problems. 49

This is the case, however, in art. L. 132-1 French ICA and in s. 150 para. 1 German ICA. Art. 83 Spanish ICA allows the policyholder to conclude a contract on the life of a person other than the policyholder if informed consent of the person at risk is obtained in writing or if it is possible to presume such consent.

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Consent requirement: General aspects C3.  National laws have mainly applied two approaches to solving these problems. English50 and Dutch51 law only allow a policyholder to take insurance on the lives of persons in which they have an insurable interest. This should prevent parties from using life insurance as an instrument of gambling but also reduces any economic incentive of the beneficiary to kill the person at risk. Other legislators, for instance in France52 and Germany53, have established a statutory requirement that persons at risk give consent to the insurance taken on their lives. Article 17:101 follows the latter approach. While it requires an informed consent of the person at risk in writing, it does not require any insurable interest on the part of the policyholder or beneficiary in the life of the person at risk. Preference is given to the consent requirement because it is relatively easy to determine the existence of consent in writing and because the persons at risk should know best, who is acceptable as a beneficiary with an economic interest in their death. At the same time, pure gambling will usually not be possible if the consent in writing of the person at risk is required. In contrast, the English insurable interest doctrine as imposed by the Life Assurance Act 1774 has turned out to be a source of endless discussion and extensive litigation.

Consent in Writing C4.  Contrary to the general rule laid down in Article 1:301 para. 6 PECL, applicable to insurance contracts which are subject to the PEICL in accordance with Article 1:105 para. 2 PEICL, writing requires the autograph signature of the person at risk. Therefore, signature on behalf of the person at risk is excluded. Equally, this will rule out the use of electronic documents. This restriction is needed in order to make sure the contract is based on the genuine and undistorted consent of the person at risk, and forgeries are excluded as far as possible. However, the autograph signature may be replaced by an electronic signature within the meaning of the Electronic Signatures Directive (1999/93/EC).

50

S. 1 Life Assurance Act 1774 enacted to prevent a “mischievous kind of gaming”: “From and after the passing of this Act no insurance shall be made by any person or persons, bodies politick or corporate, on the life or lives of any person, or persons, or on any other event or events whatsoever, wherein the person or persons for whose use, benefit, or on whose account such policy or policies shall be made, shall have no interest, or by way of gaming or wagering; and every assurance made contrary to the true intent and meaning hereof shall be null and void to all intents and purposes whatsoever.” 51 Art. 302 former Dutch Civil Code relating to insurance required a material or ideal interest of the beneficiary to the life of the insured person. This requirement is supposed to still be valid under the new current CC. See Asser/Clausing/Wansink 479 ff. 52 Art. L- 132-2 French ICA. 53 S. 150 para. 2 German ICA. See also art. 74 para. 1 of the Swiss ICA. Consent is also the rule in some parts of the United States: Watson v Massachusetts Mutual Life Ins Co, 140 F 2d 673, 676 (DC, 1943— life), cert den 322 US 746. See however the special position of Belgian law: art. 102 IA 2014 states with respect to all insurance for a fixed sum (including life insurance) that the beneficiary must have a personal and legitimate interest in the non-occurrence of the insured event, while this interest is sufficiently demonstrated when the person at risk has given his consent.

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Informed Consent C5.  The first sentence of Article 17:101 requires the “informed” consent of the person at risk. This requirement is satisfied once the persons at risk know of the most important features of the policy taken on their lives so that they can properly evaluate the risk attached to the conclusion of such a contract. The first sentence of Article 17:101 does not list the information to be provided to the person at risk which will permit that person to make an informed choice. In general, informed choice will at least require that the person at risk is aware of the sum insured, the beneficiary, any security on the contract and the duration of the contract (see also the second sentence of Article 17:101).

Time of Consent C6.  Article 17:101 does not specify the point in time, when the informed consent has to be given by the person at risk. Thus, consent given before the conclusion of the contract will ensure the validity of the contract from the beginning. However, if parties enter into the contract without the consent of the person at risk, the contract is invalid as long as the consent is not obtained. Subsequent consent validates the contract retroactively. C7.  The requirement of obtaining informed consent will have a certain impact on the time when the consent is actually given. As stated (see Comment 5), informed consent requires that the person at risk is aware of the sum insured, the beneficiary, a security on the contract, if any, and the duration of the contract. It follows that the informed consent can only be given once these elements of the insurance contract are determined.

Application to Substantial Changes and Other Situations C8.  A consent requirement would probably not achieve its purpose if it was restricted to the original contract but was not applicable when the contract is changed thereafter. The parties could enter into a contract to which the person at risk happily consents but change the contract to the detriment of the person at risk by severely increasing the insured sum, exchanging the beneficiary for another, less trustworthy person, prolonging the insurance contract and so on. This is why the second sentence of Article 17:101 extends the consent requirement to any substantial change of the contract. C9.  Next to substantial changes of the contract itself, the third sentence of Article 17:101 also requires the written consent of the person at risk for any assignment or encumbrance be it on the insurance contract as a whole or the payment of the insurance money. This appears to be necessary in order to prevent parties from strategies circumventing Article 17:101.

Sanctions C10.  A contract which is concluded without the consent of the person at risk is invalid (the first sentence of Article 17:101). As stated (see Comment 6), an invalid contract can be validated if the consent requirement is fulfilled later. If consent is denied, the contract will remain invalid and the insurer will have to return any premium paid. At the same time, it will not have to pay out any insurance money should the insured event occur.

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C11.  In the case of subsequent amendments of the contract, the change or any assignment or encumbrance executed without the consent of the person at risk will be without effect (the second and third sentence of Article 17:101). Thus, the contract will continue to be in force as it was before the change, assignment or encumbrance.

Article 17:102 Beneficiary of the Insurance Money (1) The policyholder may designate one or more beneficiaries of the insurance money and may change or revoke such designation, unless the designation has been declared irrevocable. The designation, change or revocation, unless made in a will, shall be made in writing and be sent to the insurer. (2) The right to designate, change or revoke the designation shall end on the death of the policyholder or the occurrence of the insured event, whichever occurs first. (3) The policyholder or the heirs of the policyholder, as the case may be, shall be regarded as beneficiaries of the insurance money if (a) the policyholder has not designated a beneficiary or (b) the designation of a beneficiary has been revoked and no other beneficiaries have been designated or (c) a beneficiary has died before the insured event occurs and no other beneficiaries have been designated. (4) If two or more beneficiaries have been designated and the designation of any of them is revoked or any of them dies before the insured event occurs, the amount of the insurance money that would have been due to the beneficiary or beneficiaries in question shall be distributed among the remaining beneficiaries proportionately, unless otherwise specified by the policyholder in accordance with para. 1. (5) Subject to any rules on the nullity, voidability or unenforceability of legal acts detrimental to creditors laid down in applicable rules of insolvency law, the insolvent estate of the policyholder shall have no rights concerning the insurance money, the conversion value or the surrender value as long as the money has not been paid to the policyholder. (6) An insurer paying the insurance money to a person designated in accordance with para. 1 shall be discharged from its obligation to pay, unless it knew that the person in question was not entitled to the insurance money.

Comments Rationale C1.  Life insurance contracts are often concluded in favour of a third person, the beneficiary (Article 1:202 para. 2). The designation of a beneficiary may serve, for example, as a means of ensuring the financial well-being of family members or to make the insurance contract a security for a loan. C2.  Article 17:102 provides for situations where conflicts or practical difficulties may arise in the process of designation of the beneficiary and the allocation of the sums insured. Practical difficulties usually arise when the designation is either not clear (for example, “wife”,

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“partner”, “children”, “heirs”) or becomes obsolete (for example, death of a beneficiary). Conflicts often stem from the fact that there are of necessity three parties involved.

Scope C3.  A designation of a beneficiary under Article 17:102 para. 1 only relates to the insurance money paid upon the occurrence of an insured event. It does not cover the case where a surrender value is paid on termination of the contract. Such cases are covered by Article 17:103, according to which the policyholder may designate a beneficiary of the surrender value.

Designation and Change of Designation C4.  Article 17:102 para. 1 grants the policyholder a right to designate, unilaterally, one or more beneficiaries. This does not require consent of the insurer. Such designation is usually made at the time of concluding the contract but may also be made or altered later, even by will. C5.  Designation may be changed or revoked as long as the policyholder is alive. The right to revoke or change the designation exists irrespective of the fact that the initial beneficiary must be mentioned in the pre-contractual document (Article 2:201(b)) and in the insurance policy (Article 2:501(b)). If, however, the insured event occurs before the policyholder’s death, the right to designate will end immediately, para. 2. This may be the case if the insured event is the survival of the policyholder to a fixed point in time or where it is the death of a third party who is the person at risk. C6.  Some national laws exclude the possibility of revocation of the designation where it has been declared irrevocable but they also require that the beneficiary has accepted the nomination.54 Other national laws only require that the policyholder has declared the designation irrevocable without requiring acceptance by the beneficiary.55 For the purposes of the PEICL it is sufficient, bearing in mind the principle of individual autonomy, that the policyholder has declared the designation of the beneficiary irrevocable.

Form of Designation (para. 1) C7.  In general, the designation of a beneficiary must be made in writing and communicated to the insurer. This safeguards legal certainty and makes it relatively easy and cost-efficient to handle and administer insurance claims. By way of exception, the policyholder may designate the beneficiary in a will (see Comment 5). The form of the will is governed by the applicable inheritance law. Under the PEICL, a designation by will does not have to be communicated to the insurer to be effective. An insurer who – being unaware of the will – pays insurance money in good faith will be protected by para. 6. 54

See, for example, art. 1921 para. 2 Italian CC and (in a similiar sense) art. L 132-9 French ICA. See, however, art. 186 Belgian IA 2014 stating that revocation is possible as long as the beneficiary has not accepted the designation (there is no requirement of any declaration of (ir)revocability in the contract). 55 See, for example, s. 159 para. 3 German ICA, art. 6:478 para. 3 Hungarian CC and art. 87 Spanish ICA.

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Beneficiary in the Absence of Effective Designation (para. 3) C8.  Where policyholders have not made an effective designation, the beneficiaries are to be determined in accordance with para. 3. This provision is intended to fulfil the probable intention of policyholders, in line with the solution provided by many national laws. Thus, the PEICL do not stipulate the automatic transfer of the right of the beneficiaries to their heirs but instead return it to the policyholders or their heirs for further disposition. C9.  Para. 3 also applies where a purported designation is invalid, for example, for failing formal requirements or because of the mental incapacity of the policyholder.

Death or Revocation of One of Multiple Beneficiaries (para. 4) C10.  As an exception to the principle underlying para. 2(b) and (c), para. 4 regulates the case of the death or revocation of one or more beneficiaries. In this case, namely the automatic increase in the sums to be paid to other beneficiaries, the solution seeks to respect what would have been the will of the policyholder, when identifying more than one beneficiary. In any event, the policyholder may provide otherwise in the designation.

Effects of Insolvency Proceedings (para. 5) C11.  Where the policyholder becomes insolvent and a third person has been designated as beneficiary, the entitlement to the insurance money, the surrender value or conversion value, as the case may be, will not become part of the insolvent estate. The beneficiary will retain the rights acquired no matter whether the designation was revocable or irrevocable. The administrator of the insolvent estate has neither the right under Article 17:601 para. 1 nor any other rights under the policy (for example, alteration or cancellation of the contract). C12.  Where the policyholder becomes insolvent and is a beneficiary of the insurance money or the surrender or conversion value, as the case may be, and insurance money or the surrender value is effectively paid to the policyholder, this money will form part of the insolvent estate. As long as no such payment has been effected, the administrator of the insolvent estate neither has the right under Article 17:601 para. 1 nor any other rights under the policy (for example, alteration or cancellation of the contract). Likewise, rights to future insurance money, conversion or surrender value do not form part of the insolvent estate, unless otherwise provided by applicable national insolvency law. C13.  Para. 5 provides for asset protection intended to maintain the wellbeing of the family of the policyholder. Potential abuses of the asset protection are subject first to the reservations of national insolvency laws and second to the general principle of fraus omnia corrumpit. The rules of national insolvency laws on the nullity, voidability or unenforceability of legal acts, which are detrimental to all creditors, have not yet been harmonised and are left to national laws by the European Insolvency Regulation (art. 4 para. 2(m) of the Insolvency Regulation (1346/2000/EC); lex fori concursus). C14.  Where a creditor takes steps to enforce payment outside insolvency proceedings, para. 5 is irrelevant. Debtors (policyholders) retain access to all of their assets and may be

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required in such situations to satisfy the creditors from assets other than the rights under the policy. If policyholders decide not to make available other assets in order to satisfy creditors and use rights under the policy instead, this would amount in substance to a revocation of a designation that has not been made irrevocable. If, in contrast, beneficiaries have been designated irrevocably, rights under the policy are vested in them and no longer form part of the assets of policyholders. Thus, creditors of policyholders will not be able to seize such rights.

Discharge (para. 6) C15.  Where a beneficiary has been designated in accordance with para. 1, the insurer will usually know the identity of that person, since it has received written notice of the designation. When paying the insurance money to the designated person, the insurer’s belief in the right of that person to receive the money will be justified. However, the designation may be null, for example, where it was revoked in a subsequent and undisclosed will or because the policyholder made the designation in a state of mental incapacity. In such situations, the insurer’s belief in the right of the designated beneficiary deserves protection. Thus the insurer will be discharged by para. 6, unless it knew that the recipient of the payment was not entitled to it. C16.  The insurer is only precluded from relying on para. 6 where it had actual knowledge that it paid the insurance money to the wrong person. It is not sufficient that the insurer merely ought to have known it. The insurer’s knowledge of the truth or the facts allowing the inference of this knowledge has to be proved by the person who claims that the insurer is not discharged, which will usually be a person claiming to be the true beneficiary. C17.  Article 17:102 para. 6 discharges the insurer but does not govern the question whether the true beneficiary may claim the insurance money from the recipient. This question is governed by the applicable national law of unjust enrichment.

Article 17:103 Beneficiary of the Surrender Value (1) Irrespective of a designation under Article 17:102, the policyholder may also designate a beneficiary of the surrender value, if any, and may change or revoke such designation. The designation, change or revocation shall be made in writing and be sent to the insurer. (2) The policyholder shall be regarded as the beneficiary of the surrender value if (a) no beneficiary of the surrender value has been designated or (b) a designation of a beneficiary of the surrender value has been revoked and no other beneficiaries have been designated or (c) a beneficiary of the surrender value has died and no other beneficiaries have been designated. (3) Article 17:102 paras. 2, and 4 to 6 shall apply mutatis mutandis.

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Article 17:103 Beneficiary of the Surrender Value

Comments Rationale C1.  The policyholder may wish to keep, even in the case of designation of a third person as beneficiary of the insurance money, control of the insurance contract and of a potential claim to the surrender value. Where the life insurance is, for example, meant to provide financial support to the policyholder’s family in the case of the policyholder’s own death, he may nevertheless prefer to reserve the surrender value for himself (or someone else), if he, being the person at risk, decides during his lifetime to terminate the contract and to claim the surrender value. Article 17:103 therefore allows the policyholder to designate two different beneficiaries, one for the insurance money that falls due in the case of the insured event under Article 17:102, the other for the surrender value that may be claimed until occurrence of the insured event under Article 17:103. Thus, the policyholder remains in control of the investment until the occurrence of the insured event. C2.  The designation of a beneficiary of the surrender value is independent of the designation of a beneficiary of the insurance money. Even where the latter designation is irrevocable, the policyholder may still designate another beneficiary with regard to the surrender value. This possibility reduces the value of an irrevocable designation of a beneficiary of the insurance money. Where a beneficiary of the insurance money wants additional security, he has to solicit a further irrevocable designation of himself as beneficiary of the surrender value.

Revocation and change C3.  Unless declared irrevocable, the designation of the beneficiary may be revoked and changed at any time by the policyholder. Revocation is sent to the insurer by written declaration. Writing includes electronic documents such as emails, see Article 2:301 Comment 6 of the Principles of European Contract Law. Other forms of writing, e.g. wills, are not sufficient. C4.  While the policyholder may revoke the designation at any time, revocation cannot be effected by heirs where the insured life is that of a third person and the policyholder dies before the person at risk, see the cross-reference in para. 3 to Article 17:102 para. 2. The policyholder’s designation may be part of overall estate planning which heirs should not distort by posthumously changing the beneficiary, and claiming the surrender value for themselves or for any other person. Thus, the heirs, while inheriting the right to claim the surrender value, may only do so in favour of the beneficiary designated by the deceased.

Default Rule (para. 2) C5.  The policyholder is not compelled to designate a beneficiary of the surrender value. He may simply have abstained from doing so, he may have revoked a previous designation, or the beneficiary previously designated may have passed away – in all of these situations the question arises of who will be entitled to the surrender value. In all these cases the

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policyholder is the person entitled – and not the beneficiary of the insurance money even where such designation has been made.

Cross-references (para. 3) C6.  Para. 3 refers to certain provisions laid down in Article 17:102 in respect of the designation of a beneficiary of the insurance money, stating that they shall apply to the designation of a beneficiary of the surrender value mutatis mutandis. In particular this concerns the entitlement of the policyholder’s heirs to change a designation made by the policyholder (Article 17:102 para. 2, see above Comment 4). While the heirs lack the right to designate another beneficiary, they are entitled to the surrender value in their capacity as heirs, provided that the policyholder was the beneficiary of the surrender value and has failed to designate another beneficiary in case of his death. The cross-reference also concerns the problems arising from the designation of more than one beneficiary (Article 17:102 para. 4), the role of the surrender value in the insolvency of the policyholder’s estate (Article 17:102 para. 5) and the discharge of the insurer which pays a person who had been designated in accordance with Article 17:103 para. 1 (Article 17:102 para. 6).

Article 17:104 Assignment or Encumbrance (1) Where a beneficiary has been irrevocably designated, an assignment of or encumbrance on the insurance contract or the right to the insurance money by the policyholder shall be without effect unless the beneficiary has consented in writing. (2) An assignment of or encumbrance on the right to the insurance money by a beneficiary shall be without effect unless the policyholder has consented in writing.

Comments Rationale C1.  Where a beneficiary has been designated, both the policyholder and the beneficiary are entitled to rights flowing from the contract. Each of them therefore has to be protected against certain dealings, such as assignments and encumbrances by the other, that may affect their rights. Article 17:104 provides that protection by requiring the other’s consent to such dealings.

Action of the Policyholder C2.  An irrevocable designation confers a vested right on the beneficiary. This is why para. 1 of Article 17:104 requires written consent by such a beneficiary to an assignment or encumbrance by the policyholder.56 In contrast, a revocable designation is subject to amend56

PEICL’s position in this respect (namely the requirement for consent of the irrevocably designated beneficiary) and others reflects a general principle of contract law which has received special statutory enactment in some countries; see, for example: art. 117 para. 2 Belgian IA 2014 (regarding encumbrance) and art. 119 para. 2 Belgian IA 2014 (regarding assignment), s. 51 Finnish ICA (regarding

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ment by the policyholder and therefore the beneficiary is not entitled to this protection. In such case, an assignment or encumbrance would amount to a revocation of the beneficiary’s designation. An assignment or encumbrance by way of security revokes the designation of the beneficiary only for the period of the security.

Action of the Beneficiary C3.  Para. 2 mirrors the provision of para. 1 by protecting the policyholder against actions of the beneficiary. The provision gives the policyholder control of the ultimate allocation of the insurance money even in cases where the beneficiary has been designated irrevocably. This is particularly important in the common case where the policyholder is also the person at risk. If the life insurance contract is taken on the life of a third party, there is an additional requirement of the consent by the person at risk under the third sentence of Article 17:101.

Consent C4.  Consent may be given at any time. Usually this consent will be given when the beneficiary or policyholder, as the case may be, wants to effect an assignment or encumbrance. However, it may also be given, for example, at the time of the designation of the beneficiary, at the time of the conclusion of the life insurance contract or even after an assignment or encumbrance by subsequent approval. An assignment or encumbrance in violation of the consent requirement under para. 1 or 2 shall be without effect.

Effect of Assignment and Encumbrance C5.  An assignment of or encumbrance on the insurance contract or the right to the insurance money effects, in principle, a transfer of the claim for insurance money. If the transferee dies before the insurance money becomes due, subject to any provision to the contrary in the assignment, the encumbrance or the consent, the rights arising from the insurance contract shall form part of the transferee’s estate in accordance with the applicable law of succession.

Article 17:105 Renunciation of Estate Where a beneficiary is an heir of the deceased person at risk and has renounced the estate, the sole fact of renunciation does not affect his position under the insurance contract.

Comments Background C1.  Where the estate of a deceased person at risk is insolvent, an heir is likely to renounce the estate in order to avoid liability. With this background in mind, such a renunciation cannot be interpreted as including a rejection of the claim as a beneficiary under the life insurassignment and encumbrance) and art. 116 para. 2 Luxembourg ICA (regarding encumbrance) and art. 118 para. 2 Luxembourg ICA (regarding assignment).

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ance contract. After all, accepting the insurance money will not raise any liability for debts of the deceased person at risk. Article 17:105 applies this rule of construction by providing that renunciation of the estate in itself does not affect that person’s status as beneficiary. C2.  This is not a consequence of the law of succession but of the insurance contract concluded as a contract inter vivos in favour of a third party. This difference subsists even where the policyholder has designated “my heirs” as beneficiaries and in cases where the heirs are deemed to be beneficiaries under Article 17:102 para. 3.

Rule of Construction C3.  Article 17:105 only establishes a rule of construction which will not apply if the beneficiary makes it clear that he not only refuses the inheritance but the claim to the insurance money as well. This may be the case where an heir rejects any ties to the deceased person at risk.

Relationship with Insolvency Law C4.  The extent to which the insurance money can be allocated to the insolvent estate is a matter of insolvency law, see para. 4. For instance, the conclusion of the insurance contract and/or the payment of premiums may be subject to the rules on nullity, voidability or unenforcability of legal acts detrimental to all the creditors.

Section Two: Initial Stage and Duration of the Contract Article 17:201 Applicant’s Pre-contractual Information Duties (1) The information to be provided by the applicant in accordance with Article 2:101 para. 1, shall include those circumstances of which the person at risk was or should have been aware. (2) The sanctions for a breach of pre-contractual information duties under Articles 2:102, 2:103 and 2:105, but not under Article 2:104, shall only be available for five years after the conclusion of the contract.

Comments Rationale C1.  Whereas Articles 2:101 to 2:106 concerning the applicant’s pre-contractual information duties are, in principle, applicable to all insurance contracts, Article 17:201 contains two rules which take account of special features of the life insurance contract.

Information about the Person at Risk (para. 1) C2.  The disclosure requirement in Article 17:201 para. 1 is due to the nature of a life insurance contract in which it is possible to insure the life of a person other than the policyholder

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(the “person at risk”). In such a contract, the insurer must be able to evaluate the risk relating to that person and obtain the relevant information. C3.  Article 17:201 para. 1 prescribes that the information which must be provided by the applicant by virtue of Article 2:101 para. 1 includes those circumstances of which the person at risk was or should have been aware. Technically, this is similar to the solution applied in Article 2:101 para. 2 where an insurance contract is made for the benefit of a third person. Relevant information which is known or ought to be known by the person at risk is deemed to be known by the policyholder himself. This will encourage the policyholder to seek with the person at risk the information required to answer the insurer’s questions. Misrepresentations by the person at risk will be imputed to the policyholder.

Indisputability (para. 2) C4.  Para. 2 introduces a time limit for the invocation of sanctions provided in Articles 2:102, 2:103 and 2:105 for the breach of pre-contractual information duties. Several national laws57 limit the right of the insurer to terminate a life insurance contract, where the applicant has violated the duty of disclosure, to a fixed time limit, except in case of fraud. In other countries58 where such a rule does not exist, an exclusion clause to the same effect is usually contained in the contract (the so called clause d’incontestabilité). Article 17:201 para. 2 is a mandatory rule, of a kind found in several national laws. C5.  There are a number of justifications for such a rule. Life insurance contracts typically run for a long time and it would be incompatible with the social function of these contracts that after a sufficient length of time an insurer, except in case of fraud, could still invoke sanctions for a breach of disclosure duties at the time of the contract’s conclusion. This applies with particular force to life insurance contracts taken out to construct pension and retirement arrangements, and such measures should not be disturbed by disputes over shortcomings of the policyholder and of the person at risk many years earlier. Furthermore, in such cases it would be very difficult to apply the sanction provided for in Article 2:102. C6.  National laws provide for different periods of indisputability, ranging from one to five years.59 To ensure legal certainty, Article 17:201 para. 2 provides a compulsory period of five years in all cases of non-fraudulent breach. It should be noted that the period may be shortened by contract, in accordance with Article 1:103 para. 2.

57

S. 163 Austrian ICA; s. 35 para. 3 Finnish ICA (for life insurance, the insurer may invoke failure to fulfil the duty of disclosure only if the insured dies before five years have elapsed from the commencement of cover or if the insurer has dispatched a notice of termination or amendment of terms and conditions within the mentioned period of time); art. 89 Spanish ICA, s. 4 para. 2 Swedish ICA. 58 See, however, art. 162 Belgian IA 2014 which denies the insurer the right to invoke a non-intentional breach of the information duties as from the time that the life insurance contract enters into force. 59 In Austria, three years; in Finland, five years, see n. 57; in Spain, one year under art. 89 Spanish ICA; in Sweden, five years, see s. 4 para 2 ICA. For Belgium, the rule is that of immediate indisputability (see n. 58). However, art. 162 para. 2 Belgian IA 2014 allows the government to derogate from this rule and provide for a certain period of indisputability (so far unused possibility).

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C7.  Here as in other matters, the principle of fraus omnia corrumpit must apply. Therefore indisputability does not apply in the case of a fraudulent breach under Article 2:104.

Article 17:202 Insurer’s Pre-contractual Information Duties (1) The insurer shall inform the applicant about whether he has a right to participate in profits. The receipt of this information must be acknowledged by an explicit statement contained in a document separate from the application form. (2) The document to be provided by the insurer in accordance with Article 2:201 shall include the following information: (a) as regards the insurer: a specific reference to the compulsory publication of the annual report on its solvency and financial condition; (b) as regards the contractual commitments of the insurer: (i) an explanation of each benefit and each option, (ii) information about the proportion of the premium attributable to each benefit, both main benefits and supplementary benefits, where appropriate; (iii) the methods of calculation and distribution of bonuses including a specification of the applicable supervisory law; (iv) an indication of surrender and paid-up values and the extent to which they are guaranteed; (v) for unit-linked policies: an explanation of the units to which the benefits are linked, and an indication of the nature of the underlying assets; (vi) general information on the tax arrangements applicable to the type of policy. (3) In addition, specific information shall be supplied in order to facilitate a proper understanding of risks underlying the contract which are assumed by the policyholder. (4) If the insurer quotes in figures the amount of the possible benefits over and above the contractually guaranteed payments it shall provide the applicant with a model calculation which states the possible maturity benefit based on the actuarial principles for premium calculation with three different rates of interest. This shall not apply to insurance contracts covering risks for which the insurer is uncertain to be liable nor to unit-linked policies. The insurer shall clearly and comprehensibly indicate to the policyholder that the model calculation only represents a model based on fictitious assumptions and that the contract does not guarantee possible payments.

Comments Rationale C1.  In general, the insurer’s precontractual duties to provide information which should enable the applicant to consider whether or not to conclude the contract are prescribed in Article 2:201. This article implements the provisions of arts. 183 and 184 of the Solvency II Directive (2009/138/EC), extends them to life insurance contracts, and transposes certain requirements of the Distance Marketing Directive (2002/65/EC). It requires the documents to contain the following: (i) information that should allow identification of the persons involved, including specific information about the name and location of the insurer’s head office; (ii) information on the risk insured and on the main insurance conditions; (iii) in-

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formation on general issues such as the application of the PEICL, the right to revoke the application or to avoid the contract, the existence of out-of-court complaint mechanisms and the existence of guarantee funds. It is the purpose of Article 17:202 to specify these requirements when necessary and to add further requirements as required by art. 185 of the Solvency II Directive (2009/138/EC). C2.  The imposition of additional information duties under Article 17:202 is justified by the complexity and special nature of a life insurance contract. It may be a sophisticated instrument of estate management for private households and enterprises or public bodies. As a consequence, there may be a need for additional pre-contractual information. Solvency II has laid down such requirements which have to be implemented in national law. For the purpose of a future optional instrument of the EU, the PEICL implement the requirements of art. 185 of the Solvency II Directive (2009/138/EC) without following them word for word.

Additional Information Requirements C3.  Article 17:202 para. 2 contains information which must be included in the pre-contractual document provided by the insurer in accordance with Article 2:201. One concerns the insurer itself and requires it to make a concrete reference to the annual report on its solvency and financial condition. The annual report is the one that is referred at in art. 51 of the Solvency II Directive (2009/138/EC) which obliges the Member States to impose the publication of such annual report. In accordance with the terms of the Directive, the obligatory reference must be such as to allow the policyholder easy access to this information. C4.  The other requirements concern the commitments of the insurer. These contain the specific aspects of a life insurance operation: separate information about the different benefits and the options, duly explained; information about calculation and distribution of bonuses; information about surrender and paid-up values; information about the units in a unit-linked policy and about the underlying assets, and general information on tax arrangements. C5.  A central element of pre-contractual information concerns participation in profits. Article 17:202 para. 1 obliges the insurer to inform the applicant about his or her rights in this respect. This information may either be given in the pre-contractual document or in a separate document. However, because it is essential to ensure that the applicant has given proper attention to this important piece of information, he or she is required to acknowledge receipt by an explicit statement, and this statement must be contained in a document that is separate from the application form.

Information on Risks Underlying the Contract (para. 3) C6.  In accordance with art. 185 para. 4 of the Solvency II Directive (2009/138/EC), Article 17:202 para. 3 obliges the insurer to contribute to the proper understanding of the risks underlying the contract which are assumed by the policyholder. Para. 4 of art. 185 does so by putting upon the insurer an additional information duty in this respect. As to what must be understood by the concept “risks underlying the contract” very little has been

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explained so far. More information remains to be given and explained by implementing measures or guidelines provided by EIOPA. An example of a risk underlying the contract is the financial risk incurred in unit-linked life insurance when the value of the underlying assets may decrease.

Model Calculation (para. 4) C7.  Again in accordance with the Solvency II Directive (2009/138/EC), Article 17:202 para. 4 specifies details about how the insurer must quote figures and amounts of possible future benefits over and above the contractually guaranteed payments.

Article 17:203 Cooling-off Period60 (1) For contracts of life insurance, the cooling-off period laid down in Article 2:303 para. 1 shall be one month after receipt of acceptance or delivery of the documents referred to in Article 2:501 and Article 17:202, whichever is the later. (2) The right of the policyholder to avoid the contract in accordance with Article 2:303 para. 1 shall lapse one year after the conclusion of the contract.

Comments Rationale and Object of para. 1 C1.  Generalising a concept that figures in art. 186 of the Solvency II Directive (2009/138/ EC),61 which replaces art. 35 of the Life Assurance Consolidation Directive (2002/83/EC),62 and the Distance Marketing Directive (2002/65/EC),63 Article 2:303 provides for a cooling-off period in all insurance contracts. More specifically this Article entitles the policyholder to avoid the contract within a period of two weeks. Enforcing the prescription of Article 2:303 in the context of life insurance, Article 17:203 para. 1 affirms the rule laid down in Article 2:303, but makes an exception with respect to the duration of the cooling-off period, which is extended to one month. The period starts with receipt of all information, both the general information in accordance with Article 2:501 and pre-contractual information for life insurance in accordance with Article 17:202. C2.  Whereas art. 186 of the Solvency II Directive (2009/138/EC) requires a cooling-off period of 14 to 30 days, and the Distance Marketing Directive (2002/65/EC) requires a period of 30 calendar days in distance contracts relating to life insurance, Article 17:203 para. 1 provides for a one month period for all life insurance contracts, irrespective of the fact whether the insurance contract is a distance contract or not. The longer cooling-off period 60

Article 17:203 para. 1 is modelled on art. 186 of the Solvency II Directive (2009/138/EC) and art. 6 of the Distance Marketing Directive (2002/65/EC). 61 Art. 186 of this Directive provides for a “cancellation period” of between 14 and 30 days. 62 Art. 35 of this Directive provides for a “cancellation period” of between 14 and 30 days. 63 Art. 6 of the Directive provides for a right of withdrawal within 14 days (30 days in the case of life insurance and personal pension operations).

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for all life insurance contracts is in accordance with some national laws64 and appears indeed to be justified because life insurance is a sophisticated product, deals with high sums of money, and the policyholder is in a difficult position to understand all the contract details.

Rationale and Object of para. 2 C3.  As regards the commencement of the cooling-off period, Article 2:303 para. 1, to which para. 2 of the present Article refers, prescribes that this period starts from the “receipt of acceptance of delivery of the documents referred to in Article 2:501”. A problem arises if the insurer fails to provide the policyholder with the documents mentioned in Article 2:501, in which case the right to avoid the contract is subject to no limit. In non-life insurance contracts such extension of the time will rarely occur, since most insurance contracts are subject to prolongation pursuant to Article 2:602, and since such prolongation puts an end to the policyholder’s right to avoid the contract. C4.  However life insurance contracts do not fall under the prolongation rule of Article 2:602 as they are usually concluded for more than a one year period. A special rule restricting the time limit of the right to avoid the contract is therefore required. Article 17:203 para. 2 therefore imposes a one year limit upon the right of the policyholder in a life insurance contract. This limit will apply regardless of whether the insurer has complied with its duty to provide the policyholder with the documents mentioned in Article 2:501.

Article 17:204 Policyholder’s Right to Terminate the Contract (1) The policyholder shall be entitled to terminate a contract of life insurance which does not attract a conversion value or a surrender value, provided that the termination does not take effect earlier than one year after the conclusion of the contract. The right to terminate before the end of the contract period may be excluded where a single premium has been paid. Termination shall be in writing and become effective two weeks after receipt of notice of termination by the insurer. (2) If the contract of life insurance has attracted a conversion value or surrender value, Articles 17:601 to 17:603 shall apply.

Comments Rationale C1.  Contracts for life insurance are often intended to serve strategic purposes such as safeguarding the financial well-being of the family and the support of loans as collateral. In pursuance of such aims life insurance contracts are often concluded for periods of many years, which usually exceed the periods that are foreseeable by an average policyholder.

64

See, for example, s. 165a Austrian ICA; art. 9 of the Belgian Royal Decree of 14 November 2003 on Life Assurance; art. 4:28 para.2 of the Dutch ISA; s. 13 a Finnish ICA; the second sentence of art. 8 para. 3 Greek ICA; see also art. 4 para. 3 of the Greek Legislative Decree on Insurance Undertakings.

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Therefore, an adjustment of the contract to a change of circumstances is often needed: policyholders may be unable to pay premium or no longer need insurance cover. C2.  Such contracts may well be pure risk contracts, which do not attract any conversion or surrender value, so that Articles 17:601 and 17:602 are not applicable. It is to such pure risk contracts that Article 17:204 para. 1 applies. However, where a conversion or surrender value is attracted, Articles 17:601 and 17:602 apply, see para. 2.

Unequal Regulation for Both Parties C3.  Article 17:204 is confined to the policyholder’s right of termination; the insurer’s right to terminate a life insurance contract is regulated by Article 17:205. The underlying principles of these two provisions differ profoundly: While the policyholder, except for the specified situations, is basically entitled to terminate the contract at will, the insurer’s right of termination is only permitted for specific reasons. The difference is due to the purpose and business model of life insurance which transfers long-term risks from the individual policyholder to the collective organised by the insurer.

The One-Year Waiting Period C4.  The policyholders’ ability to foresee future changes relevant to their decision to take out life insurance decreases as the relevant time horizon is extended; as to the imminent future they will often be in a better position to predict such changes than anybody else. Since the conclusion of life insurance contracts generates costs which become futile in the event of termination – in particular of a medical examination of the person at risk and of the agent’s commission – it is fair that policyholders should bear such costs where they terminate the contract shortly after conclusion. The exclusion of the right to terminate within the first year has the practical effect of allowing the insurer to use the first year’s premium to cover such costs. The one-year period is in line with that in Article 17:602 para. 1 in respect of the policyholder’s right to claim the surrender value. It is imposed by the first sentence of Article 17:204 para. 1 irrespective of whether the insurer applies such a period in its contract terms.

Single Premium Insurance (second sentence of para. 1) C5.  The premium for life insurance may be due, depending on the parties’ agreement, at regular intervals or as a single premium which will usually be paid at the beginning of the contract period. In the latter case the life insurance contract is very similar to investment contracts: policyholders want to benefit from the insurer’s better access to the capital markets. Since this better access is usually dependent on a long-term commitment, the policyholder’s termination before the end of the contract period would deprive the insurer of the basis on which it calculated its own long-term commitment in the capital market. Moreover, once the single premium is paid, the policyholder cannot claim a need to terminate the contract because he can no longer pay the premium. C6.  The second sentence of Article 17:204 para. 1, therefore, permits contract clauses excluding the right of termination in single premium life insurance. The exception is, however, limited to cases in which the single premium has already been paid; when the insurer

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agrees to a postponed payment of the single premium, it accepts the risk of non-payment and, thereby, the imbalance between a long-term commitment in the capital market and the possible absence of refinancing.

Exclusion of Termination Rights under National Law C7.  Premature termination of the life insurance contract may also be excluded where national tax law or national social security law make the conferral of benefits conditional upon a certain minimum duration of the life insurance contract. Such requirements of national public law should not impede the use of the PEICL as the governing contract law. The second sentence of Article 17:402, therefore, allows the parties to derogate from the PEICL to avoid a conflict with the national provisions in question. In the present context, this means that contract clauses excluding termination for the period laid down in the national provision would be allowed, but not provisions which exclude the right to terminate in breach of the national requirements. C8.  There may be other grounds preventing the policyholder from terminating the contract. For example, premature termination of a long-term life insurance contract may constitute a breach of a loan agreement the policyholder has concluded with a bank. The interdependence of the loan and the life insurance can be sufficiently regulated by the terms of the loan agreement; it does not require exclusion of the policyholder’s right to terminate the life insurance contract under Article 17:204.

Form and Effect of Termination (third sentence of para. 1) C9.  While the policyholder’s notices in general do not require a particular form to be valid (Article 1:205), specific provisions of the PEICL require important declarations to be in writing. This applies, for example, to the avoidance of the contract during the cooling-off period (Article 2:303), the rejection of a contract prolongation (Article 2:602), or termination after the occurrence of an insured event (Article 2:604). The termination of a life insurance contract is of similar importance and must be in writing. As in other provisions of the PEICL this means communication that provides a record readable by both sides; see Comment 5 to Article 2:201. C10.  The third sentence of para. 1 makes it clear that termination becomes effective two weeks after receipt of the notice. Contract clauses postponing the effective date to the end of the month or the end of the year are incompatible with this provision. As a consequence of termination, the insurer loses the right to the premium; see Article 5:104. Where premium has already been paid for a longer period, claims for restitution may lie under national law.

Article 17:205 Insurer’s Right to Terminate the Contract The insurer shall be entitled to terminate a contract of life insurance only to the extent permitted by this Chapter.

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Comments Rationale C1.  Life insurance contracts usually are long-term contracts; see Article 17:204 Comment 1. As such both parties will often feel a need for termination when unforeseen circumstances occur. Where performance of a contract becomes “excessively onerous” general contract law may grant a right, and impose a duty on the other party, to “enter into negotiations with a view to adapting or terminating the contract”, provided that some further conditions are fulfilled.65 In respect of contracts of indeterminate duration general contract law usually allows for unilateral termination by notice without requiring specific grounds.66 C2.  These rules do not provide satisfactory solutions for life insurance contracts. They are too narrow for the policyholder’s wish to terminate, see Article 17:204 Comment 1, and too wide for termination by the insurer. The very purpose of a life insurance contract is to provide long-term protection of the beneficiary against the financial hazard arising from the death of the person at risk. The contract would miss this purpose if the insurer were entitled to withdraw from its obligations on the grounds set forth above. C3.  Assume for example, that the terms of the life insurance contract become “excessively onerous” due to a dramatic decrease of the rate of return the insurer can achieve at the capital market. Allowing termination in such a situation would frustrate the agreement. In a similar vein, a contract clause permitting the insurer to terminate the contract in the case of an aggravation of risk, see Article 4:203, would defeat the object of the contract, since ageing and the deterioration of health inevitably will aggravate the risk constituted by the person at risk, and thereby allow for termination in general. The solution espoused by Article 17:205 is to invalidate termination as a general principle subject to specific exceptions.

Termination for Breach of Pre-contractual Disclosure Duties C4.  Termination of the life insurance contract by the insurer is lawful “only to the extent permitted in this Chapter”, namely in Chapter 17 of the PEICL. An indirect reference to the insurer’s right to terminate the contract is laid down in Article 17:201 in respect of the applicant’s pre-contractual information duties under Article 2:101. Where the applicant has breached the pre-contractual duty of disclosure, the insurer may in fact terminate the life insurance contract within a period of five years after conclusion of the contract, provided that the additional conditions laid down in Articles 2:102 and 2:103 are fulfilled, see Article 17:201 para. 2. C5.  The five-year limitation does not apply where the breach of the disclosure duty has occurred fraudulently, see Article 17:201 para. 2 in conjunction with Article 2:104. Although Article 17:205 refers to “termination” while Article 2:104 allows the insurer to “avoid” the contract, Article 17:205 indirectly refers to avoidance under Article 2:104 as well. This fol65

See art. 89 of Annex I to the CESL Regulation Proposal of 11 October 2011, copying almost literally Article 6:111 PECL. 66 See art. 77 of the CESL Regulation Proposal, previous footnote.

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lows from the exception established in Article 17:201 para. 2 for fraudulent breach, and from the general principle that sanctions have to be proportionate to the seriousness of the breach. C6.  The insurer’s right to terminate the life insurance contract for breach of pre-contractual disclosure duties is subject, irrespective of the degree of the policyholder’s fault, to Article 17:602 para. 2. The insurer’s obligation to pay out a surrender value, if any, is thus ensured for all cases of termination, rescission and avoidance of the life insurance contract by the insurer.

Termination for Aggravation of Risk C7.  A further indirect reference to the insurer’s right to terminate the contract is contained in Article 17:302. The cross-reference of that provision to Article 4:201 indicates that clauses of a life insurance contract may deal with the aggravation of risk. In particular such clauses may also enable the insurer to terminate the life insurance contract in the event of an aggravation of risk; the rules laid down in Articles 4:201 to 4:203 also apply to life insurance contracts. In accordance with Article 17:302, however, clauses specifying age and deterioration in health as an aggravation of risk shall be invalid and cannot entitle the insurer to terminate. C8.  This is different with regard to other changes aggravating the risk, for example the employment of the person at risk, subsequent to the conclusion of the life insurance contract, by a private security service in a country stricken by civil unrest and commotions. Article 17:302 does not refer to an eventual surrender value accrued under the policy prior to termination. But even without such reference it follows from Article 17:602 para. 2 that the insurer is obliged to pay out such surrender value.

Termination for Non-payment of Premium C9.  Finally, the insurer may also be entitled to terminate a life insurance contract in the case of non-payment of the premium. This follows from the cross-reference to Article 5:103 in Article 17:601. By excluding the right of termination for certain life insurance contracts, Article 17:601 makes clear that that right is basically acknowledged for life insurance contracts in general. While the rule on termination does not apply to life insurance contracts which have attracted a conversion value or a surrender value, it is applicable in respect of other life insurance contracts, in particular to pure risk life insurance.

Modalities and effect of termination C10.  The form, modalities and effects of termination by the insurer are not regulated by Article 17:205, but by the provisions dealing with the single cases referred to above. However, in respect of a surrender value that may have accrued under the policy, Article 17:602 para. 2 provides, in general, for the insurer’s obligation to pay out such surrender value to the policyholder.

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Section Three: Changes during the Contract Period Article 17:301 Insurer’s Post-contractual Information Duties (1) Where applicable, the insurer shall provide the policyholder annually with a written statement of the current value of the bonuses attached to the policy. (2) In addition to the requirements of Article 2:701, the insurer shall inform the policyholder without undue delay about any change concerning: (a) the policy conditions, both general and special; (b) in the event of a change in the policy conditions or an amendment of the PEICL: the information listed in Article 2:201(f) and (g) as well as in Article 17:202 para. 2(b) points i to v. (3) Article 17:202 para. 4 shall also apply where the figures relating to the estimated amount of possible benefits are provided at any time during the contract period. Where the insurer has provided figures, whether before or after the conclusion of the contract, about the potential future development of profit participation, the insurer shall inform the policyholder about any differences between the actual development and the initial data.

Comments Rationale C1.  Since Article 17:301 forms part of Section Three of Chapter Seventeen of Part Five (“Life Insurance”), it provides for regular and ad hoc post-contractual information duties on the part of the insurer, which apply in the specific context of life insurance. These specific information duties are imposed on the insurer in addition to its general post-contractual information duties under Articles 2:701 and 2:702. The enhanced post-contractual duties result from the complexity and the long-term nature of life insurance contracts which generate an increased need for protection.

Scope C2.  In addition to pure risk insurance there are life insurance contracts with profits. Such contracts provide for bonuses for the policyholder. Under para. 1 the insurer must provide the policyholder, throughout the insurance contract, with annual information relating to such bonuses attached to with-profit policies. Under para. 2 which is applicable to all life insurance contracts, further ad hoc information must be provided as listed.

Context C3.  In part Article 17:301 reflects the content of art. 185 para. 5 of the Solvency II Directive (2009/138/EC), but there are differences regarding the extent of the insurer’s post-contractual information duty.

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Article 17:302 Aggravation of Risk In a life insurance contract, a clause specifying age or deterioration in health as aggravations of risk within the meaning of Article 4:201 shall be regarded as an abusive clause under Article 2:304.

Comments Rationale C1.  In some countries the possibility that the risk insured will be aggravated during the insurance period has led to clauses entitling insurers to “second thoughts”: to reconsider whether to continue to provide the cover and, if so, on what terms. Lest such clauses offer an escape route for those responsible for poor underwriting, Article 4:201 establishes minimum safeguards for the policyholder, in particular, such clauses are without effect unless the aggravation in question is material and of a kind specified in the insurance contract. C2.  In the case of life insurance, the subject of Chapter 17, increase in age is inevitable and deterioration in health likely; these are changes that will occur during the contract period, the subject of Chapter 17 Section 3. Moreover they are changes for the worse and thus aggravations of the risk. It is inappropriate that the provisions for aggravation of risk in the case of non-life insurance, found in Chapter 4, should apply equally to life insurance. For life insurance the issue is dealt with in Articles 17:302 and 17:303.

Scope C3.  Increase in age and deterioration in health, the changes mentioned in Article 17:302, are the obvious but not necessarily the only instances of aggravation of the risk that may arise. For example, it may become established by medical science that certain features of human lifestyle, which had been regarded hitherto as harmless, are indeed damaging to health. Article 17:302 being confined to the instances specified, it is envisaged that any other instances would be considered under Article 2:304, which deals with abusive clauses.

Sanction C4.  In accordance with Article 2:304 a clause in breach of Article 17:302 will not bind the policyholder. The consequences of an aggravation of risk under Articles 4:201 ff. are not triggered.

Article 17:303 Adjustment of Premium and Benefits Payable (1) In a life insurance contract covering risks for which the insurer is certain to be liable, the insurer shall only be entitled to an adjustment in accordance with paras. 2 and 3. (2) An increase of premium shall be permissible where there has been an unforeseeable and permanent change in respect of the biometric risks used as the basis for calculating the premium, where an increase is necessary to guarantee the insurer’s continued ability to pay out insurance benefits and where the increase has been agreed by an independent trustee or the

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supervisory authority. The policyholder shall be entitled to offset the increase in premium with an appropriate reduction of the insurance benefits. (3) In the case of a paid-up policy, the insurer shall be entitled to reduce the insurance benefits under the conditions set out in para. 2. (4) An adjustment in accordance with para. 2 or 3 shall not be permitted (a) in so far as an error has been committed in the calculation of the premium and/or benefits of which a competent and diligent actuary ought to have been aware, or (b) where the underlying calculation is not applied to all contracts including those concluded after the adjustment. (5) An increase of premium or a reduction of benefits shall become effective three months after the insurer has provided the policyholder with written notice about the increase of premium or reduction of benefits, the reasons for this and about the policyholder’s own right to demand a reduction of benefits. (6) In a life insurance contract covering risks for which the insurer is certain to be liable, the policyholder shall be entitled to a decrease of premium where, due to an unforeseeable and permanent change in respect of the biometric risks used as the basis for calculating the premium, the original amount of premium is not appropriate and necessary in order to guarantee the insurer’s continued ability to pay insurance benefit. The decrease has to be agreed by an independent trustee or the supervisory authority. (7) The rights set forth in this Article may be exercised not earlier than five years after the conclusion of the contract.

Comments Rationale C1.  Article 17:303 paras. 1 to 5 grant the insurer a statutory power to adjust the premium or the insurance benefits.The rationale lies in the fact that life insurance contracts are generally long term contracts and the insurer has no general right to terminate the contract. For reasons of policyholder protection, termination is only allowed on the grounds specified in Chapter 17 (see Article 17:205). This absence of a general power to terminate together with the fact that the calculation basis (namely certain biometric assumptions) of the premium may change throughout the contract period, without the insurer having any influence over it, may result in the agreed premium becoming insufficient. Without prejudice to supervisory emergency measures, it seems appropriate that the insurer is given a statutory power to alter the premium or the insurance benefits in order to safeguard its continuous ability to pay insurance benefits. Article 17:303 paras. 2 and 3 therefore entitle the insurer to raise the premium or to reduce the insurance benefit according to the change of circumstances. C2.  In the interest of equal treatment, Article 17:303 para. 6 provides for a corresponding right of the policyholder to claim a decrease of premium when the change in the biometric assumptions reveals the premium as excessive.

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National Laws as Models C3.  Some national laws provide a statutory power to adjust the premium for health insurance contracts. In light of the continuous increase of costs in the health care sector, a need for premium adjustment seems especially obvious concerning health insurance contracts (see art. 206 para. 2(d) of the Solvency II Directive (2009/138/EC)). Such a power of premium adjustment is less common in the field of life insurance. In comparative law there are mainly two models for such powers: one grants the insurer statutory power to adjust the premium;67 the other allows the insurer to include contract clauses to the same effect.68 C4.  The salient question was, thus, which of the two models should be chosen. The intrinsic need for such a power, the uncertainties inherent in a contractual solution and the severe consequences of the possible ineffectiveness of an adjustment clause are reasons for a statutory power. The approach taken by Article 17:303 serves the purpose of transparency, clarity and legal certainty, in a way that a power to provide for contractual adjustment clauses could not.

Scope (paras. 1 and 3) C5.  The power of adjustment is limited to contracts where the insured event is certain to occur. As such, the provision only applies to life insurance containing a savings element which is at least in part guaranteed by the insurer. As a result, unit-linked contracts where the policyholder bears the investment risk are not covered by Article 17:303. Term life insurance contracts are not covered either, because pure-risk life insurance contracts often last for a relatively short term and the premium only covers the risk of the death of the insured person and is not intended to build up capital for the policyholder or the beneficiaries. For such contracts the insurer can counter the risk of a change in the assumptions concerning the probability of death by providing for a safety margin when calculating the premium. C6.  According to its para. 3, Article 17:303 also applies to a paid-up policy (Article 17:601) although the policyholder has already completely fulfilled his obligation to pay the premium. Such a contract is subject to the same alterations of risk, as described above (cf. Comment 1). However, the policyholder is not required to pay a supplementary premium. The adjustment is effected rather by reducing the insurance benefits appropriately.

Requirements (para. 2) C7.  An adjustment by the insurer is only permissible in accordance with strict requirements. These requirements are provided by the first sentence of para. 2 regarding an increase 67

See s. 163 German ICA which regards the situation in life insurance contracts to be comparable with health insurance and thus grants a right of premium adjustment. 68 For example Austria, Finland and Greece. While most countries do not specifically provide further criteria for the adjustment, some have enacted such provisions (for example art. 42 Luxembourg ICA; s. 20 a Finnish ICA). Under all jurisdictions, however, in consumer contracts the premium adjustment clauses are controlled by the unfair contract terms regime (for example s. 6 para. 1(5) of the Austrian Consumer Protection Act).

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in premium. These requirements apply mutatis mutandis to a reduction of the insurance benefits: where this, rather than an increase in premium, is requested by the policyholder or where a paid-up policy is adjusted. C8.  Para. 2 establishes three requirements for an alteration of premium relating first to the biometric risks, second to the insurer’s solvency and third to the procedure of alteration. First, it only allows adjustment on the basis of changes in biometric risks, not as a response to the alteration of other factors underlying the premium calculation – such as, for example, assumptions concerning the interest rate available on the capital markets, or costs. Second, an adjustment is only permissible where it is necessary to guarantee the continued ability to pay insurance benefits and therefore an insurer may not impose an adjustment in order to increase its profits. Third, para. 2 requires the approval of either an independent trustee69 or the supervisory authority because the average policyholder is not in a position to evaluate whether the conditions for premium adjustment are met. The insurer has no option and will have to employ an independent trustee if national supervisory law does not provide for approval by the supervisory authority. Such approval does not exclude a review by a court in a claim brought by the individual policyholder or by a consumer organisation in accordance with Article 1:301.

Exceptions (para. 4) C9.  An adjustment is not permitted if an error has been committed in the calculation of the premium or the insurance benefits, which a competent and diligent actuary would not have committed. The insurer is the person responsible for the correct calculation of the premium at the time of contracting and where a premium has been miscalculated because of such an error, the insurer bears the cost. C10.  For reasons of equal treatment, an adjustment is not permitted if it is selective. Thus, the insurer will have to adjust all contracts subject to Article 17:303, whether they were concluded before or after the adjustment was proposed.

Form and Time of Effectiveness (para. 5) C11.  An adjustment becomes effective three months after the insurer has informed the policyholder by a written notice that describes the nature of the adjustment, explains the reasons for it and informs the policyholder of his right to demand a reduction of benefits instead of an increase of premium. This period is necessary since the adjustment of the premium or the benefits constitutes an alteration of one of the main contractual obligations and the policyholder needs time to evaluate, perhaps with professional guidance, whether, given his personal circumstances, he should demand a reduction in insurance benefits instead of an increase in premium.

69

Cf., for example, s. 142 German ISA 2016.

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Premium Reduction C12.  Para. 6 grants the policyholder a claim against the insurer for the reduction of the premium. This right gives a fair balance between policyholder and insurer. If the latter is able to alter the contract in its favour in the event of an adverse alteration of the biometric basis for the premium, the former should also be able to request an adjustment to his advantage where the biometric risks have changed in his favour. As in the case of an adjustment instigated by the insurer (see Comment 8), reduction of the premium is contingent on approval by an independent trustee or the relevant supervisory authority. This ensures that the adjustment is actuarially sound.

Premium Stability (para. 7) C13.  Para. 7 prescribes that an adjustment of the premium and benefits payable due to the alteration of biometric risks is not possible until five years after the conclusion of the contract. This rule is intended to prevent an insurer seeking a competitive advantage by basing its calculations on low (and inadequate) actuarial assumptions and adjusting the calculation in its favour shortly after the conclusion of the contract. The required long-term calculation is in line with art. 209 para. 1 of the Solvency II Directive (2009/138/EC) which states that premiums for new business should be sufficient, on reasonable actuarial assumptions, to enable life insurance undertakings to meet all their commitments and, in particular, to establish adequate technical provisions.

Adjustment Clauses C14.  Article 17:303 does not preclude the parties from agreeing on a premium adjustment clause in the contract, as long as this is not to the detriment of the policyholder (Article 1:103 para. 2). A premium adjustment clause providing that the premium may be adjusted in accordance with generally acknowledged mortality tables, if any, may arguably be regarded as valid as long as the requirements of Article 17:303 are met.

Article 17:304 Alteration of Terms and Conditions (1) A clause which allows the insurer to alter the terms or conditions other than the premium and benefits payable shall be invalid, unless the alteration is required to (a) comply with an amendment of supervisory law including binding measures taken by the supervisory authority, or (b) comply with an amendment of mandatory rules of the applicable national law on employers’ pension plans, or (c) comply with an amendment of national rules imposing specific requirements on a contract of life insurance in order to qualify for special tax treatment or for state subsidies, or (d) substitute a clause of the contract in accordance with the second sentence of Article 2:304 para. 2. (2) The alteration shall become effective at the start of the third month after the policyholder has received written notice informing the policyholder about the alteration and the reasons for it. (3) Para. 1 shall apply without prejudice to other requirements for the validity of alteration clauses.

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Comments Rationale C1.  Article 17:304 complements the preceding Article on the adjustment of the premium and benefits payable by providing a mechanism for the alteration of other terms and conditions. The rationale of this rule is the fact that life insurance contracts are typically concluded for a long period of time during which the insurer has no ordinary power of cancellation and during which the alteration of extra-contractual circumstances may require adjustment of the contract. In view of this, many life insurance contracts contain a clause empowering the insurer to alter unilaterally the terms and conditions other than the premium and benefits payable. While Article 17:304 permits such clauses, it imposes requirements which must be met to justify alterations (paras. 1 and 2).

Scope C2.  Article 17:304 applies to the alteration of all parts of the insurance contract other than the premium and benefits payable and unlike Article 17:303 it applies to all types of life insurance contracts.

Requirements for Alteration Clauses (para. 1) C3.  Article 17:304 starts from the principle that general terms and conditions of a life insurance should not be changed. It sets out requirements for clauses permitting such a change by way of exception in a number of clearly defined cases. This is in line with few national laws,70 while most laws leave the matter to contractual agreement. In the absence of more specific rules, the limits of such adjustment clauses are commonly derived from the law on unfair contract terms.71 C4.  In contrast with Article 17:303, Article 17:304 does not provide for a statutory power to adjust the contract but rather sets out the requirements that a contractual adjustment clause must meet in order to be lawful. Since the absence of an adjustment clause in the contract regarding terms and conditions would generally be less detrimental than the absence of a premium adjustment clause, the matter can be left to contractual arrangements.

Limited Reasons for Alterations (para. 1) C5.  Article 17:304 lists the limited range of circumstances in which a contractual clause may be justified to alter terms and conditions. An alteration is only permissible, where the alteration is required to comply with the amendment of certain legal provisions (para. 1

70

See s. 164 German ICA providing for a statutory right of alteration; for a special provision concerning amendments of terms and conditions of life insurance and other insurance of the person, see s. 20 a Finnish ICA. 71 See also para. 1(j) of Annex of the Unfair Contract Terms Directive (93/13/EEC); s. 6 para. 1(5) and s. 6 para. 2(3) of the Austrian Consumer Protection Act.

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(a)–(c)) or, when a clause of the contract is null and void (para. 1(d)), where the substitution of the clause is necessary to continue the contract in accordance with Article 2:304 para. 2. C6.  Para. 1(a)-(c) generally implies an alteration of existing national law or administrative practice. For the purposes of this provision, an alteration of existing national law may also result from a decision of a superior court by which the legal provision in question is given a meaning different from the one which was hitherto generally presumed.

Alteration of Supervisory Law C7.  An adjustment of the contract may become necessary due to alteration of insurance supervisory law or a binding decision by the supervisory authority directed against the insurance undertaking in question (para. 1(a)). Especially in the realm of life assurance, insurance supervisory law and insurance contract law are closely intertwined. This is for example the case of life insurance contracts with a savings element.72

Pension Schemes C8.  Often occupational pension schemes are effected by means of life insurance. The amendment of mandatory rules of the applicable national law on pension schemes could thus make it necessary to adjust insurance contracts in order to conform with the altered legal requirements (para. 1(b)).

Tax Privileges C9.  Because of its importance in providing financial provision for older people, life insurance may well attract tax privileges or subsidies. In order to ensure that the parties concerned (especially the policyholders, insured persons or beneficiaries) will not lose their tax privileges or right to subsidies, the insurance contract will in some circumstances need to be adjusted to meet the altered legal requirements that apply to such tax privileges or subsidies (para. 1(c)).

Replacement of Invalid Clauses C10.  Where a clause in the general terms and conditions is invalid, it appears appropriate to grant the insurer a limited power to substitute the invalid clause with a new (valid) clause binding all members of the collective. In view of the collective nature of insurance this seems preferable to a substitution effected for the single contract, in particular in life insurance contracts with a savings element, where insurance benefits have to be calculated in accordance with uniform standards for all policyholders.

72

For example s. 169 para. 3 German ICA concerning the calculation of the surrender value; similarly, s. 176 Austrian ICA; see also art. 91 Swiss ICA.

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Further Requirements for an Alteration (para. 2) C11.  The alteration becomes effective three months after the insurer has informed the policyholder in writing about the alteration. The written notice must indicate the content of the alteration and the reasons for it. The notice must be in clear terms and in the language in which the contract was negotiated (in accordance with Article 1:203 para 1; see also Article 2:502 para. 2). C12.  The policyholder is granted a period of three months to prepare for the alteration. In comparison with some national laws73 this is a rather extensive period. It corresponds to the period for an adjustment of the premium, in accordance with Article 17:303 para. 5.

Retroactive Effect C13.  Notwithstanding that the alteration of the terms or conditions will only become effective after three months, the new (altered) clauses may have a retroactive effect if this is necessary for the functioning of the contract. This could for example be the case where a new clause provides that the policyholder has to bear costs which are spread over the whole contract period.

Minimum Standards for Alteration Clauses in Life Insurance C14.  In general, the policyholder is sufficiently protected by the requirements stated in Article 17:304 para. 1. However, Article 2:304 concerning abusive clauses applies. Further, Article 2:603, concerning alteration of terms and conditions upon renewal of a one year contract, which might apply to pure risk life insurance, may also be relevant.

Section Four: Relation to National Laws Article 17:401 Pension Plans A life insurance contract relating to a pension plan shall be subject to the mandatory rules of the applicable national law on pension plans. The PEICL shall only apply to the extent compatible with these rules.

Comments Rationale C1.  In most European countries, retirement annuities used to be organised and provided by social security institutions. During employment, employers and employees made fi73

S. 20 a Finnish ICA: changes shall take effect at the commencement of either the premium period or, if the premium period is shorter than one year or if no premium period has been agreed upon, the calendar year which next follows after a month has elapsed from the date at which the insurer dispatched the notice of the changed conditions.

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nancial contributions, so that, after having reached the retirement age the employee would receive an old-age pension for life, and even after his death a surviving spouse or under age children, would receive payments. Since social security systems were on a pay-as-you-go basis they were affected by demographic changes. Moreover, since life expectancy has been on the rise since the time when social security systems were established it is becoming increasingly difficult to provide adequate pensions for the retired by means of the contributions of current employees. C2.  Pension schemes provided by social security systems have typically been supplemented by alternative systems, one of which is an old-age pension provided by means of life insurance. In many cases, such pension schemes are organised by employers. There are different ways in which this can be done. The employer might, for instance, contract life insurance to cover the pension payment to the retired employees. In most cases, such an insurance contract will constitute group insurance in favour of the former employees and their relatives, as the case may be. In many countries, there is special legislation dealing with this kind of pension scheme. This legislation may provide for regulations which are not compatible with the PEICL. C3.  The solution provided for such cases is not to completely exclude the application of the PEICL to the corresponding life insurance contracts. Rather, in accordance with Article 17:401, national legislation takes precedence. Subject to this, the PEICL should also be available for life insurance contracts relating to pension plans; otherwise, it would not be possible to opt in to PEICL when life insurance has this important function. Thus, Articles 17:401 and 17:402 constitute a special section which deals with the relation between the PEICL on life insurance, as far as chosen by the parties, and national law on pension schemes. Contrary to the general rule that no recourse to national law is permitted when the PEICL apply, Articles 17:401 and 17.402 give preference to national law on pension schemes, so that a choice of the PEICL would not eliminate the possibility of taking advantage of such schemes.

Illustration C4.  According to Article 18:204 on group insurance a group member leaving the group has a right to equivalent cover under a new individual contract with the insurer concerned without a new assessment of the risk. In some national legal systems, there is no such right with regard to insurance contracts relating to employer’s pension plans. Instead national law might provide, for instance, that an employee whose occupation had continued for a certain period of time may claim the capital which already has been saved up to be transferred to the pension scheme of his new employer.74 These provisions would apply to a life insurance contract governed by the PEICL as well. On the other hand, Article 18:204 might not apply to such a life insurance if the right of the employed to continue the contract is not provided for in the same way by national law.

74

See s. 4 para. 2 of the German Company Pension Act; s. 13 para. 1 No. 2 of the Austrian Occupational Pensions Act.

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Scope C5.  Article 17:401 applies to life insurances relating to pension plans. Life insurance is to be understood in accordance with Article 1:201 para. 6. Since Article 17:401 refers to such kind of life insurance which provides for payments after retirement, the provision will not apply to an insurance contract which covers only the death of the person at risk (pure life insurance). Article 17:401 will not apply to pension schemes which are organised by means of instruments other than life insurance based on a contractual agreement by the parties. C6.  The contract must be related to a pension plan. Pension plans may be organised by employers or other institutions. An employer’s pension plan may be understood as a contractual promise of the employer to provide an old-age pension or a disability benefit75 after retirement in favour of an employee and/or his family members. Such contractual promise may be performed in various ways, among them, by concluding a life insurance contract upon the life and to the benefit of the employee. Article 17:401 will only be applicable where the employer uses a life insurance contract in such a way.

Precedence of National Law C7.  The result of the application of Article 17:401 is that national law providing mandatory rules for such kinds of life insurance will prevail over the PEICL. This means that (a) those special rules will apply to the insurance contract which is generally governed by the PEICL whereas other provisions of national law, for instance those dealing with insurance contract law in general, will not apply, and (b) the PEICL will not apply insofar as they are not compatible with those special rules of national law. C8.  Article 17:401 refers to the rules of the applicable national law. Whether or not those special rules of a national law are applicable is not governed by the PEICL but conflict of laws rules. The conflict of laws rules might call for the application of the law which governs the employment contract, or the law at the place where the professional activity takes place, or the law which governs the social security of the insured (cf. art. 8 of the Rome I Regulation (593/2008)).

Article 17:402 Tax Treatment and State Subsidies The PEICL shall not affect national rules imposing specific requirements on a contract of life insurance in order to qualify for special tax treatment or for state subsidies. In the case of a conflict between such requirements of applicable national law and provisions of the PEICL, the latter may be derogated from.

75

See Article 17:102.

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Comments Rationale C1.  In many European countries, life insurance provided by private insurers is an important instrument to supplement or perhaps even to replace old-age provision organised by social security. Whereas social security is based on a pay-as-you-go basis, private life insurance operates by using a capital cover system which makes it less vulnerable to demographic changes. To make private life insurance as an instrument for private pension plans more attractive, Member States are encouraging them by granting some privileges. Premiums paid by the policyholder may be deducted from tax, or in some cases even subsidies may be granted by the state. Generally, these privileges are tied to special conditions which the life insurance has to comply with.76 So for instance, the claims of the insured might be non-transferrable77 or the policyholder might be obliged to renounce the right to terminate the contract for ten years.78 Based on these considerations, Article 17:402 has the purpose to allow the use of the PEICL even in cases when they may conflict to a national regime providing for a special tax treatment or for state subsidies.

Scope C2.  Article 17:402 applies to all kinds of life insurance, whether taken out individually or as group insurance. Whereas tax systems mainly focus on insurance contracts supplementing or replacing social security in the field of pension plans, Article 17:402 is not restricted to such contracts. It may be applied to any kind of tax privileges or state subsidies. Whether or not the latter will apply is not the subject of PEICL but regulated by national conflict of laws rules.

Legal consequences C3.  The first sentence of Article 17:402 provides that the PEICL will not affect national rules imposing specific requirements on life insurance contracts in order to qualify for special tax treatment or for state subsidies. This is mainly a clarification that the PEICL do not deal with tax law or state subsidies and therefore would not affect those requirements which are imposed by national law for tax privileges or state subsidies. 76

See, for instance, the German “Riester-Rente” and “Rürup-Rente” as regulated in s. 10a and ss. 79 ff. of the German Income Tax Act and the German Act on the Certification of Retirement and Basic Pension Plans; and “prämienbegünstigte Zukunftsvorsorge” as regulated in ss. 108g ff of the Austrian Income Tax Act. 77 S. 97 of the German Income Tax Act. According to art. 15 of Greek Law on Income Tax, special tax privileges are granted to the policyholder in long term life insurance. If, however, the policyholder requests the surrender value, the applicable tax rate is increased by 50 %, unless the policyholder has reached the age of 60. 78 See s. 108g para. 1 and s. 108i para. 1 of the Austrian Income Tax Act. The Austrian Supreme Court held that these provisions in the Income Tax Act even have to be considered as leges speciales vis-à-vis the right of the policyholder to a premature termination of the contract as provided in s. 165 Austrian ICA (OGH 7.9.2011, 7 Ob 138/11m, SZ 2011/113 and 9.5.2012, 7 Ob 40/12a).

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C4.  The essential consequence of Article 17:402 is laid down in the second sentence. As far as it is required to meet the conditions for a special tax treatment or state subsidies the parties to the insurance contract may deviate from any provision of the PEICL. This rule especially applies to those provisions which are mandatory. Deviation from the PEICL is also permitted if it is not in favour of the policyholder or the insured. Any other provision of the PEICL which is not in conflict with the national regime of tax law or state subsidies will apply.

Section Five: Insured Event Article 17:501 Insurer’s Investigation and Information Duty (1) An insurer which has reason to believe that the insured event may have occurred shall take reasonable steps to ascertain this. (2) The insurer, knowing that the insured event has occurred, shall make best efforts in the circumstances to discover the identity and address of the beneficiary and inform that person accordingly. This information shall be provided no later than 30 days after the insurer becomes aware of the identity and address of the beneficiary. (3) If an insurer is in breach of para. 1 or 2, the prescription of the beneficiary’s claim shall be suspended until the beneficiary acquires knowledge of his actual entitlement.

Comments Rationale C1.  Cases arise where a beneficiary will not claim payment from the insurer because he lacks information about relevant facts. Relevant facts are the occurrence of the insured event, usually the death of the person at risk, the existence of the insurance contract and/ or his status as a beneficiary. Although it is not the primary task of the insurer to secure the rights of the beneficiaries, the principle of good faith requires it to investigate the occurrence of an insured event, to ascertain the identity of the beneficiary and to inform the beneficiary about his status under the life insurance contract under certain circumstances. Article 17:501 defines the circumstances giving rise to the duties of the insurer and provides sanctions for breach. One purpose of these duties is to reduce the number of “sleeping contracts”, another is to ensure that beneficiaries actually get what they are entitled to.

Duty to Investigate the Occurrence of the Insured Event (para. 1) C2.  Cases arise where the insurer without knowing about the insured event has good reason to assume that it has taken place. Examples of this are the life insurance contracts of Jewish policyholders murdered in concentration camps. Reasons to assume that the insured event has occurred can also be found in other situations, for example, in the case of a policyholder who stops paying premiums and does not respond to invoices over a long period of time. In such situations, the insurer should be under an obligation to take reasonable steps to investigate whether the insured event has occurred. It will not be allowed to remain idle and wait until either the beneficiary finds out about the insured event or the claim is prescribed.

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C3.  What appears to be “reasonable” must ultimately be ascertained in the light of all the circumstances of the individual case. In general, the insurer will have to consider the likelihood of an insured event having occurred, the costs of investigation, the ability of the beneficiaries themselves to investigate, and so on. For the meaning of the term “best efforts” employed in para. 2, see Comment 6, below.

Duty to Investigate the Identity and Address of the Beneficiary (para. 2) C4.  Once an insurer knows that the insured event has occurred, it has to investigate the identity and address of the beneficiary. This duty arises in both cases, namely where the insurer has investigated the occurrence of the insured event and where it gained knowledge thereof by other means. C5.  In cases where the beneficiary has been designated by name and address, reference to the files of the insurer will usually be sufficient to obtain all relevant information. However, the beneficiary may have changed address or have been designated in a certain capacity, such as the “wife” of the policyholder, his “children” or “heirs”. Equally, the policyholder may also have designated a beneficiary in his will, of which the insurer may not be aware. In such cases, the insurer will have to take best efforts to ascertain the identity and address of the beneficiary. C6.  What amounts to the insurer’s “best efforts” must ultimately be ascertained in the light of all the circumstances of the individual case. In any event, the term “best efforts” clearly requires more than the term “reasonable steps” under para. 1. The insurer would obviously be obliged to incur costs in investigations, as long as they are not unreasonable in the light of the amount at stake.

Duty to Inform the Beneficiary (para. 2) C7.  Once an insurer knows that the insured event has occurred and the identity and address of the beneficiary, it has to inform the beneficiary “accordingly” (second part of the first sentence of para. 2). This duty arises in both cases, namely where the insurer has investigated the identity and address of the beneficiary and where it has gained knowledge thereof by other means. C8.  The term “accordingly” refers first of all to the status of the beneficiary. However, it also refers to the occurrence of the insured event. Thus, an insurer must inform the beneficiary about (i) that person’s status as a beneficiary and (ii) the occurrence of the insured event. A person may not be aware of the status as a beneficiary if the contract was concluded by another person. For instance, a parent may have concluded a life insurance contract for the benefit of a child without telling the child about it. Similarly, a beneficiary may not be aware of the occurrence of the insured event, namely the death of the person at risk. For instance, if the policyholder and the beneficiary have stopped living together and lost contact, information about the death of the person at risk may not reach the beneficiary. While this will not be the case very often, it cannot be ruled out altogether and should be covered by Article 17:501.

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C9.  Once an insurer knows that the insured event has occurred and the identity and address of the beneficiary, it has 30 days to comply with the information duty required by the second sentence of para. 2. If such information does not reach the beneficiary within this time, the insurer is in breach of its duty.

Sanctions (para. 3) C10.  Under the principle of estoppel (venire contra factum proprium nulli conceditur), an insurer which breaches its duties under para. 1 or 2 and therefore does not receive a justified claim by the beneficiary in time will later be precluded from raising prescription as a defence. Technically, this result is reached by way of suspension of the prescription period. C11.  Suspension will last until the beneficiary obtains knowledge of “actual entitlement”, namely, of both status as a beneficiary and occurrence of the insured event. C12.  Irrespective of the sanctions provided in para. 3, the beneficiary may claim damages in accordance with Article 1:105 para. 2. Furthermore, sanctions may be imposed under the applicable supervisory law.

Article 17:502 Suicide (1) If, within one year after the conclusion of the contract, the person at risk commits suicide, the insurer shall be discharged from its liability to pay the insurance money. If so, the insurer shall pay the surrender value and any profits in accordance with Article 17:602. (2) Para. 1 shall not apply if (a) the person at risk, when committing suicide, acts in a mental state precluding the ability to freely determine his intent, or (b) it is proved beyond any reasonable doubt that, at the time of conclusion of the contract, the person at risk did not intend to commit suicide.

Comments Rationale C1.  Several national laws provide that the insurer is relieved of the obligation to pay the insurance money in the case of suicide of the person at risk.79 There are two major exceptions: In some jurisdictions, the insurer may refuse payment only if the person at risk commits suicide within a certain period of time after the conclusion of the contract;80 even 79

S. 169 Austrian ICA; art. 239 Bulgarian ICA; art. L 132-7 French ICA; s. 161 German ICA; Art 1927 Italian CC; art. 833 Polish CC; art 191 Portugese ICA, art. 93 Spanish ICA. In the UK that is the effect of case law; see Beresford v Royal Exchange Assurance Company [1938] AC 586. 80 Art. 164 para. 2 Belgian IA 2014: one year; art. 239 Bulgarian ICA: one year; art. L 132-7 French ICA: one year; s. 161 German ICA: 3 years; art. 1927 Italian CC: two years; art. 191 Portuguese ICA: one year; art. 833 Polish CC: two years (at the same time parties can provide in the insurance contract that the shortest period may be six months); art. 93 Spanish ICA: one year.

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where there is no time limit provided by law, there seems to be a general practice in some jurisdictions to introduce a time limit by standard contract terms.81 The second exception applies in jurisdictions where suicide is covered regardless of the time which has elapsed since the conclusion of the contract if the person at risk acts in such a state of mental incapacity as to lack free will.82 C2.  Two alternative rationales might explain these national rules. On the one hand it is possible to interpret them as a qualification of the general principle that intentional causation of the insured event discharges the insurer from liability (see, for example, Article 9:101 which applies in indemnity insurance only). This explanation is not adequate in the case of life insurance since suicide in many cases is caused by supervening mental distress and can hardly ever be attributed to a long-term deliberate course of action. Suicide is often the materialisation of the risk of fatal mental illness or depression. C3.  An alternative rationale comes from the principle that an applicant would be obliged to disclose his intention to cause the insured event, an intention that deprives the insured event of its accidental and insurable character. However, questions posed by insurers concerning the applicant’s intention to commit suicide are futile and absurd. A rule establishing a clear time-limit avoids the need for such questions and related evidential difficulties which would otherwise result.

Scope C4.  The provision applies to all kinds of life insurance where the death of a person is an insured event. It does not matter whether the life insurance is a pure risk policy or a mixed life/investment policy.

Time Period C5.  Article 17:502 para. 1 provides for a period of one year. Arguably, the period could be five years and, thus, be brought in line with Article 17:201 para. 2 (stating the period throughout which the sanctions for pre-contractual information are available to the insurer). However, following the model of various national laws, the one year period was considered to be more appropriate in the given context. After all, it is difficult to think of a person who at the time of the formation of the contract is considering suicide but would wait for more than one year before carrying out that intention.

Mental Incapacity C6.  Even when the person at risk commits suicide during the first year after the formation of the contract the insurer is liable to pay in two cases: The first is that the mental state of the person at risk is such that it cannot be regarded as knowing the consequences of his actions (Article 17:502 para. 2(a)). The second covers situations where the person at risk did not anticipate the possibility of committing suicide at the time when he entered into the 81

As this is, for example, the case in Austria and the UK. See, for example: s. 169 Austrian ICA; s. 161 German ICA and art. 93 Spanish ICA.

82

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contract. If this is clearly and convincingly evidenced (proved beyond reasonable doubt), as for instance in cases where the person at risk commits suicide following an accident he suffers after the formation of the contract and which results in severe injuries with long-term effects, it seems fair to allow a beneficiary to claim the insurance money.

Discharge C7.  Where the insurer is discharged from having to pay the insurance money, a surrender value, if any, will still be paid to the beneficiary. It is the equivalent of having saved money. This applies even in cases where the insurer has terminated, rescinded or avoided the contract, for instance, because of a breach of the pre-contractual disclosure duties (Article 17:602 para. 2). This being so, a similar rule should apply in cases of suicide because there is no reason why the beneficiary should be treated in a different way. This is the effect of the reference in Article 17:502 para. 1. C8.  Article 17:502 is semi-mandatory in favour of the beneficiary (Article 1:103 para. 2) which allows derogation to his benefit. For example, when life insurance is used as an instrument to secure a loan, the insurer might grant unconditional cover even for suicide committed within the first year of the contract period.

Article 17:503 Intentional Killing of the Person at Risk (1) When a beneficiary kills the person at risk intentionally his designation as a beneficiary shall be deemed to be revoked. (2) An assignment of the claim to the insurance money shall be without effect if the assignee kills the person at risk intentionally. (3) When the policyholder who is also the beneficiary kills the person at risk intentionally, no insurance money shall be payable. (4) When the beneficiary or the policyholder who kills the person at risk does so justifiably, such as in the case of legitimate self-defence, this Article shall not apply.

Comments Rationale C1.  It is an acknowledged principle of insurance contract law that someone who intentionally kills a person at risk will not receive the insurance money.83 By distinguishing two different situations, German and Austrian laws are even more detailed: If a beneficiary is killed by the policyholder, the insurer is relieved of any obligation to pay either the insurance money or the surrender value. If the beneficiary kills the person at risk, the beneficiary is deemed not to have been designated. In such a case the insurance money is paid to the 83

See, for example, s. 170 Austrian ICA; art. 164 para. 2(2) Belgian IA 2014; art. 234 of the Bulgarian ICA; art. 7:973 Dutch CC; s. 29 Finnish ICA; s. 162 German ICA; art. 30 Greek ICA; art. 6:484 para. 2 Hungarian CC; art. 1922 Italian CC; art. 92 Spanish ICA. For the UK, see Beresford v Royal Exchange Assurance Company [1938] AC 586.

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other beneficiaries, if any, or to the policyholder or, if the policyholder is the person at risk, to his legal successors.

Scope C2.  In order to apply Article 17:503, the death of the person at risk as defined in Article 1:202 para. 3 must be an insured event. This is true for most life insurance contracts, in some Member States even by way of definition, either for pure risk contracts or mixed life insurances.

Details C3.  The basic principle underlying Article 17:503 is that the person who intentionally kills the person at risk will not be entitled to collect the insurance money. Depending on the circumstances of the case, there will either be no payment or payment to a person other than the killer. Where the killer is the policyholder and the beneficiary, the insurer will not have to pay out at all (para. 3). If, however, the killer is a beneficiary and not the policyholder, his designation will be deemed to be revoked (para. 1) and the policyholder or his heirs, as the case may be, will become beneficiaries, in accordance with Article 17:102 para. 3. If two or more beneficiaries have been designated, the insurance money will be distributed proportionately among those who were not involved in the killing (Article 17:102 para. 4). If the claim under the insurance contract has been assigned to a third party who kills the person at risk, the assignment is without effect (para. 2) and the beneficiary will collect the insurance money.

Intention C4.  All cases mentioned in Comment 3 have in common that the person who kills the person at risk does so intentionally. The provision does not apply if the person at risk is killed by an act of negligence, even gross negligence.

Self-Defence C5.  Para. 4 makes it clear that Article 17:503 paras. 1 to 3 do not apply when the beneficiary or the policyholder acts justifiably, in particular legitimate self-defence. If so, they will be entitled to the insurance money.

Mandatory Character C6.  Article 17:503 is an absolutely mandatory provision, in accordance with Article 1:103 para. 1. This means that the insurer cannot contract to pay the insurance money to the beneficiary or the policyholder who has intentionally killed the person at risk. The reason is obvious: There should be no incentive to commit a crime.

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Section Six: Conversion and Surrender Article 17:601 Conversion of the Contract (1) Article 5:103 shall not apply to contracts of life insurance which have attracted a conversion value or a surrender value. Such contracts shall be converted into paid-up policies unless the policyholder requires payment of the surrender value within four weeks after receiving the information referred to in para. 2. (2) The insurer shall inform the policyholder of the conversion value and the surrender value within four weeks of the expiry of the period referred to in Article 5:101(b) or Article 5:102 para. 1(b) and request the policyholder to choose between conversion and the payment of the surrender value. (3) The request for conversion or payment of the surrender value shall be in writing.

Comments Rationale C1.  Para. 1 is intended to protect the policyholder of a life insurance contract when otherwise the contract would be terminated because of his non-payment of the premium. Therefore the general rule of Article 5:103, providing for the right of the insurer to terminate the contract by written notice, does not apply to contracts which have attracted a conversion value or a surrender value. Whether such a value has been attracted depends on the kind of the life insurance contract and the duration of the contract as well as the requirements of the applicable supervisory law. The calculation of the conversion and/or the surrender value is dealt with in Article 17:603.

Policyholder’s Options C2.  In general, life insurance contracts under the first sentence of para. 1 are to be converted into paid-up policies. This means that there will be no further duty on the policyholder to pay premium. Other terms and conditions of the contract, in particular those regarding the death of the person at risk, remain applicable. The amount of the insurer’s obligation to pay becomes fixed at the time of conversion. C3.  Instead of requesting conversion, the policyholder may decide to terminate the contract and request the payment of its surrender value. In this case, the insurer is obliged to “buy back” the policy. Surrender of the contract is dealt with in Articles 17:602 and 17:603. If there is no request for the surrender value, the policy will be converted by operation of law.

Information Duty C4.  According to para. 2 the insurer must inform the policyholder about the conversion and/or surrender values. The provision refers to the periods under Articles 5:101(b) and 5:102 para. 1(b). The policyholder must be asked to choose between conversion and payment of the surrender value. If the insurer does not comply with its information duty,

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sanctions may result, such as damages, other remedies of general contract law or sanctions under supervisory law.

Form of Request C5.  Para. 3 requires the request of the policyholder for conversion to be in writing. Writing within the meaning of para. 3 includes electronic documents. The formal requirement under para. 3 serves evidentiary needs.

Article 17:602 Surrender of the Contract (1) The policyholder may at any time require the insurer in writing to pay, in part or in full, the surrender value which the policy has attracted, provided that this does not take effect earlier than one year after the conclusion of the contract. The contract shall be adjusted or terminated accordingly. (2) Subject to Article 17:601, if a contract of life insurance which has attracted a surrender value is terminated, rescinded or avoided by the insurer, it is obliged to pay the surrender value, even in the case of Article 2:104. (3) The insurer shall inform the policyholder upon request but in any case every year about the current amount of the surrender value and the extent to which it is guaranteed. (4) The share of any profit to which the policyholder is entitled shall be paid in addition to the surrender value, unless the share has already been taken account of in the calculation of the surrender value. (5) Sums due under this Article shall be paid no later than two months after the receipt of the policyholder’s request by the insurer.

Comments Right of Surrender (para. 1) C1.  Article 17:602 provides an alternative to Article 17:601. Instead of not paying the premium and opting for conversion of a life insurance contract the policyholder may, at any time after one year from the conclusion of the contract, terminate the contract and claim its surrender value. This mirrors a common solution which can be found in several Member States.84 The calculation of the surrender value is dealt with in Article 17:603. Payment must be made by the insurer to the beneficiary of the surrender value in accordance with Article 17:103.

84

Cf. for instance ss. 165, 176 Austrian ICA; art. 7:978 Dutch CC; s. 13 Finnish ICA; art. 6:481 para. 2 Hungarian CC; art. 89 Spanish ICA. In Greece, art. 29 para. 3 Greek ICA provides that, in case of individual life insurance contract, the policyholder is entitled to request the surrender of his policy after the lapse of a period which is stipulated in the policy and which may not be longer than three years, whereas different arrangements may be made in case of group life insurance contract.

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C2.  The request by the policyholder to terminate the contract and have the surrender value paid to him must be in writing in accordance with para. 1. For the requirement of writing, see Article 17:601 para. 3 and Article 17:601 Comment 5.

Termination by the Insurer (para. 2) C3.  Para. 2 grants the policyholder a right to the surrender value also in cases where the contract is terminated, rescinded or avoided not by the policyholder but by the insurer. This applies even if the contract has been avoided because of a fraudulent breach of the applicant’s pre-contractual disclosure duty, Article 2:104.

Insurer’s Information Duty (para. 3) C4.  In accordance with para. 3, at least every year, the insurer is obliged to inform the policyholder about the amount of the surrender value and the extent to which it is guaranteed either by contract or by the applicable supervisory law. In addition there is such an information duty whenever the policyholder requests the information. Thus, a policyholder who wants to make use of the right under para. 1 will usually request information on the current surrender value under para. 3.

With-profits Policies (para. 4) C5.  With-profits life insurances entitle policyholders to participate in the insurer’s profits as defined in the contract and by the applicable supervisory law. Where the policyholder claims the surrender value, the insurer must pay out the appropriate share of profits. The only exception to this rule is the case where profits have already been taken account of in calculating the surrender value.

Time of Payment (para. 5) C6.  Para. 5 states the due date for the payment of the sums provided for in Article 17:602. Two months seem to be a reasonable period of time to allow the insurer to make a payment even if it might be forced to realise assets or investments.

Article 17:603 Conversion Value; Surrender Value (1) The insurance contract shall state the way the conversion value and/or the surrender value is calculated in accordance with the law of the home Member State of the insurer. The stated way of calculating the surrender and/or conversion value shall comply with established actuarial principles and with para. 2. (2) When the insurer deducts the costs of concluding the contract, it shall do so in equal amounts and over a period of no less than five years. (3) The insurer is entitled to deduct an appropriate amount, which is calculated in accordance with established actuarial principles, to cover costs related to the payment of the surrender value, unless the calculation already includes such reduction.

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Comments Home Country Principle (first sentence of para. 1) C1.  Article 17:603 does not prescribe the way the conversion and the surrender value have to be calculated. Instead, para. 1 refers to “the law of the home Member State of the insurer” for the purpose of the calculation of the surrender or conversion value. In most cases, insurance supervisory law regulates the matter. Alternatively, national law may regulate the calculation partly by supervisory law and partly by contract law.85 C2.  Article 17:603 does not interfere with the way national law regulates these issues. Reference to the home country is in line with the home country control principle as applied by Solvency II Directive (2009/138/EC; see in particular art. 30 para. 1). These also define the home Member State (see art. 13 para. 8 of the Solvency II Directive (2009/138/EC)). C3.  Para. 1 obliges the insurer to “state the way the conversion value and/or the surrender value is calculated” in the insurance contract. Also, additional national rules of the law of the insurer’s home country might apply to this information duty. These may include information on the cost of investments and other costs the insurer is confronted with; see also the insurer’s pre-contractual information duties in this respect in Article 17:202 para. 2(iv).

Established Actuarial Principles (second sentence of para. 1) C4.  The way of calculating the surrender and/or conversion value in accordance with the law of the insurer’s home country must “comply with established actuarial principles” as well as with para. 2. This is explicitly required to ensure a mandatory standard irrespective of whether and to what extent they are provided for in the law of the insurer’s home country. In order to comply with the actuarial principles, the calculation must at least be intelligible to an independent actuary.

Deduction of Costs of Contract Conclusion (para. 2) C5.  When calculating the surrender and/or conversion value, insurers may deduct costs of contract conclusion such as commissions to be paid to the intermediary. The applicable supervisory law may restrict such deduction. In any event, para. 2 requires the insurer to spread the deduction of costs in equal amounts over a period of at least five years. As a result, if the policyholder requests payment of the surrender value by the end of the first year, the insurer will be allowed to deduct 20 per cent of the costs of contract conclusion as a maximum only. Thus, para. 2 ensures that a contract will attract a positive surrender value at an early stage. 85

See, for example, s. 176 paras. 3 to 5 Austrian ICA; s. 169 para. 3 German ICA; art. 91 of the Swiss ICA. For Greece, see for example art. 29 para. 4 Greek ICA, pursuant to which, in case of a surrender or in case of any termination of an insurance contract, the insurer grants the policyholder the surrender value; the insurer’s expenses which “burden” the specific insurance contract as well as the premium with a saving element constitute the basis for calculation of the surrender value. Further provisions on surrender value are laid down in the Greek Legislative Decree on Insurance Undertakings.

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Deduction of Costs of Payment of the Surrender Value (para. 3) C6.  Payment of the surrender value may be connected to particular costs for the insurer where, for example, a disinvestment is required. Insurers are allowed to deduct “an appropriate amount” from the surrender value in order to cover these costs if they have not already been accounted for when calculating the surrender value. The deducted amount must be appropriate and not exceed the insurer’s costs of payment; it must not be a penalty. Established actuarial principles have to be followed.

Part Six: Group Insurance Chapter Eighteen: Special Provisions for Group Insurance Section One: Group Insurance in General Article 18:101 Applicability Contracts for group insurance are subject to the PEICL provided that the group organiser and the insurer have made the agreement in accordance with Article 1:102. Group insurance is either accessory and subject to Section 2 of this Chapter or elective and subject to Section 3 of this Chapter.

Comments Background C1.  Group insurance contracts are widely used products because they can be tailored to the specific needs of certain groups, thus achieving benefits of economies of scale not available to individual policyholders. In such cases, typically the underwriting process works differently, as insurers tend to assess and underwrite the risk with respect to the group as a whole, and not to its individual members.

Definition C2.  Group insurance contracts are structured as contracts between an insurer and a group organiser for the benefit of group members with a common link to the group organiser, see the first sentence of Article 1:201 para. 7 PEICL. In practice, the common link in question may often be membership of an organisation or a legal relationship with the group organiser (for example, employment contracts, membership of a trade union and so on). However, any kind of social contact might suffice (for example, visitors to a sports event, to school fairs and so on).

Classification C3.  The PEICL aim to regulate group insurance systematically. In contrast, the subject is not dealt with comprehensively by most national laws. Many national laws do not contain

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any rules on group insurance whereas others deal with the subject extensively.86 Under the PEICL, group insurance may be either accessory or elective. Both terms are defined in Article 1:201 paras. 8 and 9. C4.  Under an accessory group insurance contract group members are automatically insured by belonging to the group and without being able to refuse insurance. In contrast, in elective group insurance the inception of cover is the result of personal application or non-refusal of an offer of cover. Given the particular nature and widespread use of accessory group insurances, the application of the PEICL to such contracts may require special attention by the judge – see Article 18:201.

Applicability of the PEICL C5.  Contracts for group insurance will be subject to the PEICL if the group organiser and the insurer agree in accordance with Article 1:102. In such cases, the legal position of the group members will be determined by the PEICL and consent by the group members is not required. This applies even to elective group insurance where group members choose to join the insurance scheme which, however, is pre-existing and based on the PEICL according to the agreement between the insurer and the group organiser. The only choice they have is to join the insurance scheme and accept the application of the PEICL whereas they cannot join the scheme and opt out of the PEICL.

Article 18:102 General Duty of Care of the Group Organiser (1) In the negotiation and performance of a contract for group insurance, the group organiser shall act dutifully and in good faith taking account of the legitimate interests of the group member. (2) The group organiser shall forward any relevant notices issued by the insurer to the group members and inform them about any amendments to the contract.

Comments Rationale C1.  The group organiser (whether for instance an employer, a bank or an insurance broker) plays a key role in both establishing and operating group insurance. As a rule, members of the group have very little, if any, influence on the terms and conditions negotiated by the group organiser with the insurer. Also, the group organiser is typically the link between the 86

In Spain, art. 81 ICA regulates group insurance in the area of personal insurances only, similarly to art. L141-1 to 7 of the French ICA, inserted into the text in 2005. Finland and Sweden are exceptions with their detailed regulation on the subject: s. 2 Finnish ICA provides the legal definition of group insurance, with s. 4 listing the rules applicable to group insurance and ss. 76 to 80 containing specific rules. The Swedish ICA contains four chapters with more than 80 articles on the subject (cf. Chapters 17-20 of the Swedish ICA). In Austria (although the term “group insurance” is used in s. 178m ICA), Germany, Poland and in the UK group insurance is not specifically regulated by contract law.

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insurer and the group members, transmitting information, documents, premiums, even insurance money. In this way, the role of group organisers may look very similar to that of an agent. This position may be abused in order to avoid rules relating to insurance intermediaries. However, this is primarily a matter for the relevant regulation of the profession whereas the PEICL only deal with aspects of insurance contract law.

Duty of Care C2.  Because the group organiser’s role is similar to that of an agent, the PEICL impose a general duty of care on the group organiser both when concluding and administering the contract. The wording follows the Commercial Agency Directive (86/653/EEC).87 The group organiser is therefore obliged to look after the legitimate interests of group members and act dutifully and in good faith.88 The duty of care is a consequence of the insurer’s and the group organiser’s agreement on the application of the PEICL. It benefits the individual group member as a third party. C3.  Article 18:101 ensures that the group organiser does not put his own interests above those of the group member (the future insured), for example, in earning commission. It requires the group organiser to seek terms and conditions of the group insurance which reflect the actual risk and the discernable needs of group members. It may also require the group organiser to make sure that the information provided under Article 18:202 will be in a language which the group member is able to understand. Should the group organiser breach his general duty of care, there will be an appropriate remedy which may well provide for damages, see also Article 1:105 Comment 7.

Duty under Contract C4.  The relationship between the group organiser and the group member may provide for further obligations on the group organiser. For example, the terms of a credit agreement between a bank and a borrower may specify the terms of the group insurance to protect the loan; a contract of employment may specify those of a life or health or accident insurance for the benefit of the employee. Where the group organiser is a regulated insurance intermediary, the additional information duties under the Insurance Mediation Directive (2002/92/EC), as amended, apply.89

Information (para. 2) C5.  The special position of the group organiser, as negotiator of the group insurance and as link between the insurer and the group members, makes the organiser the arterial avenue for transmitting contractual information to the group members. Para. 2 specifies a particular aspect of the general duty of care under para. 1. The organiser must forward any relevant notices issued by the insurer to the group members and inform them about any amendments to the contract. This information must be in the language in which the contract 87

See art. 3 para. 1. For Germany BGH 8.5.2013 Versicherungsrecht 2013, 853; Wandt, Zulässigkeit, 856. 89 See especially art. 12 (to be amended under the Proposal for an IDD). 88

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is negotiated (Article 1:203 para. 1); translation might be required under the general duty of care under para. 1 where the group organiser knows or should know that the particular group member does not understand the language of the contract. C6.  Para. 2 will apply to elective group insurance only occasionally, as in this area the general information duty of the insurer to the insured applies. However, there will be a duty, for instance, to inform group members about the termination of the framework contract. This information is important because group members are not parties to the framework contract and would otherwise not obtain information on its termination.

Section Two: Accessory Group Insurance Article 18:201 Application of the PEICL Where necessary, the PEICL shall be applied to accessory group insurance mutatis mutandis.

Comments Group Insurance and Protection of Group Members C1.  In accordance with Article 18:101, contracts for group insurance are subject to the PEICL provided that the group organiser and the insurer have made an agreement in accordance with Article 1:102. The question then arises whether it is possible for the group insurance contract to derogate from the PEICL. The basic rule of Article 1:103 para. 3 is that derogation shall be allowed for the benefit of any party in contracts covering large risks. In the context of group insurance this would mean that it would be the characteristics of the group organiser which are decisive. This would have the effect of leaving the group members, even consumers, unprotected in most cases. C2.  Therefore, to protect group members in accessory group insurance, derogation from the PEICL will only be allowed against those members who satisfy the criteria of a large risk (Article 1:103 para. 3). In addition, the rules mentioned in Article 1:103 para. 1 are absolutely mandatory and thus will always apply even in respect of large risk insurance.

Straightforward Application of the PEICL C3.  Accessory group insurance is concluded between an insurer and a group organiser, making the group organiser the policyholder under such a contract. Thus, when applying the PEICL to accessory group insurance, provisions concerning the policyholder are applicable to the group organiser only. For instance, the duty to warn the policyholder about inconsistencies in the cover under Article 2:202 is clearly a duty to warn the group organiser. The policyholder’s right to terminate the contract under Article 17:204 is also a right vested in the group organiser. On the other hand, group members may have the position of an insured, beneficiary or a person at risk, as the case may be, and thus be affected by the relevant provisions of the PEICL.

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Application of the PEICL mutatis mutandis C4.  However, the straightforward application of the PEICL to accessory group insurance does not always lead to satisfactory or even sensible outcomes. Therefore it is necessary for adjustment to provide for appropriate discretionary power; thus, the PEICL are applicable to accessory group insurance with “the necessary changes having been made”. C5.  For example, a literal application of Article 17:102 would give the group organiser a right to designate beneficiaries. Sometimes this may be the case (for example in loan insurance) but more often it is the group member who has the right to designate the beneficiaries. The same applies to Articles 17:103 and 17:104. Regarding the duty to warn the policyholder about inconsistencies in the cover under Article 2:202 the inconsistencies have to be determined in light of the need for cover of the group member, while the warning has to be addressed to the group organiser (see Comment 3).

Contract Terms and the mutatis mutandis Rule C6.  It will primarily be up to the parties to provide for a sensible application of the PEICL to their accessory group insurance contract. The common way to do this is by way of appropriate contract terms. In the event of dispute, Article 18:201 confers the responsibility for review of such terms upon the competent court.

Need for Special Rules C7.  In some cases neither the straightforward application of the PEICL nor the mutatis mutandis rule will lead to satisfactory results. Special provisions for such cases is made in Articles 18:202 ff.

Article 18:202 Information Duties (1) When a group member joins the group, the group organiser shall without undue delay inform the member about (a) the existence of the insurance contract, (b) the extent of cover, (c) any precautionary measures and any other requirements for preserving cover, and (d) the claims procedure. (2) The burden of proving that the group member has received information required by para. 1 shall lie with the group organiser.

Comments Rationale C1.  The insurer’s pre-contractual information duties are regulated in Articles 2:201 ff. and include a duty to provide a pre-contractual document (Article 2:201), a duty to warn

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Article 18:202 Information Duties

about inconsistencies in the cover (Article 2:202) and a duty to warn about when the cover does or does not commence (Article 2:203). The insurer’s post-contractual information are a general information duty (Article 2:701) and a duty to give further information upon the policyholder’s request (Article 2:702). All these duties are duties of the insurer to the insurance applicant or policyholder, as the case may be. In accessory group insurance, the insurer owes these duties to the group organiser. C2.  The group members also need information about the insurance. However, applying the provisions referred to in Comment 1 mutatis mutandis to the group members would either not be possible at all (for example, where group members are unidentifiable) or be excessively costly. Therefore, special provisions on information duties are necessary.

Information Duty when a Person Joins a Group C3.  When applying the duty under Article 2:201 to accessory group insurance, it is the group organiser who needs to have the information therein in order to make an informed choice. Since individual group members are automatically insured under the group insurance, they do not have to make such a decision and thus information would partly be dysfunctional. C4.  What the group member does need, however, is information about the key aspects of the insurance contract as stated in para. 1. This includes information on (a) the existence of the insurance contract, (b) the extent of cover, (c) any precautionary measures and any other requirements for preserving cover, and (d) the claims procedure.

Time when Information has to be Provided C5.  For the same reason as mentioned in Comment 3, information does not need to be given in advance of joining the group. Instead it suffices that information is given without undue delay after that in accordance with para. 1. For instance, when an employer informs its employees (including new ones) about the group insurance by way of periodical circulars, this may be sufficient compliance with the duty.

Person Obliged to Provide Information C6.  The responsibility for giving the relevant information lies on the group organiser, not the insurer, as it is the group organiser who is aware of new members joining the group (see the example of new employees hired by the group organiser). The duty to provide information is a consequence of the insurer’s and the group organiser’s agreement on the application of the PEICL. It benefits the individual group member as a third party.

Sanctions C7.  The PEICL do not contain any specific sanction for a breach of para. 1. This question is left to the law governing the relation between the group organiser and a group member. This could result in the group member claiming damages.

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Burden of Proof C8.  As far as individual insurance policies are concerned, the burden of proving that the policyholder has received documents to be provided by the insurer lies with the insurer (Article 1:204). By analogy with this provision, according to para. 2 the group organiser bears the burden of proving that the group member has received information required under para. 1.

Information after Joining C9.  It is worth noting that the rule in para. 1 only provides for information about the insurance available when a person joins the group. The possibility of later amendments of the group insurance is covered by Article 18:102 para. 2. According to this provision the group organiser must forward any relevant notices issued by the insurer to group members and inform them about any amendments.

Article 18:203 Termination by the Insurer (1) For the purposes of Article 2:604, the exercise of the right of termination by the insurer shall only be regarded as reasonable if it is limited to the exclusion from cover of the group member to whom the insured event occurred. (2) For the purposes of Article 4:102 and Article 4:203 para. 1, the exercise of the right of termination by the insurer shall only have the effect of excluding those group members from cover who have not taken the required precautionary measures or whose risks were aggravated, as the case may be. (3) For the purpose of Article 12:102 termination of the insurance contract shall only have the effect of excluding group members who have transferred their title to insured property from cover.

Comments Rationale C1.  The PEICL permit, under specified conditions, contract clauses allowing the insurer to terminate the contract after the occurrence of an insured event (Article 2:604), where the policyholder breaches his duty to take precautionary measures (Article 4:102) and where he has aggravated the risk insured (Article 4:203). Straightforward application of these rules to group insurance could entail the termination of the entire group insurance contract as a result of the acts of a single group member. This would be against the purpose and spirit of group insurances. It would provide a welcome pretext to insurers which want to get rid of group insurances that have turned out to be commercially adverse. Article 18:203 therefore limits the effect of termination in such cases to the exclusion of the group member whose acts have given the reason for termination.

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Article 18:204 Right to Continue Cover – Group Life Insurance

Termination after Occurrence of the Insured Event C2.  Para. 1 confines the insurer’s right to terminate the group insurance contract under Article 2:604 to the exclusion of the group member involved in the occurrence of an insured event. The provision does not deal with the corresponding right of the policyholder, namely the group organiser. This right follows from a straightforward application of Article 2:604. Accordingly its exercise must be reasonable. Where, for example, the group organiser is in financial troubles and wants to mitigate them by terminating the group insurance, the exercise of the right to terminate would not appear to be reasonable.

Termination for Non-Compliance with Precautionary Measures or Aggravation of Risk (para. 2) C3.  In group insurance the risk is not usually individually assessed but assessed in respect of the whole group (see also Article 18:101 Comment 1). In a similar vein, precautionary measures which are designed to maintain the level of risk in accordance with that at the time of contracting are usually imposed, not on the single group member but on the group organiser. In the case of an aggravation of the collective risk or the non-compliance of the group organiser with precautionary measures, the sanctions follow from a straightforward application of Articles 4:102 and 4:203. C4.  However, there are exceptions where the conduct of the single group member is significant under the contract. Where that is the case the conduct of the individual group member and the aggravation of the individual risk should not lead to the termination of the whole group insurance contract. Para. 2 excludes such a disproportionate sanction, limiting termination to the exclusion of the individual group member in question. This exclusion will be possible regardless of whether the non-compliance with precautionary measures or the aggravation of risk can be ascribed to the individual group member directly or to a person for whose conduct the group member is accountable.

Termination by Transfer of Property (para. 3) C5.  Para. 3 deals with the problem where, in accordance with Article 12:102, the insurance contract is terminated by the transfer of insured property. In the case of accessory group insurance the rule must be that insurance cover of the transferred property ends but that the group insurance contract remains in force. Therefore, para. 3 states that for the purpose of Article 12:102 termination of the insurance contract shall only have the effect of excluding the group members who have transferred insured property.

Article 18:204 Right to Continue Cover – Group Life Insurance (1) If a contract for accessory group life insurance is terminated or if the member leaves the group, the cover ends after three months or with the expiry of the contract for group life insurance, whichever is earlier. When this occurs, the group member shall have a right to equivalent cover under a new individual contract with the insurer concerned without a new assessment of the risk.

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Chapter Eighteen: Special Provisions for Group Insurance

(2) The group organiser shall inform the group member in writing without undue delay about (a) the imminent termination of his cover under the contract for group life insurance, (b) his rights under para. 1 and (c) how to exercise those rights. (3) If the group member has indicated his intention to exercise his right under 18:204 para. 1, the contract between the insurer and the group member shall continue as an individual insurance contract at a premium calculated on the basis of an individual policy at that time without taking into account the current state of health or age of the group member.

Comments Rationale C1.  Accessory group insurance operates on the assumption that an individual joining a group such as a sports club or the workforce of a company is automatically insured if the group has group insurance. Correspondingly that person would lose insurance cover when leaving the group. In personal insurance, this loss of cover may create serious problems where the person in question has a serious illness and consequently can obtain individual cover only with extensive exclusions or not at all. Therefore, following the laws of some Member States,90 Article 18:204 grants the person the right to continue the insurance contract on an individual basis when leaving the group or when the group insurance contract ends. The rule is limited to accessory group life insurance since the PEICL do not generally address other kinds of personal insurance.

Cover in Transitional Period C2.  In accordance with Article 18:204, if an accessory group life insurance contract is terminated or if the member leaves the group, the cover does not end immediately but three months later. However, this does not apply where the group insurance ends earlier. In such case, prolongation is neither necessary nor justified as the group member should be aware of the duration of the group cover from the information received in accordance with Articles 18:102 and 18:202. C3.  During the three month prolongation the (former) group member has time to secure the continuation of his insurance cover in the form of individual insurance. Three months appear to be sufficient for communicating with the insurer, the group organiser and alternative insurers.

90

See, for example, s. 178 Austrian ICA (relating to health insurance), s. 80 Finnish ICA (relating to life insurance), s. 206 German ICA (relating to health insurance) and art. 138bis-8 Belgian ICA 2014 (relating to health insurance). According to s. 15 of Ch. 19 Swedish ICA there is a right to continuous cover in personal insurance with some limitations (see s. 16 of Ch. 19 ICA).

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Article 18:204 Right to Continue Cover – Group Life Insurance

Right to Individual Cover (para. 1) C4.  When accessory group life insurance cover terminates, a group member has a right to equivalent cover under a new individual contract with the insurer concerned without a new assessment of the risk. It should be noted that the member has this right regardless of whether the insurer offered such a product in its portfolio beforehand.

Contents of the Individual Insurance (paras. 1 and 3) C5.  Para. 1 protects the individual group member by ensuring the same benefits, namely the same insured sum and the same exclusion clauses, as provided by the group insurance. In particular, cover may not be refused and terms may not be altered on the basis of a new risk assessment. C6.  The insurer may recalculate the premium for the individual insurance contract. However, such recalculation must be done in accordance with para. 3. The insurer is not permitted to require a medical examination or answers to a questionnaire. Thus, the premium for the individual insurance must be based on the health of the member when joining the group life insurance and the insurer is not permitted to take into account any deterioration in the group member’s health in the meantime. If no risk assessment took place when the member joined the group, none is permissible at this stage either. If there was an individual risk assessment when the member joined the group, the individual insurance must be based on that. This means, for example, that the insurer may take into account diabetes which the member had when joining the group and which was taken into account in the group insurance, whereas cancer discovered later may not be taken into account. C7.  Therefore, in the case of continuation of cover the insurer is entitled to charge the current premium for an individual contract concluded at the time when the member joined the group. This may be a fictitious figure especially in cases where the insurer only offers the cover in question as group insurance.

Individual Insurance as a New Contract C8.  Technically the continuation of cover requires the conclusion of a new contract between the insurer and the former group member. However, as far as possible under national law, the individual insurance should be considered as the continuation of the previous group contract for the purpose of applying tax laws, rules of civil procedure and so on.

Group Organiser’s Information Duty C9.  Para. 2 requires the group organiser to inform the member promptly and in writing about the imminent termination of the group cover, the rights under para. 1 and how to exercise those rights. Such information is needed by the group member in order to exercise the rights under para. 1. The obligation is assigned not to the insurer but to the group organiser because the latter knows the members of the group.

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Chapter Eighteen: Special Provisions for Group Insurance

Sanctions for Breach of the Information Duty C10.  The PEICL do not contain any specific sanction for a breach of para. 2. This question is left to the law governing the relation between the group organiser and a group member. This could result in the group member claiming damages.

Section Three: Elective Group Insurance Article 18:301 Elective Group Insurance: General (1) Elective group insurance is deemed to be a combination of a framework contract between the insurer and the group organiser and individual insurance contracts concluded within such a framework by the insurer and the group members. (2) The PEICL apply to the individual insurance contracts where the group organiser and the insurer have agreed on their application but, except for Articles 18:101 and 18:102, the PEICL do not apply to the framework contract.

Comments Elective Group Insurances as Framework Contracts C1.  Elective group insurance is defined as group insurance under which group members are insured as a result of personal application or because they have not refused insurance offered, Article 1:201 para. 9. Article 18:301 para. 1 provides that (unlike accessory group insurance contracts) elective group insurance is based on a framework contract between the insurer and the group organiser which is not an insurance contract but which sets out scope and structure of the scheme which members of the group may join. Such a framework contract and the related individual insurance contracts with group members are to be regarded as separate legal instruments. This applies irrespective of whether the group organiser or the individual member pays the premium; however, the latter is common practice.

Applicability of the PEICL C2.  As the framework contract and the subsequent insurance contracts with the group members are separate legal instruments, the scope of application of the PEICL to both kinds of contracts must be determined. C3.  With regard to the individual insurance contracts Article 18:301 para. 2 prescribes that the PEICL shall apply where the insurer and the group organiser have agreed upon this in the framework contract. This applies even if the individual member does not opt for the application of the PEICL when joining the group. This follows from the fact that the member opts for a pre-existing insurance scheme subject to the PEICL. The only choice he has is to join it and accept the application of the PEICL or not to join. C4.  A framework contract is not an insurance contract under the definition in Article 1:201 para. 1. Consequently, the PEICL do not apply. However, where the framework con-

364

Article 18:302 Alteration of Terms and Conditions

tract provides for the application of the PEICL to the individual insurance contracts, the position of the group organiser must be governed by Article 18:101 (Applicability of the PEICL to Group Insurance) and Article 18:102 (General Duty of Care of the Group Organiser). This is why para. 2 declares the framework contract to be governed by these provisions.

Article 18:302 Alteration of Terms and Conditions Alteration of terms and conditions of the framework contract shall only affect the individual insurance contracts if effected in compliance with the requirements of Articles 2:603, 17:303 and 17:304, as appropriate.

Comments Rationale C1.  Article 18:301 treats the group insurance contract as a framework contract and individual insurance contracts. Thus, an alteration of the framework contract should not have effect on the individual insurance contracts. In order to alter the individual insurance contracts the insurer would have to follow the rules laid down in Articles 2:603, 17:303 and 17:304, where applicable. Article 18:203 makes this clear and applies even if the group insurance contract states otherwise.

Alteration of Terms and Conditions of the Framework Contract C2.  The term “alteration” in Article 18:302 should be understood in a broad sense to apply irrespective of the method by which the changes to the terms and conditions are effected. Alteration includes what in the framework contract is renegotiated by the insurer and the group organiser as well as a unilateral alteration of the framework contract by the insurer, if the framework contract gives the insurer such a power.

Requirements of Article 2:603 C3.  The reference to Article 2:603 means that any alteration of terms and conditions in the framework contract will alter the rights and duties of individual policyholders only (i) starting from the date when the next prolongation takes effect, (ii) if the insurer sends written notice of the alteration to the policyholder no later than one month before the expiry of the current contract period, and (iii) the notice informs the policyholder about his right to terminate the insurance contract and about the consequences if the right is not exercised. If these requirements are not all met, the alteration of the framework contract may be effective in relation to the group organiser but not to the policyholder in question. In order to bind the policyholder, the additional requirements under Article 2:603 must be observed.

Requirements of Articles 17:303 and 17:304 C4.  What has been said in Comment 3 about the requirements of Article 2:603 will apply mutatis mutandis to the requirements of Articles 17:303 and 17:304.

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Article 18:303 Continuation of Cover Termination of the framework contract or cessation of membership on the part of an individual group member shall not have any effect on the insurance contract between the insurer and the group member.

Comments Contents C1.  The termination of the framework contract or the cessation of membership of a group member will not have any effect on the insurance contract since the framework contract and the insurance contract with the group members are separate instruments. The insurance contract, previously within the elective group insurance scheme, will continue to exist as an individual insurance contract between the insurer and the policyholder on the same terms and conditions as originally agreed.

Possible Consequences of the Termination of the Framework Contract C2.  Nevertheless there may be consequences following from the termination of the framework contract on the administration of the individual insurance contract. For instance, termination of the framework contract by the insurer may terminate a previously granted authority of the group organiser to collect premiums on behalf of the insurer. In such a case premiums will have to be paid directly to the insurer. Another example would be termination of a framework contract due to a group organiser’s liquidation.

Comparison with Article 18:204 C3.  While Article 18:303 for elective group insurance and Article 18:204 for accessory group insurance address the same situation, both rules differ considerably. These differences are due to the different nature of both kinds of insurance. Whereas in the case of accessory group insurance termination of the group life insurance contract does have a direct effect on the insurance cover, the termination of the framework contract of an elective group insurance does not affect the existence of the individual insurance contracts.

366

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Chinese version by Yong Qiang Han

⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ ㅜа㕆䘲⭘Ҿᵜlj৏ࡉNJѝᡰᴹਸ਼Ⲵ‫਼ޡ‬ 䘲⭘Ҿᵜlj৏ࡉNJѝᡰᴹਸ਼Ⲵ‫਼ޡ‬ 㿴ᇊ

ㅜॱㄐԓս≲‫گ‬ᵳ

ㅜаㄐࡽ㖞㿴ᇊ ㅜа㢲ᵜlj৏ࡉNJѻ䘲⭘ ㅜҼ㢲а㡜㿴ࡉ ㅜй㢲ᢗ㹼

ㅜॱҼㄐᡰ‫؍‬仾䲙

ㅜҼㄐ‫؍‬䲙ਸ਼Ⲵࡍ࿻䱦⇥৺ަᵏ䰤 ㅜа㢲ᣅ‫؍‬ӪⲴ‫ݸ‬ਸ਼ؑ᚟ѹ࣑ ㅜҼ㢲‫؍‬䲙ӪⲴ‫ݸ‬ਸ਼ؑ᚟ѹ࣑ ㅜй㢲‫؍‬䲙ਸ਼Ⲵ䇒・ ㅜഋ㢲䘭ⓟ᢯‫؍‬оᲲ‫؍‬ ㅜӄ㢲‫؍‬অ ㅜ‫ޝ‬㢲‫؍‬䲙ਸ਼Ⲵᵏ䰤 ㅜг㢲ਸ਼ᡀ・ਾ‫؍‬䲙ӪⲴؑ᚟ѹ࣑ ㅜйㄐ‫؍‬䲙ѝӻ ㅜഋㄐᡰ‫؍‬仾䲙 ㅜа㢲亴䱢᧚ᯭ ㅜҼ㢲仾䲙໎࣐ ㅜй㢲仾䲙߿ቁ ㅜӄㄐ‫؍‬䲙䍩 ㅜ‫ޝ‬ㄐ‫؍‬䲙һ᭵ ㅜгㄐ䇹䇬ᰦ᭸ᵏ䰤 ㅜҼ㕆䘲⭘Ҿ㺕‫گ‬ර‫؍‬䲙Ⲵ‫਼ޡ‬㿴ᇊ 䘲⭘Ҿ㺕‫گ‬ර‫؍‬䲙Ⲵ‫਼ޡ‬㿴ᇊ ㅜ‫ޛ‬ㄐ‫؍‬䲙ԧ٬઼‫؍‬䲙䠁仍 ㅜҍㄐਇ㺕‫گ‬ѻᵳ࡙

ㅜॱаㄐ‫؍‬অᤱᴹӪѻཆⲴަԆ㻛‫؍‬䲙Ӫ

ㅜй㕆䘲⭘Ҿᇊ仍‫؍‬䲙Ⲵ‫਼ޡ‬㿴ᇊ 䘲⭘Ҿᇊ仍‫؍‬䲙Ⲵ‫਼ޡ‬㿴ᇊ ㅜॱйㄐ䘲⭘㤳ത ㅜഋ㕆䍓ԫ‫؍‬䲙 䍓ԫ‫؍‬䲙 ㅜॱഋㄐᲞ䙊䍓ԫ‫؍‬䲙 ㅜॱӄㄐⴤ᧕≲‫گ‬ᵳоⴤ᧕䇹䇬 ㅜॱ‫ޝ‬ㄐᕪࡦ‫؍‬䲙 ㅜӄ㕆Ӫሯ‫؍‬䲙 Ӫሯ‫؍‬䲙 ㅜॱгㄐӪሯ‫؍‬䲙⢩↺㿴ᇊ Ӫሯ‫؍‬䲙⢩↺㿴ᇊ ㅜа㢲ㅜйӪ ㅜҼ㢲ࡍ࿻䱦⇥оਸ਼Ⲵᵏ䰤 ㅜй㢲ਸ਼ᵏ䰤޵Ⲵਈॆ ㅜഋ㢲о޵ഭ⌅ѻ‫ޣ‬㌫ ㅜӄ㢲‫؍‬䲙һ᭵ ㅜ‫ޝ‬㢲䖜ᦒоਈ⧠ ㅜ‫ޝ‬㕆ഒփ‫؍‬䲙 ഒփ‫؍‬䲙 ㅜॱ‫ޛ‬ㄐഒփ‫؍‬䲙⢩↺㿴ᇊ ㅜа㢲ഒփ‫؍‬䲙ѻа㡜㿴ᇊ ㅜҼ㢲䱴኎රഒփ‫؍‬䲙 ㅜй㢲䘹ᤙරഒփ‫؍‬

369

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ㅜа㕆䘲⭘Ҿᵜlj৏ࡉNJѝᡰᴹਸ਼Ⲵ‫਼ޡ‬㿴ᇊ 䘲⭘Ҿᵜlj৏ࡉNJѝᡰᴹਸ਼Ⲵ‫਼ޡ‬㿴ᇊ ㅜаㄐࡽ㖞㿴ᇊ ࡽ㖞㿴ᇊ ㅜа㢲ᵜlj৏ࡉNJѻ䘲⭘ ᵜlj৏ࡉNJѻ䘲⭘ ㅜᶑ䘲⭘㤳ത  ᵜlj৏ࡉNJа㡜䘲⭘Ҿवᤜӂࣙ‫؍‬䲙൘޵Ⲵ䈨⿽୶ъ‫؍‬䲙DŽ  ᵜlj৏ࡉNJн䘲⭘Ҿ޽‫؍‬䲙DŽ

ㅜᶑԫ䘹䘲⭘ ྲ᷌ᖃһӪᐢ㓿а㠤㓖ᇊ‫؍‬䲙ਸ਼ਇᵜlj৏ࡉNJ㓖ᶏˈࡉᵜlj৏ࡉNJᗇԕ䘲⭘ǃфнਇ สҾഭ䱵⿱⌅Ⲵ⌅ᖻ䘹ᤙ䲀ࡦѻᖡ૽DŽ↔ཆˈ䲔ᵜlj৏ࡉNJㅜᶑ㿴ᇊѻཆˈᵜlj৏ ࡉNJᓄ䈕֌Ѫᮤփаᒦ䘲⭘ˈнᗇᧂ䲔ԫօ⢩ᇊᶑⅮDŽ

ㅜᶑᕪࡦ㿴ᇊ  ᵜlj৏ࡉNJㅜᶑㅜҼਕǃㅜᶑǃㅜᶑǃㅜᶑǃㅜᶑǃㅜ ᶑѪᕪࡦ㿴ᇊDŽަԆᶑⅮ‫⎹ޣ‬ሩⅪ䇸㹼Ѫѻ᜙㖊ᰦҏѪᕪࡦ㿴ᇊDŽ   ԕнᦏᇣ‫؍‬অᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫѻᵳ⳺Ѫ䲀ˈ‫؍‬䲙ਸ਼ਟԕሩᵜlj৏ࡉNJ ަԆᡰᴹ㿴ᇊҸԕਈ䙊DŽ  ྲ᷌‫؍‬䲙ਸ਼᢯‫Ⲵ؍‬ᱟ⅗ⴏ(&ᤷԔㅜᶑㅜⅮᡰࡇⲴབྷර仾䲙ˈࡉਟԕ ѪҶԫօаᯩᖃһӪⲴ࡙⳺㘼Ѫк䘠ㅜ Ⅾ㿴ᇊⲴਈ䙊DŽ൘ഒփ‫؍‬䲙ѝˈਈ䙊ᓄ䈕 ӵӵ䪸ሩњփ㻛‫؍‬䲙Ӫˈަ↔њփ㻛‫؍‬䲙Ӫ享ㅖਸ⅗ⴏ(&ᤷԔㅜᶑㅜ ⅮE亩ᡆF亩㿴ᇊⲴӪ䓛⢩ᖱDŽ

ㅜᶑ䀓䟺 ሩᵜlj৏ࡉNJѻ䀓䟺ˈ享‫ަᦞ׍‬᮷ᵜǃ䈝ຳǃⴞⲴ઼∄䖳⌅㛼Ჟ㘼䘋㹼ˈфቔަ享㘳㲁 ‫׳‬䘋‫؍‬䲙ъⲴ䈊ᇎؑ⭘о‫↓ޜ‬Ӕ᱃ǃਸ਼‫ޣ‬㌫ѝⲴ⺞ᇊᙗǃ⌅ᖻ䘲⭘Ⲵа㠤ᙗˈԕ৺ሩ ‫؍‬অᤱᴹӪѻ‫؍࠶ݵ‬ᣔDŽ

ㅜᶑ޵ഭ⌅оа㡜৏ࡉ  нᗇԕ޵ഭ⌅ѻ㿴ᇊሩᵜlj৏ࡉNJҸԕ䲀ࡦᡆ㺕‫ݵ‬DŽնᱟˈሩҾᵜlj৏ࡉNJѝ⢩࡛ 㿴ࡉᵚ⎹৺Ⲵ‫؍‬䲙亶ฏˈ޵ഭ⌅㤕ᴹᕪࡦ㿴ᇊ䘲⭘ѻˈࡉ䈕ᕪࡦ㿴ᇊਟԕሩᵜlj৏ ࡉNJҸԕ䲀ࡦᡆ㺕‫ݵ‬DŽ   ቡ‫؍‬䲙ਸ਼ѝᆈ൘ǃնᵜlj৏ࡉNJᵚҸ᰾⽪㿴ᇊⲴһ亩ˈ享䚥ᗚlj⅗⍢ਸ਼⌅৏ ࡉNJҸԕ䀓ߣ˗ྲlj⅗⍢ਸ਼⌅৏ࡉNJҏᰐ㿴ᇊˈࡉ享䚥ᗚ䈨ᡀઈഭ⌅ᖻѻ‫਼ޡ‬ а㡜৏ࡉ䀓ߣѻDŽ

ㅜҼ㢲а㡜㿴ࡉ ㅜᶑ‫؍‬䲙ਸ਼   Ā‫؍‬䲙ਸ਼āᱟᤷаᯩᖃһӪণ‫؍‬䲙ӪᦞԕੁਖаᯩᖃһӪণ‫؍‬অᤱᴹӪ᢯䈪ԕ‫؍‬ 䲙䍩Ѫሩԧ᢯‫؍‬⢩ᇊ仾䲙Ⲵਸ਼DŽ 4

৲㿱 Lando / Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000);Lando / Clive / Prüm / Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

370

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

 Ā‫؍‬䲙һ᭵āᱟᤷ‫؍‬䲙ਸ਼㓖ᇊⲴ仾䲙ѻ⧠ᇎॆDŽǃ  Ā㺕‫گ‬ර‫؍‬䲙āᱟᤷ‫؍‬䲙Ӫ享ቡ‫؍‬䲙һ᭵䙐ᡀⲴᦏཡҸԕ䎄‫؍Ⲵگ‬䲙DŽ  Āᇊ仍‫؍‬䲙āᱟᤷ‫؍‬䲙Ӫ享൘‫؍‬䲙һ᭵ਁ⭏ਾ᭟Ԉപᇊ䠁仍Ⲵ‫؍‬䲙DŽ  Ā䍓ԫ‫؍‬䲙āᱟᤷԕ㻛‫؍‬䲙Ӫሩਇᇣ㘵Ⲵ⌅ᖻ䍓ԫѪ仾䲙Ⲵ‫؍‬䲙DŽ   ĀӪሯ‫؍‬䲙āᱟᤷ‫؍‬䲙ӪⲴѹ࣑ᡆ‫؍‬䲙䍩ѻ᭟ԈਆߣҾӵ㜭ԕ仾䲙Ӫѻ↫ӑᡆ⭏ᆈ Ѫ‫؍‬䲙һ᭵Ⲵ‫؍‬䲙DŽ   Āഒփ‫؍‬䲙ਸ਼āᱟᤷ‫؍‬䲙Ӫоഒփ㓴㓷㘵ѪҶഒփᡀઈѻ࡙⳺Ⲵਸ਼˗ഒփᡀઈ оഒփ㓴㓷㘵ާᴹ‫Ⲵ਼ޡ‬㚄㌫DŽഒփ‫؍‬䲙ਸ਼ਟԕ᢯‫؍‬ഒփᡀઈѻᇦᓝᡀઈDŽ   Ā䱴኎රഒփ‫؍‬䲙āᱟᤷഒփᡀઈ⭡Ҿ኎Ҿ⢩ᇊഒփ㘼㠚ࣘ㻛᢯‫؍‬фᡀઈн㜭ᤂ㔍 㻛᢯‫Ⲵ؍‬ഒփ㜭‫؍‬䲙DŽ   Ā䘹ᤙරഒփ‫؍‬䲙āᱟᤷഒփᡀઈสҾњӪᣅ‫؍‬ᡆ⭡Ҿ⋑ᴹᤂ㔍‫؍‬䲙㘼㻛᢯‫Ⲵ؍‬ഒ փ‫؍‬䲙DŽ

ㅜᶑᴤཊᇊѹ  Ā㻛‫؍‬䲙Ӫāᱟᤷަ࡙⳺ṩᦞ㺕‫گ‬ර‫؍‬䲙ਇࡠ‫؍‬ᣔԕ‫ݽ‬䚝ਇᦏཡⲴӪDŽ  Āਇ⳺Ӫāᱟᤷṩᦞᇊ仍‫؍‬䲙ਇ亶‫؍‬䲙䠁ⲴӪDŽ  Ā仾䲙Ӫāᱟᤷަ⭏ભǃ‫ڕ‬ᓧǃ䈊ᇎᡆ䓛ԭ㻛ᣅ‫Ⲵ؍‬ӪDŽ  Āਇᇣ㘵ā൘䍓ԫ‫؍‬䲙ѝᱟᤷ㻛‫؍‬䲙ӪѪަ↫ӑǃՔᇣᡆᦏཡ᢯ᣵ䍓ԫⲴӪDŽ  Ā‫؍‬䲙ԓ⨶Ӫāᱟᤷ‫؍‬䲙ӪѪ䬰୞ᡆ㇑⨶‫؍‬䲙ਸ਼㘼䳷֓Ⲵ‫؍‬䲙ѝӻDŽ  Ā‫؍‬䲙䍩āᱟᤷ‫؍‬অᤱᴹӪѪҶᗇࡠ᢯‫؍‬㘼享ੁ‫؍‬䲙Ӫ᭟ԈⲴ䍩⭘DŽ   Āਸ਼ᵏ䰤āᱟᤷਸ਼ѹ࣑ᵏ䰤DŽަ࿻Ҿਸ਼䇒・ǃ㓸Ҿ㓖ᇊⲴᆈ㔝ᵏ䰤ቺ┑ѻ ᰦDŽ  Ā‫؍‬䲙ᵏ䰤āᱟᤷᖃһӪ㓖ᇊⲴ‫؍‬䲙䍩ࡠᵏᵏ䰤DŽ  Ā  䍓ԫᵏ䰤āᱟᤷ᢯‫؍‬ᵏ䰤DŽ  Āᕪࡦ‫؍‬䲙āᱟᤷṩᦞ⌅ᖻᡆⴁ㇑㿴ᇊⲴᣅ‫؍‬ѹ࣑㘼ᣅ‫؍Ⲵ؍‬䲙DŽ

ㅜᶑ䈝䀰о᮷Ԧ䀓䟺   ‫؍‬䲙Ӫᨀ‫Ⲵ׋‬а࠷Җ䶒ᶀᯉ䜭享֯⭘୶⍭䇒・ਸ਼ᡰ⭘Ⲵ䈝⿽ˈф⭘䈝ᗵ享ᒣᇎ᱃ ៲DŽ   ྲ᷌‫؍‬䲙Ӫᨀ‫Ⲵ׋‬Җ䶒ᶀᯉѝ⭘䇽ѻ᜿ѹᡆަᨀ‫ؑⲴ׋‬᚟ᴹ⯁ѹˈࡉᓄԕᴰᴹ࡙Ҿ ‫؍‬অᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺ӪⲴ䘲ᖃ䀓䟺Ѫ߶DŽ

ㅜᶑҖ䶒ᶀᯉ᭦ᦞ˖䇱ᦞ㿴ࡉ 䇱᰾‫؍‬অᤱᴹӪᐢ㓿᭦ࡠ‫؍‬䲙Ӫᨀ‫Ⲵ׋‬Җ䶒ᶀᯉѻ䍏ᣵˈ⭡‫؍‬䲙Ӫ᢯ᣵDŽ

ㅜᶑ䙊⸕ ṩᦞlj⅗⍢ਸ਼⌅৏ࡉNJѝⲴާփ㿴ࡉˈᣅ‫؍‬Ӫǃ‫؍‬অᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫ‫ࠪڊ‬ Ⲵо‫؍‬䲙ਸ਼ᴹ‫Ⲵޣ‬䙊⸕нᗵ䟷ਆԫօ⢩ᇊᖒᔿDŽ

ㅜᶑ᧘ᇊ⸕䚃 ྲ᷌‫؍‬অᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫሶ䇒・ਸ਼ᡆን㹼ਸ਼ᡰᗵ䴰Ⲵһ亩ငᢈҾԆӪˈ ࡉᓄ䈕᧘ᇊ䈕ԆӪᇎ䱵⸕䚃ᡆᓄ䈕⸕䚃Ⲵ⴨‫ؑޣ‬᚟ӖѪާփᇎᯭࡽ䘠ငᢈⲴ‫؍‬অᤱᴹ Ӫǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫ⸕䚃DŽ

5

ᵜᶑㅜ˄2˅ⅮԕDirective 93 / 13 / EECㅜ5ᶑѪ㬍ᵜDŽ

371

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ㅜᶑ৽↗㿶   ᙗ࡛ǃᘰᆅǃྷӗᵏǃഭ㉽ԕ৺⿽᯿ᡆ≁᯿ᡀ࠶нᗇѪሬ㠤њӪѻ㿱‫؍‬䲙䍩઼‫؍‬䲙 䠁ᐞᔲⲴഐ㍐DŽ   䘍৽к䘠ㅜ ⅮⲴਸ਼ᶑⅮवᤜо‫؍‬䲙䍩ᴹ‫Ⲵޣ‬ᶑⅮ ሩ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫ ᰐ㓖ᶏ࣋DŽṩᦞл䘠ㅜ Ⅾˈਸ਼ᓄ䈕สҾ䶎↗㿶ᶑⅮ㘼ሩৼᯩᖃһӪ㔗㔝ᴹ㓖 ᶏ࣋DŽ  ൘к䘠ㅜ Ⅾ㻛䘍৽ѻᛵᖒˈ‫؍‬অᤱᴹӪᴹᵳ㓸→ਸ਼DŽ㓸→ਸ਼Ⲵ䙊⸕ᓄ൘‫؍‬অ ᤱᴹӪ⸕䚃к䘠㿴ᇊ㻛䘍৽ѻᰕ䎧єњᴸ޵ԕҖ䶒ᖒᔿਁࠪDŽ

ㅜᶑสഐ⍻䈅   ‫؍‬䲙Ӫнᗇ㾱≲ᣅ‫؍‬Ӫǃ‫؍‬অᤱᴹӪᡆ仾䲙Ӫ䘋㹼สഐ⍻䈅ᡆ㾱≲ަᣛ䵢สഐ⍻䈅 ѻ㔃᷌DŽ‫؍‬䲙Ӫҏнᗇ֯⭘↔⿽ؑ᚟䘋㹼仾䲙䇴ՠDŽ   к䘠ㅜаⅮ㿴ᇊн䘲⭘ҾྲлᛵᖒⲴӪ䓛‫؍‬䲙˖ྲ᷌仾䲙Ӫᒤ┑ॱ‫ޛ‬኱ǃфሩަᣅ ‫؍Ⲵ؍‬䲙䠁仍䎵䗷йॱз⅗‫ݳ‬ᡆ‫؍‬অ亩л㔉Ԉ仍⇿ᒤ䎵䗷йз⅗‫ݳ‬DŽ

ㅜй㢲ᢗ㹼 ㅜᶑ⾱Ԕ   ྲ᷌ᵜlj৏ࡉNJ‫׍‬ㅜᶑᗇԕ䘲⭘ˈࡉㅖਸл䘠ㅜ Ⅾ㿴ᇊⲴ䘲Ṭѫփᴹᵳੁ ᴹ㇑䗆ᵳⲴ޵ഭ⌅䲒ᡆᵪᶴ⭣䈧⾱Ԕˈԕ⾱→ᡆ㾱≲‫→ڌ‬䘍৽ᵜlj৏ࡉNJⲴ㹼ѪDŽ  䘲Ṭѫփˈᱟᤷ⅗ⴏငઈՊṩᦞ⅗⍢䇞Պ઼⅗⍢⨶һՊᒤᴸᰕ亱ᐳⲴ‫ޣ‬ҾѪ Ҷ‫؍‬ᣔ⎸䍩㘵࡙⳺㘼‫؞‬䇒Ⲵ(&ਧᤷԔㅜᶑ㘼ࡇࠪⲴ਽অѝⲴѫփᡆ㓴㓷DŽ

ㅜᶑ⌅䲒ཆᣅ䇹оᮁ⍾ᵪࡦ ᵜlj৏ࡉNJѻ䘲⭘нᧂ䲔‫؍‬অᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫራ≲ަਟԕ㧧ᗇⲴ⌅䲒ཆᣅ䇹 ઼ᮁ⍾ᵪࡦDŽ

ㅜҼㄐ‫؍‬䲙ਸ਼Ⲵࡍ࿻䱦⇥৺ަᵏ䰤 ㅜа㢲ᣅ‫؍‬ӪⲴ‫ݸ‬ਸ਼ؑ᚟ѹ࣑ ㅜᶑᣛ䵢ѹ࣑   ᣅ‫؍‬Ӫ䇒・ਸ਼ˈᓄሶ㠚ᐡ⧠൘⸕䚃ᡆ⧠൘ᓄ䈕⸕䚃Ⲵǃф‫؍‬䲙Ӫ␵ᾊ߶⺞䰞ࡠⲴ ᛵᖒ੺䇹‫؍‬䲙ӪDŽ  ࡽⅮᨀ৺Ⲵᛵᖒˈवᤜ㻛‫؍‬䲙Ӫ䗷৫ᴮ㓿⸕䚃ᡆ䗷৫ᵜᓄ䈕⸕䚃ⲴᛵᖒDŽ

ㅜᶑ䘍৽ᣛ䵢ѹ࣑   ྲ᷌‫؍‬অᤱᴹӪ䘍৽ㅜᶑˈࡉ‫ྲ׍‬лㅜ Ⅾ㠣ㅜ Ⅾˈ‫؍‬䲙Ӫᴹᵳᨀࠪሩਸ ਼Ҹԕਸ⨶ਈᴤᡆ㓸→ਸ਼DŽѪ↔ˈ‫؍‬䲙Ӫ享൘ަ⸕䚃‫؍‬অᤱᴹӪ䘍৽ѹ࣑ѻһᇎ ᰦ䎧ањᴸ޵ቡަਈᴤᡆ㓸→ਸ਼ѻ᜿ᙍੁ‫؍‬অᤱᴹӪ䘋㹼Җ䶒䙊⸕ˈᒦ䈤᰾ަ᜿ ᙍѻ⌅ᖻਾ᷌DŽ   ྲ᷌‫؍‬䲙Ӫᨀࠪሩਸ਼Ҹԕਸ⨶ਈᴤˈࡉਸ਼สҾ‫؍‬䲙ӪᨀࠪⲴਸ⨶ਈᴤ㘼㔗㔝ᴹ ᭸ˈն‫؍‬অᤱᴹӪ൘᭦ࡠࡽⅮ㿴ᇊⲴ䙊⸕ᰦ䎧ањᴸ޵ᤂ㔍‫؍‬䲙ӪᨀࠪⲴਸ਼ਈᴤ 6 7

ᵜᶑԕDirective 2004 / 113 / ECѪ㬍ᵜDŽ ᵜᶑԕDirective 2009 / 22 / ECѪ㬍ᵜDŽ

372

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ᯩṸᰦ䲔ཆDŽ൘‫؍‬অᤱᴹӪᤂ㔍ਈᴤѻᛵᖒˈ‫؍‬䲙Ӫᴹᵳ൘᭦ࡠᤂ㔍䙊⸕ᰦ䎧ањ ᴸ޵㓸→ਸ਼DŽ   ྲ᷌‫؍‬অᤱᴹӪ䘍৽ㅜᶑᒦᰐ䗷䭉ˈࡉ‫؍‬䲙Ӫнᗇ㓸→ਸ਼ˈն‫؍‬䲙Ӫ㜭䇱᰾ ‫ؑޣ⴨֯ٷ‬᚟㻛ᣛ䵢ࡉަṩᵜнՊ䇒・ਸ਼ᰦ䲔ཆDŽ  ਸ਼㓸→Ӿ‫؍‬অᤱᴹӪ᭦ࡠᵜᶑㅜ Ⅾ㿴ᇊⲴҖ䶒䙊⸕ѻᰕањᴸਾਁ⭏᭸࣋DŽਸ ਼ਈᴤⲴ⭏᭸ᰦ䰤⭡ᖃһӪ㓖ᇊDŽ   ྲ᷌‫؍‬䲙һ᭵ᱟᣅ‫؍‬仾䲙ѝⲴḀ⿽ഐ㍐ሬ㠤ǃф‫؍‬অᤱᴹӪᵚᣛ䵢䈕ഐ㍐ᡆቡ↔ᴹ 㲊‫ٷ‬䘠ㆄˈф䈕‫؍‬䲙һ᭵ਁ⭏൘‫؍‬䲙ਸ਼㓸→ᡆਈᴤਁ⭏᭸࣋ѻࡽˈࡉ‫؍‬䲙Ӫᴹᵳ н᭟Ԉ‫؍‬䲙䠁ˈնԕަ‫⸕֯ٷ‬䚃⴨‫ࡽޣ‬䘠ؑ᚟‫ׯ‬нՊ䇒・ਸ਼Ѫ䲀DŽྲ᷌‫؍֯ٷ‬䲙 Ӫ⸕䚃ࡽ䘠⴨‫ؑޣ‬᚟ਾӽՊԕ䖳儈‫؍‬䲙䍩ᡆԕн਼ᶑⅮ᢯‫ަࡉˈ؍‬ᓄ䈕᤹➗ᇎ䱵‫؍‬ 䲙䍩઼䖳儈‫؍‬䲙䍩Ⲵ∄ֻ᭟Ԉ‫؍‬䲙䠁ǃᡆ᤹➗䈕н਼ᶑⅮ᭟Ԉ‫؍‬䲙䠁DŽ

ㅜᶑֻཆ ㅜᶑⲴ᜙㖊ᙗ㿴ᇊн䘲⭘Ҿྲлᛵᖒ˖ D ‫؍‬অᤱᴹӪṩᵜᵚഎㆄⲴᨀ䰞ˈᡆަᨀ‫ؑⲴ׋‬᚟᰾ᱮнᆼᮤᡆн↓⺞˗ E  ‫؍‬অᤱᴹӪᵜᓄ䈕ᣛ䵢Ⲵؑ᚟ᡆަн߶⺞ᨀ‫ؑⲴ׋‬᚟ˈሩҾањ⨶ᙗ‫؍‬䲙ӪⲴᱟ੖ 䇒・ਸ਼ѻߣᇊᡆԕօ⿽ᶑⅮ䇒・ਸ਼ѻߣᇊᒦн䟽㾱˗ F ؑ᚟ᵚ㻛ᣛ䵢Ⲵ৏ഐᱟ‫؍‬䲙Ӫ֯‫؍‬অᤱᴹӪԕѪ↔ؑ᚟нᗵᣛ䵢˗ G ؑ᚟㲭ᵚ㻛ᣛ䵢ˈն‫؍‬䲙Ӫᐢ㓿⸕䚃ᡆᵜᓄ䈕⸕䚃↔ؑ᚟DŽ

ㅜᶑสҾⅪ䇸㘼䘍৽ᣛ䵢ѹ࣑ ྲ᷌‫؍‬অᤱᴹӪⲴⅪ䇸ሬ㠤‫؍‬䲙Ӫоަ䇒・‫؍‬䲙ਸ਼ˈࡉ‫؍‬䲙Ӫᴹᵳ᫔䬰ਸ਼ᒦᴹᵳ᭦ ਆԫօࡠᵏ‫؍‬䲙䍩˗‫؍‬䲙ӪⲴ䘉Ӌᵳ࡙нᖡ૽ㅜᶑѻ䘲⭘DŽ᫔䬰ਸ਼Ⲵ䙊⸕ˈᓄ൘ ‫؍‬䲙Ӫ⸕䚃Ⅺ䇸㹼Ѫᰦ䎧єњᴸ޵ԕҖ䶒ᖒᔿੁ‫؍‬অᤱᴹӪਁࠪDŽ

ㅜᶑ䱴࣐ؑ᚟ ㅜᶑǃㅜᶑǃㅜᶑҏ䘲⭘Ҿ‫؍‬অᤱᴹӪ൘䇒・ਸ਼ᰦ䱴࣐ᨀ‫Ⲵ׋‬ㅜ ᶑ㿴ᇊѻཆⲴަԆԫօؑ᚟DŽ

ㅜᶑสഐؑ᚟ ᵜ䜘࠶нᗇ䘲⭘ҾㅜᶑㅜаⅮ㿴ᇊⲴสഐ⍻䈅ѻ㔃᷌DŽ

ㅜҼ㢲‫؍‬䲙ӪⲴ‫ݸ‬ਸ਼ѹ࣑ ㅜᶑ䇒・ਸ਼ࡽ⴨‫ޣ‬᮷ᵜⲴᨀ‫׋‬  ‫؍‬䲙Ӫ享ੁᣅ‫؍‬Ӫᨀ‫׋‬ᤏ䇒・Ⲵਸ਼ѻ༽ᵜˈԕ৺वਜ਼лࡇ⴨‫ؑޣ‬᚟Ⲵ᮷ᵜ˖ D 䇒・ਸ਼ⲴᖃһӪѻ਽〠઼ൠ൰ˈቔަᱟ‫؍‬䲙ӪⲴ⌅ᖻᖒᔿ৺ަ㩕ъᙫ䜘ൠ൰ԕ ৺䘲ᖃᛵᖒлᨀ‫׋‬䇒・ਸ਼ᡆṨ‫؍Ⲵ؍‬䲙Ӫ࠶᭟ᵪᶴⲴ਽〠઼ൠ൰˗ E 㻛‫؍‬䲙Ӫǃਇ⳺Ӫԕ৺仾䲙Ӫѻ਽〠઼ൠ൰˗ F ‫؍‬䲙ԓ⨶Ӫѻ਽〠઼ൠ൰˗ G ‫؍‬䲙ḷⲴ⢙઼ᡰ‫؍‬仾䲙˗ H ‫؍‬䲙䠁仍઼‫ݽ‬䎄仍˗ I ‫؍‬䲙䍩䠁仍઼ަ䇑㇇ᯩᔿ˗ 8

ᵜᶑԕ‫؞‬᭩ਾⲴDirective 73 / 239 / EEC ԕ৺Directive 2002 / 83 / EC and Directive 2002 / 65 / ECѪ㬍 ᵜDŽ

373

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

J ‫؍‬䲙䍩ࡠᵏᰦ䰤ԕ৺‫؍‬䲙䍩᭟Ԉᯩᔿ઼᭟Ԉൠ⛩˗ K ਸ਼ᵏ䰤ˈवᤜ㓸→ਸ਼Ⲵᯩᔿˈԕ৺䍓ԫᵏ䰤˗ L ᫔䬰ᣅ‫؍‬ᡆ‫ᦞ׍‬ㅜᶑ᫔䬰䶎Ӫሯ‫؍‬䲙ਸ਼ǃ‫ᦞ׍‬ㅜᶑ᫔䬰Ӫሯ‫؍‬䲙ਸ ਼ѻᵳ࡙˗ M 䖭᰾䈕‫؍‬䲙ਸ਼ਇlj⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉNJѻ㓖ᶏ˗ N ᣅ‫؍‬ӪⲴ⌅䲒ཆᣅ䇹઼ᮁ⍾ᵪࡦԕ৺䘀⭘䘉ӋᵪࡦⲴᯩᔿ˗ O ‫؍‬䇱ส䠁ᡆަԆ䎄‫گ‬ᆹᧂDŽ  ྲਟ㜭ˈк䘠ؑ᚟享൘‫ݵ‬䏣ᰦ䰤޵ᨀ‫ˈ׋‬ԕ‫ׯ‬ᣅ‫؍‬Ӫ㜭㘳㲁ᱟ੖䇒・ਸ਼DŽ  ྲ᷌ᣅ‫؍‬Ӫ൘ᣅ‫؍‬ᰦ֯⭘Ⲵᱟ‫؍‬䲙Ӫᨀ‫Ⲵ׋‬ᣅ‫؍‬অ઼ᡆ䈒䰞㺘ˈࡉ‫؍‬䲙Ӫ享ੁᣅ‫؍‬ Ӫᨀ‫׋‬ປ߉ᆼ∅Ⲵ㺘অѻ༽ᵜDŽ

ㅜᶑቡ᢯‫؍‬㤳തна㠤ѻ䆖⽪ѹ࣑   ൘䇒・ਸ਼ᰦˈ‫؍‬䲙Ӫ享ቡަ⸕䚃ᡆᓄ䈕⸕䚃Ⲵᣅ‫؍‬Ӫ㾱≲Ⲵ᢯‫؍‬㤳തоަᇎ䱵ᨀ ‫Ⲵ׋‬᢯‫؍‬㤳തѻ䰤ᆈ൘Ⲵԫօна㠤ੁᣅ‫؍‬ӪҸԕ䆖⽪DŽ↔⿽䆖⽪ѹ࣑Ⲵን㹼ˈ享 㘳㲁ਸ਼䇒・Ⲵᛵᖒ઼ᯩᔿˈቔަ享㘳㲁ᣅ‫؍‬Ӫᱟ੖ᗇࡠ⤜・ⲴѝӻӪઈѻᑞࣙDŽ  ‫؍‬䲙Ӫ䘍৽к䘠ѹ࣑ᰦ D  ަ享ੁ‫؍‬অᤱᴹӪቡ⭡↔ਁ⭏Ⲵ‫ޘ‬䜘ᦏཡҸԕ㺕‫ˈگ‬նަ䘍৽ѹ࣑ᰐ䗷䭉ᰦ䲔 ཆ˗ E ‫؍‬অᤱᴹӪᴹᵳ㠚ަ⸕䚃‫؍‬䲙Ӫ䘍㓖ѻᰕ䎧єњᴸ޵ԕҖ䶒䙊⸕㓸→ਸ਼DŽ

ㅜᶑቡ᢯‫؍‬ᵏ䰤ᔰ࿻ѻ䆖⽪ѹ࣑ ྲ᷌ᣅ‫؍‬Ӫਸ⨶Ⲵ䈟䇔Ѫ᢯‫؍‬࿻ҾަᨀӔᣅ‫؍‬᮷Ԧѻᰦǃф‫؍‬䲙Ӫ⸕䚃ᡆᓄ䈕⸕䚃ᣅ‫؍‬ ӪⲴ↔⿽䭉䈟䇔䇶ˈࡉ‫؍‬䲙Ӫᓄ䈕・ণੁᣅ‫؍‬Ӫ֌ྲл䆖⽪˖᢯‫؍‬࿻Ҿ‫؍‬䲙ਸ਼䇒・ǃ ф俆ᵏ‫؍‬䲙䍩ӔԈྲ‫؍‬䲙䍩Ѫ࠶ᵏӔԈ ѻਾˈնᆈ൘Ჲ‫؍‬ᰦ䲔ཆDŽྲ᷌‫؍‬䲙Ӫ䘍৽↔ ⿽䆖⽪ѹ࣑ˈࡉަᓄ䈕ṩᦞк䘠ㅜㅜᶑㅜ D 亩᢯ᣵ䍓ԫDŽ

ㅜй㢲ਸ਼Ⲵ䇒・ ㅜᶑ䇒・ᯩᔿ ‫؍‬䲙ਸ਼ᒦ䶎ᗵ享ԕҖ䶒ᖒᔿ䇒・ᡆ䇱᰾ˈҏн享䟷ਆަԆԫօ⢩ᇊᖒᔿDŽ‫؍‬䲙ਸ਼ᆈ ൘ѻ䇱ᦞਟԕ䟷ਆवᤜਓཤ䇱䀰൘޵ⲴԫօᖒᔿDŽ

ㅜᶑ᫔䬰ᣅ‫؍‬ ᣅ‫؍‬Ӫਟԕ᫔䬰ᣅ‫ˈ؍‬նԕ᫔䬰䙊⸕൘ަ᭦ࡠ‫؍‬䲙ӪⲴ᢯‫؍‬᢯䈪ѻࡽࡠ䗮‫؍‬䲙ӪѪ䲀DŽ

ㅜᶑߧ䶉ᵏ   ‫؍‬অᤱᴹӪ൘᭦ࡠ‫؍‬䲙ӪⲴ᢯‫؍‬᢯䈪ᡆ᭦ࡠㅜᶑ㿴ᇊⲴ᮷ԦԕҼ㘵ѝ䖳ᲊ㘵 Ѫ߶ ѻਾєઘ޵ˈᴹᵳԕҖ䶒䙊⸕᫔䬰‫؍‬䲙ਸ਼DŽ  лࡇᛵᖒлˈ‫؍‬অᤱᴹӪнᗇ᫔䬰ਸ਼˖ D ਸ਼ᴹ᭸ᵏн䏣ањᴸ˗ E ਸ਼‫ᦞ׍‬ㅜᶑᔦᵏ˗ F ਸ਼ѪᲲ‫؍‬ǃ䍓ԫ‫؍‬䲙ᡆഒփ‫؍‬䲙DŽ

9

ᵜᶑԕDirective 2002 / 65 / ECѪ㬍ᵜDŽ

374

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ㅜᶑн‫ޜ‬ᒣᶑⅮ   䶎㓿њ࡛୶⍭⺞ᇊⲴᶑⅮˈྲ᷌ަᴹᛆ䈊ᇎؑ⭘઼‫ޜ‬ᒣӔ᱃৏ࡉǃф‫ަᦞ׍‬ᡰ኎ ‫؍‬䲙ਸ਼ѻ⢩ᖱǃ䈕ਸ਼ѝަԆᶑⅮԕ৺䈕ਸ਼䇒・ᰦⲴᛵᖒ㘼䇔ᇊަሩ‫؍‬অᤱᴹ Ӫǃ㻛‫؍‬䲙Ӫᡆਇ⳺ӪⲴਸ਼ᵳ࡙ѹ࣑䙐ᡀᱮ㪇ཡ㺑ˈࡉ↔ᶑⅮሩ‫؍‬অᤱᴹӪǃ㻛 ‫؍‬䲙Ӫᡆਇ⳺Ӫнާᴹ㓖ᶏ࣋DŽ   ྲ᷌‫؍‬䲙ਸ਼䲔৫н‫ޜ‬ᒣᶑⅮѻਾӽ㜭㔗㔝ᆈ൘ˈࡉަ㔗㔝ሩਸ਼ᖃһӪާᴹ㓖ᶏ ࣋DŽ੖ࡉˈᓄԕ⨶ᙗⲴᖃһӪྲ᷌⸕䚃н‫ޜ‬ᒣᛵᖒѻਾਟ㜭Պ㓖ᇊⲴਖཆᶑⅮᴯԓ н‫ޜ‬ᒣᶑⅮDŽ  ᵜ  ᶑ䘲⭘Ҿ䲀ࡦᡆ‫؞‬᭩᢯‫؍‬㤳തⲴᶑⅮˈնн䘲⭘Ҿ˖ D ‫ޣ‬Ҿ᢯‫؍઼؍‬䲙䍩Ⲵԧ٬䏣仍ᙗѻᶑⅮ˗ E ሩᨀ‫Ⲵ׋‬᢯‫؍‬㤳തᡆ㓖ᇊⲴ‫؍‬䲙䍩䘋㹼ᗵ㾱᧿䘠ⲴᶑⅮˈնԕᒣᇎ᱃䈫Ⲵ䈝䀰᧿ 䘠ᰦ䲔ཆDŽ   а࠷һ‫ݸ‬ᤏᇊǃӾ㘼֯‫؍‬অᤱᴹӪн㜭ᖡ૽ަ޵ᇩⲴᶑⅮ䜭㻛㿶Ѫ䶎㓿њ࡛୶⍭⺞ ᇊⲴᶑⅮ˗һ‫⺞ݸ‬ᇊⲴḷ߶ਸ਼ѝⲴᶑⅮቔѪྲ↔DŽྲ᷌ሩਸ਼Ⲵᙫփՠ䟿ਟԕ⺞ ᇊަѪһ‫⺞ݸ‬ᇊⲴḷ߶ਸ਼ˈࡉণ֯䈕ਸ਼ḀᶑⅮⲴḀӋᯩ䶒ᡆḀާփᶑⅮᱟ㓿њ ࡛୶⍭⺞ᇊˈᵜᶑӽ❦䘲⭘Ҿ䈕ਸ਼ަԆᶑⅮDŽྲ᷌‫؍‬䲙ӪѫᕐḀḷ߶ᶑⅮᱟ㓿њ ࡛୶⍭㘼⺞ᇊˈࡉަ享ቡ↔᢯ᣵѮ䇱䍓ԫDŽ

ㅜഋ㢲䘭ⓟ᢯‫؍‬оᲲ‫؍‬ ㅜᶑ䘭ⓟ᢯‫؍‬   ྲ᷌᢯‫؍‬ᵏ䰤वᤜ‫؍‬䲙ਸ਼䇒・ѻࡽⲴа⇥ᵏ䰤ˈф‫؍‬䲙Ӫ൘ਸ਼䇒・ᰦ⸕䚃ᡰ‫؍‬ 仾䲙нՊਁ⭏ˈࡉ‫؍‬অᤱᴹӪӵ享᭟Ԉਸ਼䇒・ਾ䛓а⇥ᵏ䰤Ⲵ‫؍‬䲙䍩DŽ   ൘䘭ⓟ᢯‫؍‬ѻᛵᖒˈྲ᷌‫؍‬অᤱᴹӪ൘ਸ਼䇒・ᰦ⸕䚃ᡰ‫؍‬仾䲙ᐢ㓿ਁ⭏ˈࡉ‫؍‬䲙 Ӫ享ӵѪਸ਼䇒・ਾⲴ䛓а⇥ᵏ䰤᢯‫ˈ؍‬ф↔⿽ᛵᖒнᖡ૽ㅜᶑѻ䘲⭘DŽ

ㅜᶑᲲ‫؍‬   䇒・Ჲ‫؍‬ਸ਼ᰦˈ‫؍‬䲙Ӫᓄ䈕ㆮਁ᢯‫؍‬অ˗䈕᢯‫؍‬অ享वਜ਼ㅜᶑㅜD ǃE ǃG ǃH 亩㿴ᇊⲴؑ᚟ˈфᗵ㾱ᡆ⴨‫ޣ‬ᰦ享वਜ਼䈕ᶑㅜK 亩㿴ᇊⲴؑ᚟DŽ  ㅜᶑ㠣ㅜᶑǃԕ৺ㅜᶑӽਇкⅮ㿴ᇊ㓖ᶏ н䘲⭘ҾᲲ‫؍‬DŽ

ㅜᶑᲲ‫؍‬ᵏ䰤   ྲ᷌ᣅ‫؍‬ӪᗇࡠᲲ‫ࡉˈ؍‬Ჲ‫؍‬ᵏ䰤㓸→Ҿ‫؍‬䲙ਸ਼⺞ᇊⲴ᢯‫؍‬ᵏ䰤ᔰ࿻ѻᰦᡆᣅ‫؍‬ Ӫ᭦ࡠ‫؍‬䲙Ӫ᰾⺞ᤂ㔍᢯‫Ⲵ؍‬䙊⸕ᰦDŽ  ྲ᷌ᣅ‫؍‬Ӫੁཊњ‫؍‬䲙Ӫᣅ‫؍‬㘼ᗇࡠҶᲲ‫ࡉˈ؍‬Ჲ‫؍‬ᵏ䰤ਟԕ⸝Ҿㅜᶑㅜ Ⅾ 㿴ᇊⲴᵏ䰤DŽ↔⿽Ჲ‫؍‬ҏਟ⭡ԫօаᯩᨀࡽєઘ䙊⸕㘼ਆ⎸DŽ

ㅜӄ㢲‫؍‬অ ㅜᶑ‫؍‬অⲴ޵ᇩ 䇒・‫؍‬䲙ਸ਼ᰦˈ‫؍‬䲙Ӫᓄ䈕ㆮਁ‫؍‬অ઼нवਜ਼൘‫؍‬অѝⲴа㡜ਸ਼ᶑⅮDŽ‫؍‬অᓄ䈕व ᤜྲл⴨‫ؑޣ‬᚟˖

10

ᵜᶑԕDirective 93 / 13 / EECѪ㬍ᵜDŽ

375

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

D  ਸ਼ᖃһӪ਽〠઼ൠ൰ˈቔަᱟ‫؍‬䲙ӪⲴ⌅ᖻᖒᔿ৺ަ㩕ъᙫ䜘ൠ൰ԕ৺䘲ᖃᛵᖒ лᨀ‫׋‬䇒・ਸ਼ᡆṨ‫؍Ⲵ؍‬䲙Ӫ࠶᭟ᵪᶴⲴ਽〠઼ൠ൰˗ E 㻛‫؍‬䲙Ӫǃԕ৺Ӫሯ‫؍‬䲙ѝⲴਇ⳺Ӫ઼仾䲙ӪⲴ਽〠઼ൠ൰˗ F ‫؍‬䲙ѝӻӪⲴ਽〠઼ൠ൰˗ G ‫؍‬䲙ḷⲴ⢙઼ᡰ‫؍‬仾䲙˗ H ‫؍‬䲙䠁仍ԕ৺‫ݽ‬䎄仍˗ I ‫؍‬䲙䍩䠁仍ᡆ‫؍‬䲙䍩䇑㇇ᯩᔿ˗ J ‫؍‬䲙䍩ࡠᵏᰦ䰤ԕ৺᭟Ԉᯩᔿ઼᭟Ԉൠ⛩˗ K ਸ਼ᵏ䰤ˈवᤜਸ਼㓸→Ⲵᯩᔿˈԕ৺䍓ԫᵏ䰤˗ L  ᫔䬰ᣅ‫؍‬ᡆ‫ᦞ׍‬ㅜᶑ᫔䬰䶎Ӫሯ‫؍‬䲙ਸ਼ǃ‫ᦞ׍‬ㅜᶑ᫔䬰Ӫሯ‫؍‬䲙ਸ਼ ѻᵳ࡙˗ M 䖭᰾䈕‫؍‬䲙ਸ਼ਇlj⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉNJѻ㓖ᶏ˗ N ⌅䲒ཆᣅ䇹ԕ৺ᣅ‫؍‬Ӫᮁ⍾ᵪࡦ઼ަ㧧ᗇᮁ⍾Ⲵᯩᔿ˗ O ‫؍‬䇱ส䠁ᡆަԆ䎄‫گ‬ᆹᧂDŽ

ㅜᶑ‫؍‬অⲴ᭸࣋   ྲ᷌‫؍‬অᶑⅮоᣅ‫؍‬অᡆᖃһӪ‫ࡽݸ‬䗮ᡀⲴԫօॿ䇞ᆈ൘ᐞᔲˈф䘉Ӌᐞᔲ൘‫؍‬অ ѝ㻛ケࠪḷ⽪ˈࡉ䘉Ӌᐞᔲᓄ䈕㻛㿶Ѫᐢᗇࡠ‫؍‬অᤱᴹӪ਼᜿ˈն‫؍‬অᤱᴹӪ൘᭦ ࡠ‫؍‬অѻᰕ䎧ањᴸ޵ሩ䘉Ӌᐞᔲ㺘⽪৽ሩⲴ䲔ཆDŽ‫؍‬䲙Ӫᓄ䈕ԕ㋇փᆇҖ䶒䙊⸕ ‫؍‬অᤱᴹӪᴹᵳቡ‫؍‬অѝケࠪḷ᰾Ⲵᐞᔲ㺘⽪৽ሩDŽ   ྲ᷌‫؍‬䲙Ӫ䘍৽кⅮ㿴ᇊˈࡉ‫؍‬䲙ਸ਼ᶑⅮ㻛㿶Ѫԕᣅ‫؍‬অᡆᖃһӪһ‫ॿⲴݸ‬䇞Ѫ ߶DŽ

ㅜ‫ޝ‬㢲‫؍‬䲙ਸ਼Ⲵᵏ䰤 ㅜᶑ‫؍‬䲙ਸ਼Ⲵᵏ䰤  ‫؍‬䲙ਸ਼Ⲵᵏ䰤ѪаᒤDŽᖃһӪਟԕสҾ仾䲙⢩ᖱⲴ㾱≲㘼㓖ᇊн਼Ⲵᵏ䰤DŽ  кⅮ㿴ᇊн䘲⭘ҾӪ䓛‫؍‬䲙DŽ

ㅜᶑᔦᵏ  ㅜᶑ㿴ᇊⲴаᒤᵏቺ┑ѻਾˈ‫؍‬䲙ਸ਼ᓄ䈕㻛ᔦᵏˈնлࡇᛵᖒ䲔ཆ˖ D ‫؍‬䲙Ӫ൘ਸ਼ᵏ┑㠣ቁањᴸࡽҖ䶒䙊⸕нҸᔦᵏᒦ䈤᰾ަ⨶⭡˗ᡆ E  ‫؍‬অᤱᴹӪᴰ䘏൘ਸ਼ᵏ┑ᰕǃᡆ൘ަ᭦ࡠ‫؍‬䲙䍩ԈⅮ䙊⸕ѻᰕ䎧ањᴸ޵ԕ 䖳ᲊ㘵Ѫ߶ Җ䶒䙊⸕нҸᔦᵏDŽ൘ਾа⿽ᛵᖒˈ䈕ањᴸᵏ䰤ӵӾ‫؍‬䲙䍩ԈⅮ 䙊⸕ԕ㋇փᆇ䖭᰾Ⲵᰕᵏᔰ࿻䇑㇇DŽ  к䘠ㅜаⅮE 亩ѝⲴ䙊⸕ˈ൘ਁࠪᰦণ㿶Ѫᐢ֌ࠪDŽ

ㅜᶑᶑⅮⲴਈᴤ   ‫ᦞ׍‬ㅜ˖ᶑᔦᵏⲴਸ਼ˈަѝ㤕ᴹᶑⅮ‫ݱ‬䇨‫؍‬䲙Ӫਈᴤ‫؍‬䲙䍩ᡆਈᴤަԆᶑ Ⅾˈࡉ䈕ᶑⅮᰐ᭸ˈն޵ᇩྲлⲴ㿴ᇊᴹ᭸˖ D 㿴ᇊԫօਈᴤ൘л⅑ᔦᵏࡽнਁ⭏᭸࣋˗ E  㿴ᇊ‫؍‬䲙Ӫᓄ൘ᖃࡽਸ਼ᵏ䰤ቺ┑㠣ቁањᴸࡽቡਈᴤ᜿ᙍҖ䶒䙊⸕‫؍‬অᤱᴹ Ӫˈф F к䘠䙊⸕享੺⸕‫؍‬অᤱᴹӪᴹᵳ㓸→ਸ਼ԕ৺ަн㹼֯ਸ਼㓸→ᵳⲴਾ᷌DŽ  кⅮ㿴ᇊнᖡ૽‫ޣ‬ҾਈᴤᶑⅮѻ᭸࣋ⲴަԆ㾱≲DŽ

376

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ㅜᶑᡰ‫؍‬仾䲙ਁ⭏ਾⲴਸ਼㓸→  㿴ᇊ‫؍‬䲙һ᭵ਁ⭏ਾਸ਼㓸→ⲴᶑⅮᰐ᭸ˈնлࡇᛵᖒ䲔ཆ˖ D 䈕ᶑⅮ᰾⺞㿴ᇊৼᯩᖃһӪ䜭ᴹᵳ㓸→ਸ਼ˈф E 䈕ਸ਼ᒦ䶎Ӫ䓛‫؍‬䲙DŽ  㿴ᇊਸ਼㓸→ᵳⲴᶑⅮԕ৺↔⿽ᵳ࡙ѻ㹼֯൷享ਸ⨶DŽ   ྲ᷌аᯩᖃһӪ൘⸕䚃‫؍‬䲙һ᭵ਁ⭏ਾєњᴸ޵ᵚሶަ㓸→ਸ਼Ⲵ᜿ᙍҖ䶒䙊⸕ਖ аᯩˈࡉަਸ਼㓸→ᵳ㿶Ѫᵏ┑㘼нᗇ㹼֯DŽ  ‫؍‬䲙ਸ਼൘‫׍‬к䘠ㅜ Ⅾ䘋㹼Ⲵ䙊⸕֌ࠪєઘѻਾ㓸→DŽ

ㅜг㢲ਸ਼ᡀ・ਾ‫؍‬䲙ӪⲴؑ᚟ѹ࣑ ㅜᶑа㡜ؑ᚟ѹ࣑ ᮤњਸ਼ᵏ䰤޵ˈ‫؍‬䲙Ӫ䜭ᓄ䈕ԕҖ䶒ᖒᔿੁ‫؍‬অᤱᴹӪᨀ‫ަ׋‬਽〠ǃൠ൰ǃ⌅ᖻᖒ ᔿǃᙫ䜘ൠ൰ǃ䇒・ਸ਼Ⲵԓ⨶Ӫᡆ࠶᭟㔃ᶴⲴൠ൰ԕ৺䘉Ӌؑ᚟Ⲵਈॆ˗↔⿽ؑ᚟ ᨀ‫׋‬ѹ࣑нᗇᴹнᖃ䘏ᔦDŽ

ㅜᶑ㓿䈧≲Ⲵ䘋а↕ؑ᚟ѹ࣑  㓿‫؍‬অᤱᴹӪ䈧≲ˈ‫؍‬䲙Ӫᓄ䈕ੁަᨀ‫ྲ׋‬лᴹ‫ؑޣ‬᚟ˈфнᗇᴹнᖃ䘏ᔦ˖ D ሩ‫؍‬䲙Ӫਸ⨶ᵏᖵⲴǃ‫ޣ‬Ѿਸ਼ን㹼Ⲵ‫ޘ‬䜘һ亩˗ E ‫؍‬䲙Ӫቡ਼㊫‫؍‬䲙ਸ਼ᨀ‫Ⲵ׋‬ᯠ⡸ḷ߶ᶑⅮDŽ  ‫؍‬অᤱᴹӪⲴ䈧≲ԕ৺‫؍‬䲙ӪⲴㆄ༽൷享ԕҖ䶒ѪѻDŽ

ㅜйㄐ‫؍‬䲙ѝӻ ㅜᶑ‫؍‬䲙ԓ⨶ӪⲴᵳ࡙   ‫؍‬䲙ԓ⨶Ӫ㓿ᦸᵳ㘼ԓ㺘‫؍‬䲙Ӫᇎᯭ‫ᦞ׍‬ᖃᰦ‫؍‬䲙㹼ъᇎ䐥኎Ҿަ㙼ъ⍫ࣘ㤳ത޵ Ⲵ㹼ѪDŽሩ‫؍‬䲙Ӫԓ⨶Ӫѻԓ⨶ᵳⲴԫօ䲀ࡦ享ԕঅ⤜᮷Ԧ᰾⺞䙊⸕‫؍‬অᤱᴹӪDŽ նᱟˈ‫؍‬䲙ԓ⨶ӪⲴԓ⨶ᵳ䲀ᓄ䈕㠣ቁ⏥ⴆަᇎ䱵㙼ъ⍫ࣘ㤳തDŽ  ൘ԫօᛵߥлˈ‫؍‬䲙ԓ⨶ӪⲴᵳ࡙वᤜ˖ D Ѫ‫؍‬অᤱᴹӪᨀ‫ؑ׋‬᚟઼ᔪ䇞˗ E ᭦ਇ‫؍‬অᤱᴹӪਁࠪⲴ䙊⸕DŽ  ‫؍‬  䲙ԓ⨶Ӫ൘ަ㙼ъ⍫ࣘѝ⸕䚃ᡆᓄ䈕⸕䚃Ⲵ⴨‫ؑޣ‬᚟㿶ѪӖѪ‫؍‬䲙Ӫᡰ⸕DŽ

ㅜᶑ㠚〠⤜・Ⲵ‫؍‬䲙ԓ⨶Ӫ ྲ᷌‫؍‬䲙ӪⲴԓ⨶Ӫ㠚〠ᱟ⤜・ѝӻˈնަ䘍৽Ҷ⌅ᖻሩ⤜・ѝӻ䈮࣐Ⲵѹ࣑ˈࡉ‫؍‬䲙 Ӫ享ቡ↔䘍৽ѹ࣑Ⲵ㹼Ѫ᢯ᣵ䍓ԫDŽ

ㅜഋㄐᡰ‫؍‬仾䲙 ㅜа㢲亴䱢᧚ᯭ ㅜᶑ亴䱢᧚ᯭⲴ᜿ѹ 亴䱢᧚ᯭᱟᤷ‫؍‬䲙ਸ਼ѝ㾱≲‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫ൘‫؍‬䲙һ᭵ਁ⭏ࡽᇎᯭᡆнᇎᯭḀ 㹼ѪⲴᶑⅮ˗㓿ᖃһӪ㓖ᇊˈ䈕ᶑⅮਟԕᱟ‫؍‬䲙Ӫ᢯ᣵ䎄Ԉ䍓ԫⲴᶑԦˈҏਟԕнᱟDŽ

377

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ㅜᶑ‫؍‬䲙ӪⲴਸ਼㓸→ᵳ   ‫؍‬䲙ਸ਼ਟԕ㿴ᇊྲ᷌‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫн䚥ᆸ亴䱢᧚ᯭࡉ‫؍‬䲙Ӫᴹᵳ㓸→ਸ ਼DŽնᱟˈ䲔䶎‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫԕ䙐ᡀᦏཡѻ᭵᜿ᡆ᰾⸕ਟ㜭Պ䙐ᡀᦏཡত 㖞ѻн亮㘼䘍৽ަѹ࣑ˈ੖ࡉࡽ䘠ਸ਼㿴ᇊᒦᰐ᭸࣋DŽ   ‫؍‬䲙Ӫ㹼֯ਸ਼㓸→ᵳˈ享㠚ަ⸕䚃к䘠䘍৽ѹ࣑Ⲵ㹼Ѫѻᰕ䎧ањᴸ޵ԕҖ䶒䙊 ⸕‫؍‬অᤱᴹӪDŽਸ਼㓸→ᰦ᢯‫؍‬ণ㹼㔃ᶏDŽ

ㅜᶑ‫؍‬䲙Ӫ䎄Ԉ䍓ԫⲴ䀓䲔   ‫؍‬䲙ਸ਼ਟԕ㿴ᇊሩ亴䱢᧚ᯭѻ䘍৽ਟԕ֯‫؍‬䲙Ӫ䜘࠶ᡆ‫ޘ‬䜘‫ݽ‬䍓ˈն↔㿴ᇊӵ൘ ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫԕ䙐ᡀᦏཡѻ᭵᜿ᡆ᰾⸕ਟ㜭Պ䙐ᡀᦏཡত㖞ѻн亮㘼䘍৽ ަѹ࣑ѻᛵᖒާᴹ᭸࣋DŽ   ‫؍‬䲙ਸ਼ਟԕ᰾⺞㿴ᇊ‫؍‬䲙䠁᤹➗‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙ӪⲴ䗷䭉㘼߿ቁˈն‫؍‬অᤱ ᴹӪᡆ㻛‫؍‬䲙Ӫᴹᵳቡ䗷ཡ䘍৽亴䱢᧚ᯭ㘼ሬ㠤Ⲵᦏཡ㧧ᗇ‫؍‬䲙䠁DŽ

ㅜҼ㢲仾䲙໎࣐ ㅜᶑ仾䲙໎࣐ ྲ᷌‫؍‬䲙ਸ਼वਜ਼ᡰ‫؍‬仾䲙໎࣐ᶑⅮˈࡉ↔ᶑⅮӵ൘仾䲙ᇎ䍘໎࣐ǃф仾䲙኎Ҿਸ਼ާ փᤷ᰾Ⲵ仾䲙ᰦ᡽ާᴹ᭸࣋DŽ

ㅜᶑ仾䲙໎࣐䙊⸕ѹ࣑   ྲ᷌ᡰ‫؍‬仾䲙໎࣐ᶑⅮ㾱≲ቡ仾䲙ѻ໎࣐䘋㹼䙊⸕ˈࡉ↔䙊⸕享‫׍‬䘲ᖃᛵᖒ⭡‫؍‬অ ᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫ֌ࠪˈնԕ䙊⸕ѹ࣑Ӫ⸕䚃ᡆᵜᓄ䈕⸕䚃᢯‫؍‬㤳തԕ৺ 䈕仾䲙ѻ໎࣐Ѫ䲀DŽԆӪⲴ䙊⸕ӖѪᴹ᭸DŽ   ྲ᷌к䘠ᶑⅮ㾱≲䙊⸕享൘⺞ᇊᵏ䰤޵֌ࠪˈࡉ↔ᵏ䰤享Ѫਸ⨶DŽ䙊⸕㠚ਁࠪᰦ⭏ ᭸DŽ   ൘к䘠䙊⸕ѹ࣑㻛䘍৽ѻᛵᖒˈ‫؍‬䲙Ӫнᗇԕ↔Ѫ⨶⭡㘼ቡ↔ਾᰦ䰤ਁ⭏Ⲵᦏཡᤂ 㔍Ҹԕ䎄Ԉˈն䈕ᦏཡᵜ䓛ᱟᵚѪ仾䲙໎࣐ѻ䙊⸕Ⲵ㔃᷌ᰦ䲔ཆDŽ

ㅜᶑ㓸→о䀓䲔   ྲ᷌ਸ਼㿴ᇊ仾䲙໎࣐ᰦ‫؍‬䲙Ӫᴹᵳ㓸→ਸ਼ˈࡉ‫؍‬䲙Ӫ㹼֯ᵳ࡙享㠚ަ⸕䚃仾䲙 ໎࣐ਾањᴸ޵ԕҖ䶒ᖒᔿሶަ㓸→ਸ਼ѻ᜿ᙍ䙊⸕‫؍‬অᤱᴹӪDŽ  ᢯‫؍‬ᵏ┑㔃ᶏҾਸ਼㓸→ਾањᴸᰦDŽྲ᷌‫؍‬অᤱᴹӪ᭵᜿䘍৽ㅜᶑ㿴ᇊⲴѹ ࣑ˈࡉ൘ਸ਼㓸→ᰦ᢯‫؍‬ণ㹼ᵏ┑㔃ᶏDŽ   ྲ᷌‫؍‬䲙һ᭵ᱟഐ仾䲙໎࣐㘼൘᢯‫؍‬㔃ᶏѻࡽਁ⭏ˈф‫؍‬অᤱᴹӪ⸕䚃ᡆᓄ䈕⸕ 䚃↔仾䲙ѻ໎࣐ˈ㘼‫؍‬䲙ӪᵜᶕнՊ᢯‫↔؍‬໎࣐Ⲵ仾䲙ˈࡉ‫؍‬অᤱᴹӪᰐᵳ㧧ᗇ䎄 ԈDŽնᱟˈྲ᷌‫؍‬䲙Ӫᝯ᜿ԕ䖳儈Ⲵ‫؍‬䲙䍩ᡆн਼ⲴᶑⅮҸԕ᢯‫؍‬໎࣐Ⲵ仾䲙ˈࡉ ‫؍‬অᤱᴹӪᴹᵳ᤹➗‫؍‬䲙䍩໎࣐ѻ∄ֻ㧧ᗇ䎄Ԉᡆ‫ࡽᦞ׍‬䘠н਼ᶑⅮ㧧ᗇ䎄ԈDŽ

ㅜй㢲仾䲙߿ቁ ㅜᶑ仾䲙߿ቁⲴਾ᷌  ྲ᷌仾䲙ᇎ䍘ᙗ߿ቁˈࡉ‫؍‬অᤱᴹӪᴹᵳ䈧≲‫؍‬䲙Ӫ䱽վ࢙։ਸ਼ᵏ䰤Ⲵ‫؍‬䲙䍩DŽ

378

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

  ྲ᷌㠚к䘠䈧≲ᨀࠪਾањᴸ޵ᖃһӪᵚ㜭ቡ᤹∄ֻ䱽վ‫؍‬䲙䍩䗮ᡀа㠤ˈࡉ‫؍‬অ ᤱᴹӪᴹᵳ൘к䘠䈧≲ਁࠪѻਾєњᴸ޵ԕҖ䶒䙊⸕㓸→ਸ਼DŽ

ㅜӄㄐ‫؍‬䲙䍩 ㅜᶑ俆ᵏ᭟Ԉ‫؍‬䲙䍩ᡆа⅑ᙗ᭟Ԉ‫؍‬䲙䍩 ྲ᷌‫؍‬䲙Ӫԕᣅ‫؍‬Ӫ᭟Ԉ俆ᵏ‫؍‬䲙䍩ᡆа⅑ᙗ᭟Ԉ‫؍‬䲙䍩֌Ѫਸ਼ᡀ・ᡆ᢯‫؍‬ᔰ࿻Ⲵᶑ Ԧˈࡉ䈕ᶑԦӵ൘л䘠ᛵᖒлᴹ᭸˖ D  ‫؍‬䲙ӪԕҖ䶒ᖒᔿ֯⭘᰾⺞Ⲵ䈝䀰ሶ↔ᶑԦ䙊⸕ᣅ‫؍‬Ӫˈᒦੁަ䆖⽪н᭟Ԉ‫؍‬䲙䍩 ‫ׯ‬нҸ᢯‫ˈ؍‬ф E ᣅ‫؍‬Ӫ᭦ࡠㅖਸк䘠D 亩㾱≲ⲴԈⅮ䙊⸕єઘਾӽᵚ᭟Ԉ‫؍‬䲙䍩DŽ

ㅜᶑ࠶ᵏ᭟Ԉ‫؍‬䲙䍩   ‫؍‬অᤱᴹӪྲᵚ᤹➗㓖ᇊ࠶ᵏ᭟Ԉ‫؍‬䲙䍩ˈࡉ‫؍‬䲙Ӫ᢯‫؍‬仾䲙ѻѹ࣑㻛䀓䲔ˈնӵ ԕлࡇᛵᖒѪ䲀˖ D ‫؍‬অᤱᴹӪᐢ᭦ࡠ䖭᰾ᓄԈ䠁仍઼ԈⅮᵏ䲀ⲴԈⅮ䙊⸕˗ E ‫؍‬䲙䍩᭟Ԉᰕࡠᵏѻਾˈ‫؍‬䲙Ӫੁ‫؍‬অᤱᴹӪਁ䘱ԈⅮᨀ⽪ˈф䈕ᨀ⽪㔉Ҹ㠣ቁ єઘⲴᔦ䮯ᵏˈᒦ䆖⽪㤕н᭟Ԉ‫؍‬䲙䍩ࡉ・ণ㓸→᢯‫˗؍‬ф F к䘠E 亩㿴ᇊⲴᔦ䮯ᵏቺ┑ѻਾˈ‫؍‬অᤱᴹӪӽᵚ᭟Ԉ‫؍‬䲙䍩DŽ  ൘кⅮE 亩㿴ᇊⲴᔦ䮯ᵏቺ┑ѻਾ‫؍‬䲙ӪⲴ䍓ԫ㠚ࣘ䀓䲔DŽ᢯‫؍‬ਟԕ൘ሶᶕ‫؍‬অᤱ ᴹӪ᭟Ԉ⅐㕤Ⲵ‫؍‬䲙䍩ᰦণ㹼ᚒ༽ˈն‫؍‬䲙ਸ਼‫׍‬ㅜᶑ㓸→ਾ䲔ཆDŽ

ㅜᶑਸ਼㓸→   ྲ᷌ㅜᶑE 亩ᡆㅜᶑㅜ ⅮE 亩ᡰᤷᵏ䰤ቺ┑ਾ‫؍‬䲙䍩ӽᵚ᭟Ԉˈф ㅜᶑE 亩㿴ᇊⲴԈⅮ䙊⸕ᡆㅜᶑㅜ ⅮE 亩㿴ᇊⲴԈⅮᨀ⽪᰾⽪‫؍‬䲙 Ӫᴹᵳ㓸→ਸ਼ˈࡉ‫؍‬䲙ӪᴹᵳԕҖ䶒䙊⸕㓸→‫؍‬䲙ਸ਼DŽ  ൘лࡇᛵᖒˈ㿶Ѫ‫؍‬䲙ਸ਼㓸→˖ D ൘ㅜᶑE 亩㿴ᇊⲴԈⅮᵏ䰤ቺ┑ਾєњᴸ޵ˈ‫؍‬䲙Ӫнԕ䇹䇬䈧≲‫؍‬অᤱ ᴹӪ᭟Ԉ俆ᵏ‫؍‬䲙䍩˗ E ൘ㅜᶑㅜ ⅮE亩㿴ᇊⲴԈⅮᵏ䰤ቺ┑ਾєњᴸ޵ˈ‫؍‬䲙Ӫнԕ䇹䇬䈧≲ ‫؍‬অᤱᴹӪ᭟Ԉ俆ᵏ‫؍‬䲙䍩DŽ

ㅜᶑ‫؍‬䲙䍩Ⲵ࠶ࢢ ྲ᷌‫؍‬䲙ਸ਼൘ਸ਼ᵏ䰤ቺ┑ѻࡽ㓸→ˈࡉ‫؍‬䲙Ӫӵᴹᵳ㧧ᗇਸ਼㓸→ѻࡽⲴ䛓䜘࠶‫؍‬ 䲙䍩DŽ

ㅜᶑ᭟Ԉ‫؍‬䲙䍩Ⲵᵳ࡙ ‫؍‬䲙Ӫнᗇᤂ㔍ㅜйᯩ᭟Ԉ‫؍‬䲙䍩ˈնㅜйᯩ᭟ԈӵԕлࡇᛵᖒѪ䲀˖ D ㅜйᯩ᭟Ԉ㧧ᗇ‫؍‬অᤱᴹӪ਼᜿˗ᡆ E  ㅜйᯩሩ᢯‫؍‬ѻ㔤ᤱᆈ㔝ާᴹਸ⨶࡙⳺ǃф‫؍‬অᤱᴹӪᒦᵚ᭟Ԉ‫؍‬䲙䍩ᡆަᱮ❦н Պ᤹ᵏ᭟Ԉ‫؍‬䲙䍩DŽ

379

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ㅜ‫ޝ‬ㄐ‫؍‬䲙һ᭵ ㅜᶑ‫؍‬䲙һ᭵ਁ⭏䙊⸕   ‫׍‬䘲ᖃᛵᖒˈ‫؍‬অᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫᓄ䈕ቡ‫؍‬䲙һ᭵ѻਁ⭏䙊⸕‫؍‬䲙Ӫˈ նԕ䙊⸕ѹ࣑Ӫ⸕䚃ᡆᵜᓄ䈕⸕䚃᢯‫؍‬㤳ത઼һ᭵ѻਁ⭏Ѫ䲀DŽԆӪⲴ䙊⸕ӖѪᴹ ᭸DŽ   к䘠䙊⸕нᗇᴹнᖃ䘏ᔦDŽ䙊⸕㠚ਁࠪᰦ⭏᭸DŽྲ᷌ਸ਼㾱≲䙊⸕享൘ᰒᇊᵏ䰤޵ 䘋㹼ˈࡉ↔ᵏ䰤享Ѫਸ⨶ˈնнᗇቁҾһ᭵ਁ⭏ਾӄᰕDŽ   ྲ᷌‫؍‬䲙Ӫ㜭䇱᰾к䘠䙊⸕ᴹнᖃ䘏ᔦф↔䘏ᔦሩަ䙐ᡀᦏཡˈࡉ‫؍‬䲙Ӫᴹᵳ䱽վ ‫؍‬䲙䠁᭟Ԉ仍DŽ

ㅜᶑ㍒䎄䗷〻ѝⲴਸ֌ѹ࣑   ‫ᦞ׍‬䘲ᖃᛵᖒˈ‫؍‬অᤱᴹӪǃ㻛‫؍‬䲙Ӫᡆਇ⳺Ӫᓄᖃ൘‫؍‬䲙һ᭵䈳ḕ䗷〻ѝо‫؍‬䲙 Ӫਸ֌ˈᓄᖃഎㆄ‫؍‬䲙ӪⲴਸ⨶䈒䰞ˈቔަᱟ‫ޣ‬Ҿྲлؑ᚟Ⲵ䈒䰞˖ üü‫؍‬䲙һ᭵Ⲵ৏ഐоਾ᷌˗ üü‫؍‬䲙һ᭵Ⲵ㓚ᖅᡆަԆ䇱ᦞ˗ üü䘋‫ޣ⴨ޕ‬ൠ⛩DŽ  кⅮ㿴ᇊⲴਸ֌ѹ࣑㻛䘍৽ᰦˈਇл䘠ㅜ Ⅾѻᤈᶏˈ‫؍‬䲙Ӫ㤕㜭䇱᰾ަഐ↔䚝ਇ ᦏཡˈࡉަᴹᵳ䱽վ‫؍‬䲙䠁䎄Ԉ仍DŽ  ྲ᷌к䘠ㅜ Ⅾ㿴ᇊⲴѹ࣑ѻ䘍৽ᱟࠪҾ䙐ᡀᦏཡѻ᭵᜿ᡆѹ࣑Ӫ᰾⸕ਟ㜭䙐ᡀᦏ ཡত㖞ѻн亮ˈࡉ‫؍‬䲙Ӫᓄᰐѹ࣑䎄Ԉ‫؍‬䲙䠁DŽ

ㅜᶑ㍒䎄ѻਇ⨶  ‫؍‬䲙Ӫ享䟷ਆа࠷ਸ⨶↕僔ቭᘛᆼ㔃䎄ԈһᇌDŽ   䲔䶎‫؍‬䲙Ӫሩ㍒䎄䈧≲Ҹԕᤂ㔍ˈᡆ൘᭦ࡠ⴨‫ޣ‬㍒䎄᮷Ԧ઼ަԆؑ᚟ѻਾањᴸ޵ ԕҖ䶒䙊⸕䘏ᔦਇ⨶㍒䎄ѻߣᇊᒦ䈤᰾䘏ᔦ⨶⭡ˈࡉ᧘ᇊ‫؍‬䲙Ӫᐢਇ⨶㍒䎄䈧≲DŽ

ㅜᶑን㹼ѹ࣑Ⲵᰦ䰤   ‫؍‬䲙Ӫਇ⨶㍒䎄䈧≲ѻਾˈᓄ䈕᭟Ԉ‫؍‬䲙䠁ᡆᨀ‫ަ׋‬᢯䈪Ⲵᴽ࣑DŽ↔ѹ࣑ѻን㹼н ᗇᴹнᖃ䘏ᔦDŽ   ণ֯‫ޘ‬䜘䎄Ԉ䠁仍ቊᵚ⺞ᇊˈնਚ㾱㍒䎄Ӫᴹᵳ㧧ᗇ䜘࠶䎄Ԉˈࡉ‫؍‬䲙Ӫᓄ䈕ᨀ‫׋‬ ↔䜘࠶䎄‫گ‬ᡆᴽ࣑ˈфнᗇᴹнᖃ䘏ᔦDŽ   к䘠ㅜ Ⅾ઼ㅜ Ⅾ㿴ᇊⲴ‫؍‬䲙䠁ˈᓄ൘н䘏Ҿਇ⨶㍒䎄઼⺞ᇊ‫ޘ‬䜘ᡆ䜘࠶䎄Ԉ 䠁仍ਾєઘ޵Ҹԕ᭟ԈDŽ

ㅜᶑ䘏ᔦን㹼ѹ࣑  ྲ᷌‫؍‬䲙Ӫᵚ‫׍‬ㅜᶑ䎄Ԉ‫؍‬䲙䠁ˈࡉ㍒䎄Ӫᴹᵳ䈧≲䈕‫؍‬䲙䠁㠚䎄Ԉࡠᵏѻᰕ 䎧Ⲵ࡙᚟DŽ࡙⦷Ѫ‫؍‬䲙ҹ䇞ᡰ኎ॺᒤⲴㅜаᰕѻࡽ⅗⍢ѝཞ䬦㹼ᇎᯭⲴᴰ䘁ѫ㾱޽ 㶽䍴亩ⴞ䘲⭘Ⲵަ⺞ᇊⲴ࡙⦷ѻк䱴࣐‫ޛ‬њⲮ࠶⛩DŽ  ㍒䎄Ӫᴹᵳቡ‫؍‬䲙Ӫ䘏ᔦ䎄Ԉ‫؍‬䲙䠁䙐ᡀⲴަԆᦏཡ㧧ᗇ䎄‫گ‬䠁DŽ

11

ᵜᶑԕDirective 2000 / 35 / ECㅜ3ᶑㅜ1Ⅾ(d)亩Ѫ㬍ᵜDŽ

380

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ㅜгㄐ䇹䇬ᰦ᭸ᵏ䰤 ㅜᶑ‫؍‬䲙䍩䈧≲ᵳ ‫؍‬䲙䍩䈧≲ᵳⲴ䇹䇬ᰦ᭸ᵏ䰤൘㠚Ӿ㕤䍩ࡠᵏѻᰕ䎧㓿䗷аᒤ㘼ቺ┑DŽ

ㅜᶑ‫؍‬䲙䠁䈧≲ᵳ  а㡜㘼䀰ˈ‫؍‬䲙䠁䈧≲ᵳ㠚‫؍‬䲙Ӫ‫ᦞ׍‬ㅜᶑቡ⨶䎄ᇎ䱵֌ࠪᴰ㓸ߣᇊᡆ᧘ᇊަ ֌ࠪᴰ㓸ߣᇊѻᰕ䎧㓿䗷йᒤ㘼ቺ┑DŽնᱟˈ൘ԫօᛵᖒлˈ‫؍‬䲙䠁䈧≲ᵳⲴ䇹䇬 ᰦ᭸ᵏ䰤ᴰ䮯㠚‫؍‬䲙һ᭵ਁ⭏ѻᰕ䎧㓿䗷ॱᒤ㘼ቺ┑ˈն൘Ӫ䓛‫؍‬䲙䈕䇹䇬ᰦ᭸ᵏ 䰤ᴰ䮯ѪйॱᒤDŽ   ൘Ӫ䓛‫؍‬䲙ˈ‫؍‬অ⧠䠁ԧ٬䈧≲ᵳⲴ䇹䇬ᰦ᭸൘‫؍‬অᤱᴹӪӾ‫؍‬䲙Ӫ᭦ࡠᴰ㓸䍖অ ѻᰕ䎧㓿䗷йᒤ㘼ቺ┑DŽնᱟˈ൘ԫօᛵᖒлˈ䈕ᵏ䰤ᴰ䮯ѪӪ䓛‫؍‬䲙ਸ਼㓸→ਾ йॱᒤDŽ

ㅜᶑ‫ޣ‬Ҿ䇹䇬ᰦ᭸ᵏ䰤ⲴަԆ䰞仈 lj⅗⍢ਸ਼⌅৏ࡉNJㅜᶑ㠣ㅜᶑҏ䘲⭘ҾสҾ‫؍‬䲙ਸ਼㘼ӗ⭏Ⲵ䈧≲ᵳ˗ ↔㊫䈧≲ᵳ਼ᰦҏਇᵜlj৏ࡉNJㅜᶑ઼ㅜᶑѻ㓖ᶏDŽ‫ᦞ׍‬ᵜlj৏ࡉNJㅜ ᶑㅜ Ⅾˈ‫؍‬䲙ਸ਼ਟԕਈ䙊䘲⭘lj⅗⍢ਸ਼⌅৏ࡉNJⲴࡽ䘠ᶑⅮDŽ

ㅜҼ㕆䘲⭘Ҿ㺕‫گ‬ර‫؍‬䲙Ⲵ‫਼ޡ‬㿴ᇊ ㅜ‫ޛ‬ㄐ‫؍‬䲙䠁仍઼‫؍‬䲙ԧ٬ ㅜᶑᴰབྷ䎄Ԉ仍  ‫؍‬䲙Ӫᓄᰐѹ࣑֯ަ䎄Ԉ仍䎵䗷㺕‫گ‬㻛‫؍‬䲙Ӫᇎ䱵䚝ਇᦏཡᡰᗵ䴰ѻ仍ᓖDŽ   ൘ᇊ٬‫؍‬䲙ˈণ֯‫؍‬䲙䠁仍䎵䗷‫؍‬䲙ḷⲴ⢙ѻᇎ䱵ԧ٬ˈ䈕‫؍‬䲙ӖѪᴹ᭸ˈնԕᖃ һӪ㓖ᇊ‫؍‬䲙ԧ٬ᰦ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙ӪᵚᇎᯭⅪ䇸ᡆᵚ䘋㹼нᇎ䱸䘠Ѫ䲀DŽ

ㅜᶑн䏣仍‫؍‬䲙   ণ֯‫؍‬䲙䠁仍ቁҾ‫؍‬䲙һ᭵ਁ⭏ᰦ‫؍‬䲙䍒ӗⲴԧ٬ˈ‫؍‬䲙Ӫҏᓄ䎄‫گ‬н䎵䗷‫؍‬䲙䠁 仍Ⲵԫօ᢯‫؍‬㤳ത޵ᦏཡDŽ  ྲ᷌‫؍‬䲙Ӫṩᦞк䘠ㅜ Ⅾᨀ‫׋‬н䏣仍‫؍‬䲙ˈࡉަᴹᵳ䘹ᤙ᤹➗ྲлᶑԦ䘋㹼∄ֻ 䎄‫ˈگ‬ণ᤹➗‫؍‬䲙䠁仍оо‫؍‬䲙һ᭵ਁ⭏ᰦ‫؍‬䲙䍒ӗⲴᇎ䱵ԧ٬ѻ䰤Ⲵ∄ֻሩᦏཡ 䘋㹼䎄‫گ‬DŽ㘼фˈ൘䘉⿽ᛵᖒлˈㅜᶑ㿴ᇊⲴ߿ᦏᡀᵜҏᓄ᤹➗਼ṧ∄ֻᗇࡠ 㺕‫گ‬DŽ

ㅜᶑ䎵仍‫؍‬䲙ⲴᶑⅮ䈳ᮤ   ྲ᷌‫؍‬䲙䠁仍䎵䗷᢯‫Ⲵ؍‬ᴰབྷਟ㜭ᦏཡˈࡉԫօаᯩᖃһӪ൷ᴹᵳ䈧≲䱽վ‫؍‬䲙䠁 仍ˈᒦ⴨ᓄ߿ቁ࢙։ਸ਼ᵏ䰤޵Ⲵ‫؍‬䲙䍩DŽ   ྲ᷌ᖃһӪ൘ᨀࠪк䘠䈧≲ਾањᴸ޵ᵚቡк䘠߿䱽һᇌ䗮ᡀа㠤ˈࡉԫօаᯩᖃ һӪ൷ᴹᵳ㓸→ਸ਼DŽ

12

৲㿱 Lando / Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando / Clive / Prüm / Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

381

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ㅜᶑ༽ᮠ‫؍‬䲙   ྲ਼᷌а࡙⳺⭡ཊњ‫؍‬䲙Ӫ࠶࡛᢯‫ࡉˈ؍‬㻛‫؍‬䲙Ӫᴹᵳੁަѝԫօањᡆཊњ‫؍‬䲙 Ӫ㍒䎄ˈնԕ㺕‫ަگ‬ᇎ䱵ᦏཡᡰ䴰ѻᗵ㾱仍ᓖѪ䲀DŽ   к䘠‫؍‬䲙Ӫ䚝䙷㍒䎄ѻਾᓄԕަ‫؍‬অѝ⺞ᇊⲴ‫؍‬䲙䠁仍Ѫ䲀ሩᦏཡ઼߿ᦏᡀᵜҸԕ 䎄‫ˈگ‬նަᴹᵳቡ↔䎄‫گ‬仍䈧≲ަԆ‫؍‬䲙ӪҸԕ࠶ᣵDŽ  к䘠ㅜ Ⅾ㿴ᇊⲴ‫؍‬䲙Ӫѻ䰤Ⲵ䎄‫࠶گ‬ᣵᡰ⎹ᵳ࡙оѹ࣑ᓄоަ࠶࡛ሩ㻛‫؍‬䲙Ӫ᢯ ᣵⲴ䍓ԫᡀ∄ֻDŽ

ㅜҍㄐਇ㺕‫گ‬ѻᵳ࡙ ㅜᶑᦏཡ৏ഐ   ྲ᷌ᦏཡᱟ⭡Ҿ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫԕ䙐ᡀᦏཡѻ᭵᜿ᡆ᰾⸕ਟ㜭䙐ᡀᦏཡত㖞 ѻн亮㘼ਁ⭏ˈࡉަᰐᵳቡ↔ᦏཡ㧧ᗇ㺕‫گ‬DŽ   ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫ䗷ཡ䙐ᡀᦏཡⲴˈަᓄ䈕㧧ᗇ᤹➗ަ䗷䭉〻ᓖ㘼䱽վ䠁仍Ⲵ ‫؍‬䲙䠁㺕‫ˈگ‬ն䘉⿽㺕‫گ‬ԕ‫؍‬অᐢᴹྲ↔᰾⺞㓖ᇊⲴᶑⅮѪ䲀DŽ  ㅜ Ⅾ઼ㅜ ⅮѝⲴᦏཡ৏ഐवᤜᵚ㜭䚯‫ᦏݽ‬ཡᡆᵚ㜭߿ቁᦏཡDŽ

ㅜᶑ߿ᦏᡀᵜ   ‫؍‬䲙Ӫᓄቡ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙ӪѪ߿ቁᡰ‫ᦏ؍‬ཡ䟷ਆ᧚ᯭ㘼ਁ⭏Ⲵᡀᵜᡆ⭡↔䚝 ਇⲴᦏᇣҸԕ㺕‫ˈگ‬նԕ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫ㜭↓ᖃ䇔Ѫަ䟷ਆⲴ᧚ᯭ൘ᖃᰦᛵ ᖒлᇎ኎ਸ⨶ণ֯䘉Ӌ᧚ᯭᵚ㜭ᡀ࣏߿ቁᦏཡ Ѫ䲀DŽ  ‫؍‬䲙Ӫᓄ᤹➗к䘠ㅜ Ⅾ㿴ᇊሩ߿ᦏᡀᵜ䘋㹼㺕‫ˈگ‬ণ֯↔㺕‫گ‬䠁仍о‫؍‬䲙䠁ѻ઼ 䎵䗷‫؍‬䲙䠁仍ᰦӖ❦DŽ

ㅜॱㄐԓս≲‫گ‬ᵳ ㅜᶑԓս≲‫گ‬ᵳ   ‫؍‬䲙Ӫੁ㻛‫؍‬䲙Ӫ᭟Ԉ‫؍‬䲙䠁ѻਾᴹᵳੁሩᦏཡ䍏ᴹ䍓ԫⲴㅜйᯩ㹼֯ԓս≲‫گ‬ ᵳDŽ䈕ᵳ࡙ѻ㹼֯ਇл䘠ㅜ Ⅾѻ㓖ᶏDŽ   ྲ᷌㻛‫؍‬䲙Ӫ᭮ᔳሩㅜйᯩⲴ≲‫گ‬ᵳǃф⭡↔ᦏ৺‫؍‬䲙ӪⲴԓս≲‫گ‬ᵳˈࡉ㻛‫؍‬䲙 ӪԕަᔳᵳⲴ〻ᓖѪ䲀ቡ䇹ҹᦏཡཡ৫㧧ᗇ‫؍‬䲙䠁Ⲵᵳ࡙DŽ   ‫؍‬䲙Ӫнᗇሩ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ⲵᇦᓝᡀઈᡆоަާᴹ㊫լ⽮Պ‫ޣ‬㌫ⲴӪǃᡆަ 䳷ઈ㹼֯ԓս≲‫گ‬ᵳˈնަ㜭䇱᰾ᦏཡᱟ⭡Ҿ↔㊫Ӫઈ᭵᜿ᡆ᰾⸕ਟ㜭ਁ⭏ᦏཡত 㖞ѻн亮㘼ሬ㠤Ⲵ䲔ཆDŽ  ‫؍‬䲙Ӫ㹼֯ԓս≲‫گ‬ᵳнᗇᴹᦏҾ㻛‫؍‬䲙Ӫѻᵳ⳺DŽ

ㅜॱаㄐ‫؍‬অᤱᴹӪѻཆⲴަԆ㻛‫؍‬䲙Ӫ ㅜᶑ㻛‫؍‬䲙ӪⲴᵳ࡙   ൘‫؍‬䲙ਸ਼ᱟѪ‫؍‬অᤱᴹӪѻཆⲴԆӪѻ࡙⳺㘼䇒・ѻᛵᖒˈྲ᷌‫؍‬䲙һ᭵ਁ⭏ˈ ࡉ䈕ԆӪᴹᵳ㧧ᗇ‫؍‬䲙䠁DŽ  ‫؍‬অᤱᴹӪᴹᵳ᫔䬰к䘠‫؍‬䲙ˈնлࡇᛵᖒᰦ䲔ཆ˖ D ‫؍‬অᐢ㓿㿴ᇊнᗇ᫔䬰˗ᡆ

382

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

E ‫؍‬䲙һ᭵ᐢ㓿ਁ⭏DŽ  к  Ⅾᡰ䘠᫔䬰ˈ㠚᫔䬰ѻҖ䶒䙊⸕ੁ‫؍‬䲙Ӫਁࠪᰦ⭏᭸DŽ

ㅜᶑ㻛‫؍‬䲙ӪⲴ⸕䚃 ൘‫؍‬অᤱᴹӪᴹѹ࣑ੁ‫؍‬䲙Ӫᨀ‫ؑޣ⴨׋‬᚟ѻᛵᖒˈㅜᶑѝԆӪⲴ⸕䚃нᗇᖂ㔃 Ѫ‫؍‬অᤱᴹӪѻ⸕䚃ˈն䈕ԆӪ⸕䚃㠚ᐡⲴ㻛‫؍‬䲙Ӫ䓛ԭᰦ䲔ཆDŽ

ㅜᶑঅњ㻛‫؍‬䲙Ӫ䘍৽ѹ࣑ অњ㻛‫؍‬䲙Ӫ䘍৽ަѹ࣑ᒦнᖡ૽਼а‫؍‬অлަԆ㻛‫؍‬䲙Ӫѻᵳ࡙ˈն仾䲙㻛䘎ᑖ᢯‫؍‬ ᰦ䲔ཆDŽ

ㅜॱҼㄐᡰ‫؍‬仾䲙 ㅜᶑᡰ‫؍‬仾䲙нᆈ൘   ྲ᷌ᡰ‫؍‬仾䲙൘ਸ਼䇒・ᰦ઼ਸ਼ᵏ䰤޵൷нᆈ൘ˈࡉ‫؍‬অᤱᴹӪн享᭟Ԉ‫؍‬䲙 䍩DŽնᱟˈ‫؍‬䲙Ӫᴹᵳቡ⭡↔ਁ⭏Ⲵ䍩⭘㧧ᗇਸ⨶仍ᓖⲴ㺕‫گ‬DŽ  ྲ᷌ᡰ‫؍‬仾䲙൘ਸ਼ᵏ䰤޵н޽ᆈ൘ˈࡉਸ਼൘‫؍‬䲙Ӫቡ↔᭦ਇ䙊⸕ᰦণ㹼㓸→DŽ

ㅜᶑ䍒ӗ䖜䇙   ྲ᷌‫؍‬䲙䍒ӗ㻛䖜䇙ˈࡉ‫؍‬䲙ਸ਼൘䖜䇙ਁ⭏ањᴸਾ㓸→ˈն‫؍‬অᤱᴹӪҏਟо ਇ䇙Ӫ㓖ᇊᴤᰙⲴਸ਼㓸→ᰦ䰤DŽྲ᷌‫؍‬䲙ਸ਼ᱟѪሶᶕⲴਇ䇙Ӫѻ࡙⳺㘼䇒・ˈ ࡉᵜ㿴ࡉн䘲⭘ѻDŽ  㠚ᡰ‫؍‬䍒ӗѻ仾䲙㻛䖜〫ѻᰦ䎧ˈ䈕䍒ӗⲴਇ䇙Ӫ㻛㿶Ѫ㻛‫؍‬䲙ӪDŽ  ൘  л䘠ᛵᖒˈк䘠ㅜ Ⅾ઼ㅜ Ⅾн䘲⭘˖ D ‫؍‬䲙Ӫǃ‫؍‬অᤱᴹӪ઼䍒ӗਇ䇙Ӫѻ䰤ᴹ⴨৽㓖ᇊ˗ᡆ E 䍒ӗ䖜䇙ᱟഐ㔗᢯㘼ਁ⭏DŽ

ㅜй㕆䘲⭘Ҿᇊ仍‫؍‬䲙Ⲵ‫਼ޡ‬㿴ᇊ ㅜॱйㄐ䘲⭘㤳ത ㅜᶑᇊ仍㔉Ԉර‫؍‬䲙 ӵ᜿ཆՔᇣ‫؍‬䲙ǃ‫ڕ‬ᓧ‫؍‬䲙ǃӪሯ‫؍‬䲙ǃႊါ‫؍‬䲙ǃ⭏㛢‫؍‬䲙ᡆަԆӪ䓛‫؍‬䲙Ѫᇊ仍‫؍‬ 䲙DŽ

ㅜഋ㕆䍓ԫ‫؍‬䲙 ㅜॱഋㄐᲞ䙊䍓ԫ‫؍‬䲙 ㅜᶑᣇ䗙ᡀᵜ ቡ‫ᦞ׍‬ㅜᶑ㘼ਁ⭏Ⲵᣇ䗙ᡀᵜˈ‫؍‬䲙ӪᓄҸԕ㺕‫گ‬DŽ

383

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ㅜᶑ‫؍‬ᣔਇᇣӪ ‫؍‬䲙Ӫо‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫቡ‫؍‬䲙অ亩лⲴ‫؍‬䲙䠁䈧≲ᵳԕॿ䇞ǃᔳᵳǃ᭟Ԉᡆ਼ ㅹ㹼Ѫ֌ࠪⲴԫօ઼䀓൷нᖡ૽ਇᇣӪⲴൠսˈնਇᇣӪԕҖ䶒㺘⽪਼᜿Ⲵ䲔ཆDŽ

ㅜᶑᦏཡⲴ৏ഐ   ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫᰐᵳቡަ᭵᜿Ⲵ֌Ѫᡆн֌Ѫሬ㠤Ⲵᦏཡ㧧ᗇ㺕‫˗گ‬䘉वᤜ ᦏཡਁ⭏ਾ㖄亮ф᰾⸕н䚥ᗚ‫؍‬䲙ӪⲴᤷ⽪ਟ㜭Պ࣐䟽ᦏཡতӽн䚥ᗚ‫؍‬䲙ӪⲴᤷ ⽪DŽ  ࡽⅮᡰ〠Ⲵሬ㠤ਇᦏཡवᤜᵚ䟷ਆ᧚ᯭ䚯‫ᦏݽ‬ཡᡆ߿ቁᦏཡDŽ   ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫᴹᵳቡަഐ䗷ཡ㘼ᵚ䚥ᗚ‫؍‬䲙Ӫ൘ᦏཡਁ⭏ѻਾⲴᤷ⽪㘼ሬ 㠤Ⲵԫօᦏཡ㧧ᗇ㺕‫ˈگ‬ն‫؍‬䲙অᶑⅮ᰾⺞㓖ᇊਟ‫؍ᦞ׍‬অᤱᴹӪᡆ㻛‫؍‬䲙ӪⲴ䗷 䭉〻ᓖ㘼߿仍᭟Ԉ‫؍‬䲙䠁Ⲵ䲔ཆDŽ

ㅜᶑ᢯䇔䍓ԫ   ‫؍‬䲙ਸ਼ᶑⅮ㤕㓖ᇊ‫؍‬䲙Ӫਟ൘‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫ䇔ਟᡆ␵‫گ‬ਇᇣӪⲴ䎄‫گ‬䈧 ≲ᵳᰦণਟ䀓䲔‫؍‬䲙ӪⲴ䍓ԫˈࡉ䈕ᶑⅮᰐ᭸DŽ  䲔䶎‫؍‬䲙Ӫ਼᜿ˈަнਇ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙ӪоਇᇣӪѻ䰤Ⲵॿ䇞ѻ㓖ᶏDŽ

ㅜᶑ䖜䇙 ‫؍‬䲙ਸ਼ᶑⅮ㤕࢕ཪ㻛‫؍‬䲙Ӫ䖜䇙ަ‫؍‬অ亩л‫؍‬䲙䠁䈧≲ᵳѻᵳ࡙ˈࡉ䈕ᶑⅮᰐ᭸DŽ

ㅜᶑᰐ㍒䎄ѻ྆࣡  ‫؍‬অᤱᴹӪᴹᵳ൘ԫօᰦ‫ى‬㾱≲㧧ᗇ‫ޣ‬Ҿަ䗷৫ӄᒤ޵Ⲵ≲‫گ‬㓚ᖅDŽ   ྲ᷌‫؍‬䲙Ӫ֯‫؍‬䲙䍩ቡᡆަԆᶑԦ‫׍‬䎆Ҿ‫؍‬অ亩лⲴ≲‫⅑گ‬ᮠᡆ䠁仍ˈࡉަ享䘲ᖃ 㘳㲁‫؍‬অᤱᴹӪ൘䗷৫ӄᒤ޵Ⲵ≲‫گ‬㓚ᖅDŽ

ㅜᶑ‫؍‬䲙һ᭵   ‫؍‬䲙һ᭵ᓄᤷਁ⭏൘‫؍‬䲙ਸ਼Ⲵ䍓ԫᵏ䰤޵ሬ㠤㻛‫؍‬䲙Ӫ享᢯ᣵ䍓ԫⲴһᇎˈն‫؍‬ 䲙ਸ਼สҾ୶ъᡆ㙼ъⲴ㘳㲁㘼ԕަԆḷ߶üü∄ྲਇᇣӪⲴ≲‫گ‬üü⭼ᇊ‫؍‬䲙һ ᭵Ⲵ䲔ཆDŽ   ྲ᷌‫؍‬䲙ਸ਼ᖃһӪԕਇᇣӪⲴ≲‫⭼گ‬ᇊ‫؍‬䲙һ᭵ˈࡉቡ䍓ԫ‫؍‬䲙ᵏ䰤޵ⲴਇᇣӪ ≲‫گ‬ᡆ䍓ԫ‫؍‬䲙ᵏ䰤ਾӄᒤԕкǃфһ᭵һᇎਁ⭏൘䍓ԫᵏ䰤㓸→ѻࡽˈަᓄ䈕኎ Ҿ᢯‫؍‬㤳തDŽ‫؍‬䲙ਸ਼ҏਟสҾਸ਼䇒・ᰦᣅ‫؍‬Ӫ⸕䚃ᡆᵜᓄ⸕䚃ަᵜᓄ亴䇑ࡠሬ 㠤≲‫Ⲵگ‬ᛵᖒ㘼ሶ↔≲‫ᧂگ‬䲔൘᢯‫؍‬㤳തѻཆDŽ

ㅜᶑ㍒䎄仍䎵ࠪ‫؍‬䲙䠁仍   ྲ᷌⭡Ҿᆈ൘ཊњਇᇣӪ㘼㠤֯‫؍‬䲙䠁‫گ‬Ԉᙫ仍䎵ࠪ‫؍‬䲙䠁仍ˈࡉᓄ᤹➗∄ֻ߿䱽 ‫گ‬Ԉ仍DŽ   ‫؍‬䲙Ӫྲ᷌н⸕䚃ᆈ൘ަԆਇᇣӪ㘼ழ᜿ሶ‫ޘ‬䜘‫؍‬䲙䠁᭟Ԉ㔉ަ⸕䚃ᆈ൘Ⲵਇᇣ Ӫˈࡉ䈕‫؍‬䲙Ӫᓄ䈕൘ަᇎ䱵᭟ԈⲴ‫؍‬䲙䠁о‫؍‬䲙䠁仍Ⲵᐞ仍䲀ᓖ޵ሩަԆਇᇣӪ ᭟Ԉ䎄‫گ‬䠁DŽ

384

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ㅜॱӄㄐⴤ᧕≲‫گ‬ᵳоⴤ᧕䇹䇬 ㅜᶑⴤ᧕≲‫گ‬оᣇ䗙   ൘лࡇᛵᖒˈԕ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙ӪሩਇᇣӪⲴ䍓ԫѪ䲀ˈਇᇣӪᴹᵳੁ‫؍‬䲙ਸ ਼ѝⲴ‫؍‬䲙Ӫⴤ᧕䈧≲㧧ᗇ䎄‫˖گ‬ D ‫؍‬䲙ާᴹᕪࡦᙗ˗ᡆ E ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫ⹤ӗ˗ᡆ F ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙Ӫᐢ㓿㻛␵㇇˗ᡆ G ਇᇣӪᐢ㓿䚝ਇӪ䓛ᦏᇣ˗ᡆ H ‫ޣ‬Ҿ䍓ԫⲴ⌅ᖻ㿴ᇊҶⴤ᧕≲‫گ‬ᵳDŽ   ‫؍‬䲙Ӫਟԕቡަ‫؍ᦞ׍‬䲙ਸ਼ӛᴹⲴᣇ䗙ሩᣇਇᇣӪˈնᴹ᰾⺞㿴ᇊ㠤֯‫؍‬䲙ާᴹ ᕪࡦᙗᰦ䲔ཆDŽ❦㘼ˈ‫؍‬䲙ӪᰐᵳสҾ‫؍‬অᤱᴹӪ઼ᡆ㻛‫؍‬䲙Ӫ൘ᦏཡਁ⭏ਾⲴ㹼 Ѫ㘼ᨀࠪԫօᣇ䗙DŽ

ㅜᶑؑ᚟ѹ࣑  㓿ਇᇣӪ䈧≲ˈ‫؍‬অᤱᴹӪ઼㻛‫؍‬䲙Ӫᓄ䈕ণ㹼ᨀ‫گ≲᧕ⴤަ׋‬ᡰ䴰㾱Ⲵؑ᚟DŽ   ‫؍‬䲙Ӫᓄ䈕ቡަ䚝ਇⲴԫօⴤ᧕≲‫گ‬ԕҖ䶒䙊⸕‫؍‬অᤱᴹӪ˗↔⿽䙊⸕нᗇᴹнᖃ 䘏ᔦˈфᴰ䘏ᓄᖃ൘ަ᭦ࡠ≲‫گ‬ѻਾєઘ޵䘋㹼DŽྲ᷌‫؍‬䲙Ӫ䘍৽↔䙊⸕ѹ࣑ˈࡉ ަሩਇᇣӪⲴ᭟Ԉᡆ٪࣑᢯䇔нᓄ䈕ᖡ૽‫؍‬অᤱᴹӪⲴᵳ࡙DŽ   ྲ᷌‫؍‬অᤱᴹӪ൘ަ᭦ࡠ‫؍‬䲙Ӫ‫ࡽᦞ׍‬Ⅾ㿴ᇊ֌ࠪⲴ䙊⸕ѻਾањᴸ޵ᵚੁ‫؍‬䲙Ӫ ᨀ‫׋‬о‫؍‬䲙һ᭵⴨‫ؑⲴޣ‬᚟ˈࡉ᧘ᇊ‫؍‬অᤱᴹӪ਼᜿‫؍‬䲙Ӫቡަ䚝䙷Ⲵ≲‫گ‬Ҹԕⴤ ᧕઼䀓DŽ䈕㿴ࡉҏ䘲⭘Ҿᇎ䱵৺ᰦ᭦ࡠ↔䙊⸕Ⲵ㻛‫؍‬䲙ӪDŽ

ㅜᶑ䀓䲔 лࡇᛵᖒлˈሩ‫؍‬অᤱᴹӪᡆ㻛‫؍‬䲙ӪⲴ᭟Ԉӵӵ䀓䲔‫؍‬䲙ӪሩਇᇣӪѻѹ࣑˖ D ਇᇣӪᐢ㓿᭮ᔳަⴤ᧕≲‫گ‬ᵳ˗ᡆ E ਇᇣӪ൘᭦ࡠ‫؍‬䲙ӪⲴҖ䶒䈧≲ѻਾഋᰕ޵⋑ᴹቡަⴤ᧕≲‫گ‬ѻ᜿ᝯ䙊⸕‫؍‬䲙ӪDŽ

ㅜᶑ䇹䇬ᰦ᭸  ਇᇣӪሩ㻛‫؍‬䲙ӪⲴ䇹䇬ᰦ᭸ᓄ䈕䘲⭘Ҿ㻛‫؍‬䲙ӪᡆਇᇣӪሩ‫؍‬䲙Ӫᨀ䎧Ⲵ䇹䇬DŽ   ਇᇣӪሩ㻛‫؍‬䲙ӪⲴ䎄‫گ‬䈧≲ᵳⲴ䇹䇬ᰦ᭸Ӿ㻛‫؍‬䲙Ӫ⸕䚃ਇᇣӪᐢ㓿ੁ‫؍‬䲙Ӫ 㹼֯ⴤ᧕≲‫گ‬ᵳ㘼ѝ→˗↔ѝ→൘䈕ⴤ᧕≲‫گ‬ᵳ㓿‫؍‬䲙Ӫ઼䀓ᡆ⭡‫؍‬䲙Ӫᤂ㔍㘼㔃 ᶏDŽ

ㅜॱ‫ޝ‬ㄐᕪࡦ‫؍‬䲙 ㅜᶑ䘲⭘㤳ത   ቡን㹼л䘠⌅ᖻ㿴ᇊⲴ‫؍‬䲙ѹ࣑㘼䇒・Ⲵ‫؍‬䲙ਸ਼ˈᖃһӪਟԕ䘹ᤙ䘲⭘ᵜlj৏ ࡉNJ˖ D ⅗ⴏ⌅㿴ᇊⲴ˗ E ⅗ⴏᡀઈഭ޵ഭ⌅㿴ᇊⲴ˗ᡆ F 䶎⅗ⴏᡀઈഭ޵ഭ⌅൘䈕ഭ⌅ᖻ‫ݱ‬䇨Ⲵ㤳ത޵㿴ᇊⲴDŽ   䲔䶎‫؍‬䲙ਸ਼ㅖਸ䈮࣐ᣅ‫؍‬ѹ࣑Ⲵާփ⌅ᖻ㿴ᇊˈ‫؍‬䲙ਸ਼ᵜ䓛Ⲵᆈ൘ᒦн┑䏣ᕪ ࡦᣅ‫؍‬ѹ࣑DŽ

385

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ㅜӄ㕆Ӫሯ‫؍‬䲙 ㅜॱгㄐӪሯ‫؍‬䲙⢩↺㿴ᇊ ㅜа㢲ㅜйӪ ㅜᶑᣅ‫؍‬ㅜйӪѻ⭏ભ 䲔䶎㧧ᗇ仾䲙ӪҖ䶒ㆮ㖢Ⲵ⸕ᛵ਼᜿ˈԕㅜйӪⲴ⭏ભѪ‫؍‬䲙ḷⲴѻ‫؍‬䲙ਸ਼ᰐ᭸DŽሩ 䈕ਸ਼Ⲵԫօᱮ㪇ਈᴤˈवᤜਇ⳺Ӫѻਈᴤǃ‫؍‬䲙䠁仍ѻਈᴤԕ৺ਸ਼ᵏ䰤Ⲵਈᴤˈ㤕 ᰐ↔⿽਼᜿ࡉᰐ᭸DŽ↔㿴ࡉҏ䘲⭘Ҿ‫؍‬䲙ਸ਼Ⲵ䖜䇙ᡆቡ‫؍‬䲙䠁ᵳ࡙䇮ᇊⲴ䍏ᣵDŽ

ㅜᶑ‫؍‬䲙䠁ਇ⳺Ӫ   ‫؍‬অᤱᴹӪᴹᵳᤷᇊаսᡆཊս‫؍‬䲙䠁ਇ⳺Ӫˈᒦᴹᵳਈᴤᡆ᫔䬰ަᤷᇊˈնᐢ㓿 ᇓ⽪ަᤷᇊнਟ᫔䬰Ⲵ䲔ཆDŽ↔⿽ᤷᇊˈ䲔䶎ᱟ൘䚇ౡѝ֌ࠪˈᓄ䈕ԕҖ䶒䘋㹼ф ᗵ享䘱䗮㔉‫؍‬䲙ӪDŽ   ࡽⅮᤷᇊᵳԕ৺ਈᴤᡆ᫔䬰ᤷᇊⲴᵳ࡙൘‫؍‬অᤱᴹӪⲴ↫ӑᰦ䰤ᡆ‫؍‬䲙һ᭵Ⲵਁ⭏ ᰦ䰤ѻ䖳ᰙᰦ䰤㓸→DŽ  ൘лࡇᛵᖒˈ‫؍‬অᤱᴹӪᡆަ㔗᢯Ӫᓄ䈕㻛㿶Ѫ‫؍‬䲙䠁ਇ⳺Ӫ˖ D ‫؍‬অᤱᴹӪᒦᵚᤷᇊਇ⳺Ӫ˗ᡆ E ቡਇ⳺Ӫѻᤷᇊᐢ㓿㻛᫔䬰ˈфᰐަԆਇ⳺Ӫ㻛ᤷᇊ˗ᡆ F ਇ⳺Ӫ൘‫؍‬䲙һ᭵ਁ⭏ࡽᐢ㓿↫ӑˈфᰐަԆਇ⳺Ӫ㻛ᤷᇊDŽ   ྲ᷌‫؍‬অᤱᴹӪᤷᇊҶєսᡆєսԕкਇ⳺ӪˈфቡަѝḀսਇ⳺ӪⲴᤷᇊᐢ㓿㻛 ᫔䬰ᡆḀսਇ⳺Ӫ൘‫؍‬䲙һ᭵ਁ⭏ࡽ↫ӑˈࡉަᵜᶕਟԕ㧧ᗇⲴ‫؍‬䲙䠁ᓄ䈕᤹➗∄ ֻ࠶䝽㔉ަԆਇ⳺Ӫˈն‫؍‬অᤱᴹӪṩᦞㅜ Ⅾਖ㹼㓖ᇊⲴ䲔ཆDŽ   ԕ⹤ӗ⌅ѝ‫ޣ‬Ҿডᇣ٪ᵳӪ࡙⳺Ⲵ⌅ᖻ㹼Ѫѻᰐ᭸ǃ᫔䬰ᡆнਟᢗ㹼ѻ㿴ᇊѪ䲀ˈ ਚ㾱‫؍‬䲙䠁ቊᵚ㻛᭟Ԉ㔉‫؍‬অᤱᴹӪˈࡉ‫؍‬অᤱᴹӪⲴ⹤ӗ䍒ӗнᓄӛᴹ‫؍⎹ޣ‬䲙 䠁ǃ‫؍‬অⲴ䖜ॆԧ٬ᡆ⧠䠁ԧ٬Ⲵᵳ࡙DŽ  ‫؍‬䲙Ӫੁ‫ࡽᦞ׍‬䘠ㅜ Ⅾ㿴ᇊᤷᇊⲴӪ᭟Ԉ‫؍‬䲙䠁ѻਾˈަ᭟Ԉѹ࣑‫ׯ‬ᗇԕ䀓䲔ˈ նަ᰾⸕ਇ亶Ӫᰐᵳ㧧ᗇ‫؍‬䲙䠁ᰦ䲔ཆDŽ

ㅜᶑ⧠䠁ԧ٬Ⲵਇ⳺Ӫ  ‫؍‬অᤱᴹӪ‫ᦞ׍‬ㅜᶑᤷᇊਇ⳺ӪⲴˈަӽ❦ਟԕᤷᇊ‫؍‬অ⧠䠁ԧ٬Ⲵਇ⳺Ӫˈ ᒦᴹᵳਈᴤᡆ᫔䬰↔⿽ᤷᇊDŽ↔⿽ᤷᇊǃਈᴤᡆ᫔䬰ᓄ䈕ԕҖ䶒Ѫѻˈަᓄ䈕䘱䗮 㔉‫؍‬䲙ӪDŽ  ൘лࡇᛵᖒˈ‫؍‬অᤱᴹӪ㻛㿶Ѫ‫؍‬অ⧠䠁ԧ٬Ⲵਇ⳺Ӫ˖ D ⋑ᴹ⧠䠁ԧ٬ਇ⳺Ӫ˗ᡆ E ⧠䠁ԧ٬ਇ⳺Ӫѻᤷᇊᐢ㓿㻛᫔䬰фᒦᵚᤷᇊަԆਇ⳺Ӫ˗ᡆ F ᤷᇊⲴ⧠䠁ԧ٬ਇ⳺Ӫᐢ㓿↫ӑфᒦᵚᤷᇊަԆਇ⳺ӪDŽ  ㅜᶑㅜ ǃ ǃ Ⅾᓄ㓿ᗵ㾱Ⲵ䶎ᇎ䍘ਈॆ㘼߶⭘DŽ

ㅜᶑ‫؍‬অѻ䖜䇙ᡆ䇮ᇊ䍏ᣵ   ྲ᷌ਇ⳺Ӫᐢ㓿㻛ᤷᇊфнਟ㻛᫔䬰ˈࡉ‫؍‬䲙ਸ਼ᡆ‫؍‬䲙䠁ᵳ࡙ѻ䖜䇙ᡆ䇮ᇊ䍏ᣵ 享㓿ਇ⳺ӪҖ䶒਼᜿ᯩѪᴹ᭸DŽ  ਇ⳺Ӫሩ‫؍‬䲙䠁ᵳ࡙Ⲵ䖜䇙ᡆ䇮ᇊ䍏ᣵ享㓿‫؍‬অᤱᴹӪ਼᜿ᯩѪᴹ᭸DŽ

386

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ㅜᶑ᭮ᔳ䚇ӗ ྲ᷌ਇ⳺Ӫᱟᐢ᭵仾䲙ӪⲴ㔗᢯Ӫфަᐢ㓿᭮ᔳҶ䚇ӗˈࡉ᭮ᔳ䚇ӗ䘉аঅ⤜һᇎᒦн ᖡ૽ަ‫؍ᦞ׍‬䲙ਸ਼ާᴹⲴൠսDŽ

ㅜҼ㢲ࡍ࿻䱦⇥оਸ਼Ⲵᵏ䰤 ㅜᶑᣅ‫؍‬ӪⲴ‫ݸ‬ਸ਼ؑ᚟ѹ࣑  ᣅ‫؍‬Ӫ‫ᦞ׍‬ㅜᶑㅜ Ⅾᨀ‫ؑⲴ׋‬᚟ᓄ䈕वᤜ仾䲙Ӫ䗷৫⸕䚃ᡆ䗷৫ᵜᶕᓄ䈕⸕ 䚃ⲴᛵᖒDŽ  ഐ䘍৽ㅜᶑǃㅜᶑ઼ㅜᶑǃնнवᤜㅜᶑ㿴ᇊⲴ‫ݸ‬ਸ਼ؑ᚟ѹ ࣑㘼ਁ⭏Ⲵࡦ㻱൘ਸ਼䇒・ቺ┑ӄᒤѻਾᓄ䈕н޽䘲⭘DŽ

ㅜᶑ‫؍‬䲙ӪⲴ‫ݸ‬ਸ਼ѹ࣑   ‫؍‬䲙Ӫᓄ䈕੺⸕ᣅ‫؍‬Ӫަᱟ੖ᴹᵳ৲о᭦⳺࠶䝽DŽᣅ‫؍‬Ӫ享൘оᣅ‫؍‬অⲴ࠶⿫Ⲵ᮷ Җѝ᰾⽪䱸䘠᢯䇔ަᐢ㓿᭦ਇ↔ؑ᚟DŽ  ‫؍‬䲙Ӫ‫ᦞ׍‬ㅜᶑᨀ‫Ⲵ׋‬᮷Җᓄ䈕वਜ਼ྲлؑ᚟˖ D ާփᨀ৺‫ޣ‬Ҿ‫؍‬䲙ӪⲴ‫گ‬Ԉ㜭઼࣋䍒࣑⣦ߥⲴᒤᓖᣕ੺ѻᕪࡦࠪ⡸˗ E ‫؍‬䲙ӪⲴਸ਼᢯䈪 L  ቡ⇿а⿽᭦⳺઼ᵏᵳⲴ䀓䟺˗ LL ⇿а⿽ѫ㾱᭦⳺઼䱴ᑖ᭦⳺ሩᓄⲴ‫؍‬䲙䍩ѻ∄ֻ˗ LLL 㓒࡙Ⲵ䇑㇇о࠶䝽ᯩᔿˈवᤜᤷ᰾ਟ䘲⭘Ⲵⴁ㇑⌅ᖻ˗ LY ሩ⧠䠁ԧ٬઼䖜ᦒԧ٬Ⲵ䈤᰾ԕ৺↔⿽ԧ٬ѻ᭟ԈⲴ⺞‫؍‬〻ᓖ˗ Y   ቡঅս䘎᧕ර‫؍‬অˈ享ሩо᭦⳺⴨䘎᧕ⲴঅսҸԕ䀓䟺ˈᒦ䈤᰾ަሩᓄ䍴 ӗѻ኎ᙗ˗ YL 䘲⭘Ҿ‫؍‬অⲴ〾࣑ㆩࡂѻа㡜ؑ᚟˗   䲔↔ѻཆˈ‫؍‬䲙Ӫᓄ䈕ᨀ‫ާ׋‬փؑ᚟ˈԕ‫ׯ‬ᣅ‫؍‬Ӫ㜭ᚠᖃ⨶䀓ਸ਼亩лަ᢯ᣵⲴ仾 䲙DŽ   ྲ᷌‫؍‬䲙Ӫԕᮠᆇ䈤᰾䎵䗷ਸ਼‫؍‬䇱Ⲵ䠁仍Ⲵਟ㜭Ⲵ᭦⳺ˈࡉަᓄ䈕Ѫᣅ‫؍‬Ӫᨀ‫׋‬ ањ䇑㇇⁑රˈф↔⁑ර享䈤᰾‫؍‬অࡠᵏᰦਟ㜭ާᴹⲴ᭦⳺˗↔⿽᭦⳺ԕ‫؍‬䍩䇑㇇ Ⲵ㋮㇇৏ࡉѪส⹰ˈާᴹй⿽н਼Ⲵ࡙⦷DŽն↔㿴ࡉн䘲⭘Ҿ‫؍‬䲙Ӫቡަ᢯‫Ⲵ؍‬仾 䲙ѻ䍓ԫн⺞ᇊⲴ‫؍‬䲙ਸ਼ˈҏн䘲⭘Ҿঅս䘎᧕ර‫؍‬অDŽ‫؍‬䲙Ӫᓄ䈕ԕ␵ᾊǃਟ ⨶䀓Ⲵᯩᔿੁᣅ‫؍‬Ӫ䈤᰾ަ䇑㇇⁑රӵӵԓ㺘а⿽สҾ‫ٷ‬ᇊⲴ⁑රǃфਸ਼ᵜ䓛н ‫؍‬䇱ਟ㜭Ⲵ᭟Ԉ仍DŽ

ㅜᶑߧ䶉ᵏ   ቡӪሯ‫؍‬䲙ਸ਼ˈㅜᶑㅜ Ⅾ㿴ᇊⲴߧ䶉ᵏѪањᴸˈ㠚ᣅ‫؍‬Ӫ᭦ࡠᡆ‫؍‬䲙 ӪӔԈㅜᶑ઼ㅜᶑᡰᤷⲴ᮷ҖਾǃӾҼ㘵ѝ䶐ਾⲴᰦ䰤ᔰ࿻䎧㇇DŽ  ‫؍‬䲙Ӫ‫ᦞ׍‬ㅜᶑㅜ Ⅾ㘼᫔䬰ਸ਼ѻᵳ࡙൘ਸ਼䇒・аᒤѻਾ⎸⚝DŽ

ㅜᶑ‫؍‬অᤱᴹӪ㓸→ਸ਼Ⲵᵳ࡙   ‫؍‬অᤱᴹӪᓄ䈕ᴹᵳ㓸→нާᴹ䖜ᦒԧ٬ᡆ⧠䠁ԧ٬ⲴӪሯ‫؍‬䲙ਸ਼ˈն↔⿽㓸→ нᗇ൘‫؍‬䲙ਸ਼䇒・ਾн䏣аᒤᰦ⭏᭸DŽྲ᷌ᐢ㓿᭟ԈҶঅㅄ‫؍‬䍩ˈࡉਸ਼ᵏ䰤ቺ ┑ࡽⲴਸ਼㓸→ᵳਟ㻛ᧂ䲔DŽਸ਼Ⲵ㓸→ᓄ䈕ԕҖ䶒䘋㹼ˈф൘‫؍‬অᤱᴹӪ᭦ࡠ‫؍‬ 䲙ӪⲴ㓸→䙊⸕єઘѻਾ⭏᭸DŽ 13

ᵜᶑㅜ˄1˅ⅮᱟԕӪሯ‫؍‬䲙Directive 2002 / 83 / ECㅜ35ᶑ઼Directive 2002 / 65 / ECㅜ6ᶑѪ㬍ᵜDŽ

387

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

  ྲ᷌Ӫሯ‫؍‬䲙ਸ਼ᐢ㓿ާᴹ䖜ᦒԧ٬ᡆ⧠䠁ԧ٬ˈࡉᓄ䘲⭘ㅜᶑࡠㅜ ᶑDŽ

ㅜᶑ‫؍‬䲙Ӫਸ਼㓸→ᵳ ‫؍‬䲙Ӫᓄ䈕ӵ൘ᵜㄐ㿴ᇊⲴ㤳ത޵ᯩᴹᵳ㓸→Ӫሯ‫؍‬䲙ਸ਼DŽ

ㅜй㢲ਸ਼ᵏ䰤޵Ⲵਈॆ ㅜᶑ‫؍‬䲙ӪⲴਾਸ਼ѹ࣑   ‫➗׍‬㿴ᇊᡆ㓖ᇊˈ‫؍‬䲙Ӫᓄᖃ⇿ᒤੁ‫؍‬অᤱᴹӪᨀ‫׋‬Җ䶒䍴ᯉ䈤᰾‫؍‬অ䱴ᴹⲴ᭦⳺ Ⲵ⧠ᰦԧ٬DŽ  ‫؍‬䲙Ӫ䲔Ҷ享䚥ᗚㅜᶑⲴ㿴ᇊѻཆˈ䘈ᓄ䈕৺ᰦੁ‫؍‬অᤱᴹӪ੺⸕лࡇһ亩˖ D ‫؍‬অⲴа㡜ᶑԦ઼⢩↺ᶑԦ E ൘‫؍‬অᶑԦਈᴤᡆᵜlj৏ࡉNJ‫؞‬䇒ѻᛵᖒˈ‫؍‬䲙Ӫᓄ䈕৺ᰦੁ‫؍‬অᤱᴹӪ੺⸕ㅜ ᶑI亩઼J亩ԕ৺ㅜᶑㅜ ⅮE亩ㅜа㠣ӄ⛩ࡇѮⲴؑ᚟DŽ   ྲ᷌‫ޣ‬Ҿਟ㜭Ⲵ᭦⳺ѻՠ㇇ᮠ仍൘ਸ਼ᵏ䰤޵㻛䲿ᰦᨀ‫ࡉˈ׋‬ㅜᶑㅜഋⅮҏ ᓄ䘲⭘DŽྲ᷌‫؍‬䲙Ӫ൘ਸ਼䇒・ࡽᡆ䇒・ਾᨀ‫׋‬Ҷ‫ޣ‬Ҿ᭦⳺৲оѻ▌൘Ⲵሶᶕਁኅ ᮠ仍ˈࡉ‫؍‬䲙Ӫᓄ䈕ቡࡍ࿻ᮠᦞоᇎ䱵ᮠ仍ѻ䰤Ⲵᐞᔲ੺⸕‫؍‬অᤱᴹӪDŽ

ㅜᶑ仾䲙࣐䟽 ൘Ӫሯ‫؍‬䲙ਸ਼ѝˈྲ᷌ਸ਼ᶑⅮሶᒤ喴ᡆ‫ڕ‬ᓧѻᚦॆᤷᇊѪㅜᶑ᜿ѹкⲴ仾䲙໎ ࣐ˈࡉ↔⿽ᶑⅮ㻛㿶Ѫㅜᶑ㿴ᇊⲴн‫ޜ‬ᒣᶑⅮDŽ

ㅜᶑ‫؍‬䍩оᓄԈ᭦⳺ѻ䈳ᮤ   ྲ᷌Ӫሯ‫؍‬䲙ਸ਼᢯‫Ⲵ؍‬仾䲙ᗵ❦Ѫ‫؍‬䲙Ӫᡰ᢯ᣵˈࡉ‫؍‬䲙Ӫӵӵᴹᵳ‫ᦞ׍‬ᵜᶑㅜ  Ⅾ઼ㅜ Ⅾ䈳ᮤ‫؍‬䍩ᡆ᭦⳺DŽ   ྲ᷌֌Ѫ䇑㇇‫؍‬䍩ѻส⹰ⲴӪփ⭏⢙ᤷḷѻ仾䲙ਁ⭏Ҷнਟ亴㿱Ⲵǃ≨ѵᙗⲴਈ ॆˈф‫؍‬䍩ѻ໎࣐Ѫ⺞‫؍؍‬䲙Ӫᤱ㔝᭟Ԉ‫؍‬䲙䠁Ⲵ㜭࣋ᡰᗵ㾱ˈ㘼ф‫؍‬䍩ѻ໎࣐Ѫ ⤜・ⲴਇᢈӪᡆⴁ㇑ᵪᶴᡰ਼᜿ˈࡉਟԕ໎࣐‫؍‬䍩DŽ‫؍‬অᤱᴹӪᓄ䈕ᴹᵳԕ‫؍‬䲙䠁 ѻᢓ߿ᣥ⎸‫؍‬䍩ѻ໎࣐DŽ  ྲ᷌‫؍‬䍩ᐢ㓿‫ޘ‬䜘㕤␵ˈ‫؍‬䲙Ӫᓄ䈕ᴹᵳ‫ᦞ׍‬к䘠ㅜ Ⅾ㿴ᇊⲴᶑԦ䱽վ‫؍‬䲙䠁DŽ  ൘л䘠ᛵᖒнᗇ‫ᦞ׍‬к䘠ㅜ Ⅾᡆㅜ Ⅾ䈳ᮤ‫؍‬䍩ᡆ‫؍‬䲙䠁˖ D  ‫؍‬䍩઼ᡆ‫؍‬䲙䠁ѻ䇑㇇ᆈ൘䇑㇇䭉䈟ˈфањ㜌ԫऔࣹⲴ㋮㇇ᐸᵜᓄ䈕᜿䇶ࡠ 䈕䭉䈟˗ E 䇑㇇ᒦн䘲⭘Ҿ‫ޘ‬䜘ਸ਼वᤜ൘䈳ᮤਾ䇒・Ⲵਸ਼ DŽ   ‫؍‬䲙Ӫᓄ䈕ቡ໎࣐‫؍‬䍩ᡆ䱽վ‫؍‬䲙䠁ੁ‫؍‬অᤱᴹӪ֌Җ䶒䈤᰾ˈᒦ䈤᰾↔ㅹ໎࣐ᡆ 䱽վѻ৏ഐˈ䘈㾱੺⸕‫؍‬অᤱᴹӪᴹᵳ㾱≲䱽վ‫؍‬䲙䠁DŽ‫؍‬䍩ѻ໎࣐ᡆ‫؍‬䲙䠁ѻ䱽 վ൘‫؍‬䲙Ӫ䘋㹼ࡽ䘠䙊⸕йњᴸਾਁ⭏᭸࣋DŽ   ྲ᷌Ӫሯ‫؍‬䲙ਸ਼᢯‫Ⲵ؍‬仾䲙ᗵ❦Ѫ‫؍‬䲙Ӫᡰ᢯ᣵˈф֌Ѫ䇑㇇‫؍‬䍩ѻส⹰ⲴӪ փ⭏⢙ᤷḷѻ仾䲙ਁ⭏Ҷнਟ亴㿱Ⲵǃ≨ѵᙗⲴਈॆˈӾ㘼֯ᗇ৏ᶕⲴ‫؍‬䍩䠁仍ሩ Ҿ⺞‫؍‬ᤱ㔝᭟Ԉ‫؍‬䲙䠁Ⲵ㜭࣋н޽ާᴹ䘲ᖃᙗ઼ᗵ㾱ᙗˈࡉ‫؍‬অᤱᴹӪᴹᵳ䱽վ‫؍‬ 䍩DŽն↔⿽䱽վᗵ享Ѫ⤜・ⲴਇᢈӪᡆⴁ㇑ᵪᶴᡰ਼᜿DŽ  ᵜᶑ㿴ᇊⲴᵳ࡙ਟԕ൘ਸ਼䇒・ቺ┑ӄᒤѻਾ㹼֯DŽ

388

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ㅜᶑਸ਼ᶑⅮоᶑԦѻਈᴤ   ྲ᷌ਸ਼ᶑⅮ‫ݱ‬䇨‫؍‬䲙Ӫਈᴤ‫ޣ‬Ҿ‫؍‬䍩઼ᓄԈ‫؍‬䲙䠁ѻཆⲴަԆᶑⅮᡆᶑԦˈࡉ䈕 ᶑⅮᰐ᭸ˈն൘лࡇᛵᖒ䲔ཆ˖ D ↔ਈᴤᱟѪҶ䚥ᗚवᤜⴁ㇑ᵪᶴ䟷ਆⲴᤈᶏ᧚ᯭ൘޵Ⲵⴁ㇑⌅ѻ‫؞‬䇒˗ᡆ E ↔ਈᴤᱟѪҶ䚥ᗚ‫ޣ‬Ҿ䳷ѫޫ㘱䠁䇑ࡂⲴਟ䘲⭘Ⲵ޵ഭ⌅Ⲵᕪࡦ㿴ᇊѻ‫؞‬䇒˗ᡆ F ↔ਈᴤᱟѪҶ䚥ᗚ޵ഭ⌅ѪҶㅖਸ⢩↺Ⲵ〾࣑༴⨶ᡆ᭯ᓌ㺕䍤㘼ᕪࡦ䈮࣐Ⲵ‫ޣ‬Ҿ Ӫሯ‫؍‬䲙ਸ਼Ⲵާփ㿴ᇊ˗ᡆ G ↔ਈᴤṩᦞㅜᶑㅜ ⅮㅜҼਕ㘼ᴯԓਸ਼ѝⲴᶑⅮDŽ   ਈᴤ൘‫؍‬অᤱᴹӪ᭦ࡠ‫ޣ‬Ҿ↔ਈᴤ৺ަ৏ഐⲴҖ䶒䙊⸕ਾㅜйњᴸᔰ࿻ᰦਁ⭏᭸ ࣋DŽ  ᵜ  ᶑㅜ Ⅾѻ䘲⭘ᰐ⺽Ҿ‫ޣ‬ҾਈᴤᶑⅮѻ᭸࣋ⲴަԆ㾱≲DŽ

ㅜഋ㢲о޵ഭ⌅ѻ‫ޣ‬㌫ ㅜᶑޫ㘱䠁䇑ࡂ оޫ㘱䠁䇑ࡂ⴨‫ޣ‬㚄ⲴӪሯ‫؍‬䲙ਸ਼ᓄਇਟ䘲⭘Ⲵ‫ޣ‬Ҿޫ㘱䠁䇑ࡂⲴ޵ഭ⌅ѻᕪࡦ㿴ᇊ ⲴᤈᶏDŽᵜlj৏ࡉNJӵ൘о↔㊫ᕪࡦ㿴ᇊ⴨ᇩⲴᛵߥл䘲⭘DŽ

ㅜᶑ〾࣑༴⨶о᭯ᓌ㺕䍤 ᵜlj৏ࡉNJнᖡ૽޵ഭ⌅ѪҶㅖਸ⢩↺Ⲵ〾࣑༴⨶ᡆ᭯ᓌ㺕䍤㘼ᕪࡦ䈮࣐Ⲵާփ㿴ᇊDŽ ྲ᷌ਟ䘲⭘Ⲵ޵ഭ⌅ѻ↔㊫ާփᕪࡦ㿴ᇊоᵜlj৏ࡉNJна㠤ˈࡉਟሩᵜlj৏ࡉNJҸԕ ਈ䙊߶⭘DŽ

ㅜӄ㢲‫؍‬䲙һ᭵ ㅜᶑ‫؍‬䲙ӪⲴ䈳ḕоؑ᚟ѹ࣑   ྲ᷌‫؍‬䲙Ӫᴹ⨶⭡⴨ؑ‫؍‬䲙һ᭵ਟ㜭ᐢ㓿ਁ⭏ˈࡉަᓄ䈕䟷ਆਸ⨶᧚ᯭሩ↔Ҹԕ⺞ 䇔DŽ   ྲ᷌‫؍‬䲙Ӫ⸕䚃‫؍‬䲙һ᭵ᐢ㓿ਁ⭏ˈࡉަᓄ䈕ቭᴰབྷࣚ࣋ḕራਇ⳺ӪⲴ䓛ԭ઼ൠ ൰ˈᒦ⴨ᓄ䙊⸕䈕ਇ⳺ӪDŽ↔䙊⸕ᓄ䈕൘‫؍‬䲙Ӫ⸕䚃ਇ⳺ӪⲴ䓛ԭ઼ൠ൰ਾйॱᰕ ޵䘋㹼DŽ   ྲ᷌‫؍‬䲙Ӫ䘍৽к䘠ㅜ Ⅾᡆㅜ Ⅾˈࡉਇ⳺Ӫ䈧≲ᵳⲴ䇹䇬ᰦ᭸ѝ→ࡠަ㧧ᗇ ‫ޣ‬Ҿަᇎ䱵ᵳ࡙Ⲵؑ᚟ᰦѪ→DŽ

ㅜᶑ㠚ᵰ   ྲ᷌仾䲙Ӫ൘‫؍‬䲙ਸ਼䇒・ਾаᒤ޵㠚ᵰˈࡉ‫؍‬䲙Ӫ㔉Ԉ‫؍‬䲙䠁ѻѹ࣑㻛䀓䲔DŽ൘ ↔ᛵᖒлˈ‫؍‬䲙Ӫᓄ䈕‫ᦞ׍‬ㅜᶑ᭟Ԉ⧠䠁ԧ٬઼ަԆԫօ᭦⳺DŽ  к䘠ㅜ Ⅾ㿴ᇊ൘лࡇᛵᖒн䘲⭘˖ D 仾䲙Ӫ൘ᇎᯭ㠚ᵰ㹼Ѫᰦަ᜿ᘇ⣦ᘱ㠤֯ަ⋑ᴹ㜭࣋㠚⭡ߣᇊަ᜿മ˗ E ਟԕ∛ᰐԫօਸ⨶ᘰ⯁ൠ䇱᰾仾䲙Ӫ൘䇒・ਸ਼ᰦᒦᰐ㠚ᵰ᜿മDŽ

ㅜᶑ᭵᜿ᵰᇣ仾䲙Ӫ  ྲ᷌ਇ⳺Ӫ᭵᜿ᵰᇣ仾䲙Ӫˈࡉሩ䈕ਇ⳺Ӫѻᤷᇊ㿶Ѫ㻛᫔䬰DŽ  ྲ᷌‫؍‬䲙䠁䈧≲ᵳⲴਇ䇙Ӫ᭵᜿ᵰᇣ仾䲙Ӫˈࡉ䈕䖜䇙нާᴹ᭸࣋DŽ

389

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

 ‫؍‬অᤱᴹӪоਇ⳺Ӫ਼аᰦˈྲ᷌ަ᭵᜿ᵰᇣ仾䲙Ӫˈࡉ‫؍‬䲙Ӫнᗵ㔉Ԉ‫؍‬䲙䠁DŽ   ྲ᷌ਇ⳺Ӫᡆ‫؍‬অᤱᴹӪሩ仾䲙Ӫѻᵰᇣާᴹ↓ᖃᙗˈ∄ྲ↓ᖃ䱢ছˈࡉᵜᶑн䘲 ⭘DŽ

ㅜ‫ޝ‬㢲䖜ᦒоਈ⧠ ㅜᶑਸ਼Ⲵ䖜ᦒ  ㅜᶑн䘲⭘Ҿᐢ㓿ާᴹ䖜ᦒԧ٬ᡆ⧠䠁ԧ٬ⲴӪሯ‫؍‬䲙ਸ਼DŽ↔⿽ਸ਼ᓄ䈕㻛 䖜ᦒѪ‫؍‬䍩ᐢ㓿‫ޘ‬䜘㕤␵Ⲵ‫؍‬অSDLGXSSROLF\ ˈն‫؍‬অᤱᴹӪ൘᭦ࡠྲлㅜ Ⅾᨀ৺Ⲵؑ᚟ਾഋઘ޵㾱≲᭟Ԉ⧠䠁ԧ٬Ⲵ䲔ཆDŽ   ൘ㅜᶑE亩ᡆㅜᶑㅜ ⅮE亩ᡰᤷⲴᵏ䰤ቺ┑ਾഋઘ޵ˈ‫؍‬䲙Ӫᓄ䈕੺⸕ ‫؍‬অᤱᴹӪަਸ਼Ⲵ䖜ᦒԧ٬઼⧠䠁ԧ٬ˈᒦ㾱≲‫؍‬অᤱᴹӪ൘䖜ᦒԧ٬઼⧠䠁ԧ ٬ⴤ᧕ᤙа䈧≲㔉ԈDŽ  㔉Ԉ䖜ᦒԧ٬ᡆ᭟Ԉ⧠䠁ԧ٬ѻ䈧≲ᓄ䈕ԕҖ䶒ѪѻDŽ

ㅜᶑਸ਼Ⲵਈ⧠   ൘‫؍‬䲙ਸ਼䇒・ቺ┑аᒤѻਾˈ‫؍‬অᤱᴹӪਟԕ൘ԫօᰦ‫ى‬ԕҖ䶒㾱≲‫؍‬䲙Ӫ‫ޘ‬䜘 ᡆ䜘࠶᭟Ԉ‫؍‬䲙অᐢ㓿ާᴹⲴ⧠䠁ԧ٬DŽਸ਼ᓄ⴨ᓄ㻛䈳ᮤᡆ㻛㓸→DŽ  ਇㅜᶑѻᤈᶏˈྲ᷌ާᴹ⧠䠁ԧ٬ⲴӪሯ‫؍‬䲙ਸ਼ᐢ㓿㻛㓸→ǃ㻛䀓䲔ᡆ㻛‫؍‬ 䲙Ӫ᫔䬰ˈࡉ‫؍‬䲙Ӫᴹѹ࣑᭟Ԉ⧠䠁ԧ٬ˈণ֯൘ㅜᶑѻᛵᖒҏྲ↔DŽ   ‫؍‬অᤱᴹӪ䈧≲㧧ᗇ‫ޣ‬Ҿ⧠䠁ԧ٬Ⲵ⧠ᰦᮠ仍৺ަ⺞‫؍‬᭟ԈⲴ〻ᓖⲴؑ᚟ˈ‫؍‬䲙Ӫ ᓄ䈕ণ࡫੺⸕DŽণ֯‫؍‬অᤱᴹӪᵚ䈧≲↔⿽ؑ᚟ˈ‫؍‬䲙Ӫҏᓄ䈕⇿ᒤቡ↔੺⸕‫؍‬অ ᤱᴹӪDŽ   ‫؍‬অᤱᴹӪᴹᵳ㧧ᗇⲴԫօ᭦⳺ѻԭ仍ᓄ䈕൘⧠䠁ԧ٬ѻཆਖ㹼᭟Ԉˈն൘䇑㇇⧠ 䠁ԧ٬ᰦᐢ㓿䇑ྲ↔ㅹԭ仍Ⲵ䲔ཆDŽ   ቡ‫ᦞ׍‬ᵜᶑⲴᓄԈ䠁仍ˈ‫؍‬䲙Ӫᓄ䈕൘ަ᭦ࡠ‫؍‬অᤱᴹӪⲴ䈧≲ਾєњᴸ޵Ҹԕ᭟ ԈDŽ

ㅜᶑ䖜ᦒԧ٬઼⧠䠁ԧ٬  ‫؍‬䲙ਸ਼ᓄ䈕䈤᰾ྲօṩᦞ‫؍‬䲙Ӫᡰ኎Ⲵ⅗ⴏᡀઈഭⲴ⌅ᖻ䇑㇇䖜ᦒԧ٬઼ᡆ⧠䠁 ԧ٬DŽަ䈤᰾Ⲵ䇑㇇ᯩᔿᓄ䈕䚥ᗚᰒᇊ‫ޜ‬䇔Ⲵ㋮㇇৏ࡉ઼ᵜᶑㅜ ⅮDŽ  ‫؍‬䲙Ӫ൘ᢓ䲔䇒・ਸ਼Ⲵᡀᵜᰦˈᓄ䈕ㅹ仍䘋㹼ˈфᢓ߿ᵏнᗇ䎵䗷ӄᒤDŽ   ‫؍‬䲙ӪᴹᵳѪҶ⏥ⴆ⧠䠁ԧ٬Ⲵ᭟Ԉᡀᵜ㘼ᢓ䲔䘲ᖃⲴǃ‫ᦞ׍‬ᰒᇊ‫ޜ‬䇔Ⲵ㋮㇇৏ࡉ 䇑㇇ࠪᶕⲴ䠁仍ˈն↔䠁仍ᐢ㓿㓣‫ޕ‬䇑㇇Ⲵ䲔ཆDŽ

ㅜ‫ޝ‬㕆ഒփ‫؍‬䲙 ㅜॱ‫ޛ‬ㄐഒփ‫؍‬䲙⢩↺㿴ᇊ ㅜа㢲ഒփ‫؍‬䲙ѻ䙊⭘ᶑⅮ ㅜᶑ䘲⭘ ൘ഒփ‫؍‬䲙ˈྲ᷌ഒփ㓴㓷㘵о‫؍‬䲙Ӫᐢ㓿‫ᦞ׍‬ㅜᶑ䗮ᡀॿ䇞ˈࡉަഒփ‫؍‬䲙ਸ਼ ਇᵜlj৏ࡉNJѻᤈᶏDŽഒփ‫؍‬䲙㾱Ѹᱟ䱴኎රˈӾ㘼䘲⭘ᵜㄐㅜҼ㢲ˈ㾱Ѹᱟ䘹ᤙර㘼 䘲⭘ᵜㄐㅜй㢲DŽ

390

Chinese: ⅗⍢‫؍‬䲙ਸ਼⌅৏ࡉ

ㅜᶑഒփ㓴㓷㘵Ⲵа㡜⌘᜿ѹ࣑   ൘ഒփ‫؍‬䲙Ⲵ୶⍭оን㹼䗷〻ѝˈഒփ㓴㓷㘵ᓄ䈕ቭ㙼ழ᜿ൠ㘳㲁ഒփᡀઈⲴਸ⨶ ࡙⳺DŽ   ഒփ㓴㓷㘵ᓄ䈕ሶ‫؍‬䲙ӪㆮਁⲴԫօ⴨‫ޣ‬䙊⸕䖜ਁ㔉ഒփᡀઈˈᒦੁަ੺⸕ሩҾਸ ਼Ⲵԫօ‫؞‬䇒DŽ

ㅜҼ㢲䱴኎රഒփ‫؍‬䲙 ㅜᶑᵜlj৏ࡉNJѻ䘲⭘ ൘ᗵ㾱ᰦˈਟሩᵜlj৏ࡉNJ֌䶎ᇎ䍘ਈ䙊㘼䘲⭘Ҿ䱴኎රഒփ‫؍‬䲙DŽ

ㅜᶑؑ᚟ѹ࣑  ഒփᡀઈ൘࣐‫ޕ‬ഒփᰦˈഒփ㓴㓷㘵ᓄ䈕৺ᰦੁަ੺⸕ྲлһ亩˖ D ‫؍‬䲙ਸ਼Ⲵᆈ൘˗ E ᢯‫؍‬㤳ത˗ F 亴䱢᧚ᯭ઼㔤ᤱ᢯‫ަⲴ؍‬Ԇ㾱≲˗ԕ৺ G ㍒䎄〻ᒿDŽ  䇱᰾ഒփᡀઈᐢ㓿᭦ᚹㅜ Ⅾ㿴ᇊؑ᚟ѻѮ䇱䍓ԫ⭡ഒփ㓴㓷㘵᢯ᣵDŽ

ㅜᶑ‫؍‬䲙Ӫ㓸→ਸ਼  สҾㅜᶑѻⴞⲴˈྲ᷌‫؍‬䲙ӪⲴਸ਼㓸→ᵳ䲀Ҿሶᐢ㓿䚝䙷‫؍‬䲙һ᭵Ⲵഒփᡀ ઈᧂ䲔൘᢯‫؍‬㤳തѻཆˈࡉ↔ᵳ࡙ѻ㹼֯㻛㿶Ѫਸ⨶DŽ  สҾㅜᶑѻⴞⲴˈ‫؍‬䲙Ӫ㹼֯ਸ਼㓸→ᵳѻ᭸᷌ӵӵᱟሶᵚ䟷ਆ亴䱢᧚ᯭⲴഒ փᡀઈᡆ仾䲙࣐䟽Ⲵഒփᡀઈᧂ䲔൘᢯‫؍‬㤳തѻཆDŽ   สҾㅜᶑѻⴞⲴˈ‫؍‬䲙ਸ਼㓸→Ⲵ᭸᷌ӵӵᱟ֯ሶᡰ‫؍‬䍒ӗѻᡰᴹᵳ䖜〫㔉 ԆӪⲴഒփᡀઈ㻛ᧂ䲔൘᢯‫؍‬㤳തѻཆDŽ

ㅜᶑഒփӪሯ‫؍‬䲙ѝⲴ㔝‫؍‬ᵳ   ྲ᷌䱴኎රഒփӪሯ‫؍‬䲙ਸ਼㓸→ˈᡆഒփᡀઈ䘰ࠪ䈕ഒփˈࡉަ‫؍‬䲙൘↔йњᴸ ਾᡆ൘ഒփӪሯ‫؍‬䲙ਸ਼ᵏቺ┑ᰦҼ㘵Ⲵ䖳ᰙᰦ䰤㓸→DŽ൘↔ᛵᖒлˈഒփᡀઈᴹ ᵳо਼а‫؍‬䲙ӪԕᯠⲴњփਸ਼㧧ᗇ਼ṧⲴ‫؍‬䲙ˈфнᗵ䟽ᯠ䘋㹼仾䲙䇴ՠDŽ  ഒփ㓴㓷㘵ᓄ䈕ቡлࡇһ亩৺ᰦ䙊⸕ഒփᡀઈ˖ D ަ‫ᦞ׍‬ഒփ‫؍‬䲙ਸ਼ӛᴹⲴ‫؍‬䲙ণ࡫㓸→˗ E ަ‫ᦞ׍‬ㅜ ⅮӛᴹⲴᵳ࡙˗ԕ৺ F ަਟྲօ㹼֯䘉Ӌᵳ࡙DŽ   ྲ᷌ഒփᡀઈᐢ㓿᰾⽪ަᴹ᜿㹼֯ㅜᶑㅜ ⅮлⲴᵳ࡙ˈࡉ‫؍‬䲙Ӫоഒփ ᡀઈѻ䰤Ⲵਸ਼ᓄ䈕㔗㔝֌Ѫњփਸ਼㘼ᆈ൘ˈфަ‫؍‬䍩ᓄสᖃᰦⲴњփ‫؍‬অ㘼䇑 ㇇ˈᒦнᗵ㘳㲁䈕ᡀઈᖃᰦⲴ‫ڕ‬ᓧ⣦ߥᡆᒤ喴DŽ

ㅜй㢲䘹ᤙරഒփ‫؍‬䲙 ㅜᶑ䘹ᤙරഒփ‫؍‬䲙ѻа㡜㿴ᇊ   䘹ᤙරഒփ‫؍‬䲙ᱟᤷ‫؍‬䲙Ӫоഒփ㓴㓷㘵ѻ䰤䇒・ⲴṶᷦਸ਼઼‫؍‬䲙Ӫоഒփᡀઈ ѻ䰤൘䈕Ṷᷦл䇒・Ⲵњփਸ਼ѻ㔃ਸDŽ

391

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

  ഒփ㓴㓷㘵о‫؍‬䲙Ӫਟԕа㠤㓖ᇊᵜlj৏ࡉNJ䘲⭘Ҿњփ‫؍‬䲙ਸ਼DŽնᱟ䲔Ҷㅜ ᶑ઼ㅜᶑѻཆˈᵜlj৏ࡉNJн䘲⭘ҾṶᷦਸ਼DŽ

ㅜᶑᶑⅮоᶑԦѻਈᴤ Ṷᷦਸ਼ⲴᶑⅮ઼ᶑԦѻਈᴤӵᖡ૽‫ᦞ׍‬ㅜᶑǃㅜᶑ઼ㅜᶑ㘼䇒・Ⲵ њփਸ਼DŽ

ㅜᶑ᢯‫؍‬ѻᤱ㔝 Ṷᷦਸ਼Ⲵ㓸→ᡆњ࡛ഒփᡀઈ䍴ṬⲴ㝡⿫ሩ‫؍‬䲙Ӫо䈕ഒփᡀઈѻ䰤Ⲵ‫؍‬䲙ਸ਼нᓄ ާᴹԫօᖡ૽DŽ

392

Czech version by Petr Dobiáš

Zásady evropského pojišťovacího smluvního práva (ZEPSP) První část: Ustanovení společná všem smlouvám zahrnutým v zásadách evropského pojišťovacího smluvního práva (ZEPSP) Kapitola první: Úvodní ustanovení Oddíl první: Použití ZEPSP Oddíl druhý: Obecná pravidla Oddíl třetí: Vymáhání

Kapitola druhá: Počáteční fáze a trvání pojistné smlouvy Oddíl první: Předsmluvní informační povinnost zájemce Oddíl druhý: Předsmluvní povinnosti pojistitele Oddíl třetí: Uzavření smlouvy Oddíl čtvrtý: Retroaktivní a předběžné krytí Oddíl pátý: Pojistka Oddíl šestý: Doba trvání pojistné smlouvy Oddíl sedmý: Informační povinnosti pojistitele po uzavření smlouvy

Kapitola třetí: Pojišťovací agenti Kapitola čtvrtá: Pojistné riziko Oddíl první: Preventivní opatření Oddíl druhý: Zvýšení rizika Oddíl třetí: Snížení rizika

Kapitola pátá: Pojistné Kapitola šestá: Pojistná událost Kapitola sedmá: Promlčení Část druhá: Ustanovení společná pro škodové pojištění Kapitola osmá: Pojistná částka a pojistná hodnota

Kapitola devátá: Nárok na odškodnění Kapitola desátá: Postižní práva Kapitola jedenáctá: Pojištěné osoby jiné než pojistník Kapitola dvanáctá: Pojištěné riziko Část třetí: Ustanovení společná pro obnosové pojištění Kapitola třináctá: Přípustnost Část čtvrtá: Pojištění odpovědnosti Kapitola čtrnáctá: Všeobecné pojištění odpovědnosti Kapitola patnáctá: Přímé nároky a přímé žaloby Kapitola šestnáctá: Povinné pojištění Část pátá: Životní pojištění Kapitola sedmnáctá: Zvláštní ustanovení pro životní pojištění Oddíl první: Třetí strany Oddíl druhý: Počáteční fáze a trvání smlouvy Oddíl třetí: Změny během doby trvání smlouvy Oddíl čtvrtý: Vztah ke vnitrostátním právním řádům Oddíl pátý: Pojistná událost Oddíl šestý: Změna a odkupné

Část šestá: Skupinové pojištění Kapitola osmnáctá: Zvláštní ustanovení pro skupinové pojištění Oddíl první: Skupinové pojištění obecně Oddíl druhý: Akcesorické skupinové pojištění Oddíl třetí: Volitelné skupinové pojištění

393

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

První část: Ustanovení společná všem smlouvám zahrnutým v zásadách evropského pojišťovacího smluvního práva (ZEPSP) Kapitola první: Úvodní ustanovení Oddíl první: Použití ZEPSP Článek 1:101 Hmotněprávní rozsah aplikace (1) ZEPSP se použijí na soukromé pojištění obecně, včetně vzájemného pojištění. (2) ZEPSP se nepoužijí na zajištění.

Článek 1:102 Volitelná aplikace ZEPSP se použijí, pokud se strany dohodly, nehledě na jakákoli omezení výběru rozhodného práva podle mezinárodního práva soukromého, že se jimi jejich smlouva bude řídit. S výhradou článku 1:103 se ZEPSP použijí jako celek a nebude povoleno vynětí jakýchkoli konkrétních ustanovení.

Článek 1:103 Kogentní charakter (1) Články 1:102 věta druhá, 2:104, 2:304, 13:101, 17:101 a 17:503 jsou kogentní. Jiné články jsou kogentní do té míry, do které sankcionují podvodné jednání. (2) Smlouva se může odchýlit od všech ostatních ustanovení, pokud taková odchylka není v neprospěch pojistníka, pojištěného, nebo beneficienta. (3) Povoluje se odchylka ve smyslu odst. 2 ve prospěch jakékoli strany ve smlouvách kryjících velká rizika ve smyslu čl. 13 odst. 27 směrnice 2009/138/ES. Ve skupinovém pojištění může být odchylka použita pouze ve vztahu k jednotlivci, který má osobní vlastnosti uvedené v čl. 13 odst. 27 písm. b), nebo c) směrnice 2009/138/ES, pokud je to na místě.

Článek 1:104 Výklad ZEPSP budou vykládány ve světle jejich textu, kontextu, účelu a srovnávacího pozadí. Zejména by měl být brán ohled na potřebu podporovat dobrou víru a poctivé jednání v pojišťovacím odvětví, jistotu ve smluvních vztazích, jednotnou aplikaci a adekvátní ochranu pojištěnců.

Článek 1:105 Národní právo a všeobecné zásady (1) Nepřipouští se žádný odkaz na národní právo, ať už s cílem omezit nebo doplnit ZEPSP. To se netýká kogentních národních právních předpisů specificky přijatých pro pojistná odvětví, jež nejsou zahrnuta ve zvláštních pravidlech obsažených v ZEPSP. (2) Otázky vyvstávající z pojistné smlouvy, jež nejsou výslovně řešeny v ZEPSP, budou řešeny v souladu se Zásadami evropského smluvního práva (PECL)1 a, v případě neexistence relevantních předpisů v uvedeném nástroji, v souladu se všeobecnými zásadami společnými právním řádům členských států.

1

Srov. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Czech: Zásady evropského pojišťovacího smluvního práva (ZEPSP)

Oddíl druhý: Obecná pravidla Článek 1:201 Pojistná smlouva (1) „Pojistná smlouva“ znamená smlouvu, na jejímž základě jedna strana, pojistitel, slibuje druhé straně, pojistníku, krytí proti určitému riziku výměnou za pojistné; (2) „Pojistná událost“ znamená uskutečnění rizika vymezeného v pojistné smlouvě; (3) „Škodové pojištění “ znamená pojištění, na jehož základě je pojistitel povinen poskytnout náhradu škody při ztrátě utrpěné při vzniku pojistné události; (4) „Obnosové pojištění“ znamená pojištění, na jehož základě je pojistitel povinen při vzniku pojistné události vyplatit pevnou částku peněz. (5) „Pojištění odpovědnosti“ znamená pojištění, v případě kterého spočívá riziko v tom, že se pojištěný vystavuje riziku právní odpovědnosti vůči poškozenému. (6) Životní pojištění je pojištění, v němž závisí povinnost pojistitele na zaplacení pojistného na pojistné události, která je definována výlučně s odkazem na smrt nebo přežití osoby, jíž se riziko týká. (7) Smlouvy o skupinovém pojištění jsou smlouvy mezi pojistitelem a vedoucím skupiny ve prospěch členů skupiny se společnou vazbou k vedoucímu. Smlouva o skupinovém pojištění může krýt také rodinu členů skupiny. (8) „Akcesorické skupinové pojištění“ znamená skupinové pojištění, na základě kterého jsou členové skupiny automaticky pojištěni, aniž by mohli odmítnout pojištění. (9) „Volitelné skupinové pojištění“ znamená skupinové pojištění, na základě kterého jsou členové skupiny pojištěni na základě jejich osobní žádosti nebo protože neodmítli pojištění.

Článek 1:202 Další definice (1) „Pojištěný“ znamená osobu, jejíž zájem je chráněn proti ztrátě na základě škodového pojištění; (2) „Beneficient“ znamená osobu, v jejíž prospěch je splatné pojistné plnění na základě obnosového pojištění; (3) „Ohrožená osoba“ znamená osobu, na jejíž život, zdraví, integritu nebo stav je pojištění uzavřeno; (4) „Poškozený“ v případě pojištění odpovědnosti znamená osobu, za jejíž smrt, újmu nebo ztrátu odpovídá pojištěný; (5) „Pojišťovací agent“ znamená pojistného zprostředkovatele zaměstnaného pojistitelem za účelem propagace, prodeje nebo správy pojistných smluv; (6) „Pojistné“ znamená platbu hrazenou ze strany pojistníka pojistiteli výměnou za krytí; (7) „Smluvní období“ znamená období smluvního závazku počínající uzavřením smlouvy a končící uplynutím dohodnuté doby trvání; (8) „Pojistné období“ znamená období, za které se platí pojistné v souladu s dohodou stran; (9) „Období povinnosti k plnění“ znamená dobu pojistného krytí; (10) „Povinné pojištění“ znamená pojištění, které bylo uzavřeno za účelem splnění povinnosti uzavřít pojištění uložené zákony nebo nařízeními.

Článek 1:203 Jazyk a výklad dokumentů2 (1) Veškeré dokumenty poskytnuté pojistitelem budou jasné a srozumitelné a v jazyce, v němž je sjednána smlouva. (2) V případě pochybností o významu znění jakéhokoli dokumentu nebo informace poskytnuté pojistitelem platí výklad nejpříznivější podle situace pro pojistníka, pojištěného nebo beneficienta. 2

Článek 1:203 odst. 2 je vytvořen podle vzoru článku 5 směrnice 93/13/EHS.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Článek 1:204 Přijetí dokumentů: důkaz Důkazní břemeno o tom, že pojistník obdržel dokumenty, jež mají být poskytnuty pojistitelem, spočívá na pojistiteli.

Článek 1:205 Forma oznámení S výhradou specifických pravidel obsažených v ZEPSP nemusí mít oznámení ze strany zájemce, pojistníka, pojištěného nebo beneficienta ve vztahu k pojistné smlouvě žádnou konkrétní formu.

Článek 1:206 Přisuzovaná znalost Pokud pojistník, pojištěný nebo beneficient uloží jakékoli osobě povinnosti podstatné pro uzavření nebo plnění smlouvy, má se za to, že příslušná znalost, kterou taková osoba má nebo má mít při plnění svých povinností, odpovídá podle okolností případu znalosti pojistníka, pojištěného nebo beneficienta.

Článek 1:207 Zákaz diskriminace3 (1) Pohlaví, těhotenství, mateřství, národnost a rasový nebo etnický původ nejsou faktory, jež mají za následek rozdíly v pojistném a v plnění pro jednotlivce. (2) Podmínky v rozporu s odst. 1, včetně podmínek týkajících se pojistného, nejsou pro pojistníka nebo pojištěného závazné. S výhradou odst. 3 je smlouva pro strany nadále závazná na základě nediskriminačních podmínek. (3) V případě porušení odst. 1 je pojistník oprávněn smlouvu ukončit výpovědí. Pojistiteli bude doručena písemná výpověď smlouvy do dvou měsíců poté, co se pojistník o porušení dozvěděl.

Článek 1:208 Genetické testy (1) Pojistitel nepožádá zájemce, pojistníka nebo ohroženou osobu, aby podstoupila genetický test nebo sdělila výsledky takového testu; zároveň nesmí být taková informace použita za účelem vyhodnocení rizika. (2) Odst. 1 se nepoužije na osobní pojištění v případě, že ohrožená osoba je starší osmnácti let a pojistná částka pro tuto osobu překračuje 300,000 EUR, nebo peněžní částka splatná na základě pojistky překračuje 30,000 EUR za rok.

Oddíl třetí: Vymáhání Článek 1:301 Soudní opatření4 (1) Oprávněný subjekt definovaný v odst. 2 je oprávněn obrátit se na příslušný národní soud nebo orgán se žádostí o opatření zakazující nebo požadující zastavení porušování ZEPSP, pokud jsou použitelná v souladu s článkem 1:102. (2) Oprávněný subjekt znamená jakýkoli orgán nebo organizaci na seznamu vypracovaném Evropskou komisí na základě článku 4 směrnice 2009/22/ES Evropského parlamentu a Rady ze dne 23. dubna 2009 o žalobách na zdržení se jednání v oblasti ochrany zájmů spotřebitelů, v platném znění.

3

4

Tento článek je vytvořen po vzoru směrnice 2004/113/ES a rozsudku SD EU ve věci C-236/09 Test Achats ASBL and Others v Conseil des ministres [2011] SbSD I-773. Tento článek je vytvořen po vzoru směrnice 2009/22/ES.

396

Czech: Zásady evropského pojišťovacího smluvního práva (ZEPSP)

Článek 1:302 Mimosoudní mechanismy stížností a nápravy Použití ZEPSP nebrání v přístupu k mimosoudním mechanismům stížností a nápravy, jež jsou jinak dostupné pojistníku, pojištěnému nebo beneficientovi.

Kapitola druhá: Počáteční fáze a trvání pojistné smlouvy Oddíl první: Předsmluvní informační povinnost zájemce Článek 2:101 Povinnost zpřístupnění (1) Při uzavírání smlouvy zájemce informuje pojistitele o okolnostech, jichž si je nebo má být vědom, a jež jsou předmětem jasných a přesných otázek, jež mu klade pojistitel. (2) Okolnosti uvedené v odst. 1 zahrnují okolnosti, jichž si osoba, jež má být pojištěna, byla nebo měla být vědoma.

Článek 2:102 Porušení (1) V případě porušení článku 2:101, s výhradou odst. 2 až 5, ze strany pojistníka, je pojistitel oprávněn navrhnout přiměřenou změnu smlouvy nebo smlouvu vypovědět. Za tímto účelem pojistitel poskytne písemné oznámení o svém úmyslu, doprovázeném informacemi o právních důsledcích svého rozhodnutí, do jednoho měsíce poté, co se o porušení článku 2:101 dozvěděl nebo se mu stalo zřejmým. (2) Pokud pojistitel navrhne přiměřenou změnu, smlouva nadále trvá na základě navržené změny, pokud pojistník návrh do jednoho měsíce po obdržení oznámení uvedeného v odst. 1 neodmítne. V takovém případě je pojistitel oprávněn smlouvu vypovědět do jednoho měsíce od přijetí písemného oznámení o odmítnutí ze strany pojistníka. (3) Pojistitel není oprávněn smlouvu vypovědět, pokud se pojistník dopustil nezaviněného porušení článku 2:101, pokud pojistitel neprokáže, že by smlouvu neuzavřel, kdyby o dotčené informaci byl býval věděl. (4) Ukončení smlouvy vstoupí v účinnost jeden měsíc poté, co pojistník obdržel písemné oznámení uvedené v odst. 1. Změna vstoupí v účinnost podle dohody stran. (5) Pokud je pojistná událost způsobena prvkem rizika, jenž je předmětem nedbalostního nezpřístupnění nebo nepravdivého prohlášení ze strany pojistníka, a dojde k ní předtím, než vstoupí v účinnost ukončení nebo změna smlouvy, není splatné žádné pojistné plnění, pokud by pojistitel smlouvu neuzavřel, kdyby o dotčené informaci byl býval věděl. Avšak pokud by pojistitel smlouvu byl býval uzavřel s vyšším pojistným nebo za jiných podmínek, pojistné plnění je splatné přiměřeně nebo v souladu s takovými podmínkami.

Článek 2:103 Výjimky Sankce stanovené v článku 2:102 se nepoužijí ve vztahu k (a) otázce, jež nebyla zodpovězena, nebo poskytnuté informaci, jež byla zcela zřejmě neúplná nebo nesprávná; (b) informaci, jež měla být zpřístupněna, nebo informaci poskytnuté nepřesně, jež nebyla vůbec podstatná pro rozumné rozhodnutí pojistitele uzavřít smlouvu nebo uzavřít ji za dohodnutých podmínek; (c) informaci, kterou pojistitel uvedl pojistníka v domnění, že nemusí být zpřístupněna; nebo (d) informaci, jíž si pojistitel byl nebo měl být vědom.

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Článek 2:104 Podvodné porušení Aniž jsou dotčeny sankce stanovené v článku 2:102, je pojistitel oprávněn od smlouvy odstoupit a zachovat si právo na jakékoli dlužné pojistné, pokud ho k uzavření smlouvy vedlo podvodné porušení článku 2:101 ze strany pojistníka. Pojistníkovi bude oznámení o odstoupení smlouvy doručeno do dvou měsíců poté, co se pojistitel o podvodu dozví.

Článek 2:105 Dodatečné informace Článek 2:102-2:104 se rovněž vztahují na jakékoli informace poskytnuté pojistníkem v době uzavření smlouvy navíc k informacím vyžadovaným článkem 2:101.

Článek 2:106 Genetické informace Tento oddíl se nepoužije na výsledky genetických testů, které jsou předmětem úpravy článku 1:208 odst. 1.

Oddíl druhý: Předsmluvní povinnosti pojistitele Článek 2:201 Poskytnutí předsmluvních dokumentů5 (1) Pojistitel poskytne zájemci kopii navrhovaných smluvních podmínek, spolu s dokumentem zahrnujícím následující informace, pokud jsou relevantní: (a) jméno a adresa smluvních stran, zejména informace o ústředí a právní formě pojistitele a podle okolností případu, pobočce uzavírající smlouvu nebo poskytující krytí; (b) jméno a adresa pojištěného, beneficienta a ohrožené osoby; (c) jméno a adresa pojišťovacího agenta; (d) předmět pojištění a pokrytá rizika; (e) pojistná částka a jakákoli spoluúčast; (f) částka pojistného a metoda jeho výpočtu; (g) datum splatnosti pojistného, stejně jako místo a způsob platby; (h) smluvní období a období povinnosti k plnění; (i) právo odvolat návrh nebo odstoupit od smlouvy v souladu s článkem 2:303; (j) informaci že se smlouva řídí ZEPSP; (k) existence mimosoudního mechanismu stížností a nápravy pro zájemce a metody přístupu k němu; (l) existence záručních fondů nebo jiná ujednání ohledně náhrady. (2) Pokud je to možné, měly by tyto informace být poskytnuty v době dostatečné k tomu, aby zájemci umožnila zvážit, zda smlouvu uzavřít či nikoli. (3) Když zájemce požádá o pojistné krytí na základě přihlášky a/nebo dotazníku poskytnutého pojistitelem, poskytne pojistitel zájemci kopii vyplněných dokumentů.

Článek 2:202 Povinnost upozornit ohledně nesrovnalostí v krytí (1) Při uzavírání smlouvy pojistitel upozorní zájemce ohledně jakýchkoli nesrovnalostí mezi nabízeným krytím a zájemcovými požadavky, jichž si pojistitel je nebo má být vědom, přičemž vezme v úvahu okolnosti a způsob uzavření smlouvy, a zejména, zda byl zájemci nápomocen nezávislý zprostředkovatel. (2) V případě porušení odst. 1 5

Tento článek je vytvořen po vzoru článků 183 až 189 směrnice 2009/138/ES (Solventnost II).

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(a) pojistitel odškodní pojistníka za veškeré ztráty vzniklé porušením této povinnosti upozornit jej, pokud pojistitel nejednal bez zavinění, a (b) pojistník je oprávněn smlouvu ukončit písemnou výpovědí podanou do dvou měsíců poté, co se o porušení dozví.

Článek 2:203 Povinnost upozornit ohledně začátku krytí Pokud se zájemce důvodně, avšak mylně domnívá, že krytí začíná v době podání žádosti, a pojistitel si je nebo má být této domněnky vědom, upozorní pojistitel ihned zájemce, že krytí nezačne, dokud nebude uzavřena smlouva, případně než bude zaplaceno první pojistné, pokud není poskytnuto předběžné krytí. Pokud pojistitel poruší svou povinnost upozornit, ponese odpovědnost v souladu s článkem 2:202 odst. 2 písm. (a).

Oddíl třetí: Uzavření smlouvy Článek 2:301 Způsob uzavření Pojistná smlouva nemusí být uzavřena ani doložena písemně a nemusí splňovat žádný jiný požadavek, pokud jde o formu. Existence smlouvy může být prokázána jakýmikoli prostředky včetně ústního svědectví.

Článek 2:302 Odvolání návrhu na uzavření pojištění Zájemce může návrh na uzavření pojištění zrušit, pokud jeho zrušení dosáhne pojistitele dříve, než zájemce obdrží akceptaci od pojistitele.

Článek 2:303 Lhůta na rozmyšlenou6 (1) Pojistník má právo odstoupit od smlouvy na základě písemného oznámení ve lhůtě dvou týdnů od přijetí návrhu na uzavření smlouvy nebo dodání dokumentů uvedených v článku 2:501, podle toho, co nastane později. (2) Pojistník nemá právo odstoupit od smlouvy, když (a) doba trvání smlouvy je kratší než jeden měsíc; (b) smlouva je prodloužena podle článku 2:602; (c) v případě předběžného pojištění, pojištění odpovědnosti nebo skupinového pojištění.

Článek 2:304 Protiprávní ustanovení7 (1) Podmínka, jež nebyla individuálně sjednána, nebude pro pojistníka, pojištěného nebo beneficienta závazná, pokud v rozporu s požadavky dobré víry a poctivého jednání způsobí v jeho neprospěch významnou nerovnováhu v jeho právech a povinnostech vznikajících na základě smlouvy, přičemž se vezme v úvahu charakter pojistné smlouvy, veškeré ostatní podmínky smlouvy a okolnosti, za nichž byla smlouva uzavřena. (2) Smlouva je pro strany nadále závazná, pokud je způsobilá pokračovat v existenci bez nepoctivé podmínky. Pokud ne, bude nepoctivá podmínka nahrazena podmínkou, na níž by se byly dohodly rozumně uvažující strany, pokud by o nepoctivosti podmínky bývaly věděly. (3) Tento článek se vztahuje na podmínky, které omezují nebo mění krytí, avšak nevztahuje se na (a) přiměřenost hodnoty krytí a pojistného, ani na 6 7

Tento článek je vytvořen po vzoru směrnice 2002/65/ES. Tento článek je vytvořen po vzoru směrnice 93/13/EHS.

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(b) podmínky podávající nutný popis poskytnutého krytí nebo dohodnutého pojistného, pokud jsou tyto podmínky psané jasným a srozumitelným jazykem. (4) Podmínka se vždy považuje za podmínku, jež nebyla individuálně sjednána, pokud byla vypracována předem a pojistník tudíž nebyl schopen ovlivnit podstatu této podmínky, zejména v souvislosti s předem formulovanou standardní smlouvou. Skutečnost, že určité aspekty podmínky nebo jedna určitá podmínka byly individuálně sjednány, nevylučuje použití tohoto článku na zbývající část smlouvy, pokud celkové hodnocení smlouvy ukazuje, že se i přesto jedná o předem formulovanou standardní smlouvu. Pokud pojistitel tvrdí, že standardní podmínka byla individuálně sjednána, nese důkazní břemeno v tomto ohledu pojistitel.

Oddíl čtvrtý: Retroaktivní a předběžné krytí Článek 2:401 Retroaktivní krytí (1) Pokud v případě krytí poskytnutého na období před uzavřením smlouvy (retroaktivní krytí) pojistitel v době uzavření smlouvy ví, že nedošlo k žádné pojistné události, je pojistník povinen zaplatit pojistné pouze za období po uzavření smlouvy. (2) Pokud v případě retroaktivního krytí pojistník v době uzavření smlouvy ví, že došlo k pojistné události, pojistitel s výhradou článku 2:104 poskytne krytí pouze na období po uzavření smlouvy.

Článek 2:402 Předběžné krytí (1) Při uzavírání smlouvy o předběžném pojištění pojistitel vydá sdělení obsahující informace specifikované v článku 2:501 písm. (a), (b), (c), (d), (e) a (h), pokud jsou relevantní. (2) Články 2:201-2:203 a s výhradou odst. 1 výše, Článek 2:501, se nevztahují na předběžné krytí.

Článek 2:403 Trvání předběžného krytí (1) Když je zájemci o pojistnou smlouvu poskytnuto předběžné krytí, toto krytí neskončí dříve než v době, kdy má podle dohody začít krytí na základě pojistné smlouvy, případně v době, kdy zájemce od pojistitele obdrží oznámení, jímž se žádost definitivně zamítá. (2) Když je předběžné krytí poskytnuto osobě, která nežádá o pojistnou smlouvu u stejného pojistitele, může být krytí poskytnuto na období kratší, než je uvedeno v článku 2:601 odst. 1. Takové krytí může kterákoli ze stran zrušit s dvouměsíční výpovědní lhůtou.

Oddíl pátý: Pojistka Článek 2:501 Obsah Při uzavření pojistné smlouvy pojistitel vystaví pojistku společně s všeobecnými smluvními podmínkami, pokud nejsou obsaženy v pojistce, obsahující následující informace, pokud jsou relevantní: (a) jméno a adresu smluvních stran; (b) jméno a adresu pojištěného a v případě životního pojištění, beneficienta a ohrožené osoby; (c) jméno a adresu zprostředkovatele; (d) předmět pojištění a pokrytých rizik; (e) pojistnou částku a jakoukoli spoluúčast; (f) výši pojistného nebo metodu jeho výpočtu; (g) datum splatnosti pojistného, stejně jako místo a způsob platby;

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(h) (i) (j) (k)

smluvní období a období povinnosti k plnění; právo odstoupit od smlouvy v souladu s článkem 2:303; informaci že smlouva se řídí ZEPSP; existenci mimosoudního mechanismu stížností a nápravy pro zájemce a metody přístupu k němu; (l) existenci záručních fondů nebo jiných ujednání ohledně náhrady.

Článek 2:502 Účinky pojistky (1) Pokud se podmínky pojistky liší od podmínek v žádosti pojistníka nebo v jakékoli předchozí dohodě mezi stranami, tyto rozdíly, jež budou v pojistce vyznačeny, se považují za odsouhlasené pojistníkem, pokud proti nim do jednoho měsíce od přijetí pojistky nevznese námitku. Pojistitel poskytne pojistníkovi oznámení psané tučným písmem o právu vznést námitku proti rozdílům vyznačeným v pojistce. (2) Pokud pojistitel nedodrží ustanovení odst. 1, má se za to, že smlouva byla sjednána podle okolností případu na základě podmínek uvedených v návrhu pojistníka nebo v předchozí dohodě stran.

Oddíl šestý: Doba trvání pojistné smlouvy Článek 2:601 Doba trvání pojistné smlouvy (1) Doba trvání pojistné smlouvy je jeden rok. Pokud to vyžaduje povahuje povaha rizika, mohou se strany dohodnout na jiném období. (2) Odstavec 1 se nevztahuje na osobní pojištění.

Článek 2:602 Prodloužení (1) Po uplynutí období jednoho roku uvedeného v článku 2:601 se smlouva prodlouží, kromě případů, kdy (a) pojistitel nejméně jeden měsíc před uplynutím smluvního období podá písemné oznámení v opačném smyslu, uvádějící důvody jeho rozhodnutí; nebo (b) pojistník nejpozději do dne, kdy uplyne smluvní období, nebo do jednoho měsíce poté, co od pojistitele obdržel fakturu na pojistné, podle toho, co nastane později, podá písemné oznámení v opačném smyslu. V posledně uvedeném případě začne období jednoho měsíce běžet, pouze pokud bylo na faktuře jasně uvedeno tučným písmem. (2) Pro účely odst. 1 písm. (b) se oznámení považuje za podané okamžikem odeslání.

Článek 2:603 Změna podmínek (1) V pojistné smlouvě, kterou je možné prodloužit podle článku 2:602, je ustanovení umožňující pojistiteli změnit pojistné nebo jakoukoli jinou podmínku smlouvy neplatné, pokud toto ustanovení nestanoví, že (a) jakákoli změna nevstoupí v účinnost před příštím prodloužením, (b) pojistitel zašle pojistníku písemné oznámení nejpozději jeden měsíc před uplynutím současného smluvního období, a (c) v oznámení je pojistník informován o svém právu smlouvu vypovědět a o následcích, které nastanou, pokud tohoto práva nevyužije. (2) Použitím odst. 1 nejsou dotčeny ostatní požadavky ohledně platnosti ustanovení o změně.

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Článek 2:604 Výpověď po vzniku pojistné události (1) Ustanovení umožňující vypovězení smlouvy poté, co došlo k pojistné události, je neplatné, kromě případů, kdy (a) dává právo smlouvu vypovědět oběma stranám a (b) pojistka se netýká osobního pojištění. (2) Ustanovení o výpovědi i o výkonu jakéhokoli práva musí být důvodné. (3) Jakékoli právo k podání výpovědi přestane platit, pokud dotčená strana nesdělila písemně druhé straně výpověď do dvou měsíců poté, co se o pojistné události dozvěděla. (4) Pojistné krytí skončí dva týdny po sdělení v souladu s odst. 3.

Oddíl sedmý: Informační povinnosti pojistitele po uzavření smlouvy Článek 2:701 Obecná informační povinnost Po celou dobu trvání smluvního období poskytuje pojistitel pojistníkovi bez zbytečného odkladu písemně informace o jakékoli změně ohledně svého názvu a adresy, své právní formy, adresy svého sídla a agentury nebo pobočky, která smlouvu uzavřela.

Článek 2:702 Další informace na vyžádání (1) Na žádost pojistníka mu pojistitel bez zbytečného odkladu poskytne informace ohledně (a) veškerých záležitostí relevantních pro plnění smlouvy, pokud je od pojistitele možné je rozumně očekávat; (b) nových standardních podmínek nabízených pojistitelem pro pojistné smlouvy stejného typu jako je smlouva uzavřená s pojistníkem. (2) Žádost pojistníka i odpověď pojistitele bude písemná.

Kapitola třetí: Pojišťovací agenti Článek 3:101 Zmocnění pojišťovacích agentů (1) Pojišťovací agent je oprávněn provádět jménem pojistitele veškeré úkony, jež jsou v souladu se současnou praxí v odvětví pojišťovnictví v rozsahu jeho pracovní náplně. Jakékoli omezení zmocnění agenta bude pojistníkovi jasně oznámeno v samostatném dokumentu. Zmocnění pojišťovacího agenta však bude zahrnovat přinejmenším skutečný rozsah jeho pracovní náplně. (2) Zmocnění pojišťovacího agenta v každém případě zahrnuje oprávnění: (a) informovat pojistníka a radit mu, a (b) přijímat od pojistníka oznámení. (3) Relevantní znalosti, které pojišťovací agent má nebo by měl mít během svého pracovního poměru, jsou považovány za znalosti pojistitele.

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Czech: Zásady evropského pojišťovacího smluvního práva (ZEPSP)

Kapitola čtvrtá: Pojistné riziko Oddíl první: Preventivní opatření Článek 4:101 Preventivní opatření: význam Preventivní opatření znamená ustanovení v pojistné smlouvě, ať je popsáno jako podmínka předcházející povinnosti pojistitele plnit, či nikoli, vyžadující od pojistníka nebo od pojištěného předtím, než dojde k pojistné události, aby vykonal určité úkony nebo aby se jich zdržel.

Článek 4:102 Právo pojistitele vypovědět smlouvu (1) Ustanovení stanovící, že v případě nesplnění preventivního opatření je pojistitel oprávněn smlouvu vypovědět, je neúčinné, pokud pojistník nebo pojištěný neporušil svoji povinnost s úmyslem ztrátu způsobit nebo z nedbalosti a s vědomím, že ke ztrátě pravděpodobně dojde. (2) Právo vypovědět smlouvu se vykonává písemným oznámením pojistníkovi do jednoho měsíce od doby, kdy se pojistitel o nesplnění preventivního opatření dozví nebo kdy se mu stane zjevným. Krytí skončí v momentu výpovědi.

Článek 4:103 Zproštění pojistitele povinnosti plnit (1) Ustanovení stanovící, že nesplnění preventivního opatření pojistitele zcela nebo částečně zprošťuje povinnosti plnit, je účinné pouze v rozsahu, v jakém byla škoda způsobena nesplněním předmětného opatření ze strany pojistníka nebo pojištěného s úmyslem škodu způsobit nebo z nedbalosti a s vědomím, že ke škodě pravděpodobně dojde. (2) S výhradou jasného ustanovení stanovícího snížení pojistného plnění v souladu s mírou zavinění, má pojistník nebo pojištěný, podle okolností případu, nárok na pojistné plnění ve vztahu k jakékoli škodě způsobené nedbalým nesplněním preventivního opatření.

Oddíl druhý: Zvýšení rizika Článek 4:201 Ustanovení ohledně zvýšení rizika Pokud pojistná smlouva obsahuje ustanovení ohledně zvýšení pojistného rizika, je takové ustanovení neúčinné, pokud není dotyčné zvýšení rizika podstatné a není druhu specifikovaného v pojistné smlouvě.

Článek 4:202 Povinnost podat oznámení o zvýšení rizika (1) Pokud ustanovení ohledně zvýšení pojistného rizika vyžaduje oznámení o zvýšení, podá podle okolností případu toto oznámení pojistník, pojištěný nebo beneficient, pod podmínkou, že osoba, která má povinnost oznámení podat, si byla nebo měla být vědoma existence pojistného krytí a zvýšení rizika. Oznámení podané jinou osobou je rovněž účinné. (2) Pokud ustanovení vyžaduje, aby bylo oznámení podáno v dané lhůtě, musí být tato lhůta přiměřená. Oznámení je účinné při odeslání. (3) V případě porušení oznamovací povinnosti není pojistitel z tohoto důvodu oprávněn odmítnout úhradu jakékoli následné škody vzniklé událostí v rámci krytí, pokud nebyla škoda způsobena porušením povinnosti oznámit zvýšení rizika.

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Článek 4:203 Výpověď a zproštění se závazku (1) Pokud smlouva stanoví, že v případě zvýšení pojištěného rizika je pojistitel oprávněn smlouvu vypovědět, bude takové právo vykonáno písemným oznámením pojistníku do jednoho měsíce od doby, kdy se pojistitel o zvýšení dozvěděl nebo se mu stalo zřejmým. (2) Krytí skončí jeden měsíc po ukončení, nebo pokud pojistník úmyslně porušil povinnost podle článku 4:202, v okamžiku podání výpovědi. (3) Pokud je pojistná událost způsobena zvýšeným rizikem, jehož si pojistník je nebo má být vědom, před skončením krytí, není splatné žádné pojistné plnění, pokud by pojistitel zvýšené riziko vůbec nepojistil. Pokud by však pojistitel byl býval pojistil zvýšené riziko za vyšší pojistné nebo za jiných podmínek, je pojistné plnění splatné přiměřeně nebo v souladu s takovými podmínkami.

Oddíl třetí: Snížení rizika Článek 4:301 Následky snížení rizika (1) Pokud se riziko podstatně sníží, je pojistník oprávněn navrhnout přiměřené snížení pojistného pro zbývající smluvní období. (2) Pokud se strany do jednoho měsíce od návrhu nedohodnou na přiměřeném snížení, je pojistník oprávněn smlouvu ukončit písemnou výpovědí podanou do dvou měsíců od podání návrhu.

Kapitola pátá: Pojistné Článek 5:101 První nebo jednorázové pojistné Pokud pojistitel stanoví platbu prvního nebo jednorázového pojistného jako podmínku vzniku smlouvy nebo zahájení krytí, není taková podmínka účinná, kromě případů, kdy (a) podmínka je zájemci sdělena písemně za použití jasného jazyka, a varuje jej, že nemá krytí, dokud není zaplaceno pojistné, a (b) uplynuly dva týdny od přijetí faktury splňující požadavek (a), aniž by byla provedena platba.

Článek 5:102 Následné pojistné (1) Ustanovení stanovící, že pojistitel má být zproštěn své povinnosti krýt riziko v případě nezaplacení následného pojistného není účinné, kromě případů, kdy (a) pojistník obdrží fakturu udávající přesnou částku dlužného pojistného, stejně jako datum platby; (b) poté, co nastane splatnost pojistného, pojistitel zašle pojistníkovi upomínku na přesnou částku dlužného pojistného, ve které mu poskytne dodatečnou lhůtu pro zaplacení v délce nejméně dvou týdnů, a varuje pojistníka, že krytí bude okamžitě zastaveno, pokud nebude provedena platba; a (c) dodatečná lhůta podle písm. (b) uplyne, aniž by byla platba provedena. (2) Pojistitel je zproštěn povinnosti plnit po uplynutí dodatečné lhůty podle odst. 1 písm. (b). Krytí do budoucnosti bude znovu obnoveno, jakmile pojistník uhradí dlužnou částku, pokud nebyla smlouva vypovězena v souladu s článkem 5:103.

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Článek 5:103 Výpověď smlouvy (1) Po vypršení lhůty uvedené v článku 5:101 písm. (b) nebo článku 5:102 odst. 1 písm. (b), aniž by byla provedena platba pojistného, je pojistitel oprávněn smlouvu písemnou výpovědí ukončit, pod podmínkou, že faktura vyžadovaná článkem 5:101 písm. (b) nebo upomínka vyžadovaná článkem 5:102 odst. 1 písm. (b), podle případu, uvádí právo pojistitele smlouvu ukončit. (2) Smlouva se považuje za ukončenou, pokud pojistitel nepodá žalobu na platbu (a) prvního pojistného do dvou měsíců po uplynutí období uvedeného v článku 5:101 (b); nebo (b) následného pojistného do dvou měsíců po uplynutí lhůty uvedené v článku 5:102 odst. 1 písm. (b).

Článek 5:104 Dělitelnost pojistného Pokud je pojistná smlouva vypovězena před uplynutím smluvního období, má pojistitel nárok pouze na pojistné za období před ukončením.

Článek 5:105 Právo uhradit pojistné Pojistitel není oprávněn odmítnout platbu třetí stranou, pokud (a) třetí strana jedná se souhlasem pojistníka; nebo (b) třetí strana má oprávněný zájem na udržení krytí a pojistník nezaplatil nebo je zřejmé, že jej ve lhůtě splatnosti nezaplatí.

Kapitola šestá: Pojistná událost Článek 6:101 Oznámení o pojistné události (1) Vznik pojistné události pojistiteli oznámí podle okolností případu pojistník, pojištěný nebo beneficient pod podmínkou, že osoba povinná podat oznámení si byla nebo měla být vědoma existence pojistného krytí a vzniku pojistné události. Účinné je rovněž oznámení od jiné osoby. (2) Toto oznámení bude podáno bez zbytečného prodlení. Je účinné v okamžiku odeslání. Pokud smlouva vyžaduje podání oznámení ve stanovené lhůtě, bude taková lhůta přiměřená a v žádném případě ne kratší než pět dnů. (3) Splatné pojistné plnění se sníží v rozsahu, v jakém pojistitel prokáže, že bylo ovlivněno zbytečným prodlením.

Článek 6:102 Součinnost při uplatnění nároku (1) Podle okolností případu pojistník, pojištěný nebo beneficient, poskytne pojistiteli součinnost při šetření pojistné události tím, že vyhoví přiměřeným žádostem, zejména o – informace o příčinách a následcích pojistné události; – listinné nebo jiné důkazy o pojistné události; – přístup k souvisejícím prostorám. (2) V případě jakéhokoli porušení odst. 1 a s výhradou odst. 3 se splatné pojistné plnění sníží v rozsahu, v jakém pojistitel prokáže, že bylo porušením dotčeno. (3) V případě jakéhokoli porušení odst. 1 spáchaného s úmyslem způsobit újmu nebo z nedbalosti a s vědomím, že taková újma pravděpodobně vznikne, není pojistitel povinen vyplatit pojistné plnění.

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Článek 6:103 Přijetí nároku (1) Pojistitel podnikne veškeré přiměřené kroky ke včasnému uhrazení nároku. (2) Pokud pojistitel nárok nezamítne nebo přijetí nároku neodloží formou písemného oznámení, v němž udá důvody svého rozhodnutí, do jednoho měsíce po přijetí příslušných dokladů a dalších informací, považuje se nárok za přijatý.

Článek 6:104 Doba plnění (1) Pokud byl nárok přijat, pojistitel bez zbytečného odkladu provede platbu nebo zajistí sjednané služby, podle případu. (2) Pokud celková hodnota nároku nemůže být vyčíslena, avšak beneficient má nárok přinejmenším na její část, bude tato část uhrazena nebo její uhrazení zajištěno bez zbytečného prodlení. (3) Platba pojistného plnění, ať už podle odst. 1 nebo odst. 2, bude podle okolností případu provedena nejpozději jeden týden po přijetí a vyčíslení nároku nebo jeho části.

Článek 6:105 Prodlení s plněním8 (1) Pokud není pojistné plnění uhrazeno v souladu s článkem 6:104, má beneficient nárok na úrok z této částky od doby, kdy byla platba splatná, do doby platby v sazbě, kterou Evropská centrální banka používá na svou nejposlednější hlavní refinancovací operaci prováděnou před prvním kalendářním dnem daného pololetí, plus osm procentních bodů. (2) Beneficient má nárok na náhradu škody za jakékoli dodatečné škody způsobené pozdní platbou pojistného plnění.

Kapitola sedmá: Promlčení Článek 7:101 Žaloba na platbu pojistného Právo na podání žaloby na platbu pojistného bude promlčeno po uplynutí lhůty jednoho roku od doby splatnosti pojistného.

Článek 7:102 Žaloba o zaplacení pojistných dávek (1) Právo na podání žaloby na zaplacení pojistné dávky bude obecně promlčeno po uplynutí lhůty tří let od doby, kdy pojistitel učinil, nebo se má za to, že učinil, konečné rozhodnutí o nároku v souladu s článkem 6:103. V každém případě však bude právo na podání žaloby promlčeno nejpozději po uplynutí lhůty deseti let po vzniku pojistné události, s výjimkou případu životního pojištění, pro něž bude příslušné období činit 30 let. (2) Právo na podání žaloby o zaplacení odkupní hodnoty životního pojištění bude promlčeno po uplynutí lhůty tří let od doby, kdy pojistník od pojistitele obdrží konečné vyúčtování. V každém případě však bude právo na podání žaloby promlčeno nejpozději po uplynutí lhůty 30 let od ukončení smlouvy o životním pojištění.

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Tento článek je vytvořen po vzoru čl. 3 odst. 1 písm. (d) směrnice 2000/35/ES.

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Článek 7:103 Ostatní otázky související s promlčením S výhradou článku 7:101 a 7:102 ZEPSP se na nároky vzniklé z pojistné smlouvy uplatní Článek 14:101 až 14:503 Zásad evropského smluvního práva (PECL).9 Pojistná smlouva se od uvedených ustanovení může odchýlit v souladu s čl. 1:103 odst. 2 ZEPSP.

Část druhá: Ustanovení společná pro škodové pojištění Kapitola osmá: Pojistná částka a pojistná hodnota Článek 8:101 Maximální vyplácené částky (1) Pojistitel není povinen uhradit více, než je částka nezbytná k náhradě škod, jež pojištěný skutečně utrpěl. (2) Ustanovení stanovící sjednanou hodnotu předmětu pojištění je platné, i když uvedená hodnota převyšuje skutečnou hodnotu předmětu pojištění pod podmínkou, že ze strany pojistníka nebo pojištěného v době, kdy byla hodnota sjednána, nedošlo k podvodu nebo nepravdivému prohlášení.

Článek 8:102 Podpojištění (1) Pojistitel odpovídá za jakoukoli pojištěnou ztrátu do výše pojistné částky, i když je pojistná částka nižší než hodnota pojištěného majetku v době vzniku pojistné události. (2) Avšak pokud pojistitel nabízí krytí v souladu s odst. 1, je alternativně oprávněn nabídnout pojištění na takovém základě, kdy je splatné odškodnění omezeno v poměru, v jakém je pojistná částka vůči skutečné hodnotě majetku v době ztráty. V takovém případě budou navíc ve stejném poměru uhrazeny náklady na zmírnění škod definované v článku 9:102.

Článek 8:103 Úprava podmínek v případě přepojištění (1) Pokud pojistná částka převyšuje nejvyšší možnou škodu na základě pojištění, je kterákoli ze stran oprávněna navrhnout snížení pojistné částky a odpovídající snížení pojistného pro zbývající část smluvního období. (2) Pokud se strany do jednoho měsíce od žádosti na takovém snížení nedohodnou, kterákoli ze stran je oprávněna smlouvu ukončit.

Článek 8:104 Soupojištění (1) Pokud je stejný zájem samostatně pojištěn více než jedním pojistitelem, je pojištěný oprávněn vznést nárok vůči kterémukoli nebo kterýmkoliv z těchto pojistitelů v rozsahu nezbytném k náhradě škod, jež pojištěný skutečně utrpěl. (2) Pojistitel, vůči němuž je vznesen nárok, uhradí pojistnou částku na základě své pojistky, společně s náklady na zmírnění škod, pokud jsou na místě, aniž jsou dotčena jeho práva na příspěvek od jakéhokoli jiného pojistitele. (3) Mezi pojistiteli se práva a povinnosti uvedené v odst. 2 rozdělí v poměru částek, za něž samostatně odpovídají pojištěnému.

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Srov. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Kapitola devátá: Nárok na odškodnění Článek 9:101 Způsobení ztráty (1) Podle okolností případu ani pojistník ani pojištěný, nemá nárok na odškodnění v rozsahu, v jakém byla ztráta způsobena jednáním nebo opomenutím na jeho straně s úmyslem škodu způsobit, nebo z nedbalosti a s vědomím, že ke škodě pravděpodobně dojde. (2) S výhradou jednoznačného ustanovení v pojistce, stanovícího snížení pojistného plnění podle míry zavinění na jeho straně, má pojistník nebo pojištěný, podle okolností případu, nárok na odškodnění ohledně jakékoli ztráty způsobené nedbalostním jednáním nebo opomenutím na jeho straně. (3) Pro účely odst. 1 a 2 způsobení škody zahrnuje neodvrácení nebo nezmírnění škody.

Článek 9:102 Zachraňovací náklady (1) Pojistitel nahradí vzniklé náklady nebo výši škody utrpěné pojistníkem nebo pojištěným v důsledku toho, že přijal opatření ke zmírnění pojištěné škody, v rozsahu, v jakém byl pojistník nebo pojištěný oprávněn považovat taková opatření za přiměřená za daných okolností, i když byla při zmírňování škod neúspěšná. (2) Pojistitel podle okolností případu odškodní pojistníka nebo pojištěného za jakákoli opatření přijatá v souladu s odst. 1, i když splatná částka společně s náhradou pojištěné škody překročí pojistnou částku.

Kapitola desátá: Postižní práva Článek 10:101 Přechod práva na náhradu škody na pojistitele (1) S výhradou odst. 3 je pojistitel oprávněn vykonat vůči třetí straně odpovědné za škodu postižní práva v rozsahu, v jakém odškodnil pojištěného. (2) V rozsahu, v jakém se pojištěný vzdá práva vůči takové třetí straně způsobem, kterým je dotčeno pojistitelovo právo na postih, ztratí svůj nárok na pojistné plnění za dotyčnou škodu. (3) Pojistitel není oprávněn vykonat práva subrogace vůči členu domácnosti pojistníka nebo pojištěného, osobě s rovnocenným společenským vztahem k pojistníku nebo pojištěnému, nebo zaměstnanci pojistníka nebo pojištěného, s výjimkou případu, kdy prokáže, že taková osoba způsobila škodu úmyslně nebo z nedbalosti a s vědomím, že ke škodě pravděpodobně dojde. (4) Pojistitel nevykoná svá práva na postih ke škodě pojištěného.

Kapitola jedenáctá: Pojištěné osoby jiné než pojistník Článek 11:101 Nárok pojištěného (1) V případě pojištění uzavřeného pro jinou osobu než pojistníka má v případě vzniku pojistné události nárok na pojistné plnění tato osoba. (2) Pojistník má právo takové krytí zrušit, s výjimkou případu, kdy (a) pojistka stanoví jinak; nebo (b) došlo k pojistné události. (3) Zrušení je účinné v okamžiku předání písemného oznámení o zrušení pojistiteli.

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Článek 11:102 Znalost pojištěného Znalost osoby pojištěné v souladu s článkem 11:101 není připisována pojistníku, ledaže si tato osoba není vědoma svého statutu jako pojištěného, kdy je pojistník povinen poskytnout pojistiteli relevantní informace.

Článek 11:103 Porušení povinnosti jedním pojištěným Porušení povinnosti jedním pojištěným nemá nepříznivý dopad na práva jiných osob pojištěných na základě stejné pojistné smlouvy, pokud není riziko pojištěno společně.

Kapitola dvanáctá: Pojistné riziko Článek 12:101 Neexistence pojištěného rizika (1) Pokud pojistné riziko neexistuje v době uzavření smlouvy ani v žádné jiné době během pojistného období, není splatné žádné pojistné. Pojistitel má však nárok na přiměřenou náhradu vzniklých výdajů. (2) Pokud pojistné riziko přestane existovat během pojistného období, považuje se smlouva za skončenou v době, kdy je tato skutečnost oznámena pojistiteli.

Článek 12:102 Převod majetku (1) Pokud je převeden právní titul k pojištěnému majetku, bude pojistná smlouva ukončena jeden měsíc po převodu, pokud se pojistník a nabyvatel nedohodnou na ukončení v dřívější době. Toto pravidlo se nepoužije, pokud byla pojistná smlouva uzavřena ve prospěch budoucího nabyvatele. (2) Nabyvatel majetku se považuje za pojištěného od doby, kdy je převedeno riziko k pojištěnému majetku. (3) Odstavce 1 a 2 se nepoužijí (a) pokud se pojistitel, pojistník a nabyvatel dohodnou jinak; nebo (b) na převod právního titulu dědictvím.

Část třetí: Ustanovení společná pro obnosové pojištění Kapitola třináctá: Přípustnost Článek 13:101 Obnosové pojištění Pouze úrazové, zdravotní, životní pojištění, pojištění manželství, porodu nebo jiné osobní pojištění může být uzavřeno jako obnosové pojištění.

Část čtvrtá: Pojištění odpovědnosti Kapitola čtrnáctá: Všeobecné pojištění odpovědnosti Článek 14:101 Náklady na záchranu Pojistitel uhradí náklady na záchranu v souladu s článkem 9:102.

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Článek 14:102 Ochrana poškozeného Pokud poškozený nedá písemný souhlas, jeho postavení nesmí být dotčeno jakýmkoliv vypořádáním, uzavřeným ohledně pojistného nároku na základě pojistky mezi pojistníkem nebo pojištěným a pojistitelem, ať už na základě dohody, zřeknutí se, platby nebo jiného obdobného jednání.

Článek 14:103 Kauzalita újmy (1) Ani pojistník ani pojištěný, podle toho o jaký případ se jedná, nebudou mít nárok na pojistné plnění v té míře, ve které byla újma způsobena jednáním nebo opomenutím na jeho straně v úmyslu způsobit újmu; toto zahrnuje nesplnění zvláštních pokynů pojistitele poté, co došlo k újmě, jestliže tak bylo učiněno z nedbalosti a s vědomím, že jinak se újma pravděpodobně zvýší. (2) Pro účely odst. 1 kauzalita újmy zahrnuje neúspěšné odvracení nebo snížení újmy. (3) S výhradou jasné doložky v pojistce připouštějící snížení pojistného plnění v závislosti na stupni pochybení na jeho straně bude mít podle okolností případu pojistník nebo pojištěný právo na plnění ve vztahu k jakékoliv újmě způsobené nedbalostním nesplněním zvláštních pokynů pojistitele po té, co vznikla újma.

Článek 14:104 Uznání odpovědnosti (1) Doložka v pojistné smlouvě zprošťující pojistitele jeho povinností v případě, že pojistník nebo pojištěný, podle tohoto o jaký případ se jedná, přijme nebo uspokojí právo poškozeného, nemá účinky. (2) Ledaže je sjednáno jinak, pojistitel není vázán dohodou mezi poškozeným a pojistníkem nebo pojištěným, podle tohoto o jaký případ se jedná.

Článek 14:105 Postoupení Doložka v pojistné smlouvě, která zbavuje pojištěného jeho práva na postoupení jeho pohledávky na základě pojistky, je neúčinná.

Článek 14:106 Žádné bonusy z nároků/ Bonus-Malus-Systém (1) Pojistník má právo kdykoliv požadovat stanovisko ve vztahu k jeho nárokům zaznamenaným za posledních pět let. (2) Jestliže pojistitel učiní výši pojistného nebo jiné podmínky závislé na množství nároků uspokojených podle pojistky, musí být patřičně zváženy nároky pojistníka u jiných pojistitelů zaznamenané v posledních pěti letech.

Článek 14:107 Pojistná událost (1) Pojistná událost je skutečnost, v důsledku které vzniká odpovědnost pojištěného, k níž došlo během období povinnosti k plnění z pojistné smlouvy, ledaže smluvní strany pojistné smlouvy uzavřené pro obchodní nebo profesní účely definují pojistnou událost s odkazem na jiná kritéria, jakými je nárok uplatněný poškozeným. (2) Pokud smluvní strany definují pojistnou událost s odkazem na nárok uplatněný poškozeným, krytí musí být poskytnuto ve vztahu k nárokům uplatněným v rámci období povinnosti k plnění, nebo v následujícím období trvajícím ne méně než pět let, a tento nárok musí být založen na skutečnosti, která nastala před skončením období povinnosti k plnění. Pojistná smlouva může vyloučit krytí na základě toho, že v okamžiku uzavření smlouvy si zájemce byl nebo měl být vědom okolností, u nichž by měl předpokládat, že povedou ke vzniku nároků.

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Článek 14:108 Nároky přesahující pojistnou částku (1) Jestliže celkový součet plateb, které mají být zaplaceny více poškozeným, překročí pojistnou částku, plnění bude poměrně zkráceno. (2) Pojistitel, který si nebyl vědom existence jiných poškozených a zaplatil v dobré víře pojistné plnění poškozeným, které znal, je odpovědný ostatním poškozeným až do zůstatku pojistné částky.

Kapitola patnáctá: Přímé nároky a přímé žaloby Článek 15:101 Přímé nároky a přímé obrany (1) V rozsahu, ve kterém pojistník nebo pojištěný, podle toho o jaký případ se jedná, mají odpovědnost, je poškozený oprávněn k uplatnění přímého nároku na náhradu proti pojistiteli na základě pojistné smlouvy za předpokladu, že: (a) pojištění je povinné, nebo (b) pojistník nebo pojištěný je v úpadku, nebo (c) pojistník nebo pojištěný byl zlikvidován nebo zrušen, nebo (d) poškozený utrpěl zranění, nebo (e) právo rozhodné pro povinnost plnit přiznává přímý nárok. (2) Proti poškozenému může pojistitel vznášet námitky na základě pojistné smlouvy, ledaže to zakazují zvláštní ustanovení, která činí pojištění povinným. Nicméně pojistitel není oprávněn vznášet jakékoliv námitky ohledně postupu pojistníka a/nebo pojištěného po vzniku újmy.

Článek 15:102 Informační povinnosti (1) Na žádost poškozeného, pojistník a pojištěný poskytnou informace potřebné pro uplatnění přímého nároku. (2) Pojistitel informuje písemně neprodleně pojistníka o každém přímém nároku, který byl vůči němu uplatněn, nejpozději jej informuje ve lhůtě dvou týdnů následujících od okamžiku, kdy obdržel sdělení o uplatnění nároku. Pokud pojistitel poruší tuto povinnost, zaplacení nebo uznání dluhu vůči poškozenému nebude mít účinky ve vztahu k právům pojistníka. (3) Pokud pojistník neposkytne pojistiteli informaci o pojistné události během jednoho měsíce od okamžiku, kdy obdržel oznámení v souladu s odst. 2., má se za to že pojistník souhlasí s přímou likvidací pojistné události pojistitelem. Toto pravidlo se použije také na pojištěné, kteří ve skutečnosti obdrželi včas takové oznámení.

Článek 15:103 Zproštění Vyplacení pojistného plnění pojistníkovi nebo pojištěnému, podle toho o jaký případ se jedná, zbavuje pojistitele jeho povinnosti ve vztahu k poškozenému jen, když poškozený: (a) se vzdal svého přímého nároku nebo (b) neoznámil pojistiteli svůj úmysl uplatnit přímý nárok během čtyř týdnů od okamžiku, kdy obdržel pojistitelovu písemnou žádost.

Článek 15:104 Promlčení (1) Žaloba proti pojistiteli, ať už podaná pojištěným nebo poškozeným, se promlčí v okamžiku, kdy se promlčí právo na podání žaloby poškozeného proti pojištěnému.

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(2) Promlčecí doba pro nárok uplatněný poškozeným proti pojištěnému se staví od okamžiku, pokud je takový okamžik, od kterého si byl pojištěný vědom, že byl uplatněn přímý nárok proti pojistiteli, až do chvíle, kdy byl přímý nárok uspokojen nebo jednoznačně zamítnut pojistitelem.

Kapitola šestnáctá: Povinné pojištění Článek 16:101 Aplikační rozsah (1) ZEPSP mohou být zvoleny stranami pojistné smlouvy sjednané při plnění závazku ke sjednání pojištění (a) předepsaného právem Společenství, (b) předepsaného smluvním státem, nebo (c) předepsaného nečlenským státem v rozsahu, který připouští právo tohoto státu. (2) Pojistná smlouva nesplňuje požadavek na uzavření pojištění, pokud není v souladu se zvláštními ustanoveními, která ukládají tuto povinnost.

Část pátá: Životní pojištění Kapitola sedmnáctá: Zvláštní ustanovení pro životní pojištění Oddíl první: Třetí strany Článek 17:101 Životní pojištění a život třetí strany Pojistná smlouva týkající se života jiné osoby než je pojistník, bude platná, pokud byl získán písemný informovaný souhlas ohrožené osoby, který byl opatřen podpisem. Jakákoliv pozdější podstatná změna smlouvy zahrnující změnu beneficienta, zvýšení pojistné částky a změnu délky trvání smlouvy, nebude mít účinky bez takového souhlasu. To samé se týká postoupení nebo zatížení pojistné smlouvy nebo práva na pojistné plnění.

Článek 17:102 Beneficient s právem na pojistné plnění (1) Pojistník může určit jednoho nebo více beneficientů s právem na pojistné plnění a může měnit a odvolat toto určení, ledaže toto určení bylo označeno jako neodvolatelné. Určení, změna a odvolání, pokud jsou uvedeny v závěti, musí být učiněny písemně a zaslány pojistiteli. (2) Právo určit, změnit nebo odvolat určení končí smrtí pojistníka, nebo nastane-li pojistná událost, podle toho co nastane dříve. (3) Pojistník nebo dědicové pojistníka, podle toho o jaký se jedná případ, budou považováni za beneficienty s právem na pojistné plnění, jestliže (a) pojistník neurčil beneficienta nebo (b) určení beneficienta bylo odvoláno a žádní další beneficienti nebyli určeni nebo (c) beneficient zemřel před tím, než nastala pojistná událost a nebyl určen žádný další beneficient. (4) Pokud byli určeni dva nebo více beneficientů a určení kteréhokoliv z nich bylo odvoláno nebo některý z nich zemřel před tím, než nastala pojistná událost, částka pojistného plnění, která by byla vyplacena tomuto beneficientovi nebo těmto beneficientům, bude rozdělena poměrně mezi zbývající beneficienty, ledaže bude stanoveno pojistníkem v souladu s odst. 1 jinak.

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(5) S výhradou jakýchkoliv pravidel týkajících se nicotnosti, neplatnosti a nevykonatelnosti právních jednání na úkor věřitelů stanovených právem rozhodným pro úpadek, majetková podstata pojistníka nebude mít práva ohledně pojistného plnění, konverzní hodnotu nebo odkupní hodnotu dokud nebylo plnění vyplaceno pojistníkovi. (6) Pojistitel platící pojistné plnění osobě určené v souladu s odst. 1. bude zbaven své povinnosti platit, pokud věděl, že dotčená osoba nebyla oprávněna k přijetí pojistného plnění.

Článek 17:103 Beneficient s právem na hodnotu odkupného (1) Bez ohledu na určení podle čl. 17:102, může pojistník také určit beneficienta s právem na hodnotu odkupného, pokud je někdo takový, může změnit nebo odvolat takové určení. Určení, změna a odvolání budou učiněny písemně a zaslány pojistiteli. (2) Pojistník bude považován za beneficienta s právem na hodnotu odkupného, jestliže (a) nebyl určen žádný beneficient s právem na hodnotu odkupného nebo (b) určení beneficienta s právem na hodnotu odkupného bylo odvoláno a nebyli určeni žádní další beneficienti nebo (c) beneficient s právem na hodnotu odkupného zemřel a žádný další beneficient nebyl určen. (3) Články 17:102 odst. 2, a 4 až 6 se použijí mutatis mutandis.

Článek 17:104 Postoupení nebo zatížení (1) Pokud byl beneficient určen neodvolatelně, je neúčinné pojistníkovo postoupení nebo zatížení pojistné smlouvy nebo práva na pojistné plnění, ledaže s tím písemně souhlasil beneficient. (2) Postoupení nebo zatížení práva beneficienta na pojistné plnění bude neúčinné, ledaže k tomu dal pojistník písemný souhlas.

Článek 17:105 Vzdání se majetku Pokud je beneficient dědicem zemřelé osoby, jejíž riziko bylo pojištěno, a odmítl dědictví, samotná skutečnost, že odmítl dědictví, nemá vliv na jeho postavení podle pojistné smlouvy.

Oddíl druhý: Počáteční fáze a trvání smlouvy Článek 17:201 Předsmluvní povinnost žadatele (1) Informace, která má být poskytnuta v souladu s čl. 2:101 odst. 1, bude obsahovat ty okolnosti, kterých si měla být vědoma rizikem ohrožená osoba. Informace poskytovaná zájemci v souladu s čl. 2:101, bude obsahovat ty okolnosti, jichž si byla nebo měla být vědoma ohrožená osoba. (2) Sankce za porušení předsmluvní informační povinnosti podle čl. 2:102, 2:103 a 2:105, ale nikoliv podle čl. 2:104, lze použít pouze ve lhůtě pěti let po uzavření smlouvy.

Článek 17:202 Předsmluvní informační povinnosti pojistitele (1) Pojistitel informuje zájemce o tom, zda má právo podílet se na výnosech. Přijetí této informace musí být potvrzeno výslovným prohlášením obsaženým v dokumentu, který není součástí žádosti. (2) Dokument poskytnutý pojistitelem v souladu s článkem 2:201 musí obsahovat následující informace: (a) ve vztahu k pojistiteli: zvláštní odkaz na povinné zveřejnění výroční zprávy o jeho solventnosti a finanční situaci;

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(b) ve vztahu ke smluvním závazkům pojistitele: (i) vysvětlení každého plnění a každé alternativy, (ii) informaci o podílu pojistného ve vztahu ke každému plnění, a to k hlavnímu plnění a doplňkovému plnění, podle toho co připadá do úvahy; (iii) způsoby výpočtu a rozdělení bonusů včetně uvedení práva aplikovaného při dohledu; (iv) uvedení výše odkupného a doposud zaplaceného pojistného a rozsah, ve kterém jsou zaručeny; (v) pro investiční životní pojištění: vysvětlení podílů, se kterými jsou spojena plnění, a vymezení povahy finančních derivátů; (vi) všeobecná informace o daňové úpravě použitelné na daný druh pojistky. (3) Dále bude poskytnuta zvláštní informace za účelem usnadnění řádného pochopení rizik krytých smlouvou, která přebírá pojistník. (4) Jestliže pojistitel schematicky uvádí rozsah možných plnění nad nebo mimo rámec smluvně zaručených plateb, poskytne zájemci vzorový výpočet, který obsahuje možnou splatnost plnění založenou na pojistně matematických metodách pro výpočet pojistného se třemi různými výšemi úroků. To neplatí pro pojistné smlouvy, kryjící rizika, u kterých není jisté, že pojistitel bude povinen plnit, ani pro investiční životní pojištění. Pojistitel jasně a srozumitelně sdělí pojistníkovi, že vzorový výpočet představuje pouze fiktivní předpoklady, a že smlouva nezaručuje tyto možnosti plnění.

Článek 17:203 Lhůta na rozmyšlenou10 (1) Pro smlouvy o životním pojištění, bude lhůta na rozmyšlenou stanovená v článku 2:303 odst. 1 činit jeden měsíc od přijetí zprávy o přijetí návrhu na uzavření smlouvy nebo po doručení dokumentů uvedených v článku 2:501 a článku 17:202, podle toho co nastane později. (2) Právo pojistníka odstoupit od smlouvy v souladu s článkem 2:303 odst. 1 zanikne po uplynutí jednoho roku od uzavření smlouvy.

Článek 17:204 Právo pojistníka vypovědět smlouvu (1) Pojistník bude oprávněn vypovědět smlouvu o životním pojištění, která nezahrnuje konverzní hodnotu nebo odkupní hodnotu za předpokladu, že účinky výpovědi nenastanou dříve než jeden rok po uzavření smlouvy. Právo výpovědi před skončením doby trvání smlouvy může být vyloučeno, pokud bylo zaplaceno alespoň jednou pojistné. Výpověď bude písemná a vstoupí v účinnost dva týdny od doručení výpovědi pojistiteli. (2) Pokud smlouva o životním pojištění zahrnuje konverzní hodnotu nebo odkupní hodnotu, použijí se články 17:601 až 17:603.

Článek 17:205 Právo pojistitele na vypovězení smlouvy Pojistitel bude oprávněn vypovědět smlouvu o životním pojištění pouze v rozsahu, který připouští tato kapitola.

10

Článek 17:203 odst. 1 je vytvořen podle článku 35 směrnice 2002/83/ES o životním pojištění a článku 6 směrnice 2002/65/ES.

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Oddíl třetí: Změny během doby trvání smlouvy Článek 17:301 Pojistitelovy informační povinnosti po uzavření smlouvy (1) V příslušných případech pojistitel poskytne pojistníkovi ročně písemný přehled současné hodnoty bonusů spojených s pojistkou. (2) Kromě požadavků podle čl. 2:701, pojistitel informuje pojistníka bez zbytečného odkladu o jakékoliv změně týkající se: (a) pojistných podmínek, a to jak obecných, tak zvláštních; (b) v případě změny pojistných podmínek nebo novelizace ZEPSP: informací uvedených v článku 2:201 písm. (f) a (g), jakož i v článku 17:202 odst. 2 písm. (b) body i až v. (3) Článek 17:202 odst. 4 se použije také v případě, že schémata týkající se odhadovaného objemu možných plnění jsou poskytována kdykoliv během doby trvání smlouvy. Pokud pojistitel poskytl schémata, ať už před nebo po uzavření smlouvy, týkající se možného budoucího podílu na výnosech, informuje pojistníka o jakýchkoliv rozdílech ve vývoji mezi aktuálními a původními údaji.

Článek 17:302 Zvýšení pojistného rizika Ve smlouvě o životním pojištění ustanovení označující věk nebo zhoršení zdravotního stavu jako zvýšení pojistného rizika ve smyslu článku 4:201 bude považováno za zneužívající ustanovení ve smyslu článku 2:304.

Článek 17:303 Úprava výše pojistného nebo plnění (1) V životním pojištění smlouva kryjící rizika v případech, ve kterých je jisté, že pojistitel bude povinen plnit, bude pojistitel oprávněn provést úpravy jen v souladu s odst. 2 a 3. (2) Zvýšení pojistného je dovoleno pouze v případě, že došlo k nepředvídatelné a trvalé změně ve vztahu k biometrickým rizikům, která byla použita jako základ pro výpočet pojistného, pokud je zvýšení nezbytné k zajištění pokračování pojistitelovy schopnosti vyplácet pojistná plnění a kde zvýšení bylo schváleno nezávislým pověřencem, nebo kontrolním orgánem. Pojistník bude oprávněn vyrovnat zvýšení pojistného prostřednictvím odpovídajícího omezení pojistných plnění. (3) V případě zaplacené pojistky, bude pojistitel oprávněn omezit pojistná plnění za podmínek stanovených v odst. 2. (4) Úprava podle odst. 2 a 3 není možná (a) jestliže chyba byla způsobena při výpočtu pojistného a/nebo plnění, a této chyby by si musel být vědom schopný a svědomitý pojistný matematik, nebo (b) jestliže předložený výpočet není používán ve vztahu ke všem smlouvám včetně těch sjednaných po úpravě. (5) Zvýšení pojistného nebo omezení plnění bude účinné tři měsíce poté, co pojistitel předal pojistníkovi písemné oznámení o zvýšení pojistného nebo omezení plnění, o důvodech pro tento postup a o pojistníkově vlastním právu požadovat omezení plnění. (6) Ve smlouvě o životním pojištění kryjícím rizika, za která pojistitel s jistotou bude povinen plnit, pojistník bude oprávněn snížit pojistné z důvodu nepředvídatelné a trvalé změny ve vztahu k biometrickým rizikům použitým jako základ pro výpočet pojistného, která činí původní výši pojistného již dále nepřiměřenou a nedůležitou v zájmu zajištění pojistitelovy další schopnosti platit pojistné plnění. Snížení musí být schváleno nezávislým důvěrníkem, nebo kontrolním orgánem. (7) Práva stanovená v tomto článku nemohou být vykonána dříve než pět let od uzavření smlouvy.

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Článek 17:304 Změny smluvních podmínek (1) Ustanovení, které umožňuje pojistiteli, aby změnil smluvní podmínky jiné než je splatné pojistné a plnění, bude neplatné, ledaže změna je vyžadována (a) za účelem souladu se změnou kontrolního práva obsahujícího závazná opatření přijatá kontrolním orgánem, nebo (b) za účelem souladu se změnou kogentních norem rozhodného národního práva upravujícího penzijní plán zaměstnanců, nebo (c) za účelem souladu se změnou vnitrostátních pravidel stanovících zvláštní požadavky na smlouvy o životním pojištění za účelem získání zvláštního daňového zvýhodnění nebo získání státní podpory, nebo (d) za účelem nahrazení ustanovení ve smlouvě v souladu s článkem 2:304 odst. 2 věta druhá. (2) Změna se stane účinnou na začátku třetího měsíce po té, co pojistník obdržel písemné oznámení, ve kterém byl informován o změně a o důvodech k ní. (3) Odst. 1 se použije s výhradou jiných požadavků na platnost ustanovení, na základě kterých dochází ke změnám.

Oddíl čtvrtý: Vztah ke vnitrostátním právním řádům Článek 17:401 Penzijní plán Smlouva o životním pojištění, týkající se penzijního plánu, bude podléhat kogentním ustanovením rozhodného práva upravujícím penzijní plán. ZEPSP se použijí pouze v rozsahu slučitelném s těmito předpisy.

Článek 17:402 Zacházení s daněmi a státními podporami ZEPSP nemá vliv na vnitrostátní předpisy stanovící zvláštní požadavky na smlouvu o životním pojištění v zájmu získání zvláštního zdanění nebo získání státních podpor. V případě střetu mezi takovými požadavky použitelného vnitrostátního práva a ustanovení ZEPSP, ZEPSP nemusejí být použita.

Oddíl pátý: Pojistná událost Článek 17:501 Šetření pojistitele a informační povinnost (1) Pojistitel, který má důvod se domnívat, že pojistná událost může nastat, musí přijmout přiměřené kroky k jejímu zjištění. (2) Pojistitel, který si je vědom, že nastala pojistná událost, vyvine maximální úsilí podle okolností případu, aby zjistil totožnost a adresu beneficienta a informoval jej odpovídajícím způsobem. Tato informace nebude poskytnuta později než 30 dní poté, co pojistitel zjistil totožnost a adresu beneficienta. (3) Pokud pojistitel porušil odst. 1 nebo 2, staví se promlčecí lhůta nároku beneficienta, dokud beneficient nezíská informaci o svém vlastním nároku.

Článek 17:502 Sebevražda (1) Pokud během jednoho roku po uzavření smlouvy ohrožená osoba spáchá sebevraždu, pojistitel bude zproštěn své povinnosti k zaplacení pojistného plnění. Pokud tomu tak je, pojistitel zaplatí odkupní hodnotu a veškeré výnosy v souladu s čl. 17:602.

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(2) Odst. 1 se nepoužije, pokud (a) ohrožená osoba, když páchala sebevraždu, jednala v duševním stavu vylučujícím její schopnost svobodně ovládat svou vůli, nebo (b) je prokázáno mimo jakoukoliv rozumnou pochybnost, že v době uzavření smlouvy, ohrožená osoba nezamýšlela spáchat sebevraždu.

Článek 17:503 Úmyslné zabití ohrožené osoby (1) Jestliže beneficient zabije úmyslně ohroženou osobu, jeho určení jako beneficienta se považuje za odvolané. (2) Postoupení pohledávky na pojistné plnění bude neúčinné, pokud postupník zabil úmyslně ohroženou osobu. (3) Jestliže pojistník, který je zároveň beneficientem zabije úmyslně ohroženou osobu, nevyplácí se žádné pojistné plnění. (4) Jestliže beneficient nebo pojistník zabil ohroženého z ospravedlnitelného důvodu, jakým je sebeobrana v souladu se zákonem, tak se tento článek nepoužije.

Oddíl šestý: Změna a odkupné Článek 17:601 Změna smlouvy (1) Článek 5:103 se nepoužije na smlouvy o životním pojištění, které jsou spojeny s konverzní hodnotou, nebo odkupní hodnotou. Tyto smlouvy se změní v zaplacené pojistky, ledaže pojistitel požádá o vyplacení odkupní hodnoty během čtyř týdnů od doručení informace uvedené v odst. 2. (2) Pojistitel informuje pojistníka o konverzní hodnotě a odkupní hodnotě během čtyř týdnů od uplynutí lhůty uvedené v článku 5:101 písm. (b) nebo článku 5:102 odst. 1 písm. (b) a požádá pojistníka o volbu mezi změnou smlouvy a vyplacením odkupní hodnoty. (3) Žádost o změnu smlouvy nebo vyplacení odkupní hodnoty bude písemná.

Článek 17:602 Odkupní hodnota smlouvy (1) Pojistník může kdykoliv písemně požadovat od pojistitele zaplacení, úplné nebo částečné, odkupní hodnoty, která je spojena s pojistkou, pod podmínkou, že tato nevstoupí v účinnost dříve než jeden rok po uzavření smlouvy. Smlouva musí být upravena a vypovězena odpovídajícím způsobem. (2) S výhradou článku 17:601, jestliže smlouva o životním pojištění, se kterou je spojena odkupní hodnota, je vypovězena, prohlášena za neplatnou nebo je od ní odstoupeno, je pojistitel povinen zaplatit odkupní hodnotu i v případě článku 2:104. (3) Pojistitel informuje pojistníka na žádost, ale v každém případě každoročně, o aktuální výši odkupní hodnoty a o míře, ve které je zaručena. (4) Podíl na jakémkoliv výnosu, na který má pojistník nárok, bude zaplacen navíc k odkupní hodnotě, ledaže byl podíl vzat již do úvahy při výpočtu odkupní hodnoty. (5) Částky splatné podle tohoto článku nebudou zaplaceny později než dva měsíce po doručení žádosti pojistníka pojistiteli.

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Článek 17:603 Konverzní hodnota; Odkupní hodnota (1) Pojistná smlouva stanoví způsob výpočtu konverzní hodnoty a/nebo odkupní hodnoty v souladu s právem domovského členského státu pojistitele. Stanovený způsob vypočtu konverzní hodnoty a/nebo odkupní hodnoty bude v souladu s pojistně matematickými metodami a s odst. 2. (2) Jestliže pojistitel odečte náklady na uzavření smlouvy, musí tak učinit ve stejných částkách a ve lhůtě, která nesmí být kratší než pět let. (3) Pojistitel je oprávněn odečíst přiměřenou částku, která je vypočtena v souladu se stanovenými pojistně matematickými zásadami, za účelem krytí nákladů vztahujících se k výplatě odkupní hodnoty, ledaže výpočet již zahrnuje takový odpočet.

Část šestá: Skupinové pojištění Kapitola osmnáctá: Zvláštní ustanovení pro skupinové pojištění Oddíl první: Skupinové pojištění obecně Článek 18:101 Použitelnost Smlouvy o skupinovém pojištění podléhají ZEPSP pod podmínkou, že vedoucí skupiny a pojistitel se dohodli v souladu se článkem 1:102. Skupinové pojištění je buďto akcesorické a podléhá oddílu 2 této kapitoly nebo volitelné a podléhá oddílu 3 této kapitoly.

Článek 18:102 Obecná povinnost vedoucího skupiny (1) V rámci jednání a provádění smlouvy o skupinovém pojištění, bude vedoucí skupiny jednat svědomitě a v dobré víře a bude brát v úvahu legitimní očekávání členů skupiny. (2) Vedoucí skupiny předá jakákoliv relevantní oznámení vydaná pojistitelem členům skupiny a informuje je o jakékoliv změně smlouvy.

Oddíl druhý: Akcesorické skupinové pojištění Článek 18:201 Použití ZEPSP Pokud je to nezbytné, ZEPSP se použijí na akcesorické skupinové pojištění mutatis mutandis.

Článek 18:202 Informační povinnost (1) Jestliže se člen skupiny připojí ke skupině, vedoucí skupiny informuje bez zbytečného odkladu člena o (a) existenci pojistné smlouvy, (b) rozsahu krytí, (c) jakýchkoliv preventivních opatřeních a dalších požadavcích pro zachování krytí, a (d) postupu pro uplatnění nároků. (2) Důkazní břemeno ohledně toho, že člen skupiny obdržel informaci požadovanou podle odst. 1, spočívá na vedoucím skupiny.

Článek 18:203 Výpověď ze strany pojistitele (1) Pro účely čl. 2:604, výkon práva na výpověď ze strany pojistitele bude považován za důvodný jen v případě, že je omezen na výluku z krytí člena skupiny, kterému se stala pojistná událost.

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(2) Pro účely článku 4:102 a článku 4:203 odst. 1, výkon práva na výpověď ze strany pojistitele bude mít účinek pro vyloučení těch členů skupiny z pojistného krytí, kteří nepřijali požadovaná preventivní opatření nebo jejichž riziko se zvýšilo, podle toho o jaký případ se jedná. (3) Pro účely článku 12:102 bude mít výpověď pojistné smlouvy účinek v podobě vyloučení z pojistného krytí jen pro ty členy skupiny, kteří převedli svůj titul k pojištěnému majetku.

Článek 18:204 Právo na pokračování krytí – skupinové životní pojištění (1) Pokud je vypovězena smlouva o akcesorickém skupinovém životním pojištění, nebo pokud člen opustí skupinu, pojistné krytí skončí po třech měsících nebo současně s vypršením platnosti smlouvy, podle toho co nastane dříve. Jestliže toto nastane, člen skupiny bude mít právo odpovídající krytí podle nové individuální smlouvy s příslušným pojistitelem bez nového posouzení rizika. (2) Vedoucí skupiny informuje člena skupiny písemně bez zbytečného odkladu: (a) o bezprostředně hrozícím skončení jeho krytí podle smlouvy o skupinovém životním pojištění, (b) o jeho právech podle odst. 1 a (c) o tom jak vykonávat tato práva. (3) Pokud člen skupiny vyjádřil svůj úmysl k výkonu jeho práva podle článku 18:204 odst. 1, smlouva mezi pojistitelem a členem skupiny bude pokračovat jako individuální pojistná smlouva s pojistným vypočteným na základě individuální pojistky v uvedené době, aniž by byl vzat v potaz současný zdravotní stav nebo věk člena skupiny.

Oddíl třetí: Volitelné skupinové pojištění Článek 18:301 Volitelné skupinové pojištění: Obecně (1) Volitelné skupinové pojištění se považuje za kombinaci rámcové smlouvy mezi pojistitelem a vedoucím skupiny a individuální pojistné smlouvy uzavřené v takovém rámci mezi pojistitelem a členy skupiny. (2) ZEPSP se použijí na individuální pojistné smlouvy, ve kterých se dohodli vedoucí skupiny a pojistitel na jejich použití, ale vyjma článků 18:101 a 18:102, se na rámcovou smlouvu ZEPSP nepoužijí.

Článek 18:302 Změna podmínek Změna podmínek rámcové smlouvy působí na individuální pojistné smlouvy, pokud je prováděna v souladu s požadavky uvedenými v článcích 2:603, 17:303 a 17:304, které se použijí přiměřeně.

Článek 18:303 Pokračování krytí Výpověď rámcové smlouvy nebo zánik účasti na straně jednotlivého člena skupiny nemá žádný vliv na pojistnou smlouvu mezi pojistitelem a členem skupiny.

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Dutch version by Han Wansink and Mariëlle van Popering

Principles of European Insurance Contract Law (PEICL) Deel Een: Algemene bepalingen voor alle overeenkomsten waarop de “Principles of European Insurance Contract Law (PEICL)” van toepassing zijn Hoofdstuk Een: Inleidende bepalingen Afdeling Een: Toepassing van de PEICL Afdeling Twee: Algemene bepalingen Afdeling Drie: Handhaving

Hoofdstuk Twee: Het sluiten en de duur van de overeenkomst Afdeling Een: De mededelingsplicht bij het aangaan van de verzekeringsovereenkomst Afdeling Twee: Precontractuele verplichtingen van de verzekeraar Afdeling Drie: Sluiting van de overeenkomst Afdeling Vier: Verzekering met terugwerkende kracht en voorlopige dekking Afdeling Vijf: Verzekeringspolis Afdeling Zes: Duur van de verzekeringsovereenkomst Afdeling Zeven: Postcontractuele informatieplicht van de verzekeraar

Hoofdstuk Drie: Verzekeringsagenten Hoofdstuk Vier: Het verzekerde risico Afdeling Een: Preventieve garanties Afdeling Twee: Risicoverzwaring Afdeling Drie: Risicovermindering

Hoofdstuk Vijf: Verzekeringspremie Hoofdstuk Zes: Verzekerd voorval Hoofdstuk Zeven: Verjaring Deel Twee: Algemene bepalingen voor de schadeverzekering Hoofdstuk Acht: Verzekerde som en verzekerde waarde

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Hoofdstuk Negen: Omvang van dekking Hoofdstuk Tien: Subrogatie Hoofdstuk Elf: Verzekering ten behoeve van een derde Hoofdstuk Twaalf: Verzekerd Risico Deel Drie: Algemene bepalingen voor de sommenverzekering Hoofdstuk Dertien: Toelaatbaarheid Deel Vier: De Aansprakelijkheidsverzekering Hoofdstuk Veertien: De Algemene Aansprakelijkheidsverzekering Hoofdstuk Vijftien: Directe aanspraak Hoofdstuk Zestien: Verplichte verzekering Deel Vijf: Levensverzekering Hoofdstuk Zeventien: Bijzondere bepalingen voor levensverzekering Afdeling Een: Derden Afdeling Twee: De eerste fase en de duur van de overeenkomst Afdeling Drie: Veranderingen tijdens de contractsduur Afdeling Vier: Verhouding tot Nationaal Recht Afdeling Vijf: Verzekerd voorval Afdeling Zes: Conversie en Afkoop

Deel Zes: Collectieve verzekering Hoofdstuk Achttien: Bijzondere bepalingen voor Collectieve Verzekering Afdeling Een: Collectieve Verzekering Algemeen Afdeling Twee: Accessoire Collectieve Verzekering Afdeling drie: Vrijwillige Collectieve Verzekering

Dutch: Principles of European Insurance Contract Law (PEICL)

Deel Een: Algemene bepalingen voor alle overeenkomsten waarop de “Principles of European Insurance Contract Law (PEICL)” van toepassing zijn Hoofdstuk Een: Inleidende Bepalingen Afdeling Een: Toepassing van de PEICL Artikel 1:101 Toepassingsbereik (1) De PEICL zijn van toepassing op de particuliere verzekering in het algemeen, met inbegrip van de onderlinge verzekering. (2) De PEICL zijn niet van toepassing op herverzekering.

Artikel 1:102 Optionele toepassing De PEICL zijn van toepassing wanneer partijen, niettegenstaande enige beperking van de vrijheid van rechtskeuze onder internationaal privaatrecht, zijn overeengekomen dat hun overeenkomst daardoor zal worden beheerst. Behoudens artikel 1:103 zijn de PEICL in hun geheel van toepassing en is het uitsluiten van bepaalde artikelen niet toegestaan.

Artikel 1:103 Dwingendrechtelijk karakter (1) De artikelen 1:102, tweede volzin, 2:104, 2:304, 13:101, 17:101 en 17:503 zijn dwingendrechtelijk van aard. De overige artikelen zijn dwingendrechtelijk van aard indien en voor zover zij betrekking hebben op rechtsgevolgen als gevolg van een handelen met het opzet tot misleiden. (2) Van alle andere bepalingen van de PEICL kan niet contractueel ten nadele van de verzekeringnemer, de verzekerde of de begunstigde worden afgeweken. (3) Afwijkingen ten voordele van één der partijen zijn echter toegestaan in overeenkomsten die dekking bieden tegen grote risico’s als bedoeld in artikel 13, punt 27 sub b of c van Richtlijn 2009/138/EG.

Artikel 1:104 Uitleg De PEICL worden uitgelegd in het licht van hun bewoordingen, context, strekking en rechtsvergelijkende achtergrond. Met name moet daarbij in aanmerking worden genomen de noodzaak om binnen de verzekeringssector handelen overeenkomstig de normen van redelijkheid en billijkheid, alsmede rechtszekerheid in contractuele betrekkingen, uniformiteit in toepassing en een adequate bescherming van verzekeringnemers te bevorderen.

Artikel 1:105 Nationaal recht en algemene beginselen (1) Een beroep op nationaal recht is ter beperking van de gelding van de PEICL, noch ter aanvulling daarvan toegestaan. Dit geldt niet voor speciaal voor de verzekeringsbranche vastgestelde dwingende nationale voorschriften welke niet worden beheerst door bijzondere in de PEICL opgenomen artikelen. (2) Uit de verzekeringsovereenkomst voortvloeiende vraagpunten welke niet uitdrukkelijk in de PEICL zijn geregeld, worden beantwoord overeenkomstig de “Principles of European Contract Law

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(PECL)”1 en bij afwezigheid van toepasselijke artikelen daaruit, overeenkomstig de algemene beginselen die de rechtsstelsels van de lidstaten gemeen hebben.

Afdeling Twee: Algemene bepalingen Artikel 1:201 Definitie verzekeringsovereenkomst (1) “Verzekeringsovereenkomst” is een overeenkomst waaronder de ene partij, de verzekeraar, haar wederpartij, de verzekeringnemer, toezegt tegen het genot van premie een bepaald risico te dekken; (2) Onder “verzekerd voorval” wordt verstaan de verwezenlijking van het in de verzekeringsovereenkomst aangeduide risico; (3) “Schadeverzekering” is een verzekering waaronder de verzekeraar is gehouden schade, door intrede van een verzekerd voorval geleden, te vergoeden; (4) “Sommenverzekering” is een verzekering waaronder de verzekeraar is gehouden bij intrede van het verzekerde voorval een vooraf bepaalde geldsom uit te keren. (5) “Aansprakelijkheidsverzekering” is een verzekering waaronder gedekt is het risico dat de verzekerde aansprakelijk wordt gehouden voor aan een derde toegebrachte schade. (6) “Levensverzekering” is een verzekering, waarbij de overeengekomen prestatie van de verzekeraar of de verplichting tot premiebetaling afhankelijk is van een verzekerd voorval dat betrekking heeft op het in leven zijn of de dood van degene op wiens leven de verzekering wordt gesloten. (7) “overeenkomsten voor collectieve verzekering” zijn overeenkomsten tussen een verzekeraar en de organisator van de collectiviteit ten behoeve van wie de verzekering wordt gesloten. Onder een overeenkomst voor collectieve verzekering kunnen ook familieleden van deelnemers aan de collectiviteit worden verzekerd. (8) “accessoire collectieve verzekering” ziet op een verzekering waaronder een ieder die behoort tot de verzekerde collectiviteit, uit dien hoofde is verzekerd. (9) “vrijwillige collectieve verzekering” ziet op een verzekering waaronder een deelnemer aan de collectiviteit eerst verzekerd is op basis van een persoonlijke aanvraag of bij gebreke van een persoonlijke weigering om deel te nemen.

Artikel 1:202 Overige definities (1) “Verzekerde” is degene wiens belang in geval van schade is gedekt onder een schadeverzekering; (2) “Begunstigde” is degene die aanspraak kan maken op de verzekeringsuitkering onder een sommenverzekering; (3) “Risicopersoon” is degene op wiens leven, gezondheid, fysieke integriteit of status een verzekering wordt afgesloten; (4) “Slachtoffer”, in de aansprakelijkheidsverzekering, is degene voor wiens dood, letsel of schade de verzekerde aansprakelijk is; (5) “Verzekeringsagent” is een verzekeringstussenpersoon die in dienst is van een verzekeraar teneinde verzekeringsovereenkomsten op de markt te brengen, te verkopen of te beheren; (6) “Premie” is de prestatie die de verzekeringnemer aan de verzekeraar is verschuldigd in ruil voor dekking; 1

Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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(7) “Contractsduur” is het tijdsbestek dat aanvangt met het sluiten van de overeenkomst en eindigt wanneer de overeengekomen duur is verstreken; (8) “Verzekeringsperiode” is het tijdsbestek waarvoor premie is verschuldigd overeenkomstig de afspraak tussen partijen; (9) “Dekkingsperiode” is het tijdsbestek waarvoor dekking bestaat. (10) “Verplichte verzekering” is een verzekering tot het sluiten waarvan de wet of enige publiekrechtelijke verordening verplicht.

Artikel 1:203 Taal en uitleg van documenten2 (1) Alle bescheiden die de verzekeraar schriftelijk verschaft, zijn duidelijk en begrijpelijk en verwoord in de taal waarin de onderhandelingen werden gevoerd. (2) Bij twijfel over de betekenis van de bewoordingen van enig door de verzekeraar verschaft document of verstrekte inlichting prevaleert de voor de verzekeringnemer, verzekerde of begunstigde gunstigste uitleg.

Artikel 1:204 Ontvangst van documenten en bewijs De last te bewijzen dat de verzekeringnemer documenten heeft ontvangen welke de verzekeraar hem dient te verschaffen, rust op de verzekeraar.

Artikel 1:205 Vorm van mededelingen Behoudens in geval van bijzondere in de PEICL opgenomen bepalingen, gelden voor mededelingen van de aanvrager, verzekeringnemer, verzekerde of de begunstigde betreffende de verzekeringsovereenkomst geen bijzondere vormvereisten.

Artikel 1:206 Toerekening van kennis Indien een persoon door de verzekeringnemer, de verzekerde of de begunstigde is belast met verantwoordelijkheden welke voor het sluiten of uitvoeren van de overeenkomst wezenlijk zijn, wordt relevante kennis die deze persoon heeft of in de vervulling van die verantwoordelijkheden behoort te hebben, aangemerkt als kennis van de verzekeringnemer, de verzekerde of de begunstigde.

Artikel 1:207 Non-discriminatie3 (1) Het hanteren van geslacht, zwangerschap, moederschap, nationaliteit en raciale of etnische afkomst als factoren bij de berekening van premies en uitkeringen mogen niet resulteren in verschillen in premies en uitkeringen voor individuele personen. (2) Bepalingen, met inbegrip van bepalingen omtrent de premie, die in strijd zijn met lid 1 binden de verzekeringnemer of de verzekerde niet. Behoudens het in lid 3 bepaalde duurt de overeenkomst voor partijen voort op basis van niet-discriminerende bepalingen. (3) In geval van schending van lid 1 is de verzekeringnemer gerechtigd de overeenkomst op te zeggen. De opzegging wordt de verzekeraar schriftelijk meegedeeld binnen twee maanden nadat de verzekeringnemer met de schending is bekend geworden.

Artikel 1:208 Genetisch onderzoek (1) De verzekeraar kan de verzekeringnemer of de persoon op wiens leven of gezondheid de verzekering wordt afgesloten, niet verplichten tot het ondergaan van een genetisch onderzoek of tot 2 3

Artikel 1:203 lid 2 is opgesteld naar het model van Artikel 5 van Richtlijn 93/13/EEG. Dit artikel is opgesteld naar het model van Richtlijn 2004/113/EG.

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het overleggen van de resultaten van een dergelijk onderzoek, noch mag hij daaruit verkregen informatie gebruiken bij de waardering van te verzekeren risico’s. (2) Het bepaalde in lid 1 is niet van toepassing op persoonsverzekering waarbij de verzekerde op wiens leven of gezondheid de verzekering wordt afgesloten, de leeftijd van achttien jaar heeft bereikt en de verzekerde som voor deze verzekerde meer dan 300.000 euro bedraagt, dan wel het jaarlijks uit te keren bedrag meer dan 30.000 euro bedraagt.

Afdeling Drie: Handhaving Artikel 1:301 Inbreuken op de bescherming van consumentenbelangen4 (1) Een bevoegde instantie in de zin van lid 2 is gerechtigd zich te wenden tot een bevoegd nationaal gerecht of een bevoegde autoriteit teneinde een beslissing te verzoeken, welke de schending van de PEICL verbiedt of de beëindiging daarvan gelast, indien en voorzover de PEICL van toepassing zijn overeenkomstig artikel 1:102. (2) Een bevoegde instantie is elk lichaam of elke organisatie op de lijst, welke is opgesteld door de Europese Commissie in navolging van artikel 4 van de Richtlijn 2009/22/EG van het Europees Parlement en de Raad van 23 april 2009 betreffende het doen staken van inbreuken in het raam van de bescherming van de consumentenbelangen, zoals gewijzigd.

Artikel 1:302 Buitengerechtelijke klachteninstanties Toepassing van de PEICL sluit de toegang tot andere buitengerechtelijke instanties voor behandeling van klachten die de verzekeringnemer, verzekerde of de begunstigde ter beschikking staan, niet uit.

Hoofdstuk Twee: Het sluiten en de duur van de overeenkomst Afdeling Een: De mededelingsplicht bij het aangaan van de verzekeringsovereenkomst Artikel 2:101 Omvang van de mededelingsplicht (1) Bij het sluiten van de overeenkomst is de aanvrager verplicht de verzekeraar omstandigheden mee te delen die hij kent of behoort te kennen en die onderwerp zijn van heldere en nauwkeurige vragen welke de verzekeraar hem heeft gesteld. (2) De in lid 1 bedoelde omstandigheden omvatten mede die omstandigheden die een onder de verzekering mee te verzekeren derde bekend waren of behoorden te zijn.

Artikel 2:102 Rechtsgevolgen bij niet-nakoming voor inhoud en bestaan van de overeenkomst en recht op uitkering (1) Ingeval de verzekeringnemer artikel 2:101 schendt, is de verzekeraar, behoudens het in de leden 2 tot 5 bepaalde, gerechtigd een redelijke wijziging van de overeenkomst voor te stellen of de overeenkomst op te zeggen. Te dien einde deelt de verzekeraar zijn voornemen binnen een maand nadat de schending van artikel 2:101 hem bekend of kenbaar is geworden, schriftelijk mede, vergezeld van informatie omtrent de juridische gevolgen van zijn beslissing. (2) Indien de verzekeraar een redelijke wijziging voorstelt, bestaat de overeenkomst op basis van de voorgestelde wijziging voort, tenzij de verzekeringnemer het voorstel binnen een maand na 4

Dit artikel is opgesteld naar het model van Richtlijn 2009/22/EG.

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ontvangst van de in lid 1 bedoelde mededeling afwijst. In dat geval is de verzekeraar gerechtigd de overeenkomst op te zeggen binnen een maand na ontvangst van de schriftelijke mededeling inhoudende de afwijzing door de verzekeringnemer. (3) De verzekeraar is niet gerechtigd de overeenkomst op te zeggen indien de verzekeringnemer artikel 2:101 buiten zijn schuld schendt, tenzij de verzekeraar bewijst dat hij de overeenkomst niet zou hebben gesloten wanneer hij de ware stand van zaken had gekend. (4) De opzegging van de overeenkomst wordt een maand nadat de verzekeringnemer de in lid 1 bedoelde schriftelijke mededeling heeft ontvangen, van kracht. Een wijziging van de overeenkomst wordt van kracht overeenkomstig hetgeen partijen zijn overeengekomen. (5) Indien een verzekerd voorval wordt veroorzaakt door een omstandigheid welke het voorwerp is van een verwijtbare schending van de mededelingsplicht door de verzekeringnemer en intreedt voordat de opzegging of een wijziging van kracht wordt, is geen verzekeringsuitkering verschuldigd indien de verzekeraar de overeenkomst niet zou hebben gesloten wanneer hij de betreffende omstandigheid had gekend. Indien echter de verzekeraar de overeenkomst tegen een hogere premie of onder andere voorwaarden zou hebben gesloten, is de verzekeringsuitkering verschuldigd naar evenredigheid of in overeenstemming met die andere voorwaarden.

Artikel 2:103 Beperkingen omvang van mededelingsplicht De in artikel 2:102 vermelde sancties missen toepassing ter zake van: (a) een vraag die onbeantwoord is gebleven, of verschafte informatie die kenbaar onvolledig of onjuist was; (b) feiten die hadden moeten worden meegedeeld of feiten die onjuist zijn medegedeeld, welke niet wezenlijk zijn voor de beslissing van een redelijk handelend verzekeraar om de overeenkomst niet of niet onder de overeengekomen voorwaarden af te sluiten; (c) feiten waaromtrent de verzekeraar de verzekeringnemer aanleiding gaf te veronderstellen dat deze niet behoefden te worden meegedeeld; of (d) feiten die de verzekeraar bekend waren of behoorden te zijn.

Artikel 2:104 Bedrog Onverminderd de sancties onder artikel 2:102 is de verzekeraar gerechtigd de overeenkomst te vernietigen met behoud van het recht op opeisbare premie, indien de bedrieglijke schending van artikel 2:101 door de verzekeringnemer hem ertoe heeft gebracht de overeenkomst te sluiten. De vernietiging wordt de verzekeringnemer schriftelijk meegedeeld binnen twee maanden nadat de verzekeraar met het bedrog is bekend geworden.

Artikel 2:105 Aanvullende (spontane) mededelingsplicht De artikelen 2:102-2:104 zijn mede van toepassing op alle inlichtingen die de verzekeringnemer bij het sluiten van de overeenkomst verschaft in aanvulling op die ingevolge artikel 2:101.

Arikel 2:106 Genetische informatie Deze afdeling is niet van toepassing op de uitkomsten van genetisch onderzoek, waarop artikel 1:208 lid 1 ziet.

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Afdeling Twee: Precontractuele verplichtingen van de verzekeraar Artikel 2:201 Terhandstelling van precontractuele documenten5 (1) De verzekeraar verschaft de aanvrager een kopie van de voorgestelde contractuele voorwaarden alsmede een document, welke, voorzover van belang, de volgende informatie bevat: (a) de naam en het adres van de contractspartijen, in het bijzonder van het hoofdkantoor en de rechtsvorm van de verzekeraar en, in voorkomend geval, van het bijkantoor waarmee de overeenkomst wordt gesloten; (b) de naam en het adres van de verzekerde, de begunstigde en de persoon op wiens leven of gezondheid de verzekering wordt afgesloten; (c) de naam en het adres van de verzekeringsagent; (d) het voorwerp van verzekering en de gedekte risico’s; (e) de verzekerde som en eigen risico(’s); (f) de hoogte van de premie en de methode van berekening daarvan; (g) het tijdstip waarop de premie opeisbaar wordt alsmede de plaats en wijze van betaling; (h) de verzekeringsduur, daaronder begrepen de wijze van opzegging van de verzekering, en de dekkingsperiode; (i) het recht de aanvraag te herroepen of de overeenkomst te vernietigen overeenkomstig artikel 2:303 bij schadeverzekering en artikel 17:203 bij levensverzekering; (j) de toepasselijkheid van de PEICL op de verzekeringsovereenkomst; (k) het bestaan van buitengerechtelijke klachteninstanties voor de aanvrager en de methoden om hiertoe toegang te verkrijgen; (l) het bestaan van waarborgfondsen of andere compensatieregelingen. (2) Voorzover mogelijk wordt deze informatie zo tijdig verschaft dat de aanvrager in staat is (op basis daarvan) te overwegen de overeenkomst al dan niet te sluiten. (3) Ingeval de aanvrager verzekeringsdekking aanvraagt op basis van een door de verzekeraar verschaft aanvraagformulier en/of vragenlijst, stelt de verzekeraar de aanvrager een kopie van de ingevulde documenten ter hand.

Artikel 2:202 Waarschuwingsplicht betreffende leemtes in de dekking (1) Bij het sluiten van de overeenkomst wijst de verzekeraar de aanvrager op elke afwijking tussen de geboden dekking en de dekkingsbehoeften van de aanvrager van welke de verzekeraar op de hoogte is of behoort te zijn, een en ander met inachtneming van de omstandigheden van het geval en de wijze van sluiting en met name het feit of de aanvrager werd bijgestaan door een onafhankelijke tussenpersoon. (2) In geval van schending van het in lid 1 bepaalde (a) stelt de verzekeraar de verzekeringnemer schadeloos voor alle schade welke uit de schending van de waarschuwingsplicht voortvloeit, tenzij de verzekeraar buiten zijn schuld heeft gehandeld, en (b) heeft de verzekeringnemer het recht de overeenkomst op te zeggen door schriftelijke mededeling binnen twee maanden nadat de verzekeringnemer met de schending bekend wordt.

5

Dit artikel is opgesteld naar het model van de artikelen 183-189 van Richtlijn 2009/138/EG (Solvency II).

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Artikel 2:203 Waarschuwingsplicht betreffende de aanvang van dekking Indien de aanvrager er redelijkerwijze doch abusievelijk van uitgaat dat de dekking aanvangt op het tijdstip waarop de aanvraag is ingediend en de verzekeraar van deze veronderstelling op de hoogte is of behoort te zijn, stelt de verzekeraar de aanvrager, voorzover geen voorlopige dekking werd verleend, onmiddellijk op de hoogte dat de dekking eerst begint wanneer de overeenkomst is gesloten en, indien van toepassing, de eerste premie is voldaan. Indien de verzekeraar de waarschuwingsplicht schendt, is hij aansprakelijk overeenkomstig artikel 2:202 lid 2 (a).

Afdeling Drie: Sluiting van de overeenkomst Artikel 2:301 (Vormvrije) wijze van sluiting Een verzekeringsovereenkomst behoeft schriftelijk te worden gesloten of bevestigd noch aan enige andere vormvereisten te voldoen. De overeenkomst kan door alle middelen worden bewezen, met inbegrip van getuigenverklaringen.

Artikel 2:302 Herroeping van een verzekeringsaanvraag Een verzekeringsaanvraag kan door de aanvrager worden herroepen, indien zijn herroeping de verzekeraar bereikt voordat de aanvrager een aanvaardingsverklaring van de verzekeraar ontvangt.

Artikel 2:303 Afkoelingsperiode6 (1) De verzekeringnemer is gerechtigd de overeenkomst te vernietigen door een schriftelijke mededeling binnen twee weken na ontvangst van de aanvaardingsverklaring of de overhandiging van de documenten als bedoeld in artikel 2:501, al naargelang hetgeen later intreedt. (2) De verzekeringnemer is niet gerechtigd de overeenkomst te vernietigen ingeval (a) de duur van de overeenkomst minder dan een maand bedraagt; (b) de overeenkomst is verlengd overeenkomstig artikel 2:602; (c) het handelt om een voorlopige dekking, een aansprakelijkheidsverzekering of een groepsverzekering.

Artikel 2:304 Onredelijk bezwarende bedingen7 (1) Een beding dat niet individueel is overeengekomen, bindt de verzekeringnemer, de verzekerde of de begunstigde niet indien zij in strijd met maatstaven van redelijkheid en billijkheid en met inachtneming van de aard van de verzekeringsovereenkomst, alle andere contractsbepalingen en de omstandigheden van het geval ten tijde van het sluiten van de overeenkomst, het evenwicht tussen de uit de overeenkomst voortvloeiende rechten en verplichtingen van partijen ten nadele van de verzekeringnemer, de verzekerde of de begunstigde aanzienlijk verstoort. (2) De overeenkomst behoudt haar werking, indien zij zonder het onredelijk bezwarend beding kan blijven voortbestaan. Indien niet, dan kan het onredelijk bezwarend beding worden vervangen door een beding dat redelijke partijen zouden zijn overeengekomen wanneer zij het onredelijk bezwarend karakter van het beding hadden gekend. (3) Dit artikel is van toepassing op bepalingen die de dekking beperken of wijzigen. De beoordeling van het onredelijk bezwarend karakter heeft echter geen betrekking op (a) de gelijkwaardigheid van enerzijds de dekking en anderzijds de geboden dekking, noch op 6 7

Dit artikel is opgesteld naar het model van Richtlijn 2002/65/EG. Dit artikel is opgesteld naar het model van Richtlijn 93/13/EEG.

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(b) bedingen die een primaire beschrijving geven van de geboden dekking of de bedongen premie, mits het beding duidelijk en begrijpelijk is geformuleerd. (4) Een beding wordt steeds geacht niet het voorwerp van afzonderlijke onderhandeling te zijn geweest wanneer het, met name in het kader van een toetredingsovereenkomst van tevoren is opgesteld en de verzekeringnemer dientengevolge geen invloed op de inhoud daarvan heeft kunnen uitoefenen. Het gegeven dat sommige onderdelen van een beding of een afzonderlijk beding het voorwerp zijn geweest van een afzonderlijke onderhandeling sluit de toepassing van dit artikel op het overige van een overeenkomst niet uit, indien een globale beoordeling leidt tot de conclusie dat het niettemin een toetredingsovereenkomst betreft. Indien een verzekeraar stelt dat een standaardbeding voorwerp van afzonderlijke onderhandeling is geweest, dan rust de bewijslast daarvan op de verzekeraar.

Afdeling Vier: Verzekering met terugwerkende kracht en voorlopige dekking Artikel 2:401 Dekking met terugwerkende kracht (1) Indien de verzekeraar dekking biedt voor een periode vóór het sluiten van de overeenkomst (dekking met terugwerkende kracht), en bij het sluiten weet dat er in die periode geen verzekerd risico is ingetreden, is de verzekeringnemer slechts premies verschuldigd voor de periode na het tijdstip van sluiting. (2) Indien de verzekeringnemer, in geval van dekking met terugwerkende kracht, bij het sluiten van de overeenkomst weet dat het verzekerde voorval reeds is ingetreden, verleent de verzekeraar, behoudens het in artikel 2:104 bepaalde, slechts dekking voor de periode na het tijdstip waarop de overeenkomst is gesloten.

Artikel 2:402 Voorlopige dekking (1) Bij sluiting van een verzekeringsovereenkomst die voorlopige dekking verleent, geeft de verzekeraar een dekkingsbevestiging af die, voorzover van belang, de in artikel 2:501 (a), (b), (d), (e) en (h) nader aangeduide gegevens bevat. (2) Artikel 2:201-2:203 en, behoudens het in lid 1 bepaalde, artikel 2:501 missen toepassing op voorlopige dekking.

Artikel 2:403 Duur van voorlopige dekking (1) Ingeval een aanvrager van een verzekeringsovereenkomst voorlopige dekking wordt verleend, eindigt die dekking niet eerder dan op het tijdstip waarop de dekking volgens deze overeenkomst zal beginnen of op het tijdstip waarop de aanvrager de mededeling van de verzekeraar ontvangt, dat deze de aanvraag definitief afwijst. (2) Ingeval voorlopige dekking wordt verleend aan een persoon die niet bij dezelfde verzekeraar een verzekeringsovereenkomst heeft aangevraagd, kan dekking worden verleend voor een kortere periode dan vermeld in artikel 2:601 lid 1. De dekking kan door elk der partijen met inachtneming van een termijn van twee weken worden opgezegd.

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Afdeling Vijf: Verzekeringspolis Artikel 2:501 Afgifte en inhoud van polis Bij het sluiten van de verzekeringsovereenkomst geeft de verzekeraar een verzekeringspolis af tezamen met de algemene verzekeringsbepalingen voorzover deze niet in de polis zijn opgenomen, welke, voorzover van belang, de volgende informatie bevat: (a) de naam en het adres van de contractspartijen , in het bijzonder van het hoofdkantoor en de rechtsvorm van de verzekeraar en, in voorkomend geval, van het bijkantoor waarmee de overeenkomst wordt gesloten; (b) de naam en het adres van de verzekerde en – bij levensverzekering – de begunstigde en de persoon op wiens leven of gezondheid de verzekering wordt afgesloten; (c) de naam en het adres van de tussenpersoon; (d) het voorwerp van verzekering en de gedekte risico’s; (e) de verzekerde som en eigen risico(’s); (f) de hoogte van de premie of de methode van berekening; (g) het tijdstip waarop de premie opeisbaar wordt alsmede de plaats en wijze van betaling; (h) de verzekeringsduur, daaronder begrepen de wijze van opzegging van de verzekering, en de dekkingsperiode; (i) het recht de aanvraag te herroepen of de overeenkomst te vernietigen overeenkomstig artikel 2:303 bij schadeverzekering en artikel 17:203 bij levensverzekering; (j) de toepasselijkheid van de PEICL op de verzekeringsovereenkomst; (k) het bestaan van buitengerechtelijke klachteninstanties en de methoden om hiertoe toegang te verkrijgen; (l) het bestaan van waarborgfondsen of andere compensatieregelingen.

Artikel 2:502 Discrepanties tussen geboden en aangevraagde dekking (1) Indien de bepalingen van de verzekeringspolis afwijken van die in de aanvraag van de verzekeringnemer of enige eerdere overeenkomst tussen partijen worden de in de polis gemarkeerde afwijkingen geacht door de verzekeringnemer te zijn aanvaard, tenzij deze binnen een maand na ontvangst van de polis bezwaar maakt. De verzekeraar wijst de verzekeringnemer in vetgedrukte letters op het recht de in de polis gemarkeerde afwijkingen af te wijzen. (2) Indien de verzekeraar het in lid 1 bepaalde niet naleeft, wordt de overeenkomst geacht te zijn overeengekomen onder de voorwaarden van de aanvraag van de verzekeringnemer of een eerdere overeenkomst van partijen.

Afdeling Zes: Duur van de verzekeringsovereenkomst Artikel 2:601 Duur van de verzekeringsovereenkomst (1) De duur van de verzekeringsovereenkomst bedraagt een jaar. Partijen kunnen een ander tijdsbestek overeenkomen, indien zulks uit de aard van het risico voortvloeit. (2) Lid 1 is niet van toepassing op persoonsverzekering.

Artikel 2:602 (Stilzwijgende) verlenging (1) Nadat de in artikel 2:601 bedoelde periode van een jaar is verstreken, wordt de overeenkomst verlengd, tenzij

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(a) de verzekeraar uiterlijk een maand vóór het verstrijken van de verzekeringsduur het tegendeel schriftelijk heeft meegedeeld en daarbij de redenen voor zijn beslissing heeft vermeld; of (b) de verzekeringnemer uiterlijk op de dag waarop de duur van de overeenkomst verstrijkt of binnen een maand na ontvangst van de premienota, al naar gelang hetgeen later intreedt, het tegendeel heeft meegedeeld. In het laatste geval begint de termijn van een maand slechts te lopen, ingeval deze op de nota duidelijk in vetgedrukte letters was vermeld. (2) In het kader van het in lid 1 (b) bepaalde wordt de mededeling geacht te zijn gedaan zodra zij is verzonden.

Artikel 2:603 (Tussentijdse) wijziging van voorwaarden en/of premie (1) In een verzekeringsovereenkomst welke vatbaar is voor verlenging onder artikel 2:602 is een beding, dat de verzekeraar toestaat de premie of andere verzekeringsvoorwaarden (tussentijds) te wijzigen nietig, tenzij het beding bepaalt dat (a) een wijziging eerst met ingang van de volgende verlenging gevolg heeft, (b) de verzekeraar de verzekeringnemer ten minste een maand vóór het verstrijken van de lopende verzekeringsduur een schriftelijke mededeling omtrent de wijziging toezendt, en (c) de mededeling de verzekeringnemer informeert omtrent zijn opzeggingsrecht en de gevolgen indien dit recht niet wordt uitgeoefend. (2) Lid 1 is van toepassing onverminderd andere vereisten voor de geldigheid van wijzigingsclausules.

Artikel 2:604 (Tussentijdse) opzegging na verwezenlijking van een verzekerd risico (1) Een beding dat toestaat de verzekering na de verwezenlijking van het risico op te zeggen, is niet geldig tenzij (a) het opzeggingsrecht aan beide partijen toekomt en (b) het niet om een persoonsverzekering handelt. (2) Het opzeggingsrecht wordt uitgeoefend op een redelijke wijze. (3) Het recht van opzegging vervalt, indien de betrokken partij dat recht tegenover haar wederpartij niet schriftelijk heeft uitgeoefend binnen twee maanden nadat de verwezenlijking van het verzekerd risico te harer kennis is gekomen. (4) De verzekeringsdekking eindigt twee weken na afgifte van de in lid 3 bedoelde opzeggingsmededeling.

Afdeling Zeven: Postcontractuele informatieplicht van de verzekeraar Artikel 2:701 Algemene informatieplicht Tijdens de verzekeringsduur verschaft de verzekeraar de verzekeringnemer onverwijld schriftelijke inlichtingen omtrent elke wijziging betreffende zijn naam en adres, zijn rechtsvorm, het adres van zijn hoofdkantoor en van de vestiging welke de overeenkomst heeft gesloten.

Artikel 2:702 Aanvullende informatie op verzoek (1) Op verzoek van de verzekeringnemer verschaft de verzekeraar de verzekeringnemer onverwijld informatie betreffende

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(a) alle aangelegenheden die van belang zijn voor de nakoming van de overeenkomst, voorzover dit redelijkerwijze van de verzekeraar kan worden verwacht; (b) nieuwe standaardbepalingen die de verzekeraar aanbiedt in verzekeringsovereenkomsten van hetzelfde type als degene die hij met de verzekeringnemer heeft gesloten. (2) Zowel het verzoek van de verzekeringnemer als het antwoord van de verzekeraar geschiedt schriftelijk.

Hoofdstuk Drie: Verzekeringsagenten Artikel 3:101 Bevoegdheden van verzekeringsagenten (1) Een verzekeringsagent is gevolmachtigd namens de verzekeraar alle handelingen te verrichten welke volgens de huidige verzekeringspraktijk binnen zijn werkterrein vallen. Enige beperking aan de volmacht van de agent wordt in een afzonderlijk document op heldere wijze ter kennis van de verzekeringnemer gebracht. De volmacht van de verzekeringsagent bestrijkt echter ten minste zijn feitelijk werkterrein. (2) De volmacht van de verzekeringsagent omvat in ieder geval de bevoegdheid (a) de verzekeringnemer te informeren en adviseren; (b) mededelingen van de verzekeringnemer in ontvangst te nemen. (3) Relevante kennis die de verzekeringsagent heeft of in de uitoefening van zijn werkzaamheden behoort te hebben, wordt als kennis van de verzekeraar aangemerkt.

Artikel 3:102 Onafhankelijkheid voorwendende verzekeringsagenten Indien een loondienstverzekeringsagent zich presenteert als een onafhankelijke tussenpersoon en in de uitoefening van zijn werkzaamheden verplichtingen schendt die de wet aan dergelijke onafhankelijke tussenpersonen oplegt, is de verzekeraar voor zulke schendingen aansprakelijk.

Hoofdstuk Vier: Het verzekerde risico Afdeling Een: Preventieve garanties Artikel 4:101 Definitie preventieve garantie Een preventieve garantie is een beding in de verzekeringsovereenkomst, al dan niet omschreven als een noodzakelijke voorwaarde voor aansprakelijkheid van de verzekeraar, welke van de verzekeringnemer en/of de verzekerde verlangt vóór de intrede van het risico bepaalde handelingen te doen of na te laten.

Artikel 4:102 Opzeggingsrecht van verzekeraar bij niet-nakoming (1) Een beding dat de verzekeraar de bevoegdheid geeft de overeenkomst op te zeggen in geval van niet-naleving van een preventieve garantie heeft geen gevolg, tenzij de verzekeringnemer en/of de verzekerde zijn verplichtingen heeft geschonden met opzet om schade te veroorzaken of door roekeloosheid en in de wetenschap dat schade waarschijnlijk zou intreden. (2) Het opzeggingsrecht wordt uitgeoefend door een schriftelijke mededeling aan de verzekeringnemer binnen een maand na het tijdstip waarop de niet-naleving van de preventieve garantie aan de verzekeraar bekend of kenbaar wordt. De dekking eindigt op het tijdstip van opzegging.

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Artikel 4:103 Verval van recht op uitkering bij niet-nakoming (1) Een beding dat bepaalt dat bij niet-naleving van een preventieve garantie het recht op uitkering geheel of gedeeltelijk vervalt, heeft slechts gevolg indien en voor zover de schade werd veroorzaakt door de niet-naleving van de verzekeringnemer en/of de verzekerde hetzij met opzet om schade te veroorzaken hetzij door roekeloosheid en in de wetenschap dat die schade waarschijnlijk zou intreden. (2) Behoudens een duidelijk beding op grond waarvan de verzekeringuitkering wordt verminderd naar evenredigheid van de mate van schuld, is de verzekerde onderscheidenlijk de verzekeringnemer gerechtigd tot de verzekeringsuitkering ten aanzien van schade veroorzaakt door onachtzame niet-naleving van een preventieve garantie.

Afdeling Twee: Risicoverzwaring Artikel 4:201 Bedingen omtrent verzwaring van het risico Indien de verzekeringsovereenkomst een beding bevat omtrent de verzwaring van het verzekerde risico heeft dit beding slechts gevolg wanneer de bedoelde risicoverzwaring wezenlijk (voor de beoordeling van het risico) is en van een in de verzekeringsovereenkomst nader omschreven aard.

Artikel 4:202 Meldingsplicht bij risicoverzwaring (1) Indien een beding omtrent het verzekerde risico de melding van een risicoverzwaring verlangt, geschiedt deze door de verzekeringnemer, de verzekerde of de begunstigde voorzover deze persoon op de hoogte was of behoorde te zijn van het bestaan van de verzekeringsdekking en de risicoverzwaring. Melding door een andere persoon heeft (eveneens) rechtskracht. (2) Indien de overeenkomst vereist dat melding binnen een bepaald tijdsbestek geschiedt, is deze termijn redelijk. De mededeling wordt met verzending van kracht. (3) De verzekeraar is niet gerechtigd de uitkering voor schade welke voortvloeit uit een voorval dat binnen het dekkingsbereik valt en niet veroorzaakt is door de risicoverzwaring op grond van de enkele schending van de meldingsplicht te weigeren, tenzij de schade het gevolg was van die schending.

Artikel 4:203 Opzeggingsrecht van de verzekeraar bij niet-nakoming (1) Indien de overeenkomst bepaalt dat de verzekeraar gerechtigd is de overeenkomst op te zeggen in geval van een verzwaring van het verzekerde risico, wordt dat recht uitgeoefend door een schriftelijke mededeling aan de verzekeringnemer binnen een maand na het tijdstip waarop de verzwaring aan de verzekeraar bekend of kenbaar wordt. (2) De dekking vervalt een maand na opzegging of, indien de verzekeringnemer de meldingsplicht uit artikel 4:202 opzettelijk schendt, op het tijdstip van opzegging. (3) Indien een verzekerd voorval wordt veroorzaakt door een risicoverzwaring, die de verzekeringnemer kent of behoort te kennen, vóórdat de dekking is vervallen, is geen verzekeringsuitkering verschuldigd indien de verzekeraar het verzwaarde risico in het geheel niet zou hebben verzekerd. Indien echter de verzekeraar het verzwaarde risico tegen een hogere premie of onder andere voorwaarden zou hebben verzekerd, is de verzekeringsuitkering verschuldigd naar evenredigheid of in overeenstemming met dergelijke voorwaarden.

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Afdeling Drie: Risicovermindering Artikel 4:301 Rechtsgevolgen van risicovermindering (1) Bij een wezenlijke vermindering van het risico is de verzekeringnemer gerechtigd een evenredige vermindering van de premie voor de resterende verzekeringsduur te verlangen. (2) Indien de partijen niet binnen een maand na indiening van het verzoek overeenstemming bereiken over een evenredige vermindering, is de verzekeringnemer gerechtigd de overeenkomst op te zeggen door een schriftelijke mededeling binnen twee maanden na indiening van het verzoek.

Hoofdstuk Vijf: Verzekeringspremie Artikel 5:101 Eerste of eenmalige premie Wanneer de voldoening van de eerste of eenmalige premie een voorwaarde is voor het sluiten van de overeenkomst of de aanvang van de dekking, heeft deze voorwaarde geen gevolg tenzij (a) de voorwaarde aan de aanvrager schriftelijk in duidelijke taal wordt meegedeeld en de aanvrager erop wordt gewezen dat dekking ontbreekt totdat de premie is betaald en (b) een periode van twee weken is verstreken na het ontvangst van een nota die de onder (a) genoemde gegevens bevat en betaling is uitgebleven.

Artikel 5:102 Vervolgpremie (1) Een beding dat de verzekeraar bevrijdt van zijn verplichting tot dekking van het risico kan niet worden ingeroepen in geval van niet-betaling van een vervolgpremie tenzij (a) de verzekeringnemer een nota ontvangt die zowel de precieze hoogte van de opeisbare premie als de vervaldatum aangeeft; (b) de verzekeraar de verzekeringnemer na het opeisbaar worden van de premie een aanmaning toezendt die de precieze hoogte van opeisbare premie vermeldt, een aanvullende betalingstermijn van ten minste twee weken stelt alsmede een waarschuwing bevat dat de dekking wordt geschorst indien betaling uitblijft; en (c) de aanvullende termijn onder (b) verstrijkt en betaling is uitgebleven. (2) De verzekeraar wordt van aansprakelijkheid ontheven nadat de in lid 1 (b) genoemde aanvullende termijn is verstreken. De verzekeringsdekking herleeft voor de toekomst zodra de verzekeringnemer het uitstaande bedrag betaalt, tenzij de overeenkomst is opgezegd overeenkomstig artikel 5:103.

Artikel 5:103 Opzegging van de overeenkomst (1) Ingeval de in artikel 5:101 (b) of artikel 5:102 lid 1 (b) bedoelde periode is verstreken en betaling van de premie achterwege is gebleven, is de verzekeraar gerechtigd de verzekering door een schriftelijke mededeling op te zeggen, mits de door artikel 5:101 (b) verlangde nota of de door artikel 5:102 lid 1 (b) verlangde aanmaning het opzeggingsrecht van de verzekeraar vermeldt. (2) De overeenkomst wordt geacht te zijn opgezegd, indien de verzekeraar geen rechtsvordering instelt wegens niet-betaling (a) van een eerste premie binnen twee maanden na afloop van de in artikel 5:101 (b) genoemde periode;

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(b) van een vervolgpremie binnen twee maanden na afloop van de in artikel 5:102 lid 1 (b) genoemde periode.

Artikel 5:104 Deelbaarheid van premie Indien een verzekeringsovereenkomst wordt opgezegd vóórdat de duur van de overeenkomst is versteken, heeft de verzekeraar slechts aanspraak op premie ten aanzien van de vóór de opzegging van de overeenkomst liggende periode.

Artikel 5:105 Premiebetaling door een derde De verzekeraar kan een (bevrijdende) betaling door een derde niet weigeren indien (a) de derde handelt met toestemming van de verzekeringnemer; of (b) de derde een gerechtvaardigd belang bij het behoud van de dekking heeft en de verzekeringnemer niet heeft betaald of het duidelijk is dat deze niet zal betalen op het tijdstip waarop de betaling verschuldigd wordt.

Hoofdstuk Zes: Verzekerd voorval Artikel 6:101 Meldingsplicht (1) De verwezenlijking van een verzekerd risico wordt door de verzekeringnemer, de verzekerde of de begunstigde aan de verzekeraar gemeld, mits de tot melding verplichte persoon bekend was of behoorde te zijn met het bestaan van de verzekeringsdekking en de verwezenlijking van het risico. Melding door een andere persoon heeft (eveneens) rechtskracht. (2) Melding geschiedt onverwijld. Zij wordt met verzending van kracht. Indien de overeenkomst verlangt dat melding binnen een bepaald tijdsbestek wordt gegeven, is deze termijn redelijk en bedraagt deze in geen geval minder dan vijf dagen. (3) De verschuldigde verzekeringsuitkering wordt verminderd in de mate waarin de verzekeraar bewijst dat hij door onnodige vertraging is benadeeld.

Artikel 6:102 Medewerkings- en informatieplicht (1) De verzekeringnemer, verzekerde of begunstigde werken met de verzekeraar samen bij het onderzoek naar het verzekerde voorval door gehoor te geven aan redelijke oproepen, met name betreffende – inlichtingen over de oorzaken en gevolgen van het verzekerde voorval; – gegevens of ander bewijsmateriaal omtrent het verzekerde voorval; – toegang tot daarmee verband houdende percelen en gebouwen. (2) In geval van schending van lid 1 wordt, behoudens het in lid 3 bepaalde, de verschuldigde verzekeringsuitkering verminderd in de mate waarin de verzekeraar bewijst dat hij door de schending is benadeeld. (3) Ingeval lid 1 werd geschonden met het opzet schade te veroorzaken of door roekeloosheid en in de wetenschap dat dergelijke schade waarschijnlijk zou intreden, is de verzekeraar niet verplicht de verzekeringsuitkering te doen.

Artikel 6:103 Aanvaarding van vorderingen tot uitkering (1) De verzekeraar neemt alle passende maatregelen om een vordering zo snel mogelijk af te wikkelen.

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(2) Een vordering uit uitkering wordt geacht te zijn geaccepteerd, tenzij de verzekeraar deze binnen een maand na ontvangst van de relevante gegevens en andere inlichtingen afwijst of de aanvaarding daarvan uitstelt bij schriftelijke mededeling onder vermelding van de redenen voor zijn besluit.

Artikel 6:104 Tijdstip van nakoming (1) Zodra de verzekeraar een vordering aanvaardt, verleent de verzekeraar de toegezegde prestatie(s) onverwijld. (2) Ook indien het op basis van een aanvaarde vordering verschuldigde bedrag nog niet voor het geheel kan worden vastgesteld maar de eiser ten minste een gedeelte toekomt, wordt dit gedeelte onverwijld voldaan of verstrekt. (3) Voldoening der verzekeringsuitkering onder lid 1 of lid 2 geschiedt niet later dan een week na de aanvaarding en waardebepaling van de vordering of een gedeelte daarvan.

Artikel 6:105 Vertraging in de nakoming8 (1) Indien de verzekeringsuitkering niet overeenkomstig artikel 6:104 is voldaan, heeft de eiser recht op rente over de verschuldigde som voor de periode tussen het opeisbaar worden van de uitkering en de voldoening daarvan en tegen de rentevoet die door de Europese Centrale Bank wordt gehanteerd voor haar meest recente basisherfinancieringstransactie vóór de eerste kalenderdag van het betreffende halfjaar vermeerderd met acht procentpunten. (2) De eiser heeft recht op schadevergoeding voor ieder niet door lid 1 gedekt vermogensnadeel, veroorzaakt door vertraging in de nakoming van de uitkeringsverplichting.

Hoofdstuk Zeven: Verjaring Artikel 7:101 Vordering tot premiebetaling De vordering tot betaling van premie verjaart na een periode van één jaar vanaf het tijdstip waarop betaling verschuldigd wordt.

Artikel 7:102 Vordering tot uitkering (1) In het algemeen verjaart de vordering tot voldoening van de verzekeringsuitkering door verloop van een periode van drie jaren vanaf het tijdstip waarop de verzekeraar met betrekking tot de vordering een definitieve beslissing neemt of geacht moet worden te hebben genomen overeenkomstig artikel 6:103. In ieder geval verjaart de vordering uiterlijk door verloop van een periode van tien jaren vanaf de verwezenlijking van het risico, behoudens in het geval van levensverzekering voor welke de betreffende periode dertig jaar bedraagt. (2) De vordering tot uitkering van de afkoopwaarde van een levensverzekering verjaart door verloop van een periode van drie jaren vanaf het tijdstip waarop de verzekeringsnemer de definitieve afrekening van de verzekeraar ontvangt. In ieder geval verjaart de vordering uiterlijk door verloop van een periode van dertig jaar na opzegging van de levensverzekeringsovereenkomst.

8

Dit artikel is opgesteld naar het model van artikel 3 lid 1 (d) Richtlijn 2000/35/EG.

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Artikel 7:103 Overige verjaringskwesties Behoudens artikel 7:101 en artikel 7:102 van de PEICL, zijn de artikelen 14:101-14:503 van de “Principles of European Contract Law (PECL)”9 van toepassing op vorderingen welke voortvloeien uit een verzekeringsovereenkomst. De verzekeringsovereenkomst kan van deze voorschriften afwijken overeenkomstig artikel 1:103 lid 2 van de PEICL.

Deel Twee: Algemene bepalingen voor de schadeverzekering Hoofdstuk Acht: Verzekerde som en verzekerde waarde Artikel 8:101 Maximaal uit te keren som (1) De verzekeraar is niet verplicht meer uit te keren dan het bedrag benodigd om alle schade te vergoeden die de verzekerde werkelijk heeft geleden. (2) Een beding dat de tussen partijen overeengekomen waarde van het verzekerde voorwerp bepaalt, is ook dan geldig indien de genoemde waarde de feitelijke waarde van het verzekerde voorwerp overschrijdt, mits geen sprake was van bedrog of onjuiste opgave aan de zijde van de verzekeringnemer of verzekerde op het tijdstip waarop de waarde werd overeengekomen.

Artikel 8:102 Onderverzekering (1) De verzekeraar is aansprakelijk voor alle verzekerde schade tot het beloop van de verzekerde som ook indien de verzekerde som minder bedraagt dan de waarde van de verzekerde zaak op het tijdstip waarop het verzekerde voorval intreedt. (2) Ingeval echter de verzekeraar overeenkomstig lid 1 dekking aanbiedt, komt hem daarnaast het recht toe verzekeringsdekking aan te bieden op de grondslag dat de verschuldigde schadeloosstelling beperkt wordt naar de mate waarin de verzekerde som zich ten tijde van het intreden van de schade tot de feitelijke waarde van de zaak verhoudt. In dat geval worden de bereddingskosten, als omschreven in artikel 9:102, naar evenredigheid vergoed.

Artikel 8:103 Vermindering verzekerde som en premie bij oververzekering (1) Indien de verzekerde som de maximaal te vergoeden schade onder de verzekering overschrijdt, is elk der partijen gerechtigd een vermindering te verlangen van de verzekerde som en een overeenkomstige vermindering van premie voor de resterende verzekeringsduur. (2) Indien de partijen geen overeenstemming bereiken over zulk een vermindering binnen een maand na indiening van het verzoek, is elk der partijen gerechtigd de overeenkomst op te zeggen.

Artikel 8:104 Meervoudige verzekering (1) Indien hetzelfde belang bij meer dan één verzekeraar afzonderlijk is verzekerd, is de verzekerde gerechtigd een vordering in te stellen jegens elk der verzekeraars of meerdere verzekeraars tot het bedrag benodigd om alle schade die de verzekerde werkelijk heeft geleden te vergoeden.

9

Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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(2) De verzekeraar tegen wie een vordering is ingesteld, is tot uitkering gehouden tot het beloop van de verzekerde som onder de polis, alsmede tot vergoeding van de bereddingskosten, onverminderd het recht elke andere verzekeraar aan te spreken. (3) Tussen verzekeraars onderling staan de verplichtingen en rechten als bedoeld in lid 1 in verhouding tot de bedragen waarvoor zij afzonderlijk jegens de verzekerde aansprakelijk zijn.

Hoofdstuk Negen: Omvang van dekking Artikel 9:101 Eigen schuld (1) De verzekerde noch de verzekeringnemer is gerechtigd tot vergoeding van schade voor zover deze is veroorzaakt door een handelen of nalaten zijnerzijds met het opzet om de schade te veroorzaken of door roekeloosheid en in de wetenschap dat deze schade waarschijnlijk zou intreden. (2) Behoudens een duidelijk polisbeding dat voorziet in vermindering van de verzekeringsuitkering naar evenredigheid van de mate van zijn schuld heeft de verzekerde onderscheidenlijk de verzekeringnemer een aanspraak op vergoeding ter zake van schade veroorzaakt door een onachtzaam handelen of nalaten zijnerzijds. (3) In het kader van de leden 1-2 ziet eigen schuld mede op een tekortschieten in het voorkomen of het verminderen van schade.

Artikel 9:102 Kosten van bereddingsmaatregelen (1) De verzekeraar vergoedt de gemaakte kosten of het bedrag van door de verzekeringnemer of de verzekerde geleden schade bij het nemen van maatregelen teneinde de verzekerde schade te verminderen, voorzover de verzekeringnemer of de verzekerde de maatregelen onder de gegeven omstandigheden als redelijk mocht beschouwen, ook indien vermindering van schade uitbleef. (2) De verzekeraar stelt de verzekeringnemer of de verzekerde schadeloos voor alle kosten van of geleden schade als gevolg van overeenkomstig lid 1 genomen maatregelen, ook indien het verschuldigde bedrag tezamen met de vergoeding voor de verzekerde schade de verzekerde som overschrijdt.

Hoofdstuk Tien: Subrogatie Artikel 10:101 Subrogatie (1) Behoudens het in lid 3 bepaalde wordt de verzekeraar gesubrogeerd in de rechten van de verzekerde jegens een derde die voor de schade aansprakelijk is in zoverre hij de verzekerde schadeloos heeft gesteld. (2) Voorzover de verzekerde afstand doet van een recht jegens zulk een derde en de verzekeraar daardoor in zijn recht tegenover die derde benadeeld wordt, verwerkt hij zijn recht op schadeloosstelling ter zake van de betreffende schade. (3) De verzekeraar wordt niet gesubrogeerd in de rechten van de verzekerde jegens een lid uit het gezin van de verzekeringnemer of verzekerde of jegens een persoon die zich in een gelijkwaardige sociale verhouding tot de verzekeringnemer of verzekerde bevindt, of een werknemer van de verzekeringnemer of verzekerde, behoudens ingeval hij bewijst dat de schade door zulk een

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persoon werd veroorzaakt met opzet of door roekeloosheid en in de wetenschap dat schade waarschijnlijk zou intreden. (4) De verzekeraar oefent de vordering waarin hij is gesubrogeerd, niet ten nadele van de verzekerde uit.

Hoofdstuk Elf: Verzekering ten behoeve van een derde Artikel 11:101 Aanspraak van derde en herroeping van aanwijzing van derde (1) Ingeval de verzekering ten behoeve van een ander dan de verzekeringnemer wordt afgesloten, komt die ander (de verzekerde) de verzekeringsuitkering toe indien het verzekerde voorval intreedt. (2) De verzekeringnemer is gerechtigd de dekking ten behoeve van een derde te herroepen, tenzij (a) de polis anders bepaalt; of (b) het verzekerde risico is ingetreden. (3) De herroeping wordt van kracht zodra zij de verzekeraar schriftelijk is meegedeeld.

Artikel 11:102 Toerekening van kennis van derde Kennis van een overeenkomstig artikel 11:101 verzekerde persoon wordt de verzekeringnemer niet toegerekend, tenzij deze persoon op de hoogte is van zijn status als verzekerde op het tijdstip waarop de verzekeringnemer verplicht is de verzekeraar relevante inlichtingen te verschaffen.

Artikel 11:103 Schending van plichten door één verzekerde Schending van plichten door één verzekerde tast de rechten van andere onder dezelfde verzekeringsovereenkomst verzekerde personen niet aan, tenzij het risico gezamenlijk is verzekerd.

Hoofdstuk Twaalf: Verzekerd risico Artikel 12:101 Ontbreken van verzekerd risico (1) Indien het verzekerde risico bij het aangaan van de overeenkomst noch op enig tijdstip gedurende de verzekeringsperiode bestaat, is geen premie verschuldigd. De verzekeraar komt echter een redelijk bedrag voor de gemaakte kosten toe. (2) Indien het verzekerde risico gedurende de verzekeringsperiode ophoudt te bestaan, wordt de overeenkomst geacht te zijn beëindigd op het tijdstip dat de verzekeraar daaromtrent is bericht.

Artikel 12:102 Overgang van (eigendoms)belang (1) Indien het verzekerd belang bij een verzekerde zaak wordt overgedragen, eindigt de verzekeringsovereenkomst één maand na het tijdstip van overdracht, tenzij verzekeringnemer en verkrijger opzegging tegen een eerder tijdstip overeenkomen. Het voorgaande mist toepassing, indien de verzekeringsovereenkomst werd gesloten ten behoeve van een toekomstige verkrijger. (2) De verkrijger van de zaak wordt als verzekerde aangemerkt vanaf het tijdstip waarop het risico bij de verzekerde zaak werd overgedragen. (3) De leden 1 en 2 missen toepassing (a) indien verzekeraar, verzekeringsnemer en verkrijger anders overeenkomen; of (b) bij een overgang van het belang bij erfopvolging.

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Deel Drie: Algemene bepalingen voor de sommenverzekering Hoofdstuk Dertien: Toelaatbaarheid Artikel 13:101 Sommenverzekering Uitsluitend ongevallen-, ziektekosten-, levens-, bruilofts-, geboorte- of andere persoonsverzekeringen kunnen worden gesloten als sommenverzekering.

Deel Vier: De Aansprakelijkheidsverzekering Hoofdstuk Veertien: De Algemene Aansprakelijkheidsverzekering Artikel 14:101 Kosten van verweer De verzekeraar vergoedt de kosten van verweer in overeenstemming met artikel 9:102.

Artikel 14:102 Bescherming van de benadeelde Tenzij de benadeelde daartoe schriftelijk toestemming heeft verleend, doet geen enkele regeling met betrekking tot de vordering van de verzekerde met de verzekeraar afbreuk aan het recht op schadevergoeding van de benadeelde.

Artikel 14:103 Opzet of roekeloosheid (1) De verzekeringnemer noch de verzekerde is gerechtigd tot vergoeding van schade voor zover deze is veroorzaakt door een handelen of nalaten zijnerzijds met het opzet om de schade te veroorzaken; daaronder wordt mede begrepen het niet-voldoen aan door de verzekeraar gegeven instructies bij de verwezenlijking van het verzekerd risico indien sprake is van roekeloos handelen in de wetenschap dat schade anders daarvan waarschijnlijk het gevolg zou zijn. (2) In het kader van lid 1 ziet opzet en roekeloosheid mede op een tekortschieten in het voorkomen of het verminderen van schade. (3) Behoudens een duidelijk polisbeding dat voorziet in vermindering van de verzekeringsuitkering naar evenredigheid van de mate van zijn schuld, heeft de verzekerde onderscheidenlijk de verzekeringnemer een aanspraak op vergoeding ter zake van schade veroorzaakt door een onachtzaam handelen of nalaten in strijd met door de verzekeraar gegeven instructies bij de verwezenlijking van het verzekerd risico.

Artikel 14:104 Erkenning van aansprakelijkheid (1) Een beding dat de verzekeraar bevrijdt van zijn verplichtingen in geval de verzekerde onderscheidenlijk de verzekeringnemer de vordering tot schadevergoeding van een benadeelde erkent of voldoet, heeft geen gevolg. (2) Behoudens instemming van de verzekeraar, kan de laatste niet gehouden worden aan enige overeenkomst tussen de benadeelde en de verzekerde onderscheidenlijk de verzekeringnemer.

Artikel 14:105 Overdracht Een beding dat dat verzekerde het recht om een aanspraak op dekking onder de polis over te dragen, heeft geen gevolg.

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Artikel 14:106 No-Claims-Bonus / Bonus-Malus-Systeem (1) De verzekeringnemer heeft te allen tijde het recht op een overzicht van de door hem in de laatste vijf jaar bij de verzekeraar ingediende aanspraken op dekking. (2) Indien de verzekeraar de premiestelling of de dekking anderzins afhankelijk doet zijn van het aantal of de omvang van ingediende en betaalde vorderingen onder de polis, is hij gehouden mede rekening te houden met de door hem in de laatste vijf jaar bij andere verzekeraars ingediende aanspraken op dekking.

Artikel 14:107 Verzekerd voorval (1) Onder het verzekerd voorval wordt verstaan de schadegebeurtenis die aanleiding geeft tot de aansprakelijkheid van de verzekerde en die voorvalt tijdens de duur van de verzekeringsovereenkomst tenzij partijen in een bedrijfs- of beroepsaansprakelijkheidsverzekeringsovereenkomst hebben gekozen voor andere omschrijving op basis van bijvoorbeeld het tijdstip waarop de benadeelde een vordering tot schadevergoeding indient. (2) Indien partijen overeenkomstig lid 1 hebben gekozen voor een aansprakelijkheidsverzekering op basis van het tijdstip waarop de benadeelde een vordering tot schadevergoeding indient, wordt dekking geboden voor vorderingen ingediend tijdens de looptijd van de verzekering of tijdens een uitlooptermijn van tenminste vijf jaar en gebaseerd op een schadegebeurtenis voorgevallen voor het einde van de looptijd van de verzekering. De verzekering behoeft niet te dekken vorderingen gebaseerd op omstandigheden waarvan in redelijkheid kan worden aangenomen dat deze kunnen leiden tot een vordering tot schadevergoeding en waarmede de verzekeringnemer bij het aangaan van de verzekering bekend was of redelijkerwijs had kunnen zijn.

Artikel 14:108 Overschrijding verzekerde som (1) Indien de vorderingen tot schadevergoeding van meerdere benadeelden het bedrag van de verzekerde som overschrijden, wordt de verschuldigde uitkering aan elk van de benadeelden naar evenredigheid verminderd. (2) de verzekeraar die, onbekend met het bestaan van vorderingen van andere benadeelden, te goeder trouw aan een benadeelde een groter bedrag dan het aan deze toekomende deel heeft uitgekeerd, is jegens de andere benadeelden slechts gehouden tot het beloop van het overblijvende gedeelte van de verzekerde som.

Hoofdstuk Vijftien: Directe aanspraak Artikel 15:101 Directe aanspraak (1) Indien en voor zover de verzekerde, onderscheidenlijk de verzekeringnemer aansprakelijk is voor de door de benadeelde geleden schade, heeft de laatste een directe aanspraak jegens de verzekeraar onder de verzekeringsovereenkomst, mits: (a) het gaat om een verplichte verzekering, of (b) de verzekeringnemer of verzekerde insolvent is, of (c) de verzekeringnemer of verzekerde is ontbonden, of (d) de benadeelde personenschade heeft geleden, of (e) het recht dat dat van toepassing op de aansprakelijkheid , de benadeelde een directe aanspraak toekent.

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(2) De verzekeraar blijft bevoegd de benadeelde aan de verzekeringsovereenkomst ontleende weren tegen te werpen tenzij specifieke bepalingen met betrekking tot verplichte verzekering dat verbieden. Het is de verzekeraar niet toegestaan weren tegen te werpen die hun oorzaak vinden in enig handelen of nalaten van de verzekeringnemer en/of verzekerde nadat de schadegebeurtenis zich heeft voorgedaan.

Artikel 15:102 Informatieplichten (1) De verzekeringnemer en de verzekerde verschaffen desgevraagd door de benadeelde de laatste alle informatie noodzakelijk om een directe aanspraak jegens de verzekeraar in te dienen. (2) De verzekeraar informeert de verzekeringnemer schriftelijk en onverwijld maar uiterlijk binnen twee weken na ontvangst van de aanspraak, over elke directe aanspraak die jegens hem is ingediend. Indien de verzekeraar deze verplichting schendt, heeft een betaling of schuldbekentenis aan de benadeelde geen gevolgen voor de rechten van de verzekeringnemer. (3) indien de verzekeringnemer niet binnen een maand na ontvangst van de mededeling in de zin van lid 2 de verzekeraar informeert over de schadegebeurtenis, wordt hij geacht te hebben ingestemd met rechtstreekse afwikkeling van de aanspraak tussen de benadeelde en de verzekeraar

Artikel 15:103 Bevrijdend betalen De verzekeraar kan tegenover de benadeelde slechts bevrijdend betalen aan de verzekeringnemer, onderscheidenlijk de verzekerde indien de benadeelde (a) afstand heeft gedaan van zijn recht op een directe aanspraak of (b) niet binnen vier weken heeft gereageerd op een schriftelijk verzoek van de verzekeraar kenbaar te maken of hij van zijn recht op een directe aanspraak gebruik wil maken.

Artikel 15:104 Verjaring (1) Een rechtsvordering tegen de verzekeraar tot het doen van een uitkering, ingesteld door de verzekerde of door de benadeelde, verjaart zodra de rechtsvordering van de benadeelde tegen de verzekerde is verjaard. (2) De verjaringstermijn voor een aanspraak van de benadeelde jegens de verzekerde is geschorst gedurende de termijn vanaf het tijdstip dat de verzekerde ermee bekend wordt dat een directe aanspraak jegens de verzekeraar is ingesteld tot het tijdstip dat dat directe aanspraak is afgewikkeld dan wel ondubbelzinnig is afgewezen door de verzekeraar.

Hoofdstuk Zestien: Verplichte verzekering Artikel 16:101 Toepassingsbereik (1) Het staat partijen bij een verzekeringsovereenkomst vrij de PEICL van toepassing te verklaren in het kader van een verzekeringsplicht (a) opgelegd door Europese wetgeving, (b) opgelegd in een lidstaat, of (c) opgelegd in een niet-lidstaat voor zover toegestaan onder de wetgeving aldaar. (2) De overeenkomst van verzekering legt een verzekeringsplicht alleen op indien en voor zover daarbij voldaan wordt aan de aan die verzekeringsplicht verbonden regelgeving.

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Deel Vijf: Levensverzekering Hoofdstuk Zeventien: Bijzondere bepalingen voor levensverzekering Afdeling Een: Derden Artikel 17:101 Levensverzekering op het leven van een derde Een verzekering op het leven van een ander dan de verzekeringnemer is ongeldig tenzij die ander daarmee in een door hem ondertekend geschrift daarmee heeft ingestemd. Elke latere wijziging van enig gewicht, daaronder begrepen een wijziging van de begunstiging, een verhoging van de verzekerde som en een wijziging van de looptijd van de verzekering, heeft geen gevolg tenzij de derde op wiens leven de verzekering is gesloten, daarmee heeft ingestemd op de wijze als bedoeld in de vorige zin. Hetzelfde geldt voor een overdracht van de overeenkomst of het recht op de verzekerde uitkering of een hypothecaire bezwaring daarvan.

Artikel 17:102 Begunstiging (1) De verzekeringnemer kan een of meer begunstigde(n) tot het ontvangen van de verzekerde uitkering aanwijzen en deze begunstiging tussentijds wijzigen of herroepen, tenzij sprake is van een onherroepelijke begunstiging. De aanwijzing, wijziging of herroeping anders dan bij uiterste wilsbeschikking, geschiedt schriftelijk. (2) Het recht tot aanwijzing, wijziging of herroeping van een begunstiging eindigt met het overlijden van de verzekeringnemer of de verwezenlijking van het verzekerde risico. (3) De verzekeringnemer of diens erfgenamen wordt , onderscheidenlijk worden als begunstigde(n) tot het ontvangen van de verzekerde uitkering aangemerkt indien (a) de verzekeringnemer geen begunstigde heeft aangewezen of (b) de aanwijzing van een begunstigde is herroepen en geen andere begunstigde is aangewezen of (c) een begunstigde voor de verwezenlijking van het verzekerde risico is overleden en geen andere begunstigde is aangewezen. (4)Indien twee of meer begunstigden zijn aangewezen en de begunstiging van een van hen wordt herroepen of een van hen overlijdt voordat het verzekerd risico zich verwezenlijkt, wordt het bedrag dat aan de laatste(n) toekwam, naar evenredigheid onder de overgebleven begunstigden verdeeld behoudens voor zover door de verzekeringnemer in overeenstemming met lid 1 anders was voorzien. (5) Behoudens bepalingen met betrekking tot de nietigheid of niet-afdwingbaarheid van rechtshandelingen ten nadele van schuldeisers in het toepasselijke insolventierecht, is de failliete boedel van de verzekeringnemer niet gerechtigd to de verzekerde uitkering, , de conversiewaarde of de afkoopwaarde zolang de verzekerde uitkering niet is betaald aan de verzekeringnemer. (6) Een verzekeraar betaalt bevrijdend aan de persoon die overeenkomstig lid 1 als begunstigde is aangewezen tenzij hij wist dat die persoon niet gerechtigd was tot de uitkering.

Artikel 17:103 Begunstiging tot de afkoopwaarde (1) Los van een aanwijzing ingevolge artikel 17:102 kan de verzekeringnemer ook een begunstigde tot de eventuele afkoopwaarde aanwijzen en mag hij deze aanwijzing wijzigen of herroepen. De aanwijzing, wijziging of herroeping geschiedt schriftelijk en wordt ook aan de verzekeraar terhand gesteld. (2) Verzekeringnemer wordt als begunstigde tot de afkoopwaarde aangemerkt indien (a) geen begunstigde tot de afkoopwaarde is aangewezen of

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(b) een begunstiging tot de afkoopwaarde is herroepen en geen andere begunstigden zijn aangewezen of (c) een begunstigde tot de afkoopwaarde is en geen andere begunstigden zijn aangewezen. (3) Artikel 17:102 paras. 2, en 4 to 6 zijn mutatis mutandis van toepassing.

Artikel 17:104 Overdracht of Bezwaring (1) Zodra een begunstigde onherroepelijk is aangewezen, blijft een overdracht of bezwaring van de overeenkomst of het recht op de verzekerde uitkering zonder gevolg tenzij de begunsigde daarmee schriftelijk heft ingestemd. (2) Een overdracht of een bezwaring van het recht op de verzekerde uitkering door een begunstigde blijft zonder gevolg tenzij de verzekeringnemer daarme schriftelijk heeft ingestemd.

Artikel 17:105 Verwerping van de nalatenschap In geval een begunstigde erfgenaam is van een overleden verzekerde en de nalatenschap heeft verworpen, worden zijn rechten onder de polis daardoor niet aangetast.

Afdeling Twee: De eerste fase en de duur van de overeenkomst Artikel 17:201 De precontractuele mededelingsplichten van de aanvrager (1) De informatie die de aanvrager gehouden is in overeenstemming met artikel 2:101 lid 1 te verschaffen, omvat mede feiten en/of omstandigheden waarmee degene op wiens leven de verzekering wordt gesloten , bekend is of behoort te zijn. (2) De rechtsgevolgen verbonden aan de niet-nakoming van precontractuele informatieplichten onder de artikelen 2:102, 2:103 en 2:105, maar niet onder artikel 2:104, kunnen slechts gedurende vijf jaar na het sluiten van de verzekering worden ingeroepen.

Artikel 17:202 De precontractuele mededelingsplichten van de verzekeraar (1) De verzekeraar informeert de aanvrager of deze een recht op winstdeling toekomt. De ontvangst van deze informatie moet worden bevestigd in een afzonderlijk document dat geen deel uitmaakt van het aanvraagformulier. (2) Het document dat de verzekeraar daartoe gebruikt, omvat de volgende informatie: (a) met betrekking tot de verzekeraar: een specifieke verwijzing naar de verplichte publicatie van het jaarlijks verslag over diens solventie en financiele status; (b) met betrekking tot de contractuele verplichtingen van de verzekeraar: (i) een toelichting op elke vorm van uitgekeerde beloning of optie, (ii) informatie over het deel van de premie dat is toe te rekenen aan elke vorm van uitgekeerde beloningen; (iii) de methoden van berekening en verdeling van bonussen, daaronder begrepen een uiteenzetting van de toepasselijke toezichtswetgeving. (iv) een indicatie van de afkoop- en premievrije waarden en de mate waarin deze zijn gegarandeerd. (v) met betrekking tot unit-linked verzekeringen: een uiteenzetting over de units waarmee de opbrengsten zijn verbonden en een indicatie van het karakter van de onderliggende activa;

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(vi) algemene informatiover de belastingregels die op het betrokken polismodel van toepassing zijn. (3) Ten slotte wordt specifieke informative verschaft met het oog op het verkrijgen van een helder beeld van de risico’s die de verzekeringnemer loopt met het sluiten van de polis. (4) Indien de verzekeraar het bedrag van mogelijke uitkeringen boven de in de overeenkomst gegarandeerde betalingen in cijfers aangeeft, verschaft hij de aanvrager een voorbeeldberekening die weergeeft het mogelijke looptijdvoordeel, gebaseerd op de actuariele beginselen voor premievaststelling met drie verschillende rentepercentages.Dit geldt niet voor verzekeringen, waarbij niet zeker is dat de verzekeraar tot uitkering is gehouden en voor unit-linked-verzekeringen. De verzekeraar wijst de verzekeringnemer er helder en begrijpelijk op dat de voorbeeldberekening slechts gebaseerd is op gefingeerde aannames en dat de overeenkomst mogelijke betalingen niet garandeert.

Artikel 17:203 Afkoelingsperiode10 (1) Voor overeenkomsten van levensverzekering geldt een afkoelingspriode als bedoeld in artikel 2:303 lid 1, van een maand na de ontvangst van de dekkingsbevestiging of van de documenten bedoeld in artikel 2:501 en artikel 17:202, afhankelijk welke daarvan het laatst wordt ontvangen. (2) Het recht van de verzekeringnemer om de overeenkomst te vernietigen in overeenstemming met artikel 2:303 lid 1 vervalt een jaar na het sluiten van de overeenkomst.

Artikel 17:204 Het recht van opzegging van de overeenkomst door de verzekeringnemer (1) De verzekeringnemer heeft het recht een overeenkomst van levensverzekering op te zeggen die geen conversie – of afkoopwaarde kent, zij het dat de opzegging niet eerder effectief wordt dan een jaar na het afsluiten van de overeenkomst. Het recht van tussentijds opzeggen kan worden uitgesloten in geval een eenmalige premie is betaald. De opzegging dient schriftelijk te geschieden en wordt effectief twee weken na ontvangst van een opzeggingsbevestiging door de verzekeraar. (2) Voor het geval de overeenkomst van levensverzekering wel een conversie – of afkoopwaarde kent, zijn de artikelen 17:601-17:603 van toepassing.

Artikel 17:205 Het recht van opzegging voor de verzekeraar De verzekeraar heeft slechts het recht van opzegging van een overeenkomst van levensverzekering indien en voor zover hem dit recht in dit hoofdstuk wordt gegeven.

Afdeling Drie: Veranderingen tijdens de contractsduur Artikel 17:301 Verplichtingen van de verzekeraar na het sluiten van de verzekering (1) Voor zover van toepassing, verschaft de verzekeraar de verzekeringnemer jaarlijks in geschrift een overzicht van de actuele waarde van de winstdelingen op de polis. (2) In aanvulling op de verplichtingen, genoemd in artikel 2:701 informeert de verzekeraar de verzekeringnemer onverwijld over elke verandering, betreffende: (a) de algemene en bijzondere polisvoorwaarden;

10

Artikel 17:203 lid 1 is gebaseerd op artikel 35 van de Directive 2002/83/EC on Life Insurance en artikel 6 Directive 2002/65/EC.

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(b) in geval van een wijziging van de polisvoorwaarden of een aanpassing van de PEICL: de informatie, opgenomen in artikel 2:201 sub f en g als ook in artikel 17:202 lid 2 sub b, onderdelen i tot v. (3) Artikel 17:202 lid 4 geldt ook indien de cijfers met betrekking tot het geschatte bedrag van mogelijke uitkeringen op enig moment tijdens de looptijd van de verzekering worden verschaft. Indien de verzekeraar cijfers heeft verschaft, hetzij voor, hetzij na het sluiten van de overeenkomst, met betrekking tot de mogelijke toekomstige ontwikkeling van de winstdeling, informeert de verzekeraar de verzekeringnemer over elke verandering tussen de actuele ontwikkeling en de oorspronkelijke gegevens.

Artikel 17:302 Risicoverzwaring Elke clausule in een overeenkomst van levensverzekering, waarin leeftijd of een verslechtering van de gezondheid wordt aangemerkt als een risicoverzwaring in de zin van artikel 4:201, wordt geacht onredelijk bezwarend te zijn in de zin van artikel 2:304.

Artikel 17:303 Tussentijdse aanpassing van de premie en verzekerde uitkeringen (1) Bij een overeenkomst van levensverzekering die stellig tot uitkering zal komen, is de verzekeraar uitsluitend bevoegd tot een tussentijdse aanpassing in overeenstemming met het bepaalde in lid 2 en 3. (2) Een verhoging van de premie is uitsluitend toegestaan in geval van een onvoorzienbare en blijvende verandering in de biometrische risico’s gebruikt voor de berekening van de premie, in geval dat een verhoging noodzakelijk is met het oog op het garanderen van de betaling van de verzekerde uitkeringen en in geval de verhoging is goedgekeurd door een onafhankelijke trustee of de publiekrechtelijke toezichthouder. De verzekeringnemer heeft het recht de verhoging van de premie af te wenden door een passende verlaging van de verzekerde uitkering(en). (3) In geval van een premievrije polis heeft de verzekeraar het recht de verzekerde uitkering(en) te verlagen op de voorwaarden zoals in lid 2 genoemd. (4) Een aanpassing in overeenstemming met het bepaalde in lid 2 en 3 is niet toegestaan (a) indien en voor zover er sprake is van een fout in de berekening van de premie en/of de verzekerde uitkeringen waarvan een bekwame en zorgvuldige actuaris zich bewust had moeten zijn, of (b) indien de basisberekening niet is toegepast op alle overeenkomsten, daaronder begrepen die gesloten na de aanpassing. (5) een verhoging van de premie of een verlaging van de verzekerde uitkeringen gaat in drie maanden nadat de verzekeraar de verzekeringnemer schriftelijk heeft geinformeerd over de verhoging van de premie of de verlaging van de verzekerde uitkeringen, de redengeving daarvoor en de eigen bevoegdheid voor de verzekeringnemer om een verlaging van de verzekerde uitkeringen te vragen. (6) Bij een levensverzekering die zeker tot uitkering zal komen, heeft de verzekeringnemer recht op een verlaging van premie die als gevolg van een onvoorzienbare en voortdurende wijziging in de biometrische risico’s die de basis vormen voor de premievaststelling, het in eerste aanleg vastgestelde premiebedrag niet langer passend en noodzakelijk maken om de uitbetaling van de verzekerde uitkering te waarborgen. De premieverlaging moet worden goedgekeurd door een onafhankelijke trustee of de publieke toezichthouder. (7) De in dit artikel voorzine bevoegdheden mogen eerst vijf jaar na het sluiten van de overeenkomst worden uitgeoefend.

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Artikel 17:304 Een tussentijdse aanpassing van de polisvoorwaarden (1) een polisbepaling die de verzekeraar het recht geeft de polisvoorwaarden aan te passen anders dan met betrekking tot de premie en de verzekerde uitkeringen, heeft geen gelding, tenzij de aanpassing vereist is teneinde (a) te voldoen aan een aanpassing van de van toepassing zijnde toezichtswetgeving, daaronder begrepen juridisch bindende besluiten van de toezichthouder, of (b) te voldoen aan een aanpassing van dwingendrechtelijke bepalingen in het toepasselijke nationale recht met betrekking tot bedrijfspensioenregelingen, of (c) te voldoen aan een aanpassing van nationale regelgeving die aan een overeenkomst van levensverzekering specifieke voorschriften verbindt om in aanmerking te komen voor een speciaal belastingregiem of voor van overheidswege verstrekte subsidies. (d) een polisclausule te vervangen in overeenstemming met artikel 2:304 lid 2, tweede volzin. (2) De aanpassing wordt van kracht vanaf de eerste dag van de maand nadat de verzekeringnemer schriftelijk is geinformeerd over de aanpassing en de redengeving daarvoor. (3) Het bepaalde in lid 1 is van toepassing onverminderd andere vereisten met betrekking tot de geldigheid van aanpassingsclausules.

Afdeling Vier: Verhouding tot Nationaal Recht Artikel 17:401 Pensioenregelingen Een overeenkomst van levensverzekering gekoppeld aan een pensioenregeling is onderworpen aan de dwingendrechtelijke bepalingen of het toepasselijke nationale recht op pensioenregelingen. De PEICL is uitsluitend van toepassing indien en voor zover zij daarmee in overeenstemming is.

Artikel 17:402 Het Belastingregiem en Subsidies van Staatswege De PEICL heft geen betekenis voor nationale regelingen die bijzondere vereisten stellen aan een overeenkomst van levensverzekering voor het verkrijgen van bijzondere fiscale faciliteiten of subsidies van staatswege. In geval van tegenstrijdigheid tussen hiervoor bedoelde bijzondere vereisten en bepalingen in de PEICL, mag van de laatste worden afgeweken.

Afdeling Vijf: Verzekerd voorval Artikel 17:501 Onderzoeks- en Informatieplichten voor de verzekeraar (1) Een verzekeraar die reden heeft aan te nemen dat het verzekerd voorval zich heeft voorgedaan, doet al het nodige om dat gegeven bevestigd te krijgen. (2) De verzekeraar voor wie zeker is dat het verzekerd voorval heeft plaatsgevonden, doet al het mogelijke om de identiteit en het adres van de begunstigde vast te stellen en de laatste te informeren. Deze informatie wordt verstrekt binnen dertig dagen nadat de verzekeraar bekend is geworden met de identiteit en het adres van de begunstigde. (3) Indien een verzekeraar het bepaalde in het vorige lid niet nakomt, wordt de verjaring van de aanspraak van de begunstigde geschorst totdat de begunstigde kennis heeft van zijn aanspraak.

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Artikel 17:502 Zelfmoord (1) Indien de verzekerde binnen een jaar na het sluiten van de overeenkomst zelfmoord pleegt, is de verzekeraar niet gehouden tot betaling van de verzekerde uitkering. In dat geval is de verzekeraar gehouden tot betaling van de afkoopwaarde en winstdeling in overeenstemming met het bepaalde in artikel 17:602. (2) Het bepaalde in lid 1 mist toepassing indien (a) de verzekerde zichzelf van het leven heeft beroofd in een geestestoestand waarin hij niet meer in staat was zijn vrije wil te bepalen, of (b) wordt bewezen dat de verzekerde ten tijde van het sluiten van de overeenkomst niet de opzet had zelfmoord te plegen.

Artikel 17:503 Opzettelijk doden van de verzekerde (1) indien een begunstigde de verzekerde opzettelijk van het leven berooft, wordt zijn aanwijzing als begunstigde geacht te zijn herroepen. (2) Een overdracht van de aanspraak op de verzekerde uitkering heeft geen betekenis indien de cessionaris de verzekerde opzettelijk van het leven berooft. (3) indien de verzekeringnemer die tegelijkertijd begunstigde is, de verzekerde van het leven berooft, kunnen aan de overeenkomst geen rechten worden ontleend. (4) Indien de begunstigde of de verzekeringnemer die de verzekerde van het leven beroven onder gerechtvaardigde omstandigheden zoals in een situatie van reeele zelfverdediging, is dit artikel niet van toepassing.

Afdeling Zes: Conversie en Afkoop Artikel 17:601 Conversie van de overeenkomst (1) Artikel 5:103 is niet van toepassing op overeenkomsten van levensverzekering die een conversieof afkoopwaarde hebben. Zulke overeenkomsten worden geconverteerd in premievrije polissen tenzij de verzekeringnemer betaling verlangt van de afkoopwaarde binnn vier weken na ontvangst van de informatie als bedoeld in lid 2. (2) De verzekeraar informeert de verzekeringnemer omtrent de conversie- en de afkoopwaarde biinen vier weken na afloop van de termijn zoals bedoeld in artikel 5:101(b) of artikel 5:102 lid 1(b) en verzoekt de verzekeringnemer een keuze te maken tussen conversie and betaling van de afkoopwaarde. (3) Het verzoek tot conversie of betaling van de afkoopwaarde geschiedt bij geschrift.

Artikel 17:602 Afkoop van de overeenkomst (1) De verzekeringnemer is te allen tijde gerechtigd de verzekeraar schriftelijk te verzoeken om hem, ten dele of ten volle, de aan de polis verbonden afkoopwaarde uit te keren, zij het dat de daadwerkelijke uitvoering niet eerder dan een jaar na het sluiten van de overeenkomst kan plaatsvinden. De overeenkomst wordt aangepast dan wel beeindigd. (2) Onverminderd het bepaalde in artikel 17:601, is de verzekeraar gehouden zodra een overeenkomst van levensverzekering met afkoopwaarde door hem wordt opgezegd of vernietigd, de afkoopwaarde uit tekeren, ook onder de omstandiheden bedoeld in artikel 2:104. (3) De verzekeraar informeert de verzekeringnemer desgevraagd maar in in ieder geval elk jaar over het actuele bedrag van de afkoopwaarde en de mate waarin deze is gegarandeerd.

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(4) Het winstaandeel waarop de verzekeringnemer aanspraak kan maken, wordt in aanvulling op de afkoopwaarde uitgekeerd, tenzij dat reeds is verdisconteerd in de berekening van de afkoopwaarde. (5) De bedragen verschuldigd op basis van dit artikel, wordt niet later dan twee maanden na ontvangst het verzoek tot uitbetaling door de verzekeringnemer door de verzekeraar betaald.

Artikel 17:603 Conversiewaarde; afkoopwaarde (1) De overeenkomst van verzekering vermeldt de wijze waarop de conversie- en/of de afkoopwaarde wordt berekend in overeenstemming met de wetgeving van de lidstaat waar de verzekeraar zijn zetel heeft. De vermelde wijze van berekening voldoet aan gevestigde actuariele beginselen en aan het bepaalde in lid 2. (2) Indien de verzekeraar kosten van het afsluiten van de overeenkomst in rekening brengt, geschiedt dat in gelijke bedragen en over een periode van niet minder dan vijf jaar. (3) De verzekeraar is gerechtigd tot het in rekening brengen van een passend bedrag voor de uitbetaling van de afkoopwaarde dat wordt berekend in overeenstemming met gevestigde actuariele beginselen, tenzij de kosten al zijn verdisconteerd in de berekening van de afkoopwaarde.

Deel Zes: Collectieve verzekering Hoofdstuk Achttien: Bijzondere bepalingen voor Collectieve Verzekering Afdeling Een: Collectieve Verzekering Algemeen Artikel 18:101 Toepasselijkheid Overeenkomsten voor collectieve verzekering zijn onderworpen aan de PEICL indien en voor zover de organisator van de collectiviteit de overeenkomst heeft gesloten in overeenstemming met artikel 1:102. Collectieve verzekering is of accessoir en onderworpen aan Afdeling twee van dit hoofdstuk of vrijwillig en onderworpen aan Afdeling drie van dit hoofdstuk.

Artikel 18:102 Algemene zorgplicht voor de Organisator van de collectiviteit (1) Bij de onderhandeling over en de uitvoering van een overeenkomst van collectieve verzekering handelt de organisator van de collectiviteit zorgvuldig en met inachtneming van de gerechtvaardige belangen van de deelnemers aan de collectiviteit. (2) De organisator van de collectiviteit geeft aan de deelnemers aan de collectiviteit alle van de verzekeraar ontvangen relevante informatie door en informeert hun over elke aanpassing van de overeenkomst.

Afdeling Twee: Accessoire Collectieve Verzekering Artikel 18:201 Toepasselijkheid van de PEICL Indien en voor zover noodzakelijk is de PEICL van toepassing op accessoire collectieve verzekering mutatis mutandis.

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Artikel 18:202 Mededelingsplichten (1) Zodra iemand toetreedt tot de collectiviteit, informeert de organisator van de collectiviteit deze onverwijld over: (a) het bestaan van de overeenkomst van verzekering, (b) de inhoud van de dekking, (c) alle voorzorgmaatregelen en andere vereisten tot behoud van dekking, en. (d) de schaderegeling. (2) De bewijslast dat een lid van de collectiviteit de informative zoals vermeld in lid1, heeft ontvangen, rust op de organisator van de collectiviteit.

Artikel 18:203 Opzegging door de verzekeraar (1) In het licht van artikel 2:604, wordt de uitoefening van het recht tot opzegging door de verzekeraar uitsluitend als redelijk aangemerkt indien de opzegging zich beperkt tot het van dekking uitsluiten van het lid van de collectiviteit dat het verzekerd voorval is overkomen. (2) In het licht van artikel 4:102 en artikel 4:203 lid 1, leidt de uitoefening van het recht van opzegging door de verzekeraar uitsluitend tot het van dekking uitsluiten van de leden van de collectiviteit die niet de voogeschreven voorzorgsmaatregelen hebben getroffen of ten aanzien van wie sprake was van risicoverzwaring. (3) In het licht van artikel 12:102 leidt opzegging van de overeenkomst van verzekering uitsluitend tot het van dekking uitsluiten van de leden van de collectiviteit die hun belang bij een verzekerd object hebben overgedragen.

Artikel 18:204 Het recht op voortzetting van de dekking op een Collectieve Levensverzekering (1) Zodra een overeenkomst van accessoire collectieve verzekering wordt opgezegd of een lid van de collectiviteit uittreedt, eindigt de dekking na drie maanden of – indien eerder – met de afloop van de overeenkomst. In dat geval kan het lid van de collectiviteit aanspraak maken op een gelijkwaardige dekking op een nieuwe individuele overeenkomst met dezelfde verzekeaar zonder een nieuwe risicobeoordeling. (2) De organisator van de collectiviteit informeert het lid van de collectiviteit onverwijld over: (a) de dreigende beeindiging van zijn dekking onder de overeenkomst van collectieve levensverzekering, (b) diens rechten onder lid 1 en (c) de wijze waarop die rechten uit te oefenen. (3) Indien het lid van de collectiviteit heeft aangegeven zijn recht als bedoeld in artikel 18:204 lid 1, uit te oefenen, wordt de overeenkomst tussen de verzekeraar en het lid van de collectiviteit voortgezet op basis van een individuele overeenkomst van verzekering met een premie berekend op basis van een zelfstandige polis zonder rekening te houden met de actuele gezondheid en leeftijd van het lid van de collectiviteit

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Afdeling drie: Vrijwillige Collectieve Verzekering Artikel 18:301 Vrijwillige Collectieve Verzekering: Algemeen (1) Vrijwillige collectieve verzekering is gebasserd op een combinatie van een raamovereenkomst tussen de verzekeraar en de organisator van de collectiviteit en een individuele overeenkomst op basis van de raamovereenkomst tussen de verzekeraar en een lid van de collectiviteit. (2) De PEICL zijn van toepassing op de individuele overeenkomsten indien en voor zover de organisator van de collectiviteit en de verzekeraar dat zijn overeengekomen, maar – uitgezonderd de artikelen18:101 and 18:102, zijn de PEICL niet van toepassing op de raamovereenkomst.

Artikel 18:302 Wijziging van voorwaarden Een verandering in de voorwaarden van de raamovereenkomst heeft alleen gelding voor de daarop gebaseerde individuele overeenkomsten indien zij tot stand zijn gekomen in overeenstemming met de vereisten, neergelegd in de artikelen 2:603, 17:303 and 17:304.

Article 18:303 Voortzetting van verzekering op individuele basis Beeindiging van de raamovereenkomst of het einde van het lidmaatschap aan de zijde van een individueel lid van de collectiviteit heeft geen gevolgen voor de overeenkomst van verzekering tussen de verzekeraar en het lid van de collectiviteit.

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French version by Jérôme Kullmann and Emese Kaufmann-Mohi

Principes du droit Européen du contrat d’assurance (PDECA) Partie une: Règles générales concernant tous les contrats réglementés par les principes du droit Européen du contrat d’assurance (PDECA) Chapitre un: Règles préliminaires Section une: Applicabilité des PDECA Section deux: Dispositions générales Section trois: Exécution

Chapitre deux: Phase initiale et durée du contrat d’assurance

Chapitre neuf: Droit aux indemnités Chapitre dix: Droits découlant de la subrogation Chapitre onze: Assurance au bénéfice d’autrui Chapitre douze: Risque assuré Partie trois: Règles générales concernant les assurances de sommes Chapitre treize: Admissibilité

Section une: Obligation de déclaration précontractuelle du demandeur d’assurance Section deux: Obligations précontractuelles de l’assureur Section trois: Conclusion du contrat Section quatre: Couverture rétroactive et couverture provisoire Section cinq: Police d’assurance Section six: Durée du contrat d’assurance Section sept: Obligation d’information post-contractuelle de l’assureur

Partie quatre: Assurance responsabilité Chapitre quatorze: Assurance responsabilité générale Chapitre quinze: Demandes d’indemnisation directes et actions directes Chapitre seize: Assurance obligatoire

Chapitre trois: Intermédiaires d’assurance Chapitre quatre: Le risqué assuré

Section une: Parties tiers Section deux: Phase initiale et durée du contrat Section trois: Modifications pendant la durée du contrat Section quatre: Rapport aux droits nationaux Section cinq: Evènement assuré Section six: Conversion et rachat

Section une: Mesures de précaution Section deux: Aggravation du risque Section trois: Diminution du risque

Chapitre cinq: Primes d’assurance Chapitre six: Sinistre Chapitre sept: Prescription Partie deux: Règles générales concernant l’assurance contre les dommages Chapitre huit: Somme assurée et valeur assurée

Partie cinq: Assurance vie Chapitre dix-sept: Dispositions spéciales pour assurance vie

Partie six: Assurance de groupe Chapitre dix-huit: Dispositions spéciales pour assurance de groupe Section une: Assurance de groupe en général Section deux: Assurance de groupe complémentaire Section trois: Assurance de groupe facultative

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Partie une: Règles générales concernant tous les contrats réglementés par les principes du droit Européen du contrat d’assurance (PDECA) Chapitre un: Règles préliminaires Section une: Applicabilité des PDECA Article 1:101 Champ d’application matériel (1) Les PDECA s’appliquent aux contrats d’assurance de droit privé, y compris aux mutuelles. (2) Les PDECA ne s’appliquent pas aux contrats de réassurance.

Article 1:102 Régime optionnel Nonobstant les restrictions d’élection de droit prévues par le droit international privé, les PDECA s’appliquent lorsque les parties ont décidé d’un commun accord d’y soumettre leur contrat. Sous réserve de l’Article 1:103, les PDECA doivent être appliqués dans leur ensemble, sans exclusion aucune des dispositions particulières.

Article 1:103 Dispositions impératives (1) Les articles 1:102 2ème phrase, 2:104, 2:304, 13:101, 17:101 et 17:503 sont impératifs. Les autres articles sont impératifs pour autant qu’ils concernent les sanctions d’un comportement dolosif. (2) Le contrat peut déroger à toutes les autres dispositions, pour autant que la dérogation ne désavantage pas le preneur d’assurance, l’assuré ou le bénéficiaire. (3) Des dérogations au sens de l’alinéa 2 sont permises en faveur de toute partie dans les contrats couvrant de grands risques au sens de l’article 13 alinéa 27 Directive 2009/138/CE. Dans l’assurance de groupe, une dérogation ne peut être retenue qu’à l’encontre d’un individu assuré remplissant, le cas échéant, les caractéristiques personnels mentionnés à l’article 13 alinéa 27 lit. b ou c Directive 2009/138/CE.

Article 1:104 Interprétation Les PDECA doivent être interprétés conformément à leur texte, à leur contexte, à leurs buts et à leur arrière-plan comparatiste. On aura égard en particulier à la nécessité de promouvoir la bonne foi, la sécurité des relations contractuelles, l’uniformité d’application et la protection adéquate des preneurs d’assurance.

Article 1:105 Droit national et principes généraux (1) Le droit national ne peut être invoqué ni pour restreindre, ni pour compléter les PDECA. Cette règle ne s’applique toutefois pas aux dispositions impératives du droit national édictées spécialement pour des branches d’assurance non couvertes par des règles particulières des PDECA. (2) Les questions émergeant du contrat d’assurance, que les PDECA ne règlent pas de manière expresse, doivent être résolues en conformité avec les PDEC1 et, lorsque ces derniers ne contiennent pas de dispositions applicables, en accord avec les principes généraux communs aux droits des États membres.

1

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003). Pour la version française voir: Rouhette/Lamberterie, Principes du droit européen du contrat (Soc. de Législation Comparée, Paris 2003).

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Section deux: Dispositions générales Article 1:201 Contrat d’assurance (1) Le terme «contrat d’assurance» désigne le contrat par lequel une partie, l’assureur, promet à une autre partie, le preneur d’assurance, de couvrir ce dernier contre un risque déterminé en échange d’une prime; (2) Le «sinistre» désigne la réalisation du risque déterminé dans le contrat d’assurance; (3) L’«assurance de dommages» désigne l’assurance qui oblige l’assureur à indemniser les pertes subies lors de la réalisation d’un évènement assuré; (4) L’«assurance de sommes» désigne l’assurance qui oblige l’assureur à payer une somme déterminée en cas de réalisation d’un évènement assuré. (5) L’« assurance responsabilité » désigne l’assurance dans laquelle le risque consiste en l’exposition de l’assuré à une responsabilité légale envers la victime; (6) L’ « assurance vie » est l’assurance dans laquelle l’obligation de l’assureur ou le paiement de la prime dépend d’un évènement assuré défini exclusivement par référence à la mort ou à la survie de la personne exposée à ces évènements. (7) Les contrats d’assurance de groupe sont des contrats conclus entre un assureur et un organisateur de groupe en faveur des membres du groupe ayant un lien commun avec l’organisateur. Un contrat d’assurance de groupe peut également couvrir la famille des membres du groupe. (8) L’« assurance de groupe obligatoire » désigne le contrat d’assurance de groupe où les membres sont assurés automatiquement par leur appartenance au groupe, sans avoir la possibilité de refuser l’assurance. (9) L’« assurance de groupe facultative » désigne l’assurance de groupe où les membres du groupe sont assurés en raison de leur affiliation individuelle ou parce qu’ils n’ont pas refusé l’assurance.

Article 1:202 Définitions supplémentaires (1) L’«assuré» désigne la personne dont les intérêts sont protégés contre les pertes dans le cadre de l’assurance de dommages; (2) Le «bénéficiaire» désigne la personne à qui doit être payée la prestation due dans le cadre d’une assurance de sommes; (3) La «personne exposée au risque» désigne la personne dont la vie, la santé, l’intégrité physique ou l’état est assuré; (4) La «victime» désigne, dans l’assurance de responsabilité civile, la personne dont l’assuré est responsable de la mort, des lésions corporelles souffertes ou des dommages éprouvés; (5) L’«agent d’assurances» désigne l’intermédiaire d’assurance qui s’engage envers un assureur dans le but de proposer, de vendre ou de conclure des contrats d’assurance; (6) La «prime» désigne la somme que le preneur d’assurance doit à l’assureur en contrepartie de la couverture d’assurance; (7) La «durée du contrat» désigne la période des engagements contractuels qui commence au moment de la conclusion du contrat et qui finit à l’arrivée du terme convenu; (8) La «période d’assurance» désigne la période pour laquelle les primes sont dues en conformité avec l’accord des parties; (9) La «période de garantie» désigne la période de la couverture d’assurance. (10) L’ « assurance obligatoire » désigne l’assurance souscrite en application d’une obligation de s’assurer imposée par la loi ou un règlement.

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Article 1:203 Langue et interprétation des documents (1) Tous les documents fournis par l’assureur doivent être clairs et compréhensibles et doivent être rédigés dans la langue dans laquelle le contrat a été négocié. (2) En cas de doute sur le sens de la rédaction d’un document ou d’une information fourni par l’assureur, l’interprétation la plus favorable au preneur d’assurance, à l’assuré ou au bénéficiaire prévaut.

Article 1:204 Réception des documents: preuve La preuve de la réception par le preneur d’assurance des documents fournis par l’assureur est à la charge de ce dernier.

Article 1:205 Forme des déclarations Sous réserve des dispositions particulières des PDECA, les communications du demandeur d’assurance, du preneur d’assurance, de l’assuré ou du bénéficiaire, faites en relation avec le contrat d’assurance ne sont soumises à aucune forme particulière.

Article 1:206 Imputation de connaissance Si une personne est chargée par le preneur d’assurance, l’assuré ou le bénéficiaire d’accomplir des actes nécessaires à la conclusion ou à l’exécution du contrat d’assurance, les faits pertinents que cette personne connaît ou devrait connaître à l’occasion de l’exécution de ses obligations sont réputés connus du preneur d’assurance, de l’assuré ou du bénéficiaire, selon le cas.

Article 1:207 Égalité de traitement2 (1) Le sexe, la grossesse, la maternité, la nationalité et l’origine raciale ou ethnique ne doivent pas être des facteurs entraînant des différences en matières des primes et de prestations. (2) Les clauses du contrat qui violent l’alinéa 1, y compris les clauses concernant les primes, ne lient pas le preneur d’assurance ou l’assuré. Sous réserve de l’alinéa 3, le contrat continue à lier les parties sur la base de clauses non discriminatoires. (3) En cas de violation de l’alinéa 1, le preneur d’assurance a le droit de résilier le contrat. La résiliation doit être adressée à l’assureur par écrit dans un délai de deux mois à compter du moment où le preneur d’assurance a eu connaissance de la violation.

Article 1:208 Tests génétiques (1) L’assureur ne peut exiger du demandeur d’assurance, de l’assuré ou de la personne exposée au risque de se soumettre à un test génétique ou de révéler les résultats d’un tel test; l’assureur ne doit pas non plus utiliser de telles informations à des fins d’évaluation de risques. (2) L’alinéa 1 ne s’applique pas aux assurances de personnes où la personne exposée au risque est âgée de 18 ans ou plus et où la somme assurée pour cette personne dépasse EUR 300,000 ou la somme payable selon la police dépasse les EUR 30,000 par an.

2

Cette disposition prend pour modèle la Directive 2004/113/CE.

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Section trois: Exécution Article 1:301 Action en cessation3 (1) Une entité qualifiée au sens de l’alinéa 2 a le droit de saisir la juridiction ou l’autorité administrative nationale compétente afin de demander l’interdiction ou la cessation d’une violation des PDECA, lorsque ceux-ci s’appliquent en vertu de l’Article 1:102. (2) Une entité qualifiée désigne tout organisme ou organisation figurant sur la liste de la Commission européenne adoptée en vertu de l’Article 4 de la Directive 2009/22/CE du Parlement européen et du Conseil du 23 avril 2009 relative aux actions en cessation en matière de protection des intérêts des consommateurs, dans sa version consolidée.

Article 1:302 Voies de recours et moyens de réparation extrajudiciaires L’application des PDECA n’exclut pas la possibilité pour le preneur d’assurance, l’assuré ou le bénéficiaire d’utiliser des voies de recours ou des moyens de réparation extrajudiciaires.

Chapitre deux: Phase initiale et durée du contrat d’assurance Section une: Obligation de déclaration précontractuelle du demandeur d’assurance Article 2:101 Obligation de déclaration (1) Lors de la conclusion du contrat, le demandeur doit informer l’assureur des circonstances dont il a ou devrait avoir connaissance, faisant l’objet de questions claires et précises de la part de l’assureur. (2) Les circonstances figurant à l’alinéa 1er incluent aussi celles que la personne à assurer connaissait ou aurait dû connaître.

Article 2:102 Réticence (1) Lorsque le preneur d’assurance viole l’Article 2:101, l’assureur a le droit, sous réserve des alinéas 2 à 5, de demander la modification adéquate ou la résiliation du contrat. A cette fin, l’assureur doit donner, dans un délai d’un mois à compter du moment où il a eu connaissance de la violation de l’Article 2:101 ou du moment où il aurait dû s’en apercevoir, un avis écrit de son intention, accompagné d’informations sur les conséquences légales de sa décision. (2) Au cas où l’assureur propose une modification adéquate, le contrat continue à déployer ses effets avec les modifications proposées, à moins que le preneur d’assurance refuse la proposition dans un délai d’un mois dès la réception de l’avis mentionné à l’alinéa 1er. Dans ce cas, l’assureur a le droit de résilier le contrat dans un délai d’un mois à partir de la réception de l’avis de refus écrit du preneur d’assurance. (3) L’assureur n’est pas en droit de résilier le contrat si le preneur d’assurance a violé l’Article 2:101 sans faute de sa part, à moins que l’assureur prouve qu’il n’aurait pas conclu le contrat s’il avait eu connaissance de l’information en question. (4) La résiliation prend effet un mois après la réception, par le preneur d’assurance, de l’avis écrit mentionné à l’alinéa 1er. La modification du contrat prend effet conformément à l’accord des parties.

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Cette disposition prend pour modèle la Directive 2009/22/CE.

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(5) Lorsqu’un évènement assuré est causé par un élément du risque que le preneur d’assurance n’a pas déclaré par négligence ou qu’il déclaré de manière inexacte et que l’évènement se réalise avant que la résiliation ou la modification ait pris effet, il n’y a pas lieu au paiement de la prestation d’assurance lorsque l’assureur n’aurait pas conclu le contrat s’il avait connu l’information en cause. Toutefois, lorsque l’assureur aurait conclu le contrat à un prime plus élevé ou à des conditions différentes, la prestation d’assurance doit être payée proportionnellement ou selon ces conditions.

Article 2:103 Exceptions Les sanctions prévues à l’art. 2:102 ne s’appliquent pas (a) à une question à laquelle il n’a pas été répondu ou à une information manifestement incomplète ou inexacte; (b) aux informations qui auraient dû être communiquées ou à des informations fournies de manière inexacte, et qui n’étaient pas pertinentes pour la prise de décision, par un assureur raisonnable, de conclure le contrat ou de le faire dans les termes convenus; (c) aux informations à propos desquelles l’assureur a laissé croire au preneur d’assurance qu’elles ne devaient pas être fournies; ou (d) aux informations que l’assureur connaissait ou aurait du connaître.

Article 2:104 Dol L’assureur qui a été amené à conclure le contrat par le preneur d’assurance en violation frauduleuse de l’art. 2:101, peut, sans préjudice des sanctions prévues à l’art. 2:102, annuler le contrat et conserver son droit au paiement de toute prime due. L’assureur doit faire connaître au preneur d’assurance son intention de se libérer du contrat, par écrit, dans un délai de deux mois à compter du moment où il a eu connaissance du dol.

Article 2:105 Informations supplémentaires Les articles 2:102– 2:104 s’appliquent également aux informations fournies par le preneur d’assurance lors de la conclusion du contrat en plus des informations requises à l’art. 2:101.

Article 2:106 Information génétique Cette section ne s’applique pas aux résultats de tests génétiques visés par l’article 1:208 alinéa 1.

Section deux: Obligations précontractuelles de l’assureur Article 2:201 Remise des documents précontractuels4 (1) L’assureur doit remettre au demandeur une copie des termes proposés pour le contrat ainsi qu’un document contenant les informations suivantes si nécessaire: (a) le nom et l’adresse des parties au contrat, en particulier celui du siège social et la forme juridique de l’assureur et, le cas échéant, de la succursale concluant le contrat ou accordant la couverture; (b) le nom et l’adresse de l’assuré, du bénéficiaire et de la personne exposée au risque; (c) le nom et l’adresse de l’intermédiaire d’assurance; (d) l’objet de l’assurance et les risques couverts; 4

Cette disposition prend pour modèle les articles 183 à 189 Directive 2009/138/CE (Solvabilité II).

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(e) (f) (g) (h) (i)

la somme assurée et toutes les limites du montant de la garantie; le montant de la prime et la méthode de son calcul; la date d’exigibilité, le lieu et le mode de paiement de la prime; la période du contrat, y compris le mode de résiliation du contrat et la période de garantie; le droit de révoquer la demande d’assurance ou le droit d’annuler le contrat en vertu de l’art. 2:303 en cas d’assurance non-vie et en vertu de l’article 17:203 en cas d’assurance-vie; (j) l’applicabilité des PDECA au contrat; (k) l’existence de voies de recours et des moyens de réparation extrajudiciaires du demandeur ainsi que les possibilités d’y accéder; (l) l’existence de fond de garanties ou d’autres régimes de compensation. (2) Autant que possible, ces informations doivent être fournies en temps utile pour permettre au demandeur d’examiner s’il veut ou non conclure le contrat. (3) Lorsque le demandeur requiert une couverture d’assurance sur la base d’une proposition d’assurance et/ou d’un questionnaire fournis par l’assureur, ce dernier doit lui faire parvenir une copie des documents complétés.

Article 2:202 Obligation de mise en garde: lacunes dans la couverture d’assurance (1) Compte tenu des circonstances ainsi que du mode de la conclusion du contrat, en particulier du fait que le demandeur était assisté par un intermédiaire indépendant, l’assureur doit mettre en garde le demandeur, lors de la conclusion du contrat, contre toute lacune entre la couverture offerte et les besoins du demandeur, qu’il connaît ou devrait connaître. (2) En cas de violation de l’alinéa 1er (a) l’assureur doit indemniser le preneur d’assurance de toute perte résultant de la violation de son obligation de mise en garde à moins que l’assureur ait agi sans faute, et (b) le preneur d’assurance a le droit de résilier le contrat par écrit dans un délai de deux mois à compter du jour où il a eu connaissance de la violation de l’obligation de mise en garde.

Article 2:203 Obligation d’information: prise d’effet de la couverture d’assurance Sous réserve de la conclusion d’une couverture préalable, l’assureur qui sait ou devrait savoir que le demandeur croit de manière raisonnable, mais erronée, que la couverture commence au moment où il remet sa demande d’assurance, doit immédiatement informer le demandeur du fait que la couverture ne commence qu’avec la conclusion du contrat et, le cas échéant, après paiement de la première prime. L’assureur répond de la violation de cette obligation selon les termes de l’art. 2:202 alinéa 2 (a).

Section trois: Conclusion du contrat Article 2:301 Forme de la conclusion du contrat Le contrat d’assurance ne requiert la forme écrite, ni pour sa conclusion, ni pour sa preuve; il n’est, en outre, soumis à aucune exigence de forme particulière. La preuve de l’existence du contrat peut être apportée par tous moyens, notamment par témoignage oral.

Article 2:302 Révocation de la demande d’assurance La demande d’assurance peut être révoquée par le demandeur à la condition que cette révocation parvienne à l’assureur avant que l’acceptation de celui-ci soit reçue par le demandeur.

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Article 2:303 Délai de réflexion5 (1) Le preneur d’assurance a le droit d’annuler le contrat par écrit dans un délai de 14 jours à compter de la plus tardive des deux dates suivantes: celle de la réception de l’acceptation ou celle de la remise des documents mentionnés à l’art. 2:501. (2) La possibilité d’annuler le contrat est exclue lorsque (a) le contrat dure moins d’un mois; (b) le contrat est prolongé selon l’art. 2:602; (c) il s’agit d’un contrat d’assurance préliminaire, d’un contrat d’assurance de responsabilité civile ou d’une assurance collective.

Article 2:304 Clauses abusives6 (1) Une clause du contrat qui n’a pas fait l’objet d’une négociation individuelle ne lie pas le preneur d’assurance, l’assuré ou le bénéficiaire si, en dépit de l’exigence de bonne foi et tenant compte de la nature du contrat, de tous les autres termes du contrat ainsi que des circonstances au moment de la conclusion du contrat, elle crée au détriment de ces personnes un déséquilibre significatif entre les droits et les obligations des parties découlant du contrat. (2) Le contrat continue à lier les parties dans la mesure où il peut subsister sans la clause abusive. Dans le cas contraire, la clause abusive peut être remplacée par une clause que des parties raisonnables auraient adoptée, si elles avaient connu le caractère abusif de la clause. (3) Cette disposition s’applique aux clauses qui restreignent ou modifient la couverture, mais elle ne s’applique (a) ni à l’adéquation, en valeur, de la couverture et de la prime, (b) ni aux stipulations relatives aux éléments fondamentaux de la garantie accordée ou de la prime convenue, pour autant que ces clauses soient rédigées de manière claire et compréhensible. (4) Une clause est toujours considérée comme n’ayant pas fait l’objet d’une négociation individuelle lorsqu’elle a été rédigée préalablement et que le preneur d’assurance n’a, de ce fait, pas pu avoir d’influence sur son contenu, notamment dans le cadre d’un contrat d’adhésion. Le fait que certains éléments d’une clause ou qu’une clause isolée aient fait l’objet d’une négociation individuelle n’exclut pas l’application du présent Article au reste d’un contrat si l’appréciation globale permet de conclure qu’il s’agit malgré tout d’un contrat d’adhésion. Si le professionnel prétend qu’une clause standardisée a fait l’objet d’une négociation individuelle, la charge de la preuve lui incombe.

Section quatre: Couverture rétroactive et couverture provisoire Article 2:401 Couverture rétroactive (1) Lorsque, dans le cas d’une couverture d’assurance qui est accordée pour une période antérieure à la conclusion du contrat (couverture rétroactive), l’assureur sait, au moment de la conclusion du contrat, qu’aucun risque assuré ne s’est réalisé, le preneur d’assurance ne doit les primes que pour la période postérieure à la conclusion du contrat.

5 6

Cette disposition prend pour modèle la Directive 2002/65/CE. Cette disposition prend pour modèle la Directive 93/13/CEE.

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(2) Lorsque, dans le cas d’une couverture rétroactive, le preneur d’assurance sait, au moment de la conclusion du contrat, que le risque assuré s’est réalisé, sous réserve de l’art. 2:104, l’assureur ne doit fournir de couverture que pour la période postérieure à la conclusion du contrat.

Article 2:402 Couverture provisoire (1) Dans le cas de la conclusion d’une couverture d’assurance provisoire, l’assureur doit fournir une note de couverture contenant les informations indiquées à l’art. 2:501 (a), (b), (d), (e) et (h), si celles-ci s’avèrent nécessaires. (2) Les articles 2:201-2:203 et, sous réserve de l’alinéa 1er de la présente disposition, l’Article 2:501, ne s’appliquent pas à la couverture d’assurance provisoire.

Article 2:403 Durée de la couverture provisoire (1) Lorsqu’une couverture provisoire est accordée au demandeur, la couverture ne doit pas expirer avant la naissance de celle conclue dans le contrat d’assurance, ou, le cas échéant, avant que le demandeur ait reçu, de l’assureur, le rejet définitif de sa demande. (2) Lorsque la couverture provisoire est accordée à une personne qui n’a pas soumis sa proposition d’assurance au même assureur, elle peut être accordée pour une période plus courte que celle prévue à l’alinéa 1er. Une telle couverture peut être résiliée par chacune des parties moyennant un préavis de deux semaines.

Section cinq: Police d’assurance Article 2:501 Contenu En concluant le contrat d’assurance, l’assureur doit délivrer une police d’assurance avec les conditions générales du contrat, pour autant que celles-ci ne soient pas encore comprises dans la police. La police doit contenir les informations suivantes: (a) le nom et l’adresse des parties au contrat, en particulier celui du siège social et la forme juridique de l’assureur et, le cas échéant, de la succursale concluant le contrat ou accordant la couverture; (b) le nom et l’adresse de l’assuré et, en cas d’assurance-vie, le bénéficiaire et la personne exposée au risque; (c) le nom et l’adresse de l’intermédiaire d’assurance; (d) l’objet de l’assurance et le risque assuré; (e) la somme assurée et toutes les limites du montant de la garantie; (f) le montant de la prime ou la méthode de son calcul; (g) la date d’exigibilité, le lieu et le mode de paiement de la prime; (h) la durée du contrat, y compris le mode de résiliation du contrat et de la couverture; (i) le droit de révoquer la demande d’assurance ou le droit d’annuler le contrat en vertu de l’art. 2:303 en cas d’assurance non-vie et en vertu de l’article 17:203 en cas d’assurance-vie; (j) l’applicabilité des PDECA au contrat; (k) l’existence de voies de recours et des moyens de réparations extrajudiciaires du preneur d’assurance ainsi que les possibilités d’y accéder; (l) l’existence de fond de garanties ou d’autres moyens de compensation.

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Article 2:502 Effets de la police d’assurance (1) Les termes de la police d’assurance qui diffèrent de ceux de la demande du preneur d’assurance ou de ceux de toute autre convention antérieure entre les parties, sont présumés avoir été acceptés par le preneur d’assurance telles qu’ils sont mis en évidence dans la police. Celui-ci a toutefois le droit de s’y opposer dans un délai d’un mois à compter de la réception de la police. L’assureur doit indiquer au preneur d’assurance son droit de s’opposer aux différences mises en évidence dans la police en caractères très apparents. (2) Lorsque l’assureur ne respecte pas les règles de l’alinéa 1er, le contrat est présumé avoir été conclu selon les termes de la demande du preneur d’assurance ou, le cas échéant, selon la convention antérieure des parties.

Section six: Durée du contrat d’assurance Article 2:601 Durée du contrat d’assurance (1) La durée du contrat d’assurance est d’une année. Néanmoins, les parties peuvent convenir d’une autre durée lorsque cela est justifié par la nature du risque. (2) L’alinéa 1er ne s’applique pas aux assurances de personnes.

Article 2:602 Prolongation (1) Après l’écoulement de la période annuelle mentionnée à l’art. 2:601, le contrat se prolonge automatiquement, sauf lorsque (a) l’assureur a manifesté une volonté contraire par écrit, un mois au moins avant l’expiration de la durée du contrat et a indiqué les raisons de sa décision; ou (b) le preneur d’assurance a manifesté une volonté contraire, à la plus tardive des deux dates suivantes: le jour de l’expiration du contrat ou dans le mois suivant la réception de l’avis d’échéance de la prime. Dans ce dernier cas, le délai d’un mois ne commence à courir que s’il a été indiqué sur l’avis de manière claire et en caractères très apparents. (2) Au sens de l’alinéa 1 (b), on considère que l’assureur a manifesté une volonté contraire aussitôt qu’il a envoyé l’écrit.

Article 2:603 Modification du contrat (1) Dans un contrat d’assurance sujet à prolongation en vertu de l’art. 2:602, toute clause qui permet à l’assureur de modifier les primes ou tout autre stipulation du contrat est sans effet, sauf lorsque (a) la clause prévoit que toute modification ne prendra effet qu’avec la prochaine prolongation, (b) la clause prévoit que l’assureur doit envoyer au preneur d’assurance, au plus tard un mois avant l’expiration du présent contrat, un avis écrit de la modification, et (c) que l’avis de modification informe le preneur d’assurance de son droit de résilier le contrat ainsi que des conséquences du non-usage de son droit. (2) L’alinéa 1er ne porte pas atteinte à d’autres exigences concernant la validité des modifications des clauses du contrat.

Article 2:604 Résiliation en cas de sinistre (1) Une clause qui prévoit la possibilité de résilier le contrat après un sinistre n’a pas d’effet, sauf (a) si elle garantie ce droit aux deux parties et (b) s’il ne s’agit pas d’une assurance de personne.

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(2) Les clauses qui prévoient le droit de résilier le contrat et la mise en œuvre de la résiliation doivent être raisonnables. (3) Le droit de résilier le contrat s’éteint lorsque la partie en cause n’a pas donné un avis écrit de la résiliation à l’autre partie, dans un délai de deux mois à compter du jour où il a eu connaissance du sinistre. (4) La couverture d’assurance s’éteint deux semaines après l’avis adressé conformément à l’alinéa 3 de la présente disposition.

Section sept: Obligation d’information post-contractuelle de l’assureur Article 2:701 Obligation d’information générale Pendant la durée du contrat d’assurance, l’assureur doit informer le preneur d’assurance, par écrit et sans retard injustifié, de tout changement concernant son nom, son adresse, sa forme juridique, le siège de son administration et de celui de l’agence ou de la filiale qui a conclu le contrat.

Article 2:702 Informations supplémentaires sur demande (1) Sur la demande du preneur d’assurance, l’assureur doit aviser, sans retard injustifié, le preneur d’assurance sur (a) tous les faits importants pour l’exécution du contrat, pour autant que cela soit raisonnablement exigible; (b) les nouvelles clauses standards offertes par l’assureur pour des contrats d’assurance de même type que celui conclu avec le preneur d’assurance. (2) La demande du preneur d’assurance et la réponse de l’assureur doivent être faites par écrit.

Chapitre trois: Intermédiaires d’assurance Article 3:101 Compétence des agents d’assurance (1) Un agent d’assurance est habilité à exécuter tous les actes pour le compte de l’assureur qui, selon la pratique actuelle dans le domaine d’assurance, tombent dans le champ de son emploi. Toute restriction de la compétence de l’agent doit être notifiée au preneur d’assurance de manière claire, dans un document séparé. Néanmoins, la compétence de l’agent d’assurance doit au moins couvrir le champ effectif de son emploi. (2) Dans tous les cas, la compétence de l’agent doit comprendre (a) la faculté d’informer et de conseiller le preneur d’assurance, et (b) la faculté de recevoir des notifications de la part du preneur d’assurance. (3) Les éléments dont l’agent a pris connaissance ou aurait dû prendre connaissance à l’occasion de son intervention sont considérés comme connus de l’assureur.

Article 3:102 Agents prétendant être indépendants Lorsqu’un agent de l’assureur affirme être un intermédiaire indépendant et agit en violation des obligations imposées par la loi à un tel intermédiaire indépendant, l’assureur est responsable de cette violation.

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Chapitre quatre: Le risque assuré Section une: Mesures de précaution Article 4:101 Mesures de précaution: signification Une mesure de précaution est une clause du contrat d’assurance, indépendamment du fait qu’elle soit formulée ou non en tant que condition préalable de l’engagement de l’assureur, qui impose au preneur d’assurance ou à l’assuré d’exécuter certains actes, ou de s’en abstenir, avant la survenance de l’évènement assuré.

Article 4:102 Droit de l’assureur de résilier le contrat (1) Une clause du contrat qui permet à l’assureur, en cas de violation des mesures de précaution, de résilier le contrat est sans effet, à moins que le preneur d’assurance ou l’assuré ait violé son obligation soit avec l’intention de provoquer un tel dommage, soit témérairement et avec la conscience qu’un tel dommage en résulterait probablement. (2) Le droit de résilier le contrat doit être exercé au moyen d’une notification écrite au preneur d’assurance dans un délai d’un mois à compter du jour où l’assureur a eu connaissance de la violation de la mesure de précaution ou du jour où celle-ci lui est devenue apparente. La couverture expire au moment de la résiliation.

Article 4:103 Suppression de l’engagement de l’assureur (1) Une clause qui prévoit que l’inobservation d’une mesure de précaution exempte totalement ou partiellement l’assureur de sa garantie, n’a d’effet que si le dommage résulte de cette inobservation par le preneur d’assurance ou l’assuré, commise soit avec l’intention de provoquer un tel dommage, soit témérairement et avec conscience qu’un tel dommage en résulterait probablement. (2) Sous réserve d’une clause claire prévoyant la réduction de la prestation d’assurance en fonction de la gravité de la faute, le preneur d’assurance ou l’assuré, selon le cas, a droit à la prestation d’assurance pour tout dommage causé par une inobservation, par négligence, de la mesure de précaution.

Section deux: Aggravation du risque Article 4:201 Clauses concernant l’aggravation du risque Les clauses du contrat concernant l’aggravation du risque assuré sont sans effet, sauf s’il s’agit d’une aggravation importante qui est spécifiée dans le contrat.

Article 4:202 Obligation de déclarer l’aggravation du risque (1) Lorsqu’elle est exigée par le contrat, la notification d’une aggravation du risque doit émaner, selon le cas, du preneur d’assurance, de l’assuré ou du bénéficiaire, pour autant que la personne à qui incombe la notification ait connu, ou aurait dû connaître, l’existence de la couverture d’assurance et de l’aggravation du risque. La notification effectuée par une autre personne est valable. (2) Lorsqu’une clause du contrat soumet la notification au respect d’un certain délai, celui-ci doit être raisonnable. La notification devient effective avec son envoi.

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(3) En cas de violation de l’obligation de notification, l’assureur n’est pas en droit de refuser d’indemniser un dommage subséquent causé par un évènement couvert par l’assurance, sauf lorsque le dommage résulte du défaut de notification de l’aggravation du risque.

Article 4:203 Résiliation et décharge (1) Lorsque le contrat octroie à l’assureur le droit de résilier le contrat en cas d’aggravation du risque, l’assureur doit exercer ce droit par une notification écrite au preneur d’assurance dans un délai d’un mois à compter du jour où il a eu connaissance de l’aggravation du risque ou dès que l’aggravation du risque lui est devenue apparente. (2) La couverture d’assurance expire un mois après la résiliation ou, lorsque le preneur d’assurance viole intentionnellement ses obligations découlant de l’art. 4:202, au moment de la résiliation. (3) Lorsqu’un évènement assuré survient avant l’expiration de la couverture à la suite d’un risque aggravé dont le preneur d’assurance avait connaissance ou aurait dû avoir connaissance, il n’y a pas lieu au paiement de la prestation d’assurance dans le cas où l’assureur n’aurait aucunement assuré le risque aggravé. Toutefois, dans le cas où l’assureur aurait assuré le risque aggravé moyennant une prime plus élevée ou à des conditions différentes, la prestation d’assurance doit être payée proportionnellement ou en accord avec ces conditions.

Section trois: Diminution du risque Article 4:301 Conséquences de la diminution du risque (1) En cas de diminution notable du risque, le preneur d’assurance est en droit de demander une réduction proportionnelle de la prime pour la durée restante du contrat. (2) Lorsque les parties n’arrivent pas à s’entendre sur une réduction adéquate dans un délai d’un mois à compter de la demande de réduction, le preneur d’assurance est en droit de résilier le contrat par une notification écrite adressée dans un délai de deux mois à compter de la demande de réduction.

Chapitre cinq: Primes d’assurance Article 5:101 Première prime ou prime unique La condition qui fait dépendre la conclusion du contrat ou le début de la couverture du paiement de la première prime ou de la prime unique est sans effet, à moins (a) que la condition soit notifiée au demandeur par écrit et en termes clairs, attirant l’attention du demandeur sur le fait qu’il reste sans couverture jusqu’au paiement de la prime, et (b) qu’une période de deux semaines se soit écoulée après la réception d’une demande de paiement correspondant aux exigences de l’alinéa (a) sans qu’il y ait eu paiement.

Article 5:102 Prime subséquente (1) Une clause qui prévoit que l’assureur est libéré de son obligation de couverture du risque en cas de non paiement d’une prime subséquente est sans effet, à moins (a) que le preneur d’assurance reçoive une demande de paiement faisant état du montant exact de la prime due ainsi que de la date du paiement,

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(b) que, après échéance de la prime due, l’assureur envoie au preneur d’assurance un rappel du montant exacte de la prime due, accordant un délai de paiement supplémentaire d’au moins deux semaines et avertissant le preneur d’assurance de la suspension immédiate de la couverture si le paiement n’est pas fait et (c) que le délai supplémentaire prévu à l’alinéa (b) expire, sans qu’il y ait eu paiement. (2) L’assureur est libéré de son engagement dès l’expiration du délai supplémentaire prévu à l’alinéa 1 (b). La couverture reprend son cours, dès que le preneur d’assurance a payé le montant dû, à moins que le contrat ait été résilié en vertu de l’art. 5:103.

Article 5:103 Résiliation du contrat (1) Lorsque la période prévue à l’art. 5:101 (b) ou à l’art. 5:102 alinéa 1 (b) expire sans paiement de la prime, l’assureur a le droit de résilier le contrat par une notification écrite, pour autant que la demande de paiement requise par l’art. 5:101 (b) ou le rappel requis par l’art. 5:102 alinéa 1 (b), selon le cas, ait fait état de ce droit de l’assureur. (2) Le contrat est réputé résilié si l’assureur n’intente pas, selon le cas, (a) une action en paiement de la première prime, dans un délai de deux mois, dès l’expiration du délai mentionné à l’art. 5:101 (b), ou (b) une action en paiement d’une prime subséquente, dans un délai de deux mois, dès l’expiration du délai mentionné à l’art. 5:102 alinéa 1 (b).

Article 5:104 Divisibilité de la prime Lorsqu’un contrat d’assurance est résilié avant le terme convenu, l’assureur n’a droit aux primes que pour la période antérieure à la résiliation.

Article 5:105 Droit au paiement des primes L’assureur n’a pas le droit de refuser le paiement par un tiers (a) lorsque le tiers agit avec le consentement du preneur d’assurance, ou (b) lorsque le tiers a un intérêt légitime au maintient de la couverture et que le preneur d’assurance n’a pas payé ou qu’il est clair qu’il ne paiera pas à l’échéance.

Chapitre six: Sinistre Article 6:101 Déclaration de sinistre (1) La survenance d’un sinistre doit être notifiée à l’assureur, selon le cas, par le preneur d’assurance, l’assuré ou le bénéficiaire, pour autant que la personne à qui incombe la notification était ou aurait dû être consciente de l’existence de la couverture d’assurance et de la survenance de l’évènement assuré. La notification peut valablement être effectuée par une autre personne. (2) La notification doit être faite sans retard injustifié. Elle prend effet avec son envoi. Lorsque le contrat prévoit un délai de notification, ce délai doit être raisonnable et il ne peut en aucun cas être inférieur à cinq jours. (3) La prestation d’assurance est réduite dans la mesure où l’assureur prouve qu’il a subi un dommage à la suite du retard injustifié.

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Article 6:102 Coopération en cas de sinistre (1) Le preneur d’assurance, l’assuré ou le bénéficiaire, selon le cas, doit coopérer avec l’assureur dans l’instruction du sinistre en répondant aux demandes pertinentes de l’assureur, en particulier en ce qui concerne – la fourniture d’informations sur les causes et les conséquences du sinistre; – la fourniture des documents ou d’autres preuves du sinistre; – l’accès aux lieux du sinistre. (2) Dans le cas d’une violation de l’alinéa 1er et sous réserve de l’alinéa 3ème, la prestation d’assurance doit être réduite dans la mesure où l’assureur prouve que la violation lui a causé un dommage. (3) Lorsque la violation de l’alinéa 1er est commise soit avec l’intention de provoquer un tel dommage, soit témérairement et avec conscience qu’un tel dommage en résulterait probablement, l’assureur n’est pas tenu de payer la prestation d’assurance.

Article 6:103 Acceptation des prétentions (1) L’assureur doit prendre toute mesure nécessaire au règlement de la prétention à bref délai. (2) A moins que l’assureur rejette une prétention ou qu’il en diffère l’acceptation par écrit en indiquant les raisons de sa décision dans un délai d’un mois dès la réception des documents et d’autres informations nécessaires, la prétention est tenue pour acceptée.

Article 6:104 Échéance (1) Lorsqu’une prétention a été acceptée, l’assureur doit, selon le cas, payer ou fournir les prestations promises sans retard injustifié. (2) Même si la valeur totale d’une prétention ne peut pas encore être intégralement déterminée, mais que le créancier peut prétendre au moins à une partie, cette partie doit être payée ou fournie sans retard injustifié. (3) Le paiement de la prestation d’assurance, qu’il soit fait en vertu de l’alinéa 1er ou de l’alinéa 2ème, doit intervenir, au plus tard, une semaine après l’acceptation et la détermination de la prétention, en tout ou en partie selon le cas.

Article 6:105 Demeure7 (1) Lorsque la prestation d’assurance n’est pas payée conformément à l’art. 6:104, le créancier de la prestation a droit au paiement des intérêts moratoires sur cette somme pour la période comprise entre la date d’exigibilité et celle du paiement, au taux appliqué par la Banque centrale européenne à son opération de refinancement principale la plus récente effectuée avant le premier jour de calendrier du semestre en question, majoré de huit points. (2) Le créancier de la prestation d’assurance est en droit d’être indemnisé de tout dommage additionnel causé par le paiement tardif de la somme d’assurance.

Chapitre sept: Prescription Article 7:101 Action en paiement des primes L’action en paiement des primes se prescrit par un an à compter de l’échéance.

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Cette disposition prend pour modèle l’art. 3 alinéa 1 (d) de la Directive 2000/35/CE.

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Article 7:102 Action en paiement des prestations d’assurance (1) En règle générale, l’action en paiement des prestations d’assurance se prescrit par trois ans à compter du moment où l’assureur a pris ou aurait dû prendre, en vertu de l’art. 6:103, une décision finale concernant la prétention. Dans tous les cas, l’action se prescrit toutefois par dix ans, au plus tard, à compter de la survenance du sinistre, le délai étant porté à trente ans dans le cas d’une assurance vie. (2) L’action en paiement de la valeur de rachat d’une assurance vie se prescrit par trois ans à compter du moment où le preneur d’assurance reçoit le compte final de l’assureur. Dans tous les cas, l’action se prescrit toutefois par trente ans, au plus tard, à compter de la cessation de l’assurance vie.

Article 7:103 Autres règles relatives à la prescription Sous réserve de l’art. 7:101 et de l’art. 7:102 des PDECA, les art. 14:101-14:503 des Principes du droit européen des contrats (PDEC)8 s’appliquent aux prétentions résultant d’un contrat d’assurance. Le contrat d’assurance peut déroger à ces dispositions aux conditions prévues à l’art. 1:103 alinéa 2 PDECA.

Partie deux: Règles générales concernant l’assurance contre les dommages Chapitre huit: Somme assurée et valeur assurée Article 8:101 Principe indemnitaire (1) L’assureur ne doit pas payer plus que ce qui est nécessaire à l’indemnisation des pertes effectivement subies par l’assuré. (2) La clause du contrat qui fixe la valeur contractuelle d’un objet assuré est valable même si cette valeur est supérieure à la valeur actuelle du bien assuré, à condition que le preneur d’assurance ou l’assuré n’ait pas commis de dol ou de tromperie au moment de l’accord sur cette valeur.

Article 8:102 Sous-assurance (1) L’assureur est engagé pour tout dommage assuré à concurrence de la somme assurée, même si, au moment du sinistre, la somme assurée est inférieure à la valeur du bien assuré. (2) Toutefois, lorsque l’assureur offre une couverture qui correspond à l’alinéa 1er, il peut offrir alternativement une assurance prévoyant que l’indemnité à payer sera limitée par application du rapport de la somme assurée à la valeur actuelle du bien au jour du sinistre. En outre, dans ce cas, les frais engagés pour limiter le dommage, définis à l’art. 9:102, doivent être remboursés dans la même proportion.

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Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003). Pour la version française voir: Rouhette/Lamberterie, Principes du droit européen du contrat (Soc. de Législation Comparée, Paris 2003).

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Article 8:103 Réajustement des clauses du contrat en cas de surassurance (1) Lorsque la somme assurée dépasse la perte maximale possible prévue par l’assurance, chaque partie est en droit de demander une réduction de la somme assurée ainsi qu’une réduction correspondante de la prime pour la durée du contrat qui reste à courir. (2) Lorsque les parties n’arrivent pas à s’entendre sur une telle réduction dans un délai d’un mois à compter de la demande de réduction, chaque partie est en droit de résilier le contrat.

Article 8:104 Assurance multiple (1) Lorsque le même intérêt est assuré séparément par plus d’un assureur, l’assuré est en droit de demander à être indemnisé par un ou par plusieurs de ces assureurs dans la mesure nécessaire à l’indemnisation de la perte effectivement subie. (2) L’assureur auquel la demande est adressée doit payer jusqu’à concurrence de la somme assurée par la police, majorée, s’il y a lieu, des frais engagés pour limiter le dommage, sans préjudice de son droit de recours contre les autres assureurs. (3) Entre les assureurs, les droits et les obligations mentionnés à l’alinéa 2 doivent être déterminés proportionnellement aux montants pour lesquels ils sont individuellement tenus envers l’assuré.

Chapitre neuf: Droit aux indemnités Article 9:101 Cause du dommage (1) Ni le preneur d’assurance, ni l’assuré, selon le cas, n’a le droit d’être indemnisé lorsque le dommage résulte d’un acte ou d’une omission qu’il a commis, soit avec l’intention de provoquer un tel dommage, soit témérairement et avec conscience qu’un tel dommage en résulterait probablement. (2) Sous réserve d’une clause claire de la police d’assurance prévoyant la réduction de la somme d’assurance selon la gravité de la faute commise, le preneur d’assurance ou l’assuré, selon le cas, a le droit d’être indemnisé des dommages qu’il a causé par une action, ou une omission, due à sa négligence. (3) Au sens des alinéas 1 et 2, la cause du dommage comprend également l’absence de prévention ou de minimisation du dommage.

Article 9:102 Frais de minimisation du dommage (1) L’assureur doit rembourser les frais causés ou le montant du dommage subi par le preneur d’assurance ou par l’assuré lors de la prise de mesures de minimisation du dommage, dans la mesure où le preneur d’assurance ou l’assuré pouvait considérer les mesures prises comme raisonnables au regard des circonstances, même en cas d’échec des mesures de minimisation. (2) L’assureur doit indemniser le preneur d’assurance ou l’assuré, selon le cas, de toute mesure prise conformément à l’alinéa 1er même si, cumulé avec la compensation de la perte subie, le montant à payer dépasse la somme assurée.

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Chapitre dix: Droits découlant de la subrogation Article 10:101 Subrogation (1) Sous réserve de l’alinéa 3, l’assureur est subrogé contre le tiers responsable du dommage, dans la mesure où il a indemnisé l’assuré. (2) L’assuré qui renonce à exercer ses droits contre un tel tiers et porte ainsi atteinte à la subrogation de l’assureur, est déchu de son droit à être indemnisé du dommage. (3) L’assureur ne peut exercer ses droits de subrogation contre une personne qui vit avec le preneur d’assurance ou l’assuré, une personne se trouvant dans une relation sociale équivalente au preneur d’assurance ou à l’assuré, ou un employé du preneur d’assurance ou de l’assuré, à moins qu’il s’avère que le dommage ait été causé par une telle personne soit avec l’intention de provoquer un tel dommage, soit témérairement et avec conscience qu’un tel dommage en résulterait probablement. (4) L’assureur ne peut exercer ses droits de subrogation au détriment de l’assuré.

Chapitre onze: Assurance au bénéfice d’autrui Article 11:101 Droit de l’assuré (1) Lorsqu’une assurance est prise en faveur d’une personne autre que le preneur d’assurance, cette personne est en droit, en cas de sinistre, de recevoir la prestation d’assurance. (2) Le preneur d’assurance est en droit de révoquer une telle garantie, sauf lorsque (a) la police d’assurance prévoit une clause contraire, ou (b) que l’évènement assuré s’est réalisé. (3) La révocation prend effet lorsque sa notification écrite parvient à l’assureur.

Article 11:102 Connaissance de l’assuré Lorsque le preneur d’assurance a l’obligation de fournir des informations nécessaires à l’assureur, les éléments connus de la personne assurée selon l’art. 11:101 ne sont pas censés être connus du preneur d’assurance, sauf si cette personne a connaissance de sa qualité d’assuré.

Article 11:103 Violation des obligations de l’assuré La violation de ses obligations par un assuré ne porte pas atteinte aux droits d’autres personnes assurées par le même contrat d’assurance, à moins que le risque soit assuré conjointement.

Chapitre douze: Risque assuré Article 12:101 Absence du risque assuré (1) Il n’y a pas lieu au paiement de primes lorsque le risque assuré n’existe ni au moment de la conclusion du contrat, ni à aucun moment de la période d’assurance. Toutefois, l’assureur a droit à un dédommagement raisonnable pour les frais occasionnés. (2) Lorsque le risque cesse d’exister durant la période d’assurance, le contrat est censé avoir été résilié au moment où l’assureur en a été informé.

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Article 12:102 Transfert de propriété (1) En cas de transfert de propriété de la chose assurée, le contrat d’assurance est dissout un mois après le jour du transfert, à moins que le preneur d’assurance et le cessionnaire conviennent d’une résiliation antérieure. Cette règle ne s’applique pas lorsque le contrat d’assurance est pris en faveur du futur cessionnaire. (2) Le cessionnaire de la chose assurée est considéré comme l’assuré à partir du moment où le risque lié à la chose assurée lui est transmis. (3) Les alinéas 1er et 2ème ne s’appliquent pas (a) lorsque l’assuré, le preneur d’assurance et le cessionnaire en conviennent autrement, ou (b) à un transfert de propriété par succession.

Partie trois: Règles générales concernant les assurances de sommes Chapitre treize: Admissibilité Article 13:101 Assurance de somme Seul les assurances accident, maladie, vie, nuptialité, natalité et autres assurances de personnes peuvent être prises en compte en tant qu’assurances de sommes.

Partie quatre: Assurance responsabilité Chapitre quatorze: Assurance responsabilité générale Article 14:101 Coûts de défense L’assureur doit rembourser les coûts de défense encourus conformément à l’article 9:102.

Article 14:102 Protection de la victime A moins que la victime ne donne son consentement écrit, sa situation ne sera affectée par aucun règlement de sinistre pris en vertu de la police par le preneur d’assurance ou l’assuré et l’assureur, que ce soit par convention, renonciation, payement ou acte équivalent.

Article 14:103 Cause du dommage (1) Ni le preneur d’assurance, ni l’assuré, selon le cas, n’a le droit d’être indemnisé lorsque le dommage résulte d’un acte ou d’une omission qu’il a commis avec l’intention de provoquer un tel dommage; cela inclut également le non-respect des instructions spécifiques de l’assureur après la survenance du dommage, s’il y a témérité et connaissance que de ce fait, le dommage serait probablement aggravé. (2) Au sens de l’alinéa 1, la cause du dommage comprend également l’absence de prévention ou de minimisation du dommage. (3) Sous réserve d’une clause claire de la police d’assurance prévoyant la réduction de la somme d’assurance selon la gravité de la faute commise, le preneur d’assurance ou l’assuré, selon le cas, a le droit d’être indemnisé des dommages causés en cas d’un non-respect par négligence des instructions spécifiques de l’assureur après la survenance du dommage.

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Article 14:104 Reconnaissance de responsabilité (1) La clause du contrat libérant l’assureur de ses obligations au cas où le preneur d’assurance ou l’assuré, selon le cas, accepte la revendication ou désintéresse la victime est sans effet. (2) A moins qu’il n’y consente, l’assureur n’est pas lié par l’accord conclu entre la victime et le preneur d’assurance ou l’assuré, selon le cas.

Article 14:105 Cession La clause d’un contrat d’assurance privant l’assuré de son droit de céder ses prétentions découlant de la police est sans effet.

Article 14:106 Bonus pour non-sinistre / Systèmes bonus-malus (1) Le preneur d’assurance a le droit de demander à tout moment une attestation faisant état des réclamations des cinq dernières années. (2) Lorsqu’un assureur fait dépendre la prime ou d’autres conditions du nombre ou du montant des réclamations payées en application de la police, le dossier des réclamations relatives au preneur d’assurance avec d’autres assureurs durant les cinq années précédentes sera pris en considération.

Article 14:107 Evènement assuré (1) L’évènement assuré est le fait donnant lieu à la responsabilité de l’assuré et qui est survenu durant la période de garantie du contrat d’assurance, à moins que les parties à un contrat d’assurance conclu à des fins commerciales ou professionnelles définissent l’évènement assuré par rapport à d’autres critères, tels que la réclamation de la victime. (2) Lorsque les parties contractantes définissent l’évènement assuré comme la demande d’indemnisation de la victime, la couverture est accordée pour les demandes faites durant la période de garantie ou durant une période subséquente d’au moins cinq ans, fondées sur un fait survenu avant la fin de la période de garantie. Le contrat d’assurance peut exclure la couverture en raison du fait qu’au moment de la conclusion du contrat, le demandeur était ou aurait dû être conscient de circonstances dont il pouvait s’attendre à ce qu’il donne lieu à réclamation.

Article 14:108 Demandes excédant la somme assurée (1) Si les indemnités dues globalement à plusieurs victimes excèdent la somme assurée, elles doivent être réduites proportionnellement. (2) Un assureur qui, ignorant l’existence d’autres victimes, a de bonne foi indemnisé les victimes dont il avait connaissance, est tenu envers les autres victimes jusqu’à concurrence de la somme assurée.

Chapitre quinze: Demandes d’indemnisation directes et actions directes Article 15:101 Demandes d’indemnisation directes et moyens de défense (1) Dans la mesure où le preneur d’assurance ou l’assuré, selon le cas, est responsable, la victime dispose d’une action directe en indemnisation contre l’assureur en vertu du contrat d’assurance à condition que (a) l’assurance soit obligatoire, ou (b) le preneur d’assurance ou l’assuré soit insolvable, ou

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(c) le preneur d’assurance ou l’assuré ait été liquidé ou dissout, ou (d) la victime ait subi des dommages corporels, ou (e) la loi applicable à la responsabilité prévoie une demande d’indemnisation directe. (2) L’assureur peut soulever à l’encontre de la victime les moyens de défenses disponibles en vertu du contrat d’assurance, à moins qu’une disposition spécifique rendant l’assurance obligatoire ne l’interdise. Toutefois l’assureur ne peut soulever aucun moyen fondé sur le comportement du preneur d’assurance et/ou de l’assuré après le dommage.

Article 15:102 Obligations d’information (1) A la demande de la victime, le preneur d’assurance et l’assuré doivent produire les informations nécessaires à la formulation d’une réclamation directe. (2) L’assureur doit aviser par écrit le preneur d’assurance de toute réclamation directe élevée contre lui, sans retard injustifié, mais au plus tard deux semaines après réception de la réclamation. Si l’assureur ne respecte pas cette obligation, un paiement à ou une reconnaissance de dette envers la victime ne porte pas atteinte aux droits du preneur d’assurance. (3) Si le preneur d’assurance n’informe pas l’assureur de l’évènement assuré dans un délai d’un mois après réception de l’avis conformément à l’al. 2, le preneur d’assurance est réputé avoir consenti au règlement direct de la réclamation par l’assureur. Cette règle s’applique également aux assurés qui ont effectivement reçu un tel avis à temps.

Article 15:103 Décharge L’indemnisation du preneur d’assurance ou de l’assuré, selon le cas, ne libère l’assureur de ses obligations envers la victime que si la victime (a) a renoncé à sa demande d’indemnisation directe ou (b) n’a pas avisé l’assureur de son intention de formuler une demande d’indemnisation directe dans un délai de quatre semaines après réception de la demande écrite de l’assureur.

Article 15:104 Prescription (1) Les actions à l’encontre de l’assureur, qu’elles émanent de l’assuré ou de la victime, se prescrivent en même temps que l’action de la victime contre l’assuré. (2) La période de prescription de la demande d’indemnisation de la victime contre l’assuré est suspendue, le cas échéant, à compter du moment où l’assuré sait qu’une demande directe a été formulée contre l’assureur jusqu’au moment où la demande directe est réglée ou rejetée sans équivoque par l’assureur.

Chapitre seize: Assurance obligatoire Article 16:101 Champ d’application (1) Les parties peuvent convenir d’appliquer les PDECA à un contrat d’assurance conclu en application d’une obligation de s’assurer (a) imposée par le droit Communautaire, (b) imposée dans un Etat membre, ou (c) imposée dans un Etat non-membre dans la mesure où la loi de cet Etat le permet. (2) Le contrat d’assurance ne satisfait l’obligation de souscription que s’il est conforme aux dispositions spécifiques imposant l’obligation.

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Partie cinq: Assurance vie Chapitre dix-sept: Dispositions spéciales pour assurance vie Section une: Parties tiers Article 17:101 Assurance vie sur la vie d’un tiers Un contrat d’assurance vie sur la vie d’une personne autre que le preneur d’assurance est nul, à moins que la personne exposée au risque n’ait donné son consentement éclairé par écrit et avec sa signature. Toute modification substantielle ultérieure du contrat, y compris un changement du bénéficiaire, une augmentation de la somme assurée et un changement de la durée du contrat est sans effet à défaut d’un tel consentement. Il en va de même en cas de cession ou de mise en gage du contrat d’assurance ou du droit à la prestation d’assurance.

Article 17:102 Bénéficiaire de l’indemnité d’assurance (1) Le preneur d’assurance peut désigner un ou plusieurs bénéficiaires de la prestation d’assurance et peut modifier ou révoquer une telle désignation, à moins que l’on n’ait déclaré la désignation irrévocable. La désignation, la modification ou la révocation, à moins qu’elle soit faite dans un testament, doit être faite par écrit et envoyée à l’assureur. (2) Le droit de désigner, changer ou révoquer la désignation cesse avec le premier des deux évènements que sont le décès du preneur d’assurance ou la survenance de l’évènement assuré. (3) Le preneur d’assurance ou ses héritiers, selon le cas, seront considérés comme les bénéficiaires de la prestation d’assurance si (a) le preneur d’assurance n’a pas désigné de bénéficiaire ou (b) la désignation d’un bénéficiaire a été révoqué et aucun autre bénéficiaire n’a été désigné (c) un bénéficiaire est décédé avant que l’évènement assuré n’arrive et aucun autre bénéficiaire n’a été désigné. (4) Si deux ou plusieurs bénéficiaires ont été désignés et que la désignation de n’importe lequel d’entre eux est révoquée ou que n’importe lequel d’entre eux décède avant que l’évènement assuré n’arrive, le montant de la prestation d’assurance qui aurait été dû au bénéficiaire ou aux bénéficiaires en question sera distribué proportionnellement aux bénéficiaires restants, sauf indication contraire par le preneur d’assurance conformément à l’alinéa 1. (5) Soumise aux règles sur la nullité, l’annulabilité ou l’inopposabilité des actes préjudiciable aux créanciers posées par les règles applicables de la loi sur l’insolvabilité, la masse des créanciers du preneur d’assurance n’a aucun droit sur la prestation d’assurance, la valeur de conversion ou la valeur de rachat tant que la prestation n’a pas été payée au preneur d’assurance. (6) Un assureur ayant payé la prestation d’assurance à une personne désignée conformément à l’alinéa 1, est libéré de son obligation de payer, à moins qu’il ait su que la personne en question n’avait pas droit à la prestation d’assurance.

Article 17:103 Bénéficiaire de la valeur de rachat (1) Indépendamment d’une désignation en vertu de l’article 17:102, le preneur d’assurance peut également désigner un bénéficiaire de la valeur de rachat, s’il y en a, et peut modifier ou révoquer telle désignation. La désignation, la modification ou la révocation doit être faite par écrit et envoyée à l’assureur. (2) Le preneur d’assurance doit être considéré comme le bénéficiaire de la valeur de rachat si (a) aucun bénéficiaire de la valeur de rachat n’a été désigné ou

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(b) la désignation d’un bénéficiaire de la valeur de rachat a été révoqué et aucun autre bénéficiaire n’a été désigné ou (c) le bénéficiaire de la valeur de rachat est décédé et aucun autre bénéficiaire n’a été désigné. (3) L’article 17:102 alinéas 2 et 4 à 6 s’appliquent mutatis mutandis.

Article 17:104 Cession ou mise en gage (1) Au cas où un bénéficiaire a été irrévocablement désigné, une cession ou une mise en gage du contrat d’assurance ou du droit à la prestation d’assurance par le preneur d’assurance est sans effet, à moins que le bénéficiaire n’y ait consenti par écrit. (2) Une cession ou une mise en gage du doit à la prestation d’assurance par le bénéficiaire est sans effet à moins que le preneur d’assurance n’y ait consenti par écrit.

Article 17:105 Renonciation à la succession Lorsque le bénéficiaire est un héritier de la personne, exposée au risque, décédée et qu’il a renoncé à la succession, le seul fait de la renonciation n’affecte pas sa situation au regard du contrat d’assurance.

Section deux: Phase initiale et durée du contrat Article 17:201 Obligations d’information précontractuelle du demandeur d’assurance (1) Les informations que le demandeur d’assurance doit fournir conformément à l’article 2:101 alinéa 1, comprennent également les circonstances dont la personne exposée au risque était ou aurait dû être conscient. (2) Les sanctions d’une violation des obligations d’information précontractuelle prévues par les articles 2:102, 2:103 et 2:105, mais non celles en vertu de l’article 2:104, ne sont applicables que pendant cinq ans à compter de la conclusion du contrat.

Article 17:202 Obligations d’information précontractuelle de l’assureur (1) L’assureur doit informer le demandeur d’assurance s’il a un droit de participer aux bénéfices. La réception de cette information doit être reconnue par une déclaration explicite contenu dans un document séparé du formulaire de la demande. (2) Le document que l’assureur doit fournir conformément à l’article 2:201 doit contenir les informations suivantes: (a) en ce qui concerne l’assureur: une référence spécifique à la publication obligatoire du rapport annuel sur sa solvabilité et sa situation financière; (b) en ce qui concerne les engagements contractuels de l’assureur: (i) une explication de chaque garantie et de chaque option, (ii) informations sur la proportion de la prime attribuable à chaque garantie, qu’elle soit principale ou complémentaire, lorsque de telles informations se révèlent appropriées; (iii) les méthodes de calcul et de distribution des bénéfices incluant une spécification de la loi applicable à la surveillance; (iv) une indication des valeurs de rachat et de réduction et la nature des garanties y afférents; (v) dans les contrats à capital variable: une énumération des valeurs de référence utilisées (unités de compte) et une indication sur la nature des actifs représentatifs; (vi) indications générales relatives au régime fiscal applicable au type de police.

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(3) En outre, des informations spécifiques sont fournies afin de permettre de bien percevoir les risques sous-jacents au contrat assumés par le preneur d’assurance. (4) Dans le cas où l’assureur indique des chiffres relatifs au montant de possibles garanties en sus et au-delà des versements convenus par contrat, l’assureur fournit au preneur un exemple de calcul dans lequel le possible versement à échéance est exposé, en appliquant la base de calcul des primes, sur la base de trois taux d’intérêt différents. Ceci ne s’applique pas aux assurances et aux contrats à terme. L’assureur informe le preneur, de manière claire et compréhensible, que cet exemple de calcul n’est que l’application d’un modèle fondé sur de pures hypothèses et que le contrat ne garantit pas les éventuelles prestations.

Article 17:203 Délai de réflexion9 (1) Pour les contrats d’assurance vie, le délai de réflexion prévu par l’article 2:303 alinéa 1 est de un an à compter de la réception de l’acceptation ou de la fourniture des documents mentionnés aux articles 2:501 et 17:202, selon celle qui est plus tardive. (2) Le droit du preneur d’assurance à annuler le contrat conformément à l’article 2:303 alinéa 1 s’éteint un an après la conclusion du contrat.

Article 17:204 Droit du preneur d’assurance de résilier le contrat (1) Le preneur d’assurance a le droit de résilier un contrat d’assurance vie qui est dépourvu de valeur de conversion ou de valeur de rachat, à condition que la résiliation ne prenne pas effet plus tôt qu’un an après la conclusion du contrat. Le droit de résiliation avant la fin de la durée du contrat peut être exclue en cas de paiement d’une prime unique. La résiliation doit être faite par écrit et elle ne devient effective que deux semaines à compter de la réception, par l’assureur, de l’avis de résiliation. (2) Si une valeur de conversion ou une valeur de rachat est attachée au contrat d’assurance vie, les articles 17:601 à 17:603 sont applicables.

Article 17:205 Droit de l’assureur de résilier le contrat L’assureur n’a le droit de résilier un contrat d’assurance vie que dans la mesure permise par le présent chapitre.

Section trois: Modifications pendant la durée du contrat Article 17:301 Obligations d’information post-contractuelle de l’assureur (1) Le cas échéant, l’assureur doit fournir chaque année au preneur d’assurance une déclaration écrite concernant la valeur actuelle des bénéfices attachées à la police. (2) En plus des exigences posées par l’article 2:701, l’assureur doit informer le preneur, sans délai injustifié, de tout changement concernant: (a) les conditions générales et particulières de la police; (b) les informations énumérées à l’article 2:201 let. f et g et à l’article 17:202 alinéa 2 let. b points i à v, en cas de modification des conditions de la police ou des PDECA. (3) L’article 17:202 s’applique également lorsque des chiffres relatifs au montant estimé des bénéfices possibles sont fournis à tout moment pendant la durée du contrat. Lorsque l’assureur 9

L’article 17:203 alinéa 1 prend pour modèle l’article 35 Directive 2002/83/CE concernant l’assurance directe sur la vie et l’article 6 Directive 2002/65/CE.

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a indiqué des chiffres, avant ou après la conclusion du contrat, sur la possible évolution future de la participation aux bénéfices, l’assureur doit informer le preneur de toute différence entre l’évolution constatée et la donnée initiale.

Article 17:302 Aggravation du risque Dans un contrat d’assurance vie, une clause prévoyant l’âge ou la détérioration de la santé en tant qu’aggravation du risque au sens de l’article 4:201 est considérée comme abusive au sens de l’article 2:304.

Article 17:303 Ajustement de la prime et bénéfices payables (1) Dans les contrats d’assurance vie couvrant des risques pour lesquels l’assureur est certain d’être tenu à paiement, l’assureur n’a le droit d’ajuster la prime que conformément aux alinéas 2 et 3. (2) Une augmentation de la prime est admissible au cas où il y a eu un changement imprévisible et permanent en ce qui concerne les risques biométriques utilisés comme base de calcul de la prime, où une augmentation s’avère nécessaire afin de garantir le maintient de la capacité de l’assureur de payer les prestations et où l’augmentation a été acceptée par un administrateur indépendant ou par l’autorité de contrôle. Le preneur d’assurance est en droit de compenser l’augmentation de la prime avec une réduction appropriée des prestations d’assurance. (3) En présence d’une police libérée (paid-up policy), l’assureur a le droit de réduire les prestations d’assurance selon les conditions prévues à l’alinéa 2. (4) Un ajustement, dans les hypothèses prévues aux alinéas 2 et 3, n’est pas permis (a) dans la mesure où une erreur a été commise dans le calcul de la prime et/ou des prestations dont un actuaire compétent et diligent aurait dû s’apercevoir, ou (b) au cas où le calcul sous-jacent ne s’applique pas à tous les contrats, y compris à ceux conclus après l’ajustement. (5) Une augmentation de la prime ou une réduction des prestations devient effective trois mois après que l’assureur a informé par avis écrit le preneur d’assurance de l’augmentation de la prime ou de la réduction des prestations, des motifs à cela, ainsi que du droit propre du preneur d’exiger une réduction des prestations. (6) Dans les contrats d’assurance vie couvrant des risques pour lesquels l’assureur est certain d’être tenu à paiement, le preneur d’assurance a droit à une réduction de la prime lorsque, en raison d’un changement imprévisible et permanent concernant les risques biométriques utilisés comme base de calcul de la prime, le montant original de la prime est inapproprié et n’est plus nécessaire afin de garantir le maintien de la capacité de l’assureur de payer les prestations d’assurance. La diminution doit être acceptée par un administrateur indépendant ou par l’autorité de contrôle. (7) Les droits établis dans cet article peuvent être exercés au plus tôt cinq ans après la conclusion du contrat.

Article 17:304 Modification du contrat (1) Une clause permettant à l’assureur de modifier les termes ou les conditions du contrat autre que ceux relatifs à la prime et les prestations est nulle, à moins que la modification soit nécessaire pour (a) se conformer à une modification de la règlementation impérative, y compris les mesures obligatoires prises par l’autorité de contrôle, ou

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(b) se conformer à une modification d’une règle impérative de la loi nationale applicable concernant le régime de retraite des employeurs, ou (c) se conformer à une modification des règles nationales imposant des exigences spécifiques aux contrats d’assurance vie pour pouvoir bénéficier d’un traitement fiscal spécial ou de subsides étatiques, ou (d) remplacer une clause du contrat conformément à l’article 2:304 alinéa 2 phrase 2. (2) La modification prend effet au début du troisième mois après que le preneur d’assurance ait été informé par un avis écrit de la modification ainsi que des raisons de cette dernière. (3) L’alinéa 1 s’applique sans préjudice d’autres exigences concernant la validité des clauses de modification.

Section quatre: Rapport aux droits nationaux Article 17:401 Régimes de retraite Un contrat d’assurance vie relatif à un régime de retraite est soumis aux règles impératives de la loi nationale applicable aux régimes de retraite. Les PDECA s’appliquent uniquement dans la mesure où ils sont compatibles avec ces règles.

Article 17:402 Traitement fiscal et subsides étatiques Les PDECA n’affectent pas les règles nationales imposant des règles spécifiques à un contrat d’assurance vie pour pouvoir bénéficier d’un traitement fiscal spécial ou de subsides étatiques. En cas de conflit entre de telles exigences posées par la loi nationale applicable et les dispositions des PDECA, il peut être dérogé à ces dernières.

Section cinq: Evènement assuré Article 17:501 Obligation d’investigation et d’information de l’assureur (1) Un assureur qui a des raisons de croire que l’évènement assuré peut être survenu doit prendre des mesures raisonnables afin de le vérifier. (2) L’assureur, qui est au courant de la survenue de l’évènement assuré, doit faire de son mieux, eu égard à la situation, pour trouver l’identité et l’adresse du bénéficiaire et informer cette personne en conséquence. Cette information doit être fournie 30 jours au plus tard après que l’assureur a eu connaissance de l’identité et de l’adresse du bénéficiaire. (3) Lorsqu’un assureur ne respecte pas les exigences posées aux alinéas 1 ou 2, la prescription de la demande d’indemnisation du bénéficiaire est suspendue jusqu’à ce que le bénéficiaire ait pris connaissance de son droit.

Article 17:502 Suicide (1) Lorsque, dans un délai d’un an après la conclusion du contrat, la personne exposée au risque se suicide, l’assureur est libéré de son obligation de payer la prestation d’assurance. Dans ce cas, l’assureur doit payer la valeur de rachat et les bénéfices conformément à l’article 17:602. (2) L’alinéa 1 ne s’applique pas si (a) la personne exposée au risque, au moment de se suicider, était dans un état mental excluant sa capacité de déterminer librement sa volonté, ou

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(b) il est prouvé, hors de toute doute raisonnable, qu’au moment de la conclusion du contrat, la personne exposée au risque n’avait pas l’intention de se suicider.

Article 17:503 Homicide intentionnel de la personne exposée au risque (1) Lorsque le bénéficiaire tue la personne exposée au risque de manière intentionnelle, sa désignation en tant que bénéficiaire est considérée comme révoquée. (2) Une cession du droit à la prestation d’assurance est sans effet si le cessionnaire tue la personne exposée au risque de manière intentionnelle. (3) Lorsque le preneur d’assurance qui est également le bénéficiaire, tue la personne exposée au risque de manière intentionnelle, aucune prestation d’assurance ne sera versée. (4) Lorsque le bénéficiaire ou le preneur d’assurance tue la personne exposée au risque de manière justifiable, comme en cas de légitime défense, le présent article ne s’applique pas.

Section six: Conversion et rachat Article 17:601 Conversion du contrat (1) L’article 5:103 ne s’applique pas aux contrats d’assurance vie pourvus d’une valeur de conversion ou d’une valeur de rachat. De tels contrats doivent être convertis en polices libérées (paid-up policies), à moins que le preneur d’assurance exige le paiement de la valeur de rachat dans un délai de quatre semaines après réception de l’information mentionnée à l’alinéa 2. (2) L’assureur doit informer le preneur d’assurance de la valeur de conversion ainsi que de la valeur de rachat dans les quatre semaines à compter de l’expiration de la période mentionnée à l’article 5:101 (b) ou à l’article 5:102 alinéa 1 (b) et demander au preneur d’assurance de choisir entre la conversion ou le paiement de la valeur de rachat. (3) La demande de conversion ou du paiement de la valeur de rachat doit être faite par écrit.

Article 17:602 Rachat du contrat (1) Le preneur d’assurance peut à tout moment exiger par écrit que l’assureur paie, en partie ou complètement, la valeur de rachat attachée à la police, le paiement ne pouvant intervenir qu’au moins un an après la conclusion du contrat. Le contrat doit être modifié ou résilié en conséquence. (2) En vertu de l’article 17:601, si un contrat d’assurance vie pourvu d’une valeur de rachat est résilié, résolu ou annulé par l’assureur, la valeur de rachat doit être versée, même dans le cas de l’article 2:104. (3) L’assureur doit informer le preneur d’assurance, à la demande de ce dernier, mais en tout cas chaque année, du montant actuel de la valeur de rachat et de la mesure dans laquelle il est garanti. (4) La part du bénéfice auquel le preneur d’assurance a droit doit être payée en plus de la valeur de rachat, à moins que la part n’ait déjà été prise en compte lors du calcul de la valeur de rachat. (5) Les sommes dues en vertu du présent article sont à payer au plus tard deux mois après la réception, par l’assureur, de la demande du preneur d’assurance.

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Article 17:603 Valeur de conversion; Valeur de rachat (1) Le contrat d’assurance doit indiquer les modalités de calcul de la valeur de conversion et/ ou de la valeur de rachat conformément à la loi de l’Etat membre d’origine de l’assureur. Ces modalités doivent respecter les principes actuariels établis ainsi que l’alinéa 2. (2) Lorsque l’assureur déduit les coûts de conclusion du contrat, il doit le faire suivant des montants égaux et sur une durée d’au moins cinq ans. (3) L’assureur a le droit de déduire un montant approprié, calculé conformément aux principes actuariels établis, afin de couvrir des frais liés au paiement de la valeur de rachat, à moins que le calcul n’inclue déjà une telle réduction.

Partie six: Assurance de groupe Chapitre dix-huit: Dispositions spéciales pour assurance de groupe Section une: Assurance de groupe en général Article 18:101 Applicabilité Les contrats d’assurance de groupe sont assujettis aux PDECA pour autant que le souscripteur et l’assureur en aient convenu selon les règles de l’art. 1:102. L’assurance de groupe est soit obligatoire et soumise à la section 2 du présent chapitre, soit facultative et soumise à la section 3 du présent chapitre.

Article 18:102 Obligation générale de diligence du souscripteur (1) Lors de la négociation et l’exécution d’un contrat d’assurance de groupe, le souscripteur doit agir loyalement et de bonne foi en tenant compte des intérêts légitimes des membres du groupe. (2) Le souscripteur doit transmettre tout avis pertinent de l’assureur aux membres du groupe et informer ces derniers de toute modification du contrat.

Section deux: Assurance de groupe obligatoire Article 18:201 Application des PDECA Si nécessaire, les PDECA s’appliquent mutatis mutandis à l’assurance de groupe obligatoire.

Article 18:202 Obligations d’information (1) Lors de l’adhésion d’un membre au groupe, le souscripteur doit informer sans retard injustifié celui-ci de (a) l’existence du contrat d’assurance (b) l’étendue de la couverture (c) toute mesure préventive et autres conditions préalables tendant au maintien de la couverture et (d) la procédure relative aux demandes d’indemnisation. (2) La preuve que l’adhérent a bien reçu les informations requises à l’alinéa 1 incombe au souscripteur.

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Article 18:203 Résiliation par l’assureur (1) Au sens de l’art. 2:604, la résiliation du contrat par l’assureur est considérée comme raisonnable uniquement au cas où elle est limitée à l’exclusion de la couverture du membre du groupe touché par le sinistre. (2) Au sens des art. 4:102 et 4:203 alinéa 1, la résiliation du contrat par l’assureur n’a pour effet d’exclure de la couverture que les membres du groupe qui, selon le cas, n’ont pas pris les mesures de précaution requises ou dont le risque assuré s’est aggravé. (3) Au sens de l’art. 12:102, la résiliation du contrat n’a pour effet d’exclure que les membres du groupe qui ont transféré la propriété du bien assuré.

Article 18:204 Droit à la continuation de la couverture – Assurance vie de groupe (1) Si un contrat d’assurance vie de groupe obligatoire est résilié ou si le membre quitte le groupe, la couverture se termine après trois mois ou avec la fin du contrat d’assurance vie de groupe, selon la première de ces deux dates. En pareil cas, le membre du groupe a droit à une couverture équivalente au moyen d’un nouveau contrat individuel avec l’assureur, sans qu’il y ait une nouvelle évaluation des risques. (2) Le preneur d’assurance doit informer le membre du groupe sans retard par écrit de (a) la fin imminente de la couverture conformément au contrat d’assurance vie de groupe, (b) ses droits en vertu de l’alinéa 1 et (c) des modalités d’exercice de ses droits. (3) Si un membre du groupe a indiqué son intention d’exercer son droit en vertu de l’article 18:204 alinéa 1, le contrat entre l’assureur et le membre du groupe continue en tant que contrat d’assurance individuel avec une prime calculée sur la base d’une police individuelle à ce moment, sans tenir compte de l’état de santé ou de l’âge actuel du membre du groupe.

Section trois: Assurance de groupe facultative Article 18:301 Assurance de groupe facultative: Généralités (1) L’assurance de groupe facultative est la combinaison d’un contrat-cadre conclu entre l’assureur et l’organisateur de groupe et des contrats d’assurance individuels conclus dans un tel cadre entre l’assureur et les membres du groupe. (2) Les PDECA s’appliquent aux contrats individuels si le souscripteur et l’assureur ont convenu de leur application. Toutefois, à l’exception des articles 18:101 et 18:102, les PDECA ne s’appliquent pas au contrat-cadre.

Article 18:302 Modification du contrat La modification du contrat-cadre n’a d’effet à l’égard du contrat d’assurance individuel que si elle est effectuée conformément aux exigences des articles 2:603, 17:303 and 17:304, selon ce qui convient.

Article 18:303 Maintien de la couverture La fin du contrat-cadre ou la fin de l’adhésion d’un membre individuel du groupe n’a aucun effet à l’égard du contrat d’assurance existant entre l’assureur et le membre du groupe.

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German version

by Nina Adelmann†, Leander D. Loacker and Andrea Stäubli

Grundregeln des Europäischen Versicherungsvertragsrecht (GEVVR) Erster Teil: Allgemeine Vorschriften für alle Verträge, die den Grundregeln des Europäischen Versicherungsvertragsrechts (GEVVR) unterfallen 1. Kapitel: Einführungsbestimmungen Erster Abschnitt: Anwendbarkeit der GEVVR Zweiter Abschnitt: Allgemeine Regelungen Dritter Abschnitt: Durchsetzung

2. Kapitel: Zustandekommen und Laufzeit des Versicherungsvertrages Erster Abschnitt: Vorvertragliche Anzeigepflicht des Antragstellers Zweiter Abschnitt: Vorvertragliche Pflichten des Versicherers Dritter Abschnitt: Vertragsschluss Vierter Abschnitt: Rückwärtsversicherung und vorläufige Deckung Fünfter Abschnitt: Versicherungspolice Sechster Abschnitt: Laufzeit des Versicherungsvertrages Siebter Abschnitt: Informationspflichten des Versicherers nach Vertragsschluss

3. Kapitel: Versicherungsvermittler 4. Kapitel: Versichertes Risiko Erster Abschnitt: Sicherheitsmaßnahme Zweiter Abschnitt: Risikoerhöhung Dritter Abschnitt: Risikoverringerung

5. Kapitel: Versicherungsprämie 6. Kapitel: Versicherungsfall 7. Kapitel: Verjährung Zweiter Teil: Allgemeine Vorschriften für die Schadensversicherung 8. Kapitel: Versicherungssumme und Versicherungswert

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9. Kapitel: Anspruch auf Schadensersatz 10. Kapitel: Rechte aus dem Forderungsübergang 11. Kapitel: Vom Versicherungsnehmer verschiedene Versicherte 12. Kapitel: Versichertes Risiko Dritter Teil: Allgemeine Bestimmungen für die Summenversicherung 13. Kapitel: Zulässigkeit Vierter Teil: Haftpflichtversicherung 14. Kapitel: Allgemeine Haftpflichtversicherung 15. Kapitel: Direktansprüche und Direktklagen 16. Kapitel: Pflichtversicherung Fünfter Teil: Lebensversicherung 17. Kapitel: Besondere Bestimmungen für die Lebensversicherung Erster Abschnitt: Dritte Zweiter Abschnitt: Zustandekommen und Laufzeit des Vertrages Dritter Abschnitt: Änderungen während der Vertragslaufzeit Vierter Abschnitt: Verhältnis zum nationalen Recht Fünfter Abschnitt: Versicherungsfall Sechster Abschnitt: Umwandlung und Rückkauf

Sechster Teil: Gruppenversicherung 18. Kapitel: Besondere Bestimmungen für die Gruppenversicherung Erster Abschnitt: Gruppenversicherung im Allgemeinen Zweiter Abschnitt: Akzessorische Gruppenversicherung Dritter Abschnitt: Freiwillige Gruppenversicherung

German: Grundregeln des Europäischen Versicherungsvertragsrecht (GEVVR)

Erster Teil: Allgemeine Vorschriften für alle Verträge, die den Grundregeln des Europäischen Versicherungsvertragsrechts (GEVVR) unterfallen 1. Kapitel: Einführungsbestimmungen Erster Abschnitt: Anwendbarkeit der GEVVR Artikel 1:101 Materieller Anwendungsbereich (1) Die GEVVR sind auf die Privatversicherung im Allgemeinen, und zwar einschließlich der Versicherung auf Gegenseitigkeit, anwendbar. (2) Auf die Rückversicherung finden die GEVVR keine Anwendung.

Artikel 1:102 Optionale Anwendung Die GEVVR gelangen zur Anwendung, wenn die Parteien, ungeachtet aller Beschränkungen der Rechtswahlfreiheit durch internationales Privatrecht, deren Geltung für ihren Vertrag vereinbart haben. Vorbehaltlich des Artikels 1:103 sind die GEVVR im Ganzen anzuwenden, ein Ausschluss einzelner Vorschriften ist nicht zulässig.

Artikel 1:103 Zwingender Charakter (1) Die Artikel 1:102 Satz 2, 2:104, 2:304, 13:101, 17:101 und 17:503 sind unabdingbar. Andere Artikel sind insofern unabdingbar, als Rechtsfolgen für arglistiges Verhalten betroffen sind. (2) Von allen anderen Bestimmungen kann der Vertrag abweichen, solange sich diese Abweichung nicht zum Nachteil des Versicherungsnehmers, des Versicherten oder des Begünstigten auswirkt. (3) Abweichungen im Sinne von Absatz 2 sind zum Vorteil jeder Partei zulässig in Verträgen über Grossrisiken im Sinne von Artikel 13 Absatz 27 der Richtlinie 2009/138/EG. In der Gruppenversicherung kann eine Abweichung einem einzelnem Versicherten nur entgegengehalten werden, wenn dieser die in Artikel 13 Absatz 27 lit. b oder c der Richtlinie 2009/138/EG genannten persönlichen Eigenschaften aufweist, soweit anwendbar.

Artikel 1:104 Auslegung Die GEVVR sind im Lichte ihres Wortlauts, Zusammenhangs, Zwecks und rechtsvergleichenden Hintergrundes auszulegen. Insbesondere ist dem Bedürfnis Rechnung zu tragen, die Wahrung des guten Glaubens und redlichen Handelns im Versicherungsgeschäft, die Rechtssicherheit in vertraglichen Beziehungen sowie die Einheitlichkeit der Anwendung und den angemessenen Schutz der Versicherungsnehmer zu fördern.

Artikel 1:105 Nationales Recht und Allgemeine Grundsätze (1) Ein Rückgriff auf nationales Recht, sei es zur Einschränkung oder zur Ergänzung der GEVVR, ist unzulässig. Dies gilt nicht für zwingende nationale Regelungen, die speziell für Versicherungszweige erlassen wurden, welche nicht von besonderen Bestimmungen der GEVVR erfasst sind. (2) Sich aus dem Versicherungsvertrag ergebende Fragen, die nicht ausdrücklich in den GEVVR geregelt sind, sind in Übereinstimmung mit den Grundregeln des Europäischen Vertragsrechts

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(GEVR)1 und, falls einschlägige Regelungen dort nicht getroffen wurden, in Übereinstimmung mit den allgemeinen Grundsätzen, die den Rechtsordnungen der Mitgliedsstaaten gemeinsam sind, zu entscheiden.

Zweiter Abschnitt: Allgemeine Regelungen Artikel 1:201 Versicherungsvertrag (1) Der „Versicherungsvertrag“ ist ein Vertrag, bei dem eine Partei, der Versicherer, einer anderen Partei, dem Versicherungsnehmer, die Deckung eines bestimmten Risikos gegen Zahlung einer Prämie verspricht; (2) „Versichertes Ereignis“ ist die Verwirklichung des im Versicherungsvertrag bestimmten Risikos; (3) „Schadensversicherung“ ist eine Versicherung, bei der der Versicherer verpflichtet ist, einen durch den Eintritt des versicherten Ereignisses erlittenen Schaden zu ersetzen; (4) „Summenversicherung“ ist eine Versicherung, bei der der Versicherer im Falle des Eintritts des versicherten Ereignisses verpflichtet ist, eine bestimmte Geldsumme zu bezahlen; (5) „Haftpflichtversicherung“ ist eine Versicherung, bei welcher das Risiko darin besteht, dass den Versicherten eine gesetzliche Haftpflicht gegenüber dem Opfer trifft; (6) „Lebensversicherung“ ist eine Versicherung, bei welcher die Pflicht des Versicherers oder die Prämienzahlung von einem versicherten Ereignis abhängt, welches ausschließlich mit Bezug auf den Tod oder das Überleben der Gefahrsperson definiert wird; (7) „Gruppenversicherungverträge“ sind Verträge zwischen einem Versicherer und einem Gruppenorganisator zum Vorteil von Gruppenmitgliedern mit einer gemeinsamen Verbindung zum Gruppenorganisator. Ein Gruppenversicherungsvertrag kann auch Familienangehörige der Gruppenmitglieder miterfassen; (8) „Akzessorische Gruppenversicherung“ ist eine Gruppenversicherung, bei welcher die Gruppenmitglieder aufgrund ihrer Zugehörigkeit zur Gruppe automatisch versichert sind und die Versicherung nicht ablehnen können; (9) „Freiwillige Gruppenversicherung“ ist eine Gruppenversicherung, bei welcher die Gruppenmitglieder versichert sind, weil sie einen persönlichen Antrag gestellt oder weil sie die Versicherung nicht ablehnt haben.

Artikel 1:202 Weitere Definitionen (1) „Versicherter“ ist jene Person in der Schadensversicherung, deren Interesse vor dem Eintritt eines Schadens geschützt wird; (2) „Begünstigter“ ist jene Person in der Summenversicherung, zu deren Gunsten die Versicherungssumme auszahlbar ist; (3) „Gefahrsperson“ ist jene Person, auf deren Leben, Gesundheit, Unversehrtheit oder Personenstand eine Versicherung genommen wird; (4) „Opfer“ ist in der Haftpflichtversicherung jene Person, für deren Tod, Verletzung oder Schaden der Versicherte haftpflichtig ist; (5) „Versicherungsvertreter“ ist ein Versicherungsvermittler, der vom Versicherer beauftragt ist, Versicherungsverträge anzubieten, zu verkaufen oder zu verwalten; 1

Vgl. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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(6) „Prämie“ ist jene Zahlung, die der Versicherungsnehmer dem Versicherer als Gegenleistung für die gewährte Deckung schuldet; (7) „Vertragslaufzeit“ ist die Zeitspanne vertraglicher Bindung, die mit dem Vertragsschluss beginnt und mit Ablauf der vereinbarten Laufzeit endet; (8) „Versicherungsperiode“ ist die Zeitspanne, für die die Prämie laut Vereinbarung der Parteien geschuldet wird; (9) „Haftungszeitraum“ ist die Zeitspanne, während der ein Anspruch auf Deckung besteht; (10) „Pflichtversicherung“ ist eine Versicherung, welche aufgrund einer Versicherungspflicht abgeschlossen wurde, welche auf Gesetz oder Verordnung beruht.

Artikel 1:203 Sprache und Auslegung von Unterlagen2 (1) Alle Unterlagen, die der Versicherer zur Verfügung stellt, müssen klar und verständlich sowie in der Sprache formuliert sein, in der der Vertrag ausgehandelt wird. (2) Bei Zweifeln hinsichtlich der Bedeutung des Wortlauts eines Schriftstücks oder einer sonstigen Information, die von Seiten des Versicherers zur Verfügung gestellt wurde, ist die für den Versicherungsnehmer, den Versicherten oder den Begünstigten jeweils günstigste Auslegung maßgeblich.

Artikel 1:204 Zugang von Unterlagen: Beweis Der Beweis, dass vom Versicherer zur Verfügung zu stellende Unterlagen dem Versicherungsnehmer zugegangen sind, obliegt dem Versicherer.

Artikel 1:205 Form von Mitteilungen Im Zusammenhang mit dem Versicherungsvertrag erfolgende Mitteilungen des Antragstellers, des Versicherungsnehmers, des Versicherten oder des Begünstigten bedürfen vorbehaltlich besonderer Regelungen der GEVVR keiner bestimmten Form.

Artikel 1:206 Wissenszurechnung Wenn eine Person vom Versicherungsnehmer, dem Versicherten oder dem Begünstigten mit der Erfüllung von Aufgaben betraut ist, die für den Abschluss oder die Durchführung des Vertrages bedeutsam sind, sind wesentliche Kenntnisse, die diese Person in Erfüllung ihrer Aufgaben erlangt oder erlangen hätte müssen, je nach Lage des Falles entweder als Kenntnisse des Versicherungsnehmers, des Versicherten oder des Begünstigten zu betrachten.

Artikel 1:207 Gleichbehandlung3 (1) Geschlecht, Schwangerschaft, Mutterschaft, Nationalität, Rasse oder ethnische Herkunft dürfen keinesfalls zu Unterschieden bei der Bemessung von Prämien und Leistungen des Einzelnen führen. (2) Gegen Absatz 1 verstoßende Vertragsbestimmungen, einschließlich solcher, die sich auf die Prämie beziehen, sind gegenüber dem Versicherungsnehmer oder dem Versicherten unwirksam. Der Vertrag wird in diesem Fall vorbehaltlich des Absatzes 3 auf Basis nicht diskriminierender Vertragsbestimmungen fortgeführt.

2

3

Artikel 1:203 Absatz 2 ist Artikel 5 der Richtlinie 93/13/EWG nachgebildet. Dieser Artikel ist der Richtlinie 2004/113/EG sowie dem Urteil des EuGH, Rs C-236/09, Test Achats, Slg. 2011 I-00773 nachgebildet.

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(3) Im Falle des Verstoßes gegen Absatz 1 ist der Versicherungsnehmer berechtigt, den Vertrag zu kündigen. Die Kündigung muss dem Versicherer schriftlich innerhalb von zwei Monaten, nachdem der Versicherungsnehmer von dem Verstoß Kenntnis erlangt, zugehen.

Artikel 1:208 Genetische Untersuchungen (1) Der Versicherer darf vom Antragssteller, Versicherungsnehmer oder der Gefahrsperson nicht verlangen, sich einer genetischen Untersuchung zu unterziehen oder die Ergebnisse einer solchen Untersuchung offenzulegen, zudem dürfen solche Informationen vom Versicherer nicht zum Zwecke der Einstufung der Risiken verwendet werden. (2) Absatz 1 findet auf Personenversicherungen keine Anwendung, bei welchen die Gefahrsperson mindestens 18 Jahre alt ist und die Versicherungssumme für diese Person 300,000 Euro oder die aufgrund des Versicherungsvertrages zu zahlenden Leistungen 30‘000 Euro pro Jahr übersteigen.

Dritter Abschnitt: Durchsetzung Artikel 1:301 Unterlassungsklagen4 (1) Eine qualifizierte Einrichtung im Sinne des Absatzes 2 ist berechtigt, ein zuständiges nationales Gericht oder eine zuständige nationale Behörde anzurufen und eine Entscheidung zu beantragen, die die Verletzung der GEVVR, sofern diese im Sinne des Artikel 1:102 anwendbar sind, verbietet oder ihre Unterlassung anordnet. (2) Eine qualifizierte Einrichtung ist jede Körperschaft oder Organisation, die in dem von der Europäischen Kommission erstellten Verzeichnis gemäß Artikel 4 der Richtlinie 2009/22/EG des Europäisches Parlaments und des Rates vom 23. April 2009 über Unterlassungsklagen zum Schutz der Verbraucherinteressen in der geltenden Fassung eingetragen ist.

Artikel 1:302 Außergerichtliche Beschwerde- und Rechtsbehelfsverfahren Die Anwendbarkeit der GEVVR schließt den anderenfalls vorhandenen Zugang des Versicherungsnehmers, Versicherten oder Begünstigten zu außergerichtlichen Beschwerde- und Rechtsbehelfsverfahren nicht aus.

2. Kapitel: Zustandekommen und Laufzeit des Versicherungsvertrags Erster Abschnitt: Vorvertragliche Anzeigepflicht des Antragstellers Artikel 2:101 Anzeigepflicht (1) Sofern der Versicherer klar und hinreichend bestimmt danach fragt, hat der Antragsteller dem Versicherer bei Vertragsabschluss Umstände anzuzeigen, die ihm bekannt sind oder bekannt sein hätten müssen. (2) Die in Absatz 1 genannten Umstände schließen diejenigen ein, die der zu versichernden Person bekannt waren oder hätten bekannt sein müssen.

4

Dieser Artikel ist der Richtlinie 2009/22/EG nachgebildet.

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Artikel 2:102 Pflichtverletzung (1) Wenn der Versicherungsnehmer die Anzeigepflicht nach Artikel 2:101 verletzt, kann der Versicherer vorbehaltlich der Absätze 2 bis 5 eine angemessene Anpassung des Vertrages verlangen oder den Vertrag kündigen. Zu diesem Zweck muss der Versicherer innerhalb eines Monats, nachdem ihm die Verletzung des Artikels 2:101 bekannt oder diese für ihn offensichtlich wurde, seine Absicht verbunden mit einer Belehrung über die rechtlichen Folgen seiner Entscheidung schriftlich mitteilen. (2) Schlägt der Versicherer eine angemessene Vertragsanpassung vor, so besteht der Vertrag auf Grundlage der vorgeschlagenen Änderungen fort, sofern der Versicherungsnehmer den Vorschlag nicht innerhalb eines Monats nach Zugang der in Absatz 1 genannten Mitteilung ablehnt. In diesem Fall hat der Versicherer das Recht, den Vertrag innerhalb eines Monats nach Zugang der Ablehnung des Versicherungsnehmers schriftlich zu kündigen. (3) Sofern die Verletzung des Artikels 2:101 nicht auf einem Verschulden des Versicherungsnehmers beruht, ist der Versicherer nicht berechtigt, den Vertrag zu kündigen, es sei denn, der Versicherer beweist, dass er den Vertrag in Kenntnis der betroffenen Information nicht geschlossen hätte. (4) Die Kündigung des Vertrages wird einen Monat nach Zugang der in Absatz 1 genannten Mitteilung beim Versicherungsnehmer wirksam. Eine Vertragsanpassung wird entsprechend der Vereinbarung der Parteien wirksam. (5) Wird ein Versicherungsfall durch ein Risiko verursacht, das durch den Versicherungsnehmer falsch oder fahrlässig nicht angezeigt wurde und tritt der Versicherungsfall ein, bevor eine Kündigung oder Vertragsanpassung wirksam wird, so ist der Versicherer von seiner Verpflichtung zur Leistung frei, sofern er den Vertrag in Kenntnis der betreffenden Information nicht geschlossen hätte. Hätte der Versicherer den Vertrag jedoch gegen eine höhere Prämie oder zu anderen Bedingungen geschlossen, ist die Versicherungsleistung anteilig oder entsprechend dieser Bedingungen zu leisten.

Artikel 2:103 Ausnahmen Die in Artikel 2:102 genannten Rechtsfolgen treten nicht ein, wenn (a) eine Frage gänzlich unbeantwortet blieb oder Angaben offensichtlich unvollständig oder unrichtig waren; (b) Umstände, die angezeigt werden hätten müssen oder ungenau angezeigt wurden, für die Entscheidung eines redlichen Versicherers, den Vertrag überhaupt oder zu den vereinbarten Bedingungen einzugehen, nicht wesentlich waren; (c) der Versicherer beim Versicherungsnehmer den Anschein erweckt hat, die betreffenden Umstände seien nicht anzeigepflichtig; oder (d) die betreffenden Umstände dem Versicherer bekannt waren oder hätten bekannt sein müssen.

Artikel 2:104 Arglistige Täuschung Unbeschadet der in Artikel 2:102 genannten Rechtsfolgen ist der Versicherer berechtigt, den Vertrag bei gleichzeitiger Wahrung seines Anspruchs auf die fälligen Prämien anzufechten, wenn er vom Versicherungsnehmer durch arglistige Verletzung des Artikels 2:101 zum Vertragsschluss veranlasst wurde. Die Anfechtung muss dem Versicherungsnehmer innerhalb von zwei Monaten, nachdem der Versicherer von der arglistigen Täuschung Kenntnis erlangt hat, schriftlich mitgeteilt werden.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Artikel 2:105 Zusätzliche Angaben Die Artikel 2:102 bis 2:104 gelangen auch auf sämtliche Angaben des Versicherungsnehmers zur Anwendung, die dieser im Zeitpunkt des Vertragsschlusses zusätzlich zu den gemäß Artikel 2:101 geforderten macht.

Artikel 2:106 Genetische Informationen Dieser Abschnitt ist nicht auf die Ergebnisse genetischer Untersuchungen anzuwenden, welche Artikel 1:208 Absatz 1 unterstehen.

Zweiter Abschnitt: Vorvertragliche Pflichten des Versicherers Artikel 2:201 Aushändigung von vorvertraglichen Unterlagen5 (1) Der Versicherer hat dem Antragsteller eine Kopie der vorgeschlagenen Vertragsbedingungen sowie eine Unterlage auszuhändigen, die, soweit erforderlich, die folgenden Angaben enthält: (a) Name und Anschrift der Vertragsparteien, insbesondere des (Haupt-)Sitzes sowie die Rechtsform des Versicherers und gegebenfalls der Zweigniederlassung, die den Vertrag abschließt oder Deckung gewährt; (b) Name und Anschrift des Versicherten sowie bei Lebensversicherungen des Begünstigten und der Gefahrsperson; (c) Name und Anschrift des Versicherungsvertreters; (d) Gegenstand der Versicherung und des versicherten Risikos; (e) Versicherungssumme und sämtliche Selbstbehalte; (f) Prämienhöhe und die Methode, nach der sie berechnet wird; (g) Zeitpunkt, zu dem die Prämie fällig wird, Zahlungsort und -art; (h) Vertragslaufzeit, einschließlich der Art der Vertragsbeendigung, und den Haftungszeitraum; (i) das Recht, den Antrag zu widerrufen oder den Vertrag gemäß Artikel 2:303 bei der Nichtlebensversicherung bzw. gemäß Artikel 17:203 bei der Lebensversicherung anzufechten; (j) dass der Vertrag den GEVVR untersteht; (k) das Vorhandensein außergerichtlicher Beschwerde- und Rechtsbehelfsverfahren für den Antragsteller samt den dazu vorhandenen Zugangsmöglichkeiten; (l) das Vorhandensein von Garantiefonds oder anderen Ausgleichszahlungsmöglichkeiten. (2) Diese Informationen sind dem Antragsteller nach Möglichkeit so zur Verfügung zu stellen, dass er genügend Zeit hat, zu überlegen, ob er den Vertrag abschließen möchte oder nicht. (3) Sofern der Antragsteller seinen Antrag auf Deckung auf Grundlage eines vom Versicherer zur Verfügung gestellten Antragsformulars und/oder Fragebogens gestellt hat, hat der Versicherer dem Antragsteller eine Kopie der ausgefüllten Unterlagen zur Verfügung zu stellen.

Artikel 2:202 Aufklärungspflicht über Deckungslücken (1) Bei Abschluss des Versicherungsvertrags hat der Versicherer den Antragsteller unter Berücksichtigung der Umstände und der Art und Weise des Vertragsschlusses sowie insbesondere der Tatsache, ob der Antragsteller von einem unabhängigen Vermittler beraten wurde, auf alle Abweichungen zwischen dem angebotenen Deckungsschutz und den Bedürfnissen des Antragstellers hinzuweisen, die ihm bekannt sind oder bekannt sein hätten müssen.

5

Diese Vorschrift ist den Artikeln 183-189 der Richtlinie 2009/138/EG (Solvency II) nachgebildet.

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(2) Im Fall einer Verletzung des Absatz 1 (a) hat der Versicherer den Versicherungsnehmer für alle Nachteile zu entschädigen, die durch die Verletzung seiner Aufklärungspflicht verursacht worden sind, es sei denn, den Versicherer trifft kein Verschulden, und (b) ist der Versicherungsnehmer berechtigt, den Vertrag binnen zweier Monate ab Kenntnis von der Pflichtverletzung schriftlich zu kündigen.

Artikel 2:203 Aufklärungspflicht über den Beginn der Deckung Wenn der Antragsteller nachvollziehbar, aber irrtümlich davon ausgeht, dass der Deckungsschutz mit dem Zeitpunkt eintritt, zu dem der Antrag abgegeben wird, und der Versicherer dies erkennt oder erkennen hätte müssen, hat der Versicherer den Antragsteller unverzüglich darauf hinzuweisen, dass der Deckungsschutz außer bei Gewährung vorläufiger Deckung nicht beginnt, bevor der Vertrag abgeschlossen ist und gegebenenfalls die erste Prämie bezahlt wurde. Wenn der Versicherer diese Aufklärungspflicht verletzt, haftet er gemäß Artikel 2:202 Absatz 2 lit. a.

Dritter Abschnitt: Vertragsschluss Artikel 2:301 Form des Vertragsschlusses Ein Versicherungsvertrag muss weder schriftlich abgeschlossen oder nachgewiesen werden noch irgendwelchen anderen Formvorschriften entsprechen. Der Vertrag kann mit jedem beliebigen Mittel einschließlich der mündlichen Bezeugung unter Beweis gestellt werden.

Artikel 2:302 Widerruf eines Antrags auf Gewährung von Versicherungsschutz Ein Versicherungsantrag kann vom Antragsteller widerrufen werden, sofern der Widerruf dem Versicherer zugeht, bevor der Antragsteller eine Annahmeerklärung des Versicherers erhält.

Artikel 2:303 Bedenkzeit6 (1) Der Versicherungsnehmer ist berechtigt, den Vertrag binnen 14 Tagen nach Zugang der Annahmeerklärung oder nach Aushändigung der in Artikel 2:501 genannten Unterlagen, je nach dem, was das später erfolgt, durch schriftliche Mitteilung zu widerrufen. (2) Das Widerrufsrecht des Versicherungsnehmers ist ausgeschlossen, wenn (a) die Vertragslaufzeit weniger als einen Monat beträgt; (b) der Vertrag gemäß Artikel 2:602 verlängert wird; (c) es sich um eine vorläufige Versicherung, eine Haftpflichtversicherung oder eine Gruppenversicherung handelt.

Artikel 2:304 Missbräuchliche Klauseln7 (1) Eine Vertragsklausel, die nicht im Einzelnen ausgehandelt wurde, ist gegenüber dem Versicherungsnehmer, dem Versicherten oder dem Begünstigten als unwirksam anzusehen, wenn sie unter Berücksichtigung der Art des Versicherungsvertrags, allen anderen Vertragsklauseln sowie der den Vertragsabschluss begleitenden Umstände zu seinem Nachteil ein erhebliches und ungerechtfertigtes Missverhältnis der vertraglichen Rechte und Pflichten der Vertragspartner

6 7

Diese Vorschrift ist der Richtlinie 2002/65/EG nachgebildet. Diese Vorschrift ist der Richtlinie 93/13/EWG nachgebildet.

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verursacht, das dem Gebot von Treu und Glauben und den Grundsätzen redlichen Verhaltens widerspricht. (2) Soweit der Versicherungsvertrag auch ohne die unwirksame Bestimmung fortbestehen kann, bleibt er im Übrigen wirksam. Anderenfalls kann die unwirksame Klausel durch eine Vertragsbestimmung ersetzt werden, die redliche Vertragsparteien in Kenntnis der Missbräuchlichkeit der betroffenen Klausel vereinbart hätten. (3) Dieser Artikel findet auf Vertragsklauseln, die die Deckung beschränken oder verändern, Anwendung, er ist hingegen weder anwendbar auf (a) die Angemessenheit des Verhältnisses von Deckungsschutz und Prämie noch auf (b) Vertragsklauseln, die die grundlegende Beschreibung der gewährten Deckung oder der vereinbarten Prämie enthalten, sofern sie klar und verständlich abgefasst sind. (4) Eine Vertragsklausel ist immer dann als nicht im Einzelnen ausgehandelt anzusehen, wenn sie im Voraus abgefasst wurde und der Versicherungsnehmer deshalb, insbesondere im Rahmen eines vorformulierten Standardvertrages, keinen Einfluss auf ihren Inhalt nehmen konnte. Die Tatsache, dass bestimmte Elemente einer Vertragsklausel oder eine einzelne Klausel im Einzelnen ausgehandelt worden sind, schließt die Anwendung dieses Artikels auf den übrigen Vertrag nicht aus, sofern es sich nach der Gesamtwertung dennoch um einen vorformulierten Standardvertrag handelt. Behauptet ein Versicherer, dass eine Standardvertragsklausel im Einzelnen ausgehandelt wurde, so obliegt ihm dafür die Beweislast.

Vierter Abschnitt: Rückwärtsversicherung und vorläufige Deckung Artikel 2:401 Rückwärtsversicherung (1) Sofern Deckung für einen Zeitraum vor dem Vertragsschluss gewährt wird (Rückwärtsversicherung) und der Versicherer zum Zeitpunkt des Vertragsschlusses Kenntnis davon hat, dass sich kein versichertes Risiko verwirklicht hat, schuldet der Versicherungsnehmer Prämien nur für den Zeitraum nach Vertragsschluss. (2) Sofern der Versicherungsnehmer im Falle der Rückwärtsversicherung zum Zeitpunkt des Vertragsschlusses Kenntnis davon hat, dass das versicherte Ereignis bereits eingetreten ist, schuldet der Versicherer vorbehaltlich des Artikels 2:104 Deckung nur für die Zeit nach Vertragsschluss.

Artikel 2:402 Vorläufige Deckung (1) Bei Abschluss eines Versicherungsvertrages über vorläufige Deckung hat der Versicherer eine Deckungsbestätigung auszustellen, die die in Artikel 2:501 lit. a, b, d, e und h näher bezeichneten Informationen enthält, sofern diese von Bedeutung sind. (2) Die Artikel 2:201 bis 2:203 und, vorbehaltlich des obigen Absatzes 1, Artikel 2:501 sind auf die vorläufige Deckung nicht anzuwenden.

Artikel 2:403 Dauer der vorläufigen Deckung (1) Sofern dem Antragsteller eines Versicherungsvertrages vorläufige Deckung gewährt wird, endet der vorläufige Deckungsschutz frühestens zu dem Zeitpunkt, zu dem die Deckung nach dem Versicherungsvertrag vereinbarungsgemäß beginnen soll oder zu dem Zeitpunkt, zu dem der Antragsteller vom Versicherer die endgültige Ablehnung des Antrags erhält.

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(2) Sofern einer Person vorläufige Deckung gewährt wird, die nicht bei demselben Versicherer einen Antrag auf Abschluss eines Versicherungsvertrages gestellt hat, so kann der vorläufige Deckungsschutz für einen kürzeren als den in Artikel 2:601 Absatz 1 genannten Zeitraum gewährt werden. Eine solche Deckung kann von jeder Partei unter Einhaltung einer Frist von zwei Wochen gekündigt werden.

Fünfter Abschnitt: Versicherungspolice Artikel 2:501 Inhalt Der Versicherer hat bei Abschluss des Versicherungsvertrages eine Versicherungspolice samt den allgemeinen Vertragsbestimmungen, soweit diese nicht schon in der Police enthalten sind, auszustellen, die, sofern erheblich, die folgenden Angaben enthält: (a) Name und Anschrift der Vertragsparteien, insbesondere des (Haupt-)Sitzes sowie die Rechtsform des Versicherers und gegebenfalls der Zweigniederlassung, die den Vertrag abschließt oder Deckung gewährt; (b) Name und Anschrift des Versicherten sowie bei Lebensversicherungen des Begünstigten und der Gefahrsperson; (c) Name und Anschrift des Vermittlers; (d) Gegenstand der Versicherung und des versicherten Risikos; (e) Versicherungssumme und sämtliche Selbstbehalte; (f) Die Prämienhöhe oder die Methode, nach der sie berechnet wird; (g) Zeitpunkt, zu dem die Prämie fällig wird, Zahlungsort und -art; (h) Vertragslaufzeit, einschließlich der Art der Vertragsbeendigung, und den Haftungszeitraum; (i) das Recht, den Antrag zu widerrufen oder den Vertrag gemäß Artikel 2:303 bei der Nichtlebensversicherung bzw. gemäß Artikel 17:203 bei der Lebensversicherung anzufechten; (j) dass der Vertrag den GEVVR untersteht; (k) das Vorhandensein außergerichtlicher Beschwerde- und Rechtsbehelfsverfahren für den Antragsteller samt den dazu vorhandenen Zugangsmöglichkeiten; (l) das Vorhandensein von Garantiefonds oder anderen Ausgleichszahlungsmöglichkeiten.

Artikel 2:502 Wirkungen der Police (1) Bei Abweichungen zwischen den Bestimmungen in der Versicherungspolice und denen im Antrag des Versicherungsnehmers oder einer früher zwischen den Parteien getroffenen Vereinbarung sind nur diejenigen Änderungen als vom Versicherungsnehmer genehmigt zu betrachten, die in der Police hervorgehoben wurden und denen er nicht innerhalb eines Monats nach Zugang der Police widersprochen hat. Der Versicherer hat den Versicherungsnehmer in fettgedruckter Schrift auf das Recht hinzuweisen, den in der Police hervorgehobenen Änderungen zu widersprechen. (2) Wenn der Versicherer die Bestimmungen des Absatz 1 nicht erfüllt, gilt der Vertrag je nach Lage des Falles entweder als mit den im Antrag des Versicherungsnehmers oder als mit den in der früher getroffenen Parteienvereinbarung enthaltenen Bestimmungen geschlossen.

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Sechster Abschnitt: Laufzeit des Versicherungsvertrages Artikel 2:601 Laufzeit des Versicherungsvertrages (1) Die Laufzeit des Versicherungsvertrages beträgt ein Jahr. Die Parteien können einen anderen Zeitraum vereinbaren, wenn dies aufgrund der Art des Risikos angezeigt ist. (2) Absatz 1 findet auf die Personenversicherung keine Anwendung.

Artikel 2:602 Verlängerung (1) Nach Ablauf der in Artikel 2:601 genannten Einjahresperiode verlängert sich der Vertrag, es sei denn (a) der Versicherer hat unter Nennung der dafür maßgeblichen Gründe bis spätestens einen Monat vor Ablauf der Vertragslaufzeit schriftlich das Gegenteil mitgeteilt; oder (b) der Versicherungsnehmer hat, je nachdem was später eintritt, entweder spätestens an dem Tag, an dem die Vertragslaufzeit abläuft, oder innerhalb eines Monats ab Zugang der Prämienrechnung des Versicherers schriftlich das Gegenteil mitgeteilt. Im letztgenannten Fall beginnt die Monatsfrist nur dann zu laufen, wenn dies auf der Rechnung deutlich in fettgedruckter Schrift angegeben war. (2) Für die Zwecke des Absatzes 1 lit. b ist die Mitteilung als erfolgt zu betrachten, sobald sie abgesendet wurde.

Artikel 2:603 Änderung von Vertragsbedingungen (1) Eine Klausel, die dem Versicherer gestattet, die Prämie oder andere Vertragsbedingungen abzuändern, ist in einem Versicherungsvertrag, der der Verlängerung gemäß Artikel 2:602 unterliegt, unwirksam, es sei denn, die Klausel sieht vor, dass (a) jegliche Änderung sich nicht vor der nächsten Verlängerung auswirken kann, (b) der Versicherer dem Versicherungsnehmer spätestens einen Monat vor Ablauf der Laufzeit des derzeitigen Vertrages eine schriftliche Änderungsmitteilung zuzusenden und (c) die Mitteilung den Versicherungsnehmer über sein Kündigungsrecht und die Folgen seiner Nichtausübung aufzuklären hat. (2) Sonstige Anforderungen an die Gültigkeit von Änderungsklauseln werden durch die Anwendung des Absatz 1 nicht berührt.

Artikel 2:604 Kündigung nach Eintritt eines Versicherungsfalles (1) Eine Klausel, die die Kündigung des Vertrages nach Eintritt eines Versicherungsfalles vorsieht, ist nur wirksam, wenn (a) sie das Kündigungsrecht beiden Parteien einräumt und (b) es sich nicht um eine Personenversicherung handelt. (2) Sowohl die Klausel, die das Kündigungsrecht gewährt, als auch die Ausübung dieses Rechts müssen angemessen sein. (3) Jegliches Kündigungsrecht erlischt, wenn die dafür in Frage kommende Partei nicht innerhalb von zwei Monaten, nachdem sie Kenntnis vom Versicherungsfall erlangt hat, gegenüber der anderen Partei schriftlich die Kündigung erklärt hat. (4) Der Versicherungsschutz endet zwei Wochen nach der Mitteilung der Kündigung gemäß Absatz 3.

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Siebter Abschnitt: Informationspflichten des Versicherers nach Vertragsschluss Artikel 2:701 Allgemeine Informationspflicht Während der Vertragslaufzeit hat der Versicherer ohne unangemessene Verzögerung jede Änderung seines Namens und seiner Anschrift, seiner Rechtsform, der Anschrift seiner Hauptniederlassung sowie der Agentur oder Zweigniederlassung, die den Vertrag geschlossen hat, dem Versicherungsnehmer schriftlich mitzuteilen.

Artikel 2:702 Zusätzliche Informationen auf Nachfrage (1) Der Versicherer hat dem Versicherungsnehmer auf dessen Wunsch ohne unangemessene Verzögerung Informationen zur Verfügung zu stellen hinsichtlich (a) aller Angelegenheiten, die für die Durchführung des Vertrages von Bedeutung sind, soweit dies vom Versicherer vernünftigerweise erwartet werden kann; (b) neuer allgemeiner Bedingungen, die vom Versicherer für Versicherungsverträge derselben Art wie der vom Versicherungsnehmer geschlossene angeboten werden. (2) Sowohl die Anfrage des Versicherungsnehmers als auch die Antwort des Versicherers haben schriftlich zu erfolgen.

3. Kapitel: Versicherungsvermittler Artikel 3:101 Befugnisse der Versicherungsvertreter (1) Ein Versicherungsvertreter ist bevollmächtigt, im Namen des Versicherers sämtliche Handlungen vorzunehmen, die nach der gegenwärtigen Geschäftspraxis der Versicherungswirtschaft von seinem Auftrag umfasst sind. Jegliche Beschränkung der Vollmacht des Vertreters ist dem Versicherungsnehmer in einem gesonderten Dokument deutlich mitzuteilen. Die Vollmacht des Vertreters muss jedoch wenigstens seinen tatsächlichen Auftrag abdecken. (2) Die Vollmacht des Versicherungsvertreters umfasst jedenfalls die Befugnis, (a) den Versicherungsnehmer aufzuklären und zu beraten; (b) Mitteilungen des Versicherungsnehmers entgegenzunehmen. (3) Sachdienliches Wissen, das der Versicherungsvertreter während seiner Tätigkeit erlangt hat oder erlangen hätte müssen, gilt als Wissen des Versicherers.

Artikel 3:102 Versicherungsvertreter, die Unabhängigkeit vorgeben Wenn ein Versicherungsvertreter vorgibt, ein unabhängiger Vermittler zu sein, und bei Ausübung seiner Tätigkeit Pflichten verletzt, die das Gesetz für solche unabhängige Vermittler vorsieht, haftet der Versicherer für derartige Pflichtverletzungen.

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4. Kapitel: Versichertes Risiko Erster Abschnitt: Sicherheitsmaßnahmen Artikel 4:101 Sicherheitsmaßnahmen: Bedeutung Eine Sicherheitsmaßnahme ist eine Bestimmung im Versicherungsvertrag, die, unabhängig davon, ob sie als notwendige Voraussetzung für die Haftung des Versicherers beschrieben ist oder nicht, von dem Versicherungsnehmer oder dem Versicherten verlangt, vor dem Versicherungsfall bestimmte Handlungen vorzunehmen oder zu unterlassen.

Artikel 4:102 Kündigungsrecht des Versicherers (1) Eine Vertragsbestimmung, die den Versicherer im Fall der Nichterfüllung einer Sicherheitsmaßnahme berechtigt, den Vertrag zu kündigen, ist unwirksam, es sei denn, der Versicherungsnehmer oder der Versicherte hat seine Pflicht entweder in der Absicht, den Schaden herbeizuführen, oder leichtfertig und in dem Bewusstsein verletzt, dass der Schaden mit Wahrscheinlichkeit eintreten werde. (2) Die Ausübung des Kündigungsrechts erfolgt gegenüber dem Versicherungsnehmer durch schriftliche Mitteilung innerhalb eines Monats ab dem Zeitpunkt, ab dem der Versicherer Kenntnis von der Nichterfüllung einer Sicherheitsmaßnahme erlangt hat oder sie für ihn offensichtlich wurde. Der Versicherungsschutz endet mit dem Zeitpunkt der Kündigung.

Artikel 4:103 Leistungsfreiheit des Versicherers (1) Eine Vertragsbestimmung, nach der der Versicherer bei Nichterfüllung einer Sicherheitsmaßnahme ganz oder teilweise leistungsfrei wird, ist nur in dem Umfang wirksam, als der Schaden dadurch verursacht wurde, dass die Nichterfüllung seitens des Versicherungsnehmers oder des Versicherten vorsätzlich oder leichtfertig und in dem Bewusstsein, dass der Schaden mit Wahrscheinlichkeit eintreten werden, erfolgte. (2) Vorbehaltlich einer klaren Vertragsbestimmung, die eine Kürzung der Versicherungsleistung entsprechend der Schwere des Verschuldens vorsieht, haben je nach Lage des Falles entweder der Versicherungsnehmer oder der Versicherte Anspruch auf die Versicherungsleistung hinsichtlich jedes Schadens, der durch fahrlässige Nichterfüllung einer Sicherheitsmaßnahme verursacht wurde.

Zweiter Abschnitt: Risikoerhöhung Artikel 4:201 Vertragsbestimmungen zur Risikoerhöhung Sofern der Versicherungsvertrag eine Vertragsbestimmung hinsichtlich der Erhöhung des versicherten Risikos enthält, ist diese Bestimmung nur dann wirksam, wenn die fragliche Risikoerhöhung erheblich und von einer im Versicherungsvertrag näher beschriebenen Art ist.

Artikel 4:202 Pflicht zur Anzeige einer Risikoerhöhung (1) Sofern eine Vertragsbestimmung, die die Risikoerhöhung betrifft, die Anzeige der Erhöhung verlangt, ist diese, wie jeweils zweckmäßig, entweder durch den Versicherungsnehmer, den Versicherten oder den Begünstigten zu erstatten, sofern die anzeigepflichtige Person das Bestehen des Versicherungsschutzes und die Risikoerhöhung kannte oder kennen hätte müssen. Eine Anzeige durch eine andere Person genügt.

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(2) Sofern die Vertragsbestimmung vorsieht, dass die Anzeige innerhalb eines bestimmten Zeitraums zu erfolgen hat, muss dieser Zeitraum angemessen sein. Die Anzeige wird mit ihrer Absendung wirksam. (3) Der Versicherer ist wegen der Verletzung der Anzeigepflicht nicht berechtigt, die Zahlung für nachfolgende Schäden zu verweigern, die durch ein von der Deckung erfasstes Ereignis verursacht wurden, es sei denn, der Schaden war eine Folge der unterbliebenden Anzeige des erhöhten Risikos.

Artikel 4:203 Kündigung und Leistungsbefreiung (1) Sofern der Vertrag vorsieht, dass der Versicherer im Fall einer Erhöhung des versicherten Risikos das Recht hat, den Vertrag zu kündigen, so ist dieses Recht innerhalb eines Monats ab dem Zeitpunkt, zu dem der Versicherer Kenntnis von der Risikoerhöhung erlangt oder zu dem sie für ihn offensichtlich wird, durch schriftliche Mitteilung an den Versicherungsnehmer auszuüben. (2) Der Versicherungsschutz endet einen Monat nach Kündigung oder, wenn der Versicherungsnehmer die sich aus Artikel 4:202 ergebende Pflicht vorsätzlich verletzt, mit dem Zeitpunkt der Kündigung. (3) Wenn ein Versicherungsfall durch ein erhöhtes Risiko verursacht wurde, das dem Versicherungsnehmer vor Ende des Versicherungsschutzes bekannt war oder ihm bekannt sein hätte müssen, so ist der Versicherer nicht zur Leistung verpflichtet, wenn er das erhöhte Risiko gar nicht versichert hätte. Hätte der Versicherer das erhöhte Risiko hingegen gegen eine höhere Prämie oder zu anderen Bedingungen versichert, so ist die Versicherungsleistung anteilig oder entsprechend dieser Bedingungen zu erbringen.

Dritter Abschnitt: Risikominderung Artikel 4:301 Auswirkungen einer Risikominderung (1) Bei einer erheblichen Verringerung des Risikos kann der Versicherungsnehmer für die verbleibende Vertragslaufzeit eine anteilsmäßige Herabsetzung der Prämie verlangen. (2) Können sich die Parteien nicht innerhalb eines Monats ab Aufforderung zu einer anteilsmäßigen Herabsetzung der Prämie einigen, so ist der Versicherungsnehmer berechtigt, den Vertrag innerhalb von zwei Monaten ab dieser Aufforderung durch schriftliche Mitteilung zu kündigen.

5. Kapitel: Versicherungsprämie Artikel 5:101 Erst- oder Einmalprämie Eine Bedingung, wonach der Abschluss des Vertrages oder der Beginn der Deckung von der Zahlung der ersten oder einzigen Prämie abhängt, ist nur wirksam, wenn (a) diese Bedingung dem Antragsteller schriftlich und eindeutig formuliert mitgeteilt und der Antragsteller darüber aufgeklärt wird, dass er keinen Versicherungsschutz genießt, solange die Prämie nicht bezahlt ist, und (b) ein Zeitraum von zwei Wochen nach Zugang einer Rechnung, die den in lit. a genannten Erfordernissen genügt, vergangen ist, ohne dass eine Zahlung geleistet wurde.

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Artikel 5:102 Folgeprämie (1) Eine Bedingung, wonach der Versicherer bei Nichtzahlung einer Folgeprämie von seiner Verpflichtung zur Leistung frei wird, ist nur wirksam, wenn (a) der Versicherungsnehmer eine Rechnung erhält, die sowohl die genaue Höhe der geschuldeten Prämie als auch den Zahlungstermin ausweist; (b) der Versicherer dem Versicherungsnehmer nach Fälligkeit der Prämie eine Mahnung übermittelt, die die genaue Höhe der geschuldeten Prämie ausweist, eine zusätzliche Zahlungsfrist von zumindest zwei Wochen gewährt und den Versicherungsnehmer über die bevorstehende Aussetzung der Deckung im Falle der Nichtzahlung aufklärt; und (c) die zusätzliche Frist gemäß lit. b abgelaufen ist, ohne dass eine Zahlung geleistet wurde. (2) Nach Ablauf der zusätzlichen Frist gemäß Absatz 1 lit. b wird der Versicherer leistungsfrei. Der Versicherungsschutz für die Zukunft wird wiedererlangt, sobald der Versicherungsnehmer den fälligen Betrag bezahlt, sofern der Vertrag nicht gemäß Artikel 5:103 gekündigt wurde.

Artikel 5:103 Kündigung des Vertrages (1) Läuft der in Artikel 5:101 lit. b oder 5:102 Absatz 1 lit. b genannte Zeitraum ohne Prämienzahlung ab, so ist der Versicherer berechtigt, den Vertrag durch schriftliche Mitteilung zu kündigen, sofern je nach Lage des Falles entweder die von Artikel 5:101 lit. b verlangte Rechnung oder die von Artikel 5:102 Absatz 1 lit. b verlangte Mahnung sein Recht zur Vertragskündigung ausführen. (2) Der Vertrag gilt als gekündigt, wenn der Versicherer keine Zahlungsklage erhebt, und zwar je nach Lage des Falles (a) bei der Erstprämie innerhalb von zwei Monaten nach Ablauf des in Artikel 5:101 lit. b genannten Zeitraums; oder (b) bei einer Folgeprämie innerhalb von zwei Monaten nach Ablauf des in Artikel 5:102 Absatz 1 lit. b genannten Zeitraums.

Artikel 5:104 Teilbarkeit der Prämie Wenn ein Versicherungsvertrag vor Ablauf der Vertragslaufzeit gekündigt wird, hat der Versicherer nur Anspruch auf die Prämie für den vor der Beendigung des Vertrages liegenden Zeitraum.

Artikel 5:105 Recht zur Prämienzahlung Der Versicherer darf die Zahlung durch Dritte nicht ablehnen, sofern (a) der Dritte mit Zustimmung des Versicherungsnehmers handelt; oder (b) der Dritte ein berechtigtes Interesse am Erhalt der Deckung und der Versicherungsnehmer keine Zahlung geleistet hat oder es offensichtlich ist, dass er nicht zum Fälligkeitszeitpunkt leisten wird.

6. Kapitel: Versicherungsfall Artikel 6:101 Anzeige des Versicherungsfalles (1) Der Eintritt eines Versicherungsfalles ist dem Versicherer, wie jeweils zweckmäßig, entweder durch den Versicherungsnehmer, den Versicherten oder den Begünstigten anzuzeigen, sofern der anzeigepflichtigen Person das Bestehen des Versicherungsschutzes und der Eintritt des versicherten Ereignisses bekannt waren oder hätten bekannt sein müssen. Die Anzeige durch eine andere Person genügt.

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(2) Eine solche Anzeige hat ohne unangemessene Verzögerung zu erfolgen. Sie wird mit ihrer Absendung wirksam. Sofern der Vertrag vorsieht, dass die Anzeige innerhalb eines bestimmten Zeitraums zu erfolgen hat, so muss dieser Zeitraum angemessen und darf jedenfalls nicht kürzer als fünf Tage sein. (3) Die Versicherungsleistung verringert sich in dem Umfang, in dem der Versicherer nachweist, durch unangemessene Verzögerung beeinträchtigt worden zu sein.

Artikel 6:102 Mitwirkung bei der Anspruchsregulierung (1) Je nach Lage des Falles hat der Versicherungsnehmer, der Versicherte oder der Begünstigte mit dem Versicherer bei der Untersuchung des Versicherungsfalles zusammenzuarbeiten, indem er angemessene Anfragen des Versicherers beantwortet; dies gilt insbesondere hinsichtlich – der Informationen über die Gründe und Auswirkungen des Versicherungsfalles; – der Unterlagen oder sonstigem Beweismaterial zum Versicherungsfall; – des Zugangs zu Grundstücken, die damit in Bezug stehen. (2) Im Fall jeder Verletzung des Absatz 1 ist die zu erbringende Versicherungsleistung, vorbehaltlich des Absatzes 3, in dem Umfang zu verringern, in dem der Versicherer nachweist, durch die Pflichtverletzung beeinträchtigt worden zu sein. (3) Im Fall jeglicher Verletzung des Absatz 1, die in dem Vorsatz, Nachteile zu verursachen, oder leichtfertig und in dem Bewusstsein, dass solche Nachteile mit Wahrscheinlichkeit eintreten werden, erfolgte, ist der Versicherer leistungsfrei.

Artikel 6:103 Anerkennung von Ansprüchen (1) Der Versicherer hat alle angemessenen Maßnahmen zu ergreifen, um einen Anspruch umgehend zu regulieren. (2) Ein Anspruch gilt als anerkannt, sofern der Versicherer ihn nicht durch schriftliche Mitteilung unter Anführung der Gründe seiner Entscheidung innerhalb eines Monats nach Zugang der maßgeblichen Unterlagen und sonstiger Informationen ablehnt oder sich seine Anerkennung vorbehält.

Artikel 6:104 Fälligkeit (1) Sobald ein Anspruch anerkannt wurde, hat der Versicherer je nach Lage des Falles entweder ohne unangemessene Verzögerung zu zahlen oder die versprochenen Leistungen zu erbringen. (2) Sofern zwar die gesamte Höhe eines Anspruchs noch nicht vollständig bestimmt werden kann, dem Anspruchsinhaber aber jedenfalls ein Teil davon zusteht, so ist dieser Teil ohne unangemessene Verzögerung auszuzahlen oder zu erbringen. (3) Die Auszahlung der Versicherungsleistung, sowohl gemäß Absatz 1 als auch gemäß Absatz 2, hat je nach Lage des Falles spätestens eine Woche nach der Anerkennung und Bezifferung des Anspruchs oder eines Teils desselben zu erfolgen.

Artikel 6:105 Verzug8 (1) Wenn eine Zahlung des Versicherers nicht gemäß Artikel 6:104 erbracht wird, kann der Anspruchsberechtigte auf Grundlage der zu zahlenden Summe ab dem Zeitpunkt ihrer Fälligkeit bis zum Zeitpunkt ihrer Zahlung Verzugszinsen in Höhe des von der Europäischen Zentralbank auf ihre jüngste Hauptrefinanzierungsoperation, die vor dem ersten Kalendertag des betreffen-

8

Diese Bestimmung ist Artikel 3 Absatz 1 lit. d der RL 2000/25/EG nachgebildet.

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den Halbjahres durchgeführt wurde, angewendeten Zinssatzes zuzüglich acht Prozentpunkten verlangen. (2) Der Anspruchsberechtigte kann Ersatz für jeden weiteren Schaden verlangen, der durch die verspätete Auszahlung der Versicherungsleistung verursacht wurde.

7. Kapitel: Verjährung Artikel 7:101 Klage auf Prämienzahlung Die Klage auf Prämienzahlung verjährt nach einen Zeitraum von einem Jahr ab Fälligkeit der Prämie.

Artikel 7:102 Klage auf Auszahlung von Versicherungsleistungen (1) Im Allgemeinen verjährt die Klage auf Versicherungsleistungen nach einem Zeitraum von drei Jahren ab dem Zeitpunkt, zu dem der Versicherer eine endgültige Entscheidung über den Anspruch getroffen hat oder gemäß Artikel 6:103 so behandelt wird, als hätte er eine endgültige Entscheidung getroffen. Die Klage verjährt jedoch jedenfalls nach einem Zeitraum von zehn Jahren nach Eintritt des Versicherungsfalles, ausgenommen im Fall der Lebensversicherung, für die der entsprechende Zeitraum 30 Jahre beträgt. (2) Die Klage auf Zahlung des Rückkaufswerts einer Lebensversicherung verjährt nach einem Zeitraum von drei Jahren ab dem Zeitpunkt, in dem der Versicherungsnehmer vom Versicherer die Abschlussrechnung erhält. Die Klage verjährt jedoch jedenfalls nach einem Zeitraum von 30 Jahren ab der Beendigung des Lebensversicherungsvertrages.

Artikel 7:103 Weitere Verjährungsbelange Vorbehaltlich der Artikel 7:101 und Artikel 7:102 der GEVVR finden auf Ansprüche aus einem Versicherungsvertrag die Artikel 14:101 bis 14:503 der Grundregeln des Europäischen Vertragsrechts (GEVR)9 Anwendung. Der Versicherungsvertrag kann unter den Voraussetzungen des Artikels 1:103 Absatz 2 der GEVVR von diesen Bestimmungen abweichen.

Zweiter Teil: Allgemeine Vorschriften für die Schadensversicherung 8. Kapitel: Versicherungssumme und Versicherungswert Artikel 8:101 Höchstgrenzen für Versicherungsleistungen (1) Der Versicherer ist nicht verpflichtet, einen höheren als den Betrag zu zahlen, der erforderlich ist, um die Schäden zu ersetzen, die der Versicherte tatsächlich erlitten hat. (2) Eine Vertragsbestimmung, die den vereinbarten Wert eines versicherten Gegenstands festsetzt, ist auch dann wirksam, wenn der festgesetzte Wert den tatsächlichen Wert des Gegenstands übersteigt, vorausgesetzt, es lag zum Zeitpunkt der Festsetzung des Wertes keine arglistige Täuschung oder falsche Darstellung auf Seiten des Versicherungsnehmers oder des Versicherten vor.

9

Vgl. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Artikel 8:102 Unterversicherung (1) Der Versicherer haftet für jeden versicherten Schaden bis zur Höhe der Versicherungssumme, auch wenn die Versicherungssumme zum Zeitpunkt des Eintritts des Versicherungsfalles niedriger ist als der Wert der versicherten Sache. (2) Sofern der Versicherer Deckung gemäß Absatz 1 anbietet, ist er jedoch berechtigt, wahlweise auch Versicherungsschutz auf der Grundlage anzubieten, dass die zu zahlende Entschädigung in dem Verhältnis beschränkt wird, in dem die Versicherungssumme zum Zeitpunkt des Schadenseintritts zu dem tatsächlichen Wert der Sache steht. In diesem Fall sind überdies Schadenminderungskosten, wie sie in Artikel 9:102 definiert sind, in demselben Verhältnis zu erstatten.

Artikel 8:103 Anpassung von Vertragsbestimmungen bei Überversicherung (1) Wenn die Versicherungssumme den höchstmöglichen, vom Vertrag gedeckten Schaden übersteigt, kann jede Partei für die verbleibende Vertragslaufzeit eine Herabsetzung der Versicherungssumme und eine entsprechende Herabsetzung der Prämie verlangen. (2) Können sich die Parteien nicht innerhalb eines Monats ab Aufforderung zu einer solchen Herabsetzung einigen, so hat jede Partei das Recht, den Vertrag zu kündigen.

Artikel 8:104 Mehrfachversicherung (1) Sofern dasselbe Interesse gesondert von mehreren Versicherern versichert ist, kann der Versicherte Ansprüche gegen jeden oder mehrere dieser Versicherer in dem Ausmaß geltend machen, welches notwendig ist, um die tatsächlich von ihm erlittenen Schäden zu ersetzen. (2) Der Versicherer, gegen den ein Entschädigungsanspruch erhoben wird, hat bis zur Höhe der mit seinem Versicherungsvertrag versicherten Summe zuzüglich etwaiger Schadenminderungskosten Zahlung zu leisten, ohne dass seine Rechte, bei jedem anderen Versicherer Rückgriff zu nehmen, hiervon beeinträchtigt werden. (3) Die gemäß Absatz 2 bestehenden Rechte und Pflichten der Versicherer untereinander bestimmen sich nach dem Verhältnis der Beträge, für die jeder einzelne von ihnen dem Versicherten gegenüber haftet.

9. Kapitel: Anspruch auf Schadensersatz Artikel 9:101 Herbeiführung des Versicherungsfalles (1) In dem Ausmaß, in dem der Schaden durch eine Handlung oder Unterlassung des Versicherungsnehmers oder des Versicherten entweder in der Absicht, den Schaden herbeizuführen, oder leichtfertig und in dem Bewusstsein, dass der Schaden mit Wahrscheinlichkeit eintreten werde, verursacht wurde, ist keiner von beiden zur Geltendmachung von Schadensersatzansprüchen berechtigt. (2) Vorbehaltlich einer eindeutigen Regelung des Versicherungsvertrages, wonach die Versicherungsleistung entsprechend der Schwere des Verschuldens herabzusetzen ist, kann der Versicherungsnehmer oder der Versicherte für einen von ihm fahrlässig verursachten Versicherungsfall Ersatz verlangen. (3) Schadensverursachung im Sinne der Absätze 1 und 2 umfasst auch das Versäumnis der Abwendung oder Minderung des Schadens.

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Artikel 9:102 Kosten der Schadensminderung (1) Der Versicherer hat die angefallenen Kosten oder die Höhe des Schadens, die dem Versicherungsnehmer oder dem Versicherten durch Schadensminderungsmaßnahmen entstanden sind, bis zu der Höhe zu ersetzen, in der sie der Versicherungsnehmer oder der Versicherte unter den gegebenen Umständen berechtigerweise als angemessen ansehen durfte, und zwar auch dann, wenn diese Maßnahmen erfolglos waren. (2) Der Versicherer hat den Versicherungsnehmer oder den Versicherten für alle Maßnahmen im Sinne des Absatzes 1 zu entschädigen, und zwar auch dann, wenn der zu zahlende Betrag zusammen mit der für den versicherten Schaden zu leistenden Entschädigung die Versicherungssumme übersteigt.

10. Kapitel: Rechte aus dem Forderungsübergang Artikel 10:101 Forderungsübergang (1) Der Versicherer ist vorbehaltlich des Absatzes 3 berechtigt, Rechte aus der auf ihn übergegangenen Forderung gegenüber einem für den Schaden verantwortlichen Dritten in dem Umfang geltend zu machen, in dem er den Versicherten entschädigt hat. (2) In dem Ausmaß, in dem der Versicherte auf seinen Anspruch gegenüber einem solchen Dritten in einer Weise verzichtet, die zu einer Beeinträchtigung des Forderungsübergangs auf den Versicherers führt, verliert er seinen Anspruch auf Entschädigung des in Frage stehenden Schadens. (3) Der Versicherer kann Rechte aus dem Forderungsübergang gegenüber einem Mitglied des Haushalts des Versicherungsnehmers oder des Versicherten, gegenüber einer Person, die sich in einer gleichwertigen sozialen Beziehung zu dem Versicherungsnehmer oder dem Versicherten befindet, oder gegenüber einem Angestellten des Versicherungsnehmers oder Versicherten nicht geltend machen, außer er beweist, dass der Schaden durch eine dieser Personen entweder vorsätzlich oder leichtfertig und in dem Bewusstsein verursacht wurde, dass der Schaden mit Wahrscheinlichkeit eintreten werde. (4) Der Versicherer darf sein Rechte aus dem Forderungsübergang nicht zum Nachteil des Versicherten ausüben.

11. Kapitel: Vom Versicherungsnehmer verschiedene Versicherte Artikel 11:101 Anspruchsberechtigung des Versicherten (1) Bei einer Versicherung, die für eine andere Person als den Versicherungsnehmer abgeschlossen wird, steht der Anspruch auf die Versicherungsleistung im Falle des Eintritts des Versicherungsfalles dieser Person zu. (2) Der Versicherungsnehmer ist berechtigt, eine solche Deckung zu widerrufen, außer (a) der Versicherungsvertrag sieht etwas anderes vor; oder (b) der Versicherungsfall ist eingetreten. (2) Der Widerruf wird wirksam, wenn er dem Versicherer gegenüber schriftlich mitgeteilt wird.

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Artikel 11:102 Wissen des Versicherten Sofern der Versicherungsnehmer verpflichtet ist, dem Versicherer wesentliche Informationen zur Verfügung zu stellen, sind die Kenntnisse einer gemäß Artikel 11:101 versicherten Person dem Versicherungsnehmer nur dann zuzurechnen, wenn diese Person ihren Status als Versicherter kennt.

Artikel 11:103 Pflichtverletzung durch einen Versicherten Eine Pflichtverletzung durch einen Versicherten beeinflusst die Rechte weiterer unter demselben Vertrag versicherter Personen nicht nachteilig, es sei denn, das Risiko ist gemeinschaftlich versichert.

12. Kapitel: Versichertes Risiko Artikel 12:101 Mangel eines versicherten Risikos (1) Sofern das versicherte Risiko weder zum Zeitpunkt des Vertragsschlusses noch während des Versicherungszeitraums besteht, wird keine Prämie geschuldet. Der Versicherer ist jedoch berechtigt, eine angemessene Geschäftsgebühr zu verlangen. (2) Bei Wegfall des versicherten Risikos während der Versicherungsperiode gilt der Vertrag in dem Zeitpunkt als beendet, in dem der Versicherer hiervon benachrichtigt wird.

Artikel 12:102 Veräußerung der versicherten Sache (1) Wird die versicherte Sache veräußert, so endet der Versicherungsvertrag einen Monat nach dem Zeitpunkt der Übertragung, es sei denn, Versicherungsnehmer und Erwerber einigen sich auf eine Beendigung zu einem früheren Zeitpunkt. Diese Regelung gelangt nicht zur Anwendung, wenn der Versicherungsvertrag zugunsten eines zukünftigen Erwerbers geschlossen wurde. (2) Der Erwerber der Sache gilt von dem Zeitpunkt an, in dem das mit der versicherten Sache verbundene Risiko auf ihn übergeht, als Versicherter. (3) Die Absätze 1 und 2 sind nicht anzuwenden, wenn (a) Versicherer, Versicherungsnehmer und Erwerber etwas anderes vereinbaren; oder (b) der Eigentumsübergang im Erbwege erfolgte.

Dritter Teil: Allgemeine Bestimmungen für die Summenversicherung 13. Kapitel: Zulässigkeit Artikel 13:101 Summenversicherung Nur Unfall-, Kranken-, Lebens-, Heirats-, Geburts- oder andere Personenversicherungen können als Summenversicherung ausgestaltet werden.

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Vierter Teil: Haftpflichtversicherung 14. Kapitel: Allgemeine Haftpflichtversicherung Artikel 14:101 Abwehrkosten Der Versicherer hat die Abwehrkosten zu ersetzen, welche in Übereinstimmung mit Artikel 9:102 angefallen sind.

Artikel 14:102 Schutz des Opfers Sofern das Opfer nicht schriftlich seine Zustimmung erteilt, wird seine (Rechts-)Stellung nicht davon berührt, dass der Versicherungsnehmer oder der Versicherte mit dem Versicherer einen Vergleich hinsichtlich des Versicherungsanspruches aus dem Versicherungsvertrag schließt, sei es durch Vereinbarung, Verzichtserklärung, Zahlung oder eine vergleichbare Handlung.

Artikel 14:103 Herbeiführung des Versicherungsfalles (1) Weder der Versicherungsnehmer noch der Versicherte, je nach Lage des Falles, hat Schadensersatzansprüche in dem Ausmaß, in dem er den Schaden in der Absicht, den Schaden herbeizuführen, durch eine Handlung oder Unterlassung herbeigeführt hat; dies umfasst auch die Nichtbefolgung von spezifischen Anweisungen des Versicherers nach Eintritt des Schadens, sofern dies leichtfertig und in dem Bewusstsein erfolgt, dass der Schaden wahrscheinlich vergrößert wird. (2) Schadensherbeiführung im Sinne des Absatzes 1 umfasst auch das Versäumnis der Abwendung oder Minderung des Schadens. (3) Vorbehaltlich einer klaren Bestimmung des Versicherungsvertrages, die eine Kürzung der Versicherungsleistung entsprechend der Schwere des Verschuldens vorsieht, haben je nach Lage des Falles entweder der Versicherungsnehmer oder der Versicherte Anspruch auf die Versicherungsleistung hinsichtlich jedes Schadens, der durch fahrlässige Nichtbefolgung von spezifischen Anweisungen des Versicherers nach Eintritt des Schadens verursacht wurde.

Artikel 14:104 Anerkennung der Haftpflicht (1) Eine Bestimmung im Versicherungsvertrag, welche den Versicherer von seinen Pflichten befreit, falls je nach Lage des Falles der Versicherungsnehmer oder der Versicherte den Anspruch des Opfers anerkennt oder erfüllt, ist unwirksam. (2) Sofern der Versicherer nicht zustimmt, ist er durch eine Vereinbarung zwischen dem Opfer und, je nach Lage des Falles, dem Versicherungsnehmer oder dem Versicherten nicht gebunden.

Artikel 14:105 Abtretung Eine Bestimmung im Versicherungsvertrag, welche dem Versicherungsnehmer sein Recht entzieht, seinen Anspruch aus dem Versicherungsvertrag abzutreten, ist unwirksam.

Artikel 14:106 Schadenfreiheitsrabatte / Bonus-Malus-Systeme (1) Der Versicherungsnehmer hat das Recht, jederzeit eine Erklärung zu seinem Schadensverlauf für die letzten fünf Jahre zu verlangen. (2) Macht der Versicherer die Prämie oder andere (Vertrags-)Bedingungen von der Anzahl oder Höhe der Schäden abhängig, welche gestützt auf den Versicherungsvertrag bezahlt wurden, so ist der Schadensverlauf des Versicherungsnehmers bei anderen Versicherern während den letzten fünf Jahren gebührend zu berücksichtigen.

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Artikel 14:107 Versicherungsfall (1) Der Versicherungsfall besteht darin, dass die Tatsache, welche die Haftpflicht des Versicherten begründet, während des Haftungszeitraumes des Versicherungsvertrages eintritt, sofern nicht die Parteien eines Versicherungsvertrages für gewerbliche oder berufliche Zwecke den Versicherungsfall unter Bezugnahme auf andere Kriterien definieren, wie etwa den vom Opfer erhobenen Anspruch. (2) Wenn die Vertragsparteien den Versicherungsfall unter Bezugnahme auf den vom Opfer geltend gemachten Anspruch definieren, besteht Deckung für Ansprüche, welche während des Haftungszeitraumes oder während eines darauf folgenden Zeitraumes von nicht weniger als fünf Jahren erhoben werden, und die auf einer Tatsache beruhen, welche sich vor Ende des Haftungszeitraumes ereignete. Der Versicherungsvertrag kann hingegen die Deckung auf der Grundlage ausschließen, dass dem Antragssteller zum Zeitpunkt des Vertragsschlusses Umstände bekannt waren oder hätten bekannt sein müssen, von welchen er hätte erwarten müssen, dass sie Ansprüche begründen.

Artikel 14:108 Über die Versicherungssumme hinausgehende Ansprüche (1) Wenn der Gesamtbetrag der mehreren Opfern zustehenden Zahlungen die Versicherungssumme übersteigt, sind die Zahlungen proportional herabzusetzen. (2) Ein Versicherer, welcher, ohne von der Existenz weiterer Opfer zu wissen, gutgläubig Versicherungsleistungen an die ihm bekannten Opfer ausbezahlt hat, haftet den weiteren Opfern bis zum (Rest-)Betrag der Versicherungssumme.

15. Kapitel: Direktansprüche und Direktklagen Artikel 15:101 Direktansprüche und Einreden (1) In dem Umfang, in welchem je nach Lage des Falles der Versicherungsnehmer oder der Versicherte haftet, hat das Opfer einen Direktanspruch auf Entschädigung gegen den Versicherer aus dem Versicherungsvertrag, sofern (a) die Versicherung obligatorisch ist, oder (b) der Versicherungsnehmer oder der Versicherte zahlungsunfähig ist, oder (c) der Versicherungsnehmer oder der Versicherte liquidiert oder aufgelöst wurde, oder (d) das Opfer einen Personenschaden erlitten hat, oder (e) das auf die Haftung anwendbare Recht einen Direktanspruch vorsieht. (2) Gegenüber dem Opfer kann der Versicherer Einreden aus dem Versicherungsvertrag geltend machen, sofern dies nicht durch besondere Bestimmungen, welche die Versicherung für obligatorisch erklären, untersagt ist. Der Versicherer ist jedoch nicht berechtigt, Einreden zu erheben, welche auf dem Verhalten des Versicherungsnehmers und/oder des Versicherten nach dem Schadenseintritt beruhen.

Artikel 15:102 Informationspflichten (1) Auf Aufforderung des Opfers haben der Versicherungsnehmer und der Versicherte die Informationen zur Verfügung zu stellen, welche zur Geltendmachung des Direktanspruches notwendig sind. (2) Der Versicherer hat dem Versicherungsnehmer schriftlich jeden gegen ihn erhobenen Direktanspruch anzuzeigen, wobei dies ohne unangemessene Verzögerung und spätestens innert zwei Wochen nach Empfang der Forderung zu erfolgen hat. Verletzt der Versicherer diese Pflicht, wer-

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den die Rechte des Versicherungsnehmers durch eine Zahlung an das Opfer oder eine Schuldanerkennung gegenüber dem Opfer nicht berührt. (3) Stellt der Versicherungsnehmer dem Versicherer nicht innert einem Monat seit Erhalt der Anzeige gemäß Absatz 2 die Informationen über das versicherte Ereignis zur Verfügung, gilt dies als Zustimmung des Versicherungsnehmers zur direkten Regulierung des Anspruches durch den Versicherer. Diese Regelung ist auch auf Versicherte anwendbar, welche eine solche Anzeige tatsächlich und rechtzeitig erhalten haben.

Artikel 15:103 (Leistungs-)Befreiung Die Zahlung von Versicherungsleistungen an den Versicherungsnehmer oder den Versicherten, je nach Lage des Falles, befreit den Versicherer nur von seiner Verpflichtung gegenüber dem Opfer, falls das Opfer (a) auf seinen Direktanspruch verzichtet hat oder (b) den Versicherer nicht innerhalb von vier Wochen seit Erhalt der schriftlichen Aufforderung des Versicherers über seine Absicht, einen Direktanspruch geltend zu machen, benachrichtigt hat.

Artikel 15:104 Verjährung (1) Ansprüche gegen den Versicherer, ob durch den Versicherten oder das Opfer geltend machen, verjähren wenn der Anspruch des Opfers gegen den Versicherten verjährt. (2) Die Verjährungsfrist für einen vom Opfer gegen den Versicherten geltend gemachten Anspruch steht still ab dem Zeitpunkt, in welchem der Versicherte davon Kenntnis erlangt, dass ein Direktanspruch gegen den Versicherer geltend gemacht wurde, bis zum Zeitpunkt, in welchem der Direktanspruch vom Versicherer reguliert oder unmissverständlich zurückgewiesen wurde.

16. Kapitel: Pflichtversicherung Artikel 16:101 Anwendungsbereich (1) Die GEVVR können von den Parteien eines Versicherungsvertrages gewählt werden, der in Erfüllung einer Versicherungspflicht abgeschlossen wurde, welche (a) im Gemeinschaftsrecht vorgeschrieben ist, (b) durch einen Mitgliedsstaat vorgeschrieben ist, oder (c) durch einen Nicht-Mitgliedsstaat vorgeschrieben ist, in dem Umfang, in welchem dies die Rechtsordnung dieses Staates erlaubt. (2) Der Versicherungsvertrag genügt der Versicherungspflicht nicht, sofern er nicht den Bestimmungen entspricht, welche die Pflicht auferlegen.

Fünfter Teil: Lebensversicherung 17. Kapitel: Besondere Bestimmungen für die Lebensversicherung Erster Abschnitt: Dritte Artikel 17:101 Lebensversicherung auf fremdes Leben Ein Versicherungsvertrag auf das Leben einer anderen Person als dem Versicherungsnehmer ist unwirksam, sofern nicht die Zustimmung der Gefahrsperson in Kenntnis der Sachlage schriftlich und

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nachgewiesen durch Unterschrift eingeholt wird. Jede spätere erhebliche Änderung des Vertrages, einschließlich einem Wechsel des Begünstigten, einer Erhöhung der Versicherungssumme und einer Änderung der Vertragsdauer, ist ohne eine solche Zustimmung unwirksam. Das Gleiche gilt für eine Abtretung oder eine Verpfändung des Versicherungsvertrages oder des Rechts an der Versicherungsleistung.

Artikel 17:102 Begünstigter hinsichtlich der Versicherungsleistung (1) Der Versicherungsnehmer kann einen oder mehrere Begünstigte hinsichtlich der Versicherungsleistung bezeichnen und eine solche Begünstigung ändern oder widerrufen, sofern die Begünstigung nicht als unwiderruflich erklärt wurde. Die Begünstigung, die Änderung oder der Widerruf hat schriftlich zu erfolgen und ist dem Versicherer zu zusenden, sofern sie nicht in einer letztwilligen Verfügung gemacht werden. (2) Das Recht, eine Begünstigung einzuräumen, zu ändern oder zu widerrufen, endet mit dem Tode des Versicherungsnehmers oder mit Eintritt des versicherten Ereignisses, je nachdem, was zuerst eintritt. (3) Der Versicherungsnehmer oder die Erben des Versicherungsnehmers, je nach Lage des Falles, sind als Begünstigte hinsichtlich der Versicherungsleistung anzusehen, falls (a) der Versicherungsnehmer keinen Begünstigten bezeichnet hat oder (b) die Bezeichnung eines Begünstigten widerrufen und keine anderen Begünstigten bezeichnet wurden oder (c) ein Begünstigter verstorben ist, bevor das versicherte Ereignis eingetreten ist und keine anderen Begünstigten bezeichnet wurden. (4) Falls zwei oder mehr Begünstigte bezeichnet wurden und die Begünstigung von einem von ihnen widerrufen wurde oder einer von ihnen verstorben ist, bevor das versicherte Ereignis eingetreten ist, ist der Betrag der Versicherungsleistung, welcher dem oder den betreffenden Begünstigten zugestanden hätte, proportional unter den verbliebenen Begünstigten zu verteilen, sofern vom Versicherungsnehmer in Übereinstimmung mit Absatz 1 nichts anderes bestimmt wurde. (5) Vorbehaltlich von in den anwendbaren konkursrechtlichen Bestimmungen statuierten Regelungen über die Nichtigkeit, Anfechtbarkeit oder mangelnde Durchsetzbarkeit von Rechtshandlungen zum Nachteil der Gläubiger, hat die Insolvenzmasse des Versicherungsnehmers keine Rechte hinsichtlich der Versicherungsleistung, des Umwandlungswertes oder des Rückkaufswertes, solange das Geld nicht an den Versicherungsnehmer ausgezahlt wurde. (6) Ein Versicherer, der die Versicherungsleistung einer Person ausbezahlt, welche in Übereinstimmung mit Absatz 1 begünstigt wurde, wird von seiner Zahlungspflicht befreit, sofern er nicht wusste, dass die Versicherungsleistung der betreffenden Person nicht zustand.

Artikel 17:103 Begünstigter hinsichtlich des Rückkaufswertes (1) Unabhängig von einer Begünstigung gemäß Artikel 17:102 kann der Versicherungsnehmer auch einen Begünstigten hinsichtlich des etwaigen Rückkaufswertes bezeichnen und eine solche Begünstigung ändern oder widerrufen. Die Begünstigung, die Änderung und der Widerruf hat schriftlich zu erfolgen und ist dem Versicherer zu zusenden. (2) Der Versicherungsnehmer gilt als Begünstigter hinsichtlich des Rückkaufswertes, falls (a) kein Begünstigter hinsichtlich des Rückkaufswertes bezeichnet wurde oder (b) die Begünstigung hinsichtlich des Rückkaufswertes widerrufen und keine anderen Begünstigten bezeichnet wurden oder

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(c) ein Begünstigter hinsichtlich des Rückkaufswertes verstorben ist und keine anderen Begünstigten bezeichnet wurden. (3) Artikel 17:102 Absatz 2 sowie Absatz 4-6 gelangen mutatis mutandis zur Anwendung.

Artikel 17:104 Abtretung oder Verpfändung (1) Wenn ein Begünstigter unwiderruflich bezeichnet wurde, ist eine Abtretung oder eine Verpfändung des Versicherungsvertrages oder des Rechtes an der Versicherungsleistung durch den Versicherungsnehmer unwirksam, sofern nicht der Begünstigte schriftlich zugestimmt hat. (2) Eine Abtretung oder eine Verpfändung des Rechtes an der Versicherungsleistung durch den Begünstigten ist unwirksam, sofern nicht der Versicherungsnehmer schriftlich zugestimmt hat.

Artikel 17:105 Erbausschlagung Wenn ein Begünstigter ein Erbe der verstorbenen Gefahrsperson ist und das Erbe ausgeschlagen hat, wird durch die Tatsache der Ausschlagung alleine seine Rechtsstellung aus dem Versicherungsvertrag nicht berührt.

Zweiter Abschnitt: Zustandekommen und Laufzeit des Vertrages Artikel 17:201 Vorvertragliche Anzeigepflichten des Antragstellers (1) Die vom Antragssteller gemäß Artikel 2:101 Absatz 1 zur Verfügung zu stellenden Informationen umfassen auch diejenigen Umstände, die der Gefahrsperson bekannt waren oder hätten bekannt sein müssen. (2) Die Rechtsfolgen für eine Verletzung von vorvertraglichen Anzeigepflichten gemäß Artikel 2:102, 2:103 und 2:105, aber nicht gemäß Artikel 2:104, können nur während fünf Jahren nach dem Vertragsschluss geltend gemacht werden.

Artikel 17:202 Vorvertragliche Anzeigepflichten des Versicherers (1) Der Versicherer hat den Antragssteller darüber zu informieren, ob er ein Recht auf Überschussbeteiligung hat. Der Erhalt dieser Information muss durch eine ausdrückliche Erklärung in einem vom Antragsformular getrennten Dokument bestätigt werden. (2) Das vom Versicherer gemäß Artikel 2:201 zur Verfügung zu stellende Dokument hat folgende Informationen zu beinhalten: (a) in Bezug auf den Versicherer: ein spezifischer Hinweis auf die obligatorische Veröffentlichung des jährlichen Berichtes über seine Solvabilität und Finanzlage; (b) in Bezug auf die vertraglichen Verpflichtungen des Versicherers: (i) eine Erläuterung jeder Garantie und jeder Option; (ii) die Informationen über den jeder Leistung zurechenbaren Prämienanteil, und zwar sowohl bezüglich Haupt- als auch Nebenleistungen, wo angebracht; (iii) die Methoden der Gewinnberechnung und Gewinnbeteiligung einschließlich der Angabe des anwendbaren Aufsichtsrechtes; (iv) die Angabe der Rückkaufswerte und der beitragsfreien Leistungen (Umwandlungswert) sowie das Ausmaß, in dem diese Leistungen garantiert sind; (v) für fondsgebundene Policen: eine Erläuterung der Fonds (in Rechnungseinheiten), an welche die Leistungen gekoppelt sind, und eine Angabe der Art der zugrunde liegenden Vermögenswerte;

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(vi) allgemeine Angaben zu der auf die Policenart anwendbaren Steuerregelung. (3) Zudem sind spezifische Informationen zur Verfügung zu stellen, um ein richtiges Verständnis der vom Versicherungsnehmer übernommenen vertragsspezifischen Risiken zu erleichtern. (4) Wenn der Versicherer bezifferte Angaben zur Höhe von möglichen Leistungen über die vertraglich garantierten Leistungen hinaus macht, hat er dem Antragssteller eine Modellrechnung zur Verfügung zu stellen, welche die mögliche Ablaufleistung unter Zugrundelegung der versicherungsmathematischen Grundsätze für die Prämienkalkulation mit drei verschiedenen Zinssätzen nennt. Dies gilt weder für Versicherungsverträge, die Risiken decken, für welche ungewiss ist, ob der Versicherer haftet, noch für fondsgebundene Policen. Der Versicherer hat den Versicherungsnehmer klar und verständlich darauf hinzuweisen, dass es sich bei der Modellrechnung nur um ein Modell handelt, welches auf fiktiven Annahmen basiert, und dass der Vertrag die möglichen Zahlungen nicht garantiert.

Artikel 17:203 Bedenkzeit10 (1) Für Lebensversicherungsverträge beträgt die in Artikel 2:303 Absatz 1 statuierte Bedenkzeit einen Monat nach Zugang der Annahmeerklärung oder nach Aushändigung der in Artikel 2:501 und Artikel 17:202 genannten Unterlagen, je nach dem, was später erfolgt. (2) Das Widerrufsrecht des Versicherungsnehmers gemäß Artikel 2:303 Absatz 1 erlischt ein Jahr nach Vertragsschluss.

Artikel 17:204 Kündigungsrecht des Versicherungsnehmers (1) Der Versicherungsnehmer ist berechtigt, einen Lebensversicherungsvertrag zu kündigen, welcher keinen Rückkaufs- oder Umwandlungswert generieren kann, sofern die Kündigung nicht früher als ein Jahr nach Vertragsschluss wirksam wird. Das Recht vor Ende der Vertragslaufzeit zu kündigen, kann ausgeschlossen werden, wenn eine Einmalprämie bezahlt wurde. Die Kündigung hat schriftlich zu erfolgen und wird zwei Wochen nach Zugang der Kündigung beim Versicherer wirksam. (2) Wenn ein Lebensversicherungsvertrag einen Rückkaufs- oder Umwandlungswert generiert hat, sind die Artikel 17:601-17:603 anwendbar.

Artikel 17:205 Kündigungsrecht des Versicherers Der Versicherer ist nur berechtigt, einen Lebensversicherungsvertrag zu kündigen, soweit dieses Kapitel dies zulässt.

Dritter Abschnitt: Änderungen während der Vertragslaufzeit Artikel 17:301 Informationspflichten des Versicherers nach Vertragsschluss (1) Gegebenenfalls hat der Versicherer dem Versicherungsnehmer jährlich eine schriftliche Aufstellung des aktuellen Wertes der mit dem Versicherungsvertrag verbundenen Gewinne auszuhändigen. (2) Zusätzlich zu den Anforderungen gemäß Artikel 2:701 hat der Versicherer den Versicherungsnehmer ohne unangemessene Verzögerung über jede Änderung hinsichtlich folgender Themen zu informieren: 10

Artikel 17:203 Absatz 1 ist Artikel 35 der Richtlinie 2002/83/EG und Artikel 6 der Richtlinie 2002/65/EG nachgebildet.

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(a) Versicherungsbedingungen, sowohl allgemeine als auch besondere; (b) im Falle einer Änderung der Versicherungsbedingungen oder einer Änderung der GEVVR: die in Artikel 2:201 lit. f und g sowie in Artikel 17:202 Absatz 2 lit. b Punkt i-v aufgezählten Informationen. (3) Artikel 17:202 Absatz 4 ist auch anwendbar, wenn der Versicherer zur irgendeinem Zeitpunkt während der Vertragslaufzeit bezifferte Angaben zur geschätzten Höhe von möglichen Leistungen macht. Wenn der Versicherer bezifferte Angaben zur möglichen zukünftigen Entwicklung der Überschussbeteiligung gemacht hat, sei es vor oder nach Vertragsabschluss, hat der Versicherer den Versicherungsnehmer über jede Abweichung der tatsächlichen Entwicklung von den ursprünglich gemachten Angaben zu informieren.

Artikel 17:302 Risikoerhöhung Eine Klausel in einem Lebensversicherungsvertrag, welche das Alter oder die Verschlechterung des Gesundheitszustandes als Risikoerhöhungen im Sinne von Artikel 4:201 festlegt, ist als eine missbräuchliche Klausel gemäß Artikel 2:304 anzusehen.

Artikel 17:303 Prämien- und Leistungsanpassung (1) In einem Lebensversicherungsvertrag, welcher Risiken deckt, für welche gewiss ist, dass der Versicherer haftet, ist der Versicherer nur zu einer Anpassung im Sinne von Absatz 2 und 3 berechtigt. (2) Eine Prämienerhöhung ist zulässig, wenn eine unvorhersehbare und dauernde Änderung bezüglich biometrischer Risiken eingetreten ist, welche als Basis für die Prämienkalkulation verwendet wurden, wenn eine Erhöhung notwendig ist, um die dauerhafte Fähigkeit des Versicheres zu gewährleisten, Versicherungsleistungen ausbezahlen zu können, und wenn ein unabhängiger Treuhänder oder die Aufsichtsbehörde die Erhöhung genehmigt hat. Der Versicherungsnehmer ist berechtigt, die Prämienerhöhung durch eine angemessene Reduktion der Versicherungsleistungen abzuwenden. (3) Im Falle einer prämienfreien Versicherung ist der Versicherer berechtigt, die Versicherungsleistungen unter den in Absatz 2 festgelegten Bedingungen zu reduzieren. (4) Eine Anpassung im Sinne von Absatz 2 oder 3 ist unzulässig (a) insofern als bei der Kalkulation der Prämie und/oder der Versicherungsleistungen ein Fehler unterlaufen ist, welcher einem kompetenten und gewissenhaften Aktuar hätte bewusst sein müssen, oder (b) wenn die zugrundeliegende Kalkulation nicht auf alle Verträge anwendet wird, einschließlich denjenigen, welche nach der Anpassung abgeschlossen wurden. (5) Eine Prämienerhöhung oder eine Reduktion der Versicherungsleistungen wird drei Monate nach der Mitteilung wirksam, mittels welcher der Versicherer dem Versicherungsnehmer die Prämienerhöhung oder Reduktion der Versicherungsleistungen, die Gründe dafür sowie das Recht des Versicherungsnehmers, eine Reduktion der Versicherungsleistungen zu verlangen, schriftlich mitgeteilt hat. (6) In einem Lebensversicherungsvertrag, welcher Risiken deckt, für welche gewiss ist, dass der Versicherer haftet, ist der Versicherungsnehmer zu einer Prämienreduktion berechtigt, wenn aufgrund einer unvorhersehbaren und dauernden Änderung bezüglich biometrischer Risiken, welche als Basis für die Prämienkalkulation verwendet wurden, die ursprüngliche Höhe der Prämie nicht angemessen und notwendig ist, um die dauerhafte Fähigkeit des Versicheres zu gewährleisten, Versicherungsleistungen ausbezahlen zu können. Die Reduktion muss von einem unabhängigen Treuhänder oder der Aufsichtsbehörde genehmigt werden.

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(7) Die in diesem Artikel festgelegten Rechte können frühestens fünf Jahre nach Vertragsschluss ausgeübt werden.

Artikel 17:304 Änderung von Vertragsbedingungen (1) Eine Klausel, die dem Versicherer gestattet, andere Vertragsbedingungen als die Prämie und die zu bezahlenden Leistungen abzuändern, ist unwirksam, es sei denn, die Änderung ist notwendig, um (a) einer Änderung des Aufsichtsrechtes nachzukommen, einschließlich zwingender Maßnahmen, welche von der Aufsichtbehörde getroffen wurden, oder (b) einer Änderung zwingender Bestimmungen des anwendbaren nationalen Rechtes über die betriebliche Altersvorsorge nachzukommen, oder (c) einer Änderung nationaler Bestimmungen nachzukommen, welche besondere Anforderungen für Lebensversicherungsverträge vorsehen, um für eine steuerliche Sonderbehandlung oder staatliche Subventionen qualifizieren zu können, oder (d) eine Vertragsbestimmung im Sinne von Artikel 2:304 Absatz 2 Satz 2 zu ersetzen. (2) Die Änderung wird mit Beginn des dritten Monates nach Zugang der schriftlichen Mitteilung beim Versicherungsnehmer, in welcher er über die Änderung und die Gründe dafür informiert wird, wirksam. (3) Sonstige Anforderungen an die Gültigkeit von Änderungsklauseln werden durch Absatz 1 nicht berührt.

Vierter Abschnitt: Verhältnis zum nationalen Recht Artikel 17:401 Altersvorsorgeprodukte Ein Lebensversicherungsvertrag im Zusammenhang mit einem Altersvorsorgeprodukt untersteht den zwingenden Bestimmungen des anwendbaren nationalen Rechtes über die Altersvorsorge. Die GEVVR sind nur in dem Umfang anwendbar, wie dies mit solchen Bestimmungen vereinbar ist.

Artikel 17:402 Steuerliche Behandlung und Staatliche Subventionen Die GEVVR haben keine Auswirkungen auf nationale Bestimmungen, welche besondere Anforderungen für Lebensversicherungsverträge vorsehen, um für eine steuerliche Sonderbehandlung oder staatliche Subventionen qualifizieren zu können. Im Falle eines Konfliktes zwischen solchen Anforderungen des anwendbaren nationalen Rechtes und den Bestimmungen der GEVVR darf von letzteren abgewichen werden.

Fünfter Abschnitt: Versicherungsfall Artikel 17:501 Nachforschungs- und Informationspflicht des Versicherers (1) Ein Versicherer, welcher Grund zur Annahme hat, dass das versicherte Ereignis eingetreten sein könnte, hat angemessene Maßnahmen zu ergreifen, um sich diesbezüglich zu vergewissern. (2) Der Versicherer, welcher weiss, dass das versicherte Ereignis eingetreten ist, hat sich unter den gegebenen Umständen nach besten Kräften zu bemühen, die Identität und Anschrift des Begünstigten in Erfahrung zu bringen und diese Person entsprechend zu informieren. Diese Informationen sind spätestens 30 Tage nach dem Zeitpunkt zur Verfügung zu stellen, in welchem der Versicherer von der Identität und der Anschrift des Begünstigten Kenntnis erlangt.

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(3) Wenn der Versicherer Absatz 1 oder 2 verletzt, steht die Verjährung des Anspruches des Begünstigten still, bis der Begünstigte von seiner tatsächlichen Berechtigung Kenntnis erlangt.

Artikel 17:502 Selbstmord (1) Wenn die Gefahrsperson innerhalb eines Jahres nach Vertragsschluss Selbstmord begeht, ist der Versicherer von seiner Pflicht, die Versicherungsleistung zu bezahlen, befreit. Ist dies der Fall, hat der Versicherer den Rückkaufswert und jeden Gewinn im Sinne von Artikel 17:602 zu bezahlen. (2) Absatz 1 ist nicht anwendbar, wenn (a) die Gefahrsperson bei Begehung des Selbstmordes in einem Geisteszustand handelt, in welchem sie nicht fähig ist, einen freien Willen zu bilden, oder (b) wenn zweifelsfrei bewiesen wird, dass die Gefahrsperson im Zeitpunkt des Vertragsschlusses nicht beabsichtigte, Selbstmord zu begehen.

Artikel 17:503 Vorsätzliche Tötung der Gefahrsperson (1) Wenn ein Begünstigter die Gefahrsperson vorsätzlich tötet, gilt seine Bezeichnung als Begünstigter als widerrufen. (2) Eine Abtretung des Anspruches an der Versicherungsleistung ist unwirksam, wenn der Abtretungsempfänger die Gefahrsperson vorsätzlich tötet. (3) Wenn der Versicherungsnehmer, welcher zugleich der Begünstigte ist, die Gefahrsperson vorsätzlich tötet, so ist der Versicherer nicht zur Leistung verpflichtet. (4) Wenn der Begünstigte oder der Versicherungsnehmer, welcher die Gefahrsperson tötet, einen Rechtfertigungsgrund hat, wie z.B. im Falle von Notwehr, ist dieser Artikel nicht anwendbar.

Sechster Abschnitt: Umwandlung und Rückkauf Artikel 17:601 Umwandlung des Vertrages (1) Artikel 5:103 ist nicht anwendbar auf Lebensversicherungsverträge, welche einen Umwandlungsoder Rückkaufswert generiert haben. Solche Verträge werden in prämienfreie Versicherungen umgewandelt, sofern der Versicherungsnehmer nicht innerhalb von vier Wochen nach Zugang der in Absatz 2 genannten Informationen die Zahlung des Umwandlungswertes verlangt. (2) Der Versicherer hat den Versicherungsnehmer innerhalb von vier Wochen nach Ablauf der in Artikel 5:101 lit. b oder Artikel 5:102 Absatz 1 lit. b genannten Frist über den Umwandlungswert und den Rückkaufswert zu informieren und den Versicherungsnehmer aufzufordern, zwischen der Umwandlung und der Zahlung des Rückkaufswertes zu wählen. (3) Die Aufforderung zur Umwandlung oder Auszahlung des Rückkaufswertes hat schriftlich zu erfolgen.

Artikel 17:602 Rückkauf des Vertrages (1) Der Versicherungsnehmer kann jederzeit schriftlich vom Versicherer verlangen, ganz oder teilweise den Rückkaufswert zu bezahlen, welchen der Versicherungsvertrag generiert hat, sofern dies nicht früher als ein Jahr nach Vertragsschluss erfolgt. Der Vertrag ist entsprechend anzupassen oder zu beenden. (2) Vorbehaltlich Artikel 17:601 ist der Versicherer verpflichtet, den Rückkaufswert zu bezahlen, wenn ein Lebensversicherungsvertrag, welcher einen Rückkaufswert generiert hat, durch den Versicherer gekündigt, angefochten oder widerrufen wurde, sogar im Falle von Artikel 2:104.

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(3) Der Versicherer hat den Versicherungsnehmer auf dessen Aufforderung hin, aber in jedem Fall jährlich, über den aktuellen Betrag des Rückkaufswertes zu informieren sowie über das Ausmaß, in dem dieser garantiert ist. (4) Die Überschussbeteilung, die dem Versicherungsnehmer zusteht, ist zusätzlich zum Rückkaufswert zu bezahlen, sofern die Überschussbeteiligung nicht bereits bei der Berechnung des Rückkaufswertes berücksichtigt wurde. (5) Die nach diesem Artikel geschuldeten Geldbeträge sind spätestens zwei Monate nach Zugang der Aufforderung des Versicherungsnehmers beim Versicherer zu bezahlen.

Artikel 17:603 Umwandlungswert; Rückkaufswert (1) Im Versicherungsvertrag muss angegeben sein, auf welche Art und Weise der Umwandlungswert und/oder der Rückkaufswert in Übereinstimmung mit der Rechtsordnung des Herkunftsmitgliedstaates des Versicherers berechnet werden. Die angegebene Art und Weise der Berechnung des Umwandlungswertes und/oder des Rückkaufswertes muss den anerkannten versicherungsmathematischen Grundsätzen und Absatz 2 entsprechen. (2) Wenn der Versicherer die Abschlusskosten in Abzug bringt, muss er dies in gleichen Teilbeträgen und über einen Zeitraum von nicht weniger als fünf Jahren tun. (3) Der Versicherer ist berechtigt, einen angemessenen Betrag abzuziehen, der in Übereinstimmung mit den anerkannten versicherungsmathematischen Grundsätzen berechnet wird, um die mit der Zahlung des Rückkaufswertes verbundenen Kosten zu decken, sofern die Berechnung nicht bereits einen solchen Abzug miteinschließt.

Sechster Teil: Gruppenversicherung 18. Kapitel: Besondere Bestimmungen für die Gruppenversicherung Erster Abschnitt: Gruppenversicherung im Allgemeinen Artikel 18:101 Anwendbarkeit Die GEVVR sind auf Gruppenversicherungsverträge anwendbar, sofern der Gruppenorganisator und der Versicherer die Vereinbarung in Übereinstimmung mit Artikel 1:102 getroffen haben. Eine Gruppenversicherung ist entweder akzessorisch und untersteht dem zweiten Abschnitt dieses Kapitels oder freiwillig und untersteht dem dritten Abschnitt dieses Kapitels.

Artikel 18:102 Allgemeine Sorgfaltspflicht des Gruppenorganisators (1) Bei den Vertragsverhandlungen für einen Gruppenversicherungsvertrag und bei dessen Ausführung hat sich der Gruppenorganisator nach dem Gebot von Treu und Glauben zu verhalten und die berechtigten Interessen der Gruppenmitglieder zu beachten. (2) Der Gruppenorganisator hat den Gruppenmitgliedern alle relevanten Mitteilungen des Versicherers weiterzuleiten und sie über alle Änderungen des Vertrages zu informieren.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Zweiter Abschnitt: Akzessorische Gruppenversicherung Artikel 18:201 Anwendbarkeit der GEVVR Soweit erforderlich gelangen die GEVVR mutatis mutandis auf die akzessorische Gruppenversicherung zur Anwendung.

Artikel 18:202 Informationspflichten (1) Wenn ein Gruppenmitglied der Gruppe beitritt, hat der Gruppenorganisator das Mitglied ohne unangemessene Verzögerung zu informieren über: (a) das Vorhandensein des Versicherungsvertrages, (b) den Deckungsumfang, (c) etwaige Sicherheitsmaßnahmen und jegliche anderen Anforderungen zur Aufrechterhaltung der Deckung, (d) das Verfahren der Schadensregulierung. (2) Der Beweis, dass das Gruppenmitglied die nach Absatz 1 notwendigen Informationen erhalten hat, obliegt dem Gruppenorganisator.

Artikel 18:203 Kündigung durch den Versicherer (1) Für die Zwecke des Artikels 2:604 ist die Ausübung des Kündigungsrechtes durch den Versicherer nur als angemessen anzusehen, falls sie darauf begrenzt ist, dasjenige Gruppenmitglied, bei welchem der Versicherungsfall eingetreten ist, vom Versicherungsschutz auszuschließen. (2) Für die Zwecke des Artikels 4:102 und des Artikels 4:203 Absatz 1 bewirkt die Ausübung des Kündigungsrechtes durch den Versicherer nur den Ausschluss derjenigen Gruppenmitglieder vom Versicherungsschutz, welche je nach Lage des Falles entweder die erforderlichen Sicherheitsmaßnahmen nicht getroffen haben oder deren Risiken sich erhöht haben. (3) Für die Zwecke des Artikels 12:102 bewirkt die Beendigung des Versicherungsvertrages nur den Ausschluss derjenigen Gruppenmitglieder vom Versicherungsschutz, welche versicherte Sachen veräußert haben.

Artikel 18:204 Recht auf Fortführung des Versicherungsschutzes – Gruppenlebensversicherung (1) Wenn ein Vertrag über eine akzessorische Gruppenlebensversicherung beendet wird oder wenn ein Mitglied die Gruppe verlässt, endet der Versicherungsschutz nach drei Monaten oder mit Vertragsende, je nach dem, was früher erfolgt. Wenn dies geschieht, hat das Gruppenmitglied ein Recht auf gleichwertigen Versicherungsschutz durch einen neuen Einzelvertrag mit dem betroffenen Versicherer ohne erneute Risikoprüfung. (2) Der Gruppenorganisator hat das Gruppenmitglied ohne unangemessene Verzögerung schriftlich zu informieren über: (a) die bevorstehende Beendigung seines Versicherungsschutzes aus dem Vertrag über die Gruppenlebensversicherung, (b) seine Rechte gemäß Absatz 1 und (c) wie er diese Rechte auszuüben hat. (3) Wenn das Gruppenmitglied seine Absicht geäussert hat, sein Recht gemäß Artikel 18:204 Absatz 1 auszuüben, wird der Vertrag zwischen dem Versicherer und dem Gruppenmitglied als Einzelversicherungsvertrag zu einer Prämie fortgeführt, welche auf der Basis eines Einzelversicherungsvertrages zu diesem Zeitpunkt berechnet wird, ohne den gegenwärtigen Gesundheitszustand oder das gegenwärtige Alter des Gruppenmitglieds zu berücksichtigen.

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Dritter Abschnitt: Freiwillige Gruppenversicherung Artikel 18:301 Freiwillige Gruppenversicherung: Allgemeines (1) Die freiwillige Gruppenversicherung gilt als eine Kombination eines Rahmenvertrages zwischen dem Versicherer und dem Gruppenorganisator und von Einzelversicherungsverträgen, welche im Rahmen eines solchen Rahmenvertrages zwischen dem Versicherer und den Gruppenmitgliedern abgeschlossen werden. (2) Die GEVVR sind auf die Einzelversicherungsverträge anwendbar, wenn der Versicherer und der Gruppenorganisator ihre Anwendbarkeit vereinbart haben, aber, mit Ausnahme der Artikel 18:101 und 18:102, sind die GEVVR nicht auf den Rahmenvertrag anwendbar.

Artikel 18:302 Änderung von Vertragsbedingungen Die Änderung der Vertragsbedingungen des Rahmenvertrages wirkt sich nur auf die Einzelversicherungsverträge aus, falls sie in Übereinstimmung mit den Anforderungen der Artikel 2:603, 17:303 und 17:304, wie jeweils anwendbar, ausgeführt wurden.

Artikel 18:303 Fortführung des Versicherungsschutzes Die Beendigung des Rahmenvertrages oder die Beendigung der Gruppenzugehörigkeit eines einzelnen Gruppenmitglieds hat keine Auswirkungen auf den Versicherungsvertrag zwischen dem Versicherer und dem Gruppenmitglied.

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Greek version by Ioannis Rokas, Eirini Sarri and Marilena Sotirchou

Αρχές Ευρωπαϊκού Δικαίου της Ασφαλιστικής Σύμβασης (ΑΕΔΑΣ) Μέρος πρώτο: Διατάξεις Κοινές σε όλες τις συμβάσεις που περιλαμβάνονται στις Αρχές Ευρωπαϊκού Δικαίου της Ασφαλιστικής Σύμβασης (ΑΕΔΑΣ) Κεφάλαιο πρώτο: Εισαγωγικές διατάξεις Τμήμα πρώτο: Εφαρμογή των ΑΕΔΑΣ Τμήμα δεύτερο: Γενικές διατάξεις Τμήμα τρίτο: Εκτέλεση

Κεφάλαιο δεύτερο: Ρυθμίσεις κατά τη σύναψη και κατά τη διάρκεια της ασφαλιστικής σύμβασης Τμήμα πρώτο: Προσυμβατικές υποχρεώσεις ανακοινώσεων του αιτούντος ασφάλιση Τμήμα δεύτερο: Προσυμβατικές υποχρεώσεις του ασφαλιστή Τμήμα τρίτο: Σύναψη της Σύμβασης Τμήμα τέταρτο: Αναδρομική και προσωρινή κάλυψη Τμήμα πέμπτο: Ασφαλιστήριο Τμήμα έκτο: Διάρκεια της ασφαλιστικής σύμβασης Τμήμα έβδομο: Υποχρεώσειςενημέρωσης του ασφαλιστή μετά τη σύναψη της σύμβασης

Κεφάλαιο τρίτο: Διαμεσολαβούντες στην ασφάλιση Κεφάλαιο τέταρτο: Ασφαλιστικός κίνδυνος Τμήμα πρώτο: Προληπτικά μέτρα Τμήμα δεύτερο: Επίταση του κινδύνου Τμήμα τρίτο: Μείωση του κινδύνου

Κεφάλαιο πέμπτο: Ασφάλιστρο Κεφάλαιο έκτο: Ασφαλιστική περίπτωση Κεφάλαιο έβδομο: Παραγραφή Μέρος δεύτερο: Διατάξεις κοινές για όλες τις ασφαλίσεις ζημιών Κεφάλαιο όγδοο: Ασφαλιστικό ποσό και ασφαλιστική αξία

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Κεφάλαιο ένατο: Καταβολή του ασφαλίσματος Κεφάλαιο δέκατο: Δικαίωμα υποκατάστασης Κεφάλαιο ενδέκατο: Ασφαλισμένος που δεν είναι λήπτης της ασφάλισης Κεφάλαιο δωδέκατο: Ασφαλιστικός Κίνδυνος Μέρος τρίτο: Διατάξεις κοινές για όλες τις ασφαλίσεις ποσού Κεφάλαιο δέκατο τρίτο: Παραδεκτό Μέρος τέταρτο: Ασφάλιση αστικής ευθύνης Κεφάλαιο δέκατο τέταρτο: Γενική ασφάλιση αστικής ευθύνης Κεφάλαιο δέκατο πέμπτο: Ευθεία αγωγή κατά του ασφαλιστή Κεφάλαιο δέκατο έκτο: Υποχρεωτική ασφάλιση Μέρος πέμπτο: Ασφάλιση ζωής Κεφάλαιο δέκατο έβδομο: Ειδικές διατάξεις για ασφάλιση ζωής Τμήμα πρώτο: Τρίτα πρόσωπα Τμήμα δεύτερο: Αρχικό στάδιο και διάρκεια της σύμβασης Τμήμα τρίτο: Αλλαγές κατά τη διάρκεια της περιόδου της σύμβασης Τμήμα τέταρτο: Σχέσεις με την εθνική νομοθεσία Τμήμα πέμπτο: Ασφαλιστική περίπτωση Τμήμα έκτο: Μετατροπή και ποσό επαναγοράς

Μέρος έκτο: Ομαδική ασφάλιση Κεφάλαιο δέκατο όγδοο: Ειδικές διατάξεις για τις ομαδικές ασφαλίσεις Τμήμα πρώτο: Ομαδικές ασφαλίσεις γενικά Τμήμα δεύτερο: Συμπληρωματική ομαδική ασφάλιση Τμήμα τρίτο: Επιλεκτική ομαδική ασφάλιση

Greek: Αρχές Ευρωπαϊκού Δικαίου της Ασφαλιστικής Σύμβασης (ΑΕΔΑΣ)

Μέρος πρώτο: Διατάξεις κοινές σε όλες τις συμβάσεις που περιλαμβάνονται στις Αρχές Ευρωπαϊκού Δικαίου της Ασφαλιστικής Σύμβασης (ΑΕΔΑΣ) Κεφάλαιο πρώτο: Εισαγωγικές διατάξεις Τμήμα πρώτο: Εφαρμογή των ΑΕΔΑΣ Άρθρο 1:101 Πεδίο εφαρμογής (1) Οι ΑΕΔΑΣ εφαρμόζονται στην ιδιωτική ασφάλιση συμπεριλαμβανομένων και των αλληλασφαλίσεων. (2) Οι ΑΕΔΑΣ δεν εφαρμόζονται στην αντασφάλιση.

Άρθρο 1:102 Προαιρετική εφαρμογή Με την επιφύλαξη των περιορισμών που τίθενται από το ιδιωτικό διεθνές δίκαιο ως προς την επιλογή του εφαρμοστέου δικαίου, οι ΑΕΔΑΣ εφαρμόζονται όταν τα μέρη έχουν συμφωνήσει ότι η σύμβαση θα διέπεται από αυτές. Με την επιφύλαξη του άρθρου 1:103, οι ΑΕΔΑΣ εφαρμόζονται ως σύνολο και δεν μπορούν να εξαιρεθούν επιμέρους διατάξεις.

Άρθρο 1:103 Υποχρεωτικός χαρακτήρας (1) Τα άρθρα 1:102 εδάφιο β’, 2:104, 2:304, 13:101, 17:101 και 17:503 είναι αναγκαστικού δικαίου. Τα υπόλοιπα άρθρα είναι αναγκαστικού δικαίου στο μέτρο που αφορούν τις κυρώσεις για δόλια συμπεριφορά. (2) Η ασφαλιστική σύμβαση μπορεί να παρεκκλίνει από όλες τις άλλες διατάξεις των ΑΕΔΑΣ, εφόσον οι παρεκκλίσεις δεν περιορίζουν τα δικαιώματα του λήπτη ασφάλισης, του ασφαλισμένου ή του δικαιούχου. (3) Οι παρεκκλίσεις κατά την έννοια της ως άνω παραγράφου 2 επιτρέπονται προς όφελος οποιουδήποτε μέρους σε συμβάσεις που καλύπτουν μεγάλους κινδύνους, κατά την έννοια του άρθρου 13 παράγραφος 27 της Οδηγίας 2009/138/ΕΚ. Στην ομαδική ασφάλιση, η παρέκκλιση αυτή θα περιορίζει μόνο τα δικαιώματα του ασφαλισμένου ατομικά, ο οποίος πληροί τα χαρακτηριστικά που αναφέρονται στο άρθρο 13 παράγραφος 27 εδάφιο β’ ή γ της Οδηγίας 2009/138/ΕΚ, ανάλογα με την περίπτωση.

Άρθρο 1:104 Ερμηνεία Οι ΑΕΔΑΣ ερμηνεύονται με βάση το γράμμα, το περιεχόμενο και τον σκοπό τους, καθώς και το τυχόν εθνικό δίκαιο καταγωγής των διατάξεων που εφαρμόζονται. Ειδικότερα, έμφαση πρέπει να δίνεται στην προώθηση της καλής πίστης και των συναλλακτικών ηθών, της ασφάλειας των συναλλαγών, της ομοιόμορφης εφαρμογής του δικαίου, καθώς και της ικανοποιητικής προστασίας του λήπτη της ασφάλισης.

Άρθρο 1:105 Εθνικό δίκαιο και γενικές αρχές (1) Το εθνικό δίκαιο δεν εφαρμόζεται, είτε προς περιορισμό είτε προς συμπλήρωση των ΑΕΔΑΣ, εκτός αν πρόκειται για αναγκαστικού δικαίου διατάξεις νόμων, που έχουν ειδικά εισαχθεί για τη ρύθμιση κλάδων ασφάλισης που δεν καλύπτονται από τις ΑΕΔΑΣ. (2) Θέματα της ασφαλιστικής σύμβασης που δεν ρυθμίζονται ρητά στις ΑΕΔΑΣ, επιλύονται σύμφωνα με τις Αρχές του Ευρωπαϊκού Δικαίου των Συμβάσεων (Principles of European Contract Law –

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PECL)1, και, εφόσον δεν υπάρχουν σχετικές διατάξεις, με προσφυγή στις κοινές γενικές αρχές των εθνικών δικαίων των Κρατών μελών.

Τμήμα δεύτερο: Γενικές διατάξεις Άρθρο 1:201 Ασφαλιστική σύμβαση (1) «Ασφαλιστική σύμβαση» είναι η σύμβαση με την οποία ο ένας συμβαλλόμενος, ο ασφαλιστής, υπόσχεται στον αντισυμβαλλόμενό του, τον λήπτη της ασφάλισης, την παροχή κάλυψης κατά συγκεκριμένου κινδύνου έναντι ασφαλίστρου. (2) «Ασφαλιστική περίπτωση» είναι η πραγματοποίηση του κινδύνου που περιγράφεται στην ασφαλιστική σύμβαση. (3) «Ασφάλιση ζημιών» είναι η ασφάλιση κατά την οποία ο ασφαλιστής ευθύνεται σε αποκατάσταση της ζημιάς που προκλήθηκε με την επέλευση της ασφαλιστικής περίπτωσης. (4) «Ασφάλιση ποσού» είναι η ασφάλιση κατά την οποία ο ασφαλιστής ευθύνεται σε καταβολή ενός προκαθορισμένου χρηματικού ποσού με την επέλευση της ασφαλιστικής περίπτωσης. (5) «Ασφάλιση αστικής ευθύνης» είναι η ασφάλιση στην οποία ο κίνδυνος συνίσταται στην έκθεση του λήπτη της ασφάλισης στην κατά νόμο αστική ευθύνη έναντι του ζημιωθέντος. (6) «Ασφάλιση ζωής» είναι η ασφάλιση κατά την οποία η υποχρέωση του ασφαλιστή ή η καταβολή του ασφαλιστικού ποσού εξαρτώνται από την επέλευση της ασφαλιστικής περίπτωσης, που καθορίζεται αποκλειστικά με αναφορά στο θάνατο ή την επιβίωση του προσώπου του κινδύνου. (7) «Συμβάσεις για ομαδική ασφάλιση» είναι οι συμβάσεις μεταξύ ενός ασφαλιστή και ενός οργανωτή ομάδας, προς όφελος των μελών της ομάδας που συνδέονται με τον οργανωτή της ομάδας. Μια σύμβαση ομαδικής ασφάλισης μπορεί επίσης να καλύπτει και την οικογένεια των μελών της ομάδας. (8) «Συμπληρωματική ομαδική ασφάλιση» είναι η ομαδική ασφάλιση κατά την οποία τα μέλη της ομάδας ασφαλίζονται αυτόματα λόγω του ότι ανήκουν στην ομάδα, χωρίς να είναι σε θέση να αρνηθούν την ασφάλιση. (9) «Επιλεκτική ομαδική ασφάλιση» είναι η ομαδική ασφάλιση κατά την οποία τα μέλη της ομάδας ασφαλίζονται είτε μετά από ατομική αίτησή τους προς ασφάλιση είτε επειδή απλώς δεν αρνήθηκαν να συμμετέχουν στην ομαδική ασφάλιση.

Άρθρο 1:202 Λοιποί ορισμοί (1) «Ασφαλισμένος» είναι το πρόσωπο του οποίου το συμφέρον προστατεύεται έναντι ζημιών από μία ασφάλιση κατά ζημιών. (2) «Δικαιούχος του ασφαλίσματος» είναι το πρόσωπο στο οποίο καταβάλλεται το ασφάλισμα στην ασφάλιση ποσού. (3) «Πρόσωπο του κινδύνου» είναι το πρόσωπο επί της ζωής, υγείας, ακεραιότητας ή της προσωπικής κατάστασης του οποίου συνάπτεται η ασφάλιση. (4) «Ζημιωθείς», στην ασφάλιση αστικής ευθύνης, είναι το πρόσωπο για το θάνατο, τραυματισμό ή ζημία του οποίου ευθύνεται ο λήπτης της ασφάλισης. (5) «Ασφαλιστικός πράκτορας» είναι ο διαμεσολαβών στην ασφάλιση που παρουσιάζει, πωλεί ή διαχειρίζεται ασφαλιστικές συμβάσεις για λογαριασμό του ασφαλιστή. 1

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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(6) «Ασφάλιστρο» είναι το ποσό που οφείλεται στον ασφαλιστή από τον λήπτη της ασφάλισης έναντι της παρεχόμενης κάλυψης. (7) «Διάρκεια της σύμβασης» είναι η περίοδος της συμβατικής δέσμευσης που αρχίζει από τη σύναψη της σύμβασης και λήγει με την πάροδο της συμφωνημένης διάρκειας. (8) «Ασφαλιστική περίοδος» είναι η περίοδος για την οποία οφείλεται το ασφάλιστρο κατά τη συμφωνία των μερών. (9) «Περίοδος ευθύνης» είναι η χρονική περίοδος της ασφαλιστικής κάλυψης. (10) «Υποχρεωτική ασφάλιση» είναι η ασφάλιση, που έχει συναφθεί κατ’ εφαρμογή υποχρέωσης προς ασφάλιση, που πηγάζει από νομοθέτημα.

Άρθρο 1:203 Γλώσσα και ερμηνεία των εγγράφων2 (1) Όλα τα έγγραφα που παρέχονται από τον ασφαλιστή πρέπει να είναι συντεταγμένα με σαφή και κατανοητό τρόπο στη γλώσσα στην οποία έγινε η διαπραγμάτευση της σύμβασης. (2) Σε περίπτωση αμφιβολιών ως προς την έννοια του κειμένου οιουδήποτε εγγράφου ή πληροφορίας που παρασχέθηκε από τον ασφαλιστή, υπερισχύει η ευνοϊκότερη εκδοχή για τον λήπτη της ασφάλισης, τον ασφαλισμένο ή τον δικαιούχο του ασφαλίσματος.

Άρθρο 1:204 Λήψη εγγράφων: Απόδειξη Ο ασφαλιστής φέρει το βάρος της απόδειξης ότι ο λήπτης της ασφάλισης έχει παραλάβει τα έγγραφα που οφείλει να του παραδώσει.

Άρθρο 1:205 Τύπος γνωστοποίησης Ανακοινώσεις του αιτούντα ασφάλιση, του λήπτη της ασφάλισης, του ασφαλισμένο ή του δικαιούχου του ασφαλίσματος προς τον ασφαλιστή, που σχετίζονται με την ασφαλιστή σύμβαση και με επιφύλαξη ειδικότερων διατάξεων των ΑΕΔΑΣ, είναι άτυπες.

Άρθρο 1:206 Τεκμαιρόμενη γνώση Σε περίπτωση που έχουν ανατεθεί σε οιοδήποτε πρόσωπο από τον λήπτη της ασφάλισης, τον ασφαλισμένο ή το δικαιούχο του ασφαλίσματος ουσιώδη καθήκοντα σχετικά με την σύναψη και εκτέλεση της σύμβασης, η σχετική γνώση που το πρόσωπο αυτό έχει ή όφειλε να έχει κατά την εκτέλεση των καθηκόντων του, θεωρείται γνώση του λήπτη της ασφάλισης, του ασφαλισμένου ή του δικαιούχου του ασφαλίσματος ανάλογα με την περίπτωση.

Άρθρο 1:207 Ίση μεταχείριση3 (1) Φύλο, εγκυμοσύνη, μητρότητα, εθνικότητα, φυλετική ή εθνική καταγωγή δεν μπορούν να αποτελούν κριτήρια διαφοροποιήσεων στα εξατομικευμένα ασφάλιστρα και παροχές. (2) Ασφαλιστικοί όροι που αντιβαίνουν στην ως άνω παράγραφο 1, συμπεριλαμβανομένων και των όρων που αφορούν το ασφάλιστρο, δεν δεσμεύουν τον λήπτη της ασφάλισης ή τον ασφαλισμένο. Με την επιφύλαξη της πιο κάτω παραγράφου 3, τα μέρη στην ασφαλιστική σύμβαση εξακολουθούν να δεσμεύονται από αυτήν με βάση ασφαλιστικούς όρους που δεν αντιβαίνουν στην απαγόρευση διακρίσεων. (3) Σε περίπτωση παράβασης της ως άνω παραγράφου 1, ο λήπτης της ασφάλισης δικαιούται να καταγγείλει τη σύμβαση. H καταγγελία κοινοποιείται με γραπτή δήλωση στον ασφαλιστή εντός δύο μηνών από τότε που η παράβαση έγινε γνωστή στον λήπτη της ασφάλισης. 2 3

Η παράγραφος 2 του άρθρου 1:203 βασίζεται στο άρθρο 5 της Οδηγίας 93/13/ΕΟΚ. Το άρθρο αυτό βασίζεται στην Οδηγία 2009/22/ΕΚ.

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Άρθρο 1:208 Γενετικός έλεγχος (1) Ο ασφαλιστής δεν μπορεί να ζητήσει από τον αιτούντα ασφάλισης, τον λήπτη της ασφάλισης ή το πρόσωπο του κινδύνου να υποβληθεί σε γενετικό έλεγχο ή να αποκαλύψει τα αποτελέσματα ενός γενετικού ελέγχου. Επίσης ο ασφαλιστής δεν μπορεί να χρησιμοποιήσει πληροφορίες γενετικού ελέγχου με σκοπό την αξιολόγηση κινδύνων. (2) Η παράγραφος 1 δεν εφαρμόζεται σε ασφάλιση προσώπων, στην οποία το πρόσωπο του κινδύνου έχει συμπληρώσει τα 18 έτη και το ασφαλιστικό ποσό υπερβαίνει τα 300.000 ευρώ ή το ασφάλισμα που καταβάλλεται σε εκτέλεση της σύμβασης, υπερβαίνει τα 30.000 ευρώ ετησίως.

Τμήμα Τρίτο: Εκτέλεση Άρθρο 1:301 Αγωγές παράλειψης4 (1) Το πρόσωπο, που προβλέπεται στην παράγραφο 2 του παρόντος άρθρου, δικαιούται να προσφύγει στο αρμόδιο εθνικό Δικαστήριο ή στην αρμόδια εθνική Αρχή με αίτημα την απαγόρευση ή παύση των παραβάσεων των ΑΕΔΑΣ, εφόσον αυτές εφαρμόζονται σύμφωνα με το άρθρο 1:102. (2) Πρόσωπο που νομιμοποιείται να προσφύγει στο αρμόδιο εθνικό Δικαστήριο ή στην αρμόδια εθνική Αρχή, είναι κάθε οργανισμός ή οργάνωση του καταλόγου που συντάσσεται από την Ευρωπαϊκή Επιτροπή σε εφαρμογή του άρθρου 4 της Οδηγίας 2009 / 22 / ΕΚ του Ευρωπαϊκού Κοινοβουλίου και του Συμβουλίου της 23ης Απριλίου 2009 σχετικά με τις αγωγές παράλειψης στον τομέα της προστασίας των συμφερόντων των καταναλωτών.

Άρθρο 1:302 Εξωδικαστική υποβολή και επίλυση διαφορών Η εφαρμογή των ΑΕΔΑΣ δεν αποκλείει την δυνατότητα του λήπτη της ασφάλισης να κάνει χρήση διαδικασίας εξωδικαστικής επίλυσης διαφορών.

Κεφάλαιο δεύτερο: Ρυθμίσεις κατά τη σύναψη και κατά την διάρκεια της ασφαλιστικής σύμβασης Τμήμα πρώτο: Προσυμβατικές υποχρεώσεις ανακοινώσεων του αιτούντα ασφάλιση Άρθρο 2:101 Περιγραφή του κινδύνου (1) Κατά τη σύναψη της σύμβασης, ο αιτών ασφάλιση υποχρεούται να ανακοινώσει στον ασφαλιστή κάθε περιστατικό το οποίο γνωρίζει ή όφειλε να γνωρίζει και για το οποίο ο ασφαλιστής έθεσε σαφείς και ακριβείς ερωτήσεις. (2) Τα περιστατικά που αναφέρονται στην παράγραφο 1 του παρόντος άρθρου περιορίζονται σε εκείνα, τα οποία ο αιτών ασφάλιση γνώριζε ή όφειλε να γνωρίζει.

Άρθρο 2:102 Παράβαση (1) Σε περίπτωση παράβασης του άρθρου 2:101 από τον λήπτη της ασφάλισης ο ασφαλιστής δύναται, με την επιφύλαξη των παραγράφων 2 έως 5 του άρθρου αυτού, να καταγγείλει την ασφαλιστική σύμβαση ή να προτείνει μία εύλογη τροποποίησή της. Για τον σκοπό αυτό ο ασφαλιστής πρέπει προηγούμενα να δηλώσει σχετικά στον λήπτη της ασφάλισης την πρόθεσή του αυτή συνοδεύοντας την με πληροφορίες για τις νομικές συνέπειες που θα έχει η άσκηση του αυτού του 4

Το άρθρο αυτό βασίζεται στην Οδηγία 2009/22/ΕΚ.

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(2)

(3)

(4)

(5)

δικαιώματός του. Η δήλωση πρέπει να είναι γραπτή και να δίδεται εντός ενός μηνός από τότε που ο ασφαλιστής έλαβε γνώση της παράβασης του άρθρου 2:101 ή όφειλε να είχε λάβει γνώση αυτής. Αν ο ασφαλιστής προτείνει μια εύλογη τροποποίηση, η σύμβαση ισχύει εφεξής με βάση την τροποποίηση, εκτός εάν ο λήπτης της ασφάλισης απορρίψει την πρόταση εντός ενός μηνός από την λήψη της δήλωσης της ως άνω παρ. 1. Στην περίπτωση αυτή, ο ασφαλιστής έχει το δικαίωμα να καταγγείλει την ασφαλιστική σύμβαση εντός ενός μηνός από την λήψη της δήλωσης απόρριψης της πρότασης από τον λήπτη της ασφάλισης. Ο ασφαλιστής δε δικαιούται να καταγγείλει τη σύμβαση σε περίπτωση που η παράβαση του άρθρου 2:101 δεν οφείλεται σε υπαιτιότητα του λήπτη της ασφάλισης, εκτός εάν αποδείξει ότι δε θα είχε συνάψει την ασφαλιστική σύμβαση εάν γνώριζε τις σχετικές πληροφορίες. Η καταγγελία της σύμβασης επιφέρει αποτελέσματα μετά την πάροδο ενός μηνός από τη λήψη της γραπτής δήλωσης της παρ. 1 του παρόντος άρθρου από τον λήπτη της ασφάλισης. Η έναρξη των αποτελεσμάτων της τροποποίησης ρυθμίζεται με συμφωνία των μερών. Αν την ασφαλιστική περίπτωση προκάλεσε ένα στοιχείο του κινδύνου, που δεν είχε ανακοινωθεί ή είχε περιγραφεί αναληθώς από αμέλεια του λήπτη και η επέλευσή της συντελέστηκε προτού η καταγγελία ή η τροποποίηση επιφέρουν αποτελέσματα, ο ασφαλιστής δεν υποχρεούται σε καταβολή του ασφαλίσματος, εφόσον δεν θα είχε συνάψει τη σύμβαση, εάν γνώριζε τις σχετικές με το στοιχείο αυτό πληροφορίες. Εάν όμως ο ασφαλιστής θα είχε συνάψει τη σύμβαση με υψηλότερο ασφάλιστρο ή με διαφορετικούς όρους, θα καταβάλλεται ασφάλισμα που θα καθορίζεται σε αναλογία με το ασφάλιστρο που εισπράχθηκε ή σύμφωνα με τους όρους που θα είχαν συμφωνηθεί.

Άρθρο 2:103 Εξαιρέσεις Οι κυρώσεις που προβλέπονται στο άρθρο 2:102 δεν εφαρμόζονται όταν η παράβαση σχετίζεται με: (α) μία ερώτηση που έμεινε αναπάντητη ή μία πληροφορία η οποία ήταν καταφανώς ελλιπής ή λανθασμένη. (β) μία πληροφορία που θα έπρεπε να έχει δοθεί ή μία ανακριβή πληροφορία, η οποία δεν ήταν ουσιώδης για να προκαλέσει την απόφαση ενός συνετού ασφαλιστή να αποδεχτεί τη σύμβαση ή να την αποδεχτεί σύμφωνα με τους όρους που συμφωνήθηκαν. (γ) μία πληροφορία για την οποία ο ασφαλιστής έδωσε την εντύπωση στον λήπτη της ασφάλισης ότι δε χρειάζεται να δοθεί. (δ) μία πληροφορία που ο ασφαλιστής γνώριζε ή όφειλε να γνωρίζει.

Άρθρο 2:104 Παράβαση από δόλο Με την επιφύλαξη των κυρώσεων που προβλέπονται στο άρθρο 2:102, ο ασφαλιστής δικαιούται να υπαναχωρήσει από τη σύμβαση, ενώ διατηρεί την αξίωσή του επί των ληξιπρόθεσμων ασφαλίστρων, όταν ο λόγος που προέβηκε στη σύναψή της ανάγεται στην εκ μέρους του λήπτη δόλια παράβαση του άρθρου 2:101. Η άσκηση του δικαιώματος υπαναχώρησης γίνεται με γραπτή δήλωση προς τον λήπτη της ασφάλισης εντός δύο μηνών από τότε που ο ασφαλιστής έλαβε γνώση της παράβασης.

Άρθρο 2:105 Πρόσθετες ανακοινώσεις Τα άρθρα 2:102-2:104 εφαρμόζονται και σε κάθε άλλη πληροφορία, που παρέχει ο λήπτης της ασφάλισης κατά τον χρόνο της σύναψης της σύμβασης, επιπλέον των ανακοινώσεων που προβλέπονται στο άρθρο 2:101.

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Άρθρο 2:106 Γενετικές πληροφορίες Το παρόν τμήμα δεν εφαρμόζεται στα αποτελέσματα γενετικών εξετάσεων που υπόκεινται στις ρυθμίσεις του άρθρου 1:208 παράγραφος 1.

Τμήμα Δεύτερο: Προσυμβατικές υποχρεώσεις του ασφαλιστή Άρθρο 2:201 Παράδοση εγγράφων πριν την σύναψη της σύμβασης5 (1) Ο ασφαλιστής παραδίδει στον αιτούντα ασφάλιση αντίγραφο των προτεινόμενων ασφαλιστικών όρων, καθώς και έγγραφο με τις εξής πληροφορίες, εφόσον απαιτείται: (α) το όνομα και την διεύθυνση των συμβαλλομένων, ιδίως την διεύθυνση της έδρας της και τη νομική μορφή της ασφαλιστικής επιχείρησης και, όπου είναι απαραίτητο, του υποκαταστήματος που συνάπτει την ασφαλιστική σύμβαση ή παρέχει την ασφαλιστική κάλυψη, (β) το όνομα και τη διεύθυνση του ασφαλισμένου και, στην περίπτωση της ασφάλισης ζωής, του δικαιούχου του ασφαλίσματος και του προσώπου του κινδύνου, (γ) το όνομα και τη διεύθυνση του διαμεσολαβούντος, (δ) το αντικείμενο της ασφάλισης και τους ασφαλιστικούς κινδύνους, (ε) το ασφαλιστικό ποσό και κάθε απαλλαγή, (στ) το ύψος του ασφαλίστρου και τον τρόπο υπολογισμού του, (ζ) το χρόνο κατά τον οποίο το ασφάλιστρο καθίσταται ληξιπρόθεσμο, καθώς και τον τόπο και τη μέθοδο πληρωμής του, (η) τη διάρκεια της ασφαλιστικής σύμβασης, συμπεριλαμβανομένου του τρόπου καταγγελίας της σύμβασης και της περιόδου ευθύνης, (θ) το δικαίωμα ακυρώσεως της αιτήσεως ή υπαναχώρησης από τη σύμβαση σύμφωνα με τις προβλέψεις του άρθρου 2:303 στην περίπτωση ασφάλισης ζημιών και σύμφωνα με το άρθρο 17:203 στην περίπτωση ασφάλισης ζωής, (ι) ότι η σύμβαση διέπεται από τις ΑΕΔΑΣ, (ια) την ύπαρξη διαδικασίας εξωδικαστικής υποβολής και επίλυσης διαφορών και των τρόπων πρόσβασης του αιτούντα ασφάλιση σε αυτήν, (ιβ) την ύπαρξη εγγυητικών κεφαλαίων ή άλλων σχετικών συμφωνιών, (2) Εάν είναι εφικτό, οι πληροφορίες αυτές πρέπει να παρέχονται σε χρόνο τέτοιο που να επιτρέπει στον αιτούντα ασφάλιση να εξετάσει εάν θα συνάψει τη σύμβαση ή όχι, (3) Όταν ο αιτών ασφάλιση χρησιμοποιεί έντυπη αίτηση ή/και ερωτηματολόγιο που του έχει χορηγήσει ο ασφαλιστής, αντίγραφα των συμπληρωμένων εγγράφων πρέπει να παραδίδονται στον αιτούντα.

Άρθρο 2:202 Προειδοποίηση για παρεκκλίσεις της προσφερόμενης κάλυψης (1) Κατά τη σύναψη της σύμβασης, ο ασφαλιστής προειδοποιεί τον αιτούντα ασφάλιση για κάθε παρέκκλιση, την οποία ο ασφαλιστής γνωρίζει ή όφειλε να γνωρίζει, μεταξύ της προσφερόμενης κάλυψης και της αίτησης για ασφάλιση, λαμβάνοντας υπόψη τις συνθήκες και τον τρόπο σύναψης της σύμβασης και, ιδιαίτερα, εάν ο αιτών ασφάλιση είχε τη σύμπραξη ανεξάρτητου διαμεσολαβούντος. (2) Στην περίπτωση παράβασης της υποχρέωσης που προβλέπεται στην παρ. 1 του παρόντος άρθρου

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Η διάταξη αυτή βασίζεται στα άρθρα 183-189 της οδηγίας 2009/138/ΕΚ (Φερεγγυότητα II).

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(α) ο ασφαλιστής θα αποζημιώνει τον λήπτη της ασφάλισης για κάθε ζημία που προκαλείται από την παράβαση του ως άνω καθήκοντος, εκτός αν ενήργησε χωρίς υπαιτιότητα, και (β) ο λήπτης της ασφάλισης δικαιούται να καταγγείλει τη σύμβαση. Το δικαίωμα καταγγελίας ασκείται με γραπτή δήλωση που κοινοποιείται στον ασφαλιστή εντός δύο μηνών από τότε που ο λήπτης της ασφάλισης έλαβε γνώση της παράβασης.

Άρθρο 2:203 Προειδοποίηση για τον χρόνο έναρξης της κάλυψης Εάν ο αιτών ασφάλιση πιστεύει δικαιολογημένα, πλην όμως λανθασμένα, ότι η κάλυψη αρχίζει από τον χρόνο υποβολής της αίτησης και ο ασφαλιστής γνωρίζει ή όφειλε να γνωρίζει την πεποίθηση αυτή του αιτούντα, οφείλει να τον προειδοποιήσει αμέσως ότι η κάλυψη δεν άρχεται πριν από την σύναψη της σύμβασης και, κατά περίπτωση, πριν την καταβολή του πρώτου ασφαλίστρου, εκτός αν χορηγήθηκε προσωρινή κάλυψη. Σε περίπτωση παράβασης του καθήκοντος προειδοποίησης, ο ασφαλιστής ευθύνεται σύμφωνα με το άρθρο 2:202 παρ. 2(α).

Τμήμα τρίτο: Σύναψη της σύμβασης Άρθρο 2:301 Τύπος της σύναψης Για τη σύναψη ή απόδειξη της ασφαλιστικής σύμβασης δεν απαιτείται η τήρηση κανενός τύπου. Η σύμβαση αποδεικνύεται με οιοδήποτε αποδεικτικό μέσο συμπεριλαμβανομένων και των μαρτύρων.

Άρθρο 2:302 Ανάκληση της αίτησης για ασφάλιση Αίτηση για ασφάλιση ανακαλείται από τον αιτούντα, εφόσον η ανάκληση περιέλθει στον ασφαλιστή προτού ο αιτών παραλάβει την αποδοχή της.

Άρθρο 2:303 Περίοδος περισυλλογής6 (1) Ο λήπτης της ασφάλισης δικαιούται να υπαναχωρήσει από την ασφαλιστική σύμβαση με γραπτή δήλωση προς τον ασφαλιστή εντός δύο εβδομάδων από την λήψη της αποδοχής της αίτησης ασφάλισης ή από την παράδοση στον λήπτη εγγράφου από αυτά που προβλέπονται στο άρθρο 2:501, όποιο έλαβε τελευταίο. (2) Ο λήπτης της ασφάλισης δε δικαιούται να υπαναχωρήσει από τη σύμβαση εάν (α) η διάρκεια της είναι μικρότερη από ένα μήνα. (β) η διάρκεια της παρατείνεται σύμφωνα με το άρθρο 2:602. (γ) πρόκειται για προσωρινή ασφάλιση, για ασφάλιση αστικής ευθύνης ή για ομαδική ασφάλιση.

Άρθρο 2:304 Καταχρηστικοί όροι7 (1) Όρος που δεν αποτέλεσε αντικείμενο ατομικής διαπραγμάτευσης δε δεσμεύει τον λήπτη της ασφάλισης, τον ασφαλισμένο ή τον δικαιούχο του ασφαλίσματος, εφόσον, κατά τρόπο αντίθετο προς τις αρχές της καλής πίστης και των συναλλακτικών ηθών, προκαλείται σε βάρος του σημαντική ανισορροπία στα συμβατικά του δικαιώματα και υποχρεώσεις λαμβάνοντας υπόψη τη φύση της ασφαλιστικής σύμβασης, τους όρους αυτής, και τις περιστάσεις κατά το χρόνο σύναψής της. (2) Η ασφαλιστική σύμβαση εξακολουθεί να δεσμεύει τους συμβαλλομένους, εάν μπορεί να συνεχίσει να ισχύει και χωρίς τον καταχρηστικό όρο. Στην αντίθετη περίπτωση, ο καταχρηστικός όρος

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Το άρθρο αυτό βασίζεται στην Οδηγία 2002/65/ΕΕ. Το άρθρο αυτό βασίζεται στην Οδηγία 93/13/ΕΟΚ.

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αντικαθίσταται από τον όρο που θα είχε συμφωνηθεί από το μέσο συνετό συμβαλλόμενο, εάν είχε επίγνωση της καταχρηστικότητας. (3) Οι ρυθμίσεις του άρθρου αυτού εφαρμόζονται σε όρους που περιορίζουν ή τροποποιούν την κάλυψη, αλλά δεν εφαρμόζονται: (α) σε θέματα που αφορούν στην αναλογία του ασφαλίστρου προς τις καλυπτόμενες αξίες, καθώς και, (β) στους όρους που περιέχουν την ουσιώδη περιγραφή της κάλυψης ή του ασφαλίστρου, με την προϋπόθεση ότι έχουν συνταχθεί με σαφήνεια και σε κατανοητή γλώσσα. (4) Ένας όρος κρίνεται ότι δεν αποτέλεσε αντικείμενο ατομικής διαπραγμάτευσης, όταν έχει συνταχθεί εκ των προτέρων και όταν ο λήπτης της ασφάλισης, εκ των πραγμάτων, δε μπόρεσε να επηρεάσει το περιεχόμενό του, ιδίως όταν περιέχεται σε μία προπαρασκευασμένη και τυποποιημένη σύμβαση. Το γεγονός ότι ορισμένα μέρη κάποιου όρου ή ένας μεμονωμένος όρος υπήρξε αντικείμενο ατομικής διαπραγμάτευση, δεν αποκλείει την εφαρμογή του παρόντος άρθρου στο υπόλοιπο της ασφαλιστικής σύμβασης, εάν από την εν γένει αξιολόγησή της προκύπτει ότι εντούτοις είναι μια προπαρασκευασμένη και τυποποιημένη σύμβαση. Το βάρος απόδειξης ότι ένας τυποποιημένος όρος υπήρξε αντικείμενο ατομικής διαπραγμάτευσης, το φέρει ο ασφαλιστής που το επικαλείται.

Τμήμα τέταρτο: Αναδρομική και προσωρινή κάλυψη Άρθρο 2:401 Αναδρομική κάλυψη (1) Εάν παρέχεται κάλυψη για περίοδο πριν τη σύναψη της ασφάλισης (αναδρομική κάλυψη) ενώ κατά τον χρόνο σύναψής της ο ασφαλιστής γνωρίζει ότι δεν έχει επέλθει ασφαλιστικός κίνδυνος, ο λήπτης της ασφάλισης οφείλει ασφάλιστρα μόνο για το χρονικό διάστημα μετά τη σύναψη της σύμβασης. (2) Εάν παρέχεται αναδρομική κάλυψη και ο λήπτης της ασφάλισης γνωρίζει κατά το χρόνο σύναψης της σύμβασης ότι έχει επέλθει ασφαλιστική περίπτωση, ο ασφαλιστής, με την επιφύλαξη του άρθρου 2:104, παρέχει κάλυψη, μόνο για το χρονικό διάστημα μετά τη σύναψη της σύμβασης.

Άρθρο 2:402 Προσωρινή κάλυψη (1) Σε περίπτωση σύναψης προσωρινής ασφαλιστικής σύμβασης, ο ασφαλιστής υποχρεούται να εκδώσει βεβαίωση κάλυψης η οποία να περιλαμβάνει τις πληροφορίες που προβλέπει το άρθρο 2:501 (α), (β), (δ), (ε), και (η), στο μέτρο που αφορούν τη συγκεκριμένη σύμβαση. (2) Οι υποχρεώσεις που προβλέπονται στα άρθρα 2:201-2:203, με την επιφύλαξη δε της παρ. 1 του άρθρου αυτού, και το άρθρο 2:501 δεν εφαρμόζονται στην προσωρινή κάλυψη.

Άρθρο 2:403 Διάρκεια προσωρινής κάλυψης (1) Σε περίπτωση που παρέχεται προσωρινή κάλυψη στον αιτούντα ασφάλιση, η προσωρινή αυτή κάλυψη λήγει τον χρόνο που συμφωνείται ότι θα αρχίζει η κάλυψη από την οριστική ασφαλιστική σύμβαση ή τον χρόνο που ο αιτών ασφάλιση έλαβε δήλωση του ασφαλιστή με την οποία απέρριψε οριστικά την αίτηση. (2) Αν παρέχεται προσωρινή κάλυψη από ασφαλιστή διαφορετικό από τον ασφαλιστή στον οποίο έχει υποβληθεί αίτηση οριστικής ασφάλισης, η προσωρινή κάλυψη μπορεί να έχει διάρκεια μικρότερη από εκείνη που προβλέπει το άρθρο 2:601 παρ. 1. Η προσωρινή κάλυψη μπορεί να καταγγελθεί από οποιονδήποτε συμβαλλόμενο με προμήνυση δύο εβδομάδων.

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Τμήμα πέμπτο: Ασφαλιστήριο Άρθρο 2:501 Περιεχόμενα Κατά τη σύναψη της ασφαλιστικής σύμβασης ο ασφαλιστής υποχρεούται να εκδώσει ασφαλιστήριο, καθώς και τους γενικούς ασφαλιστικούς όρους εφόσον δεν περιλαμβάνονται στο ασφαλιστήριο. Το ασφαλιστήριο περιλαμβάνει τις ακόλουθες πληροφορίες, στο μέτρο που αφορούν τη συγκεκριμένη σύμβαση: (α) το όνομα και την διεύθυνση των συμβαλλομένων, ιδίως την διεύθυνση της έδρας της και τη νομική μορφή της ασφαλιστικής επιχείρησης και, όπου είναι απαραίτητο, του υποκαταστήματος που συνάπτει την ασφαλιστική σύμβαση ή παρέχει την ασφαλιστική κάλυψη, (β) το όνομα και τη διεύθυνση του ασφαλισμένου και, στην περίπτωση της ασφάλισης ζωής, του δικαιούχου του ασφαλίσματος και του προσώπου του κινδύνου, (γ) το όνομα και τη διεύθυνση του διαμεσολαβούντος, (δ) το αντικείμενο της ασφάλισης και τους ασφαλιστικούς κινδύνους, (ε) το ασφαλιστικό ποσό και κάθε απαλλαγή, (στ) το ύψος του ασφαλίστρου και τον τρόπο υπολογισμού του, (ζ) τον χρόνο κατά τον οποίο το ασφάλιστρο καθίσταται ληξιπρόθεσμο, καθώς και τον τόπο και τη μέθοδο πληρωμής του, (η) τη διάρκεια της ασφαλιστικής σύμβασης, συμπεριλαμβανομένου του τρόπου καταγγελίας της σύμβασης και της περιόδου ευθύνης, (θ) το δικαίωμα ακυρώσεως της αιτήσεως ή υπαναχώρησης από τη σύμβαση σύμφωνα με τις προβλέψεις του άρθρου 2:303 στην περίπτωση ασφάλισης ζημιών και σύμφωνα με το άρθρο 17:203 στην περίπτωση ασφάλισης ζωής, (ι) ότι η σύμβαση διέπεται από τις ΑΕΔΑΣ, (ια) την ύπαρξη εξωδικαστικού μηχανισμού υποβολής αναφορών και επίλυσης διαφορών και των τρόπων πρόσβασης του αιτούντα ασφάλιση σε αυτόν, (ιβ) την ύπαρξη εγγυητικών κεφαλαίων ή άλλων συμφωνιών σχετικά με την αποζημίωση,

Άρθρο 2:502 Συνέπειες της έκδοσης του ασφαλιστηρίου (1) Εάν το περιεχόμενο του ασφαλιστηρίου παρεκκλίνει από την αίτηση για ασφάλιση ή από οποιαδήποτε προηγούμενη συμφωνία των συμβαλλομένων, οι παρεκκλίσεις, όπως έχουν επισημανθεί στο ασφαλιστήριο, θεωρούνται ότι έχουν εγκριθεί από τον λήπτη της ασφάλισης, εάν δεν εναντιωθεί εντός ενός μηνός από την παραλαβή του ασφαλιστηρίου. Ο ασφαλιστής υποχρεούται να ενημερώσει τον λήπτη της ασφάλισης με σημείωση στοιχειοθετημένη με εντονότερα στοιχεία από τα λοιπά για το δικαίωμα του λήπτη να εναντιωθεί στις παρεκκλίσεις που έχουν επισημανθεί στο ασφαλιστήριο. (2) Εάν ο ασφαλιστής δεν συμμορφώνεται με την υποχρέωση που προβλέπεται στην παρ. 1, η σύμβαση θεωρείται ότι έχει συναφθεί σύμφωνα με το περιεχόμενο της αίτησης του λήπτη της ασφάλισης ή κατά την προηγούμενη συμφωνία των συμβαλλομένων, ανάλογα με την περίπτωση.

Τμήμα έκτο: Διάρκεια της ασφαλιστικής σύμβασης Άρθρο 2:601 Διάρκεια της ασφαλιστικής σύμβασης (1) Η διάρκεια της ασφαλιστικής σύμβασης είναι ετήσια. Οι συμβαλλόμενοι μπορεί να συμφωνήσουν διαφορετικά, αν τούτο επιβάλλεται από τη φύση του κινδύνου.

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(2) Η παρ. 1 του παρόντος άρθρου δεν εφαρμόζεται στην ασφάλιση προσώπων.

Άρθρο 2:602 Παράταση της διάρκειας (1) Μετά την πάροδο του ενός έτους όπως προβλέπεται στο άρθρο 2:601, η σύμβαση παρατείνεται, εκτός αν: (α) ο ασφαλιστής γνωστοποίησε γραπτώς ότι δεν συμφωνεί με την παράταση τουλάχιστον ένα μήνα πριν τη λήξη της διάρκειας της σύμβασης δηλώνοντας και τους λόγους της απόφασής του. (β) ο λήπτης της ασφάλισης γνωστοποίησε γραπτώς ότι δεν συμφωνεί με την παράταση το αργότερο μέχρι τη λήξη της σύμβασης ή, ανεξάρτητα από τη λήξη της,, εντός ενός μηνός από την παραλαβή του τιμολογίου των ασφαλίστρων. Η προθεσμία του ενός μηνός δεν αρχίζει εφόσον αν ο ασφαλιστής δεν έχει δηλώσει τούτο με σαφήνεια και με εντονότερα στοιχεία στο τιμολόγιο. (2) Για το σκοπό της παρ. 1(β) η γνωστοποίηση θεωρείται ότι έχει πραγματοποιηθεί από το χρόνο της αποστολής της.

Άρθρο 2:603 Τροποποίηση όρων της ασφαλιστικής σύμβασης (1) Αν σε μία ασφαλιστική σύμβαση που υπόκειται σε παράταση σύμφωνα με τις ρυθμίσεις του άρθρου 2:602, περιλαμβάνεται όρος που επιτρέπει στον ασφαλιστή να τροποποιήσει το ασφάλιστρο ή, οποιοδήποτε άλλο όρο της σύμβασης, ο όρος είναι άκυρος, εκτός αν ο όρος προβλέπει ότι: (α) τα αποτελέσματα οποιασδήποτε τροποποίησης δεν επέρχονται πριν την επόμενη παράταση. (β) ο ασφαλιστής πρέπει να κοινοποιήσει γραπτά την τροποποίηση στον λήπτη της ασφάλισης το αργότερο ένα μήνα πριν τη λήξη της τρέχουσας ασφαλιστικής περιόδου, και (γ) η ως άνω γραπτή κοινοποίηση θα πρέπει και να ενημερώνει τον λήπτη της ασφάλισης για το δικαίωμα του να καταγγείλει τη σύμβαση, καθώς και για τις συνέπειες από τη μη άσκηση του δικαιώματός του. (2) Η παρ. 1 δεν εμποδίζει την εφαρμογή άλλων ρυθμίσεων που προβλέπονται για την εγκυρότητα όρου που τροποποιεί τη σύμβαση κατά τα ως άνω.

Άρθρο 2:604 Καταγγελία μετά την επέλευση της ασφαλιστικής περίπτωσης (1) Όρος που προβλέπει δικαίωμα καταγγελίας της σύμβασης μετά την επέλευση της ασφαλιστικής περίπτωσης είναι άκυρος, εκτός εάν: (α) παρέχει το δικαίωμα καταγγελίας και στους δύο συμβαλλομένους. (β) δεν πρόκειται για ασφάλιση προσώπων. (2) Η διαμόρφωση του όρου για την καταγγελία της σύμβασης, καθώς και η άσκηση του σχετικού δικαιώματος πρέπει να είναι εύλογες. (3) Κάθε δικαίωμα καταγγελίας αποσβέννυται εάν ο συμβαλλόμενος που το ασκεί δεν κοινοποιήσει γραπτώς στον αντισυμβαλλόμενό του την καταγγελία εντός δύο μηνών από τότε που έλαβε γνώση της επέλευσης της ασφαλιστικής περίπτωσης. (4) Η ασφαλιστική κάλυψη παύει δύο εβδομάδες μετά τη γραπτή κοινοποίηση που προβλέπεται στην παρ. 3 του παρόντος άρθρου.

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Τμήμα έβδομο: Υποχρεώσειςενημέρωσης του ασφαλιστή μετά τη σύναψη της σύμβασης Άρθρο 2:701 Υποχρέωση γενικής πληροφόρησης Κατά τη διάρκεια της ασφαλιστικής σύμβασης ο ασφαλιστής παρέχει στον λήπτη της ασφάλισης εγγράφως, χωρίς υπαίτια καθυστέρηση, πληροφορίες για κάθε αλλαγή αναφορικά με το όνομα και τη διεύθυνσή του, τη νομική μορφή του, τη διεύθυνση της έδρας του και του πρακτορείου ή υποκαταστήματος που προέβηκε στη σύναψη της σύμβασης.

Άρθρο 2:702 Πρόσθετες πληροφορίες που δίδονται μετά από αίτηση (1) Μετά από αίτηση του λήπτη της ασφάλισης, ο ασφαλιστής του παρέχει, χωρίς υπαίτια καθυστέρηση, πληροφορίες αναφορικά με: (α) όλα τα θέματα που αφορούν την εκτέλεση της σύμβασης, στο μέτρο που είναι εύλογο ο ασφαλιστής να αναμένει την αναζήτηση τους από τον λήπτη. (β) νέους τυποποιημένους έντυπους όρους που εν τω μεταξύ προσφέρει στην αγορά ο ασφαλιστής για ασφαλιστικές συμβάσεις ίδιου τύπου με αυτή που συνήψε με το λήπτη της ασφάλισης. (2) Η ως άνω αίτηση του λήπτη της ασφάλισης, καθώς και η απάντηση του ασφαλιστή γίνονται γραπτά.

Κεφάλαιο τρίτο: Διαμεσολαβούντες στην ασφάλιση Άρθρο 3:101 Εξουσίες ασφαλιστικών πρακτόρων (1) Ο ασφαλιστικός πράκτορας είναι εξουσιοδοτημένος να εκτελεί για λογαριασμό του ασφαλιστή κάθε ενέργεια που, σύμφωνα με την τρέχουσα πρακτική της ασφαλιστικής βιομηχανίας, εντάσσεται στο εύρος των εξουσιών του. Κάθε περιορισμός των εξουσιών του πράκτορα πρέπει να δηλώνεται με σαφήνεια στον λήπτη της ασφάλισης σε ξεχωριστό έντυπο. Οι εξουσίες του ασφαλιστικού πράκτορα πρέπει, ωστόσο, να καλύπτουν το πραγματικό εύρος των εξουσιών του. (2) Σε κάθε περίπτωση στις εξουσίες του ασφαλιστικού πράκτορα περιλαμβάνονται: (α) η χορήγηση πληροφοριών και συμβουλών στον λήπτη της ασφάλισης. (β) η παραλαβή δηλώσεων από τον λήπτη της ασφάλισης. (3) Οι σχετικές πληροφορίες, που ο ασφαλιστικός πράκτορας γνωρίζει ή όφειλε να γνωρίζει κατά την εκτέλεση των εργασιών του, τεκμαίρονται ότι αποτελούν γνώση και του ασφαλιστή.

Άρθρο 3:102 Διαμεσολαβούντες που εμφανίζονται ως ανεξάρτητοι Εάν ο ασφαλιστικός πράκτορας εμφανίζεται ως ανεξάρτητος διαμεσολαβών και ενεργεί κατά παράβαση των καθηκόντων που του επιβάλλονται από το νόμο με την ιδιότητα του ανεξάρτητου, ο ασφαλιστής ευθύνεται για την παράβαση αυτή.

Κεφάλαιο τέταρτο: Ασφαλιστικός κίνδυνος Τμήμα πρώτο: Προληπτικά μέτρα Άρθρο 4:101 Προληπτικά μέτρα: Έννοια Προληπτικό μέτρο είναι ένας όρος στην ασφαλιστική σύμβαση, ανεξάρτητα αν έχει προβλεφθεί η τήρησή του ως προϋπόθεση της ευθύνης του ασφαλιστή, κατά τον οποίο όρο ο λήπτης της ασφάλισης

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ή ο ασφαλισμένος πρέπει να εκτελέσουν ή να παραλείψουν ορισμένες ενέργειες, πριν την επέλευση της ασφαλιστικής περίπτωσης.

Άρθρο 4:102 Δικαίωμα του ασφαλιστή να καταγγείλει τη σύμβαση (1) Όρος που προβλέπει πως σε περίπτωση μη συμμόρφωσης σε προληπτικά μέτρα ο ασφαλιστής δικαιούται να καταγγείλει τη σύμβαση, δεν επιφέρει αποτελέσματα, εκτός αν η μη συμμόρφωση εκ μέρους του λήπτη της ασφάλισης ή του ασφαλισμένου έγινε με πρόθεση να προκληθεί ζημία, ή από αδιαφορία και με επίγνωση ότι μπορεί να προκληθεί ζημία. (2) Το δικαίωμα καταγγελίας ασκείται με γραπτή κοινοποίηση στον λήπτη της ασφάλισης εντός ενός μηνός από τότε που ο ασφαλιστής έλαβε γνώση της μη συμμόρφωσης προς ένα προληπτικό μέτρο ή από τότε που αυτή έγινε προφανής. Η κάλυψη λήγει κατά το χρόνο της καταγγελίας.

Άρθρο 4:103 Απαλλαγή του ασφαλιστή (1) Όρος σύμφωνα με τον οποίον η μη συμμόρφωση με κάποιο προληπτικό μέτρο απαλλάσσει εν όλω ή εν μέρει τον ασφαλιστή, επιφέρει αποτελέσματα, μόνο εφόσον η μη συμμόρφωση έγινε από πρόθεση του λήπτη της ασφάλισης ή του ασφαλισμένου, ή από αδιαφορία και με επίγνωση ότι μπορεί να προκληθεί ζημία. (2) Με την επιφύλαξη ύπαρξης όρου που με σαφήνεια προβλέπει ότι, σε περίπτωση μη συμμόρφωσης σε κάποιο προληπτικό μέτρο, το ασφάλισμα θα μειώνεται ανάλογα με το βαθμό υπαιτιότητας, ο λήπτης της ασφάλισης ή ο ασφαλισμένος δικαιούται το ασφάλισμα για κάθε ζημία που οφείλεται σε μη συμμόρφωση από αμέλεια.

Τμήμα δεύτερο: Επίταση του κινδύνου Άρθρο 4:201 Ρήτρες σχετικές με την επίταση του κινδύνου Εάν η ασφαλιστική σύμβαση περιλαμβάνει όρο που ρυθμίζει θέματα σχετικά με την επίταση του κινδύνου, ο όρος δεν επιφέρει αποτελέσματα, εκτός αν η επίταση του συγκεκριμένου κινδύνου είναι σημαντική και έχει καθοριστεί στην ασφαλιστική σύμβαση.

Άρθρο 4:202 Υποχρέωση δήλωσης της επίτασης του κινδύνου (1) Εάν ένας όρος προβλέπει υποχρέωση δήλωσης της επίτασης του ασφαλιστικού κινδύνου, η υποχρέωση αυτή εκπληρώνεται από τον λήπτη της ασφάλισης, τον ασφαλισμένο ή τον δικαιούχο της ασφάλισης, ανάλογα με το ποιος γνώριζε ή όφειλε να γνωρίζει την ύπαρξη της ασφαλιστικής κάλυψης και της επίτασης του κινδύνου. Η δήλωση μπορεί να γίνει και από άλλο πρόσωπο. (2) Εάν ο όρος προβλέπει υποχρέωση δήλωσης της επίτασης του κινδύνου εντός ορισμένης προθεσμίας, η προθεσμία αυτή πρέπει να είναι εύλογη. Τα αποτελέσματα της δήλωσης επέρχονται από τον χρόνο της αποστολή της. (3) Σε περίπτωση παράβασης της υποχρέωσης δήλωσης της επίτασης του κινδύνου, ο ασφαλιστής δεν δικαιούται εξαιτίας της να αρνηθεί την πληρωμή μεταγενέστερων ζημιών που προέρχονται από κίνδυνο που καλύπτεται εκτός κι αν η ζημία είναι συνέπεια της παράλειψης δήλωσης της επίτασης του κινδύνου.

Άρθρο 4:203 Καταγγελία και απαλλαγή (1) Εάν η σύμβαση προβλέπει ότι, σε περίπτωση επίτασης του κινδύνου, ο ασφαλιστής δικαιούται να την καταγγείλει, το δικαίωμα αυτό ασκείται με γραπτή δήλωση προς τον λήπτη της ασφάλισης

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εντός ενός μηνός από τότε που η επίταση του κινδύνου περιήλθε σε γνώση του ασφαλιστή ή έγινε προφανής. (2) Η κάλυψη λήγει ένα μήνα μετά την καταγγελία ή, κατά τον χρόνο της καταγγελίας, αν ο ασφαλισμένος παραβίασε με δόλο την υποχρέωση που προβλέπεται στο άρθρο 4:202. (3) Εάν η επέλευση της ασφαλιστικής περίπτωσης οφείλεται στην επίταση του κινδύνου, την οποία ο λήπτης της ασφάλισης γνώριζε ή όφειλε να γνωρίζει, πριν τη λήξη της κάλυψης, ο ασφαλιστής δεν υποχρεούται να καταβάλει το ασφάλισμα εφόσον δεν θα είχε ασφαλίσει τον κίνδυνο όπως είχε επιταθεί. Στην περίπτωση ωστόσο που ο ασφαλιστής θα είχε ασφαλίσει τον κίνδυνο όπως έχει επιταθεί με υψηλότερο ασφάλιστρο ή με διαφορετικούς όρους, θα καταβάλλεται ασφάλισμα που θα καθορίζεται σε αναλογία με το ασφάλιστρο που εισπράχθηκε ή σύμφωνα με τους όρους που θα είχαν συμφωνηθεί.

Τμήμα τρίτο: Μείωση του κινδύνου Άρθρο 4:301 Συνέπειες της μείωσης του κινδύνου (1) Σε περίπτωση σημαντικής μείωσης του κινδύνου, ο ασφαλισμένος δικαιούται να αιτηθεί την ανάλογη μείωση του ασφαλίστρου για το υπολειπόμενο διάστημα της σύμβασης. (2) Εάν οι συμβαλλόμενοι δε συμφωνήσουν σε ανάλογη μείωση εντός ενός μηνός από την υποβολή της αίτησης για μείωση του ασφαλίστρου, ο λήπτης της ασφάλισης μπορεί να καταγγείλει τη σύμβαση με γραπτή δήλωσή του που κοινοποιείται στον ασφαλιστή εντός δύο μηνών από την υποβολή της.

Κεφάλαιο πέμπτο: Ασφάλιστρο Άρθρο 5:101 Πρώτη δόση ασφαλίστρου ή εφάπαξ ασφάλιστρο Όταν προβλέπεται ως προϋπόθεση για τη σύναψη της ασφαλιστικής σύμβασης ή της έναρξης της κάλυψης η καταβολή του εφάπαξ ασφαλίστρου ή της πρώτης δόσης αυτού, η προϋπόθεση αυτή δεν ισχύει εκτός αν: (α) γνωστοποιείται η προϋπόθεση αυτή στον αιτούντα με έγγραφο που είναι συντεταγμένο με σαφήνεια και στο οποίο περιέχεται προειδοποίηση πως η κάλυψη δεν παρέχεται μέχρι να καταβληθεί το ασφάλιστρο, (β) έχουν παρέλθει δύο εβδομάδες από την παραλαβή του τιμολογίου του ασφαλίστρου με τις προϋποθέσεις της ως άνω παρ. (α) χωρίς να έχει πραγματοποιηθεί η καταβολή.

Άρθρο 5:102 Επόμενες δόσεις ασφαλίστρου (1) Όρος που προβλέπει ότι ο ασφαλιστής απαλλάσσεται από την υποχρέωση να καλύψει τον κίνδυνο σε περίπτωση μη καταβολής κάποιας από τις επόμενες δόσεις ασφαλίστρου δεν ισχύει εκτός εάν: (α) ο λήπτης της ασφάλισης έχει παραλάβει τιμολόγιο, στο οποίο δηλώνεται το ακριβές ποσό του ασφαλίστρου που οφείλεται, καθώς και η ημερομηνία πληρωμής του, (β) όταν καταστεί ληξιπρόθεσμη η καταβολή του ασφαλίστρου, ο ασφαλιστής στέλνει ειδοποίηση στον λήπτη της ασφάλισης σχετικά με το ακριβές ποσό του οφειλόμενου ασφαλίστρου και του χορηγεί μία επιπρόσθετη προθεσμία πληρωμής τουλάχιστον δύο εβδομάδων, ενώ συγχρόνως τον προειδοποιεί ότι θα αίρεται η κάλυψη αν δε ακολουθήσει η καταβολή, και (γ) η επιπρόσθετη προθεσμία της ως άνω παρ. (β) παρέλθει άπρακτη.

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(2) Ο ασφαλιστής απαλλάσσεται της ευθύνης του όταν παρέλθει η επιπρόσθετη προθεσμία της ως άνω παρ. 1 (β). Η κάλυψη θα αρχίσει εκ νέου για το μέλλον μόλις ο λήπτης της ασφάλισης καταβάλει το οφειλόμενο ποσό εκτός αν η σύμβαση έληξε σύμφωνα με τις προβλέψεις του άρθρου 5:103.

Άρθρο 5:103 Λύση της σύμβασης (1) Μετά την άπρακτη παρέλευση της προθεσμίας που προβλέπεται στο ως άνω άρθρο 5:101(β) ή στο άρθρο 5:102 παρ. 1(β), ο ασφαλιστής δικαιούται να καταγγείλει εγγράφως τη σύμβαση, εφόσον το δικαίωμα καταγγελίας δηλώνεται με το τιμολόγιο που προβλέπεται στο άρθρο 5:101(β) ή με το έγγραφο προειδοποίησης που προβλέπεται στο άρθρο 5:102 παρ. 1 (β) αντίστοιχα. (2) Η σύμβαση θεωρείται ότι έχει λυθεί, ανάλογα με την περίπτωση, εάν ο ασφαλιστής δε διεκδικήσει δικαστικά το οφειλόμενο ασφάλιστρο: (α) της πρώτης δόσης εντός δύο μηνών από τη λήξη της προθεσμίας που προβλέπεται στο άρθρο 5:101 (β), ή (β) της επόμενης δόσης εντός δύο μηνών από τη λήξη της προθεσμίας που προβλέπεται στο άρθρο 5:102 παρ. 1(β).

Άρθρο 5:104 Διαιρετότητα ασφαλίστρου Εάν η ασφαλιστική σύμβαση λυθεί πριν τη λήξη της ασφαλιστικής περιόδου, ο ασφαλιστής δικαιούται το ασφάλιστρο που αναλογεί μέχρι τη λύση.

Άρθρο 5:105 Δικαίωμα καταβολής ασφαλίστρου Ο ασφαλιστής δεν μπορεί να αρνηθεί την πληρωμή από τρίτον, εάν (α) ο τρίτος ενεργεί με τη συναίνεση του λήπτη της ασφάλισης, ή (β) ο τρίτος έχει έννομο συμφέρον στη διατήρηση της κάλυψης και ο λήπτης της ασφάλισης παρέλειψε να πληρώσει το ασφάλιστρο ή είναι προφανές ότι δε θα το πληρώσει, όταν καταστεί ληξιπρόθεσμο.

Κεφάλαιο έκτο: Ασφαλιστική περίπτωση Άρθρο 6:101 Ανακοίνωση επέλευσης της ασφαλιστικής περίπτωσης (1) Η επέλευση της ασφαλιστικής περίπτωσης ανακοινώνεται στον ασφαλιστή από τον λήπτη της ασφάλισης, τον ασφαλισμένο ή τον δικαιούχο του ασφαλίσματος, ανάλογα με το ποιος γνώριζε ή όφειλε να γνωρίζει την ύπαρξη της ασφαλιστικής κάλυψης και την επέλευση της ασφαλιστικής περίπτωσης. Η ανακοίνωση της επέλευσης της ασφαλιστικής περίπτωσης μπορεί να γίνει και από άλλο πρόσωπο. (2) Η ανακοίνωση της ως άνω παρ. 1 γίνεται χωρίς υπαίτια καθυστέρηση. Τα αποτελέσματά της επέρχονται από τον χρόνο της αποστολής της. Εάν η σύμβαση προβλέπει ότι η ανακοίνωση πρέπει να πραγματοποιηθεί εντός ορισμένης προθεσμίας, η προθεσμία πρέπει να είναι εύλογη και, πάντως, να μην είναι μικρότερη από πέντε ημέρες. (3) Το ασφάλισμα που οφείλεται μειώνεται στο μέτρο που ο ασφαλιστής αποδεικνύει ότι έχει ζημιωθεί από την υπαίτια καθυστέρηση.

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Άρθρο 6:102 Υποχρέωση συνεργασίας με τον ασφαλιστή (1) Ο λήπτης της ασφάλισης, ο ασφαλισμένος ή ο δικαιούχος του ασφαλίσματος, ανάλογα με την περίπτωση, πρέπει να συνεργάζεται με τον ασφαλιστή κατά την διερεύνηση των περιστατικών της ζημίας και να απαντά σε εύλογα ερωτήματα του ασφαλιστή κυρίως αναφορικά με: – πληροφορίες για τα αίτια και τις συνέπειες της επέλευσης της ασφαλιστικής περίπτωσης. – έγγραφα ή άλλα αποδεικτικά στοιχεία σχετικά με την ζημία. – την πρόσβαση στις εγκαταστάσεις όπου επήλθε η ζημία. (2) Στην περίπτωση παράβασης των υποχρεώσεων που προβλέπονται στην ως άνω παρ. 1 και με την επιφύλαξη της παρ. 3, το ασφάλισμα που οφείλεται μειώνεται στο μέτρο που ο ασφαλιστής αποδεικνύει ότι έχει ζημιωθεί από την παράβαση αυτή. (3) Αν η παράβαση των υποχρεώσεων που προβλέπονται στην ως άνω παρ. 1 έγινε με πρόθεση να προκληθεί ζημία, ή αδιαφορία και με επίγνωση ότι μπορεί προκληθεί ζημία, ο ασφαλιστής απαλλάσσεται της ευθύνης του.

Άρθρο 6:103 Αναγνώριση των απαιτήσεων για ασφάλισμα (1) Ο ασφαλιστής οφείλει να προβεί σε όλες τις εύλογες ενέργειες για τον άμεσο διακανονισμό και την πληρωμή της απαίτησης για ασφάλισμα. (2) Η απαίτηση για ασφάλισμα θεωρείται ότι έχει γίνει αποδεκτή, εκτός αν ο ασφαλιστής την απορρίψει ή κοινοποιήσει γραπτά και αιτιολογημένα ότι θα καθυστερήσει την αποδοχή της, εντός ενός μηνός από την παραλαβή των σχετικών με τη ζημία εγγράφων και άλλων πληροφοριών.

Άρθρο 6:104 Χρόνος εκπλήρωσης (1) Αν ο ασφαλιστής αποδεχτεί απαίτηση για ασφαλιστική παροχή, υποχρεούται, χωρίς υπαίτια καθυστέρηση, να καταβάλει το ασφάλισμα ή, ανάλογα με την περίπτωση, να παράσχει τις υπηρεσίες που έχει υποσχεθεί. (2) Όταν το ύψος της απαίτησης δεν μπορεί ακόμα να προσδιορισθεί στο σύνολό της αλλά μόνο σε ένα μέρος αυτής, ο ασφαλιστής υποχρεούται να ικανοποιήσει κατά το μέρος αυτό, χωρίς υπαίτια καθυστέρηση, αυτόν που προβάλλει την απαίτηση. (3) Το ασφάλισμα σύμφωνα με τις ως άνω παρ. 1 ή 2 καταβάλλεται εντός μίας εβδομάδας από την αποδοχή της απαίτησης και τον προσδιορισμό του συνόλου ή μέρους αυτής, ανάλογα με την περίπτωση.

Άρθρο 6:105 Καθυστέρηση πληρωμής8 (1) Αν το ασφάλισμα δεν καταβληθεί σύμφωνα με το άρθρο 6:104, το πρόσωπο που προβάλλει την απαίτηση δικαιούται τόκο υπερημερίας που υπολογίζεται από το χρόνο που η απαίτηση κατέστη ληξιπρόθεσμη μέχρι το χρόνο εξόφλησής της και με το επιτόκιο που εφαρμόζει η Ευρωπαϊκή Κεντρική Τράπεζα στην πιο πρόσφατη κύρια πράξη αναχρηματοδότησής της η οποία πραγματοποιείται πριν από την πρώτη ημερολογιακή ημέρα του οικείου εξαμήνου, πλέον οκτώ εκατοστιαίων μονάδων. (2) Το πρόσωπο που προβάλει την απαίτηση δικαιούται την αποκατάσταση κάθε πρόσθετης ζημίας που οφείλεται στην καθυστέρηση καταβολής του ασφαλίσματος.

8

Αυτό το άρθρο βασίζεται στο άρθρο 3 παράγραφος 1(δ) της Οδηγίας 2000/35/ΕΕ.

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Κεφάλαιο έβδομο: Παραγραφή Άρθρο 7:101 Παραγραφή της αξίωσης καταβολής του ασφαλίστρου Η αξίωση προς πληρωμή ασφαλίστρου παραγράφεται σε ένα χρόνο από τότε που έγινε ληξιπρόθεσμη.

Άρθρο 7:102 Παραγραφή της αξίωσης καταβολής του ασφαλίσματος (1) Η αξίωση για ασφαλιστικές παροχές υπόκειται σε γενική παραγραφή τριών ετών που αρχίζει τον χρόνο που ο ασφαλιστής έλαβε ή θεωρείται ότι έλαβε την οριστική του απόφαση σχετικά με την αποδοχή της απαίτησης σύμφωνα με τις προβλέψεις του άρθρου 6:103. Σε κάθε περίπτωση η αξίωση παραγράφεται το αργότερο σε δέκα χρόνια από τον χρόνο της επέλευσης της ασφαλιστικής περίπτωσης και σε τριάντα χρόνια αν πρόκειται για ασφαλίσεις ζωής. (2) Η αξίωση προς καταβολή του ποσού εξαγοράς ασφαλιστηρίου ζωής παραγράφεται σε τρία χρόνια από τότε που ο λήπτης της ασφάλισης παρέλαβε το τελευταίο τιμολόγιο ασφαλίστρων από τον ασφαλιστή. Σε κάθε περίπτωση η αξίωση παραγράφεται το αργότερο σε τριάντα χρόνια από την λύση της σύμβασης ασφάλισης ζωής.

Άρθρο 7:103 Λοιπά θέματα παραγραφής Με την επιφύλαξη των διατάξεων των άρθρων 7:101 και 7:102 ΑΕΔΑΣ, τα άρθρα 14:101-14:503 εδασ (PECL)”9 εφαρμόζονται στις αξιώσεις που πηγάζουν από την ασφαλιστική σύμβαση. Η ασφαλιστική σύμβαση μπορεί να παρεκκλίνει από τις διατάξεις αυτές σύμφωνα με το άρθρο 1:103 παρ. 2 των Αεδασ.

Μέρος δεύτερο: Διατάξεις κοινές για όλες τις ασφαλίσεις ζημιών Κεφάλαιο όγδοο: Ασφαλιστικό ποσό και ασφαλιστική αξία Άρθρο 8:101 Ανώτατο ποσό ασφαλίσματος (1) Ο ασφαλιστής δεν υποχρεούται να καταβάλει περισσότερο από το ποσό που απαιτείται για την αποκατάσταση των ζημιών που πράγματι υπέστη ο ασφαλισμένος. (2) Όρος που προβλέπει τη συμβατική αποτίμηση του αντικειμένου της ασφάλισης ισχύει ακόμα κι αν αυτή η αξία της αποτίμησης υπερβαίνει την τρέχουσα αξία του αντικειμένου της ασφάλισης, με την προϋπόθεση ότι δεν συντρέχει περίπτωση απάτης ή δόλιας παραπλάνησης από μέρους του λήπτη της ασφάλισης ή του ασφαλισμένου κατά το χρόνο συμφωνήθηκε η αποτίμηση.

Άρθρο 8:102 Υπασφάλιση (1) Ο ασφαλισμένος ευθύνεται για κάθε ασφαλιστική ζημία μέχρι το ασφαλιστικό ποσό ακόμα και αν η ασφαλιστική αξία υπολείπεται της αξίας της ασφαλισμένης περιουσίας κατά το χρόνο επέλευσης της ασφαλιστικής περίπτωσης. (2) Όταν ο ασφαλιστής παρέχει κάλυψη σύμφωνα με την παρ. 1, δικαιούται να συμφωνήσει εναλλακτικά ότι το ασφάλισμα θα καταβάλλεται κατά το λόγο που έχει η ασφαλιστική αξία προς την τρέχουσα αξία της ασφαλισμένης περιουσίας το χρόνο επέλευσης της ζημίας. Τα έξοδα στα οποία 9

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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υποβλήθηκε ο ασφαλισμένος για το περιορισμό της ζημίας, σύμφωνα με το άρθρο 9:102, αποκαθίστανται με την ίδια αναλογία.

Άρθρο 8:103 Προσαρμογή όρων σε περίπτωση υπερασφάλισης (1) Εάν η ασφαλιστική αξία υπερβαίνει το ανώτατο πιθανό όριο ζημίας, κάθε συμβαλλόμενος δικαιούται να ζητήσει τη μείωση της ασφαλιστικής αξίας και την αντίστοιχη μείωση του ασφαλίστρου για την υπολειπόμενη ασφαλιστική περίοδο. (2) Εάν οι συμβαλλόμενοι δε συμφωνήσουν στην ως άνω μείωση εντός ενός μηνός από την υποβολή της σχετικής αίτησης, κάθε συμβαλλόμενος δικαιούται να καταγγείλει τη σύμβαση.

Άρθρο 8:104 Ασφάλιση με περισσότερους ασφαλιστές (1) Εάν η ασφαλισμένη περιουσία έχει ασφαλιστεί με ξεχωριστές συμβάσεις σε περισσότερους ασφαλιστές, ο ασφαλισμένος δικαιούται να απαιτήσει ασφάλισμα από έναν ή περισσοτέρους ασφαλιστές στην έκταση που απαιτείται για την αποκατάσταση της τρέχουσας ασφαλιστικής ζημίας που υπέστη. (2) Ο ασφαλιστής εναντίον του οποίου στρέφεται η απαίτηση οφείλει να καταβάλει ασφάλισμα μέχρι το ασφαλιστικό ποσό της σύμβασής του και τα τυχόν έξοδα για το περιορισμό της ζημίας, με την επιφύλαξη του δικαιώματος αναγωγής κατά των άλλων ασφαλιστών. (3) Στις σχέσεις μεταξύ των ασφαλιστών, τα δικαιώματα και οι υποχρεώσεις που προβλέπονται στην παρ. 2 αντιστοιχούν στα ποσά για τα οποία κάθε ασφαλιστής ευθύνεται ατομικά απέναντι στον ασφαλισμένο.

Κεφάλαιο ένατο: Καταβολή του ασφαλίσματος Άρθρο 9:101 Πρόκληση της ασφαλιστικής περίπτωσης (1) Ο λήπτης της ασφάλισης ή ο ασφαλισμένος, ανάλογα με την περίπτωση, δεν δικαιούται ασφαλίσματος εφόσον η ασφαλιστική περίπτωση οφείλεται σε δική του πράξη ή παράλειψη που έγινε με πρόθεση να προκληθεί η ζημία, ή από αδιαφορία και με επίγνωση ότι μπορεί να προκληθεί η ζημία. (2) Με την επιφύλαξη ύπαρξης όρου στο ασφαλιστήριο που προβλέπει με σαφήνεια τη μείωση του ασφαλίσματος ανάλογα με το βαθμό υπαιτιότητας, ο λήπτης της ασφάλισης ή ο ασφαλισμένος, ανάλογα με την περίπτωση, δικαιούται ασφαλίσματος για κάθε ζημία που προκλήθηκε από δική του αμελή πράξη ή παράλειψη. (3) Για τους σκοπούς των ως άνω παρ. 1 και 2 η παράλειψη αποτροπής ή περιορισμού της ζημίας αποτελεί πρόκληση της ασφαλιστικής περίπτωσης.

Άρθρο 9:102 Έξοδα μείωσης της ζημίας (1) Τον ασφαλιστή βαρύνουν τα έξοδα που κατέβαλε ή η ζημία που υπέστη ο λήπτης της ασφάλισης ή ο ασφαλισμένος για τη λήψη μέτρων περιορισμού της ασφαλιστικής ζημίας, εφόσον ο λήπτης ή ο ασφαλισμένος δικαιολογημένα έκρινε ότι τα μέτρα ήταν εύλογα ενόψη των συνθηκών, έστω κι αν δεν απέτυχαν να περιορίσουν τη ζημία. (2) Ο ασφαλιστής οφείλει να αποζημιώσει τον λήπτη της ασφάλισης ή τον ασφαλισμένο, ανάλογα με την περίπτωση, για κάθε μέτρο που έλαβε σύμφωνα με την ως άνω παρ. 1, ακόμα και αν η προσθήκη της αποζημίωσης στο ασφάλισμα συνεπάγεται την υπέρβαση του ασφαλιστικού ποσού.

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Κεφάλαιο δέκατο: Δικαίωμα υποκατάστασης Άρθρο 10:101 Υποκατάσταση ασφαλιστή (1) Με την επιφύλαξη της παρ. 3 του παρόντος άρθρου, ο ασφαλιστής υποκαθίσταται στα δικαιώματα του ασφαλισμένου κατά τρίτου που ευθύνεται για τη ζημία στην έκταση του ασφαλίσματος που κατέβαλε. (2) Ο ασφαλισμένος εκπίπτει του δικαιώματος να εισπράξει ασφάλισμα στο μέτρο που παραιτήθηκε του δικαιώματος αποζημίωσης κατά του τρίτου υπεύθυνου της ζημίας με τρόπο που βλάπτει το δικαίωμα του ασφαλιστή ν’ ασκήσει το δικαίωμά του. (3) Ο ασφαλιστής δε μπορεί να ασκήσει το δικαίωμα υποκατάστασης κατά προσώπου που συνοικεί με τον λήπτη της ασφάλισης ή τον ασφαλισμένο, κατά προσώπου που βρίσκεται σε αντίστοιχη κοινωνική σχέση, ή κατά υπαλλήλου του λήπτη ή του ασφαλισμένου, εκτός αν αποδείξει ότι η ασφαλιστική περίπτωση προκλήθηκε από τα πρόσωπα αυτά με πρόθεση, ή από αδιαφορία και με επίγνωση ότι μπορεί να προκληθεί η ζημία. (4) Ο ασφαλιστής δε μπορεί να ασκήσει το δικαίωμα υποκατάστασης σε βάρος του ασφαλισμένου.

Κεφάλαιο ενδέκατο: Ασφαλισμένος που δεν είναι λήπτης της ασφάλισης Άρθρο 11:101 Δικαιώματα του ασφαλισμένου (1) Στην περίπτωση που η ασφάλιση συνάφθηκε για λογαριασμό διαφορετικού προσώπου από αυτό του λήπτη της ασφάλισης, το πρόσωπο αυτό είναι ο δικαιούχος του ασφαλίσματος. (2) Ο λήπτης της ασφάλισης μπορεί να ανακαλέσει την ασφάλιση για λογαριασμό, εκτός αν (α) προβλέπεται κάτι διαφορετικό στο ασφαλιστήριο, ή (β) η ασφαλιστική περίπτωση έχει ήδη επέλθει. (3) Τα αποτελέσματα της ανάκλησης επέρχονται με τη γραπτή κοινοποίηση της στον ασφαλισμένο.

Άρθρο 11:102 Γνώσεις του ασφαλισμένου Οι γνώσεις του ασφαλισμένου στην κατά το άρθρο 11:101 ασφάλιση για λογαριασμό δε θεωρούνται γνώσεις του λήπτη της ασφάλισης, εκτός αν ο ασφαλισμένος γνωρίζει ότι έχει ασφαλιστεί, οπότε ο λήπτης της ασφάλισης υποχρεούται να κοινοποιήσει στον ασφαλιστή τις γνώσεις του ασφαλισμένου.

Άρθρο 11:103 Παράβαση υποχρεώσεων από έναν ασφαλισμένο Αν από την ίδια ασφαλιστική σύμβαση απορρέουν δικαιώματα περισσοτέρων ασφαλισμένων, η παράβαση των υποχρεώσεων από έναν από αυτούς δεν θίγει τα δικαιώματα των υπολοίπων, εκτός αν ο ασφαλιστικός κίνδυνος είναι κοινός.

Κεφάλαιο δωδέκατο: Ασφαλιστικός κίνδυνος Άρθρο 12:101 Έλλειψη του κινδύνου (1) Εάν ασφαλιστικός κίνδυνος δεν υφίσταται τόσο κατά το χρόνο σύναψης της σύμβασης όσο και κατά τη διάρκεια της ασφαλιστικής περιόδου, δεν οφείλεται ασφάλιστρο. Ο ασφαλιστής όμως δικαιούται ένα εύλογο ποσό για τα έξοδα στα οποία υποβλήθηκε. (2) Εάν ο ασφαλιστικός κίνδυνος παύσει να υφίσταται κατά τη διάρκεια της ασφαλιστικής περιόδου, η σύμβαση θεωρείται ότι έχει λυθεί από τότε που ο ασφαλιστής έλαβε γνώση.

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Άρθρο 12:102 Μεταβίβαση της ασφαλισμένης περιουσίας (1) Εάν μεταβιβασθεί η ασφαλισμένη περιουσία, η ασφαλιστική σύμβαση λύεται ένα μήνα μετά τη μεταβίβαση, εκτός αν ο λήπτης της ασφάλισης και ο διάδοχος συμφωνήσουν τη λύση της νωρίτερα. Τούτο δεν ισχύει εάν η ασφαλιστική σύμβαση συνάφθηκε για λογαριασμό ενός μελλοντικού διαδόχου της περιουσίας. (2) Ο διάδοχος της ασφαλισμένης περιουσίας θεωρείται ότι είναι ασφαλισμένος από τη μεταβίβασή της. (3) Οι ως άνω παρ. 1 και 2 δεν εφαρμόζονται (α) εάν ο ασφαλιστής, ο λήπτης της ασφάλισης και ο διάδοχος της περιουσίας έχουν συμφωνήσει κάτι διαφορετικό, καθώς και (β) αν η μεταβίβαση έγινε αιτία θανάτου.

Μέρος τρίτο: Γενικές διατάξεις των ασφαλίσεων ποσού Κεφάλαιο δέκατο τρίτο: Παραδεκτό Άρθρο 13:101 Ασφάλιση ποσού Ως ασφάλιση ποσού μπορεί να συμφωνηθεί μόνο η ασφάλιση ατυχημάτων, υγείας, ζωής, γάμου, γέννησης ή άλλο είδος ασφάλισης προσώπων.

Μέρος τέταρτο: Ασφάλιση αστικής ευθύνης Κεφάλαιο δέκατο τέταρτο: Γενική ασφάλιση αστικής ευθύνης Άρθρο 14:101 Δαπάνες υπεράσπισης Ο ασφαλιστής οφείλει να αποζημιώνει τον λήπτη για τις δαπάνες υπεράσπισής του που προκύπτουν σύμφωνα με το άρθρο 9:102

Άρθρο 14:102 Προστασία του ζημιωθέντος Εκτός εάν ο ζημιωθείς συναινέσει γραπτά, η θέση του δεν θα επηρεαστεί από οποιoδήποτε διακανονισμό της απαίτησης προς αποζημίωση μεταξύ του λήπτη της ασφάλισης ή του ασφαλισμένου και του ασφαλιστή ανεξάρτητα του αν ο διακανονισμός έγινε με συμφωνία, παραίτηση, καταβολή ή άλλη ισοδύναμη πράξη.

Άρθρο 14:103 Πρόκληση ζημίας (1) Ο λήπτης της ασφάλισης ή ,κατά περίπτωση, ο ασφαλισμένος δεν δικαιούται ασφαλίσματος στον βαθμό που η ζημία του τρίτου προκλήθηκε από πράξη ή παράλειψη που έγινε με πρόθεση. Ο λήπτης της ασφάλισης ή ο ασφαλισμένος επίσης δεν δικαιούται ασφαλίσματος σε περίπτωση μη συμμόρφωσης με συγκεκριμένες οδηγίες που του έδωσε ο ασφαλιστής μετά την επέλευση της ζημίας, εάν η μη συμμόρφωση γίνει από αδιαφορία και με γνώση ότι με τη μη συμμόρφωση η ζημία θα μπορούσε πιθανότατα να επιταθεί. (2) Για τους σκοπούς της παραγράφου 1, η πρόκληση ζημίας περιλαμβάνει την αποτυχία αποτροπής ή περιορισμού της ζημιάς.

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(3) Με την επιφύλαξη ύπαρξης σαφούς όρου στην ασφαλιστική σύμβαση που προβλέπει την μείωση του ασφαλίσματος ανάλογα με το βαθμό της υπαιτιότητάς του, ο λήπτης της ασφάλισης ή ο ασφαλισμένος, ανάλογα με την περίπτωση, θα έχει δικαίωμα είσπραξης ασφαλίσματος για οποιαδήποτε ζημία προκλήθηκε από αμέλειά του ως προς τη συμμόρφωση με τις κατά τα ως άνω ειδικές οδηγίες του ασφαλιστή.

Άρθρο 14:104 Αναγνώριση ευθύνης (1) Ο ασφαλιστής δεν μπορεί να προβλέψει όρο στην ασφαλιστική σύμβαση, σύμφωνα με τον οποίο απαλλάσσεται από την υποχρέωση προς ασφάλισμα σε περίπτωση που ο λήπτης της ασφάλισης ή ο ασφαλισμένος, ανάλογα με την περίπτωση, αποδέχεται ή ικανοποιεί το αίτημα του ζημιωθέντος. (2) Ο ασφαλιστής δεν δεσμεύεται από συμφωνία μεταξύ του ζημιωθέντα και του λήπτη της ασφάλισης ή του ασφαλισμένου, ανάλογα με την περίπτωση, εκτός εάν έχει συναινέσει.

Άρθρο 14:105 Εκχώρηση Δεν είναι έγκυρος ο όρος της ασφαλιστικής σύμβασης που στερεί από τον ασφαλισμένο το δικαίωμά του να εκχωρήσει την απαίτησή του προς ασφάλισμα.

Άρθρο 14:106 Έκπτωση λόγω μη ζημίας (bonus-malus) (1) Ο λήπτης της ασφάλισης έχει το δικαίωμα να ζητεί από τον ασφαλιστή, ανά πάσα στιγμή, βεβαίωση σχετικά με το ιστορικό ζημιών του τα τελευταία πέντε χρόνια. (2) Εάν ο ασφαλιστής προβλέψει το ασφάλιστρο ή άλλοι ασφαλιστικοί όροι να εξαρτώνται από τον αριθμό ή το ποσό των αποζημιώσεων που καταβλήθηκαν στα πλαίσια της ασφάλισης, θα πρέπει να λαμβάνει υπόψη του το ιστορικό ζημιών του λήπτη της ασφάλισης που διατηρείται με άλλους ασφαλιστές τα τελευταία πέντε χρόνια.

Άρθρο 14:107 Ασφαλιστική περίπτωση (1) Ασφαλιστική περίπτωση είναι το γεγονός που προκάλεσε την αστική ευθύνη του λήπτη της ασφάλισης έναντι τρίτου ζημιωθέντα από αυτόν και που συνέβη κατά τη διάρκεια της περιόδου ευθύνης της ασφαλιστικής σύμβασης, εκτός εάν οι συμβαλλόμενοι ασφαλιστικής σύμβασης, που έχει συναφθεί για εμπορικούς ή επαγγελματικούς σκοπούς, καθορίσουν την ασφαλιστική περίπτωση με άλλα κριτήρια, όπως, για παράδειγμα, τις αξιώσεις που θα προβληθούν από τον ζημιωθέντα. (2) Όταν τα συμβαλλόμενα μέρη καθορίζουν την ασφαλιστική περίπτωση σε σχέση με τις αξιώσεις που θα προβληθούν από τον ζημιωθέντα, η κάλυψη θα παρέχεται σε σχέση με τις αξιώσεις που υποβάλλονται εντός της συμβατικής περιόδου ευθύνης ή σε μεταγενέστερη περίοδο, όχι μικρότερη των πέντε ετών, και οι οποίες βασίζονται σε γεγονός που συνέβη πριν από τη λήξη της περιόδου ευθύνης. Η ασφαλιστική σύμβαση μπορεί να αποκλείει την κάλυψη στην περίπτωση που ο αιτών την ασφάλιση τον χρόνο της σύναψης της σύμβασης, γνώριζε ή όφειλε να γνωρίζει ότι συνέτρεχαν οι προϋποθέσεις, με βάση τις οποίες ήταν αναμενόμενο ότι θα ασκούνταν αξιώσεις αποζημίωσης από τρίτους.

Άρθρο 14:108 Απαιτήσεις που υπερβαίνουν το ασφαλιστικό ποσό (1) Εάν οι οφειλόμενες συνολικές πληρωμές (ασφαλίσματα) σε διάφορα πρόσωπα που ζημιώθηκαν από τον λήπτη της ασφάλισης υπερβαίνουν το ασφαλιστικό ποσό, οι πληρωμές θα μειώνονται αναλογικά. (2) Ο ασφαλιστής που, χωρίς να γνωρίζει την ύπαρξη των άλλων ζημιωθέντων, έχει καταβάλει καλόπιστα πληρωμές (ασφαλίσματα) σε ζημιωθέντες που ήταν γνωστοί σε αυτόν, υποχρεούται να

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αποζημιώσει τους τυχόν άλλους ζημιωθέντες, αλλά μέχρι τη συμπλήρωση του ασφαλιστικού ποσού.

Κεφάλαιο δέκατο πέμπτο: Ευθεία αγωγή κατά του ασφαλιστή Άρθρο 15:101 Ευθεία αγωγή κατά του ασφαλιστή και αντίκρουση αυτής (1) Στο βαθμό που ο λήπτης της ασφάλισης ή ο ασφαλισμένος, ανάλογα με την περίπτωση, ευθύνεται, ο ζημιωθείς δικαιούται να προβάλει απαίτηση αποζημίωσης ευθέως κατά του ασφαλιστή, στο μέτρο που ο τελευταίος ευθύνεται από την ασφαλιστική σύμβαση, με την προϋπόθεση ότι (α) η ασφάλιση είναι υποχρεωτική, ή (β) ο λήπτης της ασφάλισης ή ασφαλισμένος είναι αφερέγγυος, ή (γ) ο λήπτης της ασφάλισης ή ασφαλισμένος έχει εκκαθαριστεί ή έχει τεθεί υπό εκκαθάριση, ή (δ) ο ζημιωθείς έχει υποστεί σωματική βλάβη, ή (ε) η νομοθεσία που διέπει την ευθύνη του ασφαλιστή προβλέπει για ευθεία αγωγή κατά του ασφαλιστή. (2) Ο ασφαλιστής μπορεί να προβάλει ενστάσεις από την ασφαλιστική σύμβαση κατά του ζημιωθέντος, εκτός αν οι ειδικές διατάξεις που καθιστούν την ασφάλιση υποχρεωτική το αποκλείουν. Ο ασφαλιστής δεν μπορεί να προβάλει ενστάσεις κατά του ζημιωθέντος οι οποίες απορρέουν από (αντισυμβατική) συμπεριφορά που επέδειξε ο λήπτη της ασφάλισης ή/και ο ασφαλισμένος μετά την επέλευση της ζημιάς.

Άρθρο 15:102 Υποχρεώσεις πληροφόρησης (1) Μετά από αίτηση του ζημιωθέντος, ο λήπτης της ασφάλισης και ο ασφαλισμένος οφείλουν να του παρέχουν τις αναγκαίες πληροφορίες για την πραγματοποίηση της ευθείας απαίτησης αποζημίωσης κατά του ασφαλιστή. (2) Ο ασφαλιστής οφείλει να ενημερώνει τον λήπτη της ασφάλισης γραπτά για οποιαδήποτε ευθεία απαίτηση αποζημίωσης, χωρίς αδικαιολόγητη καθυστέρηση και, το αργότερο, εντός δύο εβδομάδων από την λήψη της απαίτησης προς αποζημίωση. Αν ο ασφαλιστής παραβιάσει την υποχρέωση αυτή, η εκ μέρους του λήπτη της ασφάλισης ή του ασφαλισμένου πληρωμή ή αναγνώριση του χρέους προς τον ζημιωθέντα, δεν θα θίγει τα δικαιώματα του λήπτη της ασφάλισης ή/και ασφαλισμένου που απορρέουν από την ασφαλιστική σύμβαση έναντι του ασφαλιστή. (3) Εάν ο λήπτης της ασφάλισης δεν παρέχει στον ασφαλιστή πληροφορίες σχετικά με την επέλευση της ασφαλιστικής περίπτωσης εντός ενός μηνός από την λήψη της απαίτησης προς αποζημίωση σύμφωνα με την παράγραφο 2, θα θεωρείται ότι ο λήπτης της ασφάλισης συμφωνεί με τον άμεσο διακανονισμό της απαίτησης προς αποζημίωση από τον ασφαλιστή. Αυτός ο κανόνας ισχύει και για ασφαλισμένους που έχουν λάβει τέτοια ειδοποίηση εγκαίρως.

Άρθρο 15:103 Απαλλαγή Η καταβολή του ασφαλίσματος στον λήπτη της ασφάλισης ή στον ασφαλισμένο, ανάλογα με την περίπτωση, θα απαλλάσσει τον ασφαλιστή από την υποχρέωσή του έναντι του ζημιωθέντα, εάν ο ζημιωθείς (α) έχει παραιτηθεί από την άσκηση ευθείας απαίτησης προς αποζημίωση κατά του ασφαλιστή ή

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(β) δεν έχει ενημερώσει τον ασφαλιστή σχετικά με την πρόθεσή του να προβεί σε άσκηση ευθείας απαίτησης εντός τεσσάρων εβδομάδων από λήψη σχετικής γραπτής αίτησης του ασφαλιστή.

Άρθρο 15:104 Παραγραφή (1) Η αξίωση κατά του ασφαλιστή είτε προβάλλεται από τον λήπτη της ασφάλισης είτε από τον ζημιωθέντα παραγράφεται το χρονικό σημείο παραγραφής της αξίωσης του ζημιωθέντα κατά του λήπτη της ασφάλισης. (2) Ο χρόνος παραγραφής της αξίωσης αποζημίωσης του ζημιωθέντα κατά του λήπτη της ασφάλισης αναστέλλεται από την χρονική στιγμή που ο λήπτης της ασφάλισης πληροφορηθεί ότι έχει προβληθεί η ευθεία απαίτηση αποζημίωσης κατά του ασφαλιστή μέχρι την χρονική στιγμή που η αξίωση αποζημίωσης έχει διακανονιστεί ή οριστικά απορριφθεί από τον ασφαλιστή.

Κεφάλαιο δέκατο έκτο: Υποχρεωτική ασφάλιση Άρθρο 16:101 Πεδίο εφαρμογής (1) Οι ΑΕΔΑΣ μπορούν να επιλεχθούν από τους συμβαλλόμενους σε ασφαλιστική σύμβαση που έχει συναφθεί σε εκτέλεση υποχρέωσης ασφάλισης, (α) που προβλέπεται από το ενωσιακό δίκαιο, (β) που προβλέπεται από ένα Κράτος μέλος της Ε.Ε., ή (γ) που προβλέπεται από ένα Κράτος εκτός των Κρατών μελών της Ε.Ε., στο βαθμό που επιτρέπεται από τη νομοθεσία του Κράτους αυτού. (2) Η σύμβαση ασφάλισης δεν πληροί τις προϋποθέσεις σύναψης υποχρεωτικής ασφάλισης, εκτός εάν είναι σύμφωνη με τις ειδικές διατάξεις που επιβάλλουν την υποχρεωτική ασφάλιση.

Μέρος πέμπτο: Ασφάλιση ζωής Κεφάλαιο δέκατο έβδομο: Ειδικές διατάξεις για ασφάλιση ζωής Τμήμα πρώτο: Τρίτα πρόσωπα Άρθρο 17:101 Ασφάλιση επί της ζωής τρίτου Ασφάλιση επί της ζωής τρίτου προσώπου, διαφορετικού από τον λήπτη της ασφάλισης, είναι άκυρη, εκτός εάν υπάρχει ενυπόγραφη συναίνεση του προσώπου του κινδύνου. Ουσιαστικές μεταβολές της ασφαλιστικής σύμβασης που έγιναν μετά την σύναψή της, συμπεριλαμβανομένης της αλλαγής του προσώπου που έχει οριστεί ως δικαιούχος του ασφαλίσματος, της αύξησης του ασφαλιστικού ποσού και της διάρκειας της ασφαλιστικής σύμβασης, δεν θα έχουν ισχύ χωρίς την κατά τα ως άνω συναίνεση. Η ως άνω ρύθμιση εφαρμόζεται και στην περίπτωση εκχώρησης ή επιβάρυνσης της ασφαλιστικής σύμβασης ή του δικαιώματος λήψης του ασφαλίσματος.

Άρθρο 17:102 Δικαιούχος του ασφαλίσματος (1) Ο λήπτης της ασφάλισης μπορεί να ορίσει έναν ή περισσότερους δικαιούχους του ασφαλίσματος και μπορεί να τον/τους ανακαλέσει ή ορίσει άλλα πρόσωπα, εκτός εάν προβλέφθηκε ο ορισμός δικαιούχου/ων να είναι ανέκκλητος Ο ορισμός, η αλλαγή ή η ανάκληση δικαιούχου γίνεται γραπτά και αποστέλλεται στον ασφαλιστή εκτός εάν έχει γίνει με διαθήκη.

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(2) Το δικαίωμα να προσδιορίσει, να αλλάξει ή να ανακαλέσει τον ορισμό δικαιούχου λήγει με το θάνατο του λήπτη της ασφάλισης ή την επέλευση της ασφαλιστικής περίπτωσης, ανεξάρτητα ποιο από τα δύο συμβεί πρώτο. (3) Ο λήπτης της ασφάλισης ή οι κληρονόμοι του, ανάλογα με την περίπτωση, θεωρούνται δικαιούχοι του ασφαλίσματος, εάν (α) ο λήπτης της ασφάλισης δεν έχει ορίσει δικαιούχο ή (β) ο προσδιορισμός του δικαιούχου έχει ανακληθεί και δεν έχει οριστεί άλλος/οι ή (γ) ο δικαιούχος έχει πεθάνει πριν την επέλευση της ασφαλιστικής περίπτωσης και δεν έχει οριστεί άλλος/οι. (4) Σε περίπτωση που έχουν οριστεί δύο ή περισσότεροι δικαιούχοι και ο ορισμός κάποιου από αυτούς έχει ανακληθεί ή κάποιος από αυτούς έχει πεθάνει πριν από την επέλευση της ασφαλιστικής περίπτωσης, το ποσό του ασφαλίσματος που θα έπρεπε να καταβληθεί στον δικαιούχο/ους θα κατανέμεται μεταξύ των υπολοίπων αναλογικά, εκτός αν έχει ορίσει κάτι διαφορετικά ο λήπτης της ασφάλισης, σύμφωνα με την ως άνω παράγραφο 1. (5) Με την επιφύλαξη τυχόν ρυθμίσεων του εφαρμοστέου πτωχευτικού δικαίου σχετικά με ακυρότητα, ακυρωσία ή κήρυξη μη εκτελεστών πράξεων επιζήμιων προς τους πιστωτές, η πτωχευτική περιουσία του λήπτη της ασφάλισης δεν θα έχει δικαιώματα επί του ασφαλίσματος, της τιμής μετατροπής της ασφάλισης ή του ποσού επαναγοράς αυτής, για όσο χρονικό διάστημα δεν έχει καταβληθεί το ασφάλισμα στον λήπτη της ασφάλισης. (6) Ο ασφαλιστής που κατέβαλε το ασφάλισμα σε ένα δικαιούχο που έχει ορισθεί σύμφωνα με την ως άνω παράγραφο 1, απαλλάσσεται από την υποχρέωση καταβολής του ασφαλίσματος, εκτός αν γνώριζε ότι ο εισπράξας δεν ήταν δικαιούχος.

Άρθρο 17:103 Δικαιούχος του ποσού επαναγοράς (1) Ανεξάρτητα από τον ορισμό δικαιούχου σύμφωνα με το άρθρο 17:102, ο λήπτης της ασφάλισης μπορεί να ορίσει δικαιούχους του ποσού επαναγοράς, εάν υπάρχει πρόβλεψη επαναγοράς, και μπορεί να αντικαταστήσει ή να ανακαλέσει τον δικαιούχο που έχει οριστεί. Ο ορισμός, η αντικατάσταση ή η ανάκληση πρέπει να γίνεται γραπτά και να αποστέλλεται στον ασφαλιστή. (2) Ο λήπτης της ασφάλισης είναι ο δικαιούχος του ποσού επαναγοράς αν, (α) δεν έχει οριστεί δικαιούχος ή (β) ο δικαιούχος έχει ανακληθεί και δεν έχει οριστεί άλλος/οι ή (γ) ο δικαιούχος έχει πεθάνει και δεν έχει οριστεί άλλος/οι. (3) Οι διατάξεις του άρθρου 17:102 παράγραφοι 2 και 4 έως 6 εφαρμόζονται αναλογικά.

Άρθρο 17:104 Εκχώρηση ή σύσταση βαρών (1) Σε περίπτωση που το πρόσωπο του δικαιούχου έχει οριστεί αμετάκλητα, δεν χωρεί εκχώρηση της ασφαλιστικής σύμβασης και σύσταση βαρών επί της ασφαλιστικής σύμβασης ή επί του δικαιώματος στο ασφάλισμα από τον λήπτη της ασφάλισης, εκτός εάν ο δικαιούχος συναινέσει γραπτά. (2) Η εκχώρηση ή η σύσταση βαρών επί του δικαιώματος στο ασφάλισμα από τον δικαιούχο θα είναι επίσης χωρίς ισχύ, εκτός εάν ο λήπτης της ασφάλισης συναινέσει γραπτά.

Άρθρο 17:105 Αποποίηση κληρονομικού δικαιώματος Σε περίπτωση που ο δικαιούχος του ασφαλίσματος είναι κληρονόμος του αποβιώσαντος προσώπου του κινδύνου και έχει αποποιηθεί την κληρονομιά, το γεγονός της αποποίησης από μόνο του δεν επηρεάζει τη θέση του στα πλαίσια της ασφαλιστικής σύμβασης.

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Τμήμα δεύτερο: Αρχικό στάδιο και διάρκεια της σύμβασης Άρθρο 17:201 Προσυμβατικές ανακοινώσεις του αιτούντα ασφάλιση (1) Στις ανακοινώσεις των περιστατικών που πρέπει να παρέχονται από τον αιτούντα ασφάλιση στον ασφαλιστή, σύμφωνα με το άρθρο 2:101 παράγραφο 1, περιλαμβάνονται και τα περιστατικά που το πρόσωπο του κινδύνου γνώριζε ή όφειλε να γνωρίζει. (2) Οι κυρώσεις για την παράβαση των προσυμβατικών ανακοινώσεων σύμφωνα με τα άρθρα 2:102, 2:103 και 2:105, αλλά όχι σύμφωνα με το άρθρο 2:104, μπορούν να επιβληθούν μόνο για χρονικό διάστημα πέντε ετών μετά τη σύναψη της ασφαλιστικής σύμβασης.

Άρθρο 17:202 Προσυμβατικές ανακοινώσεις του ασφαλιστή (1) Ο ασφαλιστής υποχρεούται να ενημερώνει τον αιτούντα ασφάλιση σχετικά με το αν διαθέτει δικαίωμα συμμετοχής στα κέρδη. Η παραλαβή των ανακοινώσεων γίνεται με γραπτή δήλωση που περιλαμβάνεται σε έγγραφο διαφορετικό από το έντυπο της αίτησης. (2) Τα έγγραφα που παρέχονται από τον ασφαλιστή σύμφωνα με το άρθρο 2:201 περιλαμβάνουν τις ακόλουθες πληροφορίες: (α) όσον αφορά τον ασφαλιστή: ειδική αναφορά στην υποχρεωτικά δημοσιευόμενη ετήσια έκθεση της φερεγγυότητας και της χρηματοοικονομικής του κατάστασης, (β) όσον αφορά τις υποχρεώσεις του ασφαλιστή έναντι του λήπτη που απορρέουν από την ασφαλιστική σύμβαση: (i) επεξηγηματικές πληροφορίες σχετικά με κάθε παροχή από την ασφαλιστική σύμβαση, καθώς και για κάθε τυχόν σχετική εναλλακτική επιλογή έχει ο λήπτης της ασφάλισης, (ii) πληροφορίες σχετικά με το ποσοστό του ασφαλίστρου που αναλογεί σε κάθε παροχή από την ασφαλιστική σύμβαση είτε είναι κύρια είτε είναι συμπληρωματική, όταν τούτο είναι αναγκαίο, (iii) μεθόδους υπολογισμού και διανομής των συμμετοχών στα κέρδη συμπεριλαμβανομένης αναφοράς του εφαρμοστέου δικαίου της κρατικής εποπτείας, (iv) μνεία για το ύψος του ποσού της επαναγοράς και της αποπληρωμής των αξιών καθώς και του ύψους μέχρι του οποίου τα σχετικά ποσά είναι εγγυημένα, (v) στις ασφαλίσεις που συνδέονται με αξίες μεριδίων ενός αμοιβαίου κεφαλαίου ή αξιών περιουσιακών στοιχείων που περιλαμβάνονται σε ένα εσωτερικό κεφάλαιο της ασφαλιστικής επιχείρησης: επεξήγηση των μεριδίων με τα οποία συνδέονται οι παροχές, καθώς και ένδειξη της φύσης των υποκείμενων περιουσιακών στοιχείων, (vi) γενικές πληροφορίες σχετικά με το φορολογικό καθεστώς που ισχύει για το είδος της σύμβασης. (3) Επιπλέον, παρέχονται συγκεκριμένες πληροφορίες, έτσι ώστε να διευκολύνεται η ορθή κατανόηση των κινδύνων που ενέχει για τον λήπτη της ασφάλισης η ασφαλιστική σύμβαση. (4) Εάν ο ασφαλιστής προσμετρήσει αριθμητικά τις πιθανές παροχές πέραν των εγγυημένων πληρωμών από την ασφαλιστική σύμβαση, θα χορηγεί στον αιτούντα ασφάλιση το μοντέλο (φόρμουλα) υπολογισμού, που θα πιστοποιεί τις πιθανές παροχές σε περίπτωση ωρίμανσης με βάση αναλογιστικές αρχές υπολογισμού ασφαλίστρων και με τρία διαφορετικά επιτόκια. Τα ανωτέρω δεν εφαρμόζονται σε ασφαλιστικές συμβάσεις που καλύπτουν κινδύνους για τους οποίους ο ασφαλιστής δεν είναι βέβαιο ότι θα καταβάλει κάποτε ασφάλισμα ούτε εφαρμόζονται σε ασφαλίσεις που συνδέονται με επενδύσεις. Ο ασφαλιστής εξηγεί με σαφήνεια και με κατανοητό τρόπο στο λήπτη της ασφάλισης ότι το ως άνω μοντέλο υπολογισμού αντιπροσωπεύει ένα μοντέλο που βασίζεται σε εικονικές παραδοχές και ότι η σύμβαση δεν εγγυάται πιθανές πληρωμές.

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Άρθρο 17:203 Περίοδος περισυλλογής10 (1) Στις ασφαλίσεις ζωής, η προθεσμία υπαναχώρησης που προβλέπεται στο άρθρο 2:303 παράγραφος 1 είναι ένας μήνας από την παραλαβή αποδοχής της αίτησης ασφάλισης ή την παράδοση στον λήπτη εγγράφων από αυτά που προβλέπονται στα άρθρα 2:501 και 17:202, όποια είναι η μεταγενέστερη. (2) Το δικαίωμα του λήπτη της ασφάλισης να υπαναχωρήσει από τη σύμβαση σύμφωνα με το άρθρο 2:303 παράγραφος 1 λήγει ένα έτος μετά τη σύναψη της σύμβασης.

Άρθρο 17:204 Καταγγελία της σύμβασης από τον λήπτη της ασφάλισης (1) Ο λήπτης της ασφάλισης δικαιούται να καταγγείλει την ασφάλιση ζωής, εφόσον δεν προκύπτει τιμή μετατροπής ή ποσό επαναγοράς, με την προϋπόθεση τα αποτελέσματα της καταγγελίας να μην αρχίζουν πριν την πάροδο ενός έτους από τη σύναψη της σύμβασης. Το δικαίωμα πρόωρης καταγγελίας της σύμβασης μπορεί να αποκλειστεί όταν έχει καταβληθεί εφάπαξ το ασφάλιστρο. Η καταγγελία της σύμβασης γίνεται γραπτά και τα αποτελέσματά της επέρχονται δύο εβδομάδες μετά την παραλαβή της από τον ασφαλιστή. (2) Αν στην ασφάλιση ζωής έχει προκύψει τιμή μετατροπής ή ποσό εξαγοράς, εφαρμόζονται τα άρθρα 17:601 έως 17:603.

Άρθρο 17:205 Δικαίωμα του ασφαλιστή να καταγγείλει τη σύμβαση Ο ασφαλιστής δικαιούται να καταγγείλει την ασφάλιση ζωής μόνον στο βαθμό που επιτρέπεται από το παρόν κεφάλαιο.

Τμήμα τρίτο: Αλλαγές κατά τη διάρκεια της περιόδου της σύμβασης Άρθρο 17:301 Πληροφορίες που πρέπει να παρέχει ο ασφαλιστής στον λήπτη της ασφάλισης μετά τη σύναψη της σύμβασης (1) Ο ασφαλιστής υποχρεούται να παρέχει στον λήπτη της ασφάλισης ετησίως γραπτή βεβαίωση της τρέχουσας αξίας των επιπλέον παροχών που επισυνάπτονται στο ασφαλιστήριο, στο βαθμό που τούτο είναι εφαρμόσιμο. (2) Πλέον των απαιτήσεων που προβλέπονται στο άρθρο 2:701, ο ασφαλιστής πρέπει να ενημερώνει τον λήπτη της ασφάλισης, χωρίς αδικαιολόγητη καθυστέρηση, για οποιαδήποτε αλλαγή σχετικά με: (α) τόσο τους γενικούς όσο και τους ειδικούς όρους του ασφαλιστηρίου, (β) σε περίπτωση μεταβολής των όρων του ασφαλιστηρίου ή τροποποίηση των ΑΕΔΑΣ: τις πληροφορίες που απαριθμούνται στο άρθρο 2:201 εδάφιο στ’ και ζ’, καθώς και στο άρθρο 17:202 παράγραφος 2 εδάφιο β’ περίπτωση i έως v. (3) H παράγραφος 4 του άρθρου 17:202 εφαρμόζεται και στην περίπτωση όπου τα αριθμητικά στοιχεία που αφορούν το εκτιμώμενο ποσό των πιθανών παροχών παρέχονται οποιαδήποτε στιγμή κατά τη διάρκεια της σύμβασης. Σε περίπτωση που ο ασφαλιστής έχει παρουσιάσει αριθμητικά στοιχεία είτε πριν είτε μετά τη σύναψη της σύμβασης σχετικά με την ενδεχόμενη μελλοντική εξέλιξη της συμμετοχής στα κέρδη, ο ασφαλιστής ενημερώνει τον λήπτη της ασφάλισης για τυχόν διαφορές μεταξύ της πραγματικής εξέλιξης και των αρχικών στοιχείων που είχαν δοθεί. 10

Το άρθρο 17:203 παράγραφος 1 βασίζεται στο άρθρο 35 της Οδηγίας 2002/83/ΕΚ για την ασφάλιση ζωής και στο άρθρο 6 της Οδηγίας 2002/65/ΕΚ για την από απόσταση εμπορία χρηματοοικονομικών υπηρεσιών.

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Άρθρο 17:302 Επίταση του κινδύνου Η ύπαρξη ρήτρας σε ασφάλιση ζωής που προβλέπει ότι αποτελεί επίταση του κινδύνου κατά την έννοια του άρθρου 4:201 ο παράγοντας της ηλικίας ή της επιδείνωσης της υγείας, είναι καταχρηστική κατά την έννοια του άρθρου 2:304.

Άρθρο 17:303 Αναπροσαρμογή του ασφαλίστρου και των παροχών (1) Σε ασφάλιση ζωής που καλύπτει κινδύνους, για τους οποίους είναι βέβαιο ότι ο ασφαλιστής θα ευθύνεται, ο ασφαλιστής δικαιούται μόνο να αναπροσαρμόσει το ασφάλιστρο σύμφωνα με τις παραγράφους 2 και 3. (2) Η αύξηση του ασφαλίστρου επιτρέπεται όταν, εξαιτίας απρόβλεπτης και μόνιμης μεταβολής των βιομετρικών κινδύνων, που αποτέλεσαν τη βάση υπολογισμού του ασφαλίστρου, η αύξηση είναι αναγκαία για την εγγύηση της διαρκούς ικανότητας να καταβάλλει ασφαλιστικές παροχές και όταν η αύξηση του ασφαλίστρου έχει συμφωνηθεί από έναν ανεξάρτητο εκτιμητή ή από την εποπτική αρχή. Ο λήπτης της ασφάλισης δικαιούται να συμψηφίσει την αύξηση του ασφαλίστρου με μια ισοδύναμη μείωση των ασφαλιστικών παροχών. (3) Στην περίπτωση εξοφλημένου ασφαλιστηρίου, ο ασφαλιστής δικαιούται να μειώσει τις ασφαλιστικές παροχές σύμφωνα με τους όρους που προβλέπονται στην παράγραφο 2. (4) Δεν επιτρέπεται αναπροσαρμογή σύμφωνα με τις παραγράφους 2 ή 3, (α) στο μέτρο που έχει παρεισφρήσει ένα λάθος στον υπολογισμό του ασφαλίστρου ή/και των παροχών, το οποίο ένας αρμόδιος και επιμελής αναλογιστής όφειλε να γνωρίζει, ή (β) όταν ο υπολογισμός δεν εφαρμόζεται σε όλες τις ασφαλιστικές συμβάσεις, συμπεριλαμβανομένων και αυτών που έχουν συναφθεί μετά την αναπροσαρμογή. (5) Η αύξηση του ασφαλίστρου ή η μείωση των παροχών θα τίθεται σε ισχύ τρεις μήνες μετά την παράδοση στον λήπτη της ασφάλισης σχετικής γραπτής ειδοποίησης συμπεριλαμβανομένων και των λόγων της αύξησης του ασφαλίστρου ή μείωσης των παροχών, αλλά και του δικαιώματος του λήπτη της ασφάλισης να ζητήσει τη μείωση των παροχών. (6) Σε ασφάλιση ζωής που καλύπτει κινδύνους για τους οποίους είναι βέβαιο ότι ο ασφαλιστής θα ευθύνεται, ο λήπτης της ασφάλισης δικαιούται μείωση του ασφαλίστρου, όταν εξαιτίας απρόβλεπτης και μόνιμης μεταβολής σχετικά με τους βιομετρικούς κινδύνους που χρησιμοποιήθηκαν ως βάση για τον υπολογισμό του ασφαλίστρου, το αρχικό ποσό ασφαλίστρου δεν είναι πλέον κατάλληλο και αναγκαίο για να εγγυηθεί την διαρκή ικανότητα του ασφαλιστή να καταβάλλει ασφαλιστικές παροχές. Για τη μείωση πρέπει να συμφωνεί ένας ανεξάρτητος εκτιμητής ή η εποπτική αρχή. (7) Τα δικαιώματα που ορίζονται στο παρόν άρθρο δεν μπορούν να ασκηθούν πριν την πάροδο πέντε ετών από τη σύναψη της σύμβασης.

Άρθρο 17:304 Τροποποίηση όρων και προϋποθέσεων (1) Με εξαίρεση το ασφάλιστρο και τις παροχές, είναι άκυρη η ρήτρα του ασφαλιστηρίου που επιτρέπει στον ασφαλιστή να μεταβάλλει τους όρους ή τις προϋποθέσεις που διέπουν την ασφαλιστική σύμβαση, εκτός αν η τροποποίηση είναι αναγκαία για (α) τη συμμόρφωση με τροποποίηση που προέρχεται από το δίκαιο της κρατικής εποπτείας και των δεσμευτικών μέτρων που λαμβάνονται απ’ αυτήν, ή (β) τη συμμόρφωση με τροποποίηση που προέρχεται από αναγκαστικού δικαίου διατάξεις της εφαρμοστέας εθνικής νομοθεσίας σχετικά με συνταξιοδοτικά προγράμματα εργοδοτών, ή (γ) τη συμμόρφωση με τροποποίηση που προέρχεται από εθνική νομοθεσία η οποία επιβάλλει συγκεκριμένες προϋποθέσεις σε ασφαλίσεις ζωής προκειμένου να τύχουν ειδικής φορολογικής μεταχείρισης ή κρατικής επιδότησης, ή

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(δ) για να αντικατασταθεί μία ρήτρα της σύμβασης με άλλη, σύμφωνα με το άρθρο 2:304 παράγραφο 2 πρόταση 2. (2) Η τροποποίηση τίθεται σε ισχύ κατά την έναρξη του τρίτου μήνα από την εκ μέρους του λήπτη της ασφάλισης παραλαβή γραπτής ειδοποίησης που του αποστέλλει ο ασφαλιστής και που πληροφορεί τον λήπτη σχετικά με την τροποποίηση και τους λόγους αυτής. (3) Η παράγραφος 1 δεν εμποδίζει την εφαρμογή άλλων ρυθμίσεων που προβλέπονται σχετικά με την εγκυρότητα του όρου που τροποποιεί τη σύμβαση ασφάλισης.

Τμήμα τέταρτο: Σχέσεις με την εθνική νομοθεσία Άρθρο 17:401 Συνταξιοδοτικά προγράμματα Ασφάλιση ζωής που σχετίζεται με συνταξιοδοτικό πρόγραμμα υπόκειται στις διατάξεις αναγκαστικού δικαίου της εφαρμοστέας εθνικής νομοθεσίας σχετικά με τα συνταξιοδοτικά προγράμματα. Οι ΑΕΔΑΣ εφαρμόζονται μόνο στο βαθμό που είναι συμβατές με τις διατάξεις αυτές.

Άρθρο 17:402 Φορολογική μεταχείριση και κρατικές επιδοτήσεις Οι ΑΕΔΑΣ δεν θίγουν τις εθνικές διατάξεις που επιβάλλουν ειδικές απαιτήσεις σε συμβάσεις ασφάλισης ζωής προκειμένου να τύχουν ειδικής φορολογικής μεταχείρισης ή κρατικών επιδοτήσεων. Σε περίπτωση σύγκρουσης μεταξύ των σχετικών κανόνων της ισχύουσας εθνικής νομοθεσίας και των διατάξεων των ΑΕΔΑΣ, επιτρέπεται να υπάρξει παρέκκλιση από τις διατάξεις των ΑΕΔΑΣ.

Τμήμα πέμπτο: Ασφαλιστική περίπτωση Άρθρο 17:501 Διερεύνηση και υποχρεώσεις πληροφόρησης (1) Ο ασφαλιστής που έχει λόγους να πιστεύει ότι η ασφαλιστική περίπτωση έχει επέλθει, οφείλει να λάβει εύλογα μέτρα για την εξακρίβωση τούτου. (2) Ο ασφαλιστής που γνωρίζει την πραγματοποίηση της ασφαλιστικής περίπτωσης, οφείλει να καταβάλλει κάθε δυνατή κατά τις περιστάσεις προσπάθεια για να ανακαλύψει την ταυτότητα και τη διεύθυνση του δικαιούχου και να τον ενημερώσει. Οι πληροφορίες αυτές πρέπει να δίνονται το αργότερο 30 ημέρες από την ημέρα που ο ασφαλιστής έλαβε γνώση της ταυτότητας και της διεύθυνσης του δικαιούχου. (3) Εάν ο ασφαλιστής παραβιάζει τις διατάξεις της παραγράφου 1 ή 2, η παραγραφή της απαίτησης του δικαιούχου αναστέλλεται έως ότου ο δικαιούχος λάβει γνώση του δικαιώματός του.

Άρθρο 17:502 Αυτοκτονία (1) Εάν, εντός ενός έτους από τη σύναψη της σύμβασης το πρόσωπο του κινδύνου αυτοκτονήσει, ο ασφαλιστής απαλλάσσεται από την υποχρέωση για ασφάλισμα. Σε αυτήν την περίπτωση ο ασφαλιστής θα καταβάλει πάντως το ποσό επαναγοράς και τα κέρδη σύμφωνα με το άρθρο 17:602. (2) Η παράγραφος 1 δεν εφαρμόζεται εάν, (α) το πρόσωπο του κινδύνου που αυτοκτόνησε δρούσε σε ψυχική κατάσταση η οποία απέκλειε την ελεύθερη διαμόρφωση της βούλησής του, ή (β) αποδεικνύεται πέραν πάσης εύλογης αμφιβολίας ότι, κατά τη στιγμή της σύναψης της σύμβασης, το πρόσωπο του κινδύνου δεν είχε την πρόθεση να αυτοκτονήσει.

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Άρθρο 17:503 Θανάτωση του προσώπου του κινδύνου από πρόθεση (1) Εάν ο δικαιούχος του ασφαλίσματος θανατώσει από πρόθεση το πρόσωπο του κινδύνου, τεκμαίρεται ότι ανακαλείται ο ορισμός του ως δικαιούχου. (2) Η εκχώρηση της απαίτησης προς ασφάλισμα είναι ανίσχυρη, εάν ο εκδοχέας θανατώσει από πρόθεση το πρόσωπο του κινδύνου. (3) Εάν ο λήπτης της ασφάλισης που είναι και δικαιούχος του ασφαλίσματος θανατώσει από πρόθεση το πρόσωπο του κινδύνου, ο ασφαλιστής απαλλάσσεται από την υποχρέωση καταβολής ασφαλίσματος. (4) Εάν ο δικαιούχος του ασφαλίσματος ή ο λήπτης της ασφάλισης δικαιολογημένα θανατώσει το πρόσωπο του κινδύνου, όπως στην περίπτωση της νόμιμης αυτοάμυνας, το άρθρο αυτό δεν εφαρμόζεται.

Τμήμα έκτο: Μετατροπή και ποσό επαναγοράς Άρθρο 17:601 Μετατροπή της ασφαλιστικής σύμβασης (1) Το άρθρο 5:103 δεν εφαρμόζεται στις ασφαλίσεις ζωής που είναι ώριμες για μετατροπή ή επαναγορά. Οι ασφαλίσεις αυτές μετατρέπονται σε ασφαλίσεις καταβεβλημένου ποσού, εκτός εάν ο λήπτης της ασφάλισης ζητήσει την καταβολή του ποσού επαναγοράς εντός τεσσάρων εβδομάδων από την παραλαβή των πληροφοριών που αναφέρονται στην παράγραφο 2. (2) Ο ασφαλιστής ενημερώνει τον λήπτη της ασφάλισης για την αξία μετατροπής και το ποσό επαναγοράς εντός τεσσάρων εβδομάδων από τη λήξη της περιόδου που αναφέρεται στο άρθρο 5:101 (β) ή στο άρθρο 5:102 παράγραφος 1(β) και ζητά από τον λήπτη της ασφάλισης να επιλέξει μεταξύ μετατροπής και καταβολής του ποσού επαναγοράς. (3) Η αίτηση μετατροπής ή της καταβολής του ποσού επαναγοράς πρέπει να γίνεται γραπτά.

Άρθρο 17:602 Ποσό επαναγοράς της ασφάλισης (1) Ο λήπτης της ασφάλισης μπορεί κατά πάντα χρόνο να ζητήσει από τον ασφαλιστή γραπτά να καταβάλει, εν μέρει ή εν όλω, το ποσό επαναγοράς, αλλά όχι νωρίτερα από την πάροδο ενός έτους μετά τη σύναψή της. Σε αυτή την περίπτωση η σύμβαση θα πρέπει είτε να αναπροσαρμοστεί ή να καταγγελθεί. (2) Με την επιφύλαξη του άρθρου 17:601, εάν μια ασφάλιση ζωής, στην οποία έχει προκύψει ποσό επαναγοράς, λυθεί, ακυρωθεί ή απορριφθεί από τον ασφαλιστή, ο ασφαλιστής είναι υποχρεωμένος να καταβάλει το ποσό επαναγοράς, ακόμα και στην περίπτωση του άρθρου 2:104. (3) Ο ασφαλιστής οφείλει να ενημερώνει τον λήπτη της ασφάλισης κατόπιν αιτήματός του, αλλά, σε κάθε περίπτωση, κάθε χρόνο για το τρέχον ποσό επαναγοράς και το βαθμό κατά τον οποίο είναι εγγυημένο. (4) Το μερίδιο των κερδών, το οποίο δικαιούται ο λήπτης της ασφάλισης, καταβάλλεται επιπλέον του ποσού επαναγοράς, εκτός εάν το μέρισμα έχει συνυπολογισθεί κατά τον υπολογισμό του ποσού της επαναγοράς. (5) Τα ποσά που οφείλονται με βάση το άρθρο αυτό, καταβάλλονται εντός δύο μηνών από την παραλαβή του αιτήματος του λήπτη της ασφάλισης από τον ασφαλιστή.

Άρθρο 17:603 Τιμή μετατροπής·ποσό επαναγοράς (1) Η ασφαλιστική σύμβαση αναφέρει τον τρόπο, με τον οποίο η τιμή μετατροπής ή/και το ποσό επαναγοράς υπολογίζονται σύμφωνα με το δίκαιο του Κράτους μέλους της έδρας του ασφαλιστή.

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Ο αναγραφόμενος τρόπος υπολογισμού του ποσού επαναγοράς ή/και της τιμής μετατροπής θα συμμορφώνεται με τις καθιερωμένες αναλογιστικές αρχές και με τις διατάξεις της παραγράφου 2. (2) Όταν ο ασφαλιστής αφαιρεί τα έξοδα σύναψης της ασφαλιστικής σύμβασης, το πράττει σε ίσα ποσά και εντός χρονικού διαστήματος που δεν μπορεί να υπολείπεται των πέντε ετών από την σύναψή της. (3) Ο ασφαλιστής δικαιούται να αφαιρέσει το ποσό που προκύπτει από την κάλυψη των δαπανών που συνδέονται με την καταβολή του ποσού επαναγοράς. Το ποσό αυτό υπολογίζεται σύμφωνα με τις καθιερωμένες αναλογιστικές αρχές, εκτός εάν περιλαμβάνεται στο ποσό σχετική μείωση.

Μέρος έκτο: Ομαδική ασφάλιση Κεφάλαιο δέκατο όγδοο: Ειδικές διατάξεις για τις ομαδικές ασφαλίσεις Τμήμα πρώτο: Ομαδικές ασφαλίσεις γενικά Άρθρο 18:101 Έκταση εφαρμογής των ΑΕΔΑΣ Οι ομαδικές ασφαλίσεις διέπονται από τις ΑΕΔΑΣ με την προϋπόθεση ότι ο οργανωτής της ομάδας και ο ασφαλιστής έχουν συνάψει τη σύμβαση σύμφωνα με το άρθρο 1:102. Η ομαδική ασφάλιση είναι είτε συμπληρωματική και υπόκειται στις διατάξεις του δεύτερου τμήματος του παρόντος κεφαλαίου είτε επιλεκτική και υπόκειται στις διατάξεις του τρίτου τμήματος του παρόντος κεφαλαίου.

Άρθρο 18:102 Γενικό καθήκον επιμελείας του οργανωτή της ομάδας (1) Κατά τη διαπραγμάτευση και την εκτέλεση της ομαδικής ασφάλισης, ο οργανωτής της ομάδας οφείλει να δρα με επιμέλεια και με καλή πίστη, λαμβάνοντας υπόψη τα νόμιμα συμφέροντα των μελών της ομάδας. (2) Ο οργανωτής της ομάδας οφείλει να διαβιβάζει τις σχετικές ανακοινώσεις που εκδίδονται από τον ασφαλιστή στα μέλη της ομάδας και να τους ενημερώνει για τυχόν τροποποιήσεις της σύμβασης.

Τμήμα δεύτερο: Συμπληρωματική ομαδική ασφάλιση Άρθρο 18:201 Εφαρμογή των ΑΕΔΑΣ Όπου είναι απαραίτητο, οι ΑΕΔΑΣ θα πρέπει να εφαρμόζονται σε συμπληρωματικές ομαδικές ασφαλίσεις αναλογικά.

Άρθρο 18:202 Υποχρεώσεις πληροφόρησης (1) Όταν ένα νέο μέλος εισέρχεται στην ομάδα, ο οργανωτής της ομάδας, χωρίς αδικαιολόγητη καθυστέρηση, ενημερώνει το μέλος για (α) την ύπαρξη της ασφαλιστικής σύμβασης, (β) την έκταση της ασφαλιστικής κάλυψης, (γ) τυχόν προληπτικά μέτρα και τυχόν άλλες προϋποθέσεις για τη διατήρηση της κάλυψης, και (δ) τη διαδικασία υποβολής αξιώσεων προς ασφάλισμα. (2) Το βάρος της απόδειξης ότι το μέλος της ομάδας έχει λάβει τις πληροφορίες που απαιτούνται από την παράγραφο 1 βαρύνει τον οργανωτή της ομάδας.

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Άρθρο 18:203 Καταγγελία της σύμβασης από τον ασφαλιστή (1) Για τους σκοπούς του άρθρου 2:604, η άσκηση του δικαιώματος καταγγελίας της σύμβασης από τον ασφαλιστή είναι δικαιολογημένη, μόνο εάν περιορίζεται στον αποκλεισμό της κάλυψης του μέλους της ομάδας, στο πρόσωπο του οποίου πραγματοποιήθηκε η ασφαλιστική περίπτωση. (2) Για τους σκοπούς του άρθρου 4:102 και του άρθρου 4:203 παράγραφος 1, η καταγγελία από τον ασφαλιστή έχει μοναδικό αποτέλεσμα να αποκλείσει από την κάλυψη εκείνα τα μέλη της ομάδας που δεν έλαβαν τα απαιτούμενα προληπτικά μέτρα ή εκείνα τα μέλη για τα οποία επήλθε αύξηση του κινδύνου κατά περίπτωση. (3) Για τους σκοπούς του άρθρου 12:102, η καταγγελία της ασφαλιστικής σύμβασης έχει μοναδικό αποτέλεσμα να αποκλείσει από την κάλυψη εκείνα τα μέλη της ομάδας που έχουν μεταβιβάσει τον τίτλο ιδιοκτησίας τους της ασφαλισμένης περιουσίας.

Άρθρο 18:204 Δικαίωμα συνέχισης της κάλυψης – ομαδική ασφάλιση ζωής (1) Εάν μία σύμβαση συμπληρωματικής ομαδικής ασφάλισης ζωής έχει λυθεί ή εάν ένα μέλος αποχωρήσει από την ομάδα, η κάλυψη λήγει μετά από τρεις μήνες ή με τη λήξη της ομαδικής ασφάλισης, ανάλογα με το ποιο γεγονός λάβει χώρα νωρίτερα. Όταν συμβεί τούτο, το μέλος της ομάδας έχει δικαίωμα σε ισοδύναμη κάλυψη στο πλαίσιο μιας νέας ατομικής σύμβασης με τον εν λόγω ασφαλιστή χωρίς νέα αξιολόγηση του κινδύνου. (2) Ο οργανωτής της ομάδας οφείλει να ενημερώνει τα μέλη της γραπτά, χωρίς υπαίτια καθυστέρηση, για (α) την επικείμενη λήξη της κάλυψης, σύμφωνα με τη σύμβαση της ομαδικής ασφάλισης ζωής, (β) τα δικαιώματά του που απορρέουν από την ως άνω παράγραφο 1 και (γ) τον τρόπο άσκησης των ως άνω δικαιωμάτων. (3) Εάν το μέλος της ομάδας δηλώσει πρόθεση να ασκήσει το δικαίωμα που του παρέχεται από το άρθρο 18:204 παράγραφος 1, η σύμβαση μεταξύ του ασφαλιστή και του μέλους της ομάδας εξακολουθεί να βρίσκεται σε ισχύ ως ατομική ασφαλιστική σύμβαση, με ασφαλιστικό ποσό που υπολογίζεται με βάση ατομική σύμβαση κατά το χρόνο αυτό, χωρίς να λαμβάνεται υπόψη η κατάσταση της υγείας ή η ηλικία του μέλους.

Τμήμα τρίτο: Επιλεκτική ομαδική ασφάλιση Άρθρο 18:301 Επιλεκτική ομαδική ασφάλιση: γενικές διατάξεις (1) Η επιλεκτική ομαδική ασφάλιση είναι συνδυασμός μίας σύμβασης πλαίσιο μεταξύ του ασφαλιστή και του οργανωτή της ομάδας και μίας ατομικής ασφαλιστικής σύμβασης που συνάπτεται στα πλαίσια της σύμβασης πλαίσιο μεταξύ του ασφαλιστή και των μελών της ομάδας. (2) Οι ΑΕΔΑΣ εφαρμόζονται στις επιμέρους ασφαλιστικές συμβάσεις, όπου ο οργανωτής της ομάδας και ο ασφαλιστής έχουν συμφωνήσει για την εφαρμογή τους, εκτός των άρθρων 18:101 και 18:102, όπου οι ΑΕΔΑΣ δεν εφαρμόζονται στις συμβάσεις πλαίσιο.

Άρθρο 18:302 Τροποποίηση όρων και προϋποθέσεων Η τροποποίηση των όρων και προϋποθέσεων της σύμβασης πλαίσιο δεν επηρεάζει τις ατομικές ασφαλιστικές συμβάσεις, εφόσον αυτές συνάφθηκαν σύμφωνα με τις προβλέψεις των άρθρων 2:603, 17:303 και 17:304, ανάλογα την περίπτωση.

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Άρθρο 18:303 Συνέχιση της κάλυψης Η καταγγελία της σύμβασης πλαίσιο ή η αποχώρηση ενός μέλους της δεν θα έχει ισχύ σε σχέση με την ασφαλιστική σύμβαση μεταξύ του ασφαλιστή και του μέλους της ομάδας.

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Hungarian version by Péter Takáts and Emese Kaufmann-Mohi

Az Európai biztosítási szerződési jog alapelvei Első rész: Az Európai biztosítási szerződési jog alapelvei (EBSZJA) által szabályozott összes szerződésre vonatkozó közös szabályok Első fejezet: Bevezető rendelkezések Első szakasz: A EBSZJA hatálya Második szakasz: Általános szabályok Harmadik szakasz: Igényérvényesítés

Második fejezet: A biztosítási szerződés kezdeti szakasza és időtartama

Tizedik fejezet: Visszakövetelési jog Tizenegyedik fejezet: Biztosítási szerződés harmadik személy javára Tizenkettedik fejezet: A biztosított kockázat Harmadik rész: Az összegbiztosításra vonatkozó közös szabályok Tizenharmadik fejezet: Alkalmazási kör

Első szakasz: Az ajánlattevő szerződést megelőző közlési kötelezettsége Második szakasz: A biztosító szerződést megelőző kötelezettségei Harmadik szakasz: A szerződés megkötése Negyedik szakasz: Visszamenőleges és előzetes fedezet Ötödik szakasz: A biztosítási kötvény Hatodik szakasz: A biztosítási szerződés időtartama Hetedik szakasz: A biztosító tájékoztatási kötelezettségei a szerződéskötés után

Negyedik rész: Felelősségbiztosítás Tizennegyedik fejezet: A felelősségbiztosítás általános szabályai Tizenötödik fejezet: Közvetlen igényérvényesítés és közvetlen kereset Tizenhatodik fejezet: Kötelező biztosítás

Harmadik fejezet: Biztosításközvetítők Negyedik fejezet: A biztosított kockázat

Első szakasz: Harmadik személyek Második szakasz: A szerződés kezdeti szakasza és időtartama Harmadik szakasz: Változások a szerződési időszak alatt Negyedik szakasz: Kapcsolat a nemzeti jogokkal Ötödik szakasz: A biztosítási esemény Hatodik szakasz: Díjmentesítés és visszavásárlás

Első szakasz: Kármegelőzési teendők Második szakasz: Kockázatnövekedés Harmadik szakasz: A kockázat csökkenése

Ötödik fejezet: Biztosítási díj Hatodik fejezet: A biztosítási esemény Hetedik fejezet: Elévülés Második rész: A kárbiztosításra vonatkozó közös szabályok Nyolcadik fejezet: A biztosítási összeg és a biztosított érték Kilencedik fejezet: A kártérítésre való jogosultság

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Ötödik rész: Életbiztosítás Tizenhetedik fejezet: Az életbiztosításra vonatkozó különös szabályok

Hatodik rész: Csoportos biztosítás Tizennyolcadik fejezet: A csoportos biztosításra vonatkozó különös szabályok Első szakasz: A csoportos biztosítás általános szabályai Második szakasz: Az automatikus csoportos biztosítási szerződés Harmadik szakasz: A fakultatív csoportos biztosítási szerződés

Hungarian: Az Európai biztosítási szerződési jog alapelvei

Első rész: Az Európai biztosítási szerződési jog alapelvei (EBSZJA) által szabályozott összes szerződésre vonatkozó közös szabályok Első fejezet: Bevezetö rendelkezések Első szakasz: A EBSZJA hatálya Cikk 1:101 Tárgyi hatály (1) A EBSZJA hatálya kiterjed a biztosítási szerződésekre általában, beleértve a kölcsönös biztosítást. (2) A EBSZJA hatálya nem terjed ki a viszontbiztosításra.

Cikk 1:102 Alávetés A EBSZJA akkor alkalmazható, ha a felek abban állapodtak meg, hogy szerződésüket annak vetik alá; e megállapodásra a nemzetközi magánjognak az alkalmazandó jog korlátozására vonatkozó szabályai nem alkalmazandók. Az 1:103 cikk keretei között a EBSZJA, mint egységes egész alkalmazandó, egyes szabályainak kizárása nem megengedett.

Cikk 1:103 Kogencia (1) Az 1:102 cikk második mondatától, továbbá a 2:104, 2:304, 13:101, 17:101 és 17:503 cikkektől nem lehet eltérni. A többi cikk csak a csalárdság jogkövetkezményeit illetően kényszerítő erejű. (2) A felek szerződése eltérhet valamennyi egyéb szabálytól, feltéve, hogy az eltérés a szerződő, a biztosított vagy a kedvezményezett részére nem hátrányos. (3) A 2. bekezdés értelmében vett eltérés azonban bármelyik fél érdekében megengedett a 2009/138/EC Irányelv 13. cikk 27. bekezdése szerinti nagykockázatokra vonatkozó szerződésekben. Csoportos biztosítás esetén csak azon biztosított személy vonatkozásában van helye eltérésnek, aki megfelel a 2009/138/EC Irányelv 13. cikk 27. bekezdése b) vagy c) pontjában írt feltételeknek.

Cikk 1:104 értelmezés A EBSZJA értelmezése szempontjából irányadó annak szövege, a szövegösszefüggések, célja és öszszehasonlító jogi háttere. Tekintettel kell lenni különösen a jóhiszemüség és a tisztesség elvének támogatására a bizosítási szektorban, a biztonságra a szerződéses viszonyokban, az alkalmazás egységességére és a szerződők megfelelő védelmére.

Cikk 1:105 Nemzeti jog és EBSZJA (1) Nem megengedett a nemzeti jog alkalmazása sem a EBSZJA korlátozására, sem annak kiegészítésére. Ez a szabály azonban nem érinti a nemzeti törvények kifejezetten a biztosítás egyes ágazataira vonatkozó kogens szabályait, amelyekre a EBSZJA különös szabályokat nem állapít meg. (2) A biztosítási szerződéssel kapcsolatos azon kérdéseket, amelyeket a EBSZJA kifejezetten nem szabályoz, az Európai Szerződési Jog Alapelveivel (PECL)1 összhangban kell rendezni, illetve, ez utóbbi alkalmazható szabályainak hiányában, a Tagországok jogainak közös általános elvei szerint.

1

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Második szakasz: Általános szabályok Cikk 1:201 A biztosítási szerződés (1) A “biztosítási szerződés” olyan szerződés, amelyben az egyik fél, a biztosító, igéretet tesz a másik félnek, a szerződőnek, hogy díj ellenében egy meghatározott kockázatra fedezetet nyújt; (2) A “biztosítási esemény” a biztosítási szerződésben meghatározott kockázat megvalósulása; (3) A “kárbiztosítás” olyan biztosítás, amelynek alapján a biztosító a biztosítási esemény következtében előállt vagyoni kárt téríti; (4) Az “összegbiztosítás” olyan biztosítás, amelynek alapján a biztosító a biztosítási esemény bekövetkeztekor meghatározott pénzösszeg fizetésére köteles. (5) A „felelősségbiztosítás” olyan biztosítás, amelyben a kockázat a biztosítottnak a károsult irányában fennálló jogi felelősségi kitettsége. (6) Az „életbiztosítás” olyan biztosítás, amelyben a biztosító helytállási kötelezettsége vagy a díjfizetés kizárólag a veszélyeztetett személy halálával, vagy túlélésével összefüggő biztosítási eseményre vonatkozik. (7) A „csoportos biztosítási szerződés” a biztosító és a csoportszervező között a vele közös kapcsolatban álló csoport-tagok érdekében létrejött szerződés. A csoportos biztosítás kiterjedhet a csoport-tagok családtagjaira is. (8) Az „automatikus csoportos biztosítási szerződés” olyan csoportos biztosítási szerződés, amelynek alapján a csoport-tagok a csoporthoz tartozásuk folytán külön további jogcselekmény nélkül biztosítottá válnak és a biztosítást nem utasíthatják vissza. (9) A „fakultatív csoportos biztosítási szerződés” olyan csoportos biztosítási szerződés, amelynek alapján a csoport-tagok vagy személyes nyilatkozatukkal, vagy azáltal válnak biztosítottá, hogy a biztosítást nem utasítják vissza.

Cikk 1:202 További fogalommeghatározások (1) A “biztosított” az a személy, akinek az érdekét a kárbiztosítás a kár ellen védi; (2) A “kedvezményezett” az a személy, akinek, összegbiztosítás esetében, a biztosítási összeg kifizethető; (3) A “veszélyeztetett személy” az a személy, akinek élete, egészsége, testi épsége vagy állapota biztosítva van; (4) A “károsult” az a személy, akinek haláláért, testi sérüléséért, vagy károsodásáért felelősségbiztosítás esetén a biztosított felel; (5) A “biztosítási ügynök” az a biztosításközvetítő, akit a biztosító foglalkoztat biztosítási szerződések kiajánlása, megkötése, vagy kezelése érdekében; (6) A “biztosítási díj” az a pénzösszeg, amit a szerződő a biztosítónak fizet a kockázatviselés ellenében; (7) A “szerződési futamidő“ azt a kötelezettségvállalási időszakot jelenti, ami a szerződés megkötésekor kezdődik és a megállapodás szerinti időtartam lejártával ér véget; (8) A “biztosítási időszak“ azt az időszakot jelenti, amelyre vonatkozóan a felek megállapodása szerint a biztosítási díjat meg kell fizetni; (9) A “felelősségvállalási időszak“ azt az időszakot jelenti, amelyre vonatkozóan a biztosítási fedezet fennáll. (10) A „kötelező biztosítás” az a biztosítás, amelyet törvény, vagy más szabály által előírt biztosítási kötelezettség teljesítéseként kötnek meg.

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Cikk 1:203 A szerződési dokumentáció nyelve és értelmezése2 (1) A biztosító által szolgáltatott összes irat világos és érthető kell, hogy legyen, továbbá azokat a szerződési tárgyalások nyelvén kell kiállítani. (2) Ha a biztosító által szolgáltatott bármely irat, vagy tájékoztatás szövegének jelentésével kapcsolatban kétség merül fel, a szerződő, a biztosított, vagy a kedvezményezett számára legkedvezőbb értelmezés az irányadó.

Cikk 1:204 A szerződési dokumentáció kézhezvétele: bizonyíték Annak a ténynek a bizonyítása, hogy a szerződő a biztosító által szolgáltatott szerződési dokumentációt kézhez vette, a biztosítót terheli.

Cikk 1:205 A nyilatkozatok formája Ha csak a EBSZJA erre vonatkozó különös szabályt nem tartalmaz, az ajánlattevő, a szerződő, a biztosított vagy a kedvezményezett által tett nyilatkozatok érvényességéhez formai követelmény nem fűződik.

Cikk 1:206 Beszámított ismeret Ha a szerződő, a biztosított vagy a kedvezményezett bármely személyt a szerződés létrejöttével, vagy teljesítésével kapcsolatban felelősségel ruház fel, azt az ismeretet, amelyet ez a személy a megbizatásának végrehajtása során szerzett vagy szereznie kellett, a szerződő, a biztosított vagy a kedvezményezett tudomásának kell tekinteni.

Cikk 1:207 Egyenlő bánásmód3 (1) A nemi hovatartozás, a terhesség, az anyaság, a nemzetiség és a faji, vagy népcsoportbéli eredet semmiképp nem eredményezhet a személy biztosítási díjai és a szolgáltatások között különbségeket. (2) A szerződés azon feltételei, ide értve a díjra vonatkozó feltételeket is, amelyek az 1. bekezdésben említett szabályokkal ellentétesek, a szerződőt vagy a biztosítottat nem kötelezik. A 3. bekezdésben írt esettől eltekintve, a szerződés, a nem diszkriminativ feltételek alapján a felek között továbbra is hatályban marad. (4) Az 1. bekezdésben írtak megszegése esetén a szerződő jogosult a szerződés felmondására. A felmondást a biztosítóval két hónapon belül írásban kell közölni attól számítva, hogy a sérelem a szerződő tudomására jutott.

Cikk 1:208 Genetikai vizsgálatok (1) A biztosító nem igényelheti, hogy az ajánlattevő, a szerződő fél, vagy a veszélyeztetett személy genetikai vizsgálatnak vesse alá magát, vagy egy ilyen vizsgálat eredményét közölje. A biztosító egyébként sem használhat fel ilyen információt a kockázat elbírálása céljából. (2) Az 1. bekezdés nem vonatkozik arra a személybiztosításra, ahol a veszélyeztetett személy 18 éves, vagy idősebb és az említett személyre vonatkozó biztosítási összeg nagyobb, mint 300,000 EUR, vagy a szerződés szerint fizetendő összeg magasabb, mint évi 30,000 EUR.

2 3

A 1:203 cikk 2. bekezdése a 93/13/EGK Irányelv 5. cikkének mintájára készült. Ez a cikk a 2004/113/EK Irányelv és az Európai Bíróság Test Achats [2011] ECR I-773 ítéletének mintájára készült.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Harmadik szakasz: Igényérvényesítés Cikk 1:301 Jogsértés megszüntetésére irányuló eljárás4 (1) A 2. bekezdésben meghatározott szervezetek jogosultak arra, hogy az illetékes nemzeti bíróságok vagy közigazgatási hatóságok előtt, a EBSZJA szabályai megsértésének megszüntetése vagy megtiltása iránt eljárást kezdeményezzenek, amennyiben ez az 1:102 cikkel összhangban alkalmazható. (2) Erre jogosult bármely olyan testület vagy szervezet, melyet a Bizottság az Európai Parlament és a Tanács 2009/22/EK (2009. április 23.) a fogyasztói érdekek védelme érdekében a jogsértés megszüntetésére irányuló eljárásokról szóló irányelv 4. cikke szerint elkészített jegyzékben szerepel.

Cikk 1:302 Bíróságon kívüli panasz- és jogorvoslati lehetőségek A EBSZJA alkalmazása nem zárja ki a bíróságon kívüli panasz és jogorvoslati lehetőségeket, amelyek a szerződő, a biztosított vagy a kedvezményezett rendelkezésére állnak.

Második fejezet: A biztosítási szerződés kezdeti szakasza és időtartama Első szakasz: Az ajánlattevő szerződést megelőző közlési kötelezettsége Cikk 2:101 Közlési kötelezettség (1) Az ajánlattevő a szerződéskötéskor köteles a biztosítóval minden olyan körülményt közölni, amelyet ismer, vagy kell, hogy ismerjen és amelyről a biztosító világos és pontos kérdéseket tett fel. (2) Az 1. bekezdésben említett körülmények kiterjednek azokra, amelyeket a biztosítandó személy ismert vagy ismernie kellett.

Cikk 2:102 A közlési kötelezettség megszegése (1) Ha a szerződő a 2:101 cikkben írt kötelezettségét megszegi, a 2. és az 5. bekezdés szabályaitól eltekintve, a biztosító jogosult a szerződés ésszerű módosítását javasolni, vagy a szerződést felmondani. A biztosító erre vonatkozó szándékát, a kötelezettségszegésről való tudomásszerzéstől vagy annak nyilvánvalóvá válásától számított egy hónapon belül írásban tartozik közölni, együtt a döntéssel járó jogi következményekről szóló tájékoztatással. (2) Ha a biztosító ésszerű módosítást javasol, a szerződés a módosító javaslat alapján marad érvényben, kivéve ha a szerződő az 1. bekezdésben megjelölt közlés kézhezvételétől számított egy hónapon belül a javaslatot visszautasítja. Ebben az esetben a biztosító jogosult a szerződést a szerződő írásbeli visszautasító nyilatkozatának kézhezvételétől számított egy hónapon belül felmondani. (3) A biztosító nem jogosult felmondani a szerződést, ha a szerződő a 2:101 cikkben írt kötelezettség megszegésében vétlen volt, kivéve ha a biztosító bizonyítja, hogy az ismeret birtokában a szerződést nem kötötte volna meg. (4) A szerződés felmondása egy hónappal azután lép hatályba, hogy az 1. bekezdésben megjelőlt közlést a szerződő kézhezvette. A szerződésmódosítás a felek megegyezése szerint lép hatályba. (5) Ha a biztosítási eseményt a kockázat egy olyan eleme okozza, amelyet a szerződő gondatlanságból közölni elmulasztott, vagy tévesen közölt, és a biztosítási esemény az előtt következik be, hogy a szerződés felmondása vagy módosítása hatályba lépne, a biztosítási összeg nem fizethető ki, ha a biztosító az ismeret birtokában a szerződést nem kötötte volna meg. Amennyiben azon4

Ez a cikk a 2009/22/EK Irányelv mintájára készült.

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ban a biztosító a szerződést magasabb díj ellenében vagy más feltételek mellett megkötötte volna, a biztosítási összeg arányosan vagy e feltételeknek megfelelően kifizethető.

Cikk 2:103 Kivételek A 2:102 cikkben megállapított jogkövetkezmények nem alkalmazhatók (a) olyan kérdéssel kapcsolatban, amely megválaszolatlan maradt, vagy a nyilvánvalóan hiányos vagy hibás tájékoztatásra; (b) a közölni elmulasztott, vagy pontatlanul közölt olyan adattal kapcsolatban, amely egy ésszerűen eljáró biztosító számára nem lényeges annak eldöntéséhez, hogy a szerződést megkösse-e, vagy azt a megállapodás szerinti feltételekkel tegye-e; (c) olyan adattal kapcsolatban, amelyről a biztosító alakította ki a szerződő téves feltevését, hogy azt nem kell közölnie; vagy (d) olyan adattal kapcsolatban, amelyet a biztosító ismert, vagy ismernie kellett volna.

Cikk 2:104 Csalárd kötelezettségszegés A 2:102 cikkben megállapított jogkövetkezmények sérelme nélkül, a biztosító mentesül a helytállási kötelezettség alól, a biztosítási díjra vonatkozó igénye fenntartásával, ha a szerződést a szerződő a 2:101 cikkben írt kötelezettsége csalárd megszegésével kötötte meg. Erről a biztosító írásban köteles tájékoztatást adni a szerződő részére, a csalásról való tudomásszerzés időpontjától számított két hónapon belül.

Cikk 2:105 Kiegészítő adatszolgáltatás A 2:102-2:104 cikkekben megállapított szabályok alkalmazandók a szerződő által a szerződés megkötésekor teljesített, a 2:101 cikkben meghatározott adatokon túlmenő adatszolgáltatásra is.

Cikk 2:106 Genetikai adatok Ez a szakasz nem alkalmazható az 1:208 cikk 1. bekezdésének hatálya alá tartozó genetikai vizsgálatok eredményeire.

Második szakasz: A biztosító szerződést megelőző kötelezettségei Cikk 2:201 A szerződési dokumentáció átadása5 (1) A biztosító köteles átadni az ajánlattevőnek a javasolt szerződési feltételek egy példányát, továbbá tájékoztatást adni a következőkről, amennyiben ezek lényegesek: (a) a szerződő felek neve és címe, különös tekintettel a biztosító székhelyére és jogi formájára, továbbá, amennyiben ennek jelentősége van, annak a fióknak a címére, ahol a szerződést megkötötték, vagy a fedezetet igazolták; (b) a biztosított és a kedvezményezett neve és címe; (c) a biztosítási ügynök neve és címe; (d) a biztosítás tárgya és a fedezett kockázatok; (e) a biztosítási összeg és bármely önrészesedés; (f) a biztosítási díj összege vagy annak kiszámítási módja; (g) a biztosítási díj esedékessége továbbá a fizetés helye és módja; 5

Ez a cikk a módosított 73/239/EGK Irányelv, a módosított 2002/83/EK Irányelv és a módosított 2002/65/EK Irányelv mintájára készült.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

(h) a biztosítási időszak, ide értve a szerződés megszűnésének eseteit, és a felelősségi időszak; (i) az ajánlat visszavonásának a joga vagy a szerződéstől való elàllás joga nem-életbiztosításnál a 2:303 cikknek, életbiztosításnál a 17:203 cikknek megfelelően; (j) hogy a szerződésre az EBSZJA irányadó jog; (k) az ajánlattevő bíróságon kívüli panasz és jogorvoslati lehetőségei és azok hozzáférhetősége; (l) kártalanítási (garancia) alap, vagy más kompenzációs megoldás fennállása. (2) Ha lehetséges, ezt a tájékoztatást az ajánlattevő részére úgy kell teljesíteni, hogy annak elegendő ideje legyen mérlegelni, hogy a szerződést megköti-e vagy sem. (3) Ha az ajánlattevő a biztosításra a biztosító által rendelkezésre bocsátott ajánlati lap és/vagy adatközlő útján tesz ajánlatot, a biztosító köteles az ajánlattevőnek a teljes kitöltött dokumentációt átadni.

Cikk 2:202 A fedezet hiányosságaira vonatkozó figyelemfelhívási kötelezettség (1) A szerződés megkötésekor a biztosító köteles az ajánlattevő figyelmét felhívni bármely eltérésre az ajánlott fedezet és az ajánlattevő igényei között, amelyet a biztosító ismer, vagy ismernie kellene, tekintettel a körülményekre és a szerződéskötés módjára, továbbá különösen arra, hogy az ajánlattevőt független biztosításközvetítő segítette-e. (2) Az 1. bekezdésben írt kötelezettség megszegése esetén (a) a biztosító köteles megtéríteni a szerződő összes, a figyelemfelhívási kötelezettség megszegéséből eredő kárát, kivéve ha a biztosító vétlen volt, és (b) a szerződő jogosult a szerződést a kötelezettségszegésről való tudomásszerzéstől számított két hónapon belül írásban felmondani.

Cikk 2:203 A kockázatviselés kezdetére vonatkozó figyelemfelhívási kötelezettség Ha az ajánlattevő alappal, de tévesen azt feltételezi, hogy a biztosító kockázatviselése az ajánlat átadásával kezdődik és a biztosító ezt felismerte, vagy fel kellett volna ismernie, a biztosító köteles azonnal felhívni az ajánlattevő figyelmét, hogy a biztosítási fedezet nem áll fenn a szerződés megkötése, illetve adott esetben az első díj befizetése előtt, ha csak előzetes fedezetvállalás nem történt. A biztosítót, ha a figyelemfelhívási kötelezettségét megszegi, a 2:202 Cikk 2 bekezdésének (a) pontja szerint felelősség terheli.

Harmadik szakasz: A szerződés megkötése Cikk 2:301 A szerződéskötés módja A biztosítási szerződés megkötése sem az érvényesség, sem a tanúsítás szempontjából nem igényel sem írásbeliséget, sem bármely más formai követelményt. A szerződés bármely módon bizonyítható, beleértve a szóbeli tanúsítást is.

Cikk 2:302 A biztosítási ajánlat visszavonása Az ajánlattevő a biztosítási ajánlatot visszavonhatja, ha a visszavonás hamarább érkezik meg a biztosítóhoz, mint az ajánlattevő a biztosítótól az elfogadó nyilatkozatot kézhez veszi.

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Hungarian: Az Európai biztosítási szerződési jog alapelvei

Cikk 2:303 Gondolkodási idő6 (1) A szerződő jogosult a szerződéstől az ajánlat elfogadásától, vagy a 2:501 cikkben említett dokumentáció kézhezvételétől számított két héten belül írásbeli nyilatkozattal elállni, attól függően, hogy melyik esemény következik be később. (2) A szerződőt nem illeti meg az elállás joga, ha (a) a szerződési futamidő kevesebb mint egy hónap; (b) a szerződés a 2:602 cikk szerint meghosszabításra került; továbbá (c) előzetes biztosítás, felelősségbiztosítás vagy csoportos biztosítás esetén.

Cikk 2:304 Tisztességtelen szerződési feltételek7 (1) Az egyedileg meg nem tárgyalt szerződési feltétel nem kötelezi a szerződőt, a biztosítottat vagy a kedvezményezettet, ha a jóhiszeműség és tisztesség követelményével ellentétben a felek szerződésből eredő jogaiban és kötelezettségeiben jelentős egyenlőtlenséget idéz elő a szerződő kárára, figyelembevéve a biztosítási szerződés természetét, a szerződés minden más feltételét és a körülményeket, amelyek a szerződés megkötésének idején fennálltak. (2) A szerződés továbbra is kötelezi a feleket ha az a tisztességtelen szerződési feltételek nélkül is működőképes. Ellenkező esetben a tisztességtelen feltételt olyan feltétellel kell helyettesíteni, amelyben ésszerűen eljáró felek megállapodtak volna, ha ismerték volna a szerződési feltétel tisztességtelen voltát. (3) A jelen cikk rendelkezéseit alkalmazni kell az olyan feltételekre, amelyek a biztosítási fedezetet korlátozzák vagy módosítják, de nem alkalmazhatók sem (a) fedezet mértéke és a biztosítási díj megfelelőségére, sem (b) az olyan feltételekre, amelyek a fedezet lényegi leírását vagy a megállapodás szerinti díjat határozzák meg, feltéve hogy ezek nyelvezete világos és érthető. (4) A szerződési feltétel minden esetben egyedileg meg nem tárgyalt feltételnek minősül, ha azt előzetesen megfogalmazták és emiatt a szerződő nem tudta annak tartalmát befolyásolni, különösen az előzetesen kidolgozott szabványszerződések esetében. Az a tény, hogy egy feltétel bizonyos elemeit vagy egy meghatározott feltételt egyedileg megtárgyaltak, nem zárja ki ennek a cikknek az alkalmazhatóságát a szerződés többi részére, ha a szerződés átfogó megítélése arra enged következtetni, hogy a szerződés mégiscsak egy előre kidolgozott szabványszerződés. Olyan esetekben, amikor a biztosító arra hivatkozik, hogy a szabvány feltételt egyedileg megtárgyalták, ennek bizonyítása a biztosítót terheli.

Negyedik szakasz: Visszamenőleges és előzetes fedezet Cikk 2:401 Visszamenőleges fedezet (1) A szerződéskötést megelőző időszakra nyújtott fedezet (visszamenőleges fedezet) esetében, ha a szerződéskötéskor a biztosítónak tudomása van arról, hogy biztosítási esemény nem történt, a szerződő csak a szerződéskötést követő időszakra köteles díjat fizetni. (2) Visszamenőleges fedezet esetében, ha a szerződéskötéskor a szerződőnek tudomása van arról, hogy a biztosítási esemény bekövetkezett, a biztosító a 2:104 cikk rendelkezései szerint, csak a szerződéskötést követő időszakra köteles fedezetet nyújtani.

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Ez a cikk a 2002/65/EK Irányelv mintájára készült. Ez a cikk a 93/13/EGK Irányelv mintájára készült.

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Cikk 2:402 Előzetes fedezet (1) Előzetes fedezetvállalás esetén a biztosító köteles a 2:501 cikk (a), (b), (d), (e) és (h) pontjaiban meghatározott adatokat tartalmazó fedezetigazolást kiadni, amennyiben azok a tárgyra vonatkoznak. (2) A 2:201-2:203 cikkek és, az előző bekezdést kivéve, a 2:501 cikk nem alkalmazhatók az előzetes fedezetvállalásra.

Cikk 2:403 Az előzetes fedezet időtartama (1) Ha az, aki biztosítási szerződésre ajánlatot tett, előzetes fedezetet kapott, ez a fedezet nem szűnhet meg azt megelőzően, hogy a biztosítási szerződés szerinti fedezet a megállapodás alapján elkezdődik, vagy az ajánlattevő az ajánlat végleges elutasítását a biztosítótól kézhezveszi. (2) Abban az esetben, ha olyan személy kap előzetes fedezetet aki nem az előzetes fedezetet vállaló biztosítónak tett biztosítási szerződésre ajánlatot, az előzetes fedezet szólhat a 2:601 (1) cikkben írtnál rövidebb időre. Az ilyen fedezetet bármelyik fél két hét felmondási idő mellett bármikor felmondhatja.

Ötödik szakasz: A biztosítási kötvény Cikk 2:501 Tartalom A biztosítási szerződés megkötésekor a biztosító köteles biztosítási kötvényt kiállítani és az általános szerződési feltételeket átadni, amennyiben azok nem szerepelnek a kötvényben. A kötvény a következő adatokat kell tartalmazza, amennyiben ezek a tárgyra vonatkoznak: (a) a szerződő felek neve és címe, különös tekintettel a biztosító székhelyére és jogi formájára, továbbá, amennyiben ennek jelentősége van, annak a fióknak a címére, ahol a szerződést megkötötték, vagy a fedezetet igazolták; (b) a biztosított és a kedvezményezett neve és címe; (c) a biztosításközvetítő neve és címe; (d) a biztosítás tárgya és a fedezett kockázatok; (e) a biztosítási összeg és bármely önrészesedés; (f) a biztosítási díj összege vagy annak kiszámítási módja; (g) a biztosítási díj esedékessége továbbá a fizetés helye és módja; (h) a biztosítási időszak, ide értve a szerződés megszűnésének eseteit, és a felelősségi időszak; (i) a szerződéstől való elállás joga nem-életbiztosításnál a 2:303 cikknek, életbiztosításnál a 17:203 cikknek megfelelően; (j) hogy a szerződésre az EBSZJA irányadó jog; (k) az ajánlattevő bíróságon kívüli panasz és jogorvoslati lehetőségei és azok hozzáférhetősége; (l) kártalanítási (garancia) alap vagy más kompenzációs megoldás fennállása.

Cikk 2:502 A kötvény hatásai (1) Ha a biztosítási kötvény tartalma az ajánlattól, vagy a felek közötti bármely korábbi megállapodástól eltér, úgy kell tekinteni, hogy a szerződő a kötvényben külön kiemelt eltéréseket elfogadta, ha csak a szerződő a kötvény kézhezvételétől számított egy hónapon belül kifogást nem emel. A biztosító köteles a szerződő figyelmét a külön kiemelt eltérések kifogásolásának lehetőségére vastag betűs nyomtatással a kötvényben felhívni.

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Hungarian: Az Európai biztosítási szerződési jog alapelvei

(2) Ha a biztosító nem a jelen Cikk 1. bekezdése szerint jár el, a szerződést, az adott esettől függően, a szerződő ajánlatában vagy a felek korábbi megállapodásában szereplő feltételek szerint megkötöttnek kell tekinteni.

Hatodik szakasz: A biztosítási szerződés időtartama Cikk 2:601 A biztosítási szerződés időtartama (1) A biztosítási szerződés időtartama egy év. Ha a kockázat természete megkívánja, a felek eltérő időszakban is megegyezhetnek. (2) Az 1. bekezdés nem vonatkozik a személybiztosításra.

Cikk 2:602 Meghosszabbítás (1) A 2:601 cikkben megjelölt egy éves időtartam lejárta után a szerződés automatikusan meghoszszabbodik, kivéve (a) ha a biztosító legalább egy hónappal a szerződés lejárta előtt írásban jelezte ellenkező szándékát és döntésének okát; vagy (b) ha a szerződő írásban jelezte elenkező szándékát legkésőbb a szerződés lejárata napján vagy a biztosító díjszámlájának kézhezvételétől számított egy hónapon belül, attól függően, hogy melyik időpont a későbbi. Ez utóbbi esetben az egy hónapos időszak csak akkor kezdődik, ha erre a figyelmet a számlán világosan, vastag betűvel szedve felhívták. (2) Az 1. bekezdés (b) pontjának alkalmazása szempontjából a nyilatkozat hatálya annak elküldésével áll be.

Cikk 2:603 A szerződési feltételek módosítása (1) Érvénytelen a 2:602 cikk szerint meghosszabbítható biztosítási szerződés azon kikötése, amely a biztosító számára lehetővé teszi a biztosítási díj vagy bármely más feltétel módosítását, kivéve, ha a kikötés szerint (a) a módosítás nem lép hatályba a soron következő meghosszabítás előtt, (b) a biztosító a módosítási szándékról a szerződőt legkésőbb egy hónappal a folyó szerződési időszak lejárta előtt írásban tájékoztatja és (c) a tájékoztatás felhívja a szerződő figyelmét az őt megillető felmondási jogra és annak következményeire, ha ezzel a jogával nem él. (2) Az 1. bekezdés alkalmazása nem érinti a módosító kikötések érvényességének más követelményeit.

Cikk 2:604 Felmondás a biztosítási esemény bekövetkezése után (1) Érvénytelen az olyan szerződési feltétel, amely lehetővé teszi a szerződés felmondását a biztosítási esemény bekövetkezése után, kivéve, ha (a) a felmondás jogát mindkét fél számára biztosítja és (b) a kötvény nem személybiztosításra vonatkozik. (2) A felmondásra vonatkozó rendelkezés és bármely felmondási jog érvényesítése egyaránt ésszerű kell, hogy legyen. (3) A felmondási jog megszűnik, ha az érintett fél a biztosítási eseményről való tudomásszerzéstől számított két hónapon belül a másik félnek írásban nem tett felmondó nyilatkozatot.

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(4) A biztosítási fedezet a 3. bekezdés szerinti írásbeli felmondó nyilatkozatot követő két hét elteltével szűnik meg.

Hetedik szakasz: A biztosító tájékoztatási kötelezettségei a szerződéskötés után Cikk 2:701 Általános tájékoztatási kötelezettség A biztosítási szerződés tartama alatt a biztosító köteles a szerződőt írásban indokolatlan késedelem nélkül tájékoztatni bármely, a nevét, címét, jogi formáját és a központi iroda, valamint a szerződést megkötő ügynökség vagy a fiókiroda címét érintő változásról.

Cikk 2:702 További tájékoztatás kérelemre (1) A szerződő kérelmére, a biztosító köteles indokolatlan késedelem nélkül tájékoztatást adni (a) minden, a szerződés teljesítése szempontjából lényeges ügyről, amennyiben ez a biztosítótól ésszerűen elvárható; (b) a biztosítónak az ugyanolyan típusú biztosítási szerződésekre vonatkozó új szabvány feltételeiről, mint amilyet a szerződő megkötött. (2) A szerződő kérelmét és a biztosító válaszát egyaránt írásban kell közölni.

Harmadik fejezet: Biztosításközvetítők Cikk 3:101 A biztosítási ügynökök jogköre (1) A biztosítási ügynök jogosult a biztosító nevében minden olyan ügyben eljárni, amely a biztosításgazdaság jelenlegi gyakorlata szerint munkaköréhez tartozik. Az ügynök jogkörének bármely korlátozásáról a szerződőt külön okiratban világosan tájékoztatni kell. Mindazonáltal, a biztosítási ügynök jogköre legalább a tényleges feladatai ellátására ki kell, hogy terjedjen. (2) A biztosítási ügynök jogköre minden esetben ki kell, hogy terjedjen: (a) a szerződő tájékoztatására és tanáccsal való ellátására, és (b) a szerződő nyilatkozatainak átvételére. (3) Az lényeges ismeret, amelyről a biztosítási ügynök foglalkozásának gyakorlása során tudomást szerez, vagy tudomást kellene, hogy szerezzen, a biztosító tudomásának tekintendő.

Cikk 3:102 A bizosító magát függetlennek kiadó ügynöke A biztosító felelős, ha ügynöke független biztosításközvetítőnek adja ki magát és eljárása során megszegi az ilyen közvetítőket a törvény alapján terhelő kötelezettségeket.

Negyedik fejezet: A bizosított kockázat Első szakasz: Kármegelőzési teendők Cikk 4:101 Kármegelőzési teendők: meghatározás Kármegelőzési teendők alatt a biztosítási szerződés olyan kikötései értendők, amelyek – függetlenül attól, hogy a biztosító helytállási kötelezettsége előfeltételei-e vagy sem – a szerződő vagy a bizto-

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Hungarian: Az Európai biztosítási szerződési jog alapelvei

sított részére előírják, hogy a biztosítási esemény bekövetkezte előtt meghatározott magatartást tanúsítson vagy ne tanúsítson.

Cikk 4:102 A biztosító felmondási joga (1) Érvénytelen a szerződés azon kikötése, amely a biztosítót a kármegelőzési teendők elmulasztása esetére a szerződés felmondására jogosítja fel, kivéve, ha a szerződő vagy a biztosított e kötelezettségét a károkozás szándékával, vagy gondatlanságból annak tudatában szegte meg, hogy a kár bekövetkezhet. (2) A felmondást a szerződővel írásban kell közölni, attól az időponttól számitott egy hónapon belül, hogy a kármegelőzési teendők elmulasztásáról a biztosító tudomást szerzett vagy az számára nyilvánvalóvá vált. A szerződés felmondásával egyidőben a biztosítási fedezet is megszűnik.

Cikk 4:103 A biztosító mentesülése a helytállási kötelezettség alól (1) A kármegelőzési teendők elmulasztása esetén a biztosítót a helytállási kötelezettség alól egészen vagy részben mentesítő szerződési kikötés csak akkor érvényes, ha a kárt a szerződő vagy a biztosított mulasztása a kár előidézésének a szándékával, vagy gondatlanságból, annak tudatában okozta, hogy a kár bekövetkezhet. (2) Attól függően, hogy a szerződési kikötés világosan rendelkezzék a biztosítási összegnek a vétkesség súlyával arányos mértékű csökkentéséről, a szerződő, illetve a biztosított térítésre a kármegelőzési teendők pusztán gondatlan elmulasztásával okozott kár esetén igényt tarthat.

Második szakasz: Kockázatnövekedés Cikk 4:201 A kockázat növekedésére vonatkozó feltételek Érvénytelen a biztosítási szerződésnek a biztosított kockázat növekedésére vonatkozó kikötése, kivéve ha a biztosítási szerződésben meghatározott kockázat növekedéséről van szó és a növekedés lényeges.

Cikk 4:202 Bejelentési kötelezettség a kockázat növekedéséről (1) Ha a biztosított kockázat növekedésére vonatkozó kikötés a kockázatnövekedés bejelentését előírja, a bejelentést – a körülményekhez képest – a szerződő, a biztosított vagy a kedvezményezett köteles teljesíteni, feltéve, hogy a bejelentésre kötelezett személy a biztosítási fedezet fennállásáról és a kockázat növekedéséről tudott, vagy tudnia kellett volna. Más személy által tett bejelentés is hatályos. (2) Ha a kikötés szerint a bejelentést meghatározott időn belül kell megtenni, az előírt időnek ésszerűnek kell lennie. A bejelentés hatálya annak elküldésével áll be. (3) A bejelentési kötelezettség megszegése esetén a biztosító ezen az alapon nem mentesülhet az olyan, később bekövetkező kárért való helytállási kötelezettség alól, amelyet biztosítási esemény okoz, kivéve, ha a kár a kockázat növekedésére vonatkozó bejelentési kötelezettség elmulasztásával okozati összefüggésben áll.

Cikk 4:203 Felmondás és mentesülés (1) Ha a szerződés lehetővé teszi, hogy a biztosított kockázat növekedése esetén a biztosító a szerződést felmondja, a biztosító a felmondás jogát a szerződőhöz intézett írásbeli nyilatkozattal

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gyakorolhatja, attól az időponttól számított egy hónapon belül, hogy a kockázat növekedéséről tudomást szerzett, vagy az nyilvánvalóvá vált. (2) A biztosító kockázatviselése a felmondás közlését követő egy hónap elteltével, vagy azonnali hatállyal szűnik meg, amennyiben a szerződő a 4:202 cikkben meghatározott kötelezettségét szándékosan szegte meg. (3) Ha a biztosítási eseményt még a kockázatviselés megszűnése előtt olyan megnövekedett kockázat okozta, amelyről a szerződő tudott, vagy tudnia kellett volna, a biztosító mentesül a helytállási kötelezettség alól, ha a megnövekedett kockázatot egyébként nem vállalta volna. Mindazonáltal, ha a biztosító a megnövekedett kockázatot magasabb díj ellenében vagy más feltételekkel vállalta volna, a biztosítási összeg arányos mértékben, vagy e más feltételek szerint kifizetendő.

Harmadik szakasz: A kockázat csökkenése Cikk 4:301 A kockázat csökkenésének következményei (1) Ha a kockázat lényegesen csökken, a szerződő jogosult kérni a biztosítási díj arányos csökkentését a hátralévő szerződési időszakra. (2) Ha a felek a kérelem előterjesztését követő egy hónapon belül nem állapodnak meg a biztosítási díj arányos csökkentésében, a szerződő jogosult a szerződést írásban, a kérelem előterjesztésétől számított két hónapon belül felmondani.

Ötödik fejezet: Biztosítási díj Cikk 5:101 Az első vagy az egyszeri díj Ha a biztosító a szerződés létrejöttét, vagy kockázatviselése kezdetét az első vagy az egyszeri díj kifizetéséhez köti, ez a feltétel csak akkor érvényes, ha (a) a feltételt az ajánlattevővel írásban, érthető és világos nyelvezettel közlik és felhívják a figyelmét, hogy a fedezet a díj befizetéséig nem áll fenn, és (b) az (a) pont követelményeinek megfelelő számla kézhezvételét követően két hét eltelt anélkül, hogy a fizetés megtörtént volna.

Cikk 5:102 A folytatólagos díj (1) Az a kikötés, amely a biztosítót a folytatólagos díj fizetésének elmulasztása esetén a helytállási kötelezettség alól mentesíti, csak akkor érvényes, ha (a) a szerződőnek a fizetendő díj pontos összegét és a fizetési határidőt tartalmazó számlát küldenek; (b) a díjfizetési határidő lejártával a szerződőnek a biztosító az esedékes díj pontos összegét és legfeljebb két hét póthatáridőt tartalmazó emlékeztetőt küld, amelyben felhívja a szerződő figyelmét, hogy nemfizetés esetén a biztosítási fedezet azonnali hatállyal felfüggesztésre kerül, és (c) a póthatáridő a (b) pont követelményei szerint fizetés nélkül eltelt. (2) A biztosító a helytállási kötelezettség alól az 1. bekezdés (b) pontjában írt póthatáridő lejártával mentesül. A biztosítási fedezet a jövöre nézve feléled, amint a szerződő az esedékes díjat kifizeti, ha csak a szerződés az 5:103 cikk szerint nem szűnt meg.

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Cikk 5:103 A szerződés felmondása (1) Ha az 5:101 cikk (b) pontjában, vagy az 5:102 Cikk 1. bekezdésének (b) pontjában írt határidő díjfizetés nélkül telik el, a biztosító jogosult a szerződést írásban felmondani, feltéve, hogy az 5:101 cikk (b) pontjában előírt számla, illetve az 5:102 Cikk 1. bekezdésének (b) pontjában előírt emlékezető a biztosító felmondási jogát tartalmazza. (2) A szerződés megszűntnek kell tekinteni, ha csak a biztosító a díjkövetelést bírósági úton nem érvényesíti, (a) az első díj esetén két hónappal az 5:101 cikk (b) pontjában említett határidő lejártát követően, vagy (b) a folytatólagos díj esetén két hónappal az 5:102 Cikk 1. bekezdésének (b) pontjában említett póthatáridő lejártával.

Cikk 5:104 A díj oszthatósága Ha a biztosítási szerződést a szerződési futamidő lejárta előtt felmondják, a biztosító csak a felmondást megelőző időszakra vonatkozó díjra jogosult.

Cikk 5:105 A díjfizetési jogosultság A biztosító nem jogosult a harmadik fél által történt befizetést visszautasítani, ha (a) a harmadik fél a szerződő egyetértésével jár el; vagy (b) a harmadik félnek jogos érdeke fűződik a biztosítási fedezet fenntartásához és a szerződő a fizetést elmulasztotta vagy nyilvánvaló, hogy nem fog fizetni amikor az esedékes.

Hatodik fejezet: A biztosítási esemény Cikk 6:101 A biztosítási esemény bejelentése (1) A biztosítási esemény bekövetkezését a szerződő, a biztosított, illetve a kedvezményezett köteles a biztosítónak bejelenteni, feltéve, hogy a bejelentésre kötelezett személy a biztosítási fedezet fennállásáról és a biztosítási esemény bekövetkezéséről tudott, vagy arról tudnia kellett volna. Más személy részéről történt bejelentés is hatályos. (2) A biztosítási eseményt indokolatlan késedelem nélkül kell bejelenteni. A bejelentés az elküldéssel válik hatályossá. Ha a szerződés szerint a bejelentést meghatározott időn belül kell megtenni, az előírt időnek ésszerűnek kell lennie semmi esetben sem lehet öt napnál rövidebb. (3) A fizetendő biztosítási összeget a biztosító csökkentheti annyiban, amennyiben bizonyítja, hogy neki az indokolatlan késedelem kárt okozott.

Cikk 6:102 Együttműködés a kárrendezésben (1) A szerződő, a biztosított, illetve a kedvezményezett köteles a biztosítóval együttműködni a biztosítási esemény kivizsgálásában a biztosító indokolt kéréseinek teljesítése útján, különös tekintettel: – a biztosítási esemény okaira és következményeire vonatkozó adatszolgáltatással; – a biztosítási esemény okirati vagy más úton történő bizonyításával; – a biztosítási eseménnyel érintett helyszín hozzáférhetővé tételével. (2) Az 1. bekezdésben írt kötelezettség bármely megszegése esetén, a 3. bekezdésre figyelemmel, a fizetendő biztosítási összeget a biztosító csökkentheti annyiban, amennyiben bizonyítja, hogy neki a kötelezettségszegés kárt okozott.

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(3) Ha az 1. bekezdésben írt kötelezettséget károkozás szándékával, vagy gondatlanságból annak tudatában szegték meg, hogy kár következhet be, a biztosító a bitosítási összeg kifizetése alól mentesül.

Cikk 6:103 A kártérítési igény elfogadása (1) A biztosító minden ésszerű lépést köteles megtenni a kár mielőbbi rendezése érdekében. (2) A kártérítési igényt elfogadottnak kell tekinteni, ha csak azt a biztosító írásban, indokainak közlése mellett nem utasítja vissza, vagy halasztja el a vonatkozó okiratok átadása és más információk szolgáltatása után egy hónapon belül.

Cikk 6:104 A teljesítés ideje (1) A kárigény elfogadása esetén a biztosító köteles indokolatlan késedelem nélkül a fizetést, illetve az igért szolgáltatást teljesíteni. (2) Ha a kárigény teljes mértékben még nem határozható meg, de az igénylő annak legalább egy részére jogosult, ezt a részt indokolatlan késedelem nélkül ki kell fizetni vagy teljesíteni. (3) A biztosítási összeget, akár az 1., akár a 2. bekezdés szerint, legkésőbb egy héttel a kárigény teljes, illetve részbeni elfogadása és számszerűsítése után ki kell fizetni.

Cikk 6:105 Késedelem8 (1) Ha a biztosítási összeg nem kerül kifizetésre a 6:104 cikk szerint, az igénylő jogosult annak késedelmi kamatára a fizetés esedékességének időpontjától a fizetés teljesítéséig, éspedig az azt nyolc százalékponttal meghaladó kamatlábon, amit az Európai Központi Bank által az adott félév első naptári napja előtt lebonyolított legutóbbi fő refinanszírozási műveletnél alkalmaztak. (2) Az igénylő jogosult a biztosítási összeg késedelmes kifizetése által okozott bármely járulékos vesztesége megtérítésére.

Hetedik fejezet: Elévülés Cikk 7:101 Díjperlés A biztosítási díj fizetésére vonatkozó igény a fizetés esedékességétől számított egy év után elévül.

Cikk 7:102 A biztosítási szolgáltatások teljesítése iránti kereset (1) A biztosítási szolgáltatások teljesítése iránti igény általában három évvel az után évül el, hogy a biztosító a 6:103 cikknek megfelelően a kárigényre vonatkozó végső döntését meghozta vagy azt meg kellett volna hoznia. Mindazonáltal, nem indítható kereset a biztosítási esemény bekövetkezésétől számított tíz év elteltével, kivéve az életbiztosítást, ahol ez az időszak 30 év. (2) Az életbiztosítás visszavásárlási összegének kifizetése iránti igény három évvel azután évül el, hogy a szerződő a biztosítótól a végleges elszámolást kézhez vette. Mindazonáltal, kereset az életbiztosítási szerződés megszünését követő 30 év elteltével nem indítható.

8

Ez a cikk a 2000/35/EK Irányelv 3. cikk 2. bekezdés (d) pontjának mintájára készült.

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Cikk 7:103 Az elévülést érintő más kérdések A EBSZJA 7:101 és 7:102 cikkeitől eltekintve, az Európai Szerződési Jog Alapelveinek (PECL)9 14:10114:503 cikkeit kell alkalmazni a biztosítási szerződésből származó igényekre. A biztosítási szerződés a EBSZJA 1:103 Cikk 2. bekezdésének megfelelően eltérhet ezektől a rendelkezésektől.

Második rész: A kárbiztosításra vonatkozó közös szabályok Nyolcadik fejezet: A biztosítási összeg és a biztosított érték Cikk 8:101 A kártérítés felső határa (1) A biztosító nem köteles többet fizetni annál, mint amennyi a biztosított tényleges kárának megtérítéséhez szükséges. (2) Érvényes a biztosított vagyontárgy értékét meghatározó szerződési kikötés akkor is, ha ez az érték a biztosított vagyontárgy tényleges értékét meghaladja, feltéve, hogy a szerződő vagy a biztosított az érték megállapításakor nem járt el csalárdul vagy szándékos félrevezetéssel.

Cikk 8:102 Alulbiztosítás (1) A biztosító a biztosítási összeg erejéig köteles helytállni minden kárért akkor is, ha a biztosítási esemény bekövetkeztekor a biztosítási összeg kisebb, mint a biztosított vagyontárgy értéke. (2) Amennyiben a biztosító az 1. bekezdésnek megfelelően ajánl fedezetet, vagylagosan jogosult azon az alapon is biztosítást ajánlani, hogy a fizetendő kártérítést abban az arányban korlátozza, ahogy a biztosítási összeg viszonyul a vagyontárgy tényleges kárkori értékéhez. Továbbá, ebben az esetben, a kárenyhítés költségeit, a 9:102 cikk meghatározása szerint, ugyanilyen arányban kell megtéríteni.

Cikk 8:103 A feltételek módosítása túlbiztosítás esetén (1) Ha a biztosítási összeg meghaladja a biztosítás szerint kifizethető legmagasabb kárösszeget, bármelyik fél jogosult kérni a biztosítási összeg leszállítását és a szerződési időszak hátralévő részére fizetendő díj megfelelő csökkentését. (2) Ha a felek egy hónapon belül nem egyeznek meg ilyen csökkentésben, bármelyik fél jogosult a szerződés felmondására.

Cikk 8:104 Többszörös biztosítás (1) Ha ugyanazt az érdeket több biztosító egymástól függetlenül biztosítja, a biztosított jogosult igényét ezek közül a biztosítók közül egyhez vagy többhöz benyújtani az általa elszenvedett tényleges kár erejéig. (2) A biztosító, amelyhez a kárigényt benyújtották, az általa kiállított kötvényben megállapított biztosítási összeg erejéig köteles fizetést teljesíteni, a kárenyhítési költségeket is, ha ilyen van, beleértve, azon jogainak sérelme nélkül, hogy bármely más biztosítótól térítést igényeljen. (3) A biztosítók egymás közötti viszonyában, a 2. bekezdésben említett jogoknak és kötelezettségeknek arányban kell lenniük azokkal az összegekkel, amelyek mértékéig a biztosított irányában külön-külön felelnek. 9

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Kilencedik fejezet: A kártérítésre való jogosultság Cikk 9:101 Károkozás (1) Sem a szerződő, sem a biztosított nem jogosult a kártérítésre annyiban, amennyiben a kár az ő általa, akár a károkozás szándékával, akár gondatlanságból annak tudatában elkövetett cselekmény vagy mulasztás következménye, hogy a kár bekövetkezhet. (2) Attól függően, hogy a kötvény világos kikötése a biztosítási összegnek a vétkesség súlyával arányos mértékű csökkentése lehetőségéről rendelkezik, a szerződő, illetve a biztosított igényelhet térítést bármely gondatlan cselekménnyel vagy mulasztássál okozott kár esetén. (3) Az 1. és a 2. bekezdések alkalmazásában, a károkozás kiterjed a kármegelőzés és a kárenyhítés elmulasztására is.

Cikk 9:102 A kárenyhítés költségei (1) A biztosító köteles megtéríteni a szerződőnek vagy a biztosítottnak a kárenyhítési költségeket, illetve a kárenyhítési intézkedésekkel okozott veszteségeket annyiban, amennyiben a szerződő vagy a biztosított az adott körülmények között a tett intézkedéseket okkal tekinthette ésszerűeknek, még akkor is, ha nem vezettek eredményre. (2) A biztosító köteles a szerződőt vagy a biztosítottat minden, az 1. bekezdés szerint tett intézkedésre vonatkozóan kártalanítani akkor is, ha a fizetendő összeg a biztosítási kártérítéssel együtt a biztosítási összeget meghaladja.

Tizedik fejezet: Visszakövetelési jog Cikk 10:101 Visszkereset (1) A 3. bekezdésben írt korlátok között a biztosító, amennyiben a biztosítottat kártalanította, viszszkeresetét a kárért felelős harmadik személlyel szemben érvényesítheti. (2) Amennyiben a biztosított az ilyen harmadik személlyel szemben fennálló jogáról lemond és ezzel a biztosító viszakövetelési jogát veszélyezteti, erre a kárra vonatkozóan a biztosítási szolgáltatásra való jogát elveszíti. (3) A biztosító nem jogosult visszakövetelési jogot érvényesíteni a szerződővel vagy a biztosítottal közös háztartásban élő személlyel, illetve a szerződővel vagy a biztosítottal ezzel egyenértékű társadalmi kapcsolatban lévő személlyel, avagy a szerződő, vagy a biztosított alkalmazottjával szemben, kivéve ha a biztosító bizonyítja, hogy a kárt ez a személy szándékosan vagy gondatlanságból, annak tudatában követte el, hogy a kár bekövetkezhet. (4) A biztosító viszakövetelési jogának érvényesítésével nem okozhat hátrányt a biztosítottnak.

Tizenegyedik fejezet: Biztosítási szerződés harmadik személy javára Cikk 11:101 A biztosított jogosultságai (1) Ha a biztosítási szerződést a szerződőtől különböző más személy javára kötik, ez a harmadik személy jogosult a biztosítási összegre, amennyiben a biztosítási esemény bekövetkezik. (2) Az ilyen biztosítási fedezetet a szerződő jogosult visszavonni, kivéve ha (a) a kötvény másképpen rendelkezik; vagy (b) a biztosítási esemény már bekövetkezett.

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(3) A visszavonás akkor hatályosul, amikor az erről szóló írásbeli nyilatkozatot a biztosító kézhezveszi.

Cikk 11:102 A biztosított tudomása A 11:101 cikk szerint biztosított személy tudomása nem tudható be a szerződőnek, amikor a szerződő a biztosító részére köteles tájékoztatást teljesíteni, kivéve, ha ennek a személynek tudomása van saját biztosítotti helyzetéről.

Cikk 11:103 Egy biztosított személy kötelezettségszegése Az egyik biztosított személy kötelezettségszegése nem érintheti hátrányosan a többi személyt, akire ugyanaz a biztosítási szerződés vonatkozik, kivéve, ha a kockázatot egyetemlegesen biztosították.

Tizenkettedik fejezet: A biztosított kockázat Cikk 12:101 A biztosított kockázat hiánya (1) Ha a biztosított kockázat sem a szerződés megkötésekor, sem a biztosítási időszak során bármely más időpontban sem létezik, a biztosítási díjat nem kell megfizetni. A biztosító azonban méltányos térítésre jogosult a felmerült kiadásaiért. (2) Ha a biztosított kockázat megszűnik a biztosítási időszak alatt, a szerződést a biztosító részére teljesített erről szóló értesítés kézhezvételének időpontjában megszüntnek kell tekinteni.

Cikk 12:102 Tulajdonátruházás (1) Ha a biztosított vagyontárgy tulajdonjogát átruházzák, a biztosítási szerződés egy hónappal az átruházás időpontját követően szűnik meg, ha csak a szerződő és az a személy, akire a tulajdonjogot átruházzák, nem állapodik meg a szerződés egy korábbi időpontban történő megszűnéséről. Ez a szabály nem alkalmazható, ha a biztosítási szerződést a jövőbeli jogosult javára kötötték. (2) Az a személy, akire a tulajdonjogot átruházzák, attól az időponttól kezdve minősül biztosítottnak, amikor a biztosított vagyontárgyhoz kapcsolódó veszélyviselés is átszáll. (3) Az 1. és a 2. bekezdés rendelkezései nem alkalmazhatók (a) ha a biztosító, a szerződő és a jogutód másképp állapodnak meg; vagy (b) ha a vagyontárgy tulajdonjoga öröklés címén száll át.

Harmadik rész: Az összegbiztosításra vonatkozó közös szabályok Tizenharmadik fejezet: Alkalmazási kör Cikk 13:101 összegbiztosítás Csak a baleset-, egészség-, élet-, házassági, születési vagy más személybiztosítások köthetők meg összegbiztosításként.

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Negyedik rész: Felelősségbiztosítás Tizennegyedik fejezet: A felelősségbiztosítás általános szabályai Cikk 14:101 Jogi képviseleti költségek A biztosító a 9:102 cikk szerint felmerült jogi képviseleti költségeket köteles megtéríteni.

Cikk 14:102 A károsult védelme A biztosítási igénynek a kötvény alapján a biztosító és a szerződő fél, vagy a biztosított között történő bármely rendezése – akár megállapodás, jogról való lemondás, fizetés, vagy más hasonló jogcselekmény útján – a károsult jogi helyzetét nem érinti, kivéve, ha ahhoz a károsult írásban hozzájárult.

Cikk 14:103 Károkozás (1) Sem a szerződő fél, sem a biztosított nem jogosult térítésre annyiban, amennyiben a kárt tevékenységével, vagy mulasztásával szándékosan maga okozta; ugyanez vonatkozik arra az esetre is, ha a biztosítónak a kár bekövetkezését követően adott utasításait annak tudatában nem tartják be, hogy enélkül a kár valószínűleg növekedhet. (2) Az 1. bekezdés szempontjából károkozásnak minősül a kármegelőzési vagy a kárenyhítési kötelezettség megszegése is. (3) Ha csak a kötvény egyértelműen nem írja elő, hogy a biztosítási összeget a vétkességgel arányosan csökkenteni lehet, a szerződő fél, illetve a biztosított igényt tarthat a térítésre, ha a biztosítónak a kár bekövetkezését követően adott utasításait enyhe gondatlanságból nem tartotta be.

Cikk 14:104 A felelősség elismerése (1) Hatálytalan a biztosítási szerződés azon rendelkezése, amelynek megfelelően a biztosító helytállási kötelezettsége alól mentesül, ha a szerződő fél, illetve a biztosított a károsult igényét elismeri, vagy teljesíti. (2) A szerződő fél, illetve a biztosított és a károsult megállapodása a biztosítóra csak akkor hat ki, ha ahhoz hozzájárult.

Cikk 14:105 Engedményezés Hatálytalan a biztosítási szerződés azon rendelkezése, amely a biztosított részére nem teszi lehetővé, hogy az őt a kötvény alapján megillető jogait másra engedményezze.

Cikk 14:106 Kármentességi bónusz / bonus-malus rendszerek (1) A szerződő felet megilleti az a jog, hogy az elmúlt öt évre nézve a kártörténeti adataira vonatkozó igazolást bármikor kérje. (2) Ha a biztosító a díjat, vagy a szerződés más feltételeit a kötvény alapján kifizetett kárigények számától, vagy összegétől teszi függővé, köteles figyelembe venni a szerződő félnek az elmúlt öt év során más biztosítóknál kialakult kártörténeti adatait.

Cikk 14:107 Biztosítási esemény (1) A biztosítási esemény a felelősségvállalási időszak alatt bekövetkező, a biztosított felelősségét kiváltó jogi tény, kivéve, ha a felek a biztosítási szerződésben a biztosítási eseményt üzleti, vagy szakmai okból más kritériumra – például a károsult által előterjesztett kárigényre – hivatkozással határozzák meg.

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(2) Abban az esetben, ha a felek a biztosítási eseményt a károsult által előterjesztett kárigényre hivatkozással határozzák meg, a biztosításnak fedeznie kell a felelősségvállalási időszak, vagy az azt követő legalább öt év alatt bejelentett kárigényeket, amennyiben azok a felelősségvállalási időszak lejáratát megelőzően történt jogi tényen alapulnak. A biztosítási szerződés kizárhatja a fedezetet azon körülmények vonatkozásában, amelyekről a szerződéskötéskor az ajánlattevő tudott, vagy tudnia kellett volna, ha azok várhatóan kárigényt alapozhattak meg.

Cikk 14:108 A biztosítási összeget meghaladó kárigény (1) Abban az esetben, ha a több károsultat megillető összes fizetési kötelezettség a biztosítási öszszeget meghaladja, a kifizetéseket arányosan kell csökkenteni. (2) Az a biztosító, amely anélkül, hogy a további károsultakról tudott volna, jóhiszeműen fizetést teljesített az általa ismert károsultaknak, a további károsultak irányában csak a biztosítási összegből még rendelkezésre álló mértékig felelős.

Tizenötödik fejezet: Közvetlen igényérvényesítés és közvetlen kereset Cikk 15:101 Közvetlen igényérvényesítés és kifogások (1) Amennyiben a szerződő fél, illetve a biztosított felelős, a károsult jogosult kárigényét a biztosítási szerződés alapján közvetlenül a biztosítóval szemben érvényesíteni: (a) kötelező biztosítás esetében, vagy (b) ha a szerződő fél, vagy a biztosított fizetésképtelen, vagy (c) ha a szerződő felet, vagy a biztosítottat felszámolták, vagy megszűnt, vagy (d) a károsult személyi sérülést szenvedett, vagy (e) az irányadó jog a közvetlen igényérvényesítést megengedi. (2) A biztosító a károsulttal szemben érvényesítheti a biztosítási szerződésből eredő kifogásokat, ha csak ezt a biztosítási kötelezettséget előíró szabályok nem tiltják. A biztosító azonban nem hivatkozhat kifogásként a szerződő fél és/vagy a biztosított által a káreseményt követően tanúsított magatartásra.

Cikk 15:102 Tájékoztatási kötelezettség (1) A károsult erre irányuló igénye esetén a szerződő fél és a biztosított köteles megadni a közvetlen igényérvényesítéshez szükséges tájékoztatásokat. (2) A biztosító köteles késedelem nélkül, de legkésőbb a kárigény kézhezvételétől számított két héten belül írásban tájékoztatni a szerződő felet a benyújtott kárigényről. Ha a biztosító ezt a kötelezettségét megszegi, a károsult igényének elismerése vagy teljesítése a szerződő fél jogait nem érinti. (3) Ha a szerződő fél a 2. bekezdésben írt tájékoztatás kézhezvételétől számított egy hónapon belül nem ad tájékoztatást a biztosító részére a biztosítási eseményről, úgy kell tekinteni, hogy a kárigénynek a biztosító általi közvetlen rendezéséhez hozzájárult. Ez a szabály azokra a biztosítottakra is kiterjed, akik ezt a tájékoztatást időben megkapták.

Cikk 15:103 Mentesülés A biztosítót a biztosítási összegnek a szerződő fél, illetve a biztosított részére történt kifizetése a károsulttal szemben fennálló kötelezettsége alól csak akkor mentesíti, ha a károsult (a) a közvetlen igényérvényesítésről lemondott, vagy

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(b) a biztosító írásbeli kérdésére – annak kézhezvételétől számított négy héten belül – nem nyilatkozott a közvetlen igényérvényrsítésre irányuló szándékáról.

Cikk 15:104 Elévülés (1) A biztosító elleni keresethez való jog elévülése – függetlenül attól, hogy a biztosított, vagy a károsult indít keresetet – a károsultnak a biztosítottal szembeni keresethez való joga elévüléséhez igazodik. (2) Nyugszik a károsultnak a biztosítottal szembeni igénye elévülése attól az időponttól kezdve, hogy a biztosított tudomást szerez a biztosítóval szembeni közvetlen igényérvényesítésről, mindaddig, amíg a biztosító közvetlenül érvényesített igényt nem rendezi, vagy azt egyértelműen el nem utasítja.

Tizenhatodik fejezet: Kötelező biztosítás Cikk 16:101 Alkalmazási kör (1) Az ESZBJA abban az esetben választható a felek által egy kötelező biztosítás irányadó jogának, ha (a) azt a Közösség joga előírja, (b) valamely Tagállam joga előírja, vagy (c) valamely Harmadik Ország joga előírja, az ott írt mértékig. (2) A biztosítási szerződés csak akkor felel meg a biztosítási kötelezettséget előíró rendelkezéseknek, ha az ott írt valamennyi kikötést tartalmazza.

Ötödik rész: Életbiztosítás Tizenhetedik fejezet: Az életbiztosításra vonatkozó különös szabályok Első szakasz: Harmadik személyek Cikk 17:101 Harmadik személy életére kötött életbiztosítás A szerződő féltől különböző személy életére vonatkozó biztosítási szerződés érvényességének feltétele, hogy a veszélyeztetett személy informált beleegyezését írásban beszerezzék és aláírásával megerősítsék. Ilyen beleegyező nyilatkozat hiányában a szerződés bármely későbbi módosítása – ide értve a kedvezményezett személyének megváltoztatását, a biztosítási összeg növelését és a szerződés futamidejének módosítását – is hatálytalan. Ugyanez vonatkozik a biztosítási szerződés, vagy a biztosítási összeghez való jog engedményezésére, vagy megterhelésére is.

Cikk 17:102 A biztosítási összeg kedvezményezettje (1) A szerződő fél a biztosítási összegre egy vagy több kedvezményezettet jelölhet és a kedvezményezett-jelölést megváltoztathatja vagy visszavonhatja, ha csak a kedvezményezett-jelölés nem visszavonhatatlan. A kedvezményezett-jelölést, annak megváltoztatását vagy visszavonását – ha csak azt nem végrendeletben tették – írásban kell eszközölni és a biztosítónak meg kell küldeni. (2) A kedvezményezett-jelölés, annak megváltoztatása vagy visszavonása a szerződő fél halálával, vagy a biztosítási esemény bekövetkezésével szűnik meg, abban az időpontban, amely e kettő közül előbb következik be.

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(3) A szerződő felet, illetve örököseit kell a biztosítási összeg kedvezményezettjeinek tekinteni, ha (a) a szerződő fél nem jelölt kedvezményezettet, vagy (b) a kedvezményezett-jelölést visszavonták és nem jelöltek más kedvezményezettet, vagy (c) a kedvezményezett a biztosítási esemény bekövetkezése előtt meghalt és más kedvezményezettet nem jelöltek. (4) Ha kettő, vagy több kedvezményezettet jelöltek és bármelyikük jelölését visszavonták vagy bármelyikük meghalt a biztosítási esemény bekövetkezése előtt, a biztosítási összeg azon részét, amely az érintett kedvezményezettet illette volna, a megmaradó kedvezményezettek között arányosan kell felosztani, ha csak a szerződő fél az 1. bekezdésben írt módon másként nem rendelkezett. (5) Az alkalmazandó jog fizetésképtelenségre vonatkozó szabályaiban a hitelezőket hátrányosan érintő jogcselekmények semmisségét, megtámadhatóságát vagy hatálytalanságát kimondó rendelkezésektől függően a szerződő fél csődvagyona nem tarthat igényt a biztosítási összegre, a díjmentesített értékre vagy a visszavásárlási összegre mindaddig, ameddig azt a szerződő félnek ki nem fizették. (6) A biztosító, ha az 1. bekezdésben írtak szerint kijelölt személy részére a biztosítási összeget kifizeti, mentesül a további fizetési kötelezettség alól, ha csak nem bírt tudomással arról, hogy az érintett személy a biztosítási összegre nem volt jogosult.

Cikk 17:103 A visszavásárlási összeg kedvezményezettje (1) Tekintet nélkül a 17:102 cikk szerinti kedvezményezett-jelölésre, a szerződő fél a visszavásárlási összeg tekintetében is jelölhet kedvezményezettet, illetve ezt a jelölést megváltoztathatja vagy visszavonhatja. A kedvezményezett-jelölést, annak megváltoztatását vagy visszavonását írásban kell eszközölni és a biztosítónak meg kell küldeni. (2) A szerződő felet, illetve örököseit kell a viszzavásárlási összeg kedvezményezettjeinek tekinteni, ha (a) a szerződő fél nem jelölt a visszavásárlási összegre kedvezményezettet, vagy (b) a visszavásárlási összegre vonatkozó kedvezményezett-jelölést visszavonták és nem jelöltek más kedvezményezettet, vagy (c) a visszavásárlási összeg kedvezményezettje a biztosítási esemény bekövetkezése előtt meghalt és más kedvezményezettet nem jelöltek. (3) A 17:102 cikk 2. és 4-6. bekezdései mutatis mutandis irányadók.

Cikk 17:104 Engedményezés vagy megterhelés (1) Ha a kedvezményezett-jelölés visszavonhatatlan, a biztosítási szerződésnek, vagy a biztosítási összegre vonatkozó jognak a szerződő fél által történő engedményezése, vagy megterhelése hatálytalan, ha csak ahhoz a kedvezményezett írásban hozzá nem járult. (2) A biztosítási összegre vonatkozó jognak a kedvezményezett által történő engedményezése, vagy megterhelése hatálytalan, ha csak ahhoz a szerződő fél írásban hozzá nem járult.

Cikk 17:105 Az örökség visszautasítása Ha a kedvezményezett az elhunyt veszélyeztetett személy örököse, az a körülmény, hogy az örökséget visszautasította, nem érinti a biztosítási szerződés alapján fennálló jogi helyzetét.

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Második szakasz: A szerződés kezdeti szakasza és időtartama Cikk 17:201 Az ajánlattevő szerződést megelőző közlési kötelezettsége (1) Az ajánlattevőnek a 2:101 cikk 1. bekezdésében írt tájékoztatása ki kell, hogy terjedjen mindazon körülményekre, amelyekről a veszélyeztetett személy tudott, vagy tudnia kellett. (2) A szerződést megelőző közlési kötelezettség megszegésének a 2:102, a 2:103 és a 2:105 cikkekben meghatározott jogkövetkezményeit csak a szerződéskötést követő öt éven belül lehet alkalmazni. Ez nem vonatkozik a 2:104 cikkben írt jogkövetkezményekre.

Cikk 17:202 A biztosító szerződést megelőző tájékoztatási kötelezettségei (1) A biztosító köteles az ajánlattevőt tájékoztatni arról, hogy van-e a befektetési eredményből joga részesedni. Az erről szóló tájékoztatás megtörténtét kifejezett nyilatkozattal kell igazolni külön – az ajánlati laptól független – dokumentumban. (2) A biztosító által a 2:201 cikk alapján átadott dokumentumnak a következő tájékoztatást is tartalmaznia kell: (a) a biztosítóra vonatkozóan: kifejezett hivatkozást a pénzügyi helyzetéről és teljesítőképességéről szóló éves jelentésre; (b) a biztosító kötelezettségvállalására vonatkozóan: (i) minden egyes szolgáltatás és minden egyes opció magyarázatát; (ii) tájékoztatást arról, hogy a díj milyen arányban oszlik meg az egyes szolgáltatások között, ide értve mind a főszolgáltatásokat, mind a mellékszolgáltatásokat, ha ilyenek vannak; (iii) a bónuszok kiszámításának és kiosztásának módszereit, megjelölve a vonatkozó felügyeleti jogot; (iv) tájékoztatást a biztosítás szolgáltatási értékéről és visszavásárlási értékéről, továbbá arról, hogy ezek mennyiben garantáltak; (v) befektetési egységhez kötött életbiztosítás esetén: tájékoztatást azokról az egységekről, amelyekhez a szolgáltatások kötődnek, jelezve a befektetések fedezetéül szolgáló eszközök természetét; (vi) általános tájékoztatást az adott típusú kötvényre vonatkozó adójogi szabályokról. (3) Kifejezett tájékoztatást kell adni annak érdekében, hogy a szerződő fél pontosan megértse a szerződés alapjául szolgáló azon kockázatokat, amelyeket felvállal. (4) Ha a biztosító a szerződésben garantált kifizetéseken túl az elérhető további szolgáltatások öszszegét is számszerűsíti, az ajánlattevő rendelkezésére kell, hogy bocsássa azt a minta-számítást, amely három különböző kamatszint mellett a díjkalkulációnál alkalmazott aktuáriusi elvek alapján bemutatja ezeket a lejárati szolgáltatásokat. Ez a rendelkezés nem vonatkozik a befektetési egységekhez kötött életbiztosításokra és azokra a kockázatokra vonatkozó biztosítási szerződésekre sem, amelyek teljesítése a biztosító részéről bizonytalan. A biztosító világosan és átfogó jelleggel kell tájékoztassa a szerződő felet arról, hogy a minta-számítás puszta feltevéseken alapul és az abban jelzett kifizetéseket a szerződés nem garantálja.

Cikk 17:203 Gondolkodási idő (1) Életbiztosítási szerződések esetében a 2:203 cikk 1. bekezdésében írt gondolkodási idő egy hónap, attól az időponttól számítva, hogy a szerződő fél az ajánlat elfogadásáról tájékoztatást kap, vagy a 2:501 és a 17:202 cikkekben meghatározott dokumentumokat kézhez veszi, amely esemény a későbbi.

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(2) A szerződő fél joga a szerződéstől való, a 2:303 cikk 1. bekezdésében szabályozott elállásra a szerződéskötéstől számított egy év alatt évül el.

Cikk 17:204 A szerződő fél joga a szerződés felmondására (1) A szerződő félnek joga van az olyan életbiztosítási szerződést felmondani, amelyhez nem kapcsolódik díjmentesítési érték vagy visszavásárlási érték, feltéve, hogy annak alapján a szerződés nem szűnik meg a szerződéskötéstől számított egy éven belül. A szerződési futamidő lejárata előtt gyakorolható felmondási jogot az egyszeri díjas szerződés kizárhatja, ha a díjat megfizették. A felmondást írásban kell közölni és az két héttel azt követően lép hatályba, hogy a felmondást a biztosító kézhez vette. (2) Ha az életbiztosítási szerződéshez díjmentesítési érték vagy visszavásárlási érték kapcsolódik, a 17:601 és 17:603 cikkek irányadók.

Cikk 17:205 A biztosító joga a szerződés felmondására A biztosító az életbiztosítási szerződést kizárólag a jelen Fejezet által megengedett esetekben mondhatja fel.

Harmadik szakasz: Változások a szerződési időszak alatt Cikk 17:301 A biztosító tájékoztatási kötelezettségei a szerződéskötés után (1) A biztosító köteles a szerződő felet évente írásban tájékoztatni a kötvény alapján őt megillető bónuszok aktuális értékéről, ha ilyenek vannak. (2) A 2:701 cikkben írt követelményeken túlmenően a biztosító késedelem nélkül köteles a szerződő felet tájékoztatni bármely változásról, amely (a) a szerződés – akár általános, akár különös – feltételeit érinti; (b) a szerződési feltételek vagy az EBSZJA módosulása esetén: tájékoztatást kell adni a 2:201 cikk f) és g) pontjaiban, továbbá a 17:202 cikk 2. bekezdés b) pont i-v alpontjaiban meghatározottakról. (3) A 17:202 cikk 4. bekezdésében írottak alkalmazandók arra az esetre is, ha az elérhető további szolgáltatások becsült összegét a biztosító a szerződési futamidő alatt bármikor számszerűsíti. Ha a biztosító – akár a szerződéskötés előtt, akár azt követően – számokat közölt a befektetési eredményből a jövőben történő elérhető részesedésről, tájékoztatnia kell a szerződő felet az eredeti adatok és a hozam tényleges alakulása között mutatkozó esetleges különbségekről.

Cikk 17:302 A kockázat megnövekedése Az életbiztosítási szerződés azon rendelkezése, amely az életkort vagy az egészségromlást a 4:201 cikk értelmében vett kockázat-növekedésnek tekinti, a 2:304 cikk értelmében tisztességtelen szerződési feltételnek minősül.

Cikk 17:303 A díj és a szolgáltatás módosítása (1) Az olyan kockázatokra vonatkozó életbiztosítási szerződés esetében, amelyek teljesítése a biztosító részéről bizonyos, a biztosító csak a 2. és 3. bekezdés szerint jogosult módosításokat eszközölni. (2) A biztosítási díj emelése akkor megengedett, ha a díj számításának alapjául szolgáló biometrikus kockázatok tekintetében előre nem látható és állandó változás történt, továbbá a díjemelés a

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biztosítási szolgáltatások biztosító általi folyamatos teljesítésének garantálásához szükséges és azt független szakértő vagy a felügyelő hatóság jóváhagyta. A szerződő fél azonban jogosult arra, hogy a díjemelést a biztosítási szolgáltatások megfelelő csökkentésével ellentételezze. Abban az esetben, ha a biztosítás egyszeri díját már megfizették, a biztosító a 2. bekezdésben írt helyzetben a biztosítási szolgáltatások csökkentésére jogosult. A 2. és 3. bekezdésekben írt díjmódosítás nem megengedett (a) amennyiben a díj vagy a szolgáltatások kalkulációja során olyan hibát követtek el, amelyet egy felkészült és gondos aktuárius fel kellett volna, hogy ismerjen vagy (b) amikor az alapul szolgáló kalkulációt nem minden – közöttük a díjemelést követően létrejövő – szerződésre alkalmazzák. A díjemelés vagy a szolgáltatások csökkentése három hónappal azt követően lép hatályba, hogy a biztosító a szerződő felet a díjemelésről vagy a szolgáltatások csökkentéséről írásban tájékoztatta, ide értve ennek indokait és az arra történő figyelemfelhívást is, hogy a szerződő felet a szolgáltatások csökkentésére vonatkozó igény a saját jogán is megilleti. Az olyan kockázatokra vonatkozó életbiztosítási szerződés esetében, amelyek teljesítése a biztosító részéről bizonyos, a szerződő fél jogosult a díj csökkentésére, ha a díj számításának alapjául szolgáló biometrikus kockázatok tekintetében előre nem látható és állandó változás történt, amelynek következtében a díj eredeti összege a továbbiakban már nem megfelelő és szükséges a biztosítási szolgáltatások biztosító általi folyamatos teljesítésének garantálásához. A díjcsökkentést független szakértő vagy a felügyelő hatóság jóvá kell, hogy hagyja. A jelen Cikkben írt jogokat a felek legkorábban a szerződéskötést követő öt év elteltével gyakorolhatják.

Cikk 17:304 A szerződési feltételek módosítása (1) Érvénytelen a biztosítót – a díjat és a szolgáltatásokat ide nem értve – a szerződési feltételek módosítására felhatalmazó szerződési kikötés, kivéve, ha a módosítás indoka a következő: (a) a felügyeleti jog módosulásának történő megfelelés, ide értve a felügyelő hatóság intézkedéseit is, vagy (b) a munkáltatói nyugdíjalapokra vonatkozó nemzeti jog kogens szabályai módosulásának történő megfelelés, vagy (c) a nemzeti jog azon szabályai módosulásának történő megfelelés, amelyek az életbiztosítási szerződésre meghatározott követelményeket írnak elő adókedvezmény vagy állami támogatás érdekében, vagy (d) a 2:304 cikk 2. bekezdés második mondata értelmében a tisztességtelen szerződési feltétel megfelelő szerződési feltétellel történő helyettesítése. (2) A szerződésmódosítás három hónappal azt követően lép hatályba, hogy a biztosító a szerződő felet arról és annak indokairól tájékoztatta. (3) Az 1. bekezdés a módosító kikötések érvényességére vonatkozó egyéb követelményeket nem érinti.

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Negyedik szakasz: Kapcsolat a nemzeti jogokkal Cikk 17:401 Nyugdíjbiztosítások A nyugdíjszolgáltatást tartalmazó életbiztosításra az irányadó nemzeti jog nyugdíjbiztosítással kapcsolatos kogens szabályai vonatkoznak. Az EBSZJA erre a szerződésre csak annyiban alkalmazható, amennyiben az említett rendelkezéseknek megfelel.

Cikk 17:402 Adókedvezmények és állami támogatások Az EBSZJA nem érinti a nemzeti jogok azon szabályait, amelyek az életbiztosítási szerződésre meghatározott követelményeket írnak elő adókedvezmény vagy állami támogatás érdekében. Abban az esetben, ha a nemzeti jog hivetkozott szabályai és az EBSZJA rendelkezései között ellentmondás van, ez utóbbiaktól el lehet térni.

Ötödik szakasz: A biztosítási esemény Cikk 17:501 A biztosító tájékozódási és tájékoztatási kötelezettsége (1) Ha a biztosító okkal következtethet arra, hogy a biztosítási esemény bekövetkezhetett, köteles ennek megállapítása érdekében ésszerű lépéseket tenni. (2) Ha a biztosító tudomást szerez arról, hogy a biztosítási esemény bekövetkezett, minden tőle telhetőt köteles megtenni a kedvezményezett személyazonosságának és lakcímének felderítésére és köteles ezt a személyt megfelelően tájékoztatni. Ezt a tájékoztatást attól az időponttól számított harminc napon belül kell teljesíteni, hogy a biztosító a kedvezményezett személyazonosságáról és lakcíméről tudomást szerzett. (3) Ha a biztosító az 1. és 2. bekezdésben írt kötelezettségeit megszegi, a kedvezményezett igényének elévülése mindaddig nyugszik, amíg ezen jogosultságáról a kedvezményezett tudomást nem szerez.

Cikk 17:502 Öngyilkosság (1) Ha a veszélyeztetett személy a szerződés megkötésétől számított egy éven belül öngyilkosságot követ el, a biztosító mentesül a biztosítási összeg kifizetése alól. Ebben az esetben a biztosító a 17:602 cikkel összhangban a visszavásárlási összeget és – ha ilyen van – a hozamot kell megfizesse. (2) Az 1. bekezdés nem alkalmazható, ha (a) a veszélyeztetett személy az öngyilkosság elkövetése során olyan elmeállapotban volt, amely őt akarata szabad kinyilvánításában akadályozta, vagy (b) bizonyítják, hogy a szerződéskötés időpontjában a veszélyeztetett személy nem kívánt öngyilkosságot elkövetni.

Cikk 17:503 A veszélyeztetett személy életének szándékos kioltása (1) Ha a kedvezményezett a veszélyeztetett személyt szándékosan megöli, a rá vonatkozó kedvezményezett-jelölést visszavontnak kell tekinteni. (2) A biztosítási összegre vonatkozó engedményezés hatálytalanná válik, ha az engedményes a veszélyeztetett személyt szándékosan megöli. (3) Ha a szerződő fél a kedvezményezett és a veszélyeztetett személyt szándékosan megöli, a biztosítási összeget nem kell kifizetni.

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(4) Nem alkalmazhatók a jelen Cikk rendelkezései arra az esetre, ha a kedvezményezett, vagy a szerződő fél a veszélyeztetett személy életét jogszerűen – például jogos védelmi helyzetben – oltja ki.

Hatodik szakasz: Díjmentesítés és visszavásárlás Cikk 17:601 Díjmentesítés (1) Az 5:103 cikk nem alkalmazható azon életbiztosítási szerződések esetében, amelyekhez díjmentesítési érték vagy visszavásárlási érték kapcsolódik. Ezeket a szerződéseket – további díjfizetés nélkül – díjrendezett szerződésekké kell alakítani, ha csak a szerződő fél a 2. bekezdésben írt tájékoztatás kézhezvételétől számított négy héten belül nem igényli a visszavásárlási érték kifizetését. (2) A biztosító az 5:101 cikk (b) pontjában vagy az 5:102 cikk 1. bekezdés (b) pontjában írt időszak elteltétől számított négy héten belül köteles tájékoztatni a szerződő felet a díjmentesítési értékről és a visszavásárlási értékről, továbbá felhívni arra, hogy válasszon a díjmentesítés és a visszavásárlás között. (3) A díjmentesítés és a visszavásárlás közötti választásra történő felhívást írásban kell megtenni.

Cikk 17:602 Visszavásárlás (1) A szerződő fél írásban bármikor kérheti a biztosítótól a kötvényhez kapcsolódó visszavásárlási érték részben, vagy egészen történő kifizetését azt követően, hogy a szerződéskötéstől számítva egy év már eltelt. A szerződést ennek megfelelően kell módosítani, vagy megszüntetni. (2) A 17:601 cikk rendelkezéseinek megfelelően, ha az életbiztosítási szerződés, amelyhez visszavásárlási érték kapcsolódik, bármely módon megszűnik, a biztosító a visszavásárlási értéket – még a 2:104 cikk esetében is – köteles kifizetni. (3) A biztosító kérelemre – de évente legalább egy ízben – köteles a szerződő felet a visszavásárlási érték aktuális összegéről, továbbá arról tájékoztatni, hogy az milyen mértékben garantált. (4) A befektetési eredménynek a szerződő felet megillető részét a visszavásárlási értéken felül ki kell fizetni, kivéve, ha arra már a visszavásárlási érték kiszámítása során figyelemmel voltak. (5) A jelen Cikkben említett összegeket a szerződő fél kérelmének a biztosítóhoz történt beérkezésétől számított két hónapon belül ki kell fizetni.

Cikk 17:603 Díjmentesítési érték; visszavásárlási összeg (1) A biztosítási szerződésben meg kell jelölni a díjmentesítési érték és/vagy a visszavásárlási érték kiszámításának módját, összhangban a biztosító székhelye szerinti Tagállam jogával. A díjmentesítési érték és/vagy a visszavásárlási érték kiszámításának megjelölt módja meg kell, hogy feleljen a kialakult aktuáriusi elveknek és a 2. bekezdés rendelkezéseinek. (2) A biztosító a szerződéskötési költségeket legalább öt év alatt egyenlő részletekben vonhatja le. (3) A biztosító jogosult levonni a visszavásárlási összeg kifizetésével kapcsolatos, a kialakult aktuáriusi elvek alapján számított költségeinek megfelelő összeget, kivéve, ha arra már a visszavásárlási érték kiszámítása során figyelemmel voltak.

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Hatodik rész: Csoportos biztosítás Tizennyolcadik fejezet: A csoportos biztosításra vonatkozó különös szabályok Első szakasz: A csoportos biztosítás általános szabályai Cikk 18:101 Alkalmazási kör Az EBSZJA akkor irányadó a csoportos biztosításra, ha a csoport-szervező és a biztosító ebben az 1:102 cikk alapján megállapodtak. A csoportos biztosítás vagy automatikus és azt a jelen Fejezet 2. szakasza szabályozza, vagy fakultatív és azt a jelen Fejezet 3. szakasza szabályozza.

Cikk 18:102 A csoportszervező általános gondossági kötelezettsége (1) A csoport-szervező gondosan és jóhiszeműen, a csoport-tag jogos érdekeit figyelembe véve köteles eljárni a csoportos biztosítási szerződés előkészítése és teljesítése során. (2) A csoport-szervező köteles a biztosító érdemi nyilatkozatait a csoport-tagoknak továbbítani és köteles őket tájékoztatni a szerződés bármely módosításáról.

Második szakasz: Az automatikus csoportos biztosítási szerződés Cikk 18:201 Az EBSZJA alkalmazása Ahol ez szükséges, az automatikus csoportos biztosítási szerződésre az EBSZJA mutatis mutandis alkalmazandó.

Cikk 18:202 Tájékoztatási kötelezettségek (1) Amint egy tag csatlakozik a csoporthoz, a csoport-szervező késedelem nélkül köteles őt tájékoztatni (a) a biztosítási szerződésről, (b) a fedezet mértékéről, (c) a fedezet fenntartásához szükséges kármegelőzési teendőkről és más követelményekről, valamint (d) a kárrendezési eljárásról. (2) A csoport-szervezőt terheli annak bizonyítása, hogy a csoport-tag az 1. bekezdésben írt tájékoztatást megkapta.

Cikk 18:203 Felmondás a biztosító által (1) A 2:604 cikk alkalmazása szempontjából a biztosító felmondása csak akkor ésszerű, ha a fedezet megvonása csak arra a csoport-tagra korlátozódik, akinél a biztosítási esemény bekövetkezett. (2) A 4:102 cikk és a 4:203 cikk 1. bekezdése alkalmazása szempontjából a biztosító felmondásának hatálya csak azokra a csoport-tagokra terjed ki, akik az előírt kármegelőzési teendőket elmulasztották, vagy akiknél a kockázat-növekedés bekövetkezett. (3) A 12:102 cikk alkalmazása szempontjából a biztosítás hatálya csak azon csoport-tagok esetében szűnik meg, akik a biztosított vagyontárgyuk tulajdonjogát átruházták.

Cikk 18:204 A jogviszony folytatása – csoportos életbiztosítás (1) Ha az automatikus csoportos életbiztosítási szerződést felmondják, vagy a tag a csoportból kiválik, a biztosítási fedezet három hónap múlva, vagy a csoportos biztosítási szerződés lejártával

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szűnik meg, az ezek közül korábban bekövetkező időpontban. Ezzel egyidejűleg a csoport-tag jogot szerez – egy új egyéni biztosítási szerződés alapján – egyenértékű biztosítási fedezetre ugyanannál a biztosítónál, új kockázatelbírálás nélkül. (2) A csoport-szervező a csoport-tagot késedelem nélkül írásban köteles tájékoztatni (a) a csoportos életbiztosítási szerződés alapján fennálló fedezet várható megszűnéséről, (b) az őt az 1. bekezdés alapján megillető jogokról és (c) ezen jogok gyakorlásának módjáról. (3) Ha a csoport-tag jelezte szándékát az őt a 18:204 cikk 1. bekezdése alapján megillető jog gyakorlására, a biztosító és a csoport-tag között fennálló jogviszony egyéni biztosítási szerződésként él tovább, annak díját pedig egy, az adott időpontban köthető egyéni biztosítási szerződésre vonatkozó kalkuláció szerint kell kiszámítani, figyelmen kívül hagyva a csoport-tag életkorát, vagy aktuális egészségi állapotát.

Harmadik szakasz: A fakultatív csoportos biztosítási szerződés Cikk 18:301 A fakultatív csoportos biztosítási szerződés általános szabályai (1) A fakultatív csoportos biztosítás a biztosító és a csoport-szervező között létrejött keretszerződés, valamint az ennek alapján a biztosító és a csoport-tagok között létrejövő egyéni biztosítási szerződések együttese. (2) Ha ebben a csoport-szervező és a biztosító megállapodtak, az egyéni biztosítási szerződésekre – a 18:101 és 18:102 cikkek kivételével – az ESZBJA irányadó, de az ESZBJA nem vonatkozik a keretszerződésre.

Cikk 18:302 A szerződési feltételek módosítása A keretszerződés feltételeinek módosítása az egyéni biztosítási szerződésekre csak annyiban hat ki, amennyiben az a 2:603, 17:303, illetve 17:304 cikkekben írt követelményekkel összhangban történt.

Cikk 18:303 A jogviszony folytatása A keretszerződés megszűnése, vagy a csoport-tag részéről a tagság megszűnése a biztosító és a csoport-tag között létrejött biztosítási szerződésre nem hat ki.

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Italian version by Diana Cerini and Luca Semeraro

Principi di Diritto Europeo del Contratto di Assicurazione (PEICL) Parte Prima: Principi comuni a tutti i contratti inclusi nei Principi Comuni del contratto di assicurazione (PEICL) Capitolo Uno: Principi Introduttivi Sezione Uno: Applicazione dei PEICL Sezione Due: Norme generali Sezione Tre: Esecuzione

Capitolo Due: Fase pre-contrattuale e durata del contratto di assicurazione Sezione Uno: Doveri di informazione precontrattuale del contraente e/o dell’assicurando Sezione Due: Doveri di informazione precontrattuale dell’assicuratore Sezione Tre: Conclusione del contratto Sezione Quattro: Coperture retroattive e coperture provvisorie Sezione Cinque: Polizza d’assicurazione Sezione Sei: Durata del contratto di assicurazione Sezione Sette: Dovere di informazione dell’assicuratore in corso di contratto

Capitolo Tre: Intermediari di Assicurazione Capitolo Quattro: Il Rischio Assicurato Sezione Uno: Misure preventive Sezione Due: Aggravamento del rischio Sezione Tre: Riduzione del rischio

Capitolo Cinque: Premio di Assicurazione Capitolo Sei: Evento Assicurato Capitolo Sette: Prescrizione Parte Seconda: Norme Comuni alle assicurazioni indennitarie Capitolo Otto: Somma Assicurata e Valore Assicurato

Capitolo Nove: Diritto all’Indennizzo Capitolo Dieci: Diritto di Surroga Capitolo Undici: Persone Assicurate Diverse Dal Contraente Capitolo Dodici: Rischio Assicurato Parte Terza: Principi Comuni alle Assicurazioni a Somma Fissa Capitolo Tredici: Ammissibilità Parte Quarta: Assicurazione sulla responsabilità civile Capitolo Quattordici: Assicurazione sulla responsabilità generale Capitolo Quindici: Richieste e azioni dirette Capitolo Sedici: Assicurazione obbligatoria Parte Quinta: Assicurazione sulla vita Capitolo Diciassette: Disposizioni speciali dell’assicurazione sulla vita Sezione Uno: Parti terze Sezione Due: Fase iniziale e durata del contratto Sezione Tre: Modifiche durante il periodo contrattuale Sezione Quattro: Rapporto con il diritto nazionale Sezione Cinque: Evento Assicurato Sezione Sei: Riduzione e cessione

Parte Sesta: Assicurazioni di gruppo Capitolo Diciotto: Norme particolari per le assicurazioni di gruppo Sezione Uno: Le Assicurazioni di gruppo in generale Sezione Due: Assicurazione di gruppo accessoria Sezione Tre: Assicurazione di gruppo volontaria

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Parte Prima: Principi Comuni A Tutti I Contratti Inclusi Nei Principi europei di diritto del contratto di assicurazione (PEICL) Capitolo Uno: Principi Introduttivi Sezione Uno: Ambito di applicazione dei PEICL Articolo 1:101 Ambito soggettivo di applicazione (1) I PEICL si applicano alle assicurazioni private in generale, incluse le mutue assicurazioni. (2) I PEICL non si applicano alla riassicurazione.

Articolo 1:102 Applicazione opzionale I PEICL si applicano quando le parti hanno convenuto che il contratto sia ad essi sottoposto; in tale caso non avranno applicazione le norme di diritto internazionale privato relative alla determinazione della legge applicabile. In base all’art. 1:103, i PEICL si applicano integralmente e senza esclusione di parti dei Principi stessi.

Articolo 1:103 Carattere imperativo (1) Gli articoli 1:102 secondo comma, 2:104, 2:304, 13:101, 17:101 e 17: 503 sono imperativi e inderogabili. Gli altri Articoli sono imperativi ed inderogabili limitatamente alle previsioni che sanzionano comportamenti dolosi. (2) Il contratto può derogare ad articoli diversi da quelli indicati al paragrafo 1 nei limiti in cui le norme derogatorie non siano a svantaggio del contraente, dell’assicurato o del beneficiario. (3) Le deroghe di cui al paragrafo 2, sono ammesse a beneficio di tutte le parti in contratti che coprono grandi rischi ai sensi dell’articolo 13 paragrafo 27 della direttiva 2009/138/CE. Nei contratti di gruppo la deroga opera esclusivamente nei confronti di un individuo assicurato che soddisfi le caratteristiche personali di cui all’articolo 13 paragrafo 27 lettere B o C della direttiva 2009/138/ CE, se applicabile.

Articolo 1:104 Interpretazione I PEICL dovranno essere interpretati in base al loro significato letterale, al loro contesto, allo scopo e specifico contesto comparativo. In particolare, bisogna aver riguardo alla necessità di promuovere la buona fede e la correttezza nelle pratiche commerciali nel settore assicurativo, la certezza nelle relazioni contrattuali, l’uniformità di applicazione e l’adeguata protezione dell’assicurato-contraente.

Articolo 1:105 Legge Nazionale e Principi generali (1) Nessun ricorso alla legge nazionale dovrà essere permesso, qualora questo sia volto a restringere o apportare modifiche ai PEICL. Tale principio non si applica alle norme imperative nazionali specificamente emanate per rami assicurativi che non sono oggetto di regole speciali contenute nei PEICL. (2) Le pronlematiche derivanti dal e/o relative al contratto assicurativo non espressamente disciplinate nei PEICL devono essere risolte in conformità ai Principi di Diritto Europeo dei Contratti PECL1 e, in assenza di regole utili in tale strumento, in accordo con i principi comuni generali degli Stati Membri. 1

Cfr. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Sezione Due: Regole Generali Articolo 1:201 Contratto di assicurazione (1) Per “Contratto di assicurazione” si intende un contratto in base al quale una parte, l’assicuratore, promette ad un’altra parte, il contraente-assicurato, la copertura contro un rischio specificato in cambio del premio; (2) Per “Evento assicurato” si intende la verificazione del rischio specificato nel contratto di assicurazione; (3) Per “Assicurazione indennitaria”2 si intende l’assicurazione in base alla quale l’assicuratore è obbligato a indennizzare il danno sofferto nell’ipotesi di accadimento dell’evento assicurato; (4) Per “Assicurazione a somma fissa”3 si intende l’assicurazione in base alla quale l’assicuratore è obbligato a pagare una somma fissa di denaro nell’ipotesi di accadimento dell’evento assicurato. (5) Per “Assicurazione di responsabilità civile” si intende l’assicurazione nella quale il rischio è costituito dall’esposizione dell’assicurato a responsabilità civile nei confronti della vittima. (6) L’assicurazione sulla vita è un’assicurazione in cui l’obbligazione dell’assicuratore o del pagamento di premio dipende da un evento assicurato che è definito esclusivamente con riferimento alla morte o alla sopravvivenza della persona a rischio. (7) I contratti di assicurazione di gruppo sono contratti tra un assicuratore e un negoziatore/organizzatore di un gruppo4 a beneficio dei membri del gruppo stesso, con un legame comune all’organizzatore del gruppo. Un contratto per l’assicurazione di gruppo può coprire anche la famiglia dei membri del gruppo. (8) Per “assicurazione di gruppo accessoria” si intende l’assicurazione di gruppo in cui i membri del gruppo sono automaticamente assicurati in virtù dell’appartenenza al gruppo e senza essere in grado di rifiutare l’assicurazione. (9) Per “Assicurazione di gruppo volontaria” si intende l’assicurazione di gruppo in cui i membri del gruppo sono assicurati a seguito di domanda individuale o perché non hanno rifiutato l’assicurazione.

Articolo 1:202 Ulteriori definizioni (1) Per “Assicurato” si intende la persona il cui interesse è protetto contro la perdita in base alla assicurazione indennitaria; (2) Per “Beneficiario” si intende la persona a cui favore deve essere pagato l’indennizzo in base all’assicurazione a somma fissa; (3) Per “Persona a rischio” si intende la persona la cui vita, salute, integrità o stato assicurativo è coperto dal contratto; (4) Per “Vittima” nell’assicurazione di responsabilità civile, si intende la persona per la cui morte, danno o perdita l’assicurato è responsabile; (5) Per “Agente assicurativo” si intende un intermediario di assicurazione che promuove, vende o gestisce i contratti assicurativi per conto dell’assicuratore; (6) Per “Premio” si intende il pagamento dovuto all’assicuratore da parte del contraente a fronte della copertura; 2 3 4

[Ndt] Nella versione inglese indemnity insurance. [Ndt] Nella versione inglese fixed sum inssurance. [Ndt] In Italia ai sensi dell’art. 1891 la figura del “negoziatore” coincide con quella di contraente, ma nel testo dei PEICL, ha una portata più ampia potendo il “negoziatore” non rivestire la qualifica di contraente.

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(7) Per “Periodo contrattuale” si intende il periodo dell’impegno contrattuale che inizia alla conclusione del contratto e termina con la scadenza del contratto; (8) Per “Periodo assicurativo” si intende il periodo durante il quale il premio è dovuto in base all’accordo tra le parti; (9) Per “Periodo di responsabilità” si intende il periodo di durata della copertura. (10) Per “assicurazione obbligatoria” si intende un’assicurazione che viene stipulata in base ad un obbligo di assicurare imposto da leggi o regolamenti. (11) Per “veicolo a motore” si intende ogni veicolo destinato a circolare sul suolo, ma non su rotaie, e azionato da una forza meccanica, nonché i rimorchi, anche non agganciati.

Articolo 1:203 Lingua ed interpretazione dei documenti5 (1) Tutti i documenti predisposti dall’assicuratore devono essere redatti in modo chiaro ed intellegibile e nella lingua nella quale il contratto è stato negoziato. (2) Quando ci sono dubbi sul significato dei termini nei documenti o informative predisposti dall’assicuratore, l’interpretazione più favorevole per il contraente, assicurato o beneficiario, deve prevalere se appropriata.

Articolo 1:204 Ricezione dei documenti: Prova L’onere della prova che il contraente ha ricevuto i documenti predisposti dall’assicuratore è a carico dell’assicuratore stesso.

Articolo 1:205 Forma della Notifica In base alle regole contenute nei PEICL, le notifiche del proponente, contraente, assicurato o beneficiario, in relazione al contratto di assicurazione non devono essere sottoposte ad alcuna forma particolare.

Articolo 1:206 Conoscenza presunta Qualora una persona sia autorizzata dal contraente, assicurato o beneficiario alla conclusione del contratto o all’esecuzione del contratto, le informazioni rilevanti che tale persona ha o dovrebbe avere nel corso dell’esecuzione dei suoi doveri si presume conosciuta dal contraente, assicurato o beneficiario a seconda del caso.

Articolo 1:207 Non Discriminazione6 (1) Il sesso, la gravidanza, la maternità, la nazionalità e l’origine razziale o etnica non possono essere considerati fattori idonei a determinare differenze nei premi e nelle prestazioni individuali. (2) Le clausole in violazione del par. 1, incluse le clausole di determinazione del premio, non saranno vincolanti per il contraente o l’assicurato. In base al par. 3, il contratto continuerà ad essere vincolante per tutto quanto previsto da clausole non discriminatorie. (3) Nell’ipotesi di violazione del par. 1, il contraente avrà il diritto di risolvere il contratto. La notifica della risoluzione dovrà essere data all’assicuratore per iscritto entro due mesi dopo che la violazione è nota al contraente.

5 6

L’articolo 1:203 para. 2 è redatto sulla base dell’articolo 5 della Direttiva 93/13/EEC. Questo articolo è redatto sulla base della Direttiva 2004/113/EC e sulla decisione Corte di Giustizia “Test Achats” (2011).

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Articolo 1:208 Test genetici (1) L’assicuratore non può chiedere al proponente, al contraente o alla persona sulla cui vita è stipulato il contratto di sottoporsi a test genetici o di divulgare i risultati di tali test, né tali informazioni possono essere utilizzate dall’assicuratore ai fini della valutazione dei rischi. (2) Il par. 1 non si applica alle assicurazioni sulla persona nelle quali la persona a rischio ha 18 anni o più anni e la somma assicurata supera i 300.000 euro o il capitale o la rendita sssicurata superano i 30.000 euro l’anno.

Sezione Tre: Esecuzione Articolo 1:301 Ingiunzione7 (1) Un’ente qualificata, come definita al par. 2, è autorizzata ad adire una corte nazionale o autorità competente ed ottenere un ordine di ingiunzione o richiedere la cessazione della violazione dei PEICL, se applicabili in base all’art. 1:102. (2) Per ente qualificato si intende qualsiasi persona o organismo di cui alla lista redatta dalla Commissione Europea in esecuzione dell’Articolo 4 della Direttiva 2009/22/EC del Parlamento europeo e del consiglio del 23 aprile 2009 siu Provvedimenti inibitori a tutela dei consumatori, come modificata.

Articolo 1:302 Arbitrato e sistemi di risarcimento L’applicazione dei PEICL non preclude l’accesso ad arbitrati e sistemi di risoluzione delle controversie altrimenti disponibili a contraente, assicurato o beneficiario.

Capitolo Due: Fase Pre-Contrattuale e Durata del Contratto di Assicurazione Sezione Uno: Dovere di informazione pre-contrattuale dell’assicurando e/o Contraente Articolo 2:101 Dovere di informazione (1) Prima della conclusione del contratto, il contraente informa l’assicuratore sulle circostanze di cui egli è o dovrebbe essere a conoscenza, e che sono oggetto di chiare e precise domande a lui poste dall’assicuratore. (2) Le circostanze riferite al par. 1 includono quelle di cui la persona da assicurare era o avrebbe dovuto essere a conoscenza.

Articolo 2:102 Violazione del dovere di informazione (1) Quando il contraente viola l’Articolo 2:101, in base ai paragrafi da 2 a 5 che seguono, l’assicuratore ha il diritto di proporre una variazione ragionevole del contratto o di risolvere il contratto stesso. A tal fine l’assicuratore deve dare comunicazione scritta della sua intenzione accompagnata dall’informativa sulle conseguenze legali della sua decisione, entro un mese dopo che la violazione dell’Articolo 2:101 diviene nota o evidente. (2) Se l’assicuratore propone una variazione ragionevole, il contratto continua in base alla variazione proposta, a meno che il contraente rifiuti la proposta entro un mese dalla ricezione della notifica

7

Questo articolo è redatto sulla base della Direttiva 2009/22/EC.

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di cui al par. 1. In tale caso, l’assicuratore ha il diritto di risolvere il contratto entro un mese dalla ricezione della notifica scritta del rifiuto del contraente. (3) L’assicuratore non ha il diritto di risolvere il contratto se il contraente ha violato l’Articolo 2:101 senza colpa, a meno che l’assicuratore provi che non avrebbe concluso il contratto se avesse conosciuto la circostanza non comunicata. (4) La risoluzione del contratto ha effetto decorso un mese dalla ricezione da parte del contraente della notifica scritta di cui al par. 1. La variazione ha effetto sulla base degli accordi fra le parti. (5) Se un evento assicurato è causato da un elemento del rischio, che è oggetto di negligente reticenza o dolo del contraente, e si verifica prima che la risoluzione o variazione abbiano effetto, nessun indennizzo dovrà essere corrisposto. Tuttavia, se l’assicuratore avrebbe concluso il contratto ad un premio più elevato o a condizioni diverse, l’indennizzo sarà corrisposto in proporzione o in accordo a tali diverse condizioni.

Articolo 2:103 Eccezioni Le sanzioni previste all’Articolo 2:102 non si applicano a: (a) Domande cui non si è risposto, o ad informazioni fornite che erano incomplete o incorrette; (b) Informazioni che avrebbero dovuto essere fornite o informazioni fornite in modo incorretto, le quali però non erano essenziali ai fini della decisione di stipulare il contratto o di stipularlo alle condizioni pattuite avendo riguardo ad un assicuratore ragionevole; (c) Informazioni per cui l’assicuratore ha indotto il contraente a ritenere che non fossero da rivelare, o (d) Informazioni di cui l’assicuratore era a conoscenza o avrebbe dovuto conoscere.

Articolo 2:104 Violazione con dolo Senza alcun pregiudizio per le sanzioni previste dall’Articolo 2:102, l’assicuratore avrà il diritto ad annullare il contratto e mantenere il diritto al premio dovuto, se è stato indotto a concludere il contratto da una violazione dolosa dell’Articolo 2:101 da parte del contraente. La comunicazione dell’annullamento deve essere data al contraente per iscritto entro due mesi da quando l’assicuratore ha scoperto il dolo.

Articolo 2:105 Informazioni aggiuntive Gli articoli 2:102-2:104 si applicano a qualsiasi informazione fornita dal contraente al momento della conclusione del contratto in aggiunta a quelle richieste dall’Articolo 2:101.

Articolo 2:106 Informazioni genetiche La presente sezione non si applica ai risultati dei test genetici che sono soggetti all’articolo 1:208 par. 1.

Sezione Due: Dovere di informazione precontrattuale dell’assicuratore Articolo 2:201 Documenti precontrattuali8 (1) L’assicuratore dovrà fornire al contraente copia delle condizioni contrattuali proposte così come un documento che includa le seguenti informazioni rilevanti:

8

Questo articolo è redatto sulla base degli artt. 183-189 della Direttiva 2009/138/CE (Solvency II)

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(a) Il nome e indirizzo delle parti contrattuali, in particolare, della sede e la forma giuridica dell’assicuratore e, se del caso, della succursale stipulante il contratto o concedente la copertura; (b) Il nome e l’indirizzo dell’assicurato, del beneficiario e della persona a rischio; (c) Il nome e l’indirizzo dell’intermediario di assicurazione; (d) L’oggetto dell’assicurazione ed il rischio coperto; (e) La somma assicurata e le somme deducibili; (f) L’ammontare del premio o il metodo di calcolo dello stesso; (g) Quando il premio è dovuto così come il luogo e modalità di pagamento; (h) Il periodo contrattuale, incluse le modalità di recesso dal contratto, ed il periodo di responsabilità; (i) Il diritto di revocare la proposta o annullare ilcontratto in base all’Articolo 2:303 in caso di assicurazione contro i danni e in base all’articolo 17:203 in caso di assicurazione sulla vita; (j) La previsione che il contratto è soggetto ai PEICL (k) L’esistenza di un procedimento arbitrale ed i meccanismi di regresso del contraente e i metodi per accedere agli stessi; (l) L’esistenza di fondi di garanzia o altri accordi di compensazione. (2) Se possibile, l’informazione deve essere fornita in un tempo sufficiente a consentire al contraente di valutare se concludere o meno il contratto. (3) Quando il contraente richiede una copertura sulla base di una proposta e/o questionario predisposto dall’assicuratore, l’assicuratore dovrà fornire al contraente copia completa dei documenti.

Articolo 2:202 Dovere di informare sulla non adeguatezza della copertura (1) Prima di concludere il contratto, l’assicuratore deve informare il contraente di qualsiasi insufficienza tra la copertura offerta e le richieste del contraente di cui l’assicuratore è o dovrebbe essere a conoscenza, tenendo conto delle circostanze e modi della contrattazione e in particolare, se il contraente è stato assistito da un intermediario indipendente. (2) In caso di violazione del par. 1: (a) l’assicuratore dovrà indennizzare il contraente delle perdite a lui derivanti dalla violazione del dovere di informazione a meno che l’assicuratore abbia agito senza colpa e (b) il contraente avrà diritto di risolvere il contratto mediante notifica scritta entro due mesi dalla scoperta della violazione da parte del contraente.

Articolo 2:203 Dovere di informare in relazione alla decorrenza della copertura Se il contraente ragionevolmente per errore ritiene che la copertura cominci a decorrere al momento in cui l’applicazione è richiesta, e l’assicuratore è o dovrebbe conoscere tale convincimento, l’assicuratore deve informare immediatamente il contraente che la copertura inizierà a decorrere alla conclusione del contratto e se applicabile, al pagamento della prima rata di premio, a meno che venga garantita la copertura provvisoria. Se l’assicuratore viola il dovere di informazione sarà responsabile in base all’art. 2:202 par. 2(a).

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Sezione Tre: Conclusione del contratto Articolo 2:301 Modi di conclusione Il contratto di assicurazione non richiede per la sua conclusione o prova di essere redatto per iscritto né soggetto ad altro requisito formale. Il contratto può essere provato con qualunque mezzo inclusa la prova testimoniale.

Articolo 2:302 Revoca della proposta La proposta di assicurazione può essere revocata dal contraente se la sua revoca raggiunge l’assicuratore prima che la proposta sia accettata dall’assicuratore.

Articolo 2:303 Diritto di ripensamento9 (1) Il contraente ha il diritto di recedere dal contratto dandone comunicazione scritta entro due settimane dalla notizia dell’accettazione o consegna dei documenti indicati all’art. 2:501, a seconda di quale dei due momenti sia successivo. (2) Il contraente non avrà diritto di recesso dal contratto quando (a) la durata del contratto è inferiore ad un mese (b) il contratto è prolungato ai sensi dell’Articolo 2:602; (c) si tratta di coperture assicurative provvisorie, di assicurazione di responsabilità, o polizze di gruppo.

Articolo 2:304 Clausole abusive10 (1) La clausola che non è stata negoziata individualmente non è vincolante per il contraente, l’assicurato o il beneficiario se, in contrasto con il principio di buona fede e correttezza nelle trattative, causa un significativo squilibrio nei suoi diritti e obbligazioni derivanti dal contratto a suo svantaggio, avendo in considerazione la natura del contratto di assicurazione, tutte le altre clausole del contratto e le circostanze al momento della conclusione del contratto. (2) Il contratto continua ad essere vincolante per le parti se vi è la possibilità di mantenere in vita il contratto senza la clausola abusiva. Nell’ipotesi contraria la clausola abusiva sarà sostituita da una clausola su cui le parti avrebbero ragionevolmente dato il loro consenso se avessero conosciuto l’abusività della clausola. (3) Questo articolo si applica alle clausole che restringono o modificano la copertura ma non si applica a: (a) l’adeguatezza in valore della copertura e al premio (b) clausole che stabiliscono la descrizione essenziale della copertura garantita o il premio concordato, sempre che le clausole siano scritte in linguaggio chiaro ed intellegibile. (4) Una clausola si intende non negoziata individualmente quando è stata predisposta in precedenza ed il contraente non ha la scelta di influenzare il contenuto della clausola, particolarmente nel contesto dei contratti standard predisposti unilateralmente. La circostanza che alcuni aspetti della clausola o una specifica clausola siano stati individualmente negoziati non esclude l’applicabilità del presente articolo al resto del contratto se l’intero assetto contrattuale mostra che si tratti di un contratto standard predisposto unilateralmente. Quando un assicuratore dichiara che una clausola standard è stata negoziata individualmente, la prova incombe sull’assicuratore.

9 10

L’articolo è redatto in base alla Direttiva 2002/65/EC. L’articolo è redatto in base alla Direttiva 93/13/EEC.

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Sezione Quattro: Copertura provvisoria e copertura retroattiva Articolo 2:401 Copertura retroattiva (1) Qualora, nell’ipotesi di copertura garantita per il periodo precedente la conclusione del contratto (copertura retroattiva) l’assicuratore sia a conoscenza al momento della conclusione del contratto che nessun rischio assicurato si è verificato, il contraente dovrà corrispondere il premio solo per il periodo successivo alla conclusione del contratto stesso. (2) Qualora, in ipotesi di copertura retroattiva, il contraente sia a conoscenza, al momento della conclusione del contratto, che l’evento assicurato si è verificato, l’assicuratore in forza dell’Articolo 2:104 fornisce la copertura solo per il periodo successivo alla conclusione del contratto.

Articolo 2:402 Copertura provvisoria (1) Quando ad un contraente [di un contratto di assicurazione] è garantita una copertura provvisoria, tale copertura deve terminare non prima della data stabilita per l’inizio di decorrenza della copertura del contratto di assicurazione o nel momento in cui il contraente ha notizia del rifiuto dell’assicuratore della proposta, a seconda del caso. (2) Quando una copertura provvisoria è concessa ad una persona che non ha richiesto un contratto di assicurazione con lo stesso assicuratore, la copertura può essere concessa per un periodo inferiore a quello stabilito all’Articolo 2:601 par. 1., tale copertura può essere annullata da entrambe le parti con due settimane di preavviso.

Sezione Cinque: Polizza di assicurazione Articolo 2:501 Contenuto Alla conclusione del contratto di assicurazione l’assicuratore emette una polizza insieme alle condizioni generali di contratto, se esse non sono incluse nella polizza. La polizza contiene almeno le seguenti informazioni rilevanti: (a) il nome e l’indirizzo delle parti contrattuali, in particolare della sede, e la forma giuridica dell’assicuratore e, se del caso, della succursale che ha stipulato il contratto o che offre la copertura (b) il nome e l’indirizzo dell’assicurato e, in caso di assicurazione sulla vita, del beneficiario e della persona a rischio (c) il nome e l’indirizzo dell’intermediario; (d) l’oggetto dell’assicurazione ed il rischio coperto; (e) la somma assicurata e le detrazioni fiscali; (f) l’ammontare del premio ed il metodo per calcolarlo; (g) quando scade il pagamento del premio ed il luogo e modalità del pagamento; (h) il periodo contrattuale, incluse le modalità di recesso dal contratto, ed il periodo di responsabilità; (i) il diritto di revocare l’adesione o risolvere il contratto in conformità con l’Articolo 2:303 in caso di assicurazione contro i danni e con l’articolo 17:203 in caso di assicurazione sulla vita (j) la previsione che il contratto sia soggetto ai PEICL; (k) L’esistenza di procedimenti arbitrali e sistemi di risarcimento ed i metodi per accedere agli stessi; (l) L’esistenza di fondi di garanzia o altre accordi per compensazione.

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Articolo 2:502 Effetti della polizza (1) Qualora le clausole della polizza differiscano da quelle contenute nella proposta del contraente o di altro accordo preliminare tra le parti tali differenze come evidenziate nella polizza devono essere considerate accettate dal contraente a meno che egli rifiuti entro un mese dalla ricezione della polizza. L’assicuratore deve dare notizia al contraente in carattere evidenziato del diritto di rifiutare le differenze evidenziate nella polizza. (2) Se l’assicuratore non ottempera alla previsione di cui al par. 1, il contratto deve considerarsi concluso sui termini e clausole di cui alla proposta del contraente o al precedente accordo delle parti a seconda del caso.

Sezione Sei: Durata del contratto di assicurazione Articolo 2:601 Durata del contratto di assicurazione (1) La durata del contratto di assicurazione è di un anno. Le parti possono accordarsi su un periodo temporale differente in funzione della natura del rischio. (2) Il par. 1 non si applica alle assicurazioni della persona.

Articolo 2:602 Rinnovo (1) Trascorso il periodo di un anno di cui all’Articolo 2:601 il contratto può essere rinnovato a meno che: (a) l’assicuratore abbia comunicato per iscritto il contrario almeno un mese prima del termine di scadenza del contratto indicando la ragione della sua decisione; o (b) il contraente abbia dato comunicazione scritta di non voler rinnovare il contratto al più tardi entro la data di scadenza del contratto stesso o entro un mese dalla comunicazione di scadenza per il pagamento del premio da parte dell’assicuratore, dando prevalenza alla data che interviene per ultima. In tale ultimo caso il periodo di un mese inizierà a decorrere se è stato chiaramente evidenziato in grassetto nella comunicazione di scadenza di pagamento del premio. (2) Ai fini del calcolo del termine di cui al par. 1 la notifica si intende data non appena è stata inviata.

Articolo 2:603 Modifiche di termini e condizioni (1) Nel contratto di assicurazione soggetto a rinnovo in base all’Articolo 2:602, una clausola che consente all’assicuratore di modificare il premio o altri termini e condizioni del contratto deve considerarsi nulla a meno che la clausola preveda che: (a) qualsiasi variazione divenga efficace alla data del successivo rinnovo, (b) l’assicuratore invii comunicazione scritta della modifica al contraente non più tardi di un mese prima della scadenza del periodo contrattuale in corso, e (c) la notifica informi il contraente circa il suo diritto di risolvere il contratto e le conseguenze se il diritto non viene esercitato. (2) Il par. 1 si applica senza alcun pregiudizio agli altri requisiti per la validità delle modifiche contrattuali.

Articolo 2:604 Recesso in caso di sinistro (1) La clausola che prevede il recesso dal contratto dopo l’accadimento dell’evento assicurato non è valida a meno che:

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(a) garantisca il diritto di recesso ad entrambe le parti e (b) il contratto non sia una assicurazione della persona. (2) Entrambe le clausole di recesso ed esercizio del relativo diritto devono essere ragionevoli. (3) Il diritto di recesso si estingue se la parte che vi ha interesse non ha comunicato per iscritto all’altra parte la volontà di recedere dal contratto entro due mesi dalla scoperta dell’accadimento dell’evento assicurato. (4) La copertura assicurativa deve terminare entro due settimane dopo la notifica in base al par. 3.

Sezione Sette: Dovere dell’assicuratore di informazione in corso di contratto Articolo 2:701 Dovere generale di informazione Durante tutta la durata del contratto l’assicuratore deve informare il contraente per iscritto, senza alcun ritardo, sulle modifiche riguardanti la sua denominazione e indirizzo, forma societaria, l’indirizzo della sede principale e dell’agenzia o sede che ha concluso il contratto.

Articolo 2:702 Ulteriori informazioni su richiesta (1) Su richiesta del contraente, l’assicuratore deve fornire al contraente stesso, senza ritardo le informazioni riguardanti: (a) tutte le informazioni rilevanti per l’esecuzione del contratto nei limiti in cui ciò sia ragionevole per l’assicuratore; (b) nuove clausole standard proposte dall’assicuratore per contratti di assicurazioni dello stesso tipo di quello concluso dal contraente. (2) Sia la richiesta del contraente che la risposta dell’assicuratore devono essere date per iscritto.

Capitolo Tre: Intermediari di Assicurazione Articolo 3:101 Poteri dell’intermediario di assicurazione (1) L’intermediario è autorizzato ad adempiere a tutti gli atti in nome dell’assicuratore che in accordo con le attuali prassi del settore assicurativo, rientrano nello scopo del suo incarico. Qualsiasi restrizione al potere dell’intermediario deve essere chiaramente notificato al contraente in un documento separato. In ogni caso si considerano conferiti all’intermediario i poteri necessari per lo svolgimento dell’incarico. (2) In ogni caso l’incarico dell’intermediario dovrà includere il potere: (a) di informare e avvisare il contraente, e (b) di ricevere notifiche dal contraente. (3) Le informazioni rilevanti che l’intermediario ha o potrebbe avere nel corso del suo incarico dovrà essere considerato conosciuto dall’assicuratore.

Articolo 3:102 Intermediari di assicurazione che si dichiarano indipendenti Se un soggetto dichiara di essere un intermediario indipendente e agisce in violazione dei doveri imposti a tali intermediari dalla legge, l’assicuratore sarà responsabile di tale violazione.

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Capitolo Quattro: Il Rischio Assicurato Sezione Uno: Misure di prevenzione11 Articolo 4:101 Misure di prevenzione: significato Per misura di prevenzione si intende qualsiasi clausola del contratto di assicurazione, sia essa o meno descritta come condizione per la operatività della garanzia da parte dell’assicuratore, che impone al contraente o all’assicurato, prima che l’evento si realizzi, di fare o non fare alcune azioni.

Articolo 4:102 Diritto di recesso dell’assicuratore (1) La clausola che prevede che nel caso di violazione di una misura di prevenzione l’assicuratore avrà il diritto di risolvere il contratto, sarà senza alcun effetto a meno che il contraente o l’assicurato hanno violato le loro obbligazioni con l’intento di causare la perdita o abbiano agito in modo sconsiderato e con la consapevolezza che l’evento si sarebbe con tutta probabilità verificato. (2) Il diritto di recesso dal contratto deve essere esercitato mediante notifica scritta al contraente entro un mese dal momento in cui il non rispetto della misura di salvaguardia diviene apparente o conosciuto all’assicuratore. La cessazione della copertura è immediata.

Articolo 4:103 Esclusione della copertura (1) La clausola che stabilisce il venir meno totale o parziale della copertura in caso di mancato rispetto delle misure di salvaguardia ha effetto nella misura in cui il danno è stato causato dal comportamento del contraente o assicurato con lo scopo di causare la perdita o il danno stesso e la consapevolezza che il danno si sarebbe con tutta probabilità verificato. (2) Il contraente o l’assicurato a seconda del caso, ha diritto all’indennizzo relativo a qualunque perdita causata da negligente violazione della misura di prevenzione, fermo restando la necessità che la clausola preveda chiaramente tale riduzione dell’indennizzo sulla base del grado di colpa.

Sezione Due: Aggravamento del rischio Articolo 4:201 Clausole che riguardano l’aggravamento del rischio Se il contratto di assicurazione contiene clausole che disciplinano l’aggravamento del rischio assicurato, la clausola deve essere senza effetto a meno che l’aggravamento del rischio in questione è essenziale e di un tipo specificato nel contratto di assicurazione.

Articolo 4:202 Dovere di informare sull’aggravamento del rischio (1) Se una clausola che riguarda l’aggravamento del rischio assicurato richiede la notifica dell’aggravamento, la notifica deve essere fornita dal contraente, dall’assicurato o beneficiario, secondo il caso, a condizione che la persona obbligata alla notifica era o avrebbe dovuto essere a conoscenza della copertura assicurativa e dell’aggravamento del rischio. La notifica da parte di altri soggetti ha comunque efficacia. (2) Se la clausola richiede che la notifica deve essere data entro un dato periodo di tempo determinato, tale termine deve essere ragionevole. La notifica ha effetto dalla spedizione.

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[Ndt] Il testo inglese è precautionary measure. Il commento spiega che si tratta tanto di c.d. condizioni di assicurabilità, quanto di condizioni di operatività della garanzia o di salvaguarda.

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(3) Nell’ipotesi di violazione del dovere di notifica, l’assicuratore non può rifiutare di pagare i danni conseguenti da un evento rientrante nell’oggetto della copertura a meno che il danno sia conseguenza dell’evento di aggravemnto del rischio non comunicato.

Articolo 4:203 Recesso e Risoluzione (1) Se il contratto prevede che, nel caso di aggravamento del rischio assicurato l’assicuratore ha il diritto di recedere dal contratto, tale diritto deve essere esercitato mediante notifica scritta al contraente entro un mese dal momento in cui l’aggravamento del rischio è conosciuta o diviene nota all’assicuratore. (2) La copertura termina un mese dopo il recesso o, se il contraente è in violazione intenzionale del dovere di cui all’Articolo 4:202, al momento del recesso. (3) Se un evento assicurato è causato da un aggravamento del rischio che il contraente conosce o avrebbe dovuto conoscere, prima che la copertura sia estinta, l’indennizzo non è dovuto se l’assicuratore non avrebbe assunto il rischio. Se, tuttavia, l’assicuratore avrebbe assicurato l’aggravamento del rischio ad un premio più elevato o a condizioni differenti, l’indennizzo deve essere corrisposto in proporzione o in accordo con tali termini e condizioni.

Sezione Tre: Riduzione del rischio Articolo 4:301 Conseguenze della riduzione del rischio (1) Se vi è una riduzione essenziale del rischio, il contraente ha il diritto di richiedere una riduzione proporzionale del premio per la durata residuale del contratto. (2) Se le parti non si accordano su una riduzione proporzionale entro un mese dalla richiesta, il contraente ha il diritto di risolvere il contratto mediante notifica scritta entro due mesi dalla richiesta.

Capitolo Cinque: Premio Assicurativo Articolo 5:101 Primo premio o premio unico Quando l’assicuratore prevede il pagamento della prima rata di premio o del premio unico quale condizione per la conclusione del contratto o per la decorrenza della copertura, tale clausola è inefficace a meno che: (a) la condizione è comunicata al richiedente per iscritto con linguaggio chiaro ed informa il richiedente della mancanza della copertura sino a quando il premio o la rata non sono pagati e (b) è trascorso il periodo di due settimane dopo la ricevuta dell’avviso di pagamento che rispetta i requisiti (a) senza che vi sia stato alcun pagamento.

Articolo 5:102 Premi successivi (1) La clausola che attribuisce all’assicuratore il diritto di non coprire il rischio nell’ipotesi di mancato pagamento dei premi successivi, è senza effetto a meno che (a) il contraente riceve l’avviso che dichiara il preciso ammontare del premio dovuto e la data di pagamento; (b) dopo la scadenza di pagamento del premio, l’assicuratore spedisce un avviso al contraente del preciso ammontare del premio dovuto accordando un periodo di tempo per il pagamen-

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to di almeno due settimane ed avvisando il contraente della imminente sospensione della copertura nel caso di mancato pagamento; e (c) il periodo addizionale di cui al punto (b) è scaduto senza che il pagamento sia stato effettuato. (2) L’assicuratore non sarà più responsabile decorso il termine di cui al par. 1(b). La copertura potrà riprendere per il futuro non appena il contraente paga l’ammontare dovuto a meno che il contratto è stato risolto in base all’Articolo 5:103.

Articolo 5:103 Risoluzione del contratto (1) Decorso il periodo previsto dall’Articolo 5:101 (b) o Articolo 5:102 par. 1(b), senza che alcun pagamento del premio sia stato effettuato, l’assicuratore ha il diritto di risolvere il contratto dando comunicazione scritta e sempre che la nota di pagamento prevista dall’Articolo 5:101 (b) ed il successivo avviso di cui all’Articolo 5:102 par. 1 (b), a seconda del caso, riporti l’avviso del diritto dell’assicuratore di risolvere il contratto. (2) Il contratto deve considerarsi risolto se, a seconda del caso, l’assicuratore non agisce per il pagamento: (a) della prima rata di premio entro due mesi dopo la scadenza del periodo indicato all’Articolo 5:101 (b); o (b) delle successive rate di premio entro due mesi dalla scadenza del periodo indicato all’Articolo 5:102 par. 1 (b).

Articolo 5:104 Divisibilità del premio Se un contratto di assicurazione è risolto prima della sua scadenza contrattuale, l’assicuratore ha diritto al premio solo per il periodo di copertura goduto.

Articolo 5:105 Diritto di pagare il premio L’assicuratore non ha il diritto di rifiutare il pagamento del premio da parte di un terzo se (a) il terzo agisce con l’assenso del contraente; oppure (b) il terzo ha un interesse legittimo nel mantenere la copertura e il contraente non ha pagato o è chiaro che non pagherà nel momento in cui il premio è dovuto.

Capitolo Sei: Evento Assicurato Articolo 6:101 Notifica dell’evento assicurato (1) Il verificarsi dell’evento assicurato deve essere notificato all’assicuratore dal contraente, dall’assicurato o dal beneficiario, a seconda del caso, sempre che la persona obbligata alla notifica conosceva o avrebbe dovuto conoscere dell’esistenza della copertura e del verificarsi dell’evento assicurato. La notifica effettuata da ogni altro soggetto è comunque valida. (2) Tale notifica deve essere fornita senza alcun ritardo. Essa è efficace dalla spedizione. Se il contratto richiede che la notifica sia data entro un certo periodo di tempo, tale periodo deve essere ragionevole e in nessun caso inferiore a cinque giorni. (3) L’indennizzo deve essere ridotto se l’assicuratore dimostra che ha subito pregiudizio dal ritardo nella notifica.

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Articolo 6:102 Cooperazione in caso di sinistro (1) Il contraente, l’assicurato o il beneficiario, a seconda del caso, devono cooperare con l’assicuratore nelle indagini sul sinistro rispondendo a richieste ragionevoli in particolare per – Ottenere informazioni circa le cause e gli effetti del sinistro; – Ottenere o fornire documenti o prove del sinistro; – Consentire l’accesso a dati correlati con i primi due. (2) Nell’ipotesi di violazione del par. 1 ed in base al par. 3, l’indennizzo è ridotto se l’assicuratore dimostra che è stato danneggiato dalla violazione. (3) Nell’ipotesi di violazione del par. 1 commessa con intenzione di causare danno o con un’azione deliberatamente imprudente o negligente e con la consapevolezza che tale danno si sarebbe, con tutta probabilità, verificato, l’assicuratore non è obbligato a pagare l’indennizzo.

Articolo 6:103 Accettazione del sinistro (1) L’assicuratore deve porre in essere tutti gli atti necessari (ragionevoli) per definire il sinistro senza ritardo. (2) A meno che l’assicuratore rifiuti il sinistro o differisca l’accettazione con una comunicazione scritta dando le motivazioni della sua decisione entro un mese dal ricevimento dei documenti rilevanti ed altre informazioni, il sinistro si intende accettato.

Articolo 6:104 Tempo di esecuzione (1) Quando il sinistro è stato accettato l’assicuratore paga o esegue il servizio promesso, a seconda del caso, senza alcun ritardo. (2) Nell’ipotesi in cui il valore totale del sinistro non può essere quantificato, ma il richiedente ha diritto almeno ad una parte di esso, tale parte deve essere pagata o eseguita senza alcun ritardo. (3) Il pagamento dell’indennizzo, sia ai sensi del par. 1 che del par. 2, deve essere eseguito non più tardi di una settimana dopo l’accettazione o quantificazione del sinistro o parte di esso, a seconda del caso.

Articolo 6:105 Ritardo nel pagamento12 (1) Se l’indennizzo non è pagato in base all’Articolo 6:104, il richiedente ha diritto agli interessi dal tempo in cui il pagamento era dovuto sino al momento del pagamento, calcolati alla rata di interessi applicati dalla Banca Centrale europea al suo più recente maggiore operazione di rifinanziamento operata il primo giorno di Calendario della metà d’anno in questione, più otto punti percentuali. (2) Il richiedente ha diritto ad ottenere il risarcimento dei danni per ogni perdita aggiuntiva causata dal ritardo nel pagamento dell’indennizzo.

Capitolo Sette: Prescrizione Articolo 7:101 Azione per il pagamento del premio L’azione per il pagamento del premio si prescrive decorso un anno dal momento in cui il pagamento era dovuto.

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Questo articolo è redatto sulla base dell’articolo 3 par. 1 (d) della Direttiva 2000/35/EC.

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Articolo 7:102 Azione per il pagamento dei diritti derivanti dal contratto di assicurazione (1) In generale, l’azione per l’esercizio dei diritti derivanti dal contratto di assicurazione si prescrive decorsi tre anni dal momento in cui l’assicuratore ha assunto o avrebbe dovuto assumere una decisione finale sul[la accettazione del] sinistro in base all’Articolo 6:103. In ogni caso l’azione si prescrive al più tardi decorso il periodo di 10 anni dall’accadimento del sinistro, eccetto nel caso di assicurazione sulla vita per cui il periodo è di 30 anni. (2) L’azione per il pagamento del riscatto nell’assicurazione vita si prescrive decorso un periodo di tre anni dal momento in cui il contraente riceve il resoconto finale dall’assicuratore. In ogni caso, tuttavia, l’azione si prescrive al più tardi decorsi 30 anni dalla scadenza del contratto di assicurazione sulla vita.

Articolo 7:103 Altri aspetti della prescrizione In base all’Articolo 7:101 e Articolo 7:102 dei PEICL, gli Articoli 14:101-14:503 dei Principle of European Contract Law (PECL)13 si applicano ai sinistri derivanti dal contratto di assicurazione. Il contratto di assicurazione può derogare a tali previsioni in base all’Articolo 1:103 par. 2 dei PEICL.

Parte Seconda: Principi Comuni alle assicurazioni indennitarie Capitolo Otto: Somma Assicurata e Valore Assicurato Articolo 8:101 Somma massima indennizzabile (1) L’assicuratore non è obbligato a pagare una somma superiore a quella necessaria per indennizzare le perdite effettivamente subite dall’assicurato. (2) La clausola che prevede la stima del danno risarcibile è valida anche se detto valore eccede il valore attuale del bene, sempre che non vi sia dolo o reticenza da parte del contraente o dell’assicurato al momento in cui il valore è stato stimato.

Articolo 8:102 Sottoassicurazione (1) L’assicuratore è responsabile di tutte le perdite subite dall’assicurato sino al massimale previsto, anche se la somma assicurata è inferiore al valore dei beni nel momento in cui si verficia il sinistro. (2) Tuttavia, quando l’assicuratore offre la copertura in base al par. 1, ha diritto alternativamente ad offrire l’assicurazione a condizione che l’indennità che deve essere corrisposta sia limitata alla proporzione tra la somma assicurata ed il valore reale del bene al momento del verificasi del sinistro. In tale caso, inoltre, i costi di salvataggio, come definiti all’Articolo 9:102, sono rimborsati nella stessa proporzione.

Articolo 8:103 Modifica dei termini in caso di sovrassicurazione (1) Se la somma assicurata eccede la perdita massima possibile in base all’assicurazione, entrambe le parti hanno diritto a richiedere una riduzione della somma assicurata e una corrispondente riduzione del premio per il periodo contrattuale rimanente. (2) Se le parti non sono d’accordo su tale riduzione entro un mese dalla richiesta, entrambe le parti hanno il diritto di risolvere il contratto. 13

Cfr. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Articolo 8:104 Assicurazione Cumulative (1) Se lo stesso interesse è assicurato separatamente con più di un assicuratore, l’assicurato ha diritto a richiedere l’indennizzo ad ognuno degli assicuratori sino al limite necessario per ottenere indennizzo per il danno effettivamente subito. (2) L’assicuratore al quale si rivolge l’assicurato è tenuto a pagare quanto previsto ai sensi di polizza, unitamente ai costi per il salvataggio se presenti, senza pregiudizio per i suoi diritti verso gli altri assicuratori. (3) Nel rapporto tra gli assicuratori, i diritti e le obbligazioni di cui al paragrafo 2 sono definiti in proporzione alle somme per le quali ciascuno di essi è tenuto ai sensi di contratto.

Capitolo Nove: Diritto all’Indennizzo Articolo 9:101 Causazione del danno (1) Il contraente e l’assicurato, a seconda del caso, non hanno diritto all’indennizzo se il danno è stato causato da un proprio atto o omissione posto in essere con l’intenzione di causare il danno o con comportamento deliberatamente imprudente o negligente e con la consapevolezza che il danno, con tutta probabilità, si sarebbe verificato. (2) Subordinatamente all’esistenza di una clausola di polizza chiara, che preveda la riduzione dell’indennizzo in base al grado di responsabilità, il contraente o l’assicurato, hanno diritto all’indennizzo in relazione ai danni causati da un proprio atto od omissione posto in essere con negligenza. (3) Ai fini dei par. 1 e 2 la causazione del danno comprene anche il caso in cui vi sia violazione del dovere di evitare il danno o di porre in essere le misure di salvataggio per limitare il danno.

Articolo 9:102 Spese di salvataggio e mitigazione del danno (1) L’assicuratore rimborsa le spese e i costi sostenuti dall’assicurato per l’adozione delle misure volte a ridurre il danno, sino al limite in cui tali costi e spese siano state ragionevolmente sostenute dall contraente o dall’assicurato al tenuto conto delle circostanze anche laddove tali misure siano state inidone per la riduzione del danno. (2) L’assicuratore indennizza il contraente o assicurato, a seconda del caso, in relazione ad ogni misura presa in conformità al par. 1 anche se calcolata insieme alla compensazione del danno assicurato l’indennizzo eccede la somma assicurata.

Capitolo Dieci: Diritto di Surroga Articolo 10:101 Surroga (1) In conformità al par. 3 l’assicuratore ha il diritto di surrogarsi nei confronti del terzo responsabile per la perdita nei limiti in cui ha indennizzato l’assicurato. (2) Nei limiti in cui l’assicurato rinuncia ad un suo diritto nei confronti del terzo in modo da pregiudicare il diritto di surroga dell’assicuratore, egli perde il diritto all’indennizzo nei limiti della perdita causata. (3) L’assicuratore non ha il diritto di surroga nei confronti dei familiari del contraente o assicurato, o persone in un rapporto sociale equivalente con il contraente o assicurato, o un impiegato del contraente o assicurato, eccetto quando si provi che il danno è stato causato da tali soggetti

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intenzionalmente o con comportamento deliberatamente negligente od imprudente e con la consapevolezza che il danno si sarebbe con tutta probabilità verificato. (4) L’assicuratore non esercita i suoi diritti di surroga a detrimento dell’assicurato.

Capitolo Undici: Persone Assicurate Diverse Dal Contraente Articolo 11:101 Diritto dell’assicurato (1) Nel caso di contratto di assicurazione stipulato in favore di persona diversa dal contraente, tale persona avrà diritto alla somma assicurata ed ai benefici derivanti dal contratto in caso di sinistro. (2) Il contraente non può recedere dal o risolvere il contratto a meno che: (a) il contratto preveda altrimenti (b) si sia verificato l’evento assicurato. (3) Il recesso o la risoluzione ha effetto quando la comunicazione è data all’assicuratore.

Articolo 11:102 Conoscenza da parte dell’assicurato dell’esistenza del contratto Le informazioni note alla persona assicurata, come individuata in base all’art. 11:101, non possono essere imputate al contraente, a meno che l’assicurato stesso fosse a conoscenza della sua posizione di assicurato, semprechè sussista il dovere del contraente a fornire le informazioni rilevanti e a lui note all’assicuratore.

Articolo 11:103 Violazione dei dovere da parte di uno solo degli assicurati La violazione del dovere di informazione da parte di uno solo degli assicurati non pregiudica negativamente i diritti delle altre persone assicurate in base al medesimo contratto, a meno che il [medesimo] rischio non fosse assicurato congiuntamente.

Capitolo Dodici: Rischio Assicurato Articolo 12:101 Inesistenza del rischio assicurato (1) Se il rischio non esiste al momento della conclusione del contratto o in nessun momento della durata contrattuale, nessun premio è dovuto. Tuttavia, l’assicuratore ha diritto ad una somma ragionevole per le spese sostenute. (2) Se il rischio assicurato cessa di esistere durante il periodo di assicurazione, il contratto si considera risolto nel momento in cui tale cessazione è comunicata all’assicuratore.

Articolo 12:102 Trasferimento della proprietà (1) Se la proprietà del bene assicurato è trasferita, il contratto di assicurazione si risolve entro un mese dall’avvenuto trasferimento, a meno che il contraente e il nuovo acquirente si accordano per una risoluzione anticipata. Tale regola non si applica al contratto di assicurazione stipulato a beneficio del futuro acquirente. (2) Il trasferimento della proprietà si considera assicurato nel momento in cui il rischio della proprietà assicurata è trasferito. (3) I par. 1 e 2 non si applicano (a) se l’assicuratore, il contraente ed il nuovo acquirente si accordano diversamente; o (b) ai trasferimenti di proprietà mediante successione mortis causa.

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Parte Terza: Principi Comuni Alle Assicurazioni A Somma Fissa Capitolo Tredici: Ammissibilità Articolo 13:101 Assicurazione a somma fissa Solo le assicurazioni danni, salute, vita, matrimonio, nascita o altre assicurazioni alle persona possono essere stipulate come assicurazione a somma fissa.

Parte Quarta: Assicurazione sulla responsabilità civile Capitolo Quattordici: Assicurazione sulla responsabilità civile generale Articolo 14:101 Costi di Difesa L’assicuratore rimborsa le spese di difesa sostenute ai sensi dell’Articolo 9:102.

Articolo 14:102 Protezione della vittima A meno che la vittima dia consenso scritto, la sua posizione non deve essere pregiudicata e/o influenzata da qualunque liquidazione del sinistro da parte del contraente o dell’assicurato e dell’assicuratore, se di comune accordo, né dalla rinuncia, dal pagamento o da un atto equivalente.

Articolo 14:103 Causa del danno (1) Né il contraente né l’assicurato, a seconda dei casi, ha il diritto di indennizzo nella misura in cui il danno sia stato causato da un atto o da un’omissione da parte sua con l’intento di provocare il danno stesso; questo comporta il mancato rispetto delle istruzioni specifiche dell’assicuratore dopo il verificarsi del sinistro, se questo è frutto di negligenza ed è stato causato con la consapevolezza che in caso contrario il danno probabilmente sarebbe stato aggravato. (2) Ai fini del par. 1 la causazione del danno include il non aver agito al fine di evitare o attenuare il danno stesso. (3) In base ad una clausola espressa nella polizza che preveda la riduzione del premio di assicurazione a seconda del grado di colpa da parte sua, il contraente o l’assicurato, a seconda dei casi, ha il diritto di indennizzo per l’ intero danno cagionato dalla negligente inosservanza di istruzioni specifiche dell’assicuratore dopo il verificarsi del sinistro.

Articolo 14:104 Riconoscimento della responsabilità (1) Una clausola del contratto di assicurazione che liberi l’assicuratore dai suoi obblighi nel caso in cui il contraente o l’ assicurato, a seconda dei casi, accetti o soddisfi la domanda della vittima è priva di effetto. (2) A meno che non acconsenta, l’assicuratore non deve essere vincolato da un accordo tra la vittima e il contraente o assicurato, a seconda dei casi.

Articolo 14:105 Attribuzione del diritto all’indennizzo E’ inefficace la clausola inserita in un contratto di assicurazione che privi l’assicurato del proprio diritto di cedere il diritto all’indennizzo.

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Articolo 14:106 Bonus No-Claim e Sistema Bonus Malus (1) Il contraente ha il diritto di richiedere in qualsiasi momento una dichiarazione14 relativa alle proprie denunce di sinistri negli ultimi cinque anni. (2) Se un assicuratore subordina la determinazione del premio o delle condizioni di copertura al numero o all’importo dei sinistri pagati in virtù della polizza, deve essere data dovuta considerazione richieste di sinistri da parte del contraente con altri assicuratori negli ultimi cinque anni.

Articolo 14:107 Evento Assicurato (1) L’evento assicurato deve essere il fatto, verificatosi durante il periodo di garanzia del contratto di assicurazione, che ha dato luogo alla responsabilità dell’assicurato a meno che le parti di un contratto di assicurazione a fini commerciali o professionali definiscano l’evento assicurato con riferimento ad altri criteri quali la richiesta presentata dalla vittima. (2) Se le parti contraenti definiscono l’evento assicurato con riferimento alla richiesta presentata dalla vittima, la copertura è concessa per i sinistri causati nel periodo di garanzia o entro un successivo periodo non inferiore a cinque anni, e che sono riconducibili ad un dato di fatto che si è verificato prima della fine del periodo di garanzia. Il contratto di assicurazione può escludere la copertura sulla base del fatto che, al momento della conclusione del contratto, il ricorrente era o avrebbe dovuto essere a conoscenza di circostanze che avrebbe dovuto prevedere essere in grado di dare adito a richieste risarcitorie.

Articolo 14:108 Azioni eccedenti la somma assicurata (1) Se il totale dei pagamenti dovuti a diverse vittime supera la somma assicurata, i pagamenti sono ridotti proporzionalmente. (2) L’assicuratore che, essendo a conoscenza dell’esistenza di altri soggetti danneggiati, ha in buona fede versato il risarcimento alle sole vittime note all’assicurazione, incorre in responsabilità nei confronti delle altre vittime fino al saldo della somma assicurata.

Capitolo Quindici: Domande di risarcimento e azione diretta Articolo 15:101 Azione diretta e eccezioni (1) Nella misura in cui il contraente o l’assicurato, a seconda dei casi, sia responsabile, la vittima ha diritto ad esercitare l’azione diretta per il risarcimento dei danni nei confronti dell’assicuratore ai sensi del contratto di assicurazione, a condizione che (a) l’assicurazione sia obbligatoria, o (b) il contraente o l’assicurato sia insolvente, o (c) il contraente o l’assicurato siano stati liquidati, o (d) la vittima abbia subito lesioni personali, o (e) la legge che disciplina la responsabilità civile preveda una azione diretta. (2) L’assicuratore può fare valere contro l’assicurato e contro il danneggiato le eccezioni relative al contratto di assicurazione, salvo laddove ciò sia escluso da specifiche disposizioni in caso di assicurazione obbligatoria. Tuttavia, l’assicuratore non è legittimato a sollevare eccezioni fondate sul comportamento del contraente e / o dell’assicurato dopo il verficarsi del sinistro.

14

Ndt: la dichiarazione di cui in articolo è comunemente nota come attestazione di rischio.

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Articolo 15:102 Obblighi di informazione (1) Su richiesta del danneggiato, il contraente e/o l’assicurato devono fornire le informazioni necessarie per esercitare l’azione diretta. (2) L’assicuratore informa il contraente per iscritto di qualsiasi richiesta di risarcimento formulata nei suoi confronti, senza indebito ritardo e, al più tardi, entro due settimane dal ricevimento della richiesta. Se l’assicuratore viola tale obbligo, il pagamento o il riconoscimento del debito nei confronti della vittima non pregiudicano i diritti del contraente [e/o assicurato]. (3) Se il contraente non fornisce all’assicuratore le informazioni sull’evento assicurato entro un mese dalla ricezione della comunicazione in conformità con il par. 2, si presume che il contraente abbia accettato che l’assicuratore provveda direttamente a gestire e definire il sinistro.Questa regola vale anche per gli assicurati che hanno effettivamente ricevuto tale comunicazione nei tempi sopraindicati

Articolo 15:103 Adempimento Il pagamento del sinistro al contraente o all’assicurato, a seconda dei casi, liberano l’assicuratore dai suoi obblighi nei confronti della vittima solamente se la vittima (a) ha rinunciato all’azione diretta oppure (b) non ha comunicato all’assicuratore la propria intenzione di presentare una azione diretta entro quattro settimane dalla ricezione della richiesta dell’assicuratore per iscritto.

Articolo 15:104 Prescrizione (1) L’azione contro l’assicuratore, se esperita dall’assicurato o dalla vittima, si prescrive quando l’azione della vittima contro l’assicurato è prescritta. (2) Il periodo di prescrizione per l’esercizio dell’azione da aprte della vittima contro l’assicurato è sospeso dal momento in cui l’assicurato viene a conoscenza che è stata formulata una richiesta diretta contro l’assicuratore fino al momento in cui l’azione diretta è inequivocabilmente accolta o rifiutata dall’assicuratore.

Capitolo Sedici: Assicurazione Obbligatoria Articolo 16:101 Ambito di applicazione (1) I PEICL possono essere scelti dalle parti di un contratto di assicurazione stipulato in adempimento di un obbligo di assicurare: (a) prescritto dal diritto comunitario, (b) prescritto in uno Stato membro, o (c) prescritto in uno Stato non membro, nella misura consentita dalla legge di detto Stato. (2) Il contratto di assicurazione soddisfa l’obbligo di contrarre un’assicurazione solo qualora sia conforme alle specifiche disposizioni che impongono l’obbligo.

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Parte Quinta: Assicurazione sulla vita Capitolo Diciassette: Disposizioni particolarti dell’assicurazione sulla vita Sezione Uno: Parti terze Articolo 17:101 Assicurazione sulla vita di un terzo Un contratto di assicurazione sulla vita di una persona diversa dal contraente non è valida, a meno che non vi sia il consenso informato reso per iscritto e firmato da parte della persona sulla cui vita è stipulata l’assicurazione. Qualsiasi modifica sostanziale intervenuta dopo la conclusione del contratto, compresa la variazione di beneficiario, della somma assicurata e della durata del contratto sarà priva di effetto in mancanza di specifico consenso. Tale consenso è necessario altresì in caso di cessione del contratto o vincolo ovvero onere apposto sul contratto e/o i diritti derivanti dal contratto di assicurazione compreso il diritto a ricevere la prestazione assicurata.

Articolo 17:102 Beneficiario del pagamento dell’assicurazione (1) Il contraente può designare uno o più beneficiari delle somme assicurate e può modificare o revocare tale designazione, a meno che la designazione sia stata dichiarata irrevocabile. La designazione, la modifica o la revoca di beneficio, se non contenute in un testamento, devono essere rese per iscritto e inviate all’assicuratore. (2) Il diritto di designare, modificare o revocare la designazione del beneficiario cessa con la morte del contraente o al verificarsi dell’evento assicurato, a seconda di quale si verifica prima. (3) Il contraente o gli eredi del contraente, a seconda dei casi, sono considerati come beneficiari del pagamento dell’assicurazione se (a) il contraente non ha designato un beneficiario o (b) la designazione di un beneficiario è stata revocata e non sono stati designati altri beneficiari o (c) un beneficiario è morto prima che si sia verificato l’evento assicurato e non sono stati designati altri beneficiari. (4) Se due o più beneficiari sono stati designati e la designazione di uno di loro è revocata o uno di essi muore prima che si verifichi l’evento assicurato, la somma parte dovuta al beneficiario o ai beneficiari in questione deve essere redistribuita tra gli altri beneficiari in proporzione, se non diversamente specificato dal contraente in conformità con il par. 1. (5) Fatte salve le norme in materia di annullamento, di nullità o di inopponibilità degli atti pregiudizievoli ai creditori previste dal diritto fallimentare, la massa fallimentare del contraente non avrà alcun diritto relativo alle somme dell’assicurazione, al valore di riduzione o di riscatto sino a che tali somme non siano state effettivamente pagate al contraente o ai beneficiari. (6) L’assicuratore che versa i soldi dell’assicurazione a una persona designata in conformità con il par. 1 è liberato dall’obbligo di pagare, a meno che non sapesse che la persona in questione non aveva diritto ai soldi dell’assicurazione.

Articolo 17:103 Beneficiario del valore di riscatto (1) A prescindere dalla designazione di beneficio ai sensi dell’articolo 17:102, il contraente può designare un beneficiario del valore di riscatto, se del caso, e può modificare o revocare tale designazione. La designazione, modifica o revoca devono essere presentate per iscritto e inviati all’assicuratore. (2) Il contraente deve essere considerato come il beneficiario del valore di riscatto, se

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(a) nessun beneficiario del valore di riscatto è stato designato o (b) la designazione di un beneficiario del valore di riscatto è stato revocato e non altri beneficiari sono stati designati o (c) il beneficiario del valore di riscatto è morto e altri beneficiari sono stati designati. (3) L’articolo 17:102 par. 2 e da 4 a 6 si applicano a quanto previsto dal presente articolo, fatte salve le necessarie modifiche.

Articolo 17:104 Cessione o vincoli (1) Qualora il beneficiario sia irrevocabilmente designato, la cessione o la apposizione di vincoli sul contratto di assicurazione o sul diritto alle somme assicurate da parte del contraente devono ritenersi inefficaci a meno che il beneficiario abbia acconsentito per iscritto. (2) La cessione o l’apposizione di vincoli o ogni altro onere sul diritto al pagamento delle somme assicurate da parte del beneficiario è da ritenersi privo di effetti a meno che il contraente abbia acconsentito per iscritto.

Articolo 17:105 Rinuncia all’eredità Qualora il beneficiario sia un erede della defunta persona a rischio e abbia rinunciato all’eredità, il solo fatto della rinuncia non pregiudica la sua posizione nell’ambito del contratto di assicurazione.

Sezione Due: Fase iniziale e durata del contratto Articolo 17:201 Doveri precontrattuali di informazione del richiedente (1) Tra le informazioni che devono essere fornite dal contraente ai sensi dell’articolo 2:101 par. 1, devono essere incluse quelle circostanze di cui la persona a rischio era o avrebbe dovuto essere a conoscenza. (2) Le sanzioni per la violazione dei doveri precontrattuali di informazione ai sensi degli articoli 2:102, 2:103 e 2:105, ma non ai sensi dell’articolo 2:104, devono essere disponibili per cinque anni dopo la conclusione del contratto.

Articolo 17:202 Doveri precontrattuali di informazione dell’assicuratore (1) L’assicuratore informa il richiedente sul fatto che egli ha il diritto di partecipazione agli utili. La ricezione di tali informazioni deve essere provata da una dichiarazione esplicita contenuta in un documento separato dal modulo di domanda. (2) Il documento che deve essere fornito dall’assicuratore ai sensi dell’articolo 2:201 deve contenere le seguenti informazioni: (a) per quanto riguarda l’assicuratore: un riferimento specifico alla pubblicazione obbligatoria della relazione annuale sulla sua solvibilità e sulla condizione finanziaria; (b) per quanto riguarda gli obblighi contrattuali dell’assicuratore: (i) una spiegazione di ogni beneficio e ogni opzione, (ii) informazioni sulla percentuale del premio attribuibile a ciascuna garanzia, principale o complementare, a seconda dei casi; (iii) i metodi di calcolo e di assegnazione di bonus tra cui una specificazione del diritto previdenziale applicabile; (iv) l’indicazione dei valori di riscatto e e la misura in cui essi sono garantiti;

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(v) per le polizze unit-linked: una spiegazione delle quote alle quali le prestazioni sono collegate, e una indicazione della natura delle attività sottostanti; (vi) le informazioni generali relative al regime fiscale applicabile al tipo di polizza. (3) Inoltre, specifiche informazioni devono essere fornite al fine di facilitare una corretta comprensione dei rischi sottostanti il contratto assunti dal contraente. (4) Se le quotazioni dell’assicuratore in cifre vanno oltre i pagamenti contrattualmente garantiti esso fornisce l’ammontare dei possibili vantaggi al richiedente con un modello di calcolo in cui si afferma il possibile beneficio di maturità sulla base dei principi attuariali per il calcolo del premio con tre diversi tassi di interesse. Ciò non si applica ai contratti di assicurazione che coprono rischi a fronte dei quali l’erogazione della prestazione è non è garantita né alle polizze unit-linked. L’assicuratore deve indicare in modo chiaro e comprensibile per l’assicurato che il modello di calcolo rappresenta solo un modello basato su presupposti fittizi e che il contratto non garantisce eventuali pagamenti.

Articolo 17:203 Periodo di ripensamento15 (1) Per i contratti di assicurazione sulla vita, il periodo di recesso di cui all’articolo 2:303 par. 1 è pari ad un mese dal ricevimento dell’accettazione o dalla consegna dei documenti di cui all’articolo 2:501 e all’articolo 17:202, se successiva. (2) Il diritto del contraente di esercitare il diritto di recesso ai sensi dell’articolo 2:303 par. 1 cessa un anno dopo la conclusione del contratto.

Articolo 17:204 Diritto di recesso [porre termine]16 del contraente (1) Il contraente ha il diritto di recedere da un contratto di assicurazione sulla vita che non preveda un valore di riduzione o un valore di riscatto, a condizione che il recesso non abbia effetto prima di un anno dopo la conclusione del contratto. Il diritto di recedere prima della scadenza del contrattuale può essere escluso nel caso in cui è stato pagato un premio unico. Il recesso deve essere esercitato in forma scritta e diventa efficace due settimane dal ricevimento della disdetta da parte dell’assicuratore. (2) Se il contratto di assicurazione sulla vita ha maturato il valore di riduzione o il valore di riscatto, si applicano gli articoli 17:601 e 17:603.

Articolo 17:205 Diritto di recesso dell’assicuratore L’assicuratore ha il diritto di recedere da un contratto di assicurazione sulla vita solo nella misura consentita dal presente capitolo.

Sezione Tre: Modifiche durante il periodo contrattuale Articolo 17:301 Obblighi post contrattuali di informazione dell’assicuratore (1) Se possibile, l’assicuratore ogni anno deve fornire all’assicurato una dichiarazione scritta del valore attuale dei premi collegati alla polizza.

15

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L’ Articolo 17:203 par. 1 è redatto sulla base dell’ Articolo 35 della Direttiva 2002/83/CE sull’ Assicurazione sulla vita e sull’articolo 6 della Direttiva 2002/65/CE. [Ndt] Si intende il diritto di porre termine, con disdetta o recesso, al contratto, quale diritto diverso dal ripensamento.

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(2) In aggiunta ai requisiti di cui all’articolo 2:701, l’assicuratore informa il contraente senza indugio su qualsiasi modifica relativa: (a) alle condizioni di polizza, generali e speciali; (b) in caso di modifica delle condizioni di polizza o una modifica dei PEICL: le informazioni di cui all’articolo 2:201 lett. f, g, nonché all’articolo 17:202 par. 2 lett. b punti da I a V. (3) L’articolo 17:202 par. 4 si applica anche quando vengono forniti i dati relativi alla stima dei possibili benefici, in qualsiasi momento durante il periodo contrattuale. Qualora l’assicuratore ha fornito dati, prima o dopo la conclusione del contratto, circa il potenziale di sviluppo futuro della partecipazione agli utili, l’assicuratore informa il contraente in merito a eventuali differenze tra lo sviluppo attuale e dati iniziali.

Articolo 17:302 Aggravamento del rischio In un contratto di assicurazione sulla vita, una clausola che specifica l’età o deterioramento della salute come aggravamenti del rischio ai sensi dell’articolo 4:201 è considerata come una clausola abusiva ai sensi dell’articolo 2:304.

Article 17:303 Adeguamento del premio e benefici a pagamento (1) In un contratto di assicurazione sulla vita che copre rischi per i quali l’assicuratore è certo di essere responsabile, l’assicuratore ha diritto soltanto ad un adeguamento in conformità con il par. 2 e 3. (2) L’adeguamento di premio è consentito nel caso in cui vi sia stato un cambiamento imprevedibile e permanente in relazione ai rischi biometrici utilizzati come base per il calcolo del premio, in cui l’aumento è necessario per garantire la continua capacità di pagare le prestazioni assicurative e nel caso in cui l’aumento sia stato concordato da un fiduciario indipendente o dall’autorità di vigilanza. Il contraente ha il diritto di compensare l’aumento del premio con una congrua riduzione delle prestazioni assicurative. (3) Nel caso di polizza con premio già versato, l’assicuratore ha il diritto di ridurre le prestazioni assicurative, alle condizioni di cui al par. 2. (4) L’adeguamento in conformità con il par. 2 o 3 non è ammesso: (a) nella misura in cui un errore è stato commesso nel calcolo del premio e / o benefici di cui un attuario competente e diligente avrebbe dovuto essere a conoscenza, o (b) se il calcolo sottostante non viene applicato a tutti i contratti compresi quelli conclusi dopo la regolazione. (5) L’aumento del premio o la riduzione delle prestazioni avrà effetto tre mesi dopo che l’assicuratore ha informato l’assicurato con comunicazione scritta in merito all’aumento del premio o la riduzione delle prestazioni, indicandone le ragioni ed informando esplicitamente il contraente del suo diritto di esigere un riduzione delle prestazioni. (6) In un contratto di assicurazione sulla vita che copre rischi per i quali l’assicuratore sarà sicuramente tenuto a versare l’importo garantito, l’assicurato ha diritto ad una riduzione di premio che, a causa di un imprevedibile e permanente cambiamento in relazione ai rischi biometrici utilizzati come base per la calcolo del premio, rende l’importo originario del premio non più idoneo e necessario al fine di garantire la capacita dell’assicuratore di pagare la prestazione assicurata. La riduzione deve essere concordata da un fiduciario indipendente o dall’autorità di vigilanza. (7) I diritti di cui al presente articolo possono essere esercitati non prima di cinque anni dopo la conclusione del contratto.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Articolo 17:304 Modifica dei termini e delle condizioni (1) La clausola che consente all’assicuratore di modificare i termini e le condizioni diverse dal premio e dalle prestazioni dovute è nulla, a meno che la modifica sia diretta: (a) ad adeguarsi ad una modifica a norme di legge o di vigilanza, comprese le misure vincolanti adottate dall’autorità di vigilanza, o (b) a dare attuazione ad una modifica di norme imperative del diritto nazionale applicabile in relazione a piani previdenziali e/o di diritto del lavoro, o (c) a dare attuazione ed adeguarsi ad una modifica delle norme nazionali che impongono specifici obblighi e(o requisiti del contratto di assicurazione sulla vita, al fine di beneficiare di un trattamento fiscale speciale o per le sovvenzioni/riduzioni fiscali o beneficiali statali, o (d) a sostituire una clausola del contratto ai sensi dell’articolo 2:304 par. 2 comma 2. (2) La modifica avrà effetto all’inizio del terzo mese dopo che l’assicurato ha ricevuto comunicazione scritta per informare l’assicurato circa l’alterazione e le relative motivazioni. (3) Il par. 1 si applica fatti salvi altri requisiti per la validità delle clausole di alterazione.

Sezione Quattro: Rapporto con il diritto nazionale Articolo 17:401 Piani pensionistici Un contratto di assicurazione sulla vita, relativo ad un piano pensionistico è soggetto alle norme imperative del diritto nazionale applicabili ai piani previdenziali. I PEICL si applicano solo nella misura compatibile con queste regole.

Articolo 17:402 Trattamento fiscale e sussidi statali I PEICL non pregiudicano le norme nazionali che impongono specifici obblighi o requisiti relativi al contratto di assicurazione sulla vita al fine di beneficiare di un trattamento fiscale speciale o di sussidi/incentivi o benefici statali. In caso di conflitto tra tali norme di diritto nazionale applicabili e le disposizioni dei PEICL, questi ultimi possono prevedere la deroga al diritto nazionale.

Sezione Cinque: Evento assicurato Articolo 17:501 Indagini dell’assicuratore e obbligo di informazione (1) L’assicuratore che ha motivo di ritenere che l’evento assicurato possa essersi verificato adotta misure ragionevoli per l’accertamento di tale evento. (2) L’assicuratore, sapendo che si è verificato l’evento assicurato, si adopera per individuare l’identità e l’indirizzo del beneficiario e di conseguenza per informarlo del verificarsi dell’evento. Tali informazioni devono essere rese entro e non oltre 30 giorni dopo che l’assicuratore venga a conoscenza della identità e dell’indirizzo del beneficiario. (3) Se un assicuratore viola quanto previsto dal par. 2, la prescrizione del diritto del beneficiario è sospesa fino a quando il beneficiario abbia conoscenza del proprio diritto.

Articolo 17:502 Suicidio (1) Se, entro un anno dalla conclusione del contratto, la persona a rischio si suicida, l’assicuratore non è tenuto a corrispondere il capitale o l’indennizzo previsto. In tal caso, l’assicuratore versa il valore di riscatto e gli utili riferiti al contratto, secondo quanto previsto dall’articolo 17:602.

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Italian: Principi di Diritto Europeo del Contratto di Assicurazione (PEICL)

(2) Il par. 1 non si applica se (a) la persona a rischio, al momento del suicidio, ha agito senza possibilità di determinare liberamente il suo intento, o (b) si è dimostrato oltre ogni ragionevole dubbio che, al momento della conclusione del contratto, la persona a rischio non aveva intenzione di suicidarsi.

Articolo 17:503 Omicidio dell’assicurato (1) Quando un beneficiario uccide volontariamente e con intenzione l’assicurato, la sua designazione come beneficiario si considera revocata. (2) La cessione del credito avente ad oggetto le somme assicurate è priva di effetto se il beneficiario o il titolare delle somme uccide intenzionalmente l’assicurato. (3) Quando il contraente che è anche il beneficiario uccide con atto doloso l’assicurato, nessun indennizzo è dovuto. (4) Il presente articolo non si applica quando ricorrano cause di giustificazione penalmente rilevanti per l’omicidio, quale la legittima difesa.

Sezione Sei: Conversione/riduzione e cessione Articolo 17:601 Conversione/riduzione del contratto (1) L’articolo 5:103 non si applica ai contratti di assicurazione sulla vita che hanno maturato un valore di conversione/riduzione o di riscatto. Tali contratti devono essere convertiti in polizze con premio interamente pagato a meno che il contraente richieda il pagamento del valore di riscatto entro quattro settimane dopo aver ricevuto le informazioni di cui al par. 2. (2) L’assicuratore informa il contraente del valore di conversione/riduzione e del valore di riscatto entro quattro settimane dalla scadenza del termine di cui all’articolo 5:101 (b) o dell’articolo 5:102 par. 1 (b) e chiede al contraente di scegliere tra la conversione e il pagamento del valore di riscatto. (3) La richiesta di conversione/riduzione o del pagamento del valore di riscatto deve essere in forma scritta.

Articolo 17:602 Cessione del contratto (1) Il contraente può in qualsiasi momento richiedere all’assicuratore per iscritto di pagare, in tutto o in parte, il valore di riscatto che la politizza ha maturato, a condizione che ciò non abbia effetto prima di un anno dopo la conclusione del contratto. Il contratto deve essere regolato o terminato di conseguenza. (2) Fatto salvo l’articolo 17:601, se un contratto di assicurazione sulla vita, che ha maturato un valore di riscatto è terminato, annullato o comunque reso inefficace da parte dell’assicuratore, quest’ultimo è tenuto a pagare il valore di riscatto, anche nel caso di cui all’articolo 2:104. (3) L’assicuratore informa il contraente, su richiesta, ma in ogni caso ogni anno, circa l’importo attuale del valore di riscatto e la misura in cui è garantito. (4) La quota dei profitti ai quali l’assicurato abbia diritto deve essere versata in aggiunta al valore di riscatto, a meno che la quota sia già stata presa in considerazione nel calcolo del valore di riscatto. (5) Le somme dovute a norma del presente articolo sono versate entro due mesi dal ricevimento della richiesta del contraente da parte dell’assicuratore.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Articolo 17:603 Valore di riduzione; Valore di riscatto (1) Il contratto di assicurazione deve indicare il modo in cui il valore di conversione/riduzione e / o il valore di riscatto è calcolato in conformità con la legge dello Stato membro dell’assicuratore. Il modo in cui ha dichiarato il calcolo del riscatto e / o il valore di riduzione deve essere conforme ai principi attuariali stabiliti al par. 2. (2) Quando l’assicuratore detrae i costi della conclusione del contratto, deve farlo in quantità uguali e per un periodo non inferiore a cinque anni. (3) L’assicuratore ha il diritto di detrarre un importo appropriato, che viene calcolato in base ai principi attuariali stabiliti, per coprire i costi relativi al pagamento del valore di riscatto, a meno che il calcolo includa già tale riduzione.

Parte Sesta: Assicurazione di gruppo Capitolo Diciotto: Disposizioni speciali per le assicurazioni di gruppo Sezione Uno: Assicurazioni di gruppo o collettive Articolo 18:101 Ambito di applicazione I contratti di assicurazione di gruppo sono soggetti ai PEICL a condizione che il soggetto che ha creato il gruppo e l’assicuratore abbiano stipulato l’accordo ai sensi dell’articolo 1:102. Il gruppo assicurativo è o accessorio e soggetto alla sezione 2 del presente capo o volontaria e soggetta alla sezione 3 del presente capo.

Articolo 18:102 Obbligo generale di diligenza dell’organizzatore del gruppo (1) Nel corso delle trattative e dell’esecuzione delle prestazioni di un contratto di assicurazione di gruppo, l’organizzatore del gruppo deve agire con lealtà e buona fede, tenendo conto degli interessi legittimi di ogni membro del gruppo. (2) L’organizzatore del gruppo trasmette eventuali avvisi emessi dallo stesso assicuratore per i membri del gruppo e li informa su eventuali modifiche del contratto.

Sezione Due: Assicurazione di gruppo accessoria Articolo 18:201 Applicazione dei PEICL Se necessario, i PEICL si applicano a gruppi assicurativi accessori mutatis mutandis.

Articolo 18:202 Obblighi di informazione (1) Quando un soggetto aderisce al gruppo di assicurati, l’organizzatore del gruppo deve senza indugio informare il nuovo membro circa (a) l’esistenza del contratto di assicurazione, (b) l’estensione della copertura, (c) le misure di prevenzione ed eventuali altri requisiti per la corretta operatività della opertura, e (d) la procedura da attivare in caso di verificazione di sinistri. (2) L’onere di provare che il membro del gruppo abbia ricevuto informazioni richieste dal par. 1 spetta all’organizzatore del gruppo.

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Italian: Principi di Diritto Europeo del Contratto di Assicurazione (PEICL)

Articolo 18:203 Recesso dell’assicuratore (1) Ai fini dell’applicazione dell’articolo 2:604, l’esercizio del diritto di recesso da parte dell’assicuratore deve essere considerato come ragionevole solo se si limita all’esclusione dalla copertura del membro del gruppo per il quale si è verificato l’evento assicurato. (2) Ai fini dell’articolo 4:102 e 4:203 articolo par. 1, l’esercizio del diritto di recesso da parte dell’assicuratore avrà solo l’effetto di escludere dalla copertura i membri del gruppo che non hanno rispettato e/o adottato le misure di precauzione idonee o i cui rischi si sono aggravati. (3) Ai fini dell’applicazione dell’articolo 12:102, la risoluzione del contratto di assicurazione ha l’esclusivo effetto di escludere dalla copertura i membri del gruppo che hanno trasferito i diritti o la proprietà del bene assicurato.

Articolo 18:204 Diritto di prosecuzione della copertura – Assicurazioni di gruppo sulla vita (1) Se un contratto di assicurazione sulla vita di gruppo accessorio viene terminato o se un membro lascia il gruppo, la copertura termina dopo tre mesi o con la scadenza del contratto per il gruppo di assicurazione sulla vita, se anteriore. Quando ciò si verifica, il membro del gruppo ha diritto d avere una copertura equivalente in virtù di un nuovo contratto individuale con l’assicuratore in questione senza una nuova analisi e valutazione del rischio. (2) L’organizzatore del gruppo informa il membro del gruppo iscritto, senza indugio su (a) la cessazione imminente della sua copertura nell’ambito del contratto di assicurazione sulla vita di gruppo, (b) i suoi diritti ai sensi del par. 1 e (c) modalità di esercizio di tali diritti. (3) Se il membro del gruppo ha indicato la sua intenzione di esercitare il proprio diritto ai sensi dell’articoli 18:204 par. 1, il contratto tra l’assicuratore e il membro del gruppo prosegue come un contratto di assicurazione individuale ad un premio calcolato sulla base di una polizza individuale in quel momento senza prendere in considerazione l’attuale stato di salute o l’età del membro del gruppo.

Sezione Tre: Assicurazione di gruppo volontaria Articolo 18:301 L’assicurazione di gruppo volontaria in generale (1) Si ha assicurazione di gruppo volontaria quando vi è un contratto quadro tra l’assicuratore e l’organizzatore di gruppo sulla base del quale sono stipulati contratti individuali di assicurazione tra l’assicuratore e i singoli membri del gruppo. (2) I PEICL si applicano ai contratti di assicurazione singoli derivanti dall’accordo quadro, quando tale accordo abbia previsto la loro applicazione. In tal caso, i PEICL non si applicano al contratto quadro, ad eccezione degli articoli 18:101 e 18:102.

Articolo 18:302 Modifica dei termini e delle condizioni La modifica delle condizioni di contratto quadro deve riguardare solo i contratti di assicurazione individuali se effettuate in conformità con i requisiti di cui agli articoli 2:603, 17:303 e 17:304, a seconda dei casi.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Article 18:303 Prosecuzione della copertura La risoluzione del contratto quadro o la cessazione di appartenenza [al gruppo] da parte di un assicurato non avrà alcun effetto sulle assicurazioni individuali.

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Japanese version by Kyoko Kaneoka, Souichirou Kozuka and Satoshi Nakaide

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䶻䵯≬椉⯠侓劔ቋ嬺≬椉劔ሯ䟿ቍቮ⫃⚗

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䶻䵯拸㽤㊶

䶻䵯≬椉ⴡ⅚劔

䶻䵯嬺≬椉Ⓒ䥙 䶻捷⸩櫜≬椉቎␀抩ሼቮ尞⸩

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䶻䵯≬椉ℚ㟔

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䶻䵯䀗䅔㣑╈

䶻捷⥲⇢≬椉

䶻捷㚜⹂≬椉቎␀抩ሼቮ尞⸩

䶻䵯⥲⇢≬椉ቑ䔈ⓖ 䶻乏⥲⇢≬椉抩ⓖ 䶻乏⏷❰┯⏴⥲⇢≬椉 䶻乏↊㎞┯⏴⥲⇢≬椉

䶻䵯≬椫孫⎮ ሸቯቮ☀椉 䶻乏℗棁㘹函 䶻乏☀椉ቑ⬦┯ 䶻乏☀椉ቑ䂪⺠ 䶻䵯≬椉㠨

䶻䵯≬椉摠櫜♙ቖ≬椉∰櫜 䶻䵯≬椉摠嵚㻑㲸 䶻䵯ⅲ⇜㲸

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

䶻䵯ⓜ㙟䤓尞⸩ 䶻乏3(,&/ቑ拸䞷 䶻㧰⸮役㽤䤓拸䞷乓⦁   3(,&/ቒᇬ䦇℡≬椉ት⚺ባ䱐≬椉⏷咻቎拸䞷ሸቯቮᇭ  3(,&/ቒᇬ␜≬椉቎ቒ拸䞷ሸቯቍሧᇭ

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䶻㧰屲摗 3(,&/ቒᇬቀቑ㠖岏ᇬ㠖厗ᇬ䥽䤓♙ቖ㹣憒㽤䤓卛㣾቎䏶ቬሺ቉屲摗ሸቯቮᇭቋቭቲ ሴᇬ≬椉⒕摝቎ርሴቮ≰券崯⸮ᇬ⯠侓栱≑ቑ⸘⸩㊶ᇬ拸䞷ቑ倀₏㊶♙ቖ≬椉⯠侓劔 ቑ拸⒖ቍ≬帆ት≒拁ሼቮ㉔尐㊶ሯ揜㏽ሸቯቍሴቯቓቍቬቍሧᇭ

䶻㧰⦌␔㽤♙ቖ₏咻☮ⓖ   ⦌  ␔㽤ቒᇬ3(,&/ት棟⸩ሼቮቂቤ቎ብ孫⏔ሼቮቂቤ቎ብ♑䏶ሼቮሶቋቒ峀ሸቯቍ ሧᇭ3(,&/቎⦉㦘ቑ尞⸩ሯ⚺ቡቯ቉ሧቍሧ≬椉ቑ⒕摝ቑቢት⺍廰ቋሺ቉Ⓟ⸩ሸቯ ቂ㇆嫛䤓ቍ⦌␔㽤቎ቇሧ቉ቒᇬሶቑ棟ቭቊቒቍሧᇭ  ≬椉⯠侓቎栱ሼቮ⟞櫛ቊሥቆ቉3(,&/቎ርሧ቉㢝䯉䤓቎屲㼉ሸቯ቉ሧቍሧብቑ ቒᇬዅዙዊአኮ⯠侓㽤☮ⓖ3(&/ 1቎㈢ቆ቉屲㼉ሸቯᇬቀቑ₼቎ብ拸㇢ቍ尞⸩ሯቍ ሧ⫃⚗ቒᇬᨁᨑ┯䥮⦌ቑ㽤቎␀抩ቑ₏咻☮ⓖ቎⪉ቈሧ቉屲㼉ሸቯቮብቑቋሼቮᇭ

䶻乏偞ⓖ 䶻㧰≬椉⯠侓   ᇷ≬椉⯠侓ᇸቋቒᇬ㇢ℚ劔ቑ₏㡈ᇬሼቍቲቄ≬椉劔ሯᇬ䦇㓚㡈ᇬሼቍቲቄ≬椉⯠ 侓劔቎⺍ሺ቉ᇬ≬椉㠨ት⺍∰ቋሺ቉䔈⸩ቑ☀椉቎⺍ሼቮ≬椫孫⎮ ት侓ሼቮ⯠侓ት ሧሩᇭ 1

Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003)♑䏶ᇭ

604

Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

 ᇷ≬椉ℚ㟔ᇸቋቒᇬ≬椉⯠侓቎ርሧ቉䔈⸩ሸቯቂ☀椉ሯ⸮䚍ሼቮሶቋትሧሩᇭ  ᇷ㚜⹂≬椉ᇸቋቒᇬ≬椉劔ሯ≬椉ℚ㟔ቑ䤉䞮቎ቫቭ䞮ሻቂ㚜⯀ት⫺孫ሼቮ券╨ት 弯ሩ≬椉ትሧሩᇭ   ᇷ  ⸩櫜≬椉ᇸቋቒᇬ≬椉劔ሯ≬椉ℚ㟔ቑ䤉䞮቎⺍ሺ቉⸩櫜ቑ摠攼ት㞾㓤ሩ券╨ት 弯ሩ≬椉ትሧሩᇭ  ᇷ弻↊≬椉ᇸቋቒᇬ嬺≬椉劔ሯ嬺⹂劔቎⺍ሺ቉㽤䤓ቍ弻↊ት弯ሩሶቋት☀椉ቋሼ ቮ≬椉ትሧሩᇭ  ᇷ䞮✌≬椉ᇸቋቒᇬ≬椉劔ቑ券╨♗ቒ≬椉㠨ቑ㞾㓤ሧሯᇬ≬椉⺍廰劔ቑ㸊ℰ♗ቒ 䞮ⷧቑቢ቎ቫቆ቉⸩券ሸቯቮ≬椉ℚ㟔቎ሮሮቮ≬椉ትሧሩᇭ  ᇷ⥲⇢≬椉⯠侓ᇸቋቒᇬ≬椉劔ቋ⥲⇢ⅲ嫷劔ቑ栢቎ርሴቮᇬ⥲⇢ⅲ嫷劔ቋ␀抩ቑ 栱≑ት㦘ሼቮ⥲⇢㱚㒟❰ቑⒸ䥙ቑቂቤቑ⯠侓ትሧሩᇭ⥲⇢≬椉⯠侓ቒᇬ⥲⇢㱚㒟 ❰ቑ⹅㡞ብቡቂ≬椫孫⎮ ሼቮሶቋሯቊሰቮᇭ  ᇷ㇆Ⓟ┯⏴⥲⇢≬椉ᇸቋቒᇬ⥲⇢㱚㒟❰ሯ⥲⇢቎㓏⻭ሼቮቋ呹╤䤓቎≬椉ትⅧሸ ቯᇬ≬椉ት㕡倅ሼቮሶቋሯቊሰቍሧ⥲⇢≬椉ትሧሩᇭ  ᇷ↊㎞┯⏴⥲⇢≬椉ᇸቋቒᇬ⥲⇢㱚㒟❰ሯ⊚ⅉቋሺ቉䟂手ቢᇬ♗ቒቀቑ≬椉ት㕡 倅ሺቍሮቆቂ俟㨫ቋሺ቉ᇬቀቑ≬椉ትⅧሸቯቮሶቋቋቍቮ⥲⇢≬椉ትሧሩᇭ

䶻㧰抌┯䤓⸩券   ᇷ嬺≬椉劔ᇸቋቒᇬ㚜⹂≬椉቎ርሧ቉㚜⯀቎⺍ሺ቉ቀቑⒸ䥙ሯ≬帆ሸቯቮ劔ትሧ ሩᇭ  ᇷ≬椉摠♦♥ⅉᇸቋቒᇬ⸩櫜≬椉቎ርሧ቉≬椉摠ቑ㞾㓤ሧት♦ሴቮቜሰ劔ትሧ ሩᇭ  ᇷ≬椉⺍廰劔ᇸቋቒᇬቀቑ劔ቑ䞮✌ᇬ⋴ㅆᇬ愺⇢ቑ㳮厌♗ቒ愺⇢ቑ䕅㏚ሯ≬椉቎ Ⅷሸቯቮ劔ትሧሩᇭ   ᇷ  嬺⹂劔ᇸቋቒᇬ彯⎮弻↊≬椉቎ርሧ቉ᇬቀቑ劔ቑ㸊ℰᇬ⍆⹂♗ቒ㚜⯀቎ቇሰ嬺 ≬椉劔ሯ弻↊ት弯ሩ劔ትሧሩᇭ  ᇷ≬椉ⅲ䚕ⅉᇸቋቒᇬ≬椉劔ሯ≬椉⯠侓ቑ弸⮁♗ቒ丰䚕ቑቂቤ቎怆䞷ሺቂ≬椉ⴡ ⅚劔ትሧሩᇭ  ᇷ≬椉㠨ᇸቋቒᇬ≬椫孫⎮ ቑ㙟∪቎⺍ሼቮ⺍∰ቋሺ቉≬椉⯠侓劔ሯ≬椉劔቎⺍ሺ ቉㞾㓤ሩቜሰ摠攼ትሧሩᇭ  ᇷ⯠侓㦮栢ᇸቋቒᇬ⯠侓ቑ偯俟㣑቎栚ⱚሺᇬ⚗㎞ሸቯቂ㦮栢ሯ俛拝ሺቂ㣑቎俑ℕ ሼቮ⯠侓ₙቑ券╨ሯⷧ倩ሼቮ㦮栢ትሧሩᇭ  ᇷ≬椉㦮栢ᇸቋቒᇬ₰㇢ℚ劔ቑ⚗㎞቎㈢ቆ቉≬椉㠨ሯ㞾㓤ቲቯቮ⺍廰ቑ㦮栢ትሧ ሩᇭ  ᇷ弻↊㦮栢ᇸቋቒᇬ≬椫孫⎮ ት㙟∪ሼቮ㦮栢ትሧሩᇭ   ᇷ㇆Ⓟ≬椉ᇸቋቒᇬ㽤ⅳ቎ቫቆ቉嵁ሸቯቮ券╨቎㈢ቆ቉偯俟ሸቯቮ≬椉ትሧ ሩᇭ

䶻㧰㠖㦇ቑ岏崭♙ቖ屲摗2   ≬椉劔ሯ㙟∪ሼቮ⏷቉ቑ㠖㦇ቒᇬ㄂㢢ሮቇ㢝䨼ቊሥቆ቉ᇬ⯠侓ሯℳ䂘ሸቯቂ岏崭 ቎ቫቆ቉岧承ሸቯ቉ሧቍሴቯቓቍቬቍሧᇭ  ≬椉劔ሯ㙟∪ሼቮ㠖㦇♗ቒ㍔⫀ቑ㠖岏ቑ㎞✂቎䠠券ሯሥቮቋሰቒᇬ≬椉⯠侓劔ᇬ 嬺≬椉劔♗ቒ≬椉摠♦♥ⅉቑሧሽቯሮ቎ቋቆ቉㦏ብ㦘Ⓒቍ屲摗ት㘰䞷ሼቮᇭ

2

䶻᧭᧮᧬᧯㧰᧮檔ቒᇬₜ⏻㷲⯠侓㧰檔㖖ⅳ93/13/EEC)䶻5㧰ት኿ኤወቋሺ቉ሧቮᇭ

605

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

䶻㧰㠖㦇♦檧ቑ峋㕯 ≬椉劔ሯ㙟∪ሼቜሰ㠖㦇ት≬椉⯠侓劔ሯ♦檧ሺቂሶቋቑ峋㢝弻↊ቒᇬ≬椉劔ሯ弯ሩᇭ

䶻㧰抩䩴ቑ㱧㆞ 3(,&/቎⒴㹄ቑ⸩ቤሯሥቮ⫃⚗ት棳ሧ቉ᇬ䟂手ⅉᇬ≬椉⯠侓劔ᇬ嬺≬椉劔♗ቒ≬椉摠 ♦♥ⅉሯ≬椉⯠侓቎栱ሺ቉嫛ሩ抩䩴ቒᇬ䔈⸩ቑ㱧㆞቎ቫቮቜሰሶቋት尐㻑ሸቯቍሧᇭ

䶻㧰ℕ䩴ቋቢቍሼ⫃⚗ ≬椉⯠侓劔ᇬ嬺≬椉劔♗ቒ≬椉摠♦♥ⅉሯ≬椉⯠侓ቑ偯俟♗ቒ⻴嫛቎ₜ♾㶯ቍ弻╨ት 䶻ₘ劔቎岦ሺቂቋሰቒᇬ㇢崁䶻ₘ劔ሯ㇢崁弻╨ቑ⻴嫛቎椪ሺ቉䩴ቭᇬ♗ቒ䩴ቮቜሰቊ ሥቆቂሶቋቒᇬ㇢崁≬椉⯠侓劔ᇬ嬺≬椉劔♗ቒ≬椉摠♦♥ⅉሯ䩴ቆ቉ሧቂብቑቋቢቍ ሼᇭ

䶻㧰ぽ⒴䰐㷱3   ㊶⒴ᇬⰙⲯᇬ⒉䞲ᇬ⦌仜♙ቖⅉ䲽♗ቒ㺠㡞䤓⒉呹ቒᇬ⊚ᇰቑ≬椉㠨♙ቖ≬椉俵Ⅷ ቎ぽ䟿ት岼ሴቮቂቤቑ尐侯ቋሺ቉ቒቍቬቍሧᇭ  ≬椉㠨቎栱ሼቮ㧰ↅት⚺ቤᇬ㦻㧰檔቎拤♜ሼቮ⯠侓㧰ↅቒᇬ≬椉⯠侓劔♗ቒ嬺≬ 椉劔ቋቑ栱≑቎ርሧ቉䎰╈ቋሼቮᇭ䶻檔቎㦜ሼቮሶቋትⓜ㙟ቋሺ቉ᇬ⯠侓ቒ槭ぽ ⒴䤓㧰ↅ቎⪉ቈሧ቉㇢ℚ劔ት㕧㧮ሼቮᇭ  䶻檔቎拤♜ሼቮቋሰቒᇬ≬椉⯠侓劔ቒቀቑ⯠侓ት屲侓ሼቮሶቋሯቊሰቮᇭ≬椉⯠ 侓劔ቒᇬ㇢崁拤♜ት䩴ቆቂ㣑ሮቬℛዓ㦗ⅴ␔቎≬椉劔቎⺍ሺ቉㦇槱ትብቆ቉屲侓 抩䩴ት嫛ቲቍሴቯቓቍቬቍሧᇭ

䶻㧰按↬⷟㮫㪊   ≬椉劔ቒᇬ䟂手ⅉᇬ≬椉⯠侓劔♗ቒ≬椉⺍廰劔቎⺍ሺ቉ᇬ按↬⷟㮫㪊ት♦ሴ啴ሺ ሲቒቀቑ㮫㪊俟㨫ት栚䯉ሼቮሶቋት㻑ቤᇬ♗ቒቀቑ㍔⫀ት☀椉ቑ䂻⸩ቑቂቤ቎∎ 䞷ሺ቉ቒቍቬቍሧᇭ  䶻檔ቑ尞⸩ቒᇬ≬椉⺍廰劔ሯ㸂ⅴₙቊሥቮⅉ≬椉ቊሥቆ቉ᇬሶቑ劔቎⺍ሼቮ≬ 椉摠櫜ሯₖዃዙዊት怔ራᇬ♗ቒ≬椉峋Ⓡ቎⪉ቈሧ቉㞾㓤ቲቯቮ㄃ሥቂቭቑ摠櫜 ሯₖዃዙዊት怔ራቮብቑ቎ቒ拸䞷ሺቍሧᇭ

䶻乏㇆嫛尞⸩ቑ⸮䚍 䶻㧰ぽ㷱嵚㻑4   䶻檔቎尞⸩ሼቮ拸㫋⥲⇢ቒᇬ3(,&/ሯ䶻㧰቎ቫቭ拸䞷ሸቯቮ⫃⚗቎ቒᇬ丰 懓㲸ት㦘ሼቮ⦌␔子⒳㓏ቀቑⅥቑ㳮栱቎⺍ሺ቉ᇬ3(,&/ቑ拤♜ት䰐㷱ሺ♗ቒቀቑ ぽ㷱ት✌ሽቮ✌ⅳት㻑ቤቮሶቋሯቊሰቮᇭ  拸㫋⥲⇢ቋቒᇬ䀗彊劔Ⓒ䥙ቑ≬帆ቑቂቤቑぽ㷱嵚㻑㲸቎栱ሼቮ㄃㦗㡴ቑ 㶶ね巿↩ዘ㶶ね䚕ℚ↩(&䶻㧰቎㈢ቆ቉㶶ねⱣ❰↩ሯ䷥⸩ሺቂ዇ኖእ቎ 岧憘ሸቯ቉ሧቮ⥲⇢♗ቒ俓僣ት㎞✂ሼቮᇭ

3

4

㦻㧰ቒᇬ䟆Ⰲ⧖䷘㈔拖☮ⓖ㖖ⅳ(2004 / 113 / EC)♙ቖ㶶ね子⒳㓏C-236 / 09⒳㼉Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres [2011] ECR I-773ት኿ኤወቋሺ ቉ሧቮᇭ 㦻㧰ቒぽ㷱㖖ⅳ(2009 / 22 / EC)ት኿ኤወቋሺ቉ሧቮᇭ

606

Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

䶻㧰子⒳⮥ቑ啵㍔♙ቖ㟠䂗㓚倩 3(,&/ሯ拸䞷ሸቯቮ⫃⚗ቊሥቆ቉ብᇬ≬椉⯠侓劔ᇬ嬺≬椉劔♗ቒ≬椉摠♦♥ⅉሯᇬ 3(,&/ሯ拸䞷ሸቯቍሮቆቂቋሺቂቬⒸ䞷ሼቮሶቋቑቊሰቮ子⒳⮥ቑ啵㍔♙ቖ㟠䂗㓚 倩ቑ栚ⱚቒⰷስቬቯቍሧᇭ

䶻䵯≬椉⯠侓ቑ⒬㦮㹄椝♙ቖ㦮栢 䶻乏䟂手ⅉቑ⯠侓ⓜቑ㍔⫀㙟∪券╨ 䶻㧰⛙䩴券╨   ⯠侓ቑ偯俟቎椪ሺᇬ䟂手ⅉቒᇬ≬椉劔቎⺍ሺ቉ᇬ呹むሯ䩴ቭᇬ♗ቒ䩴ቮቜሰℚ檔 ቊሥቆ቉ᇬሮቇ≬椉劔ሯ㢝䨼ሮቇ㷲䭉ቍ役⟞ቑ⺍廰ቋሺቂብቑት⛙䩴ሼቮ券╨ት 弯ሩᇭ  䶻檔቎⸩ቤቮℚ檔቎ቒᇬ嬺≬椉劔ቋቍቮ劔ሯ䩴ቭᇬ♗ቒ䩴ቮቜሰቊሥቆቂℚ檔ት ⚺ባᇭ

䶻㧰拤♜   ≬  椉⯠侓劔ሯ䶻㧰቎拤♜ሺቂ⫃⚗቎ቒᇬ䶻檔ቍሧሺ䶻檔቎㈢ሩሶቋት㧰 ↅቋሺ቉ᇬ≬椉劔ቒ⯠侓ቑ⚗䚕䤓ቍ⮘㦃ት㙟㫗ሺ♗ቒ⯠侓ት俑ℕሼቮሶቋሯቊሰ ቮᇭሶቑቋሰቒᇬ≬椉劔ቒᇬ䶻㧰ቑ拤♜ት䩴ቆቂ㣑♗ቒቀቯሯ㢝ቬሮ቎ቍቆ ቂ㣑ሮቬዓ㦗ⅴ␔቎ᇬቀቑ㼉⸩ቑ㽤䤓ቍ╈㨫቎栱ሼቮ㍔⫀ቋቋብ቎ᇬ㦇槱቎ቫቭ ቀቑ㎞⦂ት抩䩴ሺቍሴቯቓቍቬቍሧᇭ  ≬椉劔ሯ⚗䚕䤓ቍ⮘㦃ት㙟㫗ሺቂቋሰቒᇬ≬椉⯠侓劔ሯ䶻檔㓏⸩ቑ抩䩴ት♦檧ሺ ቂ㣑ሮቬዓ㦗ⅴ␔቎ቀቑ㙟㫗ት㕡倅ሺቍሧ棟ቭᇬ⯠侓ቒቀቑ㙟㫗ሸቯቂ⮘㦃቎⪉ ቈሧ቉ⷧ倩ሼቮᇭ≬椉⯠侓劔ሯ㕡倅ሺቂቋሰቒᇬ≬椉劔ቒᇬ≬椉⯠侓劔቎ቫቮ㕡 倅ሯ㦇槱቎ቫቭ抩䩴ሸቯ቉ሮቬዓ㦗ⅴ␔቎ᇬ⯠侓ት俑ℕሼቮሶቋሯቊሰቮᇭ  ≬椉⯠侓劔ሯタ弻ℚ䟀ቍሲሺ቉䶻㧰቎拤♜ሺቂ⫃⚗቎ቒᇬ≬椉劔ቒᇬቀቑ㍔ ⫀ት䩴ቆ቉ሧቯቓ⯠侓ት偯俟ሺቍሮቆቂሶቋት峋㢝ሺቂቋሰት棳ሰᇬ⯠侓ት俑ℕ ሼቮሶቋሯቊሰቍሧᇭ   ⯠  侓ቑ俑ℕቒᇬ䶻檔㓏⸩ቑ㦇槱቎ቫቮ抩䩴ት≬椉⯠侓劔ሯ♦檧ሺ቉ሮቬዓ㦗㈛ ቎╈┪ት䞮ሽቮᇭ⮘㦃ቒᇬ㇢ℚ劔ቑ⚗㎞቎ብቋቈሧ቉╈┪ት䞮ሽቮᇭ  ≬椉ℚ㟔ሯᇬ≬椉⯠侓劔ቑ拝⯀቎ቫቮₜ⛙䩴♗ቒₜ⸮⛙䩴ቑ⺍廰ቋቍቆቂ☀椉ቑ 尐侯቎ቫቆ቉ᇬ俑ℕ♗ቒ⮘㦃ሯ╈┪ት䞮ሽቮⓜ቎䤉䞮ሺቂቋሰቒᇬ≬椉劔ሯቀቑ ㍔⫀ት䩴ቆ቉ሧቯቓ⯠侓ት偯俟ሺቍሮቆቂ⫃⚗቎ቒᇬ≬椉摠ቒ㞾㓤ቲቯቍሧᇭቂ ቃሺᇬ≬椉劔ሯቫቭ浧櫜ቑ≬椉㠨♗ቒ䟿ቍቮ㧰ↅቊሥቯቓ⯠侓ት偯俟ሺ቉ሧቂ⫃ ⚗቎ቒᇬ≬椉摠ቒᇬቀቑ━⚗቎㉫ሻ቉♗ቒ崁㇢ሼቮ㧰ↅት拸䞷ሺ቉㞾㓤ቲቯቮᇭ

䶻㧰√⮥ 䶻㧰቎⸩ቤቮⓅ子ቒᇬⅴₚቑ⫃⚗቎ቒ拸䞷ሺቍሧᇭ D ⥭䷣ሯቍሸቯቍሮቆቂ役⟞♗ቒ㢝ቬሮ቎ₜ⸛⏷啴ሺሲቒₜ㷲䭉ቍ㍔⫀ᇭ E ⛙䩴ሸቯቮቜሰቊሥቆቂ㍔⫀♗ቒₜ㷲䭉቎⛙䩴ሸቯቂ㍔⫀ቊሥቆ቉ᇬ⚗䚕䤓ቍ≬ 椉劔ሯ⯠侓偯俟ቑ♾⚵♗ቒ⚗㎞ሸቯቂ㧰ↅ቎ቫቮ⯠侓ቑ偯俟ት⒳㠼ሼቮₙቊ摜尐 ቊቒቍሮቆቂብቑᇭ F  ≬椉劔ሯᇬ⛙䩴ቑ㉔尐ሯቍሧቋ≬椉⯠侓劔቎崳≰ሸሾቂ㍔⫀ᇭ G ≬椉劔ሯ䩴ቭᇬ♗ቒ䩴ቮቜሰቊሥቆቂ㍔⫀ᇭ

607

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

䶻㧰峟㷉቎ቫቮ拤♜ 䶻㧰቎⸩ቤቮⓅ子቎ሮሮቲቬሽᇬ≬椉劔ቒᇬ≬椉⯠侓劔ቑ峟㷉቎ቫቮ䶻㧰 ቑ拤♜቎ቫቆ቉⯠侓ት偯俟ሼቮሶቋቋቍቆቂቋሰቒᇬ⯠侓ት♥䀗ሺᇬሮቇ≬椉㠨ት扣 挓ሺቍሧሶቋሯቊሰቮᇭ♥䀗ቑ抩䩴ቒᇬ峟㷉ት≬椉劔ሯ䩴ቆቂቋሰሮቬዓ㦗ⅴ␔቎ ≬椉⯠侓劔቎⺍ሺ቉㦇槱ቊቍሸቯቍሴቯቓቍቬቍሧᇭ

䶻㧰抌┯䤓ቍ㍔⫀ 䶻㧰ቍሧሺ䶻㧰ቑ尞⸩ቒᇬ⯠侓偯俟቎椪ሺᇬ≬椉⯠侓劔ሯ䶻㧰቎ቫ ቭ券╨ቈሴቬቯቂ㍔⫀቎┯ራ቉㙟∪ሺቂ㍔⫀቎ቇሧ቉ብ拸䞷ሸቯቮᇭ

䶻㧰按↬⷟㮫㪊 ሶቑ乏ቑ尞⸩ቒᇬ䶻㧰䶻檔቎⸩ቤቮ按↬⷟㮫㪊ቑ俟㨫቎ቒ拸䞷ሺቍሧᇭ

䶻乏≬椉劔ቑ⯠侓偯俟ⓜቑ券╨ 䶻㧰⯠侓偯俟ⓜቑ㦇槱ቑ㙟∪5   ≬椉劔ቒᇬ䟂手ⅉ቎⺍ሺᇬ∎䞷ሺቫሩቋሼቮ⯠侓㧰檔ቑ␨ሺ♙ቖⅴₚቑ㍔⫀ቑሩ ቄ崁㇢ሼቮብቑት岧憘ሺቂ㦇槱ት㙟∪ሺቍሴቯቓቍቬቍሧᇭ D ⯠侓㇢ℚ劔ቑ⚜䱿♙ቖ⇞㓏ᇬ䔈቎≬椉劔ቑ㦻ㄦ♙ቖ⯠侓ት偯俟ሺ♗ቒ≬椫孫 ⎮ ት㙟∪ሼቮ㞾ㄦሯሥቮ⫃⚗቎ቒቀቑ㞾ㄦቑ⚜䱿♙ቖ⇞㓏ᇬ₵ቖ቎≬椉劔ቑ 㽤䤓ㇱ㏚ E 嬺≬椉劔ᇬ₵ቖ቎䞮✌≬椉ቑ⫃⚗቎ቒ≬椉摠♦♥ⅉ♙ቖ≬椉⺍廰劔ቑ⚜䱿♙ቖ ⇞㓏 F  ≬椉ⅲ䚕ⅉቑ⚜䱿♙ቖ⇞㓏 G ≬椉ቑ䥽䤓䓸♙ቖ≬椫孫⎮ ሸቯቮ☀椉 H ≬椉摠櫜♙ቖ㘶棳ሯሥቮቋሰቒቀቑ櫜 I  ≬椉㠨ቑ櫜♙ቖቀቑ並⸩㡈㽤 J ≬椉㠨ቑ㞾㓤㣑㦮₵ቖ቎㞾㓤ሧቑ⫃㓏♙ቖ㡈㽤 K ⯠侓㦮栢⯠侓ት俑ℕሼቮ㡈㽤ት⚺ባᇭ ♙ቖ弻↊㦮栢 L  㚜  ⹂≬椉቎ርሧ቉ቒ䶻㧰ᇬ䞮✌≬椉቎ርሧ቉ቒ䶻㧰቎㈢ቆ቉䟂手 ት㜳⥭ሺ♗ቒ⯠侓ት♥䀗ሼ㲸Ⓒ M  ⯠侓ሯ3(,&/ቑ拸䞷ት♦ሴቮሶቋ N  䟂手ⅉቑቂቤቑ子⒳⮥ቑ啵㍔⑵䚕♙ቖ㟠䂗Ⓟㄵቑⷧ⦷₵ቖ቎Ⓒ䞷㡈㽤 O  ≬峋⪉摠ቀቑⅥቑ孫⎮㘹函ቑⷧ⦷  ሶቑ㍔⫀ቒᇬ♾厌ቍ棟ቭᇬ䟂手ⅉሯ⯠侓ት偯俟ሼቮሮ⚵ሮት㮫岝ሼቮₙቊ◐⒕ቍ 㣑栢ት函ሧ቉㙟∪ሸቯቍሴቯቓቍቬቍሧᇭ  䟂手ⅉሯᇬ≬椉劔ሯ㙟∪ሼቮ䟂手㦇啴ሺሲቒ役⟞䯷♗ቒቀቑ♛㡈቎ብቋቈሧ቉≬ 椉≬椫孫⎮ ት䟂ሺ手ባ⫃⚗቎ቒᇬ≬椉劔ቒᇬ岧⏴㈛ቑ㦇槱ቑ␨ሺት䟂手ⅉ቎ℳⅧ ሺቍሴቯቓቍቬቍሧᇭ

䶻㧰≬椫孫⎮ ቑₜ⚗咃ት㖖㛧ሼቮ券╨   ⯠侓ቑ偯俟቎ሥቂቭᇬ≬椉劔ቒᇬ䟂手ⅉሯ䕻䵚ቑⴡ⅚劔ቑ孫⇟ት♦ሴ቉ሧቮሮ⚵ ሮት⚺ባ⯠侓偯俟ቑℚ㍔♙ቖ㡈㽤ት劒㏽ሺ቉ᇬㆤሰ♦ሴቫሩቋሼቮ≬椫孫⎮ ቋ

5

㦻㧰ቒᇬ䶻ℛ㶰ኚወ኶ዐኔዙ㖖ⅳ(2009 / 138 / EC)䶻183㧰ቍሧሺ䶻189㧰ት኿ኤወቋሺ቉ሧቮᇭ

608

Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

≬椉劔ሯ䩴ቭᇬ♗ቒ䩴ቮቜሰቊሥቆቂ䟂手ⅉቑ尐㦪ቋቑ栢቎⚗咃ሺቍሧ䍈ሯሥቯ ቓᇬቀቯት䟂手ⅉ቎㖖㛧ሺቍሴቯቓቍቬቍሧᇭ  䶻檔ቑ拤♜ሯሥቆቂቋሰ቎ቒᇬ㶰ቑ♛㡈ቑ尞⸩ት拸䞷ሼቮᇭ D ≬椉劔ቒᇬ拝⯀ቍሲ嫛╤ሺቂ⫃⚗ት棳ሰᇬ≬椉⯠侓劔቎⺍ሺ቉ᇬቀቑ㖖㛧券╨ 拤♜ሮቬ䞮ሻቂሼቜ቉ቑ㚜⹂ት彯⎮ሺቍሴቯቓቍቬቍሧᇭ E ≬椉⯠侓劔ቒᇬ拤♜ት䩴ቆቂቋሰሮቬዓ㦗ⅴ␔቎㦇槱቎ቫቭ抩䩴ሼቮሶቋ቎ ቫቆ቉ᇬ⯠侓ት俑ℕሼቮ㲸Ⓒት㦘ሼቮᇭ

䶻㧰ᇫ≬椫孫⎮ ቑ栚ⱚ㣑㦮ት㖖㛧ሼቮ券╨ 䟂手ⅉሯᇬ䟂手ቑ㙟⒉㣑቎≬椫孫⎮ ሯ栚ⱚሼቮቋ崳≰ሺ቉ርቭᇬቀቯሯ⚗䚕䤓ቊሥ ቆቂ⫃⚗቎ርሧ቉ᇬ≬椉劔ሯሶቑ崳≰ት䩴ቭᇬ♗ቒ䩴ቮቜሰቊሥቆቂቋሰቒᇬ≬椉 劔ቒᇬ㤺⸩䤓ቍ≬椫孫⎮ ትㆤሰ♦ሴቮ⫃⚗ት棳ሰᇬ⯠侓ሯ偯俟ሸቯቮ㣑⯠侓ቑ偯 俟቎┯ራ቉ᇬ䶻₏⥭≬椉㠨ሯ㞾㓤ቲቯቮሶቋቡቊ尐ሼቮ⫃⚗቎ቒᇬቀቑ㣑 ቡቊ≬椫 孫⎮ ሯ栚ⱚሺቍሧሶቋትᇬ≬椉⯠侓劔቎⺍ሺ቉䦃ቄ቎㖖㛧ሺቍሴቯቓቍቬቍሧᇭ≬ 椉劔ቒᇬሶቑ㖖㛧券╨቎拤♜ሺቂ⫃⚗቎ቒᇬ䶻㧰䶻檔D ቎㈢ቆ቉弻↊ት弯ሩᇭ

䶻乏⯠侓ቑ偯俟 䶻㧰ᇫ偯俟ቑ㡈㽤 ≬椉⯠侓ቒᇬ㦇槱቎ቫቆ቉偯俟ሺ♗ቒ峋㢝ሼቮሶቋት尐ሺቍሧብቑቋሺᇬ㱧㆞቎ቇሧ ቉Ⅵቑሧሮቍቮ尐ↅ቎ብ㦜ሸቍሧᇭ⯠侓ቒᇬ♲檼ቑ峋岏ት⚺ባሧሮቍቮ㓚㹄቎ቫቆ቉ ብ峋㢝ሼቮሶቋሯቊሰቮᇭ

䶻㧰ᇫ≬椉䟂手ቑ㜳⥭ ≬椉ቑ䟂手ቒᇬ≬椉劔ሮቬቑ㔎嶍ት䟂手ⅉሯ♦檧ሼቮⓜ቎㜳⥭ሯ≬椉劔቎Ⓙ拣ሼቮ棟 ቭᇬ䟂手ⅉሯ㜳⥭ሼቮሶቋሯቊሰቮᇭ

䶻㧰ᇫኌዙ዇ዐኍዘኇኲ㦮栢6   ≬  椉⯠侓劔ቒᇬ㔎嶍ቑ♦檧♗ቒ䶻㧰቎⸩ቤቮ㦇櫭ቑⒿ拣ቑሧሽቯሮ拔ሧ㡈ሮ ቬ拀栢ⅴ␔቎㦇槱቎ቫቮ抩䩴ት䤉ሼቮሶቋ቎ቫቭᇬ⯠侓ት♥䀗ሼሶቋሯቊሰቮᇭ  ≬椉⯠侓劔ቒᇬⅴₚቑ⫃⚗቎ቒ⯠侓ት♥䀗ሼሶቋሯቊሰቍሧᇭ D ⯠侓㦮栢ሯዓ㦗㦹䄏ቑ⫃⚗ᇭ E ⯠侓ሯ䶻㧰቎ቫቭㆅ栆ሸቯቂ⫃⚗ᇭ F  㤺⸩䤓ቍ≬椉ᇬ弻↊≬椉♗ቒ⥲⇢≬椉ቑ⫃⚗ᇭ

䶻㧰ₜ㇢㧰檔7   ⊚⒴䤓቎ℳ䂘ሸቯቍሮቆቂ㧰ↅቒᇬ≬椉⯠侓ቑ㊶役ᇬⅥቑሼቜ቉ቑ⯠侓㧰ↅ♙ቖ ⯠侓ሯ偯俟ሸቯቂ㣑ቑ䕅㽐ት╧㫗ሼቮቋᇬ≰券崯⸮ቑ尐嵚቎♜ሺ቉ᇬ⯠侓ቑₚቊ 䞮ሽቮ≬椉⯠侓劔ᇬ嬺≬椉劔♗ቒ≬椉摠♦♥ⅉቑ㲸Ⓒ♙ቖ券╨቎栱ሼቮ摜⮶ቍₜ ⧖嫰቎ቫቭₜⒸ䥙ትብቂቬሼ⫃⚗቎ቒᇬሶቯቬቑ劔ቋቑ栱≑቎ርሧ቉╈┪ት䞮ሻ ቍሧᇭ

6 7

㦻㧰ቒᇬ抩≰弸⮁㖖ⅳ(2002 / 65 / EC)ት኿ኤወቋሺ቉ሧቮᇭ 㦻㧰ቒᇬₜ⏻㷲⯠侓㧰檔㖖ⅳ(93 / 13 / EEC)ት኿ኤወቋሺ቉ሧቮᇭ

609

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

 ⯠侓ቒᇬₜ⏻㷲ቍ㧰ↅት棳ሧ቉ብⷧ倩ሼቮሶቋሯ♾厌ቍ⫃⚗ቒᇬ₰㇢ℚ劔ት㕧㧮 ሼቮᇭሶቯⅴ⮥ቑ⫃⚗ᇬₜ⏻㷲ቍ㧰ↅቒᇬ㇢崁㧰ↅሯₜ⏻㷲ቊሥቮሶቋት䩴ቆ቉ ሧቯቓ⚗䚕䤓ቍ㇢ℚ劔ሯ⚗㎞ሺ቉ሧቂቊሥተሩ㧰ↅ቎ቫቆ቉函ሰ㙪ራቬቯቮᇭ  㦻㧰ቒᇬ≬椫孫⎮ ት棟⸩♗ቒ⮘㦃ሼቮ㧰ↅ቎ብ拸䞷ሼቮሯᇬⅴₚቑብቑ቎ቒ拸䞷 ሺቍሧᇭ D ≬椫孫⎮ ♙ቖ≬椉㠨ቑ櫜ቑ䦇㇢㊶ᇭ E ㆤሰ♦ሴቬቯቂ≬椫孫⎮ ♗ቒ⚗㎞ሸቯቂ≬椉㠨቎栱ሼቮ㦻役䤓ℚ檔ት尞⸩ሼ ቮ㧰ↅᇭቂቃሺᇬ㇢崁㧰ↅሯ㄂㢢ሮቇቲሮቭቧሼሧ岏囘ቊ㦇ሮቯ቉ሧቮ⫃⚗቎ 棟ቮᇭ   ⯠  侓㧰ↅቒᇬሥቬሮሻቤ⇫㒟ሸቯ቉ርቭᇬ≬椉⯠侓劔ሯቀቑ⸮役቎ቇሧ቉㈀檎┪ ት㖐ቇሶቋሯቊሰ቉ሧቍሧ⫃⚗ᇬ䔈቎ℚⓜ቎㱧㆞▥ሸቯቂ㲨䄥⯠侓侓㷍ቊሥቮ⫃ ⚗቎ቒᇬ⊚⒴䤓ቍℳ䂘ት俛቉ሧቍሧብቑቋデ቎ቢቍሸቯቮᇭሥቮ㧰ↅቑ䔈⸩ቑ⟞ 櫛䍈♗ቒ₏㧰ↅሯ⊚⒴䤓቎ℳ䂘ሸቯ቉ሧቂቋሰብᇬ⯠侓ት⏷⇢ቋሺ቉尚ቯቓ㲨䄥 ⯠侓侓㷍ቊሥቮቋ岏ራቮ⫃⚗቎ቒᇬ⯠侓ቑⅥቑ捷⒕቎㦻㧰ት拸䞷ሼቮሶቋትⰷስ ቍሧᇭ㲨䄥㧰ↅሯ⊚⒴䤓቎ℳ䂘ሸቯ቉ሧቮሶቋት≬椉劔ሯ⃊㇄ሼቮቋሰቒᇬቀቑ ሶቋቑ峋㢝弻↊ቒ≬椉劔ሯ弯ሩᇭ

䶻乏拰♙䤓♙ቖ㤺⸩䤓ቍ≬椫孫⎮ 䶻㧰拰♙䤓ቍ≬椫孫⎮   ⯠侓ሯ偯俟ሸቯቮⅴⓜቑ㦮栢቎ቇሧ቉㙟∪ሸቯቮ≬椫孫⎮ 拰♙䤓ቍ≬椫孫⎮ ቑ⫃⚗቎ᇬ≬椉劔ሯᇬ⯠侓偯俟㣑቎≬椫孫⎮ ሸቯቮ☀椉ሯ䤉䞮ሺ቉ሧቍሧሶቋ ት䩴ቆ቉ሧቂቋሰቒᇬ≬椉⯠侓劔ቒᇬ⯠侓偯俟㈛ቑ㦮栢ቑቢ቎⺍㉫ሺቂ≬椉㠨ት 弯㕔ሼቮብቑቋሼቮᇭ  拰♙䤓ቍ≬椫孫⎮ ቑ⫃⚗቎ᇬ≬椉⯠侓劔ሯᇬ⯠侓偯俟㣑቎≬椉ℚ㟔ሯ䤉䞮ሺ቉ሧ ቮሶቋት䩴ቆ቉ሧቂቋሰቒᇬ䶻㧰ቑ拸䞷ትⰷስቮሶቋቍሲᇬ≬椉劔ቒᇬ⯠侓 偯俟㈛ቑ㦮栢ቑቢ቎ቇሧ቉≬椫孫⎮ ት㙟∪ሼቮብቑቋሼቮᇭ

䶻㧰㤺⸩䤓ቍ≬椫孫⎮   㤺  ⸩䤓ቍ≬椉⯠侓ት偯俟ሼቮቋሰቒᇬ≬椉劔ቒᇬ䶻㧰D ⚆ᇬE ⚆ᇬG ⚆ᇬH ⚆♙ቖK ⚆ቑሩቄ崁㇢ሼቮብቑ቎⸩ቤቮ㍔⫀ት岧憘ሺቂኈክዙካዙእት 䤉嫛ሼቮብቑቋሼቮᇭ  䶻㧰ቍሧሺ䶻㧰♙ቖᇬ㦻㧰䶻檔ቑ拸䞷ትⰷስቮሶቋቍሲᇬ䶻㧰 ቒᇬ㤺⸩䤓ቍ≬椫孫⎮ ቎ቒ拸䞷ሺቍሧᇭ

䶻㧰㤺⸩䤓ቍ≬椫孫⎮ ቑ㦮栢   ≬椉⯠侓ቑ䟂手ⅉ቎⺍ሺ቉㤺⸩䤓ቍ≬椫孫⎮ ሯ㙟∪ሸቯቮ⫃⚗ᇬቀቑ≬椫孫⎮ ቒᇬ≬椉⯠侓ₙቑ≬椫孫⎮ ቑ栚ⱚ቎ቇሰ⚗㎞ሸቯቂ㣑♗ቒ䟂手ት㦏俑䤓቎㕡倅ሼ ቮ㡷ቑ抩䩴ት䟂手ⅉሯ≬椉劔ሮቬ♦檧ሺቂ㣑ቡቊⷧ倩ሼቮᇭ  ⚛₏ቑ≬椉劔቎⺍ሺ቉≬椉⯠侓ት䟂ሺ手ቶቊሧቍሧ劔቎⺍ሺ቉㤺⸩䤓ቍ≬椫孫⎮ ሯ㙟∪ሸቯቮ⫃⚗ᇬቀቑ≬椫孫⎮ ቑ㙟∪ቒᇬ䶻㧰䶻檔቎⸩ቤቮ㦮栢ቫቭብ 䩼ሧ㦮栢቎ቇሧ቉嫛ሩሶቋሯቊሰቮᇭቀቑ⫃⚗ቑ≬椫孫⎮ ቒᇬሧሽቯሮቑ㇢ℚ劔 ሮቬᇬ拀栢ⓜ቎抩䩴ሼቮሶቋ቎ቫቭ♥ቭ䀗ሼሶቋሯቊሰቮᇭ

610

Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

䶻乏≬椉峋Ⓡ 䶻㧰␔⹈ ≬椉⯠侓ት偯俟ሺቂ㣑ቒᇬ≬椉劔ቒᇬⅴₚቑ㍔⫀ቑሩቄ崁㇢ሼቮብቑት岧憘ሺቂ≬椉 峋Ⓡትᇬ≬椉峋Ⓡ቎岧憘ሯቍሧ⫃⚗቎ቒ₏咻䤓ቍ⯠侓㧰ↅቋ␀቎ᇬℳⅧሺቍሴቯቓቍ ቬቍሧᇭ D ⯠侓㇢ℚ劔ቑ⚜䱿♙ቖ⇞㓏ᇬ䔈቎≬椉劔ቑ㦻ㄦ♙ቖ⯠侓ት偯俟ሺ♗ቒ≬椫孫⎮ ት 㙟∪ሼቮ㞾ㄦሯሥቮ⫃⚗቎ቒቀቑ㞾ㄦቑ⚜䱿♙ቖ⇞㓏ᇬ₵ቖ቎≬椉劔ቑ㽤䤓ㇱ㏚ E 嬺≬椉劔ᇬ₵ቖ቎䞮✌≬椉ቑ⫃⚗቎ቒ≬椉摠♦♥ⅉ♙ቖ≬椉⺍廰劔ቑ⚜䱿♙ቖ⇞ 㓏 F  ⴡ⅚劔ቑ⚜䱿♙ቖ⇞㓏 G ≬椉ቑ䥽䤓䓸♙ቖ≬椫孫⎮ ሸቯቮ☀椉 H ≬椉摠櫜♙ቖ㘶棳ሯሥቮ⫃⚗ቒቀቑ櫜 I  ≬椉㠨ቑ櫜♙ቖቀቑ岗並㡈㽤 J ≬椉㠨ቑ㞾㓤㦮棟₵ቖ቎㞾㓤ሧቑ⫃㓏♙ቖ㡈㽤 K ⯠侓㦮栢⯠侓ት俑ℕሼቮ㡈㽤ት⚺ባᇭ ♙ቖ弻↊㦮栢 L  㚜  ⹂≬椉቎ርሧ቉ቒ䶻㧰ᇬ䞮✌≬椉቎ርሧ቉ቒ䶻㧰቎⪉ቈሧ቉ᇬ䟂手 ቢት㜳⥭ሺ♗ቒ⯠侓ት♥䀗ሼ㲸Ⓒ M  ⯠  侓ሯ3(,&/ቑ拸䞷ት♦ሴቮሶቋ N  䟂手ⅉቑቂቤቑ子⒳⮥ቑ啵㍔⑵䚕♙ቖ㟠䂗Ⓟㄵቑⷧ⦷₵ቖ቎ቀቑⒸ䞷㡈㽤 O  孫  ⎮⪉摠ቀቑⅥቑ≬帆㘹函ቑⷧ⦷

䶻㧰峋Ⓡቑ╈┪   ≬椉峋Ⓡቑ㧰檔ሯ≬椉⯠侓劔ቑ䟂手ቢᇬቀቑⅥ㇢ℚ劔栢ቑℚⓜቑ⚗㎞ቋ䟿ቍቆ቉ ሧቮ⫃⚗ᇬ峋Ⓡቑቍሮቊ㇆嵎ሸቯ቉ሧቮ䦇拤ቒᇬ峋Ⓡቑ♦檧ሮቬዓ㦗ⅴ␔቎≬椉 ⯠侓劔ሯ䟿巿ት䟂ሺ䵚቉ቍሧ棟ቭᇬ≬椉⯠侓劔቎ቫቆ቉⚛㎞ሸቯቂብቑቋቢቍሸ ቯቮᇭ≬椉劔ቒᇬ峋Ⓡቑ₼ቊ㇆嵎ሸቯ቉ሧቮ䦇拤቎⺍ሺ቉䟿巿ት䟂ሺ䵚቉ቮ㲸Ⓒ ትᇬ≬椉⯠侓劔቎⺍ሺ⮹ⷦቑ岧憘቎ቫቭ⛙䩴ሺቍሴቯቓቍቬቍሧᇭ  ≬椉劔ሯ䶻檔቎㈢ቲቍሮቆቂ⫃⚗቎ቒᇬ⯠侓ቒᇬ≬椉⯠侓劔ሯ䟂手ቶቃ㧰ↅ♗ቒ ㇢ℚ劔栢ቑℚⓜቑ⚗㎞቎㈢ቆ቉⚗㎞ሸቯቂብቑቋቢቍሼᇭ

䶻乏≬椉⯠侓ቑ㦮栢 䶻㧰≬椉⯠侓ቑ㦮栢   ≬  椉⯠侓ቑ㦮栢ቒ㄃ቋሼቮᇭ㇢ℚ劔ቒᇬ☀椉ቑ㊶役቎ቫቭ㉔尐ቋሸቯቮቋሰቒᇬ 䟿ቍቮ㦮栢ት⚗㎞ሼቮሶቋሯቊሰቮᇭ  䶻檔ቒⅉ≬椉቎ቒ拸䞷ሺቍሧᇭ

䶻㧰⯠侓ㆅ栆   䶻㧰቎⸩ቤቮ㄃ቑ㦮栢ሯ䄏ℕሺቂ㈛ቒᇬ⯠侓ቒᇬⅴₚቑ⫃⚗ት棳ሰㆅ栆ሸ ቯቮᇭ D ≬椉劔ሯᇬ⯠侓㦮栢䄏ℕቑዓ㦗ⅴₙⓜ቎ᇬ㦇槱቎ቫቭᇬ䚕䟀ትⅧሺ቉♜⺍ቑ 怲㡷ቑ抩䩴ትሺቂ⫃⚗ᇭ E ≬椉⯠侓劔ሯᇬ⯠侓㦮栢䄏ℕቑ㡴♗ቒ嬺≬椉劔ቑ≬椉㠨嵚㻑㦇ት♦檧ሺ቉ሮቬ ዓ㦗㈛ቑሧሽቯሮ拔ሧ㡈ቡቊ቎ᇬ㦇槱቎ቫቭ♜⺍ቑ怲㡷ቑ抩䩴ትሺቂ⫃⚗ᇭ

611

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

㈛劔ቑ⫃⚗቎ቒᇬዓ㦗ቑ㦮栢ቒ嵚㻑㦇₼቎⮹ⷦ቎ቫቆ቉㢝䨼቎岧憘ሸቯ቉ሧ ቮቋሰ቎ቑቢ栚ⱚሼቮᇭ  䶻檔E ቑ拸䞷ₙᇬ抩䩴ቑ╈┪ቒ䤉≰㣑቎䤉䞮ሺቂብቑቋቢቍሼᇭ

䶻㧰⯠侓㧰ↅቑ⮘㦃   䶻  㧰቎⪉ቈሲㆅ栆ቑ⺍廰ቋቍቮ≬椉⯠侓቎ርሧ቉≬椉㠨♙ቖቀቑⅥ⯠侓ቑ㧰 ↅት⮘㦃ሼቮ㲸棟ት≬椉劔቎₝ራቮ㧰檔ቒᇬⅴₚቑ⪉䄥ሯሼቜ቉䄏ቂሸቯ቉ሧቮ ⫃⚗ት棳ሰᇬ╈┪ት㦘ሸቍሧᇭ D ⮘㦃ቒᇬ㶰⥭ቑㆅ栆㣑ቡቊቑ栢ቒ╈┪ት㦘ሺቍሧብቑቋሸቯቮሶቋᇭ E ≬椉劔ሯᇬ䚍⦷ቑ⯠侓㦮栢ቑ䄏ℕቫቭብዓ㦗ⅴₙⓜ቎㦇槱቎ቫቭ⮘㦃ት抩䩴 ሼቮሶቋᇭ F  抩䩴ቑ₼ቊᇬ≬椉⯠侓劔቎⺍ሺᇬ⯠侓俑ℕቑ㲸Ⓒሯሥቮሶቋ♙ቖቀቑ㲸Ⓒሯ嫛 ∎ሸቯቍሮቆቂ⫃⚗ቑ╈㨫ሯ崻㢝ሸቯ቉ሧቮሶቋᇭ  䶻檔ቑ尞⸩ቒᇬ⮘㦃㧰檔ቑ╈┪቎栱ሼቮⅥቑⓅ侓ቑ拸䞷ትⰷስቮብቑቊቒቍሧᇭ

䶻㧰≬椉ℚ㟔䤉䞮㈛ቑ⯠侓ቑ俑ℕ   ≬椉ℚ㟔䤉䞮㈛ቑ⯠侓俑ℕት⸩ቤቮ㧰檔ቒᇬⅴₚቑ♛㡈ሯ䄏ቂሸቯቮቋሰት棳ሰ ╈┪ት㦘ሺቍሧᇭ D ⯠侓ት俑ℕሼቮ㲸Ⓒሯ₰㇢ℚ劔቎₝ራቬቯ቉ሧቮሶቋᇭ E ≬椉⯠侓ሯⅉ≬椉቎栱ሼቮብቑቊቒቍሧሶቋᇭ  俑ℕ㧰檔♙ቖ俑ℕ㲸ቑ嫛∎ቒᇬሧሽቯብ⚗䚕䤓ቊቍሴቯቓቍቬቍሧᇭ  ≬椉ℚ㟔ት䩴ቆ቉ሮቬዓ㦗ⅴ␔቎ᇬ䦇㓚㡈቎⺍ሺ቉㦇槱቎ቫቮ俑ℕቑ抩䩴ት䤉ሺ ቍሧቋሰቒᇬ㇢ℚ劔ቑ⯠侓俑ℕ㲸ቒ䀗䅔ሼቮᇭ   ≬椫孫⎮ ቒᇬ䶻檔቎㈢ቆቂ抩䩴ቑ拀栢㈛቎俑ℕሼቮᇭ

䶻乏⯠侓㈛ቑ≬椉劔ቑ㍔⫀㙟∪券╨ 䶻㧰₏咻䤓ቍ㍔⫀㙟∪券╨ ⯠侓㦮栢₼ᇬ≬椉劔ቒᇬቀቑ⚜䱿♙ቖ㓏⦷⦿ᇬ㽤䤓ㇱ㏚ᇬ㦻ㄦ♙ቖ⯠侓ት偯俟ሺቂⅲ 䚕ㄦ♗ቒ㞾ㄦቑ㓏⦷⦿቎栱ሼቮ⮘㦃ቑ㍔⫀ትᇬ拔䅭ቍሲᇬ㦇槱቎ቫቭ≬椉⯠侓劔቎㙟 ∪ሺቍሴቯቓቍቬቍሧᇭ

䶻㧰嵚㻑቎ቫቮ抌┯䤓㍔⫀   ≬椉⯠侓劔ሯ嵚㻑ሼቮ⫃⚗቎ᇬ≬椉劔ቒᇬⅴₚቑℚ檔቎栱ሼቮ㍔⫀ት拔䅭ቍሲᇬ ≬椉⯠侓劔቎㙟∪ሺቍሴቯቓቍቬቍሧᇭ D ≬椉劔቎⺍ሺ቉ᇬ⚗䚕䤓቎尐㻑ቊሰቮ乓⦁␔቎ርሧ቉ᇬ⯠侓ቑ⻴嫛቎栱ቲቮ₏ ⒖ቑℚ檔ᇭ E ≬椉⯠侓劔ቋ偯俟ሺቂ⯠侓ቋ⚛䲽ቑ≬椉⯠侓቎ቇሧ቉ᇬ≬椉劔ሯ∎䞷ሼቮ㠿ሺ ሧ㲨䄥⯠侓㧰ↅᇭ  ≬椉⯠侓劔ቑ嵚㻑♙ቖ≬椉劔ቑ⥭䷣ቒᇬሧሽቯብ㦇槱቎ቫቬቍሴቯቓቍቬቍሧᇭ

612

Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

䶻䵯≬椉ⴡ⅚劔 䶻㧰≬椉ⅲ䚕ⅉቑ㲸棟   ≬椉ⅲ䚕ⅉቒᇬ䚍⦷ቑ≬椉㯼䟛ቑ㏲嫛቎ርሧ቉呹愺ቑ㯼╨乓⦁቎⻭ሼቮ嫛䍉ቑ⏷ ቉ትᇬ≬椉劔ቑቂቤ቎⸮嫛ሼቮ㲸棟ት㦘ሼቮᇭ≬椉ⅲ䚕ⅉቑ㲸棟቎嵁ሸቯቂሧሮ ቍቮⓅ棟ብᇬ≬椉⯠侓劔቎⺍ሺᇬ䕻䵚ቑ㦇槱቎ቫቭ㢝䨼቎抩䩴ሸቯቍሴቯቓቍቬ ቍሧᇭቂቃሺᇬ≬椉ⅲ䚕ⅉቑ㲸棟ቒᇬ⺠ቍሲቋብ⸮椪ቑ㯼╨Ᵽ岦乓⦁ት⚺ባብቑ ቊቍሴቯቓቍቬቍሧᇭ  ≬椉ⅲ䚕ⅉቑ㲸棟ቒᇬሧሮቍቮ⫃⚗቎ብᇬⅴₚቑብቑት⚺ባብቑቋሼቮᇭ D ≬椉⯠侓劔቎㍔⫀ት㙟∪ሺሮቇ┸岏ሼቮሶቋᇭ E ≬椉⯠侓劔ሮቬቑ抩䩴ት♦檧ሼቮሶቋᇭ  ≬椉ⅲ䚕ⅉሯቀቑ㯼╨ቑ拝䲚ቊ䩴ቭᇬ♗ቒ䩴ቮቜሰቊሥቆቂሶቋቒᇬ≬椉劔ሯ䩴 ቆ቉ሧቂቋቢቍሼᇭ

䶻㧰䕻䵚ቋ䱿ሼቮ≬椉劔ቑⅲ䚕ⅉ ≬椉劔ቑⅲ䚕ⅉሯ䕻䵚ቑⴡ⅚劔ቋ䱿ሺ቉ሧቮ⫃⚗቎ᇬ䕻䵚ቑⴡ⅚劔቎嵁ሸቯቮ㽤㈚ₙ ቑ券╨቎拤♜ሺ቉嫛╤ሺቂቋሰቒᇬ≬椉劔ቒᇬቀቑ拤♜቎ቇሧ቉弻↊ት弯ሩᇭ

䶻䵯≬椫孫⎮ ሸቯቮ☀椉 䶻乏℗棁㘹函 䶻㧰℗棁㘹函㎞券 ℗棁㘹函ቋቒᇬ≬椉⯠侓ቑ㧰檔ቊሥቆ቉ᇬ≬椉劔ቑ弻↊ቑⓜ㙟㧰ↅቋሸቯ቉ሧቮሮ⚵ ሮት⟞ቲሽᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔቎⺍ሺ቉ᇬ≬椉ℚ㟔ቑ䤉䞮ⓜ቎⇤ቬሮቑ嫛䍉ት 嫛ሩሶቋ♗ቒ嫛ቲቍሧሶቋት券╨Ⅷሴቮብቑትሧሩᇭ

䶻㧰≬椉劔ቑ⯠侓屲侓㲸   ℗棁㘹函቎拤♜ሺቂ⫃⚗቎≬椉劔ሯ⯠侓ት俑ℕሸሾቮ㲸棟ት㦘ሼቮሶቋት⸩ቤቮ 㧰檔ቒᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯᇬ㚜⯀ት䤉䞮ሸሾቮ㎞⦂ትብቆ቉♗ቒ㚜⯀ቑ 䤉䞮ቑርቀቯሯሥቮሶቋት崜巧ቍሯቬ䎰嶏቎券╨቎拤♜ሺቂ⫃⚗ት棳ሰᇬ╈┪ት 㦘ሺቍሧᇭ  屲侓㲸ቒᇬ℗棁㘹函ቑ拤♜ሯ≬椉劔ቑ䩴ቭᇬ♗ቒ≬椉劔቎㢝ቬሮ቎ቍቆቂ㣑ሮቬ ዓ㦗ⅴ␔቎ᇬ≬椉⯠侓劔቎⺍ሼቮ㦇槱቎ቫቆ቉嫛∎ሸቯቍሴቯቓቍቬቍሧᇭ≬椫 孫⎮ ቒᇬ屲侓㣑቎俑ℕሼቮᇭ

䶻㧰≬椉劔ቑ⏜弻   ℗棁㘹函ቑ拤♜቎ቫቆ቉≬椉劔ሯ弻↊ቑ⏷捷♗ቒ₏捷ት⏜ቯቮሶቋት⸩ቤቮ㧰檔 ቒᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯ㚜⯀ት䤉䞮ሸሾቮ㎞⦂ትብቆ቉♗ቒ㚜⯀ቑ䤉䞮ቑ ርቀቯሯሥቮሶቋት崜巧ቍሯቬ䎰嶏቎券╨቎拤♜ሺቂሶቋ቎ቫቆ቉㚜⯀ሯ䤉䞮ሺ ቂ棟ㄵ቎ርሧ቉ቑቢ╈┪ት㦘ሼቮᇭ  拝⯀ቑ䲚ㄵ቎㈢ቆ቉≬椉摠ት䂪櫜ሼቮ㢝䨼ቍ尞⸩ሯሥቯቓቀቯ቎㈢ሩሶቋት㧰ↅ ቋሺ቉ᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ቒᇬ拝⯀቎ቫቮ℗棁㘹函ቑ拤♜቎ቫቆ቉䤉䞮ሺ ቂ㚜⯀቎⺍ሺ቉≬椉摠ቑ㞾㓤ሧት♦ሴቮሶቋሯቊሰቮᇭ

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

䶻乏☀椉ቑ⬦┯ 䶻㧰☀椉ቑ⬦┯቎栱ሼቮ㧰檔 ≬椉⯠侓₼቎ᇬ≬椫孫⎮ ሸቯቂ☀椉ቑ⬦┯቎栱ሼቮ㧰檔ሯ⚺ቡቯ቉ሧቮ⫃⚗ᇬቀቑ 㧰檔ቒᇬ㇢崁☀椉ቑ⬦┯ሯ摜⮶ቍብቑቊሥቭᇬሮቇ≬椉⯠侓቎ርሧ቉䔈⸩ሸቯቂ䲽櫭 ቑብቑቊሥቮቋሰት棳ሰᇬ╈┪ት㦘ሺቍሧᇭ

䶻㧰☀椉ቑ⬦┯ት抩䩴ሼቮ券╨   ☀椉ቑ⬦┯቎栱ሼቮ㧰檔ሯቀቑ抩䩴ት券╨ቈሴ቉ሧቮ⫃⚗቎ቒᇬ≬椉⯠侓劔ᇬ嬺 ≬椉劔♗ቒ≬椉摠♦♥ⅉቒᇬ≬椫孫⎮ ቑⷧ⦷♙ቖ☀椉ቑ⬦┯ት䩴ቭᇬ♗ቒ䩴ቮ ቜሰቊሥቆቂሶቋት㧰ↅቋሺ቉ᇬቀቑ抩䩴ትሺቍሴቯቓቍቬቍሧᇭ抩䩴券╨ት弯 ሩ劔ⅴ⮥ቑ劔቎ቫቮ抩䩴ብ╈┪ት㦘ሼቮᇭ  抩䩴ት㓏⸩ቑ㦮栢␔቎嫛ሩቫሩ㧰檔₼ቊ券╨ቈሴቮ⫃⚗቎ቒᇬቀቑ㦮栢ቒ⚗䚕䤓 ቍብቑቊቍሴቯቓቍቬቍሧᇭ抩䩴ቒ䤉≰ቑ㣑቎╈┪ት㦘ሼቮᇭ  抩䩴券╨ቑ拤♜ሯሥቆቂቋሰ቎ᇬ≬椉劔ሯᇬቀቑሶቋት䚕䟀ቋሺ቉≬椫孫⎮ ቑ乓 ⦁␔቎⚺ቡቯቮℚ㟔ሮቬቀቯⅴ棜቎䤉䞮ሺቂ㚜⯀቎ቇሧ቉ቑ㞾㓤ት㕡ባሶቋቒᇬ ቀቑ㚜⯀ሯ☀椉ቑ⬦┯ት抩䩴ሺቍሮቆቂሶቋቑ俟㨫ቊቍሧ棟ቭᇬ峀ሸቯቍሧᇭ

䶻㧰⯠侓ቑ俑ℕ♙ቖ⏜弻   ⯠侓቎ርሧ቉ᇬ≬椫孫⎮ ሸቯቂ☀椉ሯ⬦┯ሺቂቋሰቒ≬椉劔ሯ⯠侓ት屲侓ሼቮሶ ቋሯቊሰቮቋ⸩ቤ቉ሧቮ⫃⚗቎ቒᇬቀቑ㲸Ⓒቒᇬ☀椉ቑ⬦┯ሯ≬椉劔ቑ䩴ቭᇬ♗ ቒ≬椉劔቎㢝ቬሮ቎ቍቆቂ㣑ሮቬዓ㦗ⅴ␔቎ᇬ≬椉⯠侓劔቎⺍ሼቮ㦇槱቎ቫቆ቉ 嫛∎ሸቯቍሴቯቓቍቬቍሧᇭ  ☀椉ቑ≬椫孫⎮ ቒᇬ俑ℕሮቬዓ㦗㈛቎ᇬ≬椉⯠侓劔ሯ䶻㧰ቑ券╨቎㎞⦂䤓 ቎拤♜ሺቂ⫃⚗቎ቒ屲侓㣑቎ᇬ俑ℕሼቮᇭ  ≬椉ℚ㟔ሯᇬ☀椉ቑ≬椫孫⎮ ሯ俑ℕሼቮⓜ቎ᇬ≬椉⯠侓劔ሯ䩴ቭᇬ♗ቒ䩴ቮቜሰ ቊሥቆቂ☀椉ቑ⬦┯ሮቬ䤉䞮ሺቂቋሰቒᇬ⬦┯㈛ቑ☀椉ቊሥቯቓ≬椉劔ቒㆤሰ♦ ሴቍሮቆቂ⫃⚗቎ቒᇬ≬椉摠ቒ㞾㓤ቲቯቍሧᇭ≬椉劔ሯᇬ⬦┯㈛ቑ☀椉ትቫቭ浧 ሧ≬椉㠨♗ቒ䟿ቍቮ㧰ↅቑₚቊㆤሰ♦ሴ቉ሧቂ⫃⚗቎ቒᇬ≬椉摠ቒᇬቀቑ━⚗቎ ㉫ሻ቉♗ቒ崁㇢ሼቮ㧰ↅት拸䞷ሺ቉㞾㓤ቲቯቮᇭ

䶻乏☀椉ቑ䂪⺠ 䶻㧰☀椉ቑ䂪⺠ቑ╈㨫   ☀  椉ቑ摜⮶ቍ䂪⺠ሯሥቆቂ⫃⚗቎ቒᇬ≬椉⯠侓劔ቒᇬ㸚ⷧሼቮ⯠侓㦮栢቎ቇሧ ቉ᇬቀቑ━⚗቎㉫ሻቂ≬椉㠨ቑ䂪櫜ት嵚㻑ሼቮሶቋሯቊሰቮᇭ  ₰㇢ℚ劔ሯᇬ━⚗቎㉫ሻቂ䂪櫜቎ቇሧ቉嵚㻑ሮቬዓ㦗ቑ栢቎⚗㎞ሼቮሶቋሯቊሰ ቍሧቋሰቒᇬ≬椉⯠侓劔ቒᇬ嵚㻑ሮቬዓ㦗ⅴ␔቎㦇槱቎ቫቮ抩䩴቎ቫቆ቉⯠侓ት 屲侓ሼቮሶቋሯቊሰቮᇭ

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Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

䶻䵯≬椉㠨 䶻㧰䶻⥭♗ቒ₏㣑㓤ሧ≬椉㠨 ≬椉劔ሯᇬ䶻⥭♗ቒ₏㣑㓤ሧ≬椉㠨ቑ㞾㓤ሧት⯠侓ቑ㒟䵚♗ቒ≬椫孫⎮ ቑ栚ⱚቑ㧰 ↅቋሺ቉ሧቮቋሰቒᇬቀቑ㧰ↅቒᇬ㶰ቑ⏷቉ት䄏ቂሼ⫃⚗ት棳ሰᇬ╈┪ት䞮ሻቍሧብ ቑቋሼቮᇭ D ቀቑ㧰ↅሯᇬ㢝䨼ቍ嫷䚍቎ቫቭᇬሮቇ≬椉㠨ሯ㞾㓤ቲቯቮቡቊቒ≬椫孫⎮ ሯ栚ⱚ ሸቯቍሧ㡷ት䟂手ⅉ቎⺍ሺ቉巵⛙ሼቮሶቋ቎ቫቭᇬ㦇槱ቊ䟂手ⅉ቎⺍ሺ቉↬拣ሸ ቯ቉ሧቮሶቋᇭ E D ቑ尐ↅት䄏ቂሼ嵚㻑㦇ቑ♦檧㈛ᇬ㞾㓤ሧሯቍሸቯቮሶቋቍሲ拀栢ቑ㦮栢ሯ俛 拝ሺ቉ሧቮሶቋᇭ

䶻㧰⥭䥽ⅴ棜ቑ≬椉㠨   ⥭䥽ⅴ棜ቑ≬椉㠨ሯ㞾㓤ቲቯቍሧ⫃⚗቎≬椉劔ሯ☀椉ት≬椫孫⎮ ሼቮ券╨ሮቬ ⏜ቯቮሶቋት⸩ቤቮ㧰檔ቒᇬ㶰ቑሼቜ቉ት䄏ቂሼ⫃⚗ት棳ሰᇬ╈┪ት䞮ሻቍሧብ ቑቋሼቮᇭ D ≬椉⯠侓劔ሯᇬ㞾㓤ሩቜሰ≬椉㠨ቑ㷲䭉ቍ摠櫜♙ቖ㞾㓤ሧቑ㦮㡴ት岧憘ሺቂ嵚 㻑㦇ት♦檧ሺቂሶቋᇭ E ≬椉㠨ቑ㞾㓤㦮㡴ት拝ሱቂ㈛቎ᇬ≬椉劔ሯᇬ㞾㓤ሩቜሰ≬椉㠨ቑ㷲䭉ቍ摠櫜቎ ቇሧ቉ቑ⌻⛙㦇ት≬椉⯠侓劔቎⺍ሺ቉抐Ⅷሺᇬ⺠ቍሲቋብ拀栢ቑ抌┯䤓ቍ㞾 㓤㦮栢ት₝ራᇬሮቇ㞾㓤ሧሯቍሸቯቍሴቯቓ䦃ቄ቎≬椫孫⎮ ሯ⋫㷱ሼቮሶቋ ት≬椉⯠侓劔቎⺍ሺ቉巵⛙ሺቂሶቋᇭ F  㞾  㓤ሧሯቍሸቯቮሶቋቍሲᇬE ⚆ቑ尐ↅ቎⸩ቤቮ抌┯䤓ቍ㦮栢ሯ俛拝ሺቂሶ ቋᇭ  ≬椉劔ቒᇬ䶻檔E ⚆቎⸩ቤቮ抌┯䤓ቍ㦮栢ሯ俛拝ሺቂ㈛ቒᇬ弻↊ሮቬ⏜ቯቮᇭ ≬椫孫⎮ ቒᇬ⯠侓ሯ䶻㧰቎ሺቂሯቆ቉屲侓ሸቯቂ⫃⚗ት棳ሰᇬ≬椉⯠侓劔 ሯ㞾㓤ሩቜሰ摠櫜ት㞾㓤ቆቂቋሰቒ䦃ቄ቎⺕㧴቎⚠ሮቆ቉㈸㿊ሼቮᇭ

䶻㧰⯠侓ቑ屲侓   ≬  椉㠨ሯ㞾㓤ቲቯቍሧቡቡ䶻㧰E ⚆♗ቒ䶻㧰䶻檔E ⚆቎⸩ቤቮ㦮栢 ሯ俛拝ሺቂቋሰቒᇬ≬椉劔ቒᇬ㦇槱቎ቫቮ抩䩴ትብቆ቉⯠侓ት屲侓ሼቮሶቋሯቊ ሰቮᇭቂቃሺᇬ䶻㧰E ⚆㓏⸩ቑ嵚㻑㦇♗ቒ䶻㧰䶻檔E ⚆㓏⸩ቑ⌻⛙ 㦇቎≬椉劔ቑ⯠侓屲侓㲸ሯ岧憘ሸቯ቉ሧቮ⫃⚗቎棟ቮᇭ  ≬椉劔ሯⅴₚቑ㦮栢␔቎㞾㓤ሧት㻑ቤቮ峃ራት㙟怆ሺቍሧ⫃⚗቎ቒᇬ⯠侓ቒ屲侓 ሸቯቂብቑቋቢቍሼᇭ D 䶻⥭ቑ≬椉㠨቎ቇሧ቉ቒᇬ䶻㧰E ⚆቎⸩ቤቮ㦮栢ቑ俛拝㈛ዓ㦗ⅴ␔ᇭ E ⥭䥽ⅴ棜ቑ≬椉㠨቎ቇሧ቉ቒᇬ䶻㧰䶻檔E ⚆቎⸩ቤቮ㦮栢ቑ俛拝㈛ ዓ㦗ⅴ␔ᇭ

䶻㧰≬椉㠨ቑ♾⒕㊶ ≬椉⯠侓ሯ⯠侓㦮栢ቑ䄏ℕⓜ቎屲侓ሸቯቂቋሰቒᇬ≬椉劔ቒᇬ屲侓ቫቭⓜቑ㦮栢቎ሮ ሮቮ≬椉㠨ቑቢት嵚㻑ሼቮሶቋሯቊሰቮᇭ

䶻㧰≬椉㠨ት㞾㓤ሩ㲸Ⓒ ⅴₚቑሧሽቯሮቑ⫃⚗቎ቒᇬ≬椉劔ቒᇬ䶻ₘ劔቎ቫቮ㞾㓤ሧት㕡ቶቊቒቍቬቍሧᇭ D 䶻ₘ劔ሯ≬椉⯠侓劔ቑ⚛㎞ት㈦቉嫛䍉ሼቮቋሰᇭ

615

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

E 䶻ₘ劔ሯ≬椫孫⎮ ቑ倨倩቎ቇሧ቉㷲㇢ቍⒸ䥙ት㦘ሺ቉ሧቮ⫃⚗ቊሥቆ቉ᇬ≬椉⯠ 侓劔ሯ㞾㓤㦮棟቎㞾㓤ሧት嫛ቲቍሧቋሰ♗ቒ㞾㓤ሧት嫛ቲቍሧቊሥተሩሶቋሯ㢝 ቬሮቊሥቮቋሰᇭ

䶻䵯≬椉ℚ㟔 䶻㧰≬椉ℚ㟔ቑ抩䩴   ≬椉ℚ㟔ቑ䤉䞮ቒᇬ≬椉≬椫孫⎮ ቑⷧ⦷♙ቖ≬椉ℚ㟔ቑ䤉䞮ት䩴ቭᇬ♗ቒ䩴ቮቜ ሰቊሥቆቂሶቋት㧰ↅቋሺ቉ᇬ抩䩴券╨ት弯ቆ቉ሧቮ劔ᇬሼቍቲቄ⫃⚗቎㉫ሻ቉ ≬椉⯠侓劔ᇬ嬺≬椉劔♗ቒ≬椉摠♦♥ⅉ቎ቫቭᇬ≬椉劔቎抩䩴ሸቯቍሴቯቓቍቬ ቍሧᇭ䶻ₘ劔቎ቫቮ抩䩴ብ╈┪ት㦘ሼቮᇭ  ㇢崁抩䩴ቒ拔䅭ቍሲሸቯቍሴቯቓቍቬቍሧᇭ抩䩴ቒ䤉≰቎ቫቭ╈┪ት㦘ሼቮᇭ⯠ 侓ₙቊ㓏⸩㦮栢␔ቑ抩䩴ት券╨ቈሴ቉ሧቮ⫃⚗቎ቒᇬቀቑ㦮栢ቒᇬ㡴ⅴₙቊሥቆ ቉ሮቇ⚗䚕䤓ቍ㦮栢ቊቍሴቯቓቍቬቍሧᇭ  㞾㓤≬椉摠ቒᇬ≬椉劔ሯ抩䩴ቑ拔䅭቎ቫቭ㚜⹂ት嬺ቆቂሶቋት峋㢝ሺቂ棟ㄵቊ䂪 櫜ሸቯቮᇭ

䶻㧰嵚㻑㣑ቑ◣┪   ≬椉⯠侓劔ᇬ嬺≬椉劔♗ቒ≬椉摠♦♥ⅉቒᇬ≬椉ℚ㟔ቑ嵎㪊ᇬቋቭቲሴⅴₚቑℚ 檔቎ቇሧ቉ᇬ⚗䚕䤓ቍ尐㻑ሯሥቯቓ≬椉劔቎◣┪ሺቍሴቯቓቍቬቍሧᇭ ದ ≬椉ℚ㟔ቑ☮⥯♙ቖ俟㨫቎ቇሧ቉ቑ㍔⫀ ದ ≬椉ℚ㟔቎栱ሼቮ㦇峋ቀቑⅥቑ峋㕯 ದ 栱≑ሼቮ⫃㓏ቛቑ䵚ቄ⏴ቭ  䶻檔቎拤♜ሺቂ⫃⚗ᇬ䶻檔ቑ拸䞷ትⰷስቮሶቋቍሲᇬ≬椉摠ቒᇬ≬椉劔ሯ拤♜ ቎ቫቭ㚜⹂ት嬺ቆቂሶቋት峋㢝ሺቂ棟ㄵቊ䂪櫜ሸቯቮᇭ  䶻檔ቑ拤♜ሯᇬ㚜⹂ት䤉䞮ሸሾቮ㎞⦂ትብቆ቉♗ቒ㚜⹂ቑ䤉䞮ቑርቀቯሯሥቮሶ ቋት崜巧ሺቍሯቬ䎰嶏቎ቍሸቯቂቋሰቒᇬ≬椉劔ቒ≬椉摠ት㞾㓤ሩ券╨ት弯ቲቍ ሧᇭ

䶻㧰嵚㻑ቑ㔎嶍   ≬椉劔ቒᇬ嵚㻑቎抮ቧሮ቎㉫ሽቮቫሩሥቬቩቮ⚗䚕䤓ቍ㓚㹄ትቋቬቍሴቯቓቍቬ ቍሧᇭ  嵚㻑ቒᇬ栱≑ሼቮ㦇櫭ቀቑⅥ㍔⫀ት♦檧ሺ቉ሮቬዓ㦗ⅴ␔቎䚕䟀ትⅧሺቂ㦇槱቎ ቫቮ抩䩴ትብቆ቉嵚㻑ት㕡倅ሺ♗ቒ㔎嶍ትㆅ㦮ሺቍሧ棟ቭᇬ㔎嶍ሸቯቂብቑቋቢ ቍሸቯቮᇭ

䶻㧰⻴嫛㦮   嵚㻑ት㔎嶍ሺቂቋሰቒᇬ≬椉劔ቒᇬ拔ㆅቍሲᇬ㞾㓤ሧት嫛ሧᇬ♗ቒ侓⸩ሸቯቂ㈈ ╨ት㙟∪ሺቍሴቯቓቍቬቍሧᇭ  嵚㻑摠櫜ቑ⏷櫜ሯ䭉⸩ሸቯቮⅴⓜቊሥቆ቉ብᇬ⺠ቍሲቋብቀቑ₏捷⒕቎ቇሧ቉嵚 㻑劔ቑ㲸Ⓒሯ崜ቤቬቯቮ⫃⚗቎ቒᇬቀቑ捷⒕ቒ拔ㆅቍሲ㞾㓤ቲቯ♗ቒ俵Ⅷሸቯቍ ሴቯቓቍቬቍሧᇭ  ≬椉摠ቑ㞾㓤ሧቒᇬ䶻檔ቑ⫃⚗ብ䶻檔ቑ⫃⚗ብᇬቀቑ嵚㻑摠櫜ት㔎嶍ሺቂቋ ሰᇬ♗ቒ≬椉摠櫜ቑ⏷捷啴ሺሲቒ₏捷ሯ䭉⸩ሺቂቋሰሮቬᇬ拀栢ⅴ␔቎ሸቯቍ ሴቯቓቍቬቍሧᇭ

616

Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

䶻㧰㞾㓤ሧቑ拔ㆅ8   ≬  椉摠ሯ䶻㧰቎㈢ቆ቉㞾㓤ቲቯቍሮቆቂ⫃⚗቎ቒᇬ嵚㻑㲸劔ቒᇬቀቑ摠櫜቎ ቇሰᇬ㞾㓤ሧሯቍሸቯቮቜሰ㡴ሮቬ㞾㓤ሧ㡴ቡቊᇬ㶶ね₼⮽攏嫛ሯ㇢崁◙㦮ቑ㦏 ⒬ቑ㤵㡴䦃ⓜ቎⸮㡌ሺ቉ሧቂ⃊尐዇ኲቾኁኧዐኔዐኍዘኇ኷ዉዙኔዄዐ቎拸䞷ሺ ቂⒸ䘖቎ኮዙኘዐእት┯ራቂⒸ㋾ት嵚㻑ሼቮሶቋሯቊሰቮᇭ  嵚㻑㲸劔ቒᇬሶቑ቞ሮ቎≬椉摠ቑ㞾㓤ሧቑ拔ㆅ቎ቫቆ቉嬺ቆቂ㚜⹂ሯሥቮቋሰ ቒᇬቀቑ彯⎮ት㻑ቤቮሶቋሯቊሰቮᇭ

䶻䵯䀗䅔㣑╈ 䶻㧰≬椉㠨㞾㓤嵚㻑㲸 ≬椉㠨㞾㓤嵚㻑㲸ቒᇬ㞾㓤㦮㡴ሮቬ㄃栢嫛ቲቯቍሧቋሰቒᇬ㣑╈቎ቫቆ቉䀗䅔ሼ ቮᇭ

䶻㧰≬椉俵Ⅷ嵚㻑㲸   ≬椉俵Ⅷ嵚㻑㲸ቒᇬ☮ⓖቋሺ቉ᇬ≬椉劔ሯ嵚㻑቎栱ሼቮ㦏俑ቑ㼉⸩ት嫛ሧ♗ቒ䶻 㧰቎ቫቭ嫛ቆቂቋቢቍሸቯቂ㣑ሮቬ㄃栢嫛ቲቯቍሧቋሰቒᇬ㣑╈቎ቫቆ቉ 䀗䅔ሼቮᇭቂቃሺᇬሧሮቍቮ⫃⚗቎ብᇬ嵚㻑㲸ቒ≬椉ℚ㟔ቑ䤉䞮㣑ሮቬ㄃俛拝 ሺቂቋሰᇬ㣑╈቎ቫቆ቉䀗䅔ሼቮሯᇬ䞮✌≬椉ቑ⫃⚗቎ቒሶቑ㦮栢ቒ㄃栢ቋሼ ቮᇭ  䞮✌≬椉ቑ屲侓扣㓊摠ቑ㞾㓤嵚㻑㲸ቒᇬ≬椉⯠侓劔ሯ≬椉劔ሮቬ䭉⸩䤓ቍ岗並㦇 ት♦檧ሺቂ㣑ሮቬ㄃栢嫛ቲቯቍሧቋሰቒᇬ㣑╈቎ቫቆ቉䀗䅔ሼቮᇭቂቃሺᇬሧ ሮቍቮ⫃⚗቎ብᇬ䞮✌≬椉⯠侓ቑ俑ℕሮቬ㄃ት俛拝ሺቂ㣑ሮቬᇬ嵚㻑㲸ቒᇬ㣑 ╈቎ቫቆ቉䀗䅔ሼቮᇭ

䶻㧰㣑╈቎栱ሼቮቀቑⅥቑℚ檔 3(,&/䶻㧰ርቫቖ䶻㧰ቑ拸䞷ትⰷስቮሶቋቍሲᇬ≬椉⯠侓ሮቬ䞮ሽቮ嵚 㻑㲸቎ቒᇬዅዙዊአኮ⯠侓㽤☮ⓖ3(&/ 9䶻㧰ሮቬ䶻㧰ቑ尞⸩ት拸䞷ሼ ቮᇭ≬椉⯠侓቎ርሧ቉ቒᇬ3(,&/䶻㧰䶻檔቎㈢ቆ቉ᇬሶቯቋ䟿ቍቮ⚗㎞ትሼቮ ሶቋሯቊሰቮᇭ

䶻捷㚜⹂≬椉቎␀抩ሼቮ尞⸩ 䶻䵯≬椉摠櫜♙ቖ≬椉∰櫜 䶻㧰㞾㓤ሧ櫜ቑₙ棟   ≬椉劔ቒᇬ嬺≬椉劔ሯ䚍⸮቎嬺ቆቂ㚜⯀ት቉ቶ孫ሼቮቂቤ቎㉔尐ቍ摠櫜ት怔ራቮ 㞾㓤ሧትሼቮ券╨ት弯ቲቍሧᇭ  ≬椉ቑ䥽䤓䓸ቑ∰櫜቎ቇሧ቉⚗㎞ሼቮ㧰檔ቒᇬ⚗㎞ሸቯቂ∰櫜ሯ䥽䤓䓸ቑ䚍⸮ቑ ∰櫜ት怔ራ቉ሧቮቋሰቊብᇬ∰櫜቎ቇሧ቉ቑ⚗㎞ሯቍሸቯቂ㣑቎≬椉⯠侓劔♗ቒ 8 9

㦻㧰ቒᇬ㞾㓤拔ㆅ㖖ⅳ(2000 / 35 / EC)䶻3㧰1檔(d)ት኿ኤወቋሺ቉ሧቮᇭ Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000), Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer International, The Hague 2003)♑䏶ᇭ

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

嬺≬椉劔ቑ⌃቎⚗㎞㒟䵚቎⺍ሺ቉㈀檎ት₝ራቂ峟㷉♗ቒₜ⸮⛙䩴ሯቍሧ棟ቭ╈┪ ት㦘ሼቮᇭ

䶻㧰₏捷≬椉   ≬椉劔ቒᇬ≬椉摠櫜ሯᇬ≬椉ትⅧሸቯቂ弰䞲ቑ≬椉ℚ㟔䤉䞮㣑ቑ∰櫜቎䄏ቂቍሧ ⫃⚗቎ብᇬ≬椉摠櫜ቑ棟ㄵቊ㚜⯀ት቉ቶ孫ሼቮ弻↊ት弯ሩᇭ  ሶቑ尞⸩቎ሮሮቲቬሽᇬ≬椉劔ቒᇬ䶻檔቎㈢ሧ孫⎮ት㙟∪ሼቮ⫃⚗቎ርሧ቉ᇬ㞾 㓤ቲቯቮ≬椉摠ሯ㚜⯀䤉䞮㣑ቑ弰䞲ቑ䚍⸮ቑ∰⊳቎⺍ሺ቉≬椉摠櫜ሯ㦘ሼቮ━⚗ ቎棟⸩ሸቯቮቋሧሩ␔⹈ቑ≬椉ት㙟∪ሼቮሶቋብቊሰቮᇭሶቑ⫃⚗቎ቒᇬ䶻 㧰቎⸩ቤቮ㚜⹂憌䂪ቑቂቤቑ㘹函቎尐ሼቮ彊䞷ብᇬ⚛ሻ━⚗ቊ቉ቶ孫ሸቯቮᇭ

䶻㧰怔拝≬椉ቑ⫃⚗ቑ㧰ↅ⮘㦃   ≬椉摠櫜ሯ≬椉⯠侓ቑₚቊ䞮ሻ㈦ቮ㦏⮶ቑ㚜⯀櫜ት怔ራቮ⫃⚗቎ቒᇬሧሽቯቑ㇢ ℚ劔ብᇬ㸚ⷧሼቮ⯠侓㦮栢቎ቇሧ቉ᇬ≬椉摠櫜ቑ䂪櫜♙ቖሶቯ቎⺍㉫ሺቂ≬椉㠨 ቑ䂪櫜ት嵚㻑ሼቮሶቋሯቊሰቮᇭ  嵚㻑ሯቍሸቯ቉ሮቬዓ㦗ⅴ␔቎䂪櫜቎ቇሧ቉⚗㎞቎拣ሺቍሧቋሰቒᇬሧሽቯቑ㇢ ℚ劔ብ⯠侓ት屲侓ሼቮሶቋሯቊሰቮᇭ

䶻㧰摜宖≬椉   ⚛  ₏ቑⒸ䥙ሯⅴₙቑ≬椉劔቎ቫቭ䕻䵚቎孫⎮ሸቯ቉ሧቮቋሰቒᇬ嬺≬椉劔ቒᇬሧ ሽቯሮⅴₙቑ≬椉劔቎⺍ሺ቉ᇬ嬺≬椉劔ሯ䚍⸮቎嬺ቆቂ㚜⯀ት቉ቶ孫ሼቮቂቤ቎ ㉔尐ቍ棟ㄵቡቊ嵚㻑ትሼቮሶቋሯቊሰቮᇭ  嵚㻑ት♦ሴቂ≬椉劔ቒᇬⅥቑ≬椉劔቎⺍ሼቮ㻑⎮㲸ቑ嫛∎ትⰷስቮሶቋቍሲᇬ呹 むቑ≬椉峋Ⓡₙቑ≬椉摠櫜቎拣ሼቮቡቊቑ摠櫜ትᇬ㚜⹂棁㷱彊䞷ሯ㞾⒉ሸቯ቉ሧ ቮቋሰቒቀቯቋቋብ቎㞾㓤ቲቍሴቯቓቍቬቍሧᇭ  ≬椉劔栢቎ርሧ቉ቒᇬ䶻檔቎⸩ቤቮ㲸Ⓒ♙ቖ券╨ቒᇬቀቯቁቯሯ嬺≬椉劔቎⺍ሺ ቉䕻䵚቎弻↊ት弯ሩ摠櫜቎㹣√ሼቮብቑቋሼቮᇭ

䶻䵯≬椉摠嵚㻑㲸 䶻㧰㚜⯀ቋቑ⥯㨫栱≑   ≬椉⯠侓劔♗ቒ嬺≬椉劔ቒᇬ㚜⯀ት䤉䞮ሸሾቮ㎞⦂ትብቆ቉♗ቒ㚜⯀ቑ䤉䞮ቑር ቀቯሯሥቮሶቋት崜巧ቍሯቬ䎰嶏቎ሺቂ呹むቑ⌃ቑ嫛䍉♗ቒₜ⇫䍉቎ቫቭ㚜⯀ሯ 䤉䞮ሺቂ棟ㄵ቎ርሧ቉ቒᇬ㚜⹂ቑ቉ቶ孫ት嵚㻑ሼቮሶቋሯቊሰቍሧᇭ  拝⯀ቑ䲚ㄵ቎㈢ቆ቉≬椉摠ት䂪櫜ሼቮ㢝䨼ቍ≬椉峋Ⓡₙቑ尞⸩ሯሥቯቓቀቯ቎㈢ ሩሶቋት㧰ↅቋሺ቉ᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ቒᇬ拝⯀ቑሥቮ嫛䍉♗ቒₜ⇫䍉቎ ቫቭ䤉䞮ሺቂ㚜⯀቎⺍ሺ቉ᇬ቉ቶ孫ት嵚㻑ሼቮሶቋሯቊሰቮᇭ  䶻檔♙ቖ䶻檔቎ርሧ቉ᇬ㚜⯀ቑ⥭挎♗ቒ憌䂪ት㊯ቆቂሶቋቒ㚜⯀ቋቑ⥯㨫栱≑ ቎⚺ቡቯቮᇭ

䶻㧰㚜⹂憌䂪彊䞷   ≬椉劔ቒᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯ孫⎮ሸቯቮ㚜⯀ት憌䂪ሼቮቂቤቑ㘹函ት♥ ቆቂሶቋ቎ቫቭ弯㕔ሺቂ彊䞷♗ቒ嬺ቆቂ㚜⹂ቑ櫜቎ቇሧ቉ᇬ㚜⯀ት憌䂪ሼቮ╈㨫 ሯቍሮቆቂ⫃⚗ቊሥቆ቉ብᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯቀቑ㘹函ት㇢崁ℚ㍔ቑₚ ቊ⚗䚕䤓ቋ≰ሻቂሶቋሯ䦇㇢ቊሥቮ棟ㄵ቎ርሧ቉ᇬ቉ቶ孫ሺቍሴቯቓቍቬቍሧᇭ

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Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

 ≬椉劔ቒᇬ䶻檔቎㈢ቆ቉♥ቬቯቂ㘹函቎ቇሧ቉ቒᇬ孫⎮ሸቯቮ㚜⯀ቑ቉ቶ孫ቋ⚗ 岗ሼቯቓ㞾㓤摠櫜ሯ≬椉摠櫜ት怔ራቮቋሰቊሥቆ቉ብᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔 ቎⺍ሺ቉ᇬ቉ቶ孫ሺቍሴቯቓቍቬቍሧᇭ

䶻䵯ⅲ⇜㲸 䶻㧰ⅲ⇜   䶻  檔ቑ拸䞷ትⰷስቮሶቋቍሲᇬ≬椉劔ቒᇬ嬺≬椉劔቎⺍ሺ቉቉ቶ孫ትሺቂ乓⦁␔ ቊᇬ㚜⯀቎ቇሰ弻↊ሥቮ䶻ₘ劔቎⺍ሺ቉ⅲ⇜㲸ት嫛∎ሼቮሶቋሯቊሰቮᇭ  嬺≬椉劔ቒᇬ䶻ₘ劔቎⺍ሼቮ㲸Ⓒት㟍㭓ሺቂሶቋ቎ቫቭ≬椉劔ቑⅲ⇜㲸ት⹂ሺቂ ቋሰቒᇬቀቑ棟ㄵቊ㇢崁㚜⯀቎⺍ሼቮ቉ቶ孫ት♦ሴቮ㲸Ⓒት⯀ሩᇭ  ≬椉劔ቒᇬ≬椉⯠侓劔啴ሺሲቒ嬺≬椉劔ቑ₥ゾቑ㱚㒟❰ᇬ≬椉⯠侓劔啴ሺሲቒ嬺 ≬椉劔቎⺍ሺ቉ሶቯቋ⚛䷘ቑ䯍↩䤓栱≑቎ሥቮ劔♗ቒ≬椉⯠侓劔啴ሺሲቒ嬺≬椉 劔ቑ嬺䞷劔቎⺍ሺ቉ቒᇬቀቯቬቑ劔ሯ㚜⯀ት䤉䞮ሸሾቮ㎞⦂ትብቆ቉♗ቒ㚜⯀ቑ 䤉䞮ቑርቀቯሯሥቮሶቋት崜巧ቍሯቬ䎰嶏቎㚜⯀ት䤉䞮ሸሾቂሶቋት峋㢝ሺቂ⫃ ⚗ት棳ሰᇬⅲ⇜㲸ት嫛∎ሼቮሶቋሯቊሰቍሧᇭ   ≬  椉劔ቒᇬⅲ⇜㲸ቑ嫛∎቎ቫቆ቉嬺≬椉劔ቑⒸ䥙ት⹂ሼቮሶቋቒቊሰቍሧᇭ

䶻䵯≬椉⯠侓劔ቋ嬺≬椉劔ሯ䟿ቍቮ⫃⚗ 䶻㧰嬺≬椉劔ቑ㲸Ⓒ   ≬  椉⯠侓劔ⅴ⮥ቑ劔ቑቂቤ቎ሼቮ≬椉⯠侓቎ርሧ቉ቒᇬ≬椉ℚ㟔ሯ䤉䞮ሺቂ㣑 ቒᇬቀቑ≬椉⯠侓劔ⅴ⮥ቑ劔ሯ≬椉摠ት嵚㻑ሼቮሶቋሯቊሰቮᇭ  ≬椉⯠侓劔ቒᇬⅴₚቑሧሽቯሮቑ⫃⚗ት棳ሰᇬ≬椉⯠侓劔ⅴ⮥ቑ劔ቑቂቤ቎ሼቮ 孫⎮ት㜳⥭ሼቮሶቋሯቊሰቮᇭ D ≬椉峋Ⓡ቎⒴㹄ቑ⸩ቤሯሥቮ⫃⚗ᇭ E ≬椉ℚ㟔ሯ䤉䞮ሺቂ⫃⚗ᇭ  㜳⥭ቒᇬ㦇槱቎ቫቮ㜳⥭ቑ抩䩴ሯ≬椉劔቎⺍ሺ቉ቍሸቯቂ㣑቎╈┪ት䞮ሽቮᇭ

䶻㧰嬺≬椉劔ቑ䩴♗ቒₜ䩴 䶻㧰቎⸩ቤቮ嬺≬椉劔ቑ䩴♗ቒₜ䩴ቒᇬ≬椉⯠侓劔ሯ≬椉劔቎⺍ሺ቉ቀቑ㍔⫀ ት㙟∪ሼቮ券╨ት弯ቆ቉ሧቮ⫃⚗ᇬ呹むሯ嬺≬椉劔ቊሥቮሶቋትቀቑ劔ሯ䩴ቆ቉ሧቂ ቋሰት棳ሰᇬ≬椉⯠侓劔ቑ䩴♗ቒₜ䩴ቋሺ቉㔀ቲቯቍሧᇭ

䶻㧰₏ⅉቑ嬺≬椉劔቎ቫቮ券╨ቑ拤♜ ₏ⅉቑ嬺≬椉劔቎ቫቮ券╨ቑ拤♜ቒᇬ☀椉ሯ₏⇢ቋሺ቉孫⎮ሸቯ቉ሧቮ⫃⚗ት棳ሰᇬ ⚛₏ቑ≬椉⯠侓ₙቑⅥቑ嬺≬椉劔ቑ㲸Ⓒ቎㈀檎ት♙቟ሸቍሧᇭ

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

䶻䵯嬺≬椉Ⓒ䥙 䶻㧰嬺≬椉Ⓒ䥙ቑ㶯Ⱁ   嬺≬椉Ⓒ䥙ሯᇬ⯠侓ቑ偯俟㣑቎ብ≬椉㦮栢␔ቑሧሮቍቮ㣑䍈቎ብⷧ⦷ሺቍሧቋሰ ቒᇬ≬椉㠨ቑ㞾㓤ሧ券╨ቒ䤉䞮ሺቍሧᇭቂቃሺᇬ≬椉劔ቒᇬ弯㕔ሺቂ彊䞷቎ቇሧ ቉⚗䚕䤓ቍ摠櫜ት嵚㻑ሼቮሶቋሯቊሰቮᇭ  嬺≬椉Ⓒ䥙ሯ≬椉㦮栢₼቎ⷧ⦷ሺቍሲቍቆቂ⫃⚗቎ቒᇬ⯠侓ቒᇬ≬椉劔ሯቀቑሶ ቋት䩴ቬሸቯቂ㣑቎俑ℕሺቂብቑቋቢቍሼᇭ

䶻㧰弰䞲ቑ䲊慱   ≬椉ትⅧሸቯቂ弰䞲቎⺍ሼቮ㲸Ⓒሯ币䂰ሸቯቂቋሰቒᇬ≬椉⯠侓ቒᇬቫቭ㡸ሧ㣑 䍈ቑ⯠侓俑ℕት≬椉⯠侓劔ቋ币♦ⅉሯ⚗㎞ሺቍሧ棟ቭᇬ币䂰ሮቬዓ㦗㈛቎俑ℕሼ ቮᇭሶቑ尞⸩ቒᇬ≬椉⯠侓ሯ⺕㧴ቑ币♦ⅉቑⒸ䥙ቑቂቤ቎偯俟ሸቯ቉ሧቮ⫃⚗቎ ቒᇬ拸䞷ሺቍሧᇭ  ≬椉ትⅧሸቯቂ弰䞲ቑ币♦ⅉቒᇬⅧ≬ሸቯቂ弰䞲ቑ☀椉ሯ䲊慱ሺቂ㣑ሮቬ嬺≬椉 劔ቋቢቍሸቯቮᇭ  䶻檔♙ቖ䶻檔ቑ尞⸩ቒᇬ㶰ቑሧሽቯሮቑ⫃⚗቎ቒ拸䞷ሺቍሧᇭ D ≬椉劔ᇬ≬椉⯠侓劔♙ቖ币♦ⅉሯ⒴㹄ቑ⚗㎞ትሼቮቋሰᇭ E 䦇倩቎ቫቆ቉㲸Ⓒሯ䲊慱ሼቮቋሰᇭ

䶻捷⸩櫜≬椉቎␀抩ሼቮ尞⸩ 䶻䵯拸㽤㊶ 䶻㧰⸩櫜≬椉 ⸩櫜≬椉ቒᇬ⍆⹂ᇬ䡍䡔ᇬ䞮✌ᇬ⳩Ⲋᇬ⒉䞮ቀቑⅥቑⅉ≬椉቎棟ቆ቉⯠侓ሼቮሶቋሯ ቊሰቮᇭ

䶻捷弻↊≬椉 䶻䵯㣽抩弻↊≬椉 䶻㧰棁㈰彊䞷 ≬椉劔ቒᇬ䶻㧰቎㈢ቆ቉弯㕔ሺቂ棁㈰彊䞷ት቉ቶ孫ሼቮᇭ

䶻㧰嬺⹂劔ቑ≬帆 嬺⹂劔ቒᇬ㦇槱቎ቫቭ⚛㎞ሺቂቋሰት棳ሰᇬ≬椉⯠侓劔ቡቂቒ嬺≬椉劔ቋ≬椉劔ቑ栢 ቎ርሧ቉ᇬ⚗㎞ᇬ㲸Ⓒቑ㟍㭓ᇬ㆐䂗ቀቑⅥሶቯ቎䄥ሽቮ嫛䍉቎ቫቭ≬椉峋Ⓡ቎⪉ቈሲ ≬椉摠嵚㻑ሯ㼉䂗ሸቯቂሶቋ቎ቫቆ቉ᇬቀቑ⦿⇜ትふ⚂ሸቯቍሧᇭ

䶻㧰㚜⹂ቑ㕪咃   ≬椉⯠侓劔♙ቖ嬺≬椉劔ቒᇬ㚜⹂ት䤉䞮ሸሾቮ㎞⦂ትብቆ቉ሺቂ呹むቑ⇫䍉♗ቒ ₜ⇫䍉቎ቫቆ቉㚜⹂ሯ䤉䞮ሺቂ棟ㄵ቎ርሧ቉ᇬ≬椉摠ቑ㞾㓤ሧት♦ሴቮ㲸Ⓒት⯀ ሩᇭ≬椉⯠侓劔♙ቖ嬺≬椉劔ሯᇬ㚜⹂䤉䞮㈛቎ᇬ≬椉劔ሯሺቂ䔈⸩ቑ㖖䯉቎㈢ቲ

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Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

ቍሴቯቓ㚜⹂ሯ㕰⮶ሼቮሶቋት䩴ቭቍሯቬ䎰嶏቎ᇬ≬椉劔ሯሺቂ䔈⸩ቑ㖖䯉቎㈢ ቲቍሮቆቂቋሰብᇬⓜ㹄ቑ尞⸩ሯ拸䞷ሸቯቮᇭ  䶻檔ቑ拸䞷ₙᇬ㚜⹂ቑ㕪咃቎ቒ㚜⹂ት⥭挎♗ቒ憌䂪ሺቍሮቆቂሶቋት⚺ባᇭ  拝⯀ቑ䲚ㄵ቎㉫ሻ቉≬椉摠ት䂪櫜ሼቮሶቋት⸩ቤቂ≬椉峋Ⓡₙቑ㢝䨼ቍ㧰檔ሯሥ ቯቓቀቯ቎㈢ሩሶቋት㧰ↅቋሺ቉ᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ቒᇬ㚜⹂ሯ䤉䞮ሺቂ ㈛቎≬椉劔ሯሺቂ䔈⸩ቑ㖖䯉቎拝⯀቎ቫቆ቉㈢ቲቍሮቆቂቂቤ቎䤉䞮ሺቂ㚜⹂቎ ቇሧ቉ቒᇬ≬椉摠ቑ㞾㓤ሧት嵚㻑ሼቮሶቋሯቊሰቮᇭ

䶻㧰弻↊ቑ呹崜   ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯ嬺⹂劔ቑ嵚㻑ት㔎嶍ሺᇬ♗ቒቀቯ቎⺍ሺ቉㆐䂗ሺቂ⫃ ⚗቎ቒ≬椉劔ሯ弻↊ት⏜ቯቮብቑቋሼቮ≬椉⯠侓ቑ㧰檔ቒᇬ䎰╈ቋሼቮᇭ  ≬椉劔ቒᇬ⚛㎞ሺቂ⫃⚗ት棳ሰᇬ嬺⹂劔ቋ≬椉⯠侓劔♗ቒ嬺≬椉劔ቑ栢ቑ⚗㎞቎ ቫቆ቉㕧㧮ሸቯቍሧᇭ

䶻㧰币䂰 嬺≬椉劔ሯ≬椉峋Ⓡ቎⪉ቈሲ嵚㻑㲸ት币䂰ሼቮ㲸Ⓒት㖐ቂቍሧሶቋት⸩ቤቮ≬椉⯠侓 ቑ㧰檔ቒᇬ䎰╈ቋሼቮᇭ

䶻㧰䎰嵚㻑━ㆤ᧫ኾ዇አእዘኤኾ዇አእⓅ   ≬  椉⯠侓劔ቒᇬ㦏扠㄃栢ቑ呹むቑ≬椉摠嵚㻑⻴㸃቎栱ሼቮ岧旁ትሧቇቊብ嵚㻑ሼ ቮሶቋሯቊሰቮᇭ  ≬椉劔ሯᇬ≬椉峋Ⓡ቎⪉ቈሲ㞾㓤ሧቑↅ㟿♗ቒ摠櫜቎ቫቆ቉ᇬ≬椉㠨ቀቑⅥቑ㧰 ↅት㼉⸩ሼቮቋሰቒᇬⅥቑ≬椉劔቎⺍ሼቮ≬椉⯠侓劔ቑ㦏扠㄃栢ቑ≬椉摠嵚㻑⻴ 㸃ት◐⒕቎劒㏽ሺቍሴቯቓቍቬቍሧᇭ

䶻㧰≬椉ℚ㟔   ≬椉ℚ㟔ቒᇬ嬺≬椉劔ሯ弻↊ት弯ሩሶቋቋቍቮℚ⸮ቊሥቆ቉≬椉⯠侓ቑ弻↊㦮栢 ␔቎䤉䞮ሺቂብቑቋሼቮᇭቂቃሺᇬ⟕㯼ₙ♗ቒ匆㯼ₙቑ弻↊ት䥽䤓ቋሼቮ≬椉⯠ 侓቎ርሧ቉ᇬ㇢ℚ劔ሯ嬺⹂劔቎ቫቮ嵚㻑ቀቑⅥቑ⪉䄥቎ቫቭ≬椉ℚ㟔ት⸩券ሼቮ ⫃⚗ቒሶቑ棟ቭቊቒቍሧᇭ  ⯠侓㇢ℚ劔ሯ嬺⹂劔቎ቫቮ嵚㻑ት⪉䄥ቋሺ቉≬椉ℚ㟔ት⸩券ሼቮ⫃⚗ቒᇬ弻↊㦮 栢␔቎ሸቯቂ嵚㻑♙ቖቀቯ቎倩ሲ㄃ⅴₙቑ㦮栢␔቎ሸቯቂ嵚㻑ቊሥቆ቉弻↊㦮 栢ቑ俑ℕⓜ቎䤉䞮ሺቂℚ⸮቎⪉ቈሲብቑ቎⺍ሼቮ孫⎮ሯㆤሰ♦ሴቬቯቮብቑቋሼ ቮᇭ≬椉⯠侓቎ርሧ቉ቒᇬ䟂手ⅉሯ嵚㻑㲸ቑ䤉䞮ት℗尚ቊሰቂℚ㍔ት⯠侓偯俟㣑 ቎䩴ቆ቉ሧቂሮ♗ቒ䩴ቮቜሰቊሥቆቂ⫃⚗቎ቇሧ቉孫⎮ትㆤሰ♦ሴቍሧብቑቋሼ ቮሶቋሯቊሰቮᇭ

䶻㧰嵚㻑櫜ሯ≬椉摠櫜ት怔ራቮ⫃⚗   宖㟿ቑ嬺⹂劔቎⺍ሺ቉㞾㓤ሩቜሰ偞櫜ሯ≬椉摠櫜ት怔ራቮቋሰቒᇬ━⚗቎㉫ሻ቉ 䂪櫜ሺ቉㞾㓤ሩብቑቋሼቮᇭ  Ⅵቑ嬺⹂劔ቑⷧ⦷ት䩴ቬቍሧቡቡ崯⸮቎ᇬ䩴ቯ቉ሧቮ嬺⹂劔቎⺍ሺ቉≬椉摠ት㞾 㓤ቆቂ≬椉劔ቒᇬⅥቑ嬺⹂劔቎⺍ሺ቉≬椉摠櫜ቑ㸚櫜቎拣ሼቮቡቊ㞾㓤ሩ券╨ት 弯ሩᇭ

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

䶻䵯䦃㘴嵚㻑㲸♙ቖ䦃㘴峃岮 䶻㧰䦃㘴嵚㻑㲸♙ቖ㔦㆐   㶰቎㙁ስቮሧሽቯሮቑ⫃⚗቎ቒᇬ嬺⹂劔ቒᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯ弻↊ት弯 ሩ棟ㄵቊ≬椉劔቎⺍ሺ቉㞾㓤ሧት㻑ቤቮ䦃㘴ቑ嵚㻑㲸ት≬椉⯠侓ₙ㦘ሼቮᇭ D ≬椉ሯ㇆Ⓟሸቯ቉ሧቮቋሰᇭ E ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯ䎰彖┪ቊሥቮቋሰᇭ F  ≬椉⯠侓劔♗ቒ嬺≬椉劔ሯ䂔並ሸቯ♗ቒ屲㟲ሺቂቋሰᇭ G 嬺⹂劔ሯⅉ愺㚜⹂ት♦ሴቂቋሰᇭ H 弻↊ት尞⸩ሼቮ㽤ሯ䦃㘴嵚㻑㲸ት⸩ቤ቉ሧቮቋሰᇭ  ≬椉劔ቒᇬ嬺⹂劔቎⺍ሺ቉ᇬ≬椉ት㇆Ⓟሼቮ尞⸩቎ርሧ቉䰐ሻቬቯ቉ሧቮ⫃⚗ት 棳ሰᇬ≬椉⯠侓቎⪉ቈሲ㔦㆐ት⃊㇄ሼቮሶቋሯቊሰቮᇭቂቃሺᇬ㚜⹂ቑ䤉䞮㈛቎ ርሴቮ≬椉⯠侓劔啴ሺሲቒ嬺≬椉劔♗ቒቀቑ♛㡈ቑ嫛╤ት䚕䟀ቋሼቮ㔦㆐ት⃊㇄ ሼቮሶቋቒቊሰቍሧᇭ

䶻㧰㍔⫀㙟∪券╨   ≬椉⯠侓劔♙ቖ嬺≬椉劔ቒᇬ嬺⹂劔ሯ㻑ቤቮቋሰቒᇬ䦃㘴嵚㻑ትሼቮቂቤ቎㉔尐 ቍ㍔⫀ት㙟∪ሺቍሴቯቓቍቬቍሧᇭ  ≬椉劔ቒᇬ䦃㘴嵚㻑ት♦ሴ቉ሮቬ拀栢ⅴ␔቎拔䅭ቍሲᇬ㦇槱቎ቫቆ቉ᇬ嵚㻑቎ቇ ሧ቉≬椉⯠侓劔቎抩䩴ሺቍሴቯቓቍቬቍሧᇭ≬椉劔ሯሶቑ券╨ት㊯ቆቂቋሰቒᇬ 嬺⹂劔቎⺍ሼቮ㞾㓤ሧ♗ቒ券╨ቑ㔎崜ቒᇬ≬椉⯠侓劔ቑ㲸Ⓒ቎㈀檎ት₝ራቍሧᇭ  ≬椉⯠侓劔ሯᇬ䶻檔቎⪉ቈሲ抩䩴ት♦檧ሺ቉ሮቬሮ㦗ⅴ␔቎≬椉ℚ㟔቎栱ሼቮ ㍔⫀ት≬椉劔቎㙟∪ሺቍሧቋሰቒᇬ≬椉⯠侓劔ቒᇬ≬椉劔ሯ嬺⹂劔ቋ䦃㘴㼉䂗ሼ ቮሶቋ቎⚛㎞ሺቂብቑቋቢቍሼᇭቀቑ抩䩴ት㓏⸩ቑ㣑㦮቎䚍⸮቎♦檧ሺቂ嬺≬椉 劔቎ቇሧ቉ብᇬሶቑ尞⸩ት拸䞷ሼቮᇭ

䶻㧰弻↊ቑ䀗䅔 ≬椉劔ቒᇬ㶰቎㙁ስቮ⫃⚗቎棟ቭᇬ≬椉⯠侓劔♗ቒ嬺≬椉劔቎⺍ሼቮ≬椉摠ቑ㞾㓤ሧ ቎ቫቆ቉嬺⹂劔቎⺍ሼቮ券╨ት⏜ቯቮᇭ D 嬺⹂劔ሯ䦃㘴嵚㻑㲸ት㟍㭓ሺቂቋሰᇭ E 嬺⹂劔ሯ≬椉劔ቑ㦇槱቎ቫቮ䏶↩ሮቬ拀栢ⅴ␔቎䦃㘴嵚㻑㲸ት嫛∎ሼቮ㎞㊬ት≬ 椉劔቎抩䩴ሺቍሮቆቂቋሰᇭ

䶻㧰㣑╈   ≬椉劔቎⺍ሼቮ嵚㻑㲸ቒᇬ嬺≬椉劔቎ቫቮሮ嬺⹂劔቎ቫቮሮት⟞ቲሽᇬ嬺⹂劔ቑ 嬺≬椉劔቎⺍ሼቮ嵚㻑㲸ሯ㣑╈቎ቫቭ䀗䅔ሼቮ㣑቎ᇬ㣑╈቎ቫቆ቉䀗䅔ሼቮᇭ  嬺⹂劔ቑ嬺≬椉劔቎⺍ሼቮ嵚㻑㲸ቑ䀗䅔㣑╈㦮栢ቒᇬ≬椉劔቎⺍ሼቮ䦃㘴嵚㻑ሯ ሸቯቂሶቋት嬺≬椉劔ሯ䩴ቆቂ㣑ሮቬᇬ䦃㘴嵚㻑ሯ㼉䂗ሸቯᇬ♗ቒ≬椉劔቎ቫቆ ቉㢝䭉቎㕡倅ሸቯቂ㣑ቡቊቑ栢ቒᇬ䀗䅔㣑╈ቒ拁嫛ሺቍሧᇭ

䶻䵯㇆Ⓟ≬椉 䶻㧰拸䞷乓⦁   ㇢  ℚ劔ቒᇬ㶰቎㙁ስቮ⫃⚗ቑ券╨ት⻴嫛ሼቮቂቤ቎偯俟ሸቯቮ≬椉⯠侓቎ቇሧ ቉ᇬ3(,&/ት指㔭ሼቮሶቋሯቊሰቮᇭ

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Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

D 㶶ね␀⚛⇢ቑ㽤቎ቫቆ቉券╨ቈሴቬቯ቉ሧቮ⫃⚗ᇭ E ┯䥮⦌቎ቫቆ቉券╨ቈሴቬቯ቉ሧቮ⫃⚗ᇭ F  ┯䥮⦌ⅴ⮥ቑ⦌቎ቫቆ቉券╨ቈሴቬቯ቉ሧቮ⫃⚗ᇭቀቑ⦌ቑ㽤቎ቫቭ崜ቤቬ ቯ቉ሧቮ棟ㄵ቎ርሧ቉ᇭ  ≬椉⯠侓ቒᇬ≬椉⯠侓ት偯俟ሼቮ券╨ት⸩ቤቂ尞⸩቎⚗咃ሺ቉ሧቍሴቯቓᇬቀቑ 券╨ት⻴嫛ሺቂብቑቋቒ崜ቤቬቯቍሧᇭ

䶻捷䞮✌≬椉 䶻䵯䞮✌≬椉቎ቇሧ቉ቑ䔈ⓖ 䶻乏䶻ₘ劔 䶻㧰䶻ₘ劔ቑ䞮✌቎⺍ሼቮ䞮✌≬椉 ≬椉⯠侓劔ⅴ⮥ቑ劔ቑ䞮✌቎⺍ሼቮ≬椉⯠侓ቒᇬ≬椉⺍廰劔ሯ崻㢝ት♦ሴቂₙቊᇬ㦇 槱቎ቫቭሮቇ刁⚜ቊ䭉崜ሸቯቂ⚛㎞ት₝ራቂ⫃⚗ት棳ሧ቉ᇬ䎰╈ቋሼቮᇭ≬椉摠♦♥ ⅉቑ⮘㦃ᇬ≬椉摠櫜ቑ⬦櫜♙ቖ⯠侓㦮栢ቑ⮘㦃ት⚺ባ⯠侓ቑℚ㈛䤓ቍ⮘㦃ቒᇬሶቯቋ ⚛ሻ⚛㎞ሯቍሴቯቓ╈┪ት㖐ቂቍሧᇭ≬椉⯠侓♗ቒ≬椉摠嵚㻑㲸ቑ币䂰♙ቖ㕔≬㲸ቑ 岼⸩቎ቇሧ቉ብᇬ⚛㱧ቋሼቮᇭ

䶻㧰≬椉摠♦♥ⅉ   ≬椉⯠侓劔ቒᇬ₏ⅉ♗ቒℛⅉⅴₙቑ≬椉摠♦♥ⅉት㖖⸩ሼቮሶቋሯቊሰᇬቡቂᇬ 㖖⸩ሯ㜳⥭ₜ厌ቋ嫷䯉ሸቯ቉ሧቍሧ棟ቭᇬቀቑ㖖⸩ት⮘㦃♗ቒ㜳⥭ሼቮሶቋሯቊ ሰቮᇭ㖖⸩ᇬ⮘㦃♙ቖ㜳⥭ቒᇬ按岏቎ቫቮ⫃⚗ት棳ሰᇬ㦇槱቎ቫቆ቉嫛ሧᇬ≬椉 劔቎抐Ⅷሺቍሴቯቓቍቬቍሧᇭ  㖖⸩ᇬ⮘㦃♗ቒ㜳⥭ትሼቮ㲸Ⓒቒᇬ≬椉⯠侓劔ቑ㸊ℰ♗ቒ≬椉ℚ㟔ቑ䤉䞮ቑሧሽ ቯሮቑℚ䟀ሯ䤉䞮ሺቂ㣑቎ᇬ䀗䅔ሼቮᇭ  㶰቎㙁ስቮ⫃⚗ቒᇬ≬椉⯠侓劔♗ቒ≬椉⯠侓劔ቑ䦇倩ⅉት≬椉摠♦♥ⅉቋቢቍ ሼᇭ D ≬椉⯠侓劔ሯ≬椉摠♦♥ⅉት㖖⸩ሺ቉ሧቍሧ⫃⚗ᇭ E ≬椉摠♦♥ⅉቑ㖖⸩ሯ㜳⥭ሸቯᇬⅥቑ≬椉摠♦♥ⅉሯ㖖⸩ሸቯ቉ሧቍሧ⫃⚗ᇭ F  ≬椉摠♦♥ⅉሯ≬椉ℚ㟔ቑ䤉䞮ⓜ቎㸊ℰሺᇬⅥቑ≬椉摠♦♥ⅉሯ㖖⸩ሸቯ቉ሧ ቍሧ⫃⚗ᇭ   ℛ  ⅉⅴₙቑ≬椉摠♦♥ⅉሯ㖖⸩ሸቯ቉ሧቮ⫃⚗቎ᇬ≬椉ℚ㟔ቑ䤉䞮ⓜ቎ቀቑሩቄ ቑሥቮ劔ቑ㖖⸩ሯ㜳⥭ሸቯᇬ♗ቒሥቮ劔ሯ㸊ℰሺቂቋሰቒᇬቀቑ≬椉摠♦♥ⅉ቎ 㞾㓤ቲቯቮሶቋቋሸቯ቉ሧቂ≬椉摠ቒᇬ䶻檔቎⪉ቈሧ቉≬椉⯠侓劔ሯ⒴㹄ቑ㖖⸩ ትሺቍሧ棟ቭᇬ㸚⇨ቑ≬椉摠♦♥ⅉቑ栢ቊ━⚗቎㉫ሻ቉⒕揜ሸቯቮᇭ  䄥㕯⊡䞲㽤቎ርሧ቉尞⸩ሸቯቂ⍄㲸劔ት⹂ሼቮ嫛䍉ቑ䎰╈ᇬ♥䀗ሺ♗ቒ⻴嫛♾厌 ㊶቎栱ሼቮ尞⸩቎㈢ሩሶቋት㧰ↅቋሺ቉ᇬ≬椉⯠侓劔ቑ⊡䞲弰⥲቎ቒᇬ≬椉⯠侓 劔቎⺍ሺ቉㞾㓤ቲቯቮⓜቑ≬椉摠ᇬ慱㙪∰櫜♗ቒ屲侓扣㓊摠቎⺍ሼቮ㲸Ⓒሯቍሧ ብቑቋሼቮᇭ  䶻檔቎⪉ቈሧ቉㖖⸩ሸቯቂ劔቎⺍ሺ቉≬椉摠ት㞾㓤ቆቂ≬椉劔ቒᇬቀቑ劔ሯ≬ 椉摠ት♦ሴ♥ቮ㲸Ⓒት㦘ሺቍሧሶቋት䩴ቆ቉ሧቂ⫃⚗ት棳ሰᇬ㞾㓤ሧ券╨ት⏜ቯ ቮᇭ

623

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

䶻㧰屲侓扣㓊摠ቑ♦♥ⅉ   䶻  㧰቎⪉ቈሲ㖖⸩቎ሮሮቲቬሽᇬ≬椉⯠侓劔ቒᇬ屲侓扣㓊摠ቑ♦♥ⅉት㖖 ⸩ሺᇬ♗ቒቀቑ㖖⸩ት⮘㦃啴ሺሲቒ㜳⥭ሼቮሶቋሯቊሰቮᇭ㖖⸩ᇬ⮘㦃♙ቖ㜳⥭ ቒᇬ㦇槱቎ቫቆ቉嫛ሧᇬ≬椉劔቎抐Ⅷሺቍሴቯቓቍቬቍሧᇭ  㶰቎㙁ስቮ⫃⚗ቒᇬ≬椉⯠侓劔ት屲侓扣㓊摠ቑ♦♥ⅉቋቢቍሼᇭ D 屲侓扣㓊摠ቑ♦♥ⅉሯ㖖⸩ሸቯ቉ሧቍሧ⫃⚗ᇭ E 屲侓扣㓊摠ቑ♦♥ⅉቑ㖖⸩ሯ㜳⥭ሸቯᇬⅥቑ♦♥ⅉሯ㖖⸩ሸቯ቉ሧቍሧ⫃⚗ᇭ F  屲侓扣㓊摠ቑ♦♥ⅉሯ㸊ℰሺᇬⅥቑ≬椉摠♦♥ⅉሯ㖖⸩ሸቯ቉ሧቍሧ⫃⚗ᇭ  䶻㧰䶻檔♙ቖ䶻檔ቍሧሺ䶻檔ቑ尞⸩ት䄥䞷ሼቮᇭ

䶻㧰币䂰♗ቒ㕔≬㲸岼⸩   ≬椉摠♦♥ⅉሯ㜳⥭ₜ厌ቍብቑቋሺ቉㖖⸩ሸቯ቉ሧቮ⫃⚗቎ᇬ≬椉⯠侓劔ሯሺቂ ≬椉⯠侓♗ቒ≬椉摠嵚㻑㲸ቑ币䂰♗ቒቀቯ቎⺍ሼቮ㕔≬㲸ቑ岼⸩ቒᇬ≬椉摠♦♥ ⅉሯ㦇槱቎ቫቭ⚛㎞ሺቍሧ棟ቭᇬ╈┪ት㖐ቂቍሧᇭ  ≬椉摠♦♥ⅉሯሺቂ≬椉摠嵚㻑㲸ቑ币䂰♗ቒቀቯ቎⺍ሼቮ㕔≬㲸ቑ岼⸩ቒᇬ≬椉 ⯠侓劔ሯ㦇槱቎ቫቭ⚛㎞ሺቍሧ棟ቭᇬ╈┪ት㖐ቂቍሧᇭ

䶻㧰䦇倩㟍㭓 ≬椉摠♦♥ⅉሯ㸊ℰሺቂ≬椉⺍廰劔ቑ䦇倩ⅉቊሥቆ቉䦇倩ት㟍㭓ሺቂ⫃⚗ᇬ≬椉⯠侓 ቎⪉ቈሲ⦿⇜ቒᇬ䦇倩㟍㭓ቑℚ⸮ቑቢ቎ቫቆ቉ቒ㈀檎ት♦ሴቍሧᇭ

䶻乏⯠侓ቑ⒬㦮㹄椝♙ቖ㦮栢 䶻㧰䟂手ⅉቑ⯠侓ⓜቑ㍔⫀㙟∪券╨   䶻  㧰䶻檔቎⪉ቈሧ቉䟂手ⅉሯ⛙䩴ሺቍሴቯቓቍቬቍሧ㍔⫀቎ቒᇬ≬椉⺍廰 劔ሯ䩴ቆ቉ሧቂሮ♗ቒ䩴ቆ቉ሧቮቜሰቊሥቆቂℚ㍔ት⚺ባᇭ  䶻㧰ᇬ䶻㧰♙ቖ䶻㧰቎⪉ቈሲ㍔⫀㙟∪券╨ቑ拤♜቎⺍ሼቮⓅ子 ቒᇬ⯠侓ቑ偯俟ሮቬ㄃栢቎棟ቭᇬ拸䞷ሼቮሶቋሯቊሰቮᇭ䶻㧰቎⪉ቈሲⓅ 子ቒሶቑ棟ቭቊቒቍሧᇭ

䶻㧰≬椉劔ቑ⯠侓ⓜቑ㍔⫀㙟∪券╨   ≬椉劔ቒᇬ䟂手ⅉ቎⺍ሺ቉ᇬ⯠侓劔揜㇢嵚㻑㲸ቑ㦘䎰቎ቇሧ቉⛙ስቍሴቯቓቍቬ ቍሧᇭሶቑ㍔⫀ት♦檧ሺቂሶቋቒᇬ䟂手㦇ቋቒ⒴ቑ㦇槱቎岧憘ሸቯቂ㢝䯉䤓ቍ㠖 岏቎ቫቭ䭉崜ሺቍሴቯቓቍቬቍሧᇭ  䶻㧰቎⪉ቈሧ቉≬椉劔ሯ㙟∪ሼቮ㦇槱቎ቒᇬ㶰቎㙁ስቮℚ檔ት岧憘ሺቍሴቯ ቓቍቬቍሧᇭ D ≬椉劔቎ቇሧ቉ᇫᇫኚወ኶ዐኔዙ♙ቖ弰╨ቑ䕅㽐቎栱ሼቮ㄃㶰⫀⛙ቑ䤉嫛ሯ券 ╨ቈሴቬቯ቉ሧቮሶቋቑ㢝䯉䤓ቍ㖖㛧 E ≬椉劔ቑ⯠侓ₙቑ券╨቎ቇሧ቉ L  ⚓䲽ቑ俵Ⅷ♙ቖኇኴኔዄዐቑ崻㢝 LL  ⚓俵Ⅷ቎⺍㉫ሼቮ≬椉㠨ቑ━⚗቎ቇሧ቉ቑ㍔⫀ᇭ⃊ቂቮ俵Ⅷቋ䔈侓቎ቫቮ 俵Ⅷሯሥቮ⫃⚗቎ቒቀቑ♛㡈ት⚺ባᇭ LLL ⯠侓劔揜㇢ቑ岗並♙ቖቀቑ⒕揜ቑ㡈㽤ᇭ拸䞷ሸቯቮ䥲䧲㽤ቑ崂便ት⚺ባᇭ LY 屲侓扣㓊摠櫜♙ቖ㓤䂗≬椉摠櫜ቑ嫷䯉♙ቖቀቯቬሯ≬峋ሸቯ቉ሧቮ棟ㄵ

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Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

Y  ዃ  ከአእ዇ዐኌ≬椉ቑ⫃⚗ᇫᇫ俵Ⅷሯ抲╤ሼቮ㔤彖◧⇜ቑ崻㢝♙ቖ☮彖䞲 ቑ㊶役ቑ嫷䯉 YL ≬椉⯠侓ቑ䲽櫭቎㉫ሻ቉拸䞷ሸቯቮ䲝㽤ₙቑ♥ቭ㔀ሧ቎ቇሧ቉ቑ₏咻䤓ቍ ㍔⫀  ቀቑⅥᇬ≬椉⯠侓劔ሯ弯㕔ሼቮሶቋቋቍቮ⯠侓ₙቑ዇ኖኌ቎ቇሧ቉拸⒖ቍ䚕屲ት ≒ሼቂቤቑ䔈㹄ቑ㍔⫀ሯ㙟∪ሸቯቍሴቯቓቍቬቍሧᇭ   ≬  椉劔ቒᇬ⯠侓቎ቫቭ≬峋ሸቯቂ㞾㓤ሧት怔ራ቉䤉䞮ሼቮ♾厌㊶ሯሥቮⒸ䥙ቑ櫜 ቎ቇሧ቉㟿⊳ት㛧䯉ሼቮ⫃⚗቎ቒᇬ䟂手ⅉ቎⺍ሺ቉ᇬₘ抩ቭቑ䟿ቍቮⒸ⥭ቭ቎⺍ ㉫ሺቂ≬椉㠨岗並ቑ☮ⓖ቎⪉ቈሲ䄏㦮俵Ⅷ摠ቑ櫜ት⚺ባ኿ኤወ岗並ት㙟䯉ሺቍሴ ቯቓቍቬቍሧᇭሶቑ尞⸩ቒᇬ≬椉劔ሯ弻↊ት弯ሩሮ⚵ሮሯ䭉⸩ሺ቉ሧቍሧ☀椉ት ≬椫ሼቮ≬椉⯠侓♙ቖዃከአእ዇ዐኌ≬椉⯠侓቎⺍ሺ቉ቒᇬ拸䞷ሺቍሧᇭ≬椉劔 ቒᇬ≬椉⯠侓劔቎⺍ሺ቉ᇬ኿ኤወ岗並ቒⅽ崻䤓ቍⓜ㙟቎⪉ቈሲ኿ኤወት䯉ሼብቑ ቎ሼሱቍሧሶቋ♙ቖ⯠侓ₙቒ㞾㓤ሧቑ♾厌㊶ሯ≬峋ሸቯ቉ሧቍሧሶቋትᇬ㢝䭉቎ ሮቇ䚕屲ሺቧሼሲ崻㢝ሺቍሴቯቓቍቬቍሧᇭ

䶻㧰ኌዙ዇ዐኍዘኇኲ㦮栢10   䞮  ✌≬椉⯠侓቎ቇሧ቉ቒᇬ䶻㧰䶻檔቎⸩ቤቮኌዙ዇ዐኍዘኇኲ㦮栢ቒᇬ㔎 嶍ቑ♦檧♗ቒ䶻㧰♙ቖ䶻㧰቎⸩ቤቮ㦇櫭ቑⒿ拣ቑሧሽቯሮ拔ሧ㣑䍈ሮ ቬሮ㦗ቋሼቮᇭ  ≬椉⯠侓劔ሯ䶻㧰䶻檔቎⪉ቈሧ቉⯠侓ት♥䀗ሼ㲸Ⓒቒᇬ⯠侓ቑ偯俟ሮቬ㄃ ት俛拝ሺቂቋሰᇬ䀗䅔ሼቮᇭ

䶻㧰≬椉⯠侓劔ቑ⯠侓俑ℕ㲸   ≬  椉⯠侓劔ቒᇬ⯠侓偯俟ሮቬ㄃ቫቭብ㡸ሧ㣑㦮቎俑ℕቑ╈┪ሯ䤉䞮ሼቮ⫃⚗ት棳 ሰᇬ慱㙪∰櫜♗ቒ屲侓扣㓊摠ት⇃ቲቍሧ䞮✌≬椉⯠侓ት俑ℕሼቮሶቋሯቊሰቮᇭ ₏㣑㓤ሧ≬椉㠨ሯ㞾㓤ቲቯ቉ሧቮ⫃⚗቎ቒᇬ⯠侓㦮栢ቑ䄏ℕⓜ቎ቒ俑ℕ㲸ሯቍሧ ብቑቋሼቮሶቋሯቊሰቮᇭ俑ℕቒᇬ㦇槱቎ቫቆ቉ሺቍሴቯቓቍቬሽᇬ≬椉劔ሯ俑 ℕቑ抩䩴ት♦檧ሺ቉ሮቬ拀栢㈛቎╈┪ት䤉䞮ሼቮᇭ  䞮 ✌≬椉⯠侓ሯ慱㙪∰櫜♗ቒ屲侓扣㓊摠ት⇃ሩቋሰቒᇬ䶻㧰ቍሧሺ䶻 㧰ት拸䞷ሼቮᇭ

䶻㧰≬椉劔ቑ⯠侓俑ℕ㲸 ≬椉劔ቒᇬሶቑ䵯ቊ崜ቤቬቯቮ乓⦁቎ርሧ቉ቑቢ䞮✌≬椉⯠侓ት俑ℕሼቮሶቋሯቊሰ ቮᇭ

䶻乏⯠侓㦮栢₼ቑ⮘㦃 䶻㧰≬椉劔ቑ⯠侓㈛ቑ㍔⫀㙟∪券╨   ≬椉劔ቒᇬ≬椉⯠侓቎⯠侓劔揜㇢ሯቇሲ⫃⚗቎ቒᇬቀቑ䚍⦷∰櫜ት㹝㄃㦇槱቎岧 憘ሺ቉≬椉⯠侓劔቎㙟䯉ሺቍሴቯቓቍቬቍሧᇭ  䶻㧰ቑ券╨቎┯ራ቉ᇬ≬椉劔ቒᇬ㶰቎㙁ስቮℚ檔቎栱ሼቮ⮘㦃ትᇬ拔䅭ቍሲ ≬椉⯠侓劔቎䩴ቬሾቍሴቯቓቍቬቍሧᇭ D ⃊⯠侓♙ቖ䔈侓ት⚺ባ≬椉⯠侓㧰ↅ 10

䶻᧭᧳᧮᧬᧯㧰䶻᧭檔ቒᇬ䞮✌≬椉⯠侓቎栱ሼቮ㖖ⅳ(2002/83/EC)䶻㧰♙ቖ抩≰弸⮁㖖ⅳ (2002/65/EC)䶻6㧰ት኿ኤወቋሺ቉ሧቮᇭ

625

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

E ≬椉⯠侓㧰ↅቑ⮘㦃♗ቒ3(,&/ቑ㟈㷲ቑ⫃⚗ᇫᇫ䶻㧰I ♙ቖJ ₵ቖ቎䶻 㧰䶻檔E L ቍሧሺY ቎⸩ቤቮ㍔⫀  䶻㧰䶻檔ቑ尞⸩ቒᇬ⯠侓㦮栢₼ቑሧሽቯሮቑ㣑䍈቎ርሧ቉ᇬ♾厌㊶ሯሥቮ 俵Ⅷ摠ቑ櫜ቑ℗䂻቎ቇሧ቉㟿⊳ሯ㙟䯉ሸቯቮ⫃⚗቎ብ拸䞷ሼቮᇭ≬椉劔ሯᇬ⯠侓 ቑ偯俟ቑⓜቊሥቮቋ㈛ቊሥቮቋት⟞ቲሽᇬ⺕㧴ቑⒸ䥙揜㇢ቑ♾厌㊶቎ቇሧ቉㟿⊳ ት㙟䯉ሺቂ⫃⚗቎ቒᇬ≬椉劔ቒᇬ≬椉⯠侓劔቎⺍ሺ቉ᇬ⸮働ቋ㇢⒬ቑ㟿⊳ቑ䦇拤 ቎ቇሧ቉䩴ቬሾቍሴቯቓቍቬቍሧᇭ

䶻㧰☀椉ቑ⬦┯ 䞮✌≬椉⯠侓቎ርሧ቉ᇬ㄃燱♗ቒ⋴ㅆቑ㌹▥ት䶻㧰቎⸩ቤቮ☀椉ቑ⬦┯ቋሺ቉ 尞⸩ሼቮ㧰檔ቒᇬ䶻㧰቎⪉ቈሰₜ㇢㧰檔ቋቢቍሼᇭ

䶻㧰≬椉㠨♙ቖ≬椉俵Ⅷቑ嵎㠃   ≬  椉劔ሯ弻↊ት弯ሩሶቋሯ䭉⸩ሺ቉ሧቮ☀椉ት≬椫ሼቮ䞮✌≬椉⯠侓቎ርሧ቉ ቒᇬ≬椉劔ቒᇬ䶻檔♙ቖ䶻檔቎㈢ቆ቉ቑቢ嵎㠃ትሼቮሶቋሯቊሰቮᇭ  ≬椉㠨ቑ⬦櫜ቒᇬ≬椉㠨ቑ並⸩ቑ⪉䮝቎䞷ሧቬቯቮ⇨✌዇ኖኌ቎ቇሧ቉℗尚ₜ厌 ሮቇ㋡⃔䤓ቍ⮘▥ሯ䤉䞮ሺቂ⫃⚗ቊሥቆ቉ᇬ≬椉㠨ቑ⬦櫜ሯ≬椉劔ቑ≬椉俵Ⅷት 嫛ሩ㖐倩䤓ቍ厌┪ት≬峋ሼቮቂቤ቎㉔尐ቊሥቭᇬሮቇቀቑ⬦櫜቎⺍ሺ቉䕻䵚䥲㪊 ⅉ♗ቒ䥲䧲㇢⻏ሯ⚛㎞ሺቂቋሰ቎ᇬ崜ቤቬቯ㈦ቮᇭ≬椉⯠侓劔ቒᇬ≬椉㠨ቑ⬦櫜 ትᇬ≬椉俵Ⅷት䦇㉫቎䂪櫜ሼቮሶቋ቎ቫቆ቉屲䀗ሼቮሶቋሯቊሰቮᇭ  㓤ሧ䂗ቢ≬椉ቑ⫃⚗቎ቒᇬ≬椉劔ቒᇬ䶻檔቎⸩ቤቮ㧰ↅቑₚቊ≬椉俵Ⅷት䂪櫜ሼ ቮሶቋሯቊሰቮᇭ   䶻檔♙ቖ䶻檔቎⸩ቤቮ嵎㠃ቒᇬ㶰቎㙁ስቮ⫃⚗቎ቒᇬ崜ቤቬቯቍሧᇭ D ≬椉㠨啴ሺሲቒ≬椉俵Ⅷ♗ቒቀቑ♛㡈ቑ岗並቎ርሧ቉ᇬ㦘厌ቊሮቇ㽷㎞䂀ሧ≬ 椉岗䚕ⅉቊሥቯቓ㺦Ⅷሧቂቒሽቑ崳ቭሯሥቆቂ⫃⚗ᇭ E ⓜ㙟ቋቍቮ岗並ሯᇬ嵎㠃㈛቎偯俟ሸቯቂሼቜ቉ቑ⯠侓቎⺍ሺ቉拸䞷ሸቯ቉ሧቍ ሧ⫃⚗ᇭ  ≬椉㠨ቑ⬦櫜♗ቒ俵Ⅷቑ䂪櫜ቒᇬ≬椉劔ሯᇬ≬椉㠨ቑ⬦櫜♗ቒ≬椉俵Ⅷቑ䂪櫜ᇬ ቀቑ䚕䟀♙ቖ≬椉⯠侓劔ሮቬ≬椉俵Ⅷቑ䂪櫜ት嵚㻑ሼቮ㲸Ⓒ቎ቇሧ቉ᇬ㦇槱቎ቫ ቆ቉≬椉⯠侓劔቎抩䩴ሺ቉ሮቬሮ㦗㈛቎╈┪ት䞮ሽቮᇭ  ≬椉劔ሯ弻↊ት弯ሩሶቋሯ䭉⸩ሺ቉ሧቮ☀椉ት≬椫ሼቮ䞮✌≬椉⯠侓቎ርሧ቉ᇬ ≬椉㠨ቑ並⸩ቑ⪉䮝቎䞷ሧቬቯቮ⇨✌዇ኖኌ቎ቇሧ቉℗尚ₜ厌ሮቇ㋡⃔䤓ቍ⮘▥ ቎ቫቭᇬ≬椉劔ሯ≬椉俵Ⅷት嫛ሩ㖐倩䤓ቍ㞾㓤厌┪ት䭉≬ሼቮቂቤ቎ᇬ㇢⒬ቑ≬ 椉㠨ሯብቒቧ拸⒖ቊቒቍሲᇬሮቇ㉔尐ቊቒቍሲቍቆቂቋሰቒᇬ≬椉⯠侓劔ቒ≬椉 㠨ቑ䂪櫜ት㻑ቤቮሶቋሯቊሰቮᇭ䂪櫜ቒᇬ䕻䵚䥲㪊ⅉ♗ቒ䥲䧲㇢⻏቎ቫቆ቉⚛㎞ ሸቯቍሴቯቓቍቬቍሧᇭ  ሶቑ㧰቎⸩ቤቮ㲸Ⓒቒᇬ⯠侓ቑ偯俟㈛㄃ት俛拝ሼቮቡቊቒ嫛∎ሼቮሶቋሯቊሰቍ ሧᇭ

䶻㧰⯠侓㧰ↅቑ⮘㦃   ≬椉劔ሯ≬椉㠨♙ቖ≬椉俵Ⅷⅴ⮥ቑ⯠侓㧰ↅት⮘㦃ሼቮሶቋሯቊሰቮብቑቋሼቮ 㧰檔ቒᇬቀቑ⮘㦃ሯ㶰቎㙁ስቮ䥽䤓ቑቂቤ㉔尐ቊሥቮ⫃⚗ት棳ሰᇬ䎰╈ቋሼቮᇭ D 䥲䧲㇢⻏቎ቫቮ㇆Ⓟ䤓ቍ⑵⒕ቀቑⅥ䥲䧲㽤ቑ㟈㷲቎㈢ሩቂቤ E ╃⍜劔ቑ㄃摠Ⓟㄵ቎ሮሮቮ䄥㕯⦌␔㽤ቑ㇆嫛尞⸩ቑ㟈㷲቎㈢ሩቂቤ F  䞮✌≬椉⯠侓ሯ䲝㽤ₙቑ䔈⒴ቑ♥ቭ㔀ሧ♗ቒ⦌ቑ孫┸摠ቑ尐ↅት䄏ቂሼቂቤቑ 㧰ↅት⸩ቤቮ⦌␔㽤ⅳቑ尞⸩ቑ㟈㷲቎㈢ሩቂቤ

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Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

G 䶻㧰䶻檔䶻㠖቎㈢ቆ቉⯠侓㧰檔ት函ሰ㙪ራቮቂቤ  ⮘㦃ቒᇬ≬椉⯠侓劔቎⺍ሺ቉⮘㦃♙ቖቀቑ䚕䟀ት抩䩴ሼቮ㦇槱ት嬺≬椉劔ሯ♦檧 ሺቂ㡴ቑ㈛ሮ㦗ቑ㦮栢ሯ䄏ℕሼቮ㡴ቑ⻭ሼቮ㦗ቑ⒬㡴቎╈┪ት䞮ሻቮᇭ  䶻檔ቑ拸䞷ቒᇬ⮘㦃㲸㧰檔ቑ㦘╈㊶቎栱ሼቮⅥቑ尐ↅቑ拸䞷ትⰷስቍሧᇭ

䶻乏⦌␔㽤ቋቑ栱≑ 䶻㧰㄃摠Ⓟㄵ ㄃摠Ⓟㄵ቎栱ሼቮ䞮✌≬椉⯠侓ቒᇬ㄃摠Ⓟㄵ቎ሮሮቮ䄥㕯⦌␔㽤ቑ㇆嫛尞⸩ቑ拸䞷ት ♦ሴቮᇭ3(,&/ቒᇬቀቯቬቑ尞⸩቎♜ሺቍሧ棟ㄵቊቑቢ拸䞷ሼቮᇭ

䶻㧰䲝㽤ₙቑ♥ቭ㔀ሧርቫቖ⦌ቑ孫┸摠 3(,&/ቒᇬ䲝㽤ₙቑ䔈⒴ቑ♥ቭ㔀ሧ♗ቒ⦌ቑ孫┸摠ቑ尐ↅት䄏ቂሼቂቤ቎䞮✌≬椉⯠ 侓቎⺍ሺ቉嵁ሸቯቮ䔈⒴ቑ㧰ↅት⸩ቤቮ⦌␔㽤ⅳት⮘㦃ሼቮብቑቊቒቍሧᇭ䄥㕯⦌␔ 㽤ቑቀቯቬቑ㧰ↅቋ3(,&/ሯ㕄屵ሼቮ㣑ቒᇬ3(,&/ቒ拸䞷㘡棳ሸቯቮᇭ

䶻乏≬椉ℚ㟔 䶻㧰≬椉劔ቑ嵎㪊♙ቖ㍔⫀㙟∪券╨   ≬椉ℚ㟔ሯ䤉䞮ሺቂ♾厌㊶ሯሥቮቋ≰ሽቮ䚕䟀ት㦘ሼቮ≬椉劔ቒᇬሶቯት䭉崜ሼ ቮቂቤቑ⚗䚕䤓ቍ㓚㹄ትቋቬቍሴቯቓቍቬቍሧᇭ  ≬椉ℚ㟔ቑ䤉䞮ት䩴ቆቂ≬椉劔ቒᇬ≬椉摠♦♥ⅉ♙ቖቀቑ⇞㓏ት䩴ቮቂቤ቎㇢崁 䕅㽐ቑₚቊ㦏⠓ቑ┹┪ት⻌ሲሺᇬቀቑ劔቎⺍ሺ቉䦇㉫ቑ㍔⫀㙟∪ትሺቍሴቯቓ ቍቬቍሧᇭቀቑ㍔⫀㙟∪ቒᇬ≬椉劔ሯ≬椉摠♦♥ⅉ♙ቖቀቑ⇞㓏ት䩴ቆቂ㣑ሮ ቬᇬ㡴ⅴ␔቎ሺቍሴቯቓቍቬቍሧᇭ  ≬椉劔ሯ䶻檔቎拤♜ሺቂቋሰቒᇬ≬椉摠♦♥ⅉቑ嵚㻑㲸ቑ䀗䅔㣑╈ቒᇬ≬椉摠♦ ♥ⅉሯ呹むቑ㲸Ⓒት䚍⸮቎䩴ቮ㣑ቡቊቑ栢ቒᇬ拁嫛ሺቍሧᇭ

䶻㧰呹㹉   ≬  椉⯠侓ቑ偯俟㈛㄃ⅴ␔቎≬椉⺍廰劔ሯ呹㹉ሺቂቋሰቒᇬ≬椉劔ቒᇬ≬椉摠ት㞾 㓤ሩ券╨ት⏜ቯቮᇭሶቑ⫃⚗ᇬ≬椉劔ቒ屲侓扣㓊摠♙ቖ䶻㧰቎⪉ቈሲ⓿⇨ 摠揜㇢ት㞾㓤ቲቍሴቯቓቍቬቍሧᇭ  䶻檔ቒᇬ㶰቎㙁ስቮ⫃⚗቎ቒ拸䞷ሺቍሧᇭ D ≬椉⺍廰劔ሯᇬ呹㹉ሺቂ㣑቎呹むቑ㎞㊬ት呹䟀቎㼉⸩ሼቮ厌┪ት㖐ቂቍሧ位䯭 䕅㏚ቊ嫛╤ሺ቉ሧቂ⫃⚗ᇭ E ≬椉⯠侓ት偯俟ሺቂ椪቎ᇬ≬椉⺍廰劔ሯ呹㹉ት㎞⦂ሺ቉ሧቍሮቆቂሶቋሯ⚗䚕 䤓ቍ䠠ሧት怔ራቮ䲚ㄵ቎峋㢝ሸቯቂ⫃⚗ᇭ

䶻㧰㟔㎞቎ቫቮ≬椉⺍廰劔ቑ㹉⹂   ≬椉摠♦♥ⅉሯ≬椉⺍廰劔ት㟔㎞቎㸊ℰሸሾቂቋሰቒᇬቀቑ劔቎⺍ሼቮ≬椉摠♦ ♥ⅉቑ㖖⸩ቒ㜳⥭ሸቯቂብቑቋቢቍሼᇭ  ≬椉摠嵚㻑㲸ቑ币䂰ቒᇬ币♦ⅉሯ≬椉⺍廰劔ት㟔㎞቎㸊ℰሸሾቂቋሰቒᇬ䎰╈ቋ ሼቮᇭ

627

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

 ≬椉⯠侓劔ሯ≬椉摠♦♥ⅉቊብሥቮ⫃⚗቎ᇬ≬椉⺍廰劔ት㟔㎞቎㸊ℰሸሾቂቋሰ ቒᇬ≬椉摠ቒ₏⒖㞾㓤ቲቯቍሧᇭ   㷲  ㇢棁嫪ቀቑⅥቑ㷲㇢ቍ䚕䟀቎ቫቭᇬ≬椉摠♦♥ⅉ♗ቒ≬椉⯠侓劔ሯᇬ≬椉⺍廰 劔ት㸊ℰሸሾቂ⫃⚗቎ቒᇬሶቑ㧰ቒ拸䞷ሺቍሧᇭ

䶻乏慱㙪♙ቖ屲侓 䶻㧰⯠侓ቑ慱㙪   䶻㧰ቒᇬ慱㙪∰櫜♗ቒ屲侓扣㓊摠ት⇃ሩ䞮✌≬椉⯠侓቎ቒ拸䞷ሺቍሧᇭ慱㙪 ∰櫜♗ቒ屲侓扣㓊摠ት⇃ሩ⯠侓ቒᇬ≬椉⯠侓劔ሯ䶻檔቎⸩ቤቮ㍔⫀ት♦檧ሺቂቋ ሰሮቬ拀栢ⅴ␔቎屲侓扣㓊摠ቑ㞾㓤ሧት㻑ቤቮ⫃⚗ት棳ሰᇬ㓤ሧ䂗ቢ≬椉቎慱㙪 ሸቯቮᇭ  ≬椉劔ቒᇬ䶻㧰E ♗ቒ䶻㧰䶻檔E ቎⸩ቤቮ㦮栢ቑ䄏ℕ㈛拀栢ⅴ␔ ቎ᇬ≬椉⯠侓劔቎⺍ሺ቉ᇬ慱㙪∰櫜ርቫቖ屲侓扣㓊摠ቑ櫜ት䩴ቬሾᇬ≬椉⯠侓劔 ቎慱㙪ቋ屲侓扣㓊摠㞾㓤ሧቑሧሽቯሮት指㔭ሸሾቍሴቯቓቍቬቍሧᇭ  慱㙪嵚㻑♗ቒ屲侓扣㓊摠ቑ㞾㓤ሧቑ嵚㻑ቒᇬ㦇槱቎ቫቆ቉ሺቍሴቯቓቍቬቍሧᇭ

䶻㧰屲侓   ≬  椉⯠侓劔ቒᇬ≬椉⯠侓ቑ偯俟㈛㄃ት俛拝ሼቮⓜ቎╈┪ት䤉䞮ሼቮ⫃⚗ት棳ሰᇬ ሧቇቊብᇬ㦇槱቎ቫቭᇬ≬椉劔቎⺍ሺ቉≬椉⯠侓቎⇃ሩ屲侓扣㓊摠ቑ₏捷♗ቒ⏷ 捷ቑ㞾㓤ሧት㻑ቤቮሶቋሯቊሰቮᇭሶቑ⫃⚗቎ቒᇬቀቑ⯠侓ቒ⮘㦃ሸቯᇬ♗ቒ俑 ℕሼቮᇭ  䶻㧰ቑ尞⸩቎㈢ሩሶቋት㧰ↅቋሺ቉ᇬ屲侓扣㓊摠ት⇃ሩ䞮✌≬椉⯠侓ሯ≬ 椉劔቎ቫቆ቉俑ℕሸቯᇬ㜳⥭ሸቯᇬ♗ቒ♥䀗ሸቯቂቋሰቒᇬ≬椉劔ቒᇬ䶻㧰 ቑ⫃⚗ቊሥቆ቉ብᇬ屲侓扣㓊摠ት㞾㓤ቲቍሴቯቓቍቬቍሧᇭ  ≬椉劔ቒᇬ≬椉⯠侓劔቎⺍ሺ቉ᇬ嵚㻑ሯሥቆቂ㣑቎ᇬቡቂ嵚㻑ሯቍሧ⫃⚗቎ብ㄃ ቎⥭ቒᇬ屲侓扣㓊摠ቑ䚍⦷∰櫜♙ቖቀቯሯ≬峋ሸቯ቉ሧቮ棟ㄵ቎ቇሧ቉ᇬ㍔⫀㙟 ∪ሺቍሴቯቓቍቬቍሧᇭ   ≬  椉⯠侓劔ሯ嵚㻑ቊሰቮ⓿⇨摠ቑ揜㇢ቒᇬ屲侓扣㓊摠ቑ岗並቎ርሧ቉揜㇢摠ሯ┯ 並ሸቯ቉ሧቮ⫃⚗ት棳ሰᇬ屲侓扣㓊摠቎┯ራ቉㞾㓤ቲቍሴቯቓቍቬቍሧᇭ  ሶቑ㧰቎⸩ቤቮ摠櫜ቒᇬ≬椉劔ሯ≬椉⯠侓劔ቑ嵚㻑ት♦檧ሺቂቋሰሮቬሮ㦗ⅴ␔ ቎㞾㓤ቲቍሴቯቓቍቬቍሧᇭ

䶻㧰慱㙪∰櫜ዘ屲侓扣㓊摠   ≬椉⯠侓቎ቒᇬ≬椉劔ቑ㓏⦷ሼቮᨁᨑ┯䥮⦌ቑ㽤቎㈢ቆ቉岗並ሸቯቮᇬ慱㙪∰櫜 啴ሺሲቒ屲侓扣㓊摠♗ቒቀቑ♛㡈ቑ岗並㡈㽤ት岧憘ሺቍሴቯቓቍቬቍሧᇭ慱㙪∰ 櫜啴ሺሲቒ屲侓扣㓊摠♗ቒቀቑ♛㡈ት岗並ሼቮ㡈㽤ቋሺ቉岧憘ሸቯቂ㡈㽤ቒᇬ䭉 䵚ሸቯቂ≬椉岗䚕ቑ☮ⓖ♙ቖ䶻檔ቑ尞⸩቎㈢ቆቂብቑቊቍሴቯቓቍቬቍሧᇭ  ≬椉劔ሯ⯠侓偯俟ቑ彊䞷ት㘶棳ሼቮ⫃⚗቎ቒᇬ⧖䷘櫜቎ቫቭᇬሮቇ㄃ⅴₙቑ㦮栢 ቎ቲቂቆ቉ሺቍሴቯቓቍቬቍሧᇭ  ≬椉劔ቒᇬ屲侓扣㓊摠ቑ㞾㓤ሧ቎ሮሮቲቮ彊䞷ት孫቉ቶሼቮቂቤ቎ᇬ䭉䵚ሸቯቂ ≬椉岗䚕ቑ☮ⓖ቎㈢ቆ቉岗並ሸቯቂ拸⒖ቍ摠櫜ትᇬ屲侓扣㓊摠ቑ岗並቎ርሧ቉㡱 ቎䂪櫜ሸቯ቉ሧቮ⫃⚗ት棳ሰᇬ㘶棳ሼቮሶቋሯቊሰቮᇭ

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Japanese: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL) 䶻᧭捷: ዅዙዊአኮ≬椉⯠侓㽤☮ⓖ(PEICL)቎⚺ቡቯቮሼቜ቉ቑ⯠侓቎␀抩ሼቮ尞⸩

䶻捷⥲⇢≬椉 䶻䵯⥲⇢≬椉ቑ䔈ⓖ 䶻乏⥲⇢≬椉抩ⓖ 䶻㧰拸䞷乓⦁ ⥲⇢≬椉⯠侓ቒᇬ⥲⇢ⅲ嫷劔♙ቖ≬椉劔ሯ䶻㧰቎㈢ቆ቉⯠侓ት偯俟ሺቂ⫃⚗ ቎ᇬ3(,&/ቑ拸䞷ት♦ሴቮᇭ⥲⇢≬椉ቒᇬ⏷❰┯⏴ቊሥቆ቉ሶቑ䵯ቑ䶻乏ቑ拸䞷ት ♦ሴቮብቑᇬ♗ቒ↊㎞┯⏴ቊሥቆ቉ሶቑ䵯ቑ䶻乏ቑ拸䞷ት♦ሴቮብቑቑሧሽቯሮቋ ሼቮᇭ

䶻㧰⥲⇢ⅲ嫷劔ቑ₏咻䤓ቍ㽷㎞券╨   ⥲⇢≬椉⯠侓ቑℳ䂘♙ቖ⻴嫛቎椪ሺ቉ᇬ⥲⇢ⅲ嫷劔ቒᇬ㽷㎞ት⻌ሲሺᇬሮቇ崯⸮ ቎⥲⇢㱚㒟❰ቑ㷲㇢ቍⒸ䥙ት劒㏽ሺ቉嫛╤ሺቍሴቯቓቍቬቍሧᇭ  ⥲⇢ⅲ嫷劔ቒᇬ⥲⇢㱚㒟❰቎⺍ሺ቉ᇬ≬椉劔ሯ䤉ሺቂ抩䩴ትሼቜ቉↬拣ሺᇬቡቂ ⯠侓ቑ≽㷲ትሼቜ቉䩴ቬሾቍሴቯቓቍቬቍሧᇭ

䶻乏⏷❰┯⏴⥲⇢≬椉 䶻㧰3(,&/ቑ拸䞷 3(,&/ቒᇬ㉔尐቎㉫ሻ቉⏷❰┯⏴⥲⇢≬椉቎䄥䞷ሼቮᇭ

䶻㧰㍔⫀㙟∪券╨   ⥲⇢㱚㒟❰ሯ⥲⇢቎┯⏴ሺቂቋሰቒᇬ⥲⇢ⅲ嫷劔ቒᇬ㶰቎㙁ስቮℚ檔⏷቉ትᇬ拔 䅭ቍሲ㱚㒟❰቎䩴ቬሾቍሴቯቓቍቬቍሧᇭ D ≬椉⯠侓ቑⷧ⦷ E ≬椫孫⎮ ቑ乓⦁ F  ℗棁㘹函♙ቖ≬椫孫⎮ ት值㖐ሼቮቂቤቑቀቑⅥቑ㧰ↅ G 嵚㻑ቑ㓚倩  䶻檔቎ቫቭ券╨ቈሴቬቯቮ㍔⫀ት⥲⇢㱚㒟❰ሯ♦檧ሺቂሶቋቑ峋㢝弻↊ቒᇬ⥲⇢ ⅲ嫷劔ሯ弯ሩᇭ

䶻㧰≬椉劔቎ቫቮ俑ℕ   䶻  㧰ቑ拸䞷ₙᇬ≬椉⯠侓劔቎ቫቮ⯠侓俑ℕ㲸ቑ嫛∎ቒᇬ≬椉ℚ㟔ሯ䤉䞮ሺቂ 㱚㒟❰ት≬椫孫⎮ ሮቬ棳⮥ሼቮሶቋ቎棟⸩ሸቯ቉ሧቮቋሰ቎棟ቆ቉⚗䚕䤓ቊሥቮ ብቑቋሼቮᇭ  䶻㧰♙ቖ䶻㧰䶻檔ቑ拸䞷ₙᇬ≬椉劔቎ቫቮ⯠侓俑ℕ㲸ቑ嫛∎ቑ╈㨫 ቒᇬ券╨ቈሴቬቯቂ℗棁㘹函ትቋቬቍሮቆቂ㱚㒟❰♗ቒ☀椉ቑ⬦┯ሯ䞮ሻቂ㱚㒟 ❰ት≬椫孫⎮ ሮቬ棳⮥ሼቮሶቋ቎棟ቬቯቮᇭ  䶻㧰ቑ拸䞷ₙᇬ≬椉⯠侓ቑ俑ℕቑ╈㨫ቒᇬ≬椉ሯⅧሸቯቂ弰䞲ት币䂰ሺቂ 㱚㒟❰ት孫⎮ሮቬ棳⮥ሼቮሶቋ቎棟ቬቯቮᇭ

䶻㧰≬椫ት倨倩ሼቮ㲸Ⓒನನ⥲⇢䞮✌≬椉   ⏷  ❰┯⏴⥲⇢䞮✌≬椉ሯ俑ℕሸቯᇬ♗ቒ㱚㒟❰ሯ⥲⇢ት楱叀ሺቂቋሰቒᇬ≬椫 ቒᇬሮ㦗㈛♗ቒ⥲⇢䞮✌≬椉⯠侓ቑ俑ℕ㣑ቑሧሽቯሮ㡸ሧ㣑䍈቎俑ℕሼቮᇭሶ

629

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ቑ⫃⚗ᇬ㱚㒟❰ቒᇬ㇢崁≬椉劔ቋቑ栢ቊᇬ㠿ቂቍ☀椉指㔭ት♦ሴቮሶቋቍሲᇬ㠿 ቂቍ⊚ⅉ⯠侓቎⪉ቈሧ቉⚛䷘ቑ≬椫ት♦ሴቮ㲸Ⓒት㦘ሼቮᇭ  ⥲⇢ⅲ嫷劔ቒᇬ⥲⇢㱚㒟❰቎⺍ሺ቉ᇬ㶰቎㙁ስቮℚ檔ት拔䅭ቍሲᇬ㦇槱቎ቫቭ䩴 ቬሾቍሴቯቓቍቬቍሧᇭ D ⥲⇢䞮✌≬椉⯠侓቎⪉ቈሲ≬椫ቑ俑ℕሯ扺ቆ቉ሧቮሶቋ E 䶻檔቎⸩ቤቮ㲸Ⓒ F  ቀቑ㲸Ⓒት嫛∎ሼቮ㡈㽤  ⥲⇢㱚㒟❰ሯ䶻㧰䶻檔቎⸩ቤቮ㲸Ⓒት嫛∎ሼቮ㎞㊬嫷䯉ትሺቂቋሰቒᇬ≬ 椉劔ቋ⥲⇢㱚㒟❰ቋቑ栢ቑ⯠侓ቒᇬ⥲⇢㱚㒟❰ቑ䚍⦷ቑ⋴ㅆ䕅㏚♙ቖ㄃燱ት╧㫗 ሼቮሶቋቍሲᇬቀቑ㣑䍈ቑ⊚ⅉ≬椉⯠侓ት⪉䮝ቋሺ቉岗並ሸቯቂ≬椉㠨቎ቫቭᇬ ⊚ⅉ≬椉⯠侓ቋሺ቉倨倩ሼቮᇭ

䶻乏↊㎞┯⏴⥲⇢≬椉 䶻㧰↊㎞┯⏴⥲⇢≬椉抩ⓖ   ↊㎞┯⏴⥲⇢≬椉⯠侓ቒᇬ≬椉劔ቋ⥲⇢ⅲ嫷劔ቋቑ栢ቑ⪉㦻⯠侓ቋሶቑ⪉㦻⯠侓 ቎⪉ቈሰ≬椉劔ቋ⥲⇢㱚㒟❰ቋቑ栢ቊ偯俟ሸቯቮ⊚ⅉ≬椉⯠侓ቋሯ宖⚗ሺቂብቑ ቋቢቍሼᇭ  3(,&/ቒᇬ⥲⇢ⅲ嫷劔ቋ≬椉劔ሯቀቑ拸䞷቎⚛㎞ሺቂ⫃⚗቎ᇬ⊚ⅉ≬椉⯠侓቎拸 䞷ሼቮᇭቂቃሺᇬ⪉㦻⯠侓቎ቒᇬ䶻㧰♙ቖ䶻㧰ት棳ሰ3(,&/ት拸䞷 ሺቍሧᇭ

䶻㧰⯠侓㧰ↅቑ⮘㦃 ⪉㦻⯠侓ቑ⯠侓㧰ↅቑ⮘㦃ቒᇬ䶻㧰ᇬ䶻㧰♙ቖ䶻㧰ቑ尐ↅ቎㈢ቆ ቉ᇬ拸⒖቎ቍሸቯቂ⫃⚗቎棟ቭᇬ⊚ⅉ≬椉⯠侓቎⺍ሺ቉╈┪ት㦘ሼቮᇭ

䶻㧰≬椫孫⎮ ቑ倨倩 ⪉㦻⯠侓ቑ俑ℕ♗ቒ⊚ᇰቑ⥲⇢㱚㒟❰ቑ㱚㒟❰彖㫋ቑ⠹⯀ቒᇬ≬椉劔ቋ㱚㒟❰ቑ栢ቑ ≬椉⯠侓቎⺍ሺ቉㈀檎ት♙቟ሸቍሧᇭ

630

Korean version by Eun-Kyung Kim and Che-Oug Rim

2TKPEKRNGUQH'WTQRGCP+PUWTCPEG%QPVTCEV.CY 2'+%. ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕ ࢿٕࡧԞ‫ؼ‬ଳˀߜ‫ࡒأ‬৒߻ૣଞѶָҕ ˀߜࡳ࡟ଛࢇ‫ࢺ̊؃‬

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ࢿࢠ଑‫ؼ‬ଲ࡟ଲ

ࢿࢠ‫ؼ‬ଲˀߜࡿজ̘Ьˀࠧࡧऌ ࢿࢸ঍ߜ࢒ࡿˀߜࢴࢺ‫ࢼؼ‬ːࡿ‫ב‬ ࢿࢸ‫ؼ‬ଲ࢒ࡿˀߜ঎ʹࢴࡿ‫ב‬ ࢿࢸˀߜࡿ঎ʹ ࢿࢸ‫ەؼࢺ࢙׽̔ܒ‬ ࢿࢸ‫ؼ‬ଲऋ˽ ࢿࢸ‫ؼ‬ଲˀߜࡿ̘ɻ ࢿࢸ‫ؼ‬ଲ࢒ࡿˀߜ୬ࢺ‫ࢼؼ‬ːࡿ‫ב‬ ࢿࢠ‫ؼ‬ଲࣵʋ࢒ ࢿࢠْ‫࡟ؼ‬ଲ ࢿࢸࠓ،࣌৑ ࢿࢸ࡟ଲࡿऋɹ ࢿࢸ࡟ଲࡿʀ‫ܒ‬ ࢿࢠ‫ؼ‬ଲՋ ࢿࢠ‫ؼ‬ଲ‫˅ۉ‬ ࢿࢠ‫ݡ‬୧ ࢿٕ‫ܕ‬ଢ‫ؼ‬ଲ̊ࢺࢇ‫؃‬ ࢿࢠ‫ؼ‬ଲ̓ߓ˒‫ؼ‬ଲɹߓ

ࢿࢠ‫ؼ‬ଲˀߜ࢒ɹ߂С଑‫ؼ‬ଲ࢒

ࢿٕࢺߓ‫ؼ‬ଲ̊ࢺࢇ‫؃‬ ࢿࢠଭࡅ‫ۺ‬ ࢿٕॷࢋ‫ؼ‬ଲ ࢿࢠॷࢋ‫ؼ‬ଲࢇ‫؃‬ ࢿࢠऍࢸ঍ˮ˽˒ऍࢸ‫ܛܒ‬ ࢿࢠࡿ‫ؼב‬ଲ ࢿֵٕ۟‫ؼ‬ଲ ࢿࢠֵ۟‫ؼ‬ଲࡿછ‫ࢺ̊ش‬ ࢿࢸࢼ࢒ ࢿࢸˀߜজ̘Ьˀࠧࡧऌ ࢿࢸˀߜ̘ɻࣵࡿ‫س‬ʾ ࢿࢸ˯έ‫˔ࡿ˒أ‬ˀ ࢿࢸ‫ؼ‬ଲ‫˅ۉ‬ ࢿࢸࢴୗ˒ଢߜ ࢿٕЬ঎‫ؼ‬ଲ ࢿࢠЬ঎‫ؼ‬ଲࡿછ‫ࢺ̊ش‬ ࢿࢸЬ঎‫ؼ‬ଲࢇ‫؃‬ ࢿࢸْࣔࢳЬ঎‫ؼ‬ଲ ࢿࢸࢋࡿЬ঎‫ؼ‬ଲ

ࢿࢠ‫߻ەؼ‬лଛ˽ն

631

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢿٕࡧԞ‫ؼ‬ଳˀߜ‫ࡒأ‬৒߻ૣଞѶָҕˀߜࡳ࡟ଛࢇ‫؃‬ ̊ࢺ ࢿࢠۭ߬̊ࢺ ࢿࢸࡧԞ‫ؼ‬ଲˀߜ‫ࡒأ‬৒ࡿࢳࡅ ࢼ࣌‫ݥ‬ऐࢳࢳࡅ‫࡟آ‬  3(,&/ࡵࢊ؆ࢶࢉ‫ؿی‬ଵ߾ࢶࡈଜֲۘ୎‫ؿ‬ଵࡶ૦ଡଞЬ  3(,&/ࡵࢢ‫ؿ‬ଵ߾Еࢶࡈଜए߅ТଞЬ

ࢼ࣌۱ੑࢳࢳࡅ ˲ࢿ‫ࢂئۘئی‬۴੔߾˗ଞࢿଞ߾˗˃߷ࢇߦк‫࢕ی‬ɼ˃ߟ߾3(,&/ࡶࢶࡈଜѦ Լଢࢂձଞˁࡉ3(,&/ࢇࢶࡈѹЬࢿ࣏߾ҬԂઞࢽ̍ࢽࡶؑࢿଜए߉ˈ 3(,&/ࢇࢊ˘ࢶࡈѹЬ

ࢼ࣌ʅପ‫ۺ‬  ࢿ࣏‫࣏ࢿ؀࣏ࢿ࣏ࢿ࣏ࢿ࣏ࢿח‬Еʈ ଭ̍ࢽࢇЬ̐࠹̍ࢽࡵ‫̛ی‬ଭࡢࠪ˗԰ѹࢿࢢࢉˁࡉ߾ଞଜࠆʈଭ‫࢑ࢇ۽‬ Ь  ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕߾ʯٙࢇ࢈ࢇѸए߉Еଞ‫ؿ‬ଵ˃ߟ߾۰ Ьհ̍ࢽࢂࢶࡈࡶؑࢿଟܹ࢑Ь  (&ए৚ࢿ࣏ࢿତࢇࢂ‫׵‬ଜЕо୉ࡢଵࡶж‫ؿ‬ଜЕ˃ߟ߾۰ߦк ‫߾࢕ی‬ʯࢇ࢈ࢇѸЕˁࡉ߾ଞଜࠆࢿତࡶؑࢿଜЕʨࡵରࡈѹЬ (&ए৚ࢿ࣏ࢿତE୎ӖЕF୎ɼָ‫ݤ‬ଞʎ‫ࡁط‬ʢࡶ঻࣐ଜЕଥкଔ‫ؿ‬ଵ ࢕߾ଞଜࠆЯ঑‫ؿ‬ଵ߾۰ࢂٕٗࢶؑࢿԻоତଟܹ࢑Ь

ࢼ࣌ଢ‫ۮ‬ 3(,&/ࡵ‫ࢷחق‬୯˗˃࢏‫̐ࢶּئ‬չˈ‫ؑࢶئˬٸ‬ˁࢂ˗ࢺ߾۰ଥ۱ଥߞଞЬ ઞ஢‫ؿ‬ଵࠒࠇ߾۰ࢂ‫ࡕࢂݨ۽ࢂݦ‬৕˃ߟ˗˃߾۰ࢂ୉ૡ‫ؿ؀۽˗ࢊࢂࡈࢶ۽‬ ଵ˃ߟ࢕‫߾্ִࢂ୎ؿ‬۰ଥ۱ଥߞଞЬ

ࢼ࣌˯έ‫ࡒ؃ࢇ˒أ‬৒  ˲ΰ‫ࢂ߾ئ‬ଞ3(,&/ࢂࢿଞӖЕ‫ࡵ঻ؿ‬ରࡈѸए߉ЕЬ3(,&/߾૦ଡѹઞ‫ط‬ ̍ࢽ߾ࢂଥ۰Еж‫ؿ‬Ѹए߉Е‫ؿ‬ଵࢂࣗզձ˱‫۽‬ଜˈ࢑Е˲ΰ‫ࢂئ‬ʈଭ‫̍ئ‬ ࠪ˗԰ଜࠆ۰Е‫ࡈࢶࢇח‬Ѹए߅ТଞЬ  ‫ؿ‬ଵ˃ߟ߾۰؈ۢଞ‫ࢿח‬ɼ3(,&/߾۰ָ୙஢̍ࢽѸए߉Еˁࡉࡪԡ˃ߟ‫ࡕئ‬ ৕߾Ҭծˈࡪԡ˃ߟ‫ࡕئ‬৕߾Ѧࢶࢸଞ̍ࢽࢇٕࢢଞˁࡉ߾Еୣࡕ˲˲ΰ‫ئ‬ ࢂࢊ؆ࡕ৕߾ҬհЬ

632

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢿࢸࢇ‫ࡿࢺ؃‬ ࢼ࣌‫ؼ‬ଲˀߜ  ‫ؿ‬ଵ˃ߟࡵࢊ؏к‫ؿ࢕ی‬ଵ࢕ ɼۘо؏‫ؿ‬ଵ˃ߟ࢕ ߾ʯ‫ؿ‬ଵՎձоɼԻઞࢽ ଞࡢଵ߾оଥࢷ‫ؿ‬ଜЕ˃ߟࡶࢂ‫׵‬ଞЬ  ‫ؿ‬ଵ‫ˈی‬Е‫ؿ‬ଵ˃ߟ߾۰ઞࢽଞࡢଵࢂ؈ۢࡶࢂ‫׵‬ଞЬ  ‫ܘ‬ଥ‫ؿ‬ଵࡵ‫ؿ‬ଵ‫ࢂˈی‬؈ۢࡳԻ࢏ࡵ‫߾ݨܘ‬оଥ‫ؿ‬ଵ࢕߾ʯ‫הࢂۘؿ‬ձٕࠆ ଞ‫ؿ‬ଵࡶࢂ‫׵‬ଞЬ  ࢽߖ‫ؿ‬ଵࡵ‫ؿ‬ଵ‫ࢂˈی‬؈ۢ߾оଥˈࢽ̖ߖࢂए̗ࢂ‫ה‬ձ‫ؿ‬ଵ࢕߾ʯٕࠆଞ ‫ؿ‬ଵࡶࢂ‫׵‬ଞЬ  ॺࢎ‫ؿ‬ଵࡵଔ‫ؿ‬ଵ࢕ɼଔଥ࢕߾оଥ‫߾ࢎॺࢶئ‬ऐִଞࡢଵ߾оଞ‫ؿ‬ଵࡶࢂ ‫׵‬ଞЬ  ָۢ‫ؿ‬ଵࡵ‫ؿ‬ଵ࢕ࢂࢂ‫ה‬ӖЕ‫ؿ‬ଵՎࢂए̗ࢇଔ‫ؿ‬ଵ࢕ࢂ‫֌ی‬ӖЕ࣑ۢࡳԻ ଜЕ‫ؿ‬ଵ‫ࡉࣛ߾ˈی‬ѸЕ‫ؿ‬ଵࢇЬ  Я঑‫ؿ‬ଵ˃ߟࡵЯ঑ࢂ˱‫ࡢࡶ࢈ࢇࢂࡕ۽‬ଜࠆ‫ؿ‬ଵ࢕ࠪЯ঑ࢂо૲࢕ɾ߾঑ ʼଞ˃ߟࢇЬЯ঑‫ؿ‬ଵ˃ߟࡵ˱‫ࢂࡕ۽‬ɼ࣐ࡶоۘࡳԻଟܹ࢑Ь  ٕࣗࢶЯ঑‫ؿ‬ଵࡵ˱‫ࢇࡕ۽‬ଥкЯ঑߾‫ܖ‬ଜʯѻࡳԻ‫ނ‬ʠࢸଟܹ߷ࢇ࢕Ѱࡳ Իଔ‫ؿ‬ଵ࢕ɼѸЕЯ঑‫ؿ‬ଵࢇЬ  ࢎࢂЯ঑‫ؿ‬ଵࡵ˱‫ؿࢇࡕ۽‬ଵɼ࢏ࡶʠࢸଜए߉ࡸࡳԻ‫ނ‬ଔ‫ؿ‬ଵ࢕ɼѸʠΟ ऐࢻࢶࢉ‫ݦ‬ঐࡳԻ‫ނ‬ଔ‫ؿ‬ଵ࢕ɼѸЕЯ঑‫ؿ‬ଵࡶֆଞЬ

ࢼ࣌‫ࡿࢺࢳْۼ‬  ଔ‫ؿ‬ଵ࢕Е‫ܘ‬ଥ‫ؿ‬ଵࢂ‫߾ݨܘ‬оଥଔ‫ؿ‬ଵࢇ࢈ࡶɼएЕ࢕ࢇЬ  ‫ؿ‬ଵܹ࢈࢕Ԅࢽߖ‫ؿ‬ଵ߾۰‫ؿ‬ଵ̖ࡶए̗؇ࡶܹ࢑Е࢕ࢇЬ  ࢉ‫ؿ‬ଵࢂଔ‫ؿ‬ଵ࢕Ԅ̐ࢂָۢʢʈࠟࢷଡࢇΟ̐ۘ੓߾‫ؿ‬ଵࢇ٠ࠆऑ࢕ձ ֆଞЬ  ॺࢎ‫ؿ‬ଵ߾۰ଔଥ࢕Ԅ̐ࢂ‫ۘ֌ی‬ଥӖЕ‫߾ݨܘ‬оଥଔ‫ؿ‬ଵ࢕߾ʯॺࢎࡶ‫ט‬ Е࢕ձֆଞЬ  ‫ؿ‬ଵֻखоչࢉࢇԄ‫ؿ‬ଵ࢕߾ࢂଥୖ‫ؿ‬શ֐ई‫ؿ‬ଵ˃ߟࢂ˗չձּࢶࡳԻˈ ࡈѹ‫ؿ‬ଵࣸʎ࢕ձֆଞЬ  ‫ؿ‬ଵՎԄ‫ؿ‬ଵۘࢂ̗ٕձоɼԻ‫ؿ‬ଵ˃ߟ࢕ɼ‫ؿ‬ଵ࢕߾ʯए̗ଜЕ̖ߖࢇЬ  ‫ؿ‬ଵ̛ɾࢇԄ˃ߟࢂʼ˕Ի‫࢖ݤ‬ଜࠆ˃ߟ̛ۘɾࢂˁ˕ԻΖΟЕ˃ߟۘࢂ‫ה‬ ̛ɾࡶࢂ‫׵‬ଞЬ  ‫ؿ‬ଵՎ̛ɾࢇԄк‫ࢂ࢕ی‬ଢࢂ߾ҬԂ‫ؿ‬ଵՎΨ࢏ࢂ‫ה‬ɼ࢑Е̛ɾࡶֆଞЬ  ॺࢎ̛ɾࢇԄ‫̛ࢠؿ‬ɾࡶࢂ‫׵‬ଞЬ   ࢂ  ‫ؿה‬ଵࢇԂଡࡵ‫ئ‬ӖЕ̍ࢽ߾ࢂଥ‫ؿ‬ଵɼ࢏ࢇʈࢿѸЕ‫ؿ‬ଵࢇЬ

ࢼ࣌‫ࠧߪ߬ࡿۭה‬ଢ‫ۮ‬  ‫ؿ‬ଵ࢕߾ࢂଥ࢖‫۽‬ѹֻҘ‫ח‬۰ЕЯָܻՎଜࠆߞଜˈ˃ߟࢇ୆ۘѺҶࢇࡈ ଞ߯߭Ի‫ߞࣇࠆޱ‬ଞЬ  ‫ؿ‬ଵ࢕߾ࢂଥࢿ˓ѹࢽ‫ؿ‬ӖЕֻҘ‫ח‬۰ࢂࢂ‫׵‬ɼָٙ୙ଞˁࡉ߾Е‫ؿ‬ଵ˃ ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕߾ʯফоଞࡪչଜʯଥ۱ଜࠆߞଞЬ

ࢼ࣌‫ܶࡿۭה‬Գऋֵ ‫ؿ‬ଵ࢕߾ࢂଥ࢖‫۽‬ѹ‫ח‬۰ձ‫ؿ‬ଵ˃ߟ࢕ɼܹԶବЕएࠆٕࢂऎָॺࢎࡵ‫ؿ‬ଵ࢕߾ ʯ࢑Ь

633

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢼ࣌੹ऌࡿ୆‫ݢ‬ 3(,&/ࢂઞࢽଞࡕ৕߾ҬԂঐߟ࢕‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕ɼ‫ؿ‬ଵ˃ ߟ˕˗԰ѹ੼एձଜЕˁࡉ߭ҿଞઞ‫ط‬ଞ୉‫ݥ‬Ѧࡁ˱Ѹए߅ТଞЬ

ࢼ࣌лնࢆࢄ߄ʥ ˃ߟࢂࢇଭӖЕ঑ʼ߾ଗࡁଞ̀ଞࡶ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕߾ʯ ࡢࢎ؇ࡵ࢕ɼ̐ࢂ̀ଞࡶࢇଭଜЕ˕ࢽ߾۰оչࢉࢇߊߑʠΟߊ߅ߞବыࣸࡁ ଞ‫ی‬ତࡵ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕ɼ߇ʨࡳԻ‫ق‬Ь

ࢼ࣌५‫̓ش‬ऌ  ‫ݦࢎط۽‬ষ‫ࣗࢉࢶ˲ۏ‬ӖЕ‫ࡪࢇࡶ࣐׷‬Իʎࢉࢂ‫ؿ‬ଵՎࠪ‫ؿ‬ଵ̖ࢂ८ࢇ ձѿ߭۰Е߅ТѹЬ  ‫ؿ‬ଵՎ߾˗ଞ࣏ତࡶ૦ଡଜࠆࢿତ߾؆ଜЕ࣏ତࡵ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ ձ˱‫ܖ‬ଜए߅ТଞЬࢿତ߾ҬԂ۰ଥк˃ߟࡵ८‫̖ط‬ए̍ࢽࡶ̒ʠԻଜࠆ к‫࢕ی‬ձ˱‫ܖ‬ଞЬ  ࢿତࢂˁࡉ߾‫ؿ‬ଵ˃ߟ࢕Е˃ߟࡶࣗՎଟ̀ଞࡶɼऑЬࣗՎࢂ੼एЕ‫ؿ‬ଵ ˃ߟ࢕ɼ‫ؿ‬ଵ࢕߾ʯ̐ࡢ؆‫߇ࡶݨی‬ΤԻٕਫ਼ʎࡖΰ߾۰ִࡳԻଜࠆߞଞ Ь

ࢼ࣌ࡧࢴ࢒ʣ‫ۉ‬  ‫ؿ‬ଵ࢕Еঐߟ࢕‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕߾ʯࡪࢷ࢕ʦ‫ی‬ձࡁ˱ଜʠΟ̐Ԝ ଞʦ‫ی‬ʼ˕ձˈएଜѦԼࡁ˱ଟܹ߷ˈӖଞ‫ؿ‬ଵ࢕ɼ̐ʨࡶࡢଵթ‫ࢂࢽۏ‬ ּࢶࡳԻࢇࡈଟܹ߷Ь  ࢿତࡵࢉ‫ؿ‬ଵࢂଔ‫ؿ‬ଵ࢕ɼ‫ؿˈࢇۘࢇۿ‬ଵ̖ߖࢇփࡪԻձট˕ଜʠΟ ࠉɾ‫ؿ‬ଵ̖ߖࢇփࡪԻձট˕ଜЕࢉ‫ؿ‬ଵ߾Еࢶࡈଜए߉ЕЬ

ࢿࢸखଭ ࢼ࣌ ‫ֵࡒأ‬Գ  ࢿ࣏ɼࢶࡈɼМଞˁࡉࢿତ߾ࢽࢂ߾ҬԂ̀ଞ࢑Е࢕Е˗ଟ˲ΰ‫ئ‬ ࡕࢇΟк˲ࡶएࢽଟܹ࢑ˈ3(,&/ࢂࡢ؆߾оଥ۰̖एָԶࡶ˱ଟܹ࢑Ь  ̀ଞ࢑Е࢕Еࢂࡪԡࢂୣࠪࡢࡕୣࢂ‫˗߾୎ؿ࢈ࢇ࢕ٸܕ‬ଞए৚ (&'LUHFWLYHࢿ࣏ʎࢽ ߾ҬԂࡪԡखଭࡢࡕୣɼ࢖‫۽‬ଞּԼ߾̛ট ଜࠆ˱‫۽‬ѹЯ঑ӖЕ࣏ऐࡶࢂ‫׵‬ଞЬ

ࢼ࣌‫׽̘ࢼࡿࢄࡿ࠶ࢺأ‬ˮࢼܶЬ 3(,&/ࢂࢶࡈࢇ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕ɼࢇࡈଟܹ࢑Е‫ࢂ࠹ࢽئ‬ ࢇࢂࢿ̛ࠪ˱ࢿܹЯ߾ࢂࢻ̒ࡶւЕʨࡵ߅ТЬ

634

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢿࢠ‫ؼ‬ଲˀߜࡿজ̘Ьˀࠧࡧऌ ࢿࢸ঍ߜ࢒ࡿˀߜࢴࢺ‫ࢼؼ‬ːࡿ‫ב‬ ࢼ࣌˅ऌࡿ‫ב‬  ˃ߟ঑ʼ‫߾ݤ‬ঐߟ࢕Е‫ؿ‬ଵ࢕߾ʯ‫ؿ‬ଵ࢕ࢂָ୙ଜˈࢽ୙ଞओ‫߾ח‬оଥ࢕‫ݦ‬ ࢇߊߑʠΟߊ߅ߞଜЕ‫ی‬ତࡶ‫ؿ‬ଵ࢕߾ʯߊԮߞଞЬ  ࢿତࢂ‫ی‬ତࡵଔ‫ؿ‬ଵ࢕ɼߊߑʠΟߊ߅ߞବыʨࡶ૦ଡଞЬ

ࢼ࣌࡟‫؃‬  ‫ؿ‬ଵ˃ߟ࢕ɼࢿ࣏ձࡢ؆ଞˁࡉ‫ࢿ࣏ق‬ତٕਫ਼ࢿତ߾ҬԂ‫ؿ‬ଵ࢕Е ˃ߟࡶଢչࢶࡳԻ‫ض‬ˁଟʨࡶࢿ߇ଜʠΟࣗՎ‫࢑ܹ੄ݤ‬Ь˃ߟࢂࣗՎձࡢଥ ‫ؿ‬ଵ࢕ЕࢇԜଞʼࢽࢇɼएЕ‫ئ‬թ୪˕߾оଞࢽ‫ؿ‬ձ૦ଡଜЕࢂ‫ی‬ձ۰ִࡳ Ի੼एଥߞଜֲࢇЕࢿ࣏ࢂࡢ؆‫ی‬ତࡶߊߑʠΟࡢ؆ࢇָؒଥऑҶԻ ٕਫ਼ʎࡖࢇΰ߾ଥߞଞЬ  ‫ؿ‬ଵ࢕ɼ˃ߟࡶଢչࢶࡳԻ‫ض‬ˁଟʨࡶࢿ߇ଞˁࡉ˃ߟ࢕ɼ̐ࢿ߇ࡶʠࢸ ଜए߉Еଞࢿତࢂ੼एձܹԶଞΤԻٕਫ਼ʎࡖΰ߾˃ߟࡵ̐‫ض‬ˁѹࢿ߇ ߾ҬԂए‫ܖ‬ѹЬ˃ߟ࢕ɼʠࢸଜЕˁࡉ‫ؿ‬ଵ࢕Е̐ʠࢸࢂ۰ִ੼एձܹԶ ଞΤԻٕਫ਼ʎࡖΰ߾˃ߟࡶࣗՎଟܹ࢑Ь  ˃ߟ࢕ɼࢿ࣏ࢂࡢ؆߾оଥॺࢎࢇ߷Еˁࡉ‫ؿ‬ଵ࢕Е̐Ԝଞࢽ‫ؿ‬ձߊ ߑшԂִ˃ߟࡶ঑ʼଜए߉ߑࡶʨࡶऎָଜए߉Еଞ˃ߟࡶࣗՎଟܹ߷Ь  ˃ߟࢂࣗՎЕ‫ؿ‬ଵ˃ߟ࢕ɼࢿତ߾Ҭհ۰ִ੼एձܹԶଞΤԻٕਫ਼ʎࡖ୯ ߾୪ԯࢇ؈ۢଞЬ˃ߟࢂ‫ض‬ˁࡵк‫ࢂ࢕ی‬ଢࢂ߾ҬԂ୪ԯࢇ؈ۢଞЬ  ‫ؿ‬ଵ˃ߟ࢕ࢂ˕‫ݨ‬ԻࢉଞٙˈएӖЕٕ‫ˈݨ‬ए߾Ҭհж‫ࡢؿ‬ଵࢂࡁ‫ܕ‬ɼ‫ؿ‬ଵ ‫ࢇࢉࡕࢂˈی‬Ѹˈ˃ߟࢂࣗՎΟ‫ض‬ˁࢂ୪ԯࢇ؈ۢଜ̛ࢷ߾‫ؿ‬ଵ‫ˈی‬ɼࢊ߭ Οˈ‫ؿ‬ଵ࢕ɼ̐Ԝଞࡢ؆‫ߑߊࡶݨی‬шԂִ˃ߟࡶ঑ʼଜए߉ߑࡶˁࡉԂִ ‫ؿ‬ଵ̖ࡵए̗Ѹए߅ТଞЬ̐ԜΟփࢊ‫ؿ‬ଵ࢕ɼ‫ؿ‬ଵՎձऎߖଜʠΟЬհ࣏ ʢࡳԻ˃ߟࡶ঑ʼଟܹ࢑߹ࡶˁࡉ‫ؿ‬ଵ̖ࡵ̐߾‫ٸ‬ԷଜʠΟЬհ࣏ʢ߾Ҭ Ԃए̗Ѻܹ࢑Ь

ࢼ࣌ࠓ࠶ ࢿ࣏߾̍ࢽѹࢿࢢЕЬࡸࢂˁࡉ߾Еࢶࡈଜए߅ТଞЬ D ओ‫߾ח‬оଥ۰з‫ࢇض‬Ѹए߉ߑʠΟࢿ˓ѹࢽ‫ؿ‬ɼָؒଜʯ‫۽ࠬ׵‬ӖЕٕࢽ୙ ଞˁࡉ E ˈएѸ߹߭ߞଜЕࢽ‫ؿ‬ӖЕٕࢽ୙ଜʯࢿ˓ѹࢽ‫ؿ‬ԻЕଢչࢶࢉ‫ؿ‬ଵ࢕ɼ˃ ߟࢂ঑ʼࢇΟ࣏ʢࢂѰࢂձʼࢽଟࢇࡪɼѸए‫׃‬ଞˁࡉ F  ‫ؿ‬ଵ࢕ɼ‫ؿ‬ଵ˃ߟ࢕Իଜࠆ̖ˈएଟଗࡁɼ߷Ьˈ‫׸‬ѦԼࡪѦଜࠆࢽ‫ؿ‬ɼࢿ ˓ѹˁࡉӖЕ G ‫ؿ‬ଵ࢕ɼߊߑʠΟߊߑ߭ߞବыࢽ‫ࢉؿ‬ˁࡉ

ࢼ࣌‫؃࡟ࢳ̘ۉ‬ ‫ؿ‬ଵ˃ߟ࢕ɼࢿ࣏ձ‫ࡳࢶ̛ی‬Իࡢ؆ଜࠆ˃ߟ঑ʼࡶࡪѦଞˁࡉࢿ࣏ ߾̍ࢽѹࢿࢢࢂΰࡈࡶ৚ଥଜए߅Тଜˈ‫ؿ‬ଵ࢕Е̐˃ߟࡶী‫ܕ‬ଜˈΨ࢏ѹ‫ؿ‬ ଵՎձীҗଟܹ࢑Ьী‫੼ࢂܕ‬एЕ‫ؿ‬ଵ࢕ɼ‫̛ی‬ձ߇ΤԻٕਫ਼ʎࡖΰ߾‫ؿ‬ଵ ˃ߟ࢕߾ʯ۰ִࡳԻଜࠆߞଞЬ

635

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢼ࣌঱ɹࢺ‫ؼ‬ ࢿ࣏߾ࢂଥࡁ˱ѹʨ߾঴ɼଜࠆ˃ߟ঑ʼ‫ؿݤ‬ଵ˃ߟ࢕ɼࢿ˓ଜЕֻҘࢽ ‫࣏ࢿ࣏ࢿ߾ؿ‬ɼࢶࡈѹЬ

ࢼ࣌ ࡪࢷࢽ‫ؿ‬ ࢇࢠࡵࢿ࣏ࢂࢿତࢂࡪࢷ࢕ʦ‫ی‬ʼ˕߾ࢶࡈଜए߅ТଞЬ

ࢿࢸ‫ؼ‬ଲ࢒ࡿˀߜ঎ʹࢴࡿ‫ב‬ ࢼ࣌ˀߜ঎ʹࢴۭգࡿࢼː  ‫ؿ‬ଵ࢕Еঐߟ࢕߾ʯ˃ߟߟ˗‫ڸ‬փ߅ТԂࣸࡁଞˁࡉЬࡸࢂࢽ‫ؿ‬ձ૦ଡଜЕ ۰զձࢿ˓ଥߞଞЬ D ˃ߟк‫ܕ࣯˕ָ۽ࢂ࢕ی‬ઞ஢‫ؿ‬ଵ࢕ࢂ‫࢕߶ی؀یق‬ҟԼऎଗࡁଞˁࡉ ˃ߟࡶ঑ʼଜʠΟ‫ࢉݣࡶٕٗࢠؿ‬ଞएࢺ E ଔ‫ؿ‬ଵ࢕ࢂ‫ؿָۢܕ࣯˕ָ۽‬ଵࢂˁࡉ߾Е‫ؿ‬ଵܹ࢈࢕ࠪଔ‫ؿ‬ଵ࢕ F  ‫ؿ‬  ଵֻखоչࢉࢂ‫ܕ࣯˕ָ۽‬ G ‫ؿ‬ଵּࢶ˕ж‫ࡢؿ‬ଵ H ‫ؿ‬ଵ̖ߖ˕࢕̛ٕж̖ I  ‫ؿ‬ଵՎࢂߖ˕‫ئ؏ࢽۏ‬ J ‫ؿ‬ଵՎࢂए̗‫؀ܕࢠ̛ࠪݤ‬ए̗؏‫ئ‬ K ˃ߟࣗʼ؏‫ࡶئ‬૦ଡଞ˃ߟ̛ɾ‫̛ࢎॺ؀‬ɾ L  ‫ܘ‬ଥ‫ؿ‬ଵࢂˁࡉࢿ࣏̐չˈָۢ‫ؿ‬ଵࢂˁࡉࢿ࣏߾ҬԂঐߟঋ ୣ̀ӖЕ˃ߟী‫̀ܕ‬  M  ˃ߟࡵ3(,&/ࢂоۘࢇԂЕ‫ݨی‬ N  ঐߟ࢕ձࡢଞ‫ࢸࢿ˱˕̛̀ࢿࢂࢇ࠹ࢽئ‬८ࢂ࣑ࢢ‫̐؀‬ʨ߾ࢻ̒ଜЕ؏ ‫ئ‬ O  ‫ؿ‬  ࢠ̛̖ࢇΟ̛੉‫ࢢ࣑ࢂࢽߟۘؿ‬  ɼМଜЬִࢇԜଞࢽ‫ؿ‬Еঐߟ࢕ɼ˃ߟ঑ʼࠆٕձˈԮଟܹ࢑Е঻ٗଞ‫ݤ‬ ɾࢶࠆࡪձɼएˈࢿ˓Ѹ߭ߞଞЬ  ঐߟ࢕Еঐߟ۰Ο‫ؿ‬ଵ࢕ɼࢿ˓ଞओ‫̛߾૲ח‬টଜࠆ‫ؿ‬ଵж‫ؿ‬ձঐߟଟҶ‫ؿ‬ ଵ࢕Еঐߟ࢕߾ʯࠬࢷଞ۰զࢂ‫˓ࢿࡶقی‬ଜࠆߞଞЬ

ࢼ࣌‫࢝ؼ‬έࡅࡿٖࢇ৑߻˔ଙࠃ߇չࡿ‫ב‬  ˃ߟ঑ʼ‫ۘࢂߟ˃߾ݤ‬ଢ଼‫ئ؏؀‬ઞ஢ঐߟ࢕ɼѧվѹࣸʎࢉࢂ࣏ԯࡶ؇ߑ ЕएࢂࠆٕҟࡶˈԮଜࠆࢿ˓ѹж‫ؿࠪؿ‬ଵ࢕ɼߊߑʠΟߊܹ࢑߹ыঐߟ ࢕ࢂࡁ˱‫ࢂࢇی‬ٙࢊ৔ձঐߟ࢕߾ʯߊԮߞଞЬ  ࢿତࡶࡢ؆ଜЕˁࡉ D ‫ؿ‬ଵ࢕߾ʯ˕‫߷ࢇݨ‬Еˁࡉձࢿ࠹ଜˈ‫ؿ‬ଵ࢕Еߊռࢂ‫ࡢࢂה‬؆ࡳԻ؈ ۢଞֻҘ‫ܘ‬ଥ߾оଜࠆؑۘଜࠆߞଞЬ E ‫ؿ‬ଵ˃ߟ࢕Еࡢ؆ࡶ߇ΤԻٕਫ਼ʎࡖΰ߾۰ִࡳԻ˃ߟࡶࣗՎଟܹ࢑Ь

ࢼ࣌‫࢝ؼ‬ʋ‫˔߻ݡ‬ଙࠃ߇չࡿ‫ב‬ ঐߟ࢕ɼ९ࠝଟփଞ‫ࡪی‬Իঐߟ۰ɼࢿষѹк‫ࢇࢠؿ߾ݤ‬ʎ‫ݤ‬ѺʨࡳԻ‫ˈ߹׸‬ ‫ؿ‬ଵ࢕ɼ ࢇձ ߊʠΟ ߊ߅ߞ ବࡶ ˁࡉ ‫ؿ‬ଵ࢕Е ࢜ࢽࢶ ‫ ࢇۘؿ‬ରࡈѸЕ ˁࡉɼ

636

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

߅Фଞ˃ߟࢇ঑ʼѸˈটୣ‫ؿ‬ଵՎɼΨ࢏Ѹ߭ߞ‫ࢇࢠؿ‬ʎ‫ݤ‬ѹЬЕʨࡶए঑߷ ࢇߊԮߞଞЬ‫ؿ‬ଵ࢕ɼߊռࢂ‫ה‬ձࡢ؆ଞˁࡉࢿ࣏ࢂࢿD ତ߾Ҭհॺ ࢎࡶऑЬ

ࢿࢸˀߜࡿ঎ʹ ࢼ࣌঎ʹࡿ،‫أ‬ ‫ؿ‬ଵ˃ߟࡵ۰ִࡳԻ঑ʼӖЕָ‫ݤ‬ѸʠΟ̛੉߭ҿଞ୉‫ࡶݥ‬ଗࡁԻଜए߅Тଞ Ь˃ߟࡵ˱ѿۘࢂऎ߯ࡶ૦ଡଞ߭ҿଞܹЯࡳԻѦऎָѺܹ࢑Ь

ࢼ࣌‫ؼ‬ଲࡿ঍ߜঈୠ ঐߟ࢕ɼ‫ؿ‬ଵ࢕ࢂ‫ݣ‬ΠࡶܹԶଜ̛ࢷ߾ঐߟ࢕ࢂঋୣɼ‫ؿ‬ଵ࢕߾ʯѦбଞˁࡉ ‫ؿ‬ଵࢂঐߟࡵঋୣଟܹ࢑Ь

ࢼܷ࣌ԫ̘ɻ  ‫ؿ‬ଵ˃ߟ࢕Еࢿ࣏߾۰ָ‫ݤ‬ଞ‫ݣ‬ΠࢂܹԶ୏ࡵ۰զࢂˬٕࣸшНࡵ‫ݤ‬ ࢺࡳԻٕਫ਼࣯ࢇΰ߾۰ִ੼एࢂ؏‫ࡳݥ‬Ի˃ߟࡶঋୣଟܹ࢑Ь  ‫ؿ‬ଵ˃ߟ࢕ࢂঋୣ̀ࡵЬࡸࢂˁࡉ߾ЕؑࢿѹЬ D ˃ߟ̛ɾࢇʎࡖ‫׵‬փࢉˁࡉ E ˃ߟࢇࢿ࣏߾ҬԂࠉࢠѹˁࡉ F  ࢜  ࢽ‫ؿࢎॺۘؿ‬ଵӖЕЯ঑‫ؿ‬ଵࢂˁࡉ

ࢼ࣌Τࡅࢳ࣌ଡ  ‫ࡕࢂݨ۽ࢂݦ‬৕˕˓ࢽଞʠԎ࣏ʢ߾؆ଜࠆ˃ߟۘ‫ؿ‬ଵ˃ߟ࢕ࠪଔ‫ؿ‬ଵ࢕‫؀‬ ‫ؿ‬ଵܹ࢈࢕߾ʯ‫ܘ‬ଥձ؈ۢ‫ݤ‬਄ࢇҚࢂ̀չࠪࢂ‫ࣸ߾ה‬оଞٙ̎୉ࡶߞ̛ଟ Ҷ‫ؿ‬ଵࢂ‫ق‬ओ˕˃ߟֻۘҘ࣏ʢ‫ࢇߟ˃؀‬঑ʼѹк‫ۘࢂݤ‬ଢ଼ࡶˈԮଜࠆʎ ‫ࡳࢶط‬Ի୆ࢂѸए߉ࡵߟ˗࣏ତࡵ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕‫ؿ؀‬ଵܹ࢈࢕ձ˱‫ܖ‬ ଜए߉ЕЬ  ٙ˓ࢽߟ˗࣏ତࡶࢿ࠹ଜˈ˃ߟࡶࡪएଟܹ࢑Ьִ˃ߟࡵ˃‫ܖ‬ଥ۰к‫࢕ی‬ձ ˱‫ܖ‬ଞЬփߟ̐ԥए߉Ьִٙ˓ࢽଞ࣏ତࡵଢչࢶࢉк‫࢕ی‬Қࢇ࣏ʢࢂٙ˓ ࢽ‫߾۽‬оଥߊߑшԂִѰࢂଜࠑࡶ࣏ତࡳԻо঑ѹЬ  ‫࣏ق‬Е‫ࢿࡶࢠؿ‬ଞӖЕܹࢽଜЕߟ˗߾ࢶࡈѸΟЬࡸࢂˁࡉЕ̐Ԝଜए߅ ТଜЬ D ж‫ࢂؿ‬ɼߖ˕‫ؿ‬ଵՎࢂ੉к‫˗߾۽‬ଞߟ˗ E ‫ݣࢂࢠؿ‬ΠӖЕ‫ؿ‬ଵՎࢂଢࢂ߾ଗܹࢶࢉ۶ָࢇ̛ܽѹߟ˗  ߟ˗ࢇ‫۽࢖߾ࢷی‬Ѹ߭˃ߟ࢕Е̐ʼ˕ߟ˗ࢂΰࡈઞ஢‫۽࢖߾ࢷی‬ѹ૲ࣱ ˃ߟ˕˗԰ଥ۰ࢷୁࠒଯࡶࣲܹ߷߹ыˁࡉߟ˗ࡵʎ‫ࡳࢶط‬Ի୆ۘѸए߉ ЕʨࡳԻ‫ق‬Ьߟ˗ࢂଥ۱ӖЕଜΟࢂઞࢽଞ࣏‫ࢇח‬ʎ‫ࡳࢶط‬Ի୆ۘѸ߹Ь Е‫ࢂߟ˃ࡵݨی‬Ο֞एٕٗ߾۰ࢇ࣏‫ࢿؑࡶࡈࢶࢂח‬ଜए߉ЕЬ‫ؿ‬ଵ࢕ɼ ૲ࣱߟ˗ࢇʎ‫ࡳࢶط‬Ի୆ࢂѹʨࢇԂЕʨࡶ࣯ࢠࡶଜЕˁࡉࢇ߾оଞऎָ ॺࢎࡵ‫ؿ‬ଵ࢕߾ʯ࢑Ь

637

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢿࢸ‫ەؼࢺ࢙׽̔ܒ‬ ࢼ࣌‫ەؼ̔ܒ‬  ˃ߟࢇ঑ʼѸ̛ࢷ̛ɾ߾оଞ‫ؿ‬ଵۘ‫ࢇࢠؿ‬ରࡈѹˁࡉ‫ؿ ۘؿ̗ܕ‬ଵ࢕ɼ ˃ߟࢂ঑ʼ‫ؿ߾ࢺݤ‬ଵ‫ˈی‬ɼ؈ۢଜए߉ߑࡸࡶߊˈ࢑Ьִ‫ؿ‬ଵ˃ߟ࢕Е঑ ʼ‫ࢇࢺݤ‬୯ࢂ̛ɾ߾оଥ۰փ‫ؿ‬ଵՎΨ࢏ࢂ‫ה‬ɼ࢑Ь  ‫ࢂۘؿ̗ܕ‬ˁࡉ߾˃ߟ࢕ɼ˃ߟࢂ঑ʼ‫ؿ߾ݤ‬ଵ‫ࢂˈی‬؈ۢࡶߊߑЬִ‫ؿ‬ଵ ࢕Еࢿ࣏߾ҬԂ˃ߟ঑ʼࢇ୯ࢂ̛ɾ߾оଥ۰փ‫ࢠؿ‬ଞЬ

ࢼ࢙࣌ࢺ‫ەؼ‬  ࢜ࢽ‫ࡶߟ˃ۘؿ‬঑ʼଟҶଗࡁଞˁࡉ‫ؿ‬ଵ࢕Еࢿ࣏D୎E୎G୎H୎‫؀‬ K୎߾ָ‫ݤ‬ѹࢽ‫ؿ‬ձ૦ଡଜЕ‫ؿ‬ଵ˃ߟ‫ݣ‬Π۰ձ؈ଭଜࠆߞଞЬ  ࡢࢿତ߾ҬԂࢿ࣏ٕਫ਼ࢿ࣏ࠪࢿ࣏Е࢜ࢽ‫ࡈࢶ߾ۘؿ‬ଜए߅ ТଞЬ

ࢼ࢙࣌ࢺ‫̘ࡿەؼ‬ɻ  ঐߟ࢕ɼ࢜ࢽ‫ݣࡶۘؿ‬Π؇ࡵˁࡉ‫ؿ‬ଵ˃ߟۘ‫ࢠؿ‬ʎ‫ݤ‬ɼଢࢂѹ‫ࢺݤ‬ӖЕঐ ߟ߾оଞ‫ؿ‬ଵ࢕ࢂ୙‫ݨ‬ଞʠࢸࢂ੼एձঐߟ࢕ɼܹԶଞ‫؂ࡵۘؿࢽ࢜߾ࢺݤ‬ ԻࣗՎଞЬ  Ѱࢊଞ‫ؿ‬ଵ࢕ࠪ‫ؿ‬ଵ˃ߟࡶ঑ʼଜए߉ࡵ࢕߾ʯ࢜ࢽ‫ࢉݣࢇۘؿ‬ѹˁࡉࢿ ࣏ࢿତ߾ָ‫ݤ‬ѹ̛ɾ‫ؿ‬Ьडࡵ̛ɾࢂ࢜ࢽ‫ࢠؿࢇۘؿ‬Ѻܹ࢑ЬࢇԜଞ ‫ߦࡵۘؿ‬к‫ࢂ߾࢕ی‬ଜࠆ࣯ࢇΰࢂ੼एԻଥएѺܹ࢑Ь

ࢿࢸ‫ؼ‬ଲऋ˽ ࢼ࣌ऋ˽ࡿέࡅ ‫ؿ‬ଵ˃ߟࢂ঑ʼ‫߾ݤ‬ऎ̀߾૦ଡѸए߉Е‫࣏˗ߟߟ˃੼ؿ‬ତ˕ଡ͉ࣸࡁଞˁࡉ Ьࡸࢂࢽ‫ؿ‬ձ૦ଡଜЕ‫ؿ‬ଵऎ̀ࡶ؈ଭଞЬ D ˃ߟк‫ܕ࣯˕ָ۽ࢂ࢕ی‬ઞ஢‫ؿ‬ଵ࢕ࢂ‫࢕߶ی؀یق‬ҟԼऎଗࡁଞˁࡉ ˃ߟࡶ঑ʼଜʠΟ‫ࢉݣࡶٕٗࢠؿ‬ଞएࢺ E ଔ‫ؿ‬ଵ࢕ࢂ‫ؿָۢܕ࣯˕ָ۽‬ଵࢂˁࡉЕ‫ؿ‬ଵܹ࢈࢕ࠪଔ‫ؿ‬ଵ࢕ࢂ‫˕ָ۽‬ ࣯‫ܕ‬ F  ࣸ  ʎ࢕ࢂ‫ܕ࣯˕ָ۽‬ G ‫ؿ‬ଵࢂּࢶ˕ж‫ࡢؿ‬ଵ H ‫ؿ‬ଵ̖ߖ˕࢕̛ٕж̖ I  ‫ؿ‬ଵՎࢂߖ˕‫ئ؏ࢽۏ‬ J ‫ؿ‬ଵՎࢂए̗‫؀ܕࢠ̛ࠪݤ‬ए̗؏‫ئ‬ K ˃ߟࣗʼ؏‫ࡶئ‬૦ଡଞ˃ߟ̛ɾ‫̛ࢎॺ؀‬ɾ L  ‫ܘ‬ଥ‫ؿ‬ଵࢂˁࡉࢿ࣏̐չˈָۢ‫ؿ‬ଵࢂˁࡉࢿ࣏߾ҬԂঐߟঋ ୣ̀ӖЕ˃ߟী‫̀ܕ‬  M  ˃ߟࡵ3(,&/ࢂоۘࢇԂЕ‫ݨی‬ N  ঐߟ࢕ձࡢଞ‫ࢸࢿ˱˕̛̀ࢿࢂࢇ࠹ࢽئ‬८ࢂ࣑ࢢ‫̐؀‬ʨ߾ࢻ̒ଜЕ؏ ‫ئ‬ O  ‫ؿ‬  ࢠ̛̖ࢇΟ̛੉‫ࢢ࣑ࢂࢽߟۘؿ‬

638

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢼ࣌ऋ˽ࡿ୧Ԭ  ‫ؿ‬ଵऎ̀ࢂ࣏ତࢇ‫ؿ‬ଵ˃ߟ࢕ࢂঐߟӖЕк‫یࢽߟࢂࢷࢇࢂࢇی࢕ی‬ତ˕Ь հˁࡉ‫ؿ‬ଵऎ̀߾Ο੉΢८ࢇЕ‫ؿ‬ଵ˃ߟ࢕ɼ‫ؿ‬ଵऎ̀ࢂܹԶ୯ʎࡖΰ߾ ࢇࢂձࢿ̛ଜए߅ТଜЕˁࡉ߾ЕࢇձѰࢂଞʨࡳԻ‫ق‬Ь‫ؿ‬ଵ࢕Е‫ؿ‬ଵऎ̀ ࢇ˃ߟۘଢࢂଞʨ˕८ࢇɼ࢑Еˁࡉ߾Еࢇࢂձࢿ̛ଟ̀չɼ࢑ࡸࡶ˶ࡵ ୛࢕Ի੼एଜࠆߞଞЬ  ‫ؿ‬ଵ࢕ɼࢿତࡶࣱܹଜए߉ࡵˁࡉ˃ߟࡵ‫ؿ‬ଵ˃ߟ࢕ࢂঐߟۘࢂ࣏ʢӖЕ к‫یࢽߟࢂࢷࢇࢂ࢕ی‬ତ߾̛ଜࠆଢࢂଞʨࡳԻ‫ق‬Ь

ࢿࢸ‫ؼ‬ଲˀߜࡿ̘ɻ ࢼ࣌‫ؼ‬ଲˀߜࡿ̘ɻ  ‫ؿ‬ଵ˃ߟࢂ̛ɾࡵϗࢇЬࡢଵࢂ‫ق‬ओ߾ҬԂк‫࢕ی‬ЕЬհ̛ɾࡶଢࢂଟܹ ࢑Ь  ࢿତࡵࢉ‫ؿ‬ଵ߾Еࢶࡈଜए߅ТଞЬ

ࢼ࣌ࠆ࢝  ࢿ࣏߾̍ࢽѹϗࢂ̛ɾࢇए΢ˁࡉ߾˃ߟࡵЬࡸˁࡉձࢿ࠹ଜˈЕࠉ ࢠѹЬ D ‫ؿ‬ଵ࢕ɼࢶ߭Ѧ˃ߟࢂփՎʎࡖࢇࢷ߾ۘо؏߾ʯʼࢽࢂࢇࡪձָ‫ݤ‬ଜ ࠆ۰ִࡳԻ੼एଞˁࡉ E ‫ؿ‬ଵ˃ߟ࢕ɼࢶ߭Ѧ˃ߟ̛ɾࢂࣗՎࢊӖЕ‫ؿ‬ଵ࢕ࢂ‫ؿ‬ଵՎঐ˱۰ࢂܹԶ ୯ʎࡖࣸΟࣸࢂʨࡳԻۘо؏߾ʯ۰ִࢂ੼एձଞˁࡉЬփ୯࢕ࢂˁ ࡉ̐ʎࡖࢂ̛ɾࡵ˶ࡵ୛࢕Իঐ˱۰߾ָ୙஢̛ܽଞˁࡉ߾ଞଜࠆ̛ ‫ۏ‬ѹЬ  ࢿତE୎ࢂীए߾ҬԂ੼एЕ؈‫ܞ‬ई‫ࡪݤ‬୪ଞʨࡳԻ‫ق‬Ь

ࢼ࣌ߜ˔࣌ଡ˒࣌ʟࡿ‫س‬ʾ  ࢿ࣏߾ҬԂࠉࢠѹ‫ؿ‬ଵ˃ߟ߾۰‫ؿ‬ଵՎӖЕ‫ؿ‬ଵ˃ߟࢂЬհߟ˗࣏ତӖ Е࣏ʢࡶ‫ض‬ˁଜѦԼ‫ؿ‬ଵ࢕߾ʯରࡈଜЕߟ˗ࡵЬࡸࡶ̍ࢽଜए߉ࡳִ‫ה‬୪ ࢇЬ D ‫ض‬ˁࡵЬࡸ‫߾ࢷࢇࢠࠉࢂء‬Е୪ԯࢇ߷ࡶʨ E ‫ؿ‬ଵ࢕ɼୃࢢࢂ˃ߟ̛ɾࢇփՎѸ̛ࢷН߭Ѧʎࡖΰ߾‫ؿ‬ଵ˃ߟ࢕߾ʯ ۰ִࡳԻ‫ض‬ˁࡶ੼एଟʨ F  ੼एЕ‫ؿ‬ଵ˃ߟ࢕߾ʯࣗՎଟ̀չɼ࢑ЬЕʨ˕ࣗՎଟ̀չձଭ‫ی‬ଜए߉ Еˁࡉࢂʼ˕ձΰࡈࡳԻଟʨ  ࢿତࡵ‫ض‬ˁߟ˗ࢂ୪ԯ߾оଞЬհ࣏ʢ߾ࠒଯࡶ‫׵‬৔ए߅ТଞЬ

ࢼ࣌‫ؼ‬ଲ‫˅ۉ‬؅۟୬ࡿˀߜࣔՋ  ‫ؿ‬ଵ‫ࢂˈی‬؈ۢ୯˃ߟࢂࣗՎձ̍ࢽଜЕ࣏ତࡵЬࡸˁࡉɼ߅Тִ‫ה‬୪ࢇЬ D ߦк‫߾࢕ی‬ʯࣗՎࢂ̀ଞࡶٕࠆଜˈ E ࢉ‫ؿ‬ଵ˃ߟࢇ߅Хʨ  ࣗՎࢂ̍ࢽ˕̀ଞࢂଭ‫ی‬ЕଢкଥߞփଞЬ  ‫ࢿח‬ѹк‫࢕ی‬ɼ‫ؿ‬ଵ‫ࢂˈی‬؈ۢࡶࢉ‫ݥ‬ଞ୯ʎࡖΰ߾Ьհк‫߾࢕ی‬ʯ۰ִ ࡳԻࣗՎࢂ੼एձଜए߅ТଞˁࡉࣗՎࢂ̀չЕ‫ֵܕ‬ଞЬ  ࢿତ߾Ҭհ੼ए࣯୯߾‫ؿ‬ଵۘ‫ࣗࡵࢠؿ‬ՎଞЬ

639

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢿࢸ‫ؼ‬ଲ࢒ࡿˀߜ୬ࢺ‫ࢼؼ‬ːࡿ‫ב‬ ࢼ࣌ࢇ‫ࢼؼࢺ؃‬ːࡿ‫ב‬ ˃ߟ̛ɾѰ߇‫ؿ‬ଵ࢕Е‫ؿ‬ଵ˃ߟ࢕߾ʯए঑߷ࢇۘ୎࣯ࠪ‫࢕߶یܕ‬ҟԼ‫ࢂࢺق‬ ࣯‫ࡶߟ˃ࠪܕ‬঑ʼଞоչࢺࢇΟएࢺࢂ࣯‫˗߾ܕ‬ଜࠆ‫ض‬ˁѹࢽ‫ؿ‬ձ۰ִࡳԻࢿ ˓ଜࠆߞଞЬ

ࢼ࣌࠾঍߻ҩխ‫ؼࢺْۼ‬  ‫ؿ‬ଵ˃ߟ࢕ɼࡁঐଜЕˁࡉ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ˃ߟ࢕߾ʯए঑߷ࢇ˗԰ࢽ‫ؿ‬ձࢿ ˓ଜࠆߞଞЬ D ɼМଞଞ‫ؿ‬ଵ࢕߾ʯଢչࢶࡳԻ̛оଟܹ࢑Е˃ߟࢂࢇଭ߾˗ଞֻҘ‫ی‬ ତ E ‫ؿ‬ଵ˃ߟ࢕ࠪ঑ʼଞʨ˕ʋࡵࡪ୉ࢂ‫ؿ‬ଵ˃ߟ߾оଜࠆ‫ؿ‬ଵ࢕ɼࢿ˓ଞۚ Իࡋ૲ࣱߟ˗  ‫ؿ‬ଵ˃ߟ࢕ࢂࡁঐ˕‫ؿ‬ଵ࢕ࢂࡻзࡵ۰ִࡳԻଭଜࠆࣇߞଞЬ

ࢿࢠ‫ؼ‬ଲࣵʋ࢒ ࢼ࣌‫ؼ‬ଲָओлնࢆࡿ˽ଛ  ‫ؿ‬ଵֻखоչࢉࡵୃଭ‫ؿ‬ଵ‫߾הݨ߶ۏ‬ҬԂ‫ؿ‬ଵ࢕ձоչଜࠆֻҘଭࡢձˈ ࡈ‫ࡢإ‬ΰ߾۰ଟܹ࢑Ь‫ؿ‬ଵֻखоչࢉࢂ̀ଞ߾оଞࢿଞࡵ‫ط‬ʎࢂ۰զԻ ‫ؿ‬ଵ˃ߟ࢕߾ʯָ୙஢੼एѸ߭ߞଞЬ̐ԜΟ‫ؿ‬ଵֻखоչࢉࢂ̀ଞࡵࢶ߭ Ѧ‫ࡢإࡈˈࢿݨ‬ձ૦ଡଜࠆߞଞЬ  ߭Гˁࡉ߾Ѧֻखࢉࢂ̀ଞࡵЬࡸࢂ̀ଞࡶ૦ଡଜࠆߞଞЬ D ‫ؿ‬ଵ˃ߟ࢕߾ʯࢽ‫ؿ‬ձࢿ˓ଜˈߊռܹ࢑Ѐଞ E ‫ؿ‬ଵ˃ߟ࢕Իٕਫ਼੼एձܹԶଟ̀ଞ  ‫ؿ‬ଵֻखоչࢉࢇ̐ࢂˈࡈ˕ࢽ߾۰ߊߑʠΟߊ߅ߞବыࣸࡁଞࢽ‫ؿ‬Е‫ؿ‬ଵ ࢕ɼ߇ʨࡳԻ‫ق‬Ь

ࢼ࣌ ‫ࢠ࣯ࡶࢎܖࢷٸ‬ଜЕ‫ؿ‬ଵ࢕ࢂֻखоչࢉ ‫ؿ‬ଵ࢕ࢂֻखоչࢉࢇ‫ࣸܖࢷٸ‬ʎ࢕ࢎࡶ࣯ࢠଜִ۰‫ࢂ߾ئ‬ଥࣸʎ࢕߾ʯٕ˕ѹ ࢂ‫ה‬ձࡢ؆ଜЕଭࡢձଞˁࡉ‫ؿ‬ଵ࢕Е̐Ԝଞࡢ؆߾ॺࢎࢇ࢑Ь

ࢿࢠْ‫࡟ؼ‬ଲ ࢿࢸࠓ،࣌৑ ࢼ࣌ࠓ،࣌৑ࡿ‫ײ‬ ࠖ؏࣏৔Ԅ‫ؿ‬ଵ˃ߟۘ‫ؿ‬ଵ࢕ࢂॺࢎࢂࢽए࣏ʢࡳԻ‫ٕࠪࠆࢢ̛ނ‬Е˗˃߷ࢇ‫ؿ‬ ଵ‫ˈی‬؈ۢࢷ߾ઞࢽଭࡢࢂ࢖ࡢӖЕٕ࢖ࡢձ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕߾ʯࡁ˱ଜ Е࣏ତࡶࢂ‫׵‬ଞЬ

640

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢼ࣌‫ؼ‬ଲ࢒ࡿˀߜଢऌ˽  ࠖ؏࣏৔ձҬծए߅Тଞˁࡉ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ɼ‫ܘ‬ଥձࢊࡳ੄ࢂѦ ԻӖЕ‫ֻה‬ଜʯ̐չˈ‫ܘ‬ଥɼ؈ۢଟܹѦ࢑ЬЕʨࡶߊˈࢂ‫ה‬ձࡢ؆ଞʨ ࢇ߅Фଞ‫ؿ‬ଵ࢕߾ʯ˃ߟࡶࣗՎ‫̀੄ݤ‬ଞࢇ࢑ѦԼ̍ࢽѹ࣏ତࡵ୪ԯࢇ߷ Ь  ࠖ؏࣏৔ձҬծए߅Тଞʨࢇ‫ؿ‬ଵ࢕߾ʯߊԮएʠΟָؒଥऑҶԻٕਫ਼ʎࡖ ΰ߾‫ؿ‬ଵ˃ߟ࢕߾ʯଥए̀ࢇ۰ִࡳԻ੼एѸ߭‫ݨ‬ଭѸ߭ߞଞЬ‫ؿ‬ଵۘ‫ࢠؿ‬ ࡵଥएࢂҶ߾ࣗՎଞЬ

ࢼ࣌‫ؼ‬ଲ࢒ࡿֱॷ‫ࡧۉ‬  ࠖ؏࣏৔ձҬծए߅Тଞˁࡉ‫ؿ‬ଵ࢕ɼࢷٕӖЕࢊִٕॺࢇԂЕ࣏ତࡵ‫ܘ‬ଥ ձࢊࡳ੄ࢂѦԻӖЕ‫ֻה‬ଜʯ̐չˈ‫ܘ‬ଥɼ؈ۢଟܹѦ࢑ЬЕʨࡶߊˈ‫ؿ‬ ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ɼࠖ؏࣏৔ձࣱܹଜए߅Тଜࠆ‫ܘ‬ଥɼ؈ۢଞ‫ࡢإ‬ΰ ߾۰փࡪ୪ଜЬ  ࠖ؏࣏৔ձٕ࣯ࢂଜʯҬծए߅Тଡ߾ҬԂߞ̛ѹ‫ܘ‬ଥ߾оଥ۰Е˕‫ࢽࢂݨ‬ Ѧ߾ҬԂ‫ؿ‬ଵ̖ࢂʃߖࢇ̍ࢽѹָ୙ଞ࣏ତ߾̒ʠଜࠆ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ ଵ࢕Е‫ؿ‬ଵ̖ঐ˱̀ࡶɼऑЬ

ࢿࢸ࡟ଲࡿऋɹ ࢼ࣌࡟ଲࡿऋɹ߻˔ଛ࣌ଡ ‫ؿ‬ଵ˃ߟࢇٕ‫ࡢؿ‬ଵࢂऎɼ߾˗ଞ࣏ତࡶ૦ଡଜˈ࢑Еˁࡉ࣏̐ତࡵ‫ࢿח‬ѹࡢ ଵࢂऎɼɼࣸࡁଜˈ‫ؿ‬ଵ˃ߟָۘ‫ݤ‬ѹࡪ୉ࢇ߅Фˁࡉ୪ԯࢇ߷Ь

ࢼ࣌࡟ଲऋɹࡿ੹ऌࡿ‫ב‬  ߟ˗࣏ତࢇٕ‫ؿ‬ѹࡢଵࢂऎɼࢂ੼एձࡁ˱ଜЕˁࡉ੼एЕ੼एࢂࢂ‫ה‬ɼ࢑ ЕʨࡳԻ̍ࢽѹ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕ӖЕ‫ؿ‬ଵࢂ‫ࡢ˕ࢠؿ‬ଵ ऎɼࢂ࣑ࢢձߊ߅ߞବы࢕߾ࢂଥࢇଭѸ߭ߞଞЬ੉ࢉ߾ࢂଞ੼एѦࡪ୪ ଜЬ  ઞࢽଞ̛ɾΰ߾੼एѸ߭ߞଞЬˈࢽଥऑߟ˗ࢂˁࡉ̛̐ɾࡵۘкଜࠆߞ ଞЬ੼एЕ؈‫˕ܞ‬Ѱ‫߾ݤ‬୪ԯࢇ࢑Ь  ੼एࢂ‫ࡢה‬؆ࢂˁࡉ‫ܘ‬ଥࠪࡢଵऎɼࢂ੼एࡢ؆‫˃˗˕ࢉ߾ࢇی‬ɼ߷Еଞ ‫ࡢإࢂࢠؿ‬ΰࢂ‫ؿ‬ଵ‫ࢂˈی‬ʼ˕Իࢇ߭ऑ‫ܘ‬ଥ߾оଥ۰Е‫ؿ‬ଵ࢕Е‫ؿ‬ଵ̖ए ̗ࡶʠࢸଟ̀ଞࢇ߷Ь

ࢼ࣌ࣔՋֱࠧॷ  ٕ‫ࡢؿ‬ଵࢇऎɼѹҶ߾‫ؿ‬ଵ࢕ɼ˃ߟࡶࣗՎ‫࢑ܹ੄ݤ‬Ьˈ˃ߟ߾۰ࢽଞˁ ࡉ̐ऎɼɼ‫ؿ‬ଵ࢕߾ʯߊԮ࣌ʠΟָؒଥऑҶԻٕਫ਼ʎࡖΰ߾̐Ԝଞ̀չ Е‫ؿ‬ଵ˃ߟ࢕߾ʯ۰ִۘ੼एԻ‫ݨ‬ଭѸ߭ߞଞЬ  ‫ؿ‬ଵۘࢂ‫ࣗࢂߟ˃ࡵࢠؿ‬Վ୯ʎࡖ߾փՎѸʠΟ‫ؿ‬ଵ˃ߟ࢕ɼࢿ࣏ࢂ ࢂ‫ה‬ձˈࢂԻࡢ؆ଞˁࡉࣗՎ‫߾ࢺݤ‬փՎѹЬ  ࡢଵࢂऎɼԻࢉଥ‫ؿ‬ଵ‫ˈی‬ɼߞ̛Ѹ߹ˈ̐Ԝଞࡢଵࢂऎɼձ‫ؿ‬ଵ˃ߟ࢕ɼ ߊߑʠΟߊ߅ߞବˈ‫ؿ‬ଵۘࢂ‫ࣗࢇࢠؿ‬Վଜ̛ࢷ‫ؿ‬ଵ࢕ɼऎɼѹࡢଵࡶࢷ ୁࢉܹଜए߉ߑЬִ‫ؿ‬ଵ̖ࡵए̗Ѻܹ߷ЬЬփ‫ؿ‬ଵ࢕ɼऎɼѹࡢଵ߾ш

641

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ଜࠆ‫ؿ‬ଵՎձऎߖଜʠΟЬհ࣏ʢࡳԻࢉܹଞˁࡉ‫ؿ‬ଵ̖ࡵ‫ٸ‬ԷࢶࡳԻӖЕ ̐Ԝଞ࣏ʢ߾ҬԂए̗Ѻܹ࢑Ь

ࢿࢸ࡟ଲࡿʀ‫ܒ‬ ࢼ࣌࡟ଲʀ‫˒ʹࡿܒ‬  ࡢଵࢇୃࢵଜʯʃ‫ܕ‬ଞˁࡉ‫ؿ‬ଵ˃ߟ࢕Е࣑ࢗ‫ؿ‬ଵ˃ߟ̛ɾ߾оଞ‫ؿ‬ଵՎࢂ ʃߖࡶঐ˱ଟܹ࢑Ь  к‫࢕ی‬ɼঐ˱୯ʎࡖΰ߾‫ٸ‬Էࢶʃߖ߾ଢࢂձࢇՔए‫׃‬ଞˁࡉ‫ؿ‬ଵ˃ߟ࢕ Еঐ˱୯ʎࡖΰ߾۰ִ߾ࢂଞ੼एԻ˃ߟࡶࣗՎଟܹ࢑Ь

ࢿࢠ‫ؼ‬ଲՋ ࢼ࣌জୠ‫ؼ‬ଲՋӓВࢇ‫ؼٖݡ‬ଲՋ ‫ؿ‬ଵ࢕ɼটୣ‫ؿ‬ଵՎӖЕࢊ‫ݤ‬ٙ‫ؿ‬ଵՎࢂए̗ࡶ‫ؿ‬ଵ˃ߟࢂ঑ʼ‫۽‬վӖЕ‫ࢠؿ‬ ʎ‫ݤ‬ձ࣏ʢࡳԻଜЕˁࡉ࣏̐ʢࡵЬࡸ˕ʋए߅Тଜִ୪ԯࢇ߷Ь D ঐߟ࢕ɼ‫ؿ‬ଵՎձए̗ଟҶ̧ए‫ؿ‬ଵ‫ࢇࢠؿ‬ʎ‫ݤ‬Ѹए߅ТଞЬЕʨࡶָ୙ଞ ߯߭ձ‫ࡈی‬ଜࠆˁˈଜЕΰࡈࡳԻ࣏̐ʢࢇ۰ִࡳԻঐߟ࢕߾ʯ੼एѸˈ E D୎ࢂࡁʢࡶ঻࣐ଜЕঐ˱۰ࢂܹԶ୯‫ؿ‬ଵՎձए̗ଜए߅Тଞॹ࣯ɼˁ ˕ଜЕˁࡉ

ࢼ࣌ˀ‫ؼܓ‬ଲՋ  ˃‫ؿܖ‬ଵՎձए̗ଜए߅ТଜЕˁࡉ‫ؿ‬ଵ࢕ɼࡢଵࡶж‫ؿ‬ଟॺࢎࡶִଞЬЕ ʨࡶ̍ࢽଜЕ࣏ତࡵЬࡸ˕ʋए߅Тଜִ୪ԯࢇ߷Ь D ‫ؿ‬ଵ˃ߟ࢕ɼࢽ୙ଞ‫ؿ‬ଵՎࢂߖ˕ए̗ࢊ࢕ձ̛ࢢଜЕঐ˱۰ձܹԶଜࠑ ࡶʨ E ‫ؿ‬ଵՎए̛̗ࢊ୯ए̗ଟࢽ୙ଞ‫ؿ‬ଵՎࢂߖࡶ‫ؿ‬ଵ˃ߟ࢕߾ʯ̛ۘ‫ˈੁݤ‬ ࢶ߭Ѧ࣯ࢂ঴ɼ̛ɾࡶٕࠆଜˈѦए̗Ѹए߅Тଟˁࡉई‫ؿݤ‬ଵۘ‫ࢠؿ‬ ࢇࣸЯѻࡶ‫ؿ‬ଵ˃ߟ࢕߾ʯߊռʨ F  ‫ؿ‬  ଵՎձए̗ଜए߅ТଞॹE୎ࢂ঴ɼ̛ɾࢇփՎଜࠑࡶʨ  ‫ࢿ࣏ق‬ତE୎ࢂ঴ɼ̛ɾࢇփՎଞ୯߾Е‫ؿ‬ଵ࢕ЕִॺѹЬ˃ߟࢇࢿ ࣏߾ҬԂࣗՎѸए߅ТଜЕଞ‫ؿ‬ଵ˃ߟ࢕ɼए̗ଜࠆߞଟ̖ߖࡶए̗ଜЕई ‫ؿݤ‬ଵۘࢂ‫ࢠࡵࢠؿ‬ԎձଯଜࠆࢢʎѹЬ

ࢼ࣌ˀߜࡿࣔՋ  ࢿ࣏E୎ӖЕࢿ࣏ࢿତE୎߾۰ࢽଞ̛ɾࢇփՎଞҶ߾‫ؿ‬ଵՎձ ए̗ଜए߉ࡳִࢿ࣏E୎߾Ҭհফˈ߾‫ؿ‬ଵ࢕ɼ˃ߟࡶࣗՎଟ̀ଞࢇ࢑ ЕʨࡳԻ̛ࢢѹˁࡉ‫ؿ‬ଵ࢕Е۰ִࢂ੼एԻ˃ߟࡶࣗՎଟ̀ଞࢇ࢑Ь  ‫ؿ‬ଵ࢕ɼЬࡸࢂ‫̛ࢿࡶܞܕ‬ଜए߉ЕЬִ˃ߟࢇࣗՎѹʨࡳԻɾ࣯ଞЬ D ࢿ࣏E୎߾̍ࢽѹ̛ɾࢂփՎ୯ʎࡖΰ߾টୣ‫ؿ‬ଵՎए̗ӖЕ E ࢿ࣏ࢿତE୎߾̍ࢽѹ̛ɾࢂփՎ୯ʎࡖΰ߾˃‫ؿܖ‬ଵՎࢂए̗

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Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢼ࣌‫ؼ‬ଲՋࡿɹٔ‫ۺ‬ ˃ߟ̛ɾࢇփՎଜ̛ࢷ߾‫ؿ‬ଵ˃ߟࢇࣗՎѹˁࡉ‫ؿ‬ଵ࢕ЕࣗՎѸ̛ࢷࢂ̛ɾ߾ оଥ۰փ‫ؿ‬ଵՎձঐ˱ଟܹ࢑Ь

ࢼ࣌‫ؼ‬ଲՋࡿऌ̔঍ˮ˽ ‫ؿ‬ଵ࢕ЕЬࡸࢂˁࡉࢿ࢕ࢂए̗ࡶʠࢸଟܹ߷Ь D ࢿ࢕ɼ‫ؿ‬ଵ˃ߟ࢕ࢂѰࢂଜ߾ए̗ଞˁࡉӖЕ E ࢿ࢕ɼ‫ؿ‬ଵۘ‫ࡪࡶࢠؿ‬एଜЕіࢶ‫ئ‬ଞࢇ࢈ࡶɼएˈ‫ؿ‬ଵ˃ߟ࢕ɼए̗ଜए ߉ߑʠΟ‫ؿ‬ଵ˃ߟ࢕ɼए̛̗ࢊ߾ए̗ଜए߅Тଟʨࢇָؒଞˁࡉ

ࢿࢠ‫ؼ‬ଲ‫˅ۉ‬ ࢼ࣌‫ؼ‬ଲ‫੹ࡿ˅ۉ‬ऌ  ‫ؿ‬ଵ‫ࢂˈی‬؈ۢࡵ੼एࢂ‫ה‬ɼ࢑Е࢕ӖЕ‫ؿ‬ଵۘࢂ‫ࢢ࣑ࢇࢠؿ‬ଞЬЕ‫؀ݨی‬ ‫ؿ‬ଵ‫ࢂˈی‬؈ۢࡶߊ߅ߞବы࢕Ի̍ࢽѹ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈ ࢕߾ࢂଥ‫ؿ‬ଵ࢕߾ʯ੼एѸ߭ߞଞЬ੉ࢉ߾ࢂଞ੼एѦ୪ԯࢇ࢑Ь  ̐Ԝଞ੼एЕए঑߷ࢇࢇՔ߭ࣇߞଞЬ੼एЕ؈‫˕ܞ‬Ѱ‫߾ݤ‬୪ԯࢇ࢑Ь੼ एɼઞࢽ̛ɾΰ߾ࢇՔ߭एѦԼࢽଞ˃ߟࢂˁࡉ̐Ԝଞ̛ɾࡵۘкଞ̛ɾ ࢇ߭ߞଜֲ߭ҿଞˁࡉ߾Ѧࢊ‫׵‬փࢇ߭۰Е߅ТѹЬ  ए̗Ѹ߭ߞଟ‫ؿ‬ଵ̖ࡵ‫ؿ‬ଵ‫੼ࢂˈی‬एɼٕкଜʯएࠉѻࡳԻ‫ؿނ‬ଵ࢕ɼ‫ܘ‬ ଥձ࢏߹ࡸࡶऎָଜЕ‫߾ࡢإ‬۰ʃߖѹЬ

ࢼ࣌঍ˮ‫࣌ୃݡ‬  ‫ؿ‬ଵ˃ߟ࢕ଔ‫ؿ‬ଵ࢕ӖЕ‫ؿ‬ଵܹ࢈࢕Еଢչࢶࢉࡁ˱߾ࡻଡࡳԻ‫ؿނ‬ଵ‫ࢂˈی‬ ࣏‫߾ی‬۰ઞ஢Ьࡸࢂʨ߾‫ؿ‬ଵ࢕߾ʯ୆࣏ଥߞଞЬ ė ‫ؿ‬ଵ‫˕ࢉࡕࢂˈی‬ʼ˕߾˗ଞࢽ‫ؿ‬ ė ‫ؿ‬ଵ‫ࢂˈی‬۰զ̛ࠪ੉ऎʠ ė ˗԰ѹࢠ‫̒ࢻࢂ߾ܕ‬  ࢿତ߾۰ࢽଞ‫ی‬ତࡶࡢ؆ଜˈࢿତ߾ଥкѸЕˁࡉए̗Ѻ‫ؿ‬ଵ̖ࡵ̐ࡢ ؆ࡳԻࢉଜࠆ‫ܘ‬ଥձ࢏߹ࡸࡶ‫ؿ‬ଵ࢕ɼऎָଜЕ‫߾ࡢإ‬۰ʃߖѹЬ  ‫ܘ‬ଥձߞ̛ଟࢂѦԻӖЕ‫ֻה‬ଜʯ̐չˈ̐‫ܘ‬ଥɼ؈ۢଟएѦֻհЬЕʨࡶ ߊˈࢿତࡶࡢ؆ଞˁࡉ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ̖ࡶए̗ଟॺࢎࢇ߷Ь

ࢼ࣌঍ˮࡿ‫ݠ‬Ν  ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ̖ঐ˱ձ୙ࢽଜ̛ࡢଥֻҘଢչࢶЯ˃ձई‫ࢇݤ‬ଭଥߞଞЬ  ‫ؿ‬ଵ࢕ɼ˗԰ѹ۰զ̛ࠪ੉ࢽ‫ؿ‬ձܹԶଞ୯ʎࡖΰ߾‫ؿ‬ଵ̖ঐ˱ձʠࢸଜ ʠΟ̐ࢇࡪձ̛ࢢଞ۰ִࢂ੼एԻ‫ؿ‬ଵ̖ঐ˱ࢂ‫ݣ‬Πࡶࠉ̛ଜए߅ТଜЕଞ ‫ؿ‬ଵ̖ঐ˱Е‫ݣ‬ΠѹʨࡳԻ‫ق‬Ь

ࢼ࣌ࢄପ̘  ঐ˱ɼ؇߅Қࠆएִ‫ؿ‬ଵ࢕Еए঑߷ࢇ‫ؿ‬ଵ̖ࡶए̗ଜʠΟ˃ߟۘߟࢽѹ̗ ٕձଥߞଞЬ  ঐ˱ࢂফࣗɼߖࢇ‫ࢽۏ‬Ѹए‫׃‬ଜЕˁࡉ߾Ѧঐ˱̀࢕Еࢶ߭ѦࢊٕԂѦঐ˱ ଟ̀ଞࢇ࢑ˈࢇࢊٕЕए঑߷ࢇए̗ѸʠΟࢿ˓Ѹ߭ߞଞЬ

643

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

 ࢿତӖЕࢿତ߾˗˃߷ࢇ‫ؿ‬ଵ̖ए̗ࡵ‫ؿ‬ଵ̖ࢷ঑ӖЕ̐ࢊٕࢂঐ˱߾ оଞ‫ݣ‬Π‫ࢽۏ؀‬୯࣯ࢊࢇΰ߾ଭଜࠆࣇߞଞЬ

ࢼ࣌ࢄପऌ঎  ࢿ࣏߾ҬԂ‫ؿ‬ଵ̖ࢇए̗Ѹए߉ࡵˁࡉঐ˱̀࢕Еଥк‫ؿ‬ଵ̖ࢇए̗ Ѹ߭ߞଟ‫߾̛ݤ‬؈ۢଜЕࢇ࢕ձঐ˱ଟ̀չɼ࢑ˈࢷ؆̛঎Τࢇࢷফ̒ࢂ ࡪԡࣸߒࡵଭ߾ࢂଥ‫ݤ‬ଭѹоষࢿѦ߾ࢇ࢕࡭ࡶࢶࡈଡ߾࢑߭۰Еձ঴ɼ ଥߞଞЬ  ঐ˱̀࢕Е‫ؿ‬ଵ̖ࢂए̗ए঑Իߞ̛ѹ঴ɼ‫ܘ‬ଥ߾оଞؑۘࡶঐ˱ଟ̀ଞࢇ ࢑Ь

ࢿࢠ‫ݡ‬୧ ࢼ࣌‫ؼ‬ଲՋऌ̔ࡿ঍ˮ ‫ؿ‬ଵՎए̗ࢂঐ˱Еए̗ࢊԻٕਫ਼ϗࢇˁ˕ଜִ‫ݤֵܕ‬୪ɼࠬ‫۽‬ѹЬ

ࢼ࣌‫ؼ‬ଲْ̔ࡿ঍ˮ  ࢊ؆ࢶࡳԻ‫ؿ‬ଵ̗ٕࢂঐ˱Еࢿ࣏߾ҬԂ‫ؿ‬ଵ࢕ɼঐ˱߾оଜࠆফࣗʼ ࢽࡶଜʠΟଞʨࡳԻ‫ࢇؿ‬ЕΤԻٕਫ਼ϗࢇˁ˕ଜִ‫ݤֵܕ‬୪ɼࠬ‫۽‬ଞЬ̐ ԜΟ߭ҿଞˁࡉԂѦঐ˱Е‫ؿ‬ଵ‫ˈی‬؈ۢ୯Н߭Ѧϗΰ߾Еࢿ̛Ѹ߭ߞ ଜएփ̐ۘк̛ɾࢇϗࢉָۢ‫ؿ‬ଵࢂˁࡉЕࠖ࠹ԻଞЬ  ָۢ‫ؿ‬ଵࢂଥए୚̗̖ࢂए̗ঐ˱Е‫ؿ‬ଵ˃ߟ࢕ɼ‫ؿ‬ଵ࢕Իٕਫ਼ফࣗ˃‫ۏ‬۰ձ ܹԶଞΤԻٕਫ਼ϗࢇΰ߾ଥߞଞЬ̐ԜΟН߭Ѧঐ˱Еָۢ‫ؿ‬ଵ˃ߟࢂࣗ ՎࢊԻٕਫ਼ϗΰ߾ЕଥߞଞЬ

ࢼ࣌‫ݡֲܒ‬୧߻˔ଛ̘੆‫ࢼה‬ ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕ࢿ࣏ࠪࢿ࣏߾ҬԂࡪԡ˃ߟ‫ࡕئ‬৕ࢿ࣏߾۰ ࢿ̧࣏एЕ‫ؿ‬ଵ˃ߟࡳԻࢉଜࠆ̛ۢЕ‫ؿ‬ଵ̖ঐ˱߾ࢶࡈѹЬ‫ؿ‬ଵ˃ߟࡵࡪ ԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕ࢿ࣏ࢿତ߾ҬԂࢇ̍ࢽҚࡶؑࢿଟܹ࢑Ь

ࢿٕ‫ܕ‬ଢ‫ؼ‬ଲ̊ࢺࢇ‫؃‬ ࢿࢠ‫ؼ‬ଲ̓ߓ˒‫ؼ‬ଲɹߓ ࢼ࣌নлऌ̔ɹЙ̓ߓ  ‫ؿ‬ଵ࢕Еଔ‫ؿ‬ଵ࢕ɼ‫ܘࢿݨ‬ଥࢂ‫ࡢࡶۘؿ‬ଥଗࡁଞ̖ߖࢇۘࡳԻए̗ଟࢂ‫ה‬ Е߷Ь  ‫ؿ‬ଵּࢶ‫ࢂי‬ɼߖࢂଢࢂձ̍ࢽଞߟ˗ۘࢂ࣏ତࡵɼߖࢇଢࢂѹ‫ؿ߾ࢺݤ‬ଵ ˃ߟ࢕୏ࡵଔ‫ؿ‬ଵ࢕ࢂ‫ݤࢂ̛ی‬ѦӖЕˈएࢂ‫ࡢה‬؆߾ࢂଞʨࢇ߅Фଞ‫ؿ‬ ଵּࢶ‫ࢿݨࢂי‬ɼߖࡶφ߭۰Е̖ߖࡳԻଢࢂѸ߹ЬଟएԂѦࡪ୪ଜЬ

ࢼ࣌ࢇْ‫ؼ‬ଲ  ‫ؿ‬ଵ‫ࢂˈی‬؈ۢ‫ؿ߾ݤ‬ଵ̖ߖࢇٕ‫ؿ‬ѹࢢ‫ࢂۏ‬ɼߖ‫ؿ‬ЬࢶࡶएԂѦ‫ؿ‬ଵ࢕Е ٕ‫ؿ‬ѹ‫ܘࢿݨ‬ଥ߾оଥ‫ؿ‬ଵ̖ߖ̧एփॺࢎࢇ࢑Ь

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Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

 ‫ؿ‬ଵ࢕ɼࢿତ߾ҬԂ‫ؿ‬ଵۘ‫˓ࢿࡶࢠؿ‬ଜЕˁࡉ‫ˈی‬؈ۢ‫ݨࢂۏࢢࢂࢺݤ‬ ࢿɼߖࡶଞѦԻଜࠆ‫ٸ‬ԷԻ‫ۘؿ‬ଟ̖ߖࢂ̛টԻଜЕ‫ؿ‬ଵࡶо߇ࡳԻࢿ߇ଟ ܹ࢑Ьࢇˁࡉ߾ࢿ࣏߾ࢂଞ‫ܘ‬ଥ؏ए‫ࡵࡈٸ‬Ѱࢊଞ‫࡭ٸ‬Ի‫ۘؿ‬ѹЬ

ࢼ࣌জ˒‫ؼ‬ଲࡿʾࡆ࣌ʟࡿ࣌ࢺ  ‫ؿ‬ଵ̖ߖࢇ˃ߟٕۘ‫ؿ‬ɼМଞফо‫ܘ‬ଥߖࡶφ߭۰Еˁࡉߦк‫࢕ی‬Е‫ؿ‬ଵ̖ ߖࢂʃߖ˕ࢗࠆ‫ؿ‬ଵ̛ɾ߾ۘࡻଜЕ‫ؿ‬ଵՎࢂʃߖࡶࡁ˱ଟܹ࢑Ь  ߦк‫࢕ی‬ɼʃߖঐ˱ձʎࡖΰ߾ଢࢂଜए߉Еˁࡉߦк‫࢕ی‬Е˃ߟࡶࣗՎ ଟܹ࢑Ь

ࢼ࣌ࣵ‫ؼؽ‬ଲ  Ѱࢊଞଔ‫ؿ‬ଵࢇ࢈ࢇָࢇۘࢂ‫ؿ‬ଵ࢕߾ࢂଜࠆΟЈ߭۰ٕ‫ؿ‬ѹˁࡉଔ‫ؿ‬ଵ ࢕Е̐ɼ‫ࢿݨ‬Ի࢏ࡵ‫ܘ‬ଥձ‫ۘؿ‬؇Еіଗࡁଞ‫߾߇ࡢإ‬۰ࢉӖЕЬܹࢂ‫ؿ‬ ଵ࢕߾оଜࠆ‫ࡶۘؿ‬ঐ˱ଟܹ࢑Ь  ঐ˱ձ؇ࡵ‫ؿ‬ଵ࢕ЕЬհ‫ؿ‬ଵ࢕ɼٕжଟٕٗࡶ৚ଥଜए߉ˈ‫ܘ‬ଥ؏ए‫ࡈٸ‬ ˕ଡ͉‫ؿ‬ଵ˃ߟۘࢂ‫ؿ‬ଵ̖ߖ̧ए‫ۘؿ‬ଜࠆߞଞЬ  ࢿତ߾۰̍ࢽଜˈ࢑Е‫ؿ‬ଵ࢕ɾࢂ̀չࠪࢂ‫ה‬Е‫ؿ‬ଵ࢕ɼଔ‫ؿ‬ଵ࢕߾ʯ‫ۘؿ‬ ॺࢎࢇ࢑Е̖ߖࢂ‫࡭ٸ‬Իٗଟଜࠆॺࢎࢇ࢑Ь

ࢿࢠ‫߻ەؼ‬лଛ˽ն ࢼ࣌‫ܕ‬ଢࡿࢆ˒˔ˀ  ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ɼ‫ܘ‬ଥձࢊࡳ੄ࢂѦԻӖЕ‫ֻה‬ଜʯ̐չˈ‫ܘ‬ଥɼ ؈ۢଟܹѦ࢑ЬЕʨࡶߊˈ࢖ࡢӖЕٕ࢖ࡢԻ؈ۢଞ‫ܘ‬ଥ߾оଥ۰Е‫ۘؿ‬ ؇ࡶ̀չɼ߷Ь  ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ࢂ˕‫ࢽࢂݨ‬Ѧ߾ҬԂ‫ؿ‬ଵ̖ࡶʃߖଞЬˈ̍ࢽଞ‫ؿ‬ ଵ˃ߟۘࢂָؒଞ࣏ତ߾̒ʠଜࠆ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕Е˕‫߾ݨ‬Ҭհ࢖ ࡢӖЕٕ࢖ࡢԻࢉଞ‫ܘ‬ଥ߾оଜࠆ‫ۘؿ‬؇ࡶ̀չɼ࢑Ь  ࢿତ˕ࢿତࢂীए߾ҬԂ‫ܘ‬ଥࢂࢉ˕˗˃Е‫ܘ‬ଥձ؏एଜʠΟˁʃଜए߅ Тଞʨࡶ૦ଡଞЬ

ࢼ࣌‫ܕ‬ଢ،ऌ‫ࡅٵ‬  ٕ‫ؿ‬ѹ‫ܘ‬ଥձˁʃଜ̛ࡢଜࠆ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕߾ࢂଜࠆীଜࠆऑ࣏ ৔ɼ‫˓۽‬ଜए‫׃‬ଜшԂѦ࣏৔ࠪ˗԰ଜࠆ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ɼࢇԜଞ ۘଢ଼߾۰ۘкଜЬˈશЯଞ‫̧ࡢإ‬एটԎѹ‫ࡈٸ‬ӖЕ̐Իࢉଞ‫ܘ‬ଥձ‫ؿ‬ଵ࢕ Е‫ۘؿ‬ଜࠆߞଞЬ  ٕ‫ؿ‬ѹ‫ܘ‬ଥࢂ‫ࢿ˕ߖۘؿ‬ତ߾ҬԂীଞ࣏৔Իࢉଜࠆए̗ଟ‫ؿࢇࡈٸ‬ଵ̖ ߖࡶট˕ଜЕˁࡉ߾Ѧ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕߾ʯ‫ۘؿ‬ଜࠆߞଞ Ь

645

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢿࢠл࡟˽ ࢼ࣌л࡟  ‫ࢿ࣏ق‬ତ߾ҬԂ‫ؿ‬ଵ࢕Еଔ‫ؿ‬ଵ࢕߾ʯ‫ۘؿ‬ଞ‫ࡢإ‬ΰ߾۰ࢂ‫ܘ‬ଥ߾оଜࠆ ॺࢎࢇ࢑Еࢿ࢕߾оଜࠆоࡢ̀ࡶଭ‫ی‬ଟ̀չձɼऑЬ  ଔ‫ؿ‬ଵ࢕ɼࢿ࢕߾оଞ̀չձ૦̛ଜЕʨࢇ‫ؿ‬ଵ࢕ࢂоࡢ̀ࡶ৚ଥଜЕˁࡉ ଔ‫ؿ‬ଵ࢕Е‫ࢿח‬ѹ‫ܘ‬ଥ߾оଞ‫ۘؿ‬ঐ˱̀ࡶۘ‫ݨ‬ଞЬ  ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ӖЕଔ‫ؿ‬ଵ࢕ࢂɼ࣐ࢂ˱‫ؿࡕ۽‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ ଵ࢕߾оଜࠆѰҟଞ‫ی‬ୣࢶ˗˃߾࢑Е࢕ӖЕ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ࢂ ଔࡈࢉࢂࢂѦࢶࢇʠΟ‫ֻה‬ଜʯ̐չˈ‫ܘ‬ଥɼ؈ۢଟܹ࢑ЬЕʨࡶߊˈ‫ܘ‬ଥ ձߞ̛ଜࠑࡸࡶऎָଞˁࡉձࢿ࠹ଜˈ‫ؿ‬ଵ࢕ЕࢇҚ߾оଜࠆоࡢ̀ࡶଭ‫ی‬ ଟܹ߷Ь  ‫ؿ‬ଵ࢕Еଔ‫ؿ‬ଵ࢕߾ʯ‫ܘ‬ଥɼѺоࡢ̀ࢂଭ‫ی‬ձଟܹ߷Ь

ࢿࢠ‫ؼ‬ଲˀߜ࢒ɹ߂С଑‫ؼ‬ଲ࢒ ࢼ࣌଑‫ؼ‬ଲ࢒ࡿ˽ն  ‫ؿ‬ଵ˃ߟ࢕ࢇ࠹ࢂ࢕ձࡢଜࠆࢉܹѹ‫ؿ‬ଵࢂˁࡉ‫ؿ‬ଵ‫ˈی‬ɼ؈ۢଜִ̐੉ ࢉࢇ‫ؿ‬ଵ̖ঐ˱̀ࡶɼऑЬ  ‫ؿ‬ଵ˃ߟ࢕ЕЬࡸࢂˁࡉࣸଜΟɼ߅Тִ‫ؿ‬ଵۘ‫ࡶࢠؿ‬ঋୣଟܹ࢑Ь D ‫ؿ‬ଵऎ̀ࢇбչ̍ࢽଜЕˁࡉ E ‫ؿ‬ଵ‫ˈی‬ɼ؈ۢଞˁࡉ  ঋୣ߾оଞ۰ִࢂ੼एɼ‫ؿ‬ଵ࢕߾ʯ؈‫ܞ‬ѹҶঋୣࢂ୪˕ɼ؈ۢଞЬ

ࢼ࣌଑‫ؼ‬ଲ࢒ࡿࢆऌ ‫ؿ‬ଵ˃ߟ࢕ɼ‫ؿ‬ଵ࢕߾ʯࣸࡁଞࢽ‫ؿ‬ձࢿ˓ଟࢂ‫ה‬ɼ࢑Еˁࡉࢿ࣏߾Ҭհ ࢕ɼଔ‫ؿ‬ଵ࢕Ի۰ࢂ࢕‫ࢂݦ‬एࡢձߊˈ࢑ए߉Еଞଔ‫ؿ‬ଵ࢕ɼߊˈ࢑Еʨࡶ ‫ؿ‬ଵ˃ߟ࢕ɼ߇ʨࡳԻ‫߷ܹك‬Ь

ࢼ࣌ࢆࡿ଑‫ؼ‬ଲ࢒߻ࡿଛࡿ‫؃࡟ב‬ ࢉࢂଔ‫ؿ‬ଵ࢕߾ࢂଞࢂ‫ࡢה‬؆ࡵ̐ࡢଵࢇ˓ѰࡳԻٕ‫ؿ‬Ѹए߅ТଜЕଞѰࢊଞ ‫ؿ‬ଵ˃ߟۘࢂЬհଔ‫ؿ‬ଵ࢕ࢂ̀չ߾ٙչଜʯࠒଯࡶ‫׵‬৔ए߉ЕЬ

ࢿࢠ଑‫ؼ‬ଲ࡟ଲ ࢼ࣌ ଔ‫ؿ‬ଵࡢଵࢂʼࠆ  ଔ‫ؿ‬ଵࡢଵࢇ˃ߟ঑ʼ‫ڸݤ‬փ߅ТԂ‫ؿ‬ଵ̛ɾѰ߇߭Г‫߾ࢺݤ‬Ѧ࣑ࢢଜए߅ ТଜЕˁࡉ‫ؿ‬ଵՎձए̗ଟଗࡁɼ߷ЬЬփ‫ؿ‬ଵ࢕Еएষѹ‫߾ࡈٸ‬оଜࠆ ۘкଞ̖ߖࡶঐ˱ଟܹ࢑Ь  ଔ‫ؿ‬ଵࡢଵࢇ‫ؿ‬ଵ̛ɾѰ߇шࢇ࣑ۘࢢଜए߅ТଜЕˁࡉ˃ߟࡵ‫ؿ‬ଵ࢕߾ʯ ̐ʨ߾ˈ˗ଥ੼एѹ‫ٕࢺݤ‬ਫ਼ࣗՎѹʨࡳԻ‫ق‬Ь

646

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢼ࣌ ‫ؿ‬ଵּࢶ‫ߦࢂי‬Ѧ  ଔ‫ؿ‬ଵࢢ‫ߦࢇ̀ࡪܕࢂۏ‬Ѧѹˁࡉ‫ؿ‬ଵ˃ߟ࢕ࠪߦܹࢉࢇ‫ؿ‬ଵ˃ߟࡶшࢇհ ‫ࣗ߾ࢺݤ‬ՎଜЕіଢࢂଜए߅ТଜЕଞߦѦ‫ٕࢺݤ‬ਫ਼ʎࡖ୯߾‫ؿ‬ଵ˃ߟࡵࣗ ՎଞЬࢇࡕ৕ࡵ‫ؿ‬ଵ˃ߟࢇࢠԎࢂߦܹࢉࡶࡢଜࠆࢉܹѹˁࡉ߾Еࢶࡈଜए ߅ТଞЬ  ࢢ‫ࡵࢉܹߦࢂۏ‬ଔ‫ؿ‬ଵࢢ‫ࢷࢇࢇۏ‬ѹҶԻٕਫ਼ଔ‫ؿ‬ଵ࢕Ի‫ق‬Ь  ࢿତ˕ࢿତࡵЬࡸࣸଜΟࢂˁࡉ߾ЕࢶࡈѸए߅ТଞЬ D ‫ؿ‬ଵ࢕‫ؿ‬ଵ˃ߟ࢕̐չˈߦܹࢉࢇбչߟࢽଜЕˁࡉ E ۘ‫ࢂ߾ܖ‬ଥ‫ࢷࢇࢇ̀ࡪܕ‬ଜЕˁࡉ

ࢿٕࢺߓ‫ؼ‬ଲ̊ࢺࢇ‫؃‬ ࢿࢠଭࡅ‫ۺ‬ ࢼ࣌ࢺߓ‫ؼ‬ଲ ۘଥʢʈָۢ୐ࢉষۢӖЕ̛੉ࢉ‫ؿ‬ଵփࢇࢽߖ‫ؿ‬ଵࡳԻࢉܹѺܹ࢑Ь

ࢿٕॷࢋ‫ؼ‬ଲ ࢿࢠॷࢋ‫ؼ‬ଲࢇ‫؃‬ ࢼ࣌،ߪ‫ࡅٵ‬ ‫ؿ‬ଵ࢕Еࢿ࣏߾ҬԂٕжଞ؏߭‫ۘؿࡶࡈٸ‬ଞЬ

ࢼ࣌଑ଢ࢒ࡿ‫ؼ‬ୋ ଔଥ࢕ɼ۰ִࡳԻѰࢂଜए߉Еଞ̐ࢂएࡢЕଢࢂ૦̛ए̗ӖЕ̐ࠪѰҟଞ ଭࡢҟࡶٙ‫ח‬ଜˈ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕‫ؿ؀‬ଵ࢕߾ࢂଞ˃ߟۘ‫ؿ‬ଵ̖ए̗ ঐ˱߾˗ଞ߭ҿଞʼࢽ߾Ѧࠒଯࡶ؇ए߉ЕЬ

ࢼ࣌‫ܕ‬ଢࡿߛ̘  ‫ܘ‬ଥձߞ̛ଟࢂѦԻ࢖ࡢӖЕٕ࢖ࡢ߾̛ࢉଞ‫ܘ‬ଥ߾оଜࠆЕ‫ؿ‬ଵ˃ߟ࢕Ӗ Еଔ‫ؿ‬ଵ࢕Е‫ۘؿ‬؇ࡶܹ߷Ь‫ֻה‬ଜʯ‫ܘ‬ଥɼ߆୘Ѻܹ࢑ࡸࡶߊִ۰Ѧ‫ؿ‬ ଵ‫ࢂˈی‬؈ۢ୯߾‫ؿ‬ଵ࢕ࢂઞ‫ط‬ଞए‫ݤ‬ձҬծए߉ߑыˁࡉѦ૦ଡଞЬ  ࢿତࢂীए߾ҬԂ‫ܘ‬ଥࢂࡕࢉ߾Е‫ܘ‬ଥ؏एӖЕˁʃଜए߅Тଞˁࡉձ૦ ଡଞЬ  ˕‫߾࡭ٸࢂࢎॺݨ‬ҬԂ‫ؿ‬ଵ̖ࢂʃߖࡶࢽଞָؒଞߟ˗߾̒ʠଜࠆ‫ؿ‬ଵ˃ ߟ࢕ࠪଔ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ‫ࢂˈی‬؈ۢ୯߾‫ؿ‬ଵ࢕ࢂઞ‫ط‬ଞए‫ݤ‬ձ੓փଜʯٙࢇ ଭଡࡳԻ‫ނ‬؈ۢଞ‫ܘ‬ଥ߾оଥ۰Ѧ‫ࡶۘؿ‬ঐ˱ଟܹ࢑Ь

ࢼ࣌ॷࢋࡿࢆࢺ  ‫ؿ‬ଵ˃ߟ࢕Οଔ‫ؿ‬ଵ࢕ɼଔଥ࢕ࢂঐ˱ձ‫ݣ‬ΠଜʠΟࢇଭଜЕˁࡉ߾‫ؿ‬ଵ࢕ձ ִॺଜЕ‫ؿ‬ଵ˃ߟ࣏ତࡵ‫ה‬୪ࢇЬ

647

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

 ଔଥ࢕ࠪ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ɾࢂଢࢂ߾‫ؿ‬ଵ࢕ɼѰࢂଜए߉Еଞ‫ؿ‬ ଵ࢕Е̐Қ‫ࢂࢇی‬ଢࢂ߾˱‫ܖ‬Ѹए߉ЕЬ

ࢼ࣌ߣѣ ˃ߟۘଔ‫ؿ‬ଵ࢕ࢂঐ˱̀ࡶߦѦଟ̀չձ‫ੌ؃‬ଜЕ‫ؿ‬ଵ˃ߟࢂ࣏ତࡵ‫ה‬୪ࢇЬ

ࢼ࣌‫˅ۉב‬ଜࢆʾԬ࠾ࡪ  ‫ؿ‬ଵ˃ߟ࢕Еۘ‫ݤ‬ए΢ϗɾ̐ࢂঐ˱ࠪ˗԰ѹ̛Լࡶࡁ˱ଟ̀չɼ࢑Ь  ‫ؿ‬ଵ࢕ɼ˃ߟۘए̗ѹঐ˱̖ߖࢇΟঐ˱୨ܹ߾ҬԂ‫ؿ‬ଵՎӖЕЬհ࣏ʢࡶ ࢽଞЬִए΢ϗɾЬհ‫ؿ‬ଵ࢕ձ૦ଡଜЕ‫ؿ‬ଵ˃ߟ࢕ࢂঐ˱ࢇԯࡶࢶࢸ஢ ˈԮଜࠆߞଞЬ

ࢼ࣌‫ؼ‬ଲ‫˅ۉ‬  ۘ߶ࢶӖЕࢷ‫ؿࢂࢶּࢶח‬ଵ˃ߟ߾˗԰ѹߦк‫࢕ی‬ɼ‫ؿ‬ଵ‫ˈی‬ձଔଥ࢕ࢂ ঐ˱ҟ˕ʋࢇЬհࣱ̛ࡳԻࢽࢂଜЕˁࡉɼ߅Фଞ‫ؿ‬ଵ‫ˈی‬Е‫ؿ‬ଵ˃ߟࢂ ॺࢎ̛ɾࣸ߾؈ۢଜࠆଔ‫ؿ‬ଵ࢕߾ʯॺࢎࡶ؈ۢ‫ੁݤ‬Е‫ࢇ˃˗ݨی‬Ь  ˃ߟк‫࢕ی‬ɼ‫ؿ‬ଵ‫ˈی‬ձଔଥ࢕ࢂঐ˱ԻࢽࢂଜЕˁࡉॺࢎ̛ɾΰӖЕϗ ΰঐ˱ѹʨ˕ॺࢎ̛ɾࢂࣗՎࢷ߾؈ۢଞ‫̛߾ݨی‬টଜЕঐ˱߾оଜࠆ‫ؿ‬ ଵۘ‫ࢽࢉࢇࢠؿ‬ѹЬ‫ؿ‬ଵ˃ߟࢂ঑ʼ‫߾ݤ‬ঐߟ࢕ɼঐ˱̀ࢇ؈ۢଟܹѦ࢑ ЬЕ‫ߑߊࡶݨی‬ʠΟߊ߅ߞଜЕʨࡶ̛টԻଞ‫ؿࡶࢠؿ‬ଵ˃ߟ߾۰Еࢿ࠹ଟ ܹ࢑Ь

ࢼ࣌‫ؼ‬ଲ̓ߓࡳজ˒ଙВ঍ˮ  Ьܹࢂଔଥ࢕߾ʯए̗ଟদߖࢇ‫ؿ‬ଵ̖ߖࡶট˕ଜЕˁࡉ̐ए̗ࡵ‫ٸ‬Էࢶࡳ ԻʃߖѹЬ  Ьհଔଥ࢕ࢂ࣑ࢢձߊए‫׃‬ଜˈߊԮऑଔଥ࢕߾ʯ۴ࢂԻ‫ؿ‬ଵ̖ࡶए̗ଞ‫ؿ‬ ଵ࢕Еࢗࠆ‫ؿ‬ଵ̖ߖࡶଞѦԻЬհଔଥ࢕߾оଞॺࢎࢇ࢑Ь

ࢿࢠऍࢸ঍ˮ˽˒ऍࢸ‫ܛܒ‬ ࢼ࣌ऍࢸ঍ˮ˽˒ଡ‫س‬  ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ࢂॺࢎ࢑Е‫߾ࡢإ‬оଜࠆЬࡸࢂˁࡉɼ̍ࢽѹ‫ؿ‬ଵ ˃ߟ߾۰ଔଥ࢕Е‫ؿ‬ଵ࢕߾оଜࠆ‫ࡶۘؿ‬ऐࢻঐ˱ଟܹ࢑Ь D ࢂ‫ؿה‬ଵࢉˁࡉӖЕ E ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ɼળ‫ۏ‬ଞˁࡉӖЕ F  ‫ؿ‬  ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕ࢂॹ‫ה‬ɼࢽչѸʠΟঐ‫ۏ‬ѹˁࡉӖЕ G ଔଥ࢕ɼۘଥձ࢏ࡵˁࡉӖЕ H ॺࢎࡶ̍ࢽଜЕ‫ࢇئ‬ऐࢻঐ˱̀ࡶ̍ࢽଜˈ࢑Еˁࡉ  ࢂ‫ؿה‬ଵࡶ̍ࢽଜЕઞ‫ࢂ߾ࢽ̍ط‬ଥ̖एѸए߉Еଞ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ˃ߟۘଔ ଥ࢕߾оଜࠆ؏߭ଟܹ࢑ЬЬփ‫ؿ‬ଵ࢕Е‫ܘ‬ଥ؈ۢ୯߾‫ؿ‬ଵ˃ߟ࢕ӖЕଔ ‫ؿ‬ଵ࢕ࢂए‫̒߾ݤ‬ʠଜࠆ۰Е߭ҿଞ؏߭Ѧଟܹ߷Ь

ࢼ࣌ࢺ‫ࢼؼ‬ːࡿ‫ב‬  ଔଥ࢕ࢂࡁ˱߾ҬԂ‫ؿ‬ଵ˃ߟ࢕ࠪଔ‫ؿ‬ଵ࢕Еऐࢻঐ˱߾ଗࡁଞࢽ‫ؿ‬ձࢿ˓ ଥߞଞЬ

648

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

 ‫ؿ‬ଵ࢕Еऐࢻঐ˱ࢂܹԶ୯࣯ࢇΰ߾ए঑߷ࢇ‫ؿ‬ଵ˃ߟ࢕߾ʯ۰ִࡳԻ੼ एଥߞଞЬ‫ؿ‬ଵ࢕ɼࢇࢂ‫ה‬ձࡢ؆ଟˁࡉଔଥ࢕߾оଞॹ‫ࢂה‬ए̗ӖЕ‫ݣ‬ ࢉࡵ‫ؿ‬ଵ˃ߟ࢕ࢂ̀չ߾ࠒଯࡶ‫׵‬৔ए߉ЕЬ  ‫ؿ‬ଵ˃ߟ࢕ɼࢿତ߾Ҭհ੼एࢂܹԶࡳԻٕਫ਼ʎࡖΰ߾‫ؿ‬ଵ‫˗߾ˈی‬ଞࢽ ‫ؿ‬ձ‫ؿ‬ଵ࢕߾ʯࢿ˓ଜए‫׃‬ଟˁࡉ‫ؿ‬ଵ˃ߟ࢕Еঐ˱߾оଜࠆ‫ؿ‬ଵ࢕ɼऐࢻ ଥʼଜЕʨ߾ѰࢂଞʨࡳԻ‫ق‬Ьࢇ̍ࢽࡵ‫ۘݨی‬ʋࡵ‫੼߾ࢺݤ‬एձܹԶଞ ଔ‫ؿ‬ଵ࢕߾ʯѦࢶࡈଞЬ

ࢼֱ࣌ॷ ‫ؿ‬ଵ˃ߟ࢕ӖЕଔ‫ؿ‬ଵ࢕߾оଞ‫ؿ‬ଵ̖ࢂए̗ࡵЬࡸ˕ʋࡵˁࡉփଔଥ࢕߾о ଞࢂ‫ה‬Իٕਫ਼‫ؿ‬ଵ࢕ձִॺଞЬ D ଔଥ࢕ɼऐࢻঐ˱̀ࡶ૦̛ଜЕˁࡉӖЕ E ଔଥ࢕ɼ‫ؿ‬ଵ࢕ࢂ۰ִۘࡁ˱ձܹԶଞ୯࣯ࢇΰ߾ऐࢻঐ˱̀ଭ‫یࢂࢂی‬ ૲‫ݤ‬ձ‫ؿ‬ଵ࢕߾ʯ੼एଜए߉ࡵˁࡉ

ࢼ࣌‫ݡ‬୧  ଔ‫ؿ‬ଵ࢕ӖЕଔଥ࢕߾ࢂଥࢿ̛ѹʨ߾ۘ˗߷ࢇଔ‫ؿ‬ଵ࢕߾оଞଔଥ࢕ࢂ‫ܕ‬ ‫ݤࢂܞ‬୪ɼ‫ֵܕ‬ѹҶ߾‫ؿ‬ଵ࢕߾оଞ‫ݤࢂܞܕ‬୪ɼ‫ֵܕ‬ଞЬ  ଔ‫ؿ‬ଵ࢕߾оଞଔଥ࢕ࢂঐ˱̀ࢂ‫ݤ‬୪̛ɾࡵ‫ؿ‬ଵ࢕߾ʯऐࢻঐ˱̀ࢂଭ‫ی‬ɼ ࢑߹ࡸࡶ߇ҶԻٕਫ਼̐ऐࢻঐ˱ɼ‫ؿ‬ଵ࢕߾ࢂଜࠆ୙ࢽѸʠΟָؒଜʯʠࢸ ѺҶ̧एࢽएѹЬ

ࢿࢠࡿ‫ؼב‬ଲ ࢼ࣌ࢳࡅ‫࡟آ‬  3(,&/ࡵЬࡸ˕ʋࡵˁࡉࢂ‫ࢇࢂה‬ଭࡶ୙‫ݨ‬஢ଜ̛ࡢଥ‫ؿ‬ଵ˃ߟࡶ঑ʼଞߦ к‫ࢂ߾࢕ی‬ଥ۴੔Ѻܹ࢑Ь D ˓Ѱ঑‫ࢂ߾ئ‬ଥ̍ࢽѹˁࡉ E ୣࡕ˲߾̍ࢽѹˁࡉӖЕ F  ୣ  ࡕ˲ࢂ‫ࢂ߾ئ‬ଥରࡈѹ‫߾ࡢإ‬۰‫ٸ‬ୣࡕ˲ࢂ‫ࢽ̍߾ئ‬ѹˁࡉ  ‫ؿ‬ଵ˃ߟ঑ʼࢂ‫ה‬ձٕ˕ଜЕઞ‫ࡶࢽ̍ط‬ҬծЕʨࢇ߅Фଞ‫ؿ‬ଵ˃ߟࢇ‫ؿ‬ଵ ɼ࢏ଟࢂ‫ה‬ձ঻࣐ଜЕʨࡵ߅ТЬ

ࢿֵٕ۟‫ؼ‬ଲ ࢿࢠֵ۟‫ؼ‬ଲࡿછ‫ࢺ̊ش‬ ࢿࢸࢼ࢒ ࢼ࣌੆ࢆࡿֵ۟‫ؼ‬ଲ ‫ؿ‬ଵ˃ߟ࢕ɼ߅Ф࢕ࢂָۢ߾оଞ‫ؿ‬ଵ˃ߟࡵ۶ָ߾࢏ɽଜࠆଔ‫ؿ‬ଵ࢕ࢂ۰ִ ۘѰࢂࠪ࢕ଗ۰ָ߾ࢂଜࠆ߉ࡳִ‫ה‬୪ࢇЬܹ࢈࢕ࢂ‫ض‬ˁ‫ؿ‬ଵ̖ߖࢂऎߖ˃ ߟ̛ɾࢂ‫ض‬ˁҟࡶ૦ଡଜЕଯ୯߾࢑ࡶ˃ߟࢂ‫ضࢉࢶࢿݨ‬ˁѦ̐ԜଞѰࢂɼ ߷Ьִ‫ה‬୪ࢇЬࢇʨࡵ‫ؿ‬ଵ˃ߟࢇΟ‫ؿ‬ଵ̖ঐ˱̀ࢂߦѦӖЕࢵк߾ѦѰࢊଜ ʯࢶࡈѹЬ

649

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢼ࣌‫ؼ‬ଲ̓ܶࢅ࢒  ‫ؿ‬ଵ˃ߟ࢕ЕࢉӖЕЬܹࢂ‫ؿ‬ଵ̖ܹ࢈࢕ձएࢽଟܹ࢑ˈ̐एࢽࢇঋୣଟ ܹ߷ЕʨࡳԻ୙ࢽѹˁࡉɼ߅Фଞࢇձ‫ض‬ˁଜʠΟঋୣଟܹ࢑Ьएࢽ‫ض‬ ˁӖЕঋୣЕࡪ߯߾ࢂଞʨࡶࢿ࠹ଜˈ؆Җ‫ݤ‬۰ִࡳԻ࢖‫۽‬ଜࠆ‫ؿ‬ଵ࢕߾ʯ ‫ؿ‬ΰࣇߞଞЬ  ‫ؿ‬ଵ̖ܹ࢈࢕߾оଞ एࢽ‫ض‬ˁঋୣࢂ̀չЕ‫ؿ‬ଵ˃ߟ࢕ࢂ‫֌ی‬ӖЕ‫ؿ‬ଵ‫ی‬ ˈࢂ؈ۢࣸ֠ࢵࢊ߭ΟЕʨࡶࡕࢉࡳԻଜࠆࣗՎଞЬ  ‫ؿ‬ଵ˃ߟ࢕ӖЕ‫ؿ‬ଵ˃ߟ࢕ࢂۘ‫ࡵࢉܖ‬Ьࡸࢂˁࡉ‫ؿ‬ଵ̖ܹ࢈࢕Ի‫ق‬Ь D ‫ؿ‬ଵ˃ߟ࢕ɼܹ࢈࢕ձएࢽଜए߅ТଞˁࡉӖЕ E ܹ࢈࢕ࢂएࢽࢇঋୣѸˈЬհܹ࢈࢕ձएࢽଜए߉ࡵˁࡉӖЕ F  ‫ؿ‬  ଵ‫ˈی‬؈ۢࢷ߾ܹ࢈࢕ɼ‫֌ی‬ଜˈЬհܹ࢈࢕ձएࢽଜए߉ࡵˁࡉ  ࢉӖЕ̐ࢇۘࢂܹ࢈࢕ɼएࢽѸˈ‫ؿ‬ଵ‫ˈی‬؈ۢࢷ߾̐ࣸϼ˳ɼɼঋୣ ѸʠΟ‫֌ی‬ଜЕˁࡉ‫ؿ‬ଵ˃ߟ࢕ɼࢿତ߾Ҭհ୯‫ܖ‬एࢽࡶଜए߉ߑЬִ‫ח‬ ࢿɼѹ‫ؿ‬ଵܹ࢈࢕߾ʯ̆‫ܖ‬Ѹ߹ࡶ‫ؿ‬ଵ̖ߖࡵࢗࠆ‫ؿ‬ଵܹ࢈࢕߾ʯ‫ٸ‬ԷࢶࡳԻ ٗؑѹЬ  Ѧ‫߾ئۏ‬۰ࢶࡈɼМଞ̍ࢽҚࣸ߾۰ॹ̀࢕߾ʯٙչଞ‫ה‬୪‫ה‬୪ɼМ‫۽‬ӖЕ खଭٙɼМ‫˗߾۽‬ଞ̍ࢽҚ߾˗ଜࠆ‫ؿ‬ଵ˃ߟ࢕ࢂળ‫ؿࡵۏࢢۏ‬ଵ˃ߟ࢕߾ʯ ए̗Ѹए߅Тଞ‫ؿ‬ଵ̖‫ؿ‬ଵՎࢂࢷ୚ӖЕଥए୚̗̖ҟ߾оଜࠆ߭ҿଞ̀ չѦ߷Ь  ࢿତ߾ҬԂएࢽѹ࢕߾ʯ‫ؿ‬ଵ̖ࡶए̗ଜЕ‫ؿ‬ଵ࢕Е̐࢕ɼ‫ؿ‬ଵ̖ঐ˱̀ࢇ ߷Е࢕ࢎࡶߊˈ࢑߹ыʨࢇ߅Фଞए̗ࢂ‫ה‬ձִଜʯѹЬ

ࢼ࣌ଢऌୗ̔̓ࡿܶࢅ࢒  ࢿ࣏ࢂएࢽ߾˗˃߷ࢇ‫ؿ‬ଵ˃ߟ࢕Еଥए୚̗̖ࢂܹ࢈࢕ձएࢽଟܹ ࢑ˈ̐एࢽࡶ‫ض‬ˁଜʠΟঋୣଟܹ࢑Ьएࢽ‫ض‬ˁӖЕঋୣЕ۰ִࡳԻ࢖ ‫۽‬ଜࠆ‫ؿ‬ଵ࢕߾ʯ‫ؿ‬ΰࣇߞଞЬ  ‫ؿ‬ଵ˃ߟ࢕ЕЬࡸ˕ʋࡵˁࡉଥए୚̗̖ࢂܹ࢈࢕Ի‫ق‬Ь D ଥए୚̗̖߾оଞЬհܹ࢈࢕एࢽࢇ߷߹ыˁࡉӖЕ E एࢽѹଥए୚̗̖ࢂܹ࢈࢕ɼঋୣѸˈЬհܹ࢈࢕एࢽࢇ߷߹ыˁࡉӖЕ F  ଥ  ߟ୚̗̖ࢂܹ࢈࢕ɼ‫֌ی‬ଜˈЬհܹ࢈࢕ࢂएࢽࢇ߷߹ыˁࡉ  ࢿ࣏ࢿତ‫ࢿ؀‬ତٕਫ਼ࢿତ̧एࣱࡈଞЬ

ࢼ࣌ߣѣӓВг‫ؼ‬  ‫ؿ‬ଵܹ࢈࢕ɼঋୣଟܹ߷ѦԼएࢽࢇ୙ࢽѹˁࡉ‫ؿ‬ଵ˃ߟ࢕ࢂ‫ؿ‬ଵ˃ߟࢇΟ ‫ؿ‬ଵ̖ঐ˱̀ࢂߦѦӖЕж‫ؿ‬Еܹ࢈࢕ࢂ۰ִۘࢂѰࢂ߷ࢇЕ‫ה‬୪ࢇЬ  ‫ؿ‬ଵ̖ܹ࢈࢕߾ࢂଞ‫ؿ‬ଵ̖ঐ˱̀ࢂߦѦࠪж‫ؿ‬Е‫ؿ‬ଵ˃ߟ࢕ࢂ۰ִۘѰࢂ ߷ࢇЕ‫ה‬୪ࢇЬ

ࢼ࣌‫̘ૣܓە‬۱߬ ‫ؿ‬ଵܹ࢈࢕ɼ‫֌ی‬ଞଔ‫ؿ‬ଵ࢕ࢂۘ‫ܖۘˈࢇࢉܖ‬૦̛۴߯ࡶଞˁࡉۘ‫ܖ‬૦̛۴߯ ࢇԂЕЯѧࢶ‫ؿࡵݨی‬ଵ˃ߟۘ̐ࢂएࡢ߾ࠒଯࡶ‫׵‬৔ए߉ЕЬ

650

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢿࢸˀߜজ̘Ьˀࠧࡧऌ ࢼ࣌঍ߜ࢒ࡿˀߜࢴࢺ‫ࢼؼ‬ːࡿ‫ב‬  ࢿ࣏ࢿତ߾ҬԂঐߟ࢕ɼࢿ˓ଜЕࢽ‫ؿ‬Еଔ‫ؿ‬ଵ࢕ɼߊߑʠΟߊˈ࢑ ߭ߞବыۘଢ଼߾оଞࢽ‫ؿ‬ձ૦ଡଥߞଞЬ  ࢿ࣏ձࢿ࠹ଞࢿ࣏ࢿ࣏‫߾࣏ࢿ؀‬Ҭհ˃ߟࢷࢽ‫˓ࢿؿ‬ ࢂ‫ࡢה‬؆߾оଞࢿࢢЕ˃ߟ঑ʼ୯ϗɾࡪ୪ଜЬ

ࢼ࣌‫ؼ‬ଲ࢒ࡿˀߜࢴࢺ‫ࢼؼ‬ːࡿ‫ב‬  ‫ؿ‬ଵ࢕Еঐߟ࢕߾ʯࢇ࢈߾ॳࠆଟ̀չɼ࢑ЕएߊԮߞଞЬࢇࢽ‫ܹࢂؿ‬Զ ࡵ؆Җ‫ݤ‬ঐߟ۰࠹‫ط‬ѦԻָ୙஢۶ָѹ‫ח‬۰߾ࢂଥࢉ‫ݥ‬Ѹ߭ߞଞЬ  ࢿ࣏߾ҬԂ‫ؿ‬ଵ࢕ɼࢿ˓ଜЕ‫ח‬۰ЕЬࡸࢂࢽ‫ؿ‬ձ૦ଡଥߞଞЬ D ‫ؿ‬ଵ࢕ࠪ˗԰ଜࠆ‫ؿ‬ଵ࢕ࢂए̗ࠆԯ˕ࢢࢽۘ੓߾оଞࠉɾ‫ˈؿ‬۰ࢂࢂ‫ה‬ ˓‫ࠪݤ‬ઞࢽ࢕Վ E ‫ؿ‬ଵ࢕ࢂ˃ߟۘॺࢎ߾˗԰ଜࠆ L  ɽ  ̗ٕࠪ۴੔‫ی‬ତ߾оଞ۶ָ LL  ࣯̗ٕࠪ঴ɼ̗ٕࣸɽ̗ٕ߾̛ࢉଜЕ‫ؿ‬ଵࡁ࡭߾оଞࢽ‫ؿ‬ LLL  ࢶࡈɼМଞʃѧ‫ࢂ̍ئ‬۶ָࡶ૦ଡଜЕؑкࢂ‫ئ؏ࢂؑٗ؀ࢽۏ‬ LY  ଥߟ୚̗̖ࢂ̖ߖ˕ࠬΨ‫ࢠؿ˕ߖ̖ࢂݤ‬ѸЕ‫ࢂࡢإ‬ए૲ Y  ࢕‫ࠉۏ‬Ѱ୉‫ؿ‬ଵ˃ߟࢂˁࡉ̛ট࢕‫ࢂ۽˱ࢂۏ‬ए૲ܹࠪ࢈ࢇࠉѰѹઆ ࢕࢕‫߾ۏ‬оଞ۶ָ YL  ˃ߟࢂࡪ୉߾ҬԂࢶࡈɼМଞ˕‫ࢊࢂࣱ̛ۿ‬؆ࢶࢽ‫ؿ‬  ঴ɼࢶࡳԻࢉܹѹ˃ߟۘࡢଵࢂࢶࢸଞࢇଥձ‫ݒ‬ʯଜ̛ࡢଥ˱঑ࢶࢽ‫ؿ‬ɼ ‫ؿ‬ଵ˃ߟ࢕߾ʯࢿ˓Ѹ߭ߞଞЬ  ‫ؿ‬ଵ࢕ɼ˃ߟۘए̗ࢇ‫ࢠؿ‬ѹ̗ٕձট˕ଜЕ̖ࠖۘߖ߾оଜࠆܹ৔ձࢿ‫ݤ‬ ଜЕˁࡉ‫ۿ‬ɼएࢂЬհࢇ࡭Ի‫ؿ‬ଵՎձ‫ࢽۏ‬ଜЕ‫ؿ‬ଵܹչࡕ৕߾̒ʠଜࠆࠖ ۘփ̛ए̗̖ࡶ૦ଡଞֻљʺࢶ۰ձঐߟ࢕߾ʯࢿ˓ଥߞଞЬࢇЕ‫ؿ‬ଵ࢕ɼ ॺࢎࡶٕжଜʯѺएٙ୙‫ݨ‬ଞࡢଵࡶж‫ؿ‬ଜЕ‫ؿ‬ଵ˃ߟࢇΟ‫ؿߖض‬ଵ߾Еࢶ ࡈଜए߅ТଞЬ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ˃ߟ࢕߾ʯֻљʺࢶ۰ɼɼࢽࢶࢉࢷࢿ߾̛ট ଞʨࢊ‫ࢠؿࡶ࢈ܹۘࠖࢇߟ˃ˈࢇڸ‬ଜए߉ЕЬЕʨࡶָؒଜˈ૦˘ࢶࡳԻ ָ‫ݤ‬ଥߞଞЬ

ࢼܷ࣌ԫ̘ɻ  ָۢ‫ؿ‬ଵ˃ߟ߾۰ࢿ࣏ࢿତ߾̍ࢽѹܺԮ̛ɾࡵ‫ݣ‬Πࢂࢂ‫ݤ૲ی‬ɼѦб ୯ʎࡖӖЕࢿ࣏ࠪࢿ࣏߾۰ࢽଞ۰զձˬٕଞ୯ʎࡖࣸ߾۰ шΟࣸࢂʨࡳԻଞЬ  ࢿ࣏ࢿତ߾Ҭհ‫ؿ‬ଵ˃ߟ࢕ࢂ˃ߟঋୣ̀ࡵ˃ߟ঑ʼ୯ϗࢇˁ˕ଜִ ‫ֵܕ‬ଞЬ

ࢼ࣌‫ؼ‬ଲˀߜ࢒ࡿଢऌ˽  ˃ߟ঑ʼ୯ϗࢇΰࢂࣗՎЕ୪ԯࢇ߷Ьˈࢽଞָۢ‫ؿ‬ଵ˃ߟࢇԂѦ̐ʨࢇ ‫ؿ‬ଵՎࢂࢷ୚ӖЕଥए୚̗̖ࡶ؈ۢ‫ੁݤ‬ए߉Еˁࡉ‫ؿ‬ଵ˃ߟ࢕߾ʯָۢ‫ؿ‬ ଵ˃ߟࡶଥएଟ̀ଞࢇ࢑Ь˃ߟ̛ɾࢇࣗՎଜ̛ࢷ߾ଥएଟ̀ଞࡵࢊ‫ݤ‬ٙ‫ؿ‬ ଵՎԻए̗ѸЕˁࡉ߾Еࢿ࠹Ѻܹ࢑ЬଥएЕ۰ִࡳԻଥߞଜֲ‫ؿ‬ଵ࢕߾ ʯଥए੼एɼѦбଞҶԻٕਫ਼࣯୯߾୪˕ɼ؈ۢଞЬ

651

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

 ָۢ‫ؿ‬ଵ˃ߟࢇࢷ୚ɼߖӖЕଥए୚̗̖ࡶ؈ۢ‫ੁݤ‬Еˁࡉࢿ࣏ٕਫ਼ࢿ ࣏ձࢶࡈଞЬ

ࢼ࣌‫ؼ‬ଲ࢒ࡿଢऌ˽ ‫ؿ‬ଵ࢕Еָۢ‫ؿ‬ଵ˃ߟ߾оଜࠆ‫ࢂ߾ࢠق‬ଥରࡈѹ‫߾ࡢإ‬ଞଜࠆଥएଟ̀չɼ ࢑Ь

ࢿࢸˀߜ̘ɻࣵࡿ‫س‬ʾ ࢼ࣌‫ؼ‬ଲ࢒ࡿˀߜ୬ࢺ‫ࢼؼ‬ːࡿ‫ב‬  ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ˃ߟ߾૦ଡѹؑк̖ࢂୃࢢɼ৔߾оଞʨࡶ֐ϗ۰ִࡳԻ̛ࢢ ଜࠆ‫ؿ‬ଵ˃ߟ࢕߾ʯࢿ˓ଥߞଞЬ  ࢿ࣏߾Ҭհࢂ‫߾࠹ה‬Ѧ‫ؿ‬ଵ࢕ЕЬࡸ˕˗԰ѹֻҘ‫ض‬ˁ‫ی‬ତࡶए঑߷ ࢇ‫ؿ‬ଵ˃ߟ࢕߾ʯߊԮߞଞЬ D ˃ߟ࣏ʢࢊ؆࣏ʢ‫؀‬ઞ‫࣏ط‬ʢ E ˃ߟ࣏ʢࢂ‫ض‬ˁӖЕ3(,&/ࢂʎࢽࢂˁࡉࢿ࣏ࢿତI୎ࠪJ୎‫ڸ‬փ ߅ТԂࢿ࣏ࢿତE୎Lּٕਫ਼Yּ߾۰ΟࠊଜЕࢽ‫ؿ‬  ࢿ࣏ࢿତࡵ˃ߟ̛ɾࣸ߭ГҶԂѦ̗ٕࠖۘࢂ঴ࢽߖ߾оଞܹ৔ձ ࢿ‫ݤ‬ଜЕˁࡉ߾ࢶࡈଞЬ‫ؿ‬ଵ˃ߟࢂ঑ʼࢷ୯ձٙ‫ח‬ଜˈ‫ؿ‬ଵ࢕ɼࢠԎࢂ࢜ ࢢࢶܹ࢈߾˗ଞܹ৔ձࢿ‫ݤ‬ଜЕˁࡉ‫ؿ‬ଵ࢕Е‫˕ࢶݨ‬ট̛ࢿ‫ݤ‬ѹܹ৔ࢂ८ ࢇձ‫ؿ‬ଵ˃ߟ࢕߾ʯ۶ָଥߞଞЬ

ࢼ࣌࡟ଲࡿऋɹ ָۢ‫ؿ‬ଵ˃ߟ߾۰Ϡ୘ӖЕʢʈࢂ߆୘ձࢿ࣏߾ҬհࡢଵࢂऎɼԻࢽଜЕ ࣏ତࡵࢿ࣏߾ҬհΧࡈࢶ࣏ତࡳԻ‫ق‬Ь

ࢼ࣌‫ؼ‬ଲՋࠧ‫ؼ‬ଲ̓ߓࡿ࣌ࢺ  ‫ؿ‬ଵ࢕ɼॺࢎࡶٕжଟʨࢇ୙‫ݨ‬ଞࡢଵࡶж‫ؿ‬ଜЕָۢ‫ؿ‬ଵ˃ߟ߾۰‫ؿ‬ଵ࢕ Еࢿତ˕ࢿତ߾ҬԂ۰࣏ࢽଟܹ࢑Ь  ‫ؿ‬ଵՎऎߖࡵ‫ؿ‬ଵՎࢂ‫ۏ‬ষ߾̛টɼѸЕۢ‫י‬ଝࢶࡢଵ߾˗ଜࠆ্ࠖٙɼМ ଜˈए‫ضࢉࢶܖ‬୘ɼ࢑Еˁࡉ‫ؿ‬ଵՎऎߖࢇ‫ؿ‬ଵ࢕ࢂ‫ؿ‬ଵ̖ए̗‫ࠆࢠؿ‬ԯࡶ ୙‫ؿ‬ଟଗࡁɼ࢑Еˁࡉ‫؀‬ѧվ‫˗੊ݦ‬չࢉӖЕ‫ؿ‬ଵʃѧ̛˱ɼѰࢂଜЕˁࡉ ߾ରࡈѺܹ࢑Ь‫ؿ‬ଵ˃ߟ࢕Е‫ؿ‬ଵ̖ߖࢂʃߖ߾оଜࠆ‫ؿ‬ଵՎࢂऎߖࡳԻ‫ؿ‬ ࠬଟܹ࢑Ь  ‫ؿ‬ଵՎɼࠬΨѹ˃ߟࢂˁࡉ‫ؿ‬ଵ࢕Еࢿତ߾۰ࢽଞ࣏ʢ߾ࢂଥ‫ؿ‬ଵ̖ߖࡶ ʃߖଟܹ࢑Ь  ࢿତӖЕࢿତ߾ࢂଞ࣏ࢽࡵЬࡸࢂˁࡉ߾ЕରࡈѸए߅ТଞЬ D ࢕ʸࡶʉশࡪМଞ˃չࢉࢇߊ߅ߞବы‫ؿ‬ଵՎӖЕ̐չˈ‫ؿ‬ଵ̖ߖࢂ‫ۏ‬ ࢽ˕ࢽ߾۰ࠝզɼ࢑Еˁࡉ E ̛ট˃‫ࢽ࣏ࢇۏ‬୯߾঑ʼѹ˃ߟࡶ૦ଡଞЬհֻҘ˃ߟ߾ࢶࡈѸए߉Е ˁࡉ  ‫ؿ‬ଵՎࢂऎߖӖЕ‫ؿ‬ଵ̖ߖࢂʃߖࡵ‫ؿ‬ଵ࢕ɼ‫ؿ‬ଵ˃ߟ࢕߾ʯ‫ؿ‬ଵՎࢂऎߖ ӖЕ‫ؿ‬ଵ̖ߖࢂʃߖࢇ߾оଞ̒ʠ‫ؿ‬ଵ̖ߖࢂʃߖࡳԻࢉଞ‫ؿ‬ଵ˃ߟ࢕ࢂ ˈࡪଞ̀չ߾оଞ۰ִۘࢂ੼एձଞҶԻٕਫ਼ʎࡖ୯߾୪ԯࢇ࢑Ь

652

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

 ‫ؿ‬ଵ࢕ɼॺࢎࡶٕжଟʨࢇ୙‫ݨ‬ଞࡢଵࡶж‫ؿ‬ଜЕָۢ‫ؿ‬ଵ˃ߟ߾۰‫ؿ‬ଵ˃ ߟ࢕Е‫ؿ‬ଵՎࢂ‫̛߾ࢽۏ‬টɼѸЕۢ‫י‬ଝࢶࡢଵ߾˗ଞ্ࠖٙɼМଜˈए‫ܖ‬ ࢶࢉ‫ض‬୘Իࢉଜࠆ‫ق‬Ԏࢂ‫ؿ‬ଵՎɼшࢇۘࢶࢸଜए߉ˈ‫ؿ‬ଵ࢕ࢂ‫ؿ‬ଵ̖ए ̗‫ࠆࢠؿ‬ԯࡶ୙‫ؿ‬ଟଗࡁɼ࢑Еˁࡉ‫ؿ‬ଵՎձʃߖଟܹ࢑Ьʃߖࡵѧվ‫ݦ‬ ੊˗չࢉӖЕ‫ؿ‬ଵʃѧ̛˗ࢂѰࢂɼ࢑߭ߞଞЬ  ‫߾࣏ق‬۰ࢿ‫ݤ‬ଜЀչЕ˃ߟࢂ঑ʼ୯ϗࢇΰ߾Еଭ‫ی‬ଟܹ߷Ь

ࢼ࣌ߜ˔˒࣌ʟࡿ‫س‬ʾ  ‫ؿ‬ଵՎࠪ‫ؿ‬ଵ̖ߖ࠹߾‫ؿ‬ଵ࢕ɼ‫ض‬ˁଟܹ࢑Еߟ˗˕࣏ʢࡵ̐‫ض‬ˁࢇЬࡸ ࢂˁࡉɼ߅ТԂִ‫ה‬୪ࢇЬ D ‫ؿ‬ଵʃѧ̛˱߾ࢂଞ˱‫ܖ‬ԯࢇ࢑Е࣏৔ձ૦ଡଞʃѧ‫ࢂئ‬ʎࢽࢇҬծЕˁ ࡉӖЕ E ˈࡈ࣯ࢂࠉ̖‫ؿ‬ଵ߾ࢶࡈѸЕ˲ΰ‫ࢂئ‬ʈଭ̍ࢽࢂʎࢽ߾ҬծЕˁࡉӖЕ F  ָۢ‫ؿ‬ଵ˃ߟ߾۰ઞࢽ˕‫ࢇॺࢽۿ‬Ο˲ɼ‫ࢂ̖࣏ؿ‬؆ࠒࡶࡢଞઞࢽଞ࣏ʢ ࡶٕ˕ଜЕ˲ΰ‫ئ‬ʎࢽ߾ҬծЕˁࡉӖЕ G ࢿ࣏ࢿତࢂ‫߾ח‬Ҭհ˃ߟ࣏ତࡶо঑ଜЕˁࡉ  ‫ض‬ˁࡵ‫ؿ‬ଵ࢕ɼࢇԜଞ‫ض‬ˁ˕̐̒ʠ߾оଞࢽ‫ؿ‬ձ۰ִࡳԻ੼एଜˈ‫ؿ‬ଵ˃ ߟ࢕߾ʯࢇ੼एɼѦбଞ୯ʎࡖٕਫ਼୪ԯࢇ࢑Ь  ࢿତࡵ‫ض‬ˁ࣏ତࢂࡪ୪‫߾۽‬оଞЬհࡁʢ߾ࠒଯࡶ‫׵‬৔ए߅ТଞЬ

ࢿࢸ˲ΰ‫˃˗ࢂ˕ئ‬ ࢼ࣌ࠆ̓‫ؼ‬ଲ ࠉ̖‫ؿ‬ଵ˕˗԰ѹָۢ‫ؿ‬ଵ˃ߟࡵࠉ̖‫ؿ‬ଵ߾ࢶࡈѸЕ˲ΰ‫ࢂئ‬ʈଭ̍ࢽ߾Ҭհ Ь3(,&/ࡵ̐Ԝଞ̍ࢽ߾؆ଜए߉Е‫߾ࡢإ‬۰փࢶࡈଞЬ

ࢼ࣌˒‫˯˒ॷࢺۼ‬ɹ‫̓࣌ؼ‬ ָۢ‫ؿ‬ଵ˃ߟ߾۰ઞ‫ॺࢽۿ˕ط‬ӖЕ˲ɼ‫˗˕̖࣏ؿ‬԰ଜࠆઞ‫ط‬ଞ࣏ʢࡶٕ˕ଜ Е˲ΰ‫߾ئ‬Е3(,&/ࢇࢶࡈѸए߉ЕЬ̐Ԝଞ˲ΰ‫˕ئ‬3(,&/ࢂ̍ࢽɾ߾঻Ѫࢇ ۢʷΟЕˁࡉ୯࢕Еࢿ࠹Ѻܹ࢑Ь

ࢿࢸ‫ؼ‬ଲ‫˅ۉ‬ ࢼ࣌‫ؼ‬ଲ࢒ࡿ࣌‫ࢼؼࢺࠧۉ‬ːࡿ‫ב‬  ‫ؿ‬ଵ‫ˈی‬ɼ؈ۢବࡶܹѦ࢑Ьˈ‫ࡶ׸‬փଞ̒ʠɼ࢑Е‫ؿ‬ଵ࢕Еࢇʨࡶ୙ࢉଜ ̛ࡢଞଢչࢶࢉࢸ८ձऑଭଜࠆߞଞЬ  ‫ؿ‬ଵ‫ˈی‬ɼ؈ۢବࡸࡶ߅Е‫ؿ‬ଵ࢕Е‫ؿ‬ଵܹ࢈࢕ࢂ‫ܕ࣯˕ࡕݦ‬ձߊ߅ΰˈ̐ ߾ʯߊչ̛ࡢଥফ۴ࢂϠԯࡶЬଜࠆߞଞЬࢇࢽ‫ؿ‬Е‫ؿ‬ଵ࢕ɼ‫ؿ‬ଵܹ࢈࢕ ࢂ‫ܕ࣯˕ࡕݦ‬ձ߇ΤԻٕਫ਼ࢊࢇΰ߾ࢿ˓Ѹ߭ߞଞЬ  ‫ؿ‬ଵ࢕ɼࢿତ˕ࢿତࡶࡢ؆ଜЕˁࡉ‫ؿ‬ଵܹ࢈࢕ࢂ‫ؿ‬ଵ̖ঐ˱̀ଭ‫ݤࢂی‬ ୪Е‫ؿ‬ଵܹ࢈࢕ɼ࢕‫̀ࢂݦ‬չձߊʯѹҶԻٕਫ਼ʎ‫ݤ‬ѹЬ

653

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

ࢼ࣌࢒‫ێ‬  ˃ߟ঑ʼ୯ϗࢇΰ߾ଔ‫ؿ‬ଵ࢕ɼ࢕‫ࡶۑ‬ଜЕˁࡉ‫ؿ‬ଵ࢕Е‫ؿ‬ଵ̖ए̗ࢂ‫ה‬ ɼִࢿѹЬࢇˁࡉ‫ؿ‬ଵ࢕Еࢿ࣏߾ҬԂଥए୚̗̖˕̛੉̗ٕձए̗ ଥߞଞЬ  ࢿତࡵЬࡸࢂˁࡉ߾Еࢶࡈଜए߅ТଞЬ D ଔ‫ؿ‬ଵ࢕ࢂ࢕‫ݤۑ‬Ѧɼ࢕ࡪԻࡋࢂ‫ی‬ʼࢽࡶଟܹ߷Еۘ੓߾۰ଭଜࠆऑ ˁࡉӖЕ E ଔ‫ؿ‬ଵ࢕ɼ˃ߟ঑ʼ‫ࢂࢂۑ࢕߾ݤ‬Ѧɼ߷߹ыʨࡳԻࢂ‫ࠆࢂݪ‬ए߷ࢇऎ ָѹˁࡉ

ࢼ࣌଑‫ؼ‬ଲ࢒߻лଛ˅ࡿ‫ࢆێ‬  ‫ؿ‬ଵܹ࢈࢕ɼଔ‫ؿ‬ଵ࢕ձˈࢂԻ‫ۑ‬ଥଞˁࡉ̐ࢂܹ࢈࢕एࢽࡵঋୣѹʨࡳԻ ‫ق‬Ь  ‫ؿ‬ଵ̖ঐ˱̀ࢂߦѦЕߦܹࢉࢇଔ‫ؿ‬ଵ࢕ձˈࢂԻ‫ۑ‬ଥଞˁࡉ߾Е୪˕ɼ߷ Ь  ‫ؿ‬ଵܹ࢈࢕ࢉѰ‫ؿ߾ݤ‬ଵ˃ߟ࢕ࢉ࢕ɼˈࢂԻଔ‫ؿ‬ଵ࢕ձ‫ۑ‬ଥଞˁࡉ‫ؿ‬ଵ̖ ࡵए̗Ѹए߅ТଞЬ  ଔ‫ؿ‬ଵ࢕ձ‫ۑ‬ଥଞ‫ؿ‬ଵܹ࢈࢕ӖЕ‫ؿ‬ଵ˃ߟ࢕ɼࢽк؏ࡢҟࢂ‫ࡪی‬Ի̐ଭࡢ ɼࢽк୘ѸЕˁࡉ‫࣏ق‬Еࢶࡈଜए߅ТଞЬ

ࢿࢸࢴୗ˒ଢߜ ࢼ࣌ˀߜࡿࢴୗ  ࢿ࣏Е‫ؿ‬ଵՎࢂࢷ୚ࢇΟଥए୚̗̖ࢇ࢑Еָۢ‫ؿ‬ଵ˃ߟ߾Еࢶࡈଜए߅ ТଞЬ̐Ԝଞ‫ؿ‬ଵ˃ߟࡵࢿତ߾Ҭհࢽ‫ؿ‬ɼѦбଞ୯࣯ࢇΰ߾‫ؿ‬ଵ˃ߟ ࢕ɼࢷ୚ɼߖࢂए̗ࡶࡁ˱ଜए߉Еଞ‫ؿ‬ଵՎɼࠬΨѹ‫ؿ‬ଵ˃ߟࡳԻࢷ୚ѹ Ь  ‫ؿ‬ଵ࢕Еࢿ࣏E୎ӖЕࢿ࣏ࢿତE୎߾Ҭհ̛ɾࢂփՎ୯࣯ࢇ ΰ߾‫ؿ‬ଵՎࢂࢷ୚˕ଥए୚̗̖߾оଥߊԮ࣯߭ߞଜˈ‫ؿ‬ଵ˃ߟ࢕߾ʯ‫ؿ‬ଵ Վࢂࢷ୚˕ଥए୚̗̖ࣸ۴੔ଜѦԼଥߞଞЬ  ‫ؿ‬ଵՎࢂࢷ୚ӖЕଥए୚̗̖ࢂए̗ࡁঐࡵ۰ִࡳԻଥߞଞЬ

ࢼ࣌ˀߜࡿଢߜ  ‫ؿ‬ଵ˃ߟ࢕Е‫ؿ‬ଵ࢕߾ʯଥए୚̗̖ࢂࢷٕӖЕࢊٕࢂए̗ࡶ߭ГҶԂѦࡁ ˱ଟܹ࢑ࡳΟ˃ߟ঑ʼ୯ϗࢇΰ߾Еଟܹ߷Ь̐߾ҬԂ˃ߟࡵ࣏ࢽѸ ʠΟࣗՎѺܹ࢑Ь  ࢿ࣏߾ҬԂଥए୚̗̖ࢇ࢑Еָۢ‫ؿ‬ଵ˃ߟࢇଥएঋୣӖЕ‫ؿ‬ଵ࢕߾ ࢂଥী‫ܕ‬Ѹִࢿ࣏ࢂˁࡉԂଟएԂѦଥए୚̗̖ࡶए̗ଥߞଞЬ  ‫ؿ‬ଵ࢕Е֐ϗࢽԷࢶࢉˁࡉ‫ڸ‬փ߅ТԂ‫ؿ‬ଵ˃ߟ࢕ࢂࡁঐࢇ࢑ЕҶցЬ֐ϗ ଥए୚̗̖ࢂୃࢢߖܹࠪए̗ࢇ‫ࢠؿ‬ѸЕ‫߾ࡢإ‬оଜࠆߊԮ࣯߭ߞଞЬ  ‫ؿ‬ଵ˃ߟ࢕߾ʯ̀ଞࢇ࢑Еࢇ࢈ࢂؑкࡵଥए୚̗̖ࡶшଜࠆए̗ѸΟଥए ୚̗̖ࢇ‫ࢽۏ‬ѹ˃ࣛ߾ࢇ‫ؑ׵‬кٕٗࢇ؆ࠒѹˁࡉЕࢿ࠹ଞЬ  ‫ؿ‬ଵ࢕Е‫ࢂ߾࣏ق‬ଞ̖ߖࡶ‫ؿ‬ଵ˃ߟ࢕ࢂঐ˱ձ؇ࡵΤԻٕਫ਼ʎࡖࢇΰ߾ ए̗ଥߞଞЬ

654

Korean: Principles of European Insurance Contract Law (PEICL) ࡪԡ‫ؿ‬ଵ˃ߟ‫ࡕئ‬৕

ࢼ࣌‫ؼ‬ଲՋࡿࢴୗଢऌୗ̔̓  ‫ؿ‬ଵ˃ߟ߾۰‫ؿ‬ଵ࢕ࢂ‫ࢢܕࢺق‬ए‫߾ئ‬ҬԂ‫ࢽۏ‬ѹ‫ؿ‬ଵՎࢂࢷ୚ӖЕ̐չˈ ଥए୚̗̖ࢂ؏‫ࡶݥ‬۶ָଥߞଞЬଥए୚̗̖˕‫ؿ‬ଵՎࢂࢷ୚ࢂ‫ࡵݥ؏ࢽۏ‬ ˓ࢉѹ‫ؿ‬ଵܹչࡕ৕˕ࢿତࡶࣱܹଥߞଞЬ  ‫ؿ‬ଵ࢕ɼ˃ߟࢂ঑ʼ‫ࢿ˓ࡶࡈٸ‬ଜЕˁࡉϗࢇۘࢂ̛ɾ߾̎ҟଞ‫࡭ٸ‬Իࢇ Ք߭ࣇߞଞЬ  ‫ؿ‬ଵ࢕Еଥए୚̗̖ࡶए̗ଜЕіࢶࢽଞ‫ࢉ˓ࡶࡈٸ‬ѹ‫ؿ‬ଵܹչࡕ৕߾ҬԂ ‫ࢽۏ‬ଜˈ̐‫׵ࢇ߾ࢽۏ‬ʃߖٗࢇ૦ଡѹˁࡉɼ߅Фଞۘкଞ‫ࢿ˓ࡶࡈٸ‬ଟ ܹ࢑Ь

ࢿٕЬ঎‫ؼ‬ଲ ࢿࢠЬ঎‫ؼ‬ଲࡿછ‫ࢺ̊ش‬ ࢿࢸЬ঎‫ؼ‬ଲࢇ‫؃‬ ࢼ࣌2'+%.ࡿࢳࡅ Я঑ࢂо૲ࠪ‫ؿ‬ଵ࢕ɼࢿ࣏߾ҬԂ˃ߟࡶ঑ʼଞˁࡉЯ঑‫ؿ‬ଵ˃ߟࡵ3(,&/ ࢂоۘࢇѹЬЯ঑‫ؿ‬ଵ˃ߟࡵ‫߾ࢸࢿࢂࢠق‬ҬհٕࣗࢶЯ঑‫ؿ‬ଵࢇʠΟ‫ࢠق‬ ࢂࢿࢸ߾ҬհࢎࢂЯ঑‫ؿ‬ଵࢇЬ

ࢼ࣌Ь঎л૯࢒ࡿࢇ‫בࡿࡿ࣬ࢳ؃‬  Я঑‫ؿ‬ଵ˃ߟࢂ୆ۘ˕ࢇଭ߾۰Я঑о૲࢕Е˱‫ࢽࢂࡕ۽‬кଞࢇ࢈঴˱ձࡢ ଜࠆ۴ԛଞ˗չ࢕ࢂ࣯ࢂࢂ‫ה‬ԻଭѰଥߞଞЬ  Я঑ࢂо૲࢕Е‫ؿ‬ଵ࢕ࢂֻҘࣸࡁଞ੼एձ˱‫߾ࡕ۽‬ʯࢷбଥߞଜֲ˃ߟࢂ ֻҘ‫ض‬ˁ‫ی‬ତ߾оଜࠆߊԮߞଞЬ

ࢿࢸْࣔࢳЬ঎‫ؼ‬ଲ ࢼ࣌2'+%.ࡿࢳࡅ ଗࡁଞˁࡉٕࣗࢶЯ঑‫ؿ‬ଵ߾۰3(,&/ࡶࣱࡈଞЬ

ࢼ࣌ࢺ‫ࢼؼ‬ːࡿ‫ב‬  ࢉࢇЯ঑߾ɼ࢏ଜЕˁࡉо૲࢕Е̐ɼ࢏࢕߾ʯЬࡸࢂ‫ی‬ତࡶए঑߷ࢇߊ ԮߞଞЬ D ‫ؿ‬ଵ˃ߟࢂ࣑ࢢ E ‫ࡢإࢂࢠؿ‬ F  ࠖ  ؏࣏৔ࠪ‫ؿ‬ଵۘࢂ‫୎ؿ‬ձࡪएଜЕіଗࡁଞ̛੉࣏ʢ‫؀‬ G ঐ˱ࢸ८  ˱‫ࢿࢇࡕ۽‬ତ߾ҬԂଗࡁଞࢽ‫ؿ‬ձܹԶଜࠑЬЕऎָॺࢎࡵЯ঑о૲࢕߾ʯ ࢑Ь

ࢼ࣌‫ؼ‬ଲ࢒ࡿˀߜଢऌ  ࢿ࣏ࢂীए߾ҬԂ‫ؿ‬ଵ࢕ࢂ˃ߟଥए̀ଭ‫ی‬Е‫ؿ‬ଵ‫ˈی‬ձࢊࡳ੃˱‫ࡕ۽‬ ࡶ‫ؿ‬ଵۘࢂ‫ࡳࢠؿ‬Իٕਫ਼ࢿ࠹ଜЕʨࢇࢿଞѹˁࡉ߾փࢶࢽଞʨࡳԻ‫ق‬Ь

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

 ࢿ࣏ࠪࢿ࣏ࢂࢿତࢂীए߾ҬԂ‫ؿ‬ଵ࢕ࢂ˃ߟଥए̀ଭ‫ی‬Еଗࡁ ଞࠖ؏࣏৔ձҬծए߉ʠΟ࢕‫ࡢࢂݦ‬ଵࡶऎɼ‫ؿࡶࡕ۽˱੃ݤ‬ଵۘࢂ‫߾ࢠؿ‬ ۰ؑࢿ‫ੁݤ‬Еˁࡉ߾փ୪ԯࢇ࢑Ь  ࢿ࣏ࢂীए߾ҬԂ‫ؿ‬ଵ˃ߟࢂࣗՎЕ࢕‫̀ࢂݦ‬չձ‫ؿ‬ଵּࢶࡶߦѦଞ ˱‫ؿࡶࡕ۽‬ଵۘࢂ‫߾ࢠؿ‬۰ؑࢿ‫ੁݤ‬Еˁࡉ߾փ୪ԯࢇ࢑Ь

ࢼ࣌‫ؼ‬ଲ‫ࡳ࢝ؼە‬ऌ‫ܓ‬ଜ˽նЬ঎ֵ۟‫ؼ‬ଲ  ٕࣗࢶЯ঑ָۢ‫ؿ‬ଵ˃ߟࢇࣗՎѸʠΟӖЕ˱‫ࢇࡕ۽‬Я঑ձੌઁଜЕˁࡉ‫ؿ‬ ଵۘ‫ࡵࢠؿ‬ʎࡖӖЕЯ঑ָۢ‫ؿ‬ଵ˃ߟࢇࣗՎ୯‫ڃ‬հʨࡶࣱ̛ࡳԻࣗՎଞ ЬࢇԜଞˁࡉΟ֞ए˱‫ࡵࡕ۽‬ଥк‫ؿ‬ଵ࢕߾ʯࡢଵ߾оଞۚԻࡋૡɼ߷ࢇ Ѱࢊଞ‫ࡳࢠؿ‬Իʎ‫ۚࡶߟ˃ط‬Հʯ঑ʼଟ̀չɼ࢑Ь  Я঑о૲࢕Е˱‫߾ࡕ۽‬ʯЬࡸࢂ‫ی‬ତࡶए঑߷ࢇߊԮߞଞЬ D Я঑ָۢ‫ؿ‬ଵ˃ߟۘ‫ؿ‬ଵۘ‫ࣗࢠؿ‬Վࢂࢎ‫؃‬ E ࢿତ߾Ҭհ̀չ‫؀‬ F  ̐  ̀չࢂଭ‫ئ؏ی‬  ˱‫ࢿ࣏ࢿࢇࡕ۽‬ତ߾ҬԂ࢕‫̀ࢂݦ‬չձଭ‫ی‬ଜˈ࢕ଞЬִ‫ؿ‬ଵ࢕ࠪ ˱‫ࡕ۽‬ɾࢂ˃ߟࡵ˱‫ࢂࢢୃࢂࡕ۽‬ʢʈۘ੓ӖЕࠉԶࡶˈԮଜए߅Тଜˈʎ ‫̛߾ߟ˃ط‬টଜࠆ‫ࢽۏ‬ѹ‫ؿ‬ଵՎԻʎ‫ؿط‬ଵ˃ߟࡳԻए‫ܖ‬ଟܹ࢑Ь

ࢿࢸࢋࡿЬ঎‫ؼ‬ଲ ࢼ࣌ࢋࡿЬ঎‫ؼ‬ଲ੹৒  ࢎࢂЯ঑‫ؿ‬ଵ˃ߟࡵ‫ؿ‬ଵ࢕ࠪ˱‫ࢂ߾ࡕ۽‬ଥࢊࣗࢂ̛‫ߟ˃ق‬ΰ߾۰঑ʼଞʎ ‫ؿࢉࢶط‬ଵ˃ߟ˕‫ؿ‬ଵ࢕ࠪЯ঑о૲࢕‫࣏ࢂߟ˃ق̛ࢂࢇی‬ଢࡳԻ‫ق‬Ь  3(,&/ࡵЯ঑о૲࢕ࠪ‫ؿ‬ଵ࢕ɼ̐߾оଞࢶࡈ߾ଢࢂଞʎ‫ؿط‬ଵ˃ߟ߾Еࢶࡈ ѸΟࢿ࣏ࠪࢿ࣏ձࠖ࠹Իଜࠆ̛‫߾ߟ˃ق‬Еࢶࡈଜए߅ТଞЬ

ࢼ࣌ߜ˔˒࣌ʟࡿ‫س‬ʾ ࢿ࣏ࢿ࣏‫࣏ࢂ࣏ࢿ؀‬ʢࢂࢇଭ߾ଗࡁଞˁࡉ̛‫˗ߟࢂߟ˃ق‬ ˕࣏ʢ‫ض‬ˁࡵʎ‫ؿط‬ଵ˃ߟ߾ଞଜࠆࠒଯࢇ࢑Ь

ࢼ࣌ऌ‫࢝ؼࢆࢳܓ‬ ̛‫ࣗࢂߟ˃ق‬ՎӖЕЯ঑˱‫ઁੌࢂٕࢊࣸࡕ۽‬Е‫ؿ‬ଵ࢕ࠪΟ֞ए˱‫ࡕ۽‬ɾࢂ‫ؿ‬ ଵ˃ߟ߾Еࠒଯࡶ‫׵‬৔ए߅ТଞЬ

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Polish version by Dariusz Fuchs, Łukasz Szymański and Magdalena Boguska

Zasady europejskiego prawa ubezpieczeń (ZEPU) Część 1: Postanowienia wspólne dla wszystkich rodzajów umów ubezpieczenia objętych zasadami europejskiego prawa ubezpieczeń (ZEPU) Rozdział 1: Przepisy ogólne Sekcja pierwsza: Stosowanie ZEPU Sekcja druga: Przepisy ogólne Sekcja trzecia: Egzekucja

Rozdział 2: Zawarcie umowy ubezpieczenia Sekcja pierwsza: Przedkontraktowy obowiązek ubezpieczającego udzielenia informacji Sekcja druga: Przedkontraktowe obowiązki ubezpieczyciela Sekcja trzecia: Zawarcie umowy ubezpieczenia Sekcja czwarta: Ochrona tymczasowa i ochrona udzielana przed zawarciem umowy Sekcja piąta: Dokument ubezpieczenia Sekcja szósta: Czas trwania umowy ubezpieczenia Sekcja siódma: Obowiązki informacyjne ubezpieczyciela po zawarciu umowy ubezpieczenia

Rozdział 3: Pośrednicy ubezpieczeniowi Rozdział 4: Ryzyko ubezpieczeniowe Sekcja pierwsza: Środki prewencyjne Sekcja druga: Zwiększenie ryzyka zajścia wypadku ubezpieczeniowego Sekcja trzecia: Zmniejszenie ryzyka zajścia wypadku ubezpieczeniowego

Rozdział 5: Składka ubezpieczeniowa Rozdział 6: Wypadek ubezpieczeniowy Rozdział 7: Przedawnienie roszczeń z umowy ubezpieczenia Część 2: Postanowienia wspólne dla ubezpieczenia szkody Rozdział 8: Suma ubezpieczenia i wartość ubezpieczenia

Rozdział 9: Uprawnienie do odszkodowania Rozdział 10: Subrogacja Rozdział 11: Osoby ubezpieczone inne niż ubezpieczający Rozdział 12: Ubezpieczane ryzyko Część 3: Zasady ogólne dla ubezpieczeń na stałe sumy Rozdział 13: Dopuszczalność Część 4: Ubezpieczenie Odpowiedzialności Cywilnej Rozdział 14: Postanowienia Ogólne Rozdział 15: Roszczenie Bezpośrednie/Actio Directa Rozdział 16: Ubezpieczenia Obowiązkowe Część 5: Ubezpieczenia na życie Rozdział 17: Postanowienie szczególne dotyczące ubezpieczeń na życie Sekcja pierwsza: Osoby trzecie Sekcja druga: Zawarcie oraz obowiązywanie umowy Sekcja 3: Zmiany w trakcie okresu obowiązywania umowy Sekcja 4: Prawo Krajowe Sekcja 5: Wypadek Ubezpieczeniowy Sekcja 6: Przekształcenie i wykup

Część 6: Ubezpieczenia Grupowe Rozdział 18: Postanowienia Szczególne dla Ubezpieczeń Grupowych Sekcja pierwsza: Postanowienia ogólne na ubezpieczeń grupowych Sekcja druga: Akcesyjne ubezpieczenie grupowe Sekcja Trzecia: Fakultatywne Ubezpieczenie grupowe

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Część 1: Postanowienia wspólne dla wszystkich rodzajów umów ubezpieczenia objętych zasadami europejskiego prawa ubezpieczeń (ZEPU) Rozdział 1: Przepisy ogólne Sekcja pierwsza: Stosowanie ZEPU Artykuł 1:101 Zakres zastosowania (1) ZEPU stosuje się co do zasady do ubezpieczeń gospodarczych, nie wyłączając ubezpieczeń wzajemnych. (2) ZEPU nie stosuje się do ubezpieczeń pośrednich (reasekuracji).

Artykuł 1:102 Opcyjność stosowania ZEPU ZEPU powinny mieć zastosowanie, jeżeli strony, z uwzględnieniem ewentualnych ograniczeń wyboru prawa, tak postanowiły. Zgodnie z art. 1:103 ZEPU powinny mieć zastosowanie w całości bez wyłączeń poszczególnych postanowień.

Artykuł 1:103 Obligatoryjność stosowania ZEPU (1) Artykuły 1:102 zd. 2, 2:104, 2:304, 13:101, 17:101 oraz 17:503 są bezwzględnie wiążące. Pozostałe Artykuły są bezwzględnie wiążące, o ile odnoszą się do sankcji z tytułu nieuczciwych i zawinionych zachowań. (2) Umowa może wyłączyć stosowanie pozostałych postanowień, o ile takie wyłączenie nie narusza interesów ubezpieczającego, ubezpieczonego lub beneficjenta. (3) Wyłączenie, o którym mowa powyżej w par. 2 jest dopuszczalne na korzyść każdej ze stron w umowach ubezpieczenia dużych ryzyk w rozumieniu Artykułu 13 par. 27 Dyrektywy 2009/138/ WE. W przypadku grupowych umów ubezpieczenia wyłączenie możliwe jest wyłącznie w stosunku do ubezpieczonego, który spełnia przesłanki określone w Artykule 13 par. 27 lit. b) oraz c) Dyrektywy 2009/138/WE.

Artykuł 1:104 Wykładnia Przepisy ZEPU powinny być wykładane zgodnie z treścią, kontekstem, celem i wynikami analizy prawno – porównawczej. Uwaga powinna być zwrócona w szczególności na zasady dobrej wiary, zasady dobrych praktyk rynkowych, a także na jednolitość stosowania oraz odpowiednią ochronę ubezpieczających.

Artykuł 1:105 Prawo krajów członkowskich i zasady ogólne (1) Odniesienie do prawa krajowego, czy to w celu wyłączenia stosowania przepisów ZEPU czy to w celu rozszerzenia zakresu ich stosowania jest niedozwolone. Powyższe zastrzeżenie nie odnosi się jednak do obowiązkowych przepisów prawa krajowego właściwych dla danej branży ubezpieczeń jeśli brak jest przepisów ZEPU odnoszących się do danego zagadnienia. (2) Zagadnienia wynikłe z umowy ubezpieczenia, które nie są wprost uregulowane w ZEPU, są rozstrzygane w zgodzie z PECL1 a w razie braku odpowiedniej regulacji w tym zakresie, w zgodzie z zasadami ogólnymi wspólnymi dla systemów prawnych Państw Członkowskich. 1

Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part

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Sekcja druga: Przepisy ogólne Artykuł 1:201 Umowa ubezpieczenia (1) ”Umowa ubezpieczenia” to umowa, w ramach której jedna strona – ubezpieczyciel, zobowiązuje się wobec drugiej strony – ubezpieczającego, do pokrycia określonego ryzyka w zamian za składkę ubezpieczeniową; (2) „Wypadek ubezpieczeniowy” oznacza zajście zdarzenia w zakresie ryzyka ubezpieczeniowego określonego w umowie; (3) „Ubezpieczenie szkody” oznacza ubezpieczenie na podstawie którego ubezpieczyciel jest zobowiązany do wypłaty odszkodowania w razie wystąpienia szkody będącej skutkiem zajścia wypadku ubezpieczeniowego (4) „Ubezpieczenie na stałe sumy” oznacza ubezpieczenie w ramach którego ubezpieczyciel jest zobowiązany do zapłaty z góry określonej sumy pieniężnej w przypadku zajścia wypadku ubezpieczeniowego. (5) „Ubezpieczenie odpowiedzialności” oznacza ubezpieczenie obejmujące ryzyko ponoszenia odpowiedzialności prawnej ubezpieczonego w stosunku do poszkodowanego. (6) „Ubezpieczenie na życie” oznacza ubezpieczenie na podstawie którego obowiązek ubezpieczyciela lub obowiązek zapłaty składki ubezpieczeniowej zależy od wypadku ubezpieczeniowego zdefiniowanego wyłącznie poprzez odwołanie do śmierci lub przeżycia osoby wobec której może się ziścić ryzyko zajścia wypadku. (7) „Grupowa umowa ubezpieczenia” oznacza umowę ubezpieczenia zawartą pomiędzy ubezpieczycielem a organizatorem grupy na rzecz członków grupy pozostających we wspólnym związku z organizatorem grupy. Grupowa umowa ubezpieczenia może obejmować także rodziny członków grupy. (8) „Nie-akcesyjna grupowa umowa ubezpieczenia” oznacza grupową umowę ubezpieczenia do której członkowie grupy należą automatycznie ze względu na okoliczność przynależności do danej grupy i bez możliwości odmowy objęcia ochroną ubezpieczeniową. (9) „Akcesyjna grupowa umowa ubezpieczenia” oznacza grupową umowę ubezpieczenia której członkowie grupy zostają objęci wynikającą z niej ochroną ubezpieczeniową na podstawie złożonej deklaracji przystąpienia lub z powodu braku odmowy objęcia taką ochroną ubezpieczeniową.

Artykuł 1:202 Słowniczek (1) „Ubezpieczony” to osoba, której interes jest chroniony przed szkodą w ramach udzielanej ochrony ubezpieczeniowej na podstawie ubezpieczenia szkody; (2) „Beneficjent” to osoba na której rzecz zostanie spełnione świadczenie pieniężne ubezpieczyciela w przypadku ubezpieczenia na stałe sumy; (3) „Osoba wobec której może ziścić się ryzyko zajścia wypadku” to osoba której życie, zdrowie, integralność lub status jest przedmiotem ubezpieczenia; (4) „Poszkodowany” w ramach ubezpieczenia odpowiedzialności cywilnej, to osoba, za której śmierć, krzywdę lub inny uszczerbek w dobrach chronionych odpowiedzialny jest ubezpieczony; (5) „Agent ubezpieczeniowy” to pośrednik ubezpieczeniowy zaangażowany przez ubezpieczyciela dla marketingu, sprzedaży i obsługi umów ubezpieczenia; (6) „Składka ubezpieczeniowa” to świadczenie pieniężne ubezpieczającego na rzecz ubezpieczyciela w zamian za udzielaną ochronę ubezpieczeniową;

III (Kluwer Law International, The Hague 2003).

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

(7) „Okres trwania umowy ubezpieczenia” – oznacza okres trwania zobowiązania umownego, począwszy od zawarcia umowy aż do wygaśnięcia umowy wraz z upływem oznaczonego i uzgodnionego w umowie terminu; (8) „Okres trwania ubezpieczenia” – oznacza okres w którym ubezpieczający zobowiązany jest do opłacania składki ubezpieczeniowej zgodnie z umową; (9) „Okres trwania odpowiedzialności” oznacza okres udzielanej ochrony ubezpieczeniowej. (10) „Ubezpieczenie obowiązkowe” oznacza umowę ubezpieczenia zawartą w wykonaniu obowiązku ubezpieczenia wynikającego z przepisów prawa.

Artykuł 1:203 Język i wykładnia dokumentów2 (1) Wszystkie dokumenty dostarczane przez ubezpieczyciela powinny być sformułowane w języku, w którym zawierano umowę, w sposób prosty i zrozumiały. (2) W razie wątpliwości w stosunku do użytych sformułowań zawartych w dokumentach i informacjach dostarczonych przez ubezpieczyciela, postanowienia należy interpretować na korzyść odpowiednio ubezpieczającego, ubezpieczonego lub beneficjenta.

Artykuł 1:204 Odbiór dokumentów: ciężar dowodu Na ubezpieczycielu spoczywa ciężar udowodnienia, że ubezpieczający otrzymał wszystkie dokumenty.

Artykuł 1:205 Forma oświadczeń Zgodnie z szczegółowymi zasadami zawartymi w ZEPU, oświadczenia woli składane przez osobę składającą wniosek ubezpieczeniowy, ubezpieczającego, ubezpieczonego lub beneficjenta dotyczące umowy ubezpieczenia dla swej ważności nie wymagają żadnej szczególnej formy.

Artykuł 1:206 Domniemanie wiedzy Jeżeli jakakolwiek osoba jest umocowana przez ubezpieczającego, ubezpieczonego lub beneficjenta w zakresie zawarcia i wykonania umowy ubezpieczenia, to domniemywa się, iż odpowiednia wiedza, którą posiada lub powinna posiadać ta osoba w celu wypełnienia obowiązków jest wiedzą ubezpieczającego, ubezpieczonego lub beneficjenta.

Artykuł 1:207 Zasada równego traktowania3 (1) Płeć, ciąża, macierzyństwo, narodowość, rasa lub pochodzenie nie mogą być czynnikami powodującymi w stosunku do poszczególnych osób różnice w składach ubezpieczeniowych lub świadczeniach. (2) Postanowienia umowy, które naruszają par. 1, w szczególności postanowienia odnoszące się do składki ubezpieczeniowej, nie wiążą ubezpieczającego lub ubezpieczonego. Z uwzględnieniem par. 3 strony są związane umową w pozostałym zakresie w zgodzie z przepisami dotyczącymi zakazu dyskryminacji. (3) W przypadku naruszenia par. 1, ubezpieczający jest uprawniony do wypowiedzenia umowy. Pisemne oświadczenie o wypowiedzeniu powinno być złożone w terminie dwóch miesięcy od dnia w którym ubezpieczający dowiedział się o naruszeniu par. 1.

2 3

Artykuł 1:203 par. 2 oparty jest na treści art. 5 Dyrektywy 93/13/EEC. Artykuł oparty jest na treści Dyrektywy 2004/113/EC oraz orzeczeniu ETS Test Achats [2011] ECR I-773.

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Polish: Zasady europejskiego prawa ubezpieczeń (ZEPU)

Artykuł 1:208 Testy genetyczne (1) Ubezpieczyciel nie może żądać od wnioskodawcy, ubezpieczającego lub osoby wobec której może ziścić się ryzyko zajścia wypadku przeprowadzenia testu genetycznego lub ujawnienia wyników takiego testu jak również informacje takie nie mogą być wykorzystane przez ubezpieczyciela do oceny ryzyka ubezpieczeniowego. (2) Ograniczenia wynikające z par. 1 nie dotyczą ubezpieczeń osobowych w przypadku, gdy osoba wobec której może ziścić się ryzyko zajścia wypadku ukończyła lat 18 lub więcej a suma ubezpieczenia przekracza kwotę 300.000 EUR lub świadczenie, który ma zostać wypłacone z tej umowy ubezpieczenia przekracza rocznie kwotę 30.000 EUR.

Sekcja trzecia: Egzekucja Artykuł 1:301 Nakazy4 (1) Upoważniony podmiot, zdefiniowany w par. 2, jest uprawniony do występowania do właściwego sądu krajowego lub organu w celu zapobieżeniu naruszania przepisów ZEPU, w zgodzie z art. 1:102. (2) Upoważniony podmiot oznacza organ lub organizacje znajdującą się na liście sporządzonej przez Komisję Europejską na podstawie Artykułu 4 Dyrektywy 2009/22/EC Parlamentu Europejskiego i Rady z dnia 23 kwietnia 2009 roku w sprawie nakazów zaprzestania szkodliwych praktyk w celu ochrony interesów konsumentów.

Artykuł 1:302 Pozasądowe sposoby rozstrzygania sporów Stosowanie ZEPU nie wyklucza korzystania przez ubezpieczającego, ubezpieczonego i beneficjenta z pozasądowych sposobów rozstrzygania sporów.

Rozdział 2: Zawarcie umowy ubezpieczenia Sekcja pierwsza: Przedkontraktowy obowiązek ubezpieczającego udzielenia informacji Artykuł 2:101 Powinność deklaracji ryzyka (1) Ubezpieczający obowiązany jest podać do wiadomości ubezpieczyciela wszystkie znane sobie okoliczności, o których ubezpieczający wiedział lub powinien był wiedzieć, i które są przedmiotem zrozumiałych i jednoznacznych pytań zadanych przez ubezpieczyciela. (2) Okoliczności o których mowa w par. 1, dotyczą także tych o których wiedział lub powinien był wiedzieć ubezpieczony.

Artykuł 2:102 Naruszenie (1) Jeżeli ubezpieczający naruszył art. 2:101, zgodnie z postanowieniami par. 2 – par. 5 niniejszego artykułu, ubezpieczyciel jest uprawniony do przedstawiania uzasadnionych zmian w zawartej umowie albo do wypowiedzenia umowy. W tym celu ubezpieczyciel powinien oświadczyć o swoim zamiarze na piśmie, wraz z informacją o prawnych skutkach jego decyzji, w terminie jednego miesiąca od dnia w którym ubezpieczyciel powziął informacje o naruszeniu art. 2:101 lub od dnia w którym naruszenie art. 2:101 stało się oczywiste. 4

Artykuł oparty jest na treści Dyrektywy 2009/22/EC.

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(2) Jeżeli ubezpieczyciel zaproponował wprowadzenie uzasadnionych zmian w zawartej umowie, umowa powinna trwać w zgodzie z zaproponowanymi zmianami, chyba że ubezpieczający odrzuci propozycje zmian. Uprawnienie ubezpieczającego do odrzucenia propozycji zmian wygasa w terminie jednego miesiąca od dnia otrzymania informacji, o której mowa w par. 1. W przypadku odrzucenia zaproponowanych zmian, ubezpieczyciel ma prawo wypowiedzieć umowę w terminie jednego miesiąca od dnia otrzymania oświadczenia ubezpieczającego o odrzuceniu propozycji zmian. (3) Uprawnienie do wypowiedzenia umowy w przypadku naruszenia art. 2:101 nie przysługuje ubezpieczycielowi, jeśli ubezpieczający naruszył art. 2:101 w sposób nieumyślny chyba, że ubezpieczyciel udowodni, że umowy by nie zawarł, gdyby wiedział o informacji, będącej przedmiotem naruszenia art. 2:101. (4) Wypowiedzenie umowy staje się skuteczne w terminie jednego miesiąca od dnia w którym ubezpieczający otrzymał oświadczenie o wypowiedzeniu umowy o którym mowa w par. 1. Zmiana umowy staje się skuteczna z chwilą ustaloną przez strony. (5) Jeżeli wypadek ubezpieczeniowy został spowodowany przez zdarzenie będące wynikiem niedbałości lub wprowadzenia w błąd przez ubezpieczającego, a wypadek miał miejsce przed wypowiedzeniem umowy lub jej zmianą, świadczenie ubezpieczyciela nie przysługuje, o ile nie zawarłby on umowy, gdyby wiedział o informacji będącej przedmiotem naruszenia art. 2:101. Jeżeli jednak ubezpieczyciel zawarłby w tych okolicznościach umowę, ale w zamian za wyższą składkę lub na innych warunkach, świadczenie ubezpieczyciela przysługuje proporcjonalnie do takiej składki lub innych warunków.

Artykuł 2:103 Wyjątki Sankcji przewidzianych w art. 2:102 nie stosuje się w sytuacji, gdy: (a) na pytanie ubezpieczyciela nie udzielono odpowiedzi, lub informacja dostarczona była oczywiście niepełna lub oczywiście nieprawidłowa; (b) informacja która powinna być udzielona albo która była udzielona w sposób nieprawidłowy, nie była w ogóle istotna dla podjęcia decyzji o zawarciu przez ubezpieczyciela umowy albo nie była istotna dla podjęcia decyzji o zawarciu przez ubezpieczyciela umowy na uzgodnionych warunkach na których zawarto umowę ubezpieczenia; (c) ubezpieczyciel pozostawił w przekonaniu ubezpieczającego, że udzielenie informacji nie jest konieczne; lub (d) o informacji ubezpieczyciel wiedział lub powinien był wiedzieć.

Artykuł 2:104 Naruszenie z winy umyślnej Bez względu na sankcje przewidziane w art. 2:101, ubezpieczyciel jest upoważniony do unieważnienia umowy i dochodzenia roszczenia o należną składkę ubezpieczeniową, jeżeli doszło do zawarcia umowy przez ubezpieczającego umyślnie naruszającego art. 2:101. Oświadczenie o unieważnieniu umowy powinno zostać doręczone ubezpieczającemu w terminie dwóch miesięcy od dnia w którym ubezpieczyciel powziął informację o umyślnym naruszeniu art. 2:201.

Artykuł 2:105 Dodatkowe informacje Artykuły 2:102-2:104 dotyczą także każdej innej informacji udzielonej przez ubezpieczającego w trakcie zawierania umowy poza informacjami wymienionymi w art. 2:101. Artykuł 2:106 Informacje genetyczne

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Postanowień niniejszej Sekcji nie stosuje się do wyników testów genetycznych, które są przedmiotem regulacji Artykułu 1:208 par. 1.

Sekcja druga: Przedkontraktowe obowiązki ubezpieczyciela Artykuł 2:201 Dokumenty przedkontraktowe5 (1) Ubezpieczyciel obowiązany jest dostarczyć ubezpieczającemu wraz z kopią proponowanych warunków umowy także dokument zawierający następujące informacje: (a) nazwę, imię, adres zamieszkania, siedzibę stron umowy, w szczególności adres siedziby i formę prawną ubezpieczyciela oraz (jeśli to uzasadnione) jego oddziału zawierającego umowę ubezpieczenia lub udzielającego ochrony ubezpieczeniowej; (b) nazwę, imię, adres zamieszkania, siedzibę ubezpieczonego, beneficjenta lub osoby wobec, której może ziścić się ryzyko zajścia wypadku; (c) nazwę, imię, adres zamieszkania, siedzibę pośrednika ubezpieczeniowego; (d) określenie przedmiotu ubezpieczenia i zakres ryzyk objętych ubezpieczeniem; (e) sumę ubezpieczenia i wszelkie koszty; (f) wysokość składki ubezpieczeniowej i sposób jej wyliczenia; (g) termin zapłaty składki, a także miejsce i sposób płatności; (h) okres trwania umowy ubezpieczenia, włącznie ze sposobem jej wypowiedzenia oraz okresem trwania odpowiedzialności; (i) prawo do odwołania złożonego wniosku ubezpieczeniowego oraz prawo odstąpienia od umowy na podstawie odpowiednio dla ubezpieczeń innych, niż ubezpieczenia na życie art. 2:303 lub art. 17:203 dla ubezpieczeń na życie; (j) właściwości ZEPU dla umowy ubezpieczenia; (k) istnienie pozasądowych sposobów rozstrzygania sporów i ich dostępność dla ubezpieczającego; (l) fundusze gwarancyjne i inne systemy zabezpieczenia. (2) O ile to możliwe, informacje o których mowa w par. 1, powinny być dostarczone ubezpieczającemu, w czasie wystarczającym do swobodnego podjęcia decyzji o zawarciu lub nie zawarciu umowy. (3) Jeżeli ubezpieczający w celu zawarcia umowy wypełnia wniosek lub kwestionariusz przygotowany przez ubezpieczyciela, ubezpieczyciel zobowiązany jest dostarczyć następnie ubezpieczającemu jego kopię.

Artykuł 2:202 Obowiązek wskazania różnic między oczekiwaną a proponowaną treścią umowy (1) W trakcie zawierania umowy, ubezpieczyciel jest zobowiązany poinformować ubezpieczającego o wszystkich różnicach pomiędzy oferowaną ochroną ubezpieczeniową a oczekiwaniami ubezpieczającego o których ubezpieczyciel wie lub powinien wiedzieć, biorąc pod uwagę okoliczności oraz sposób zawarcia umowy, w szczególności okoliczność czy ubezpieczający działał przy pomocy niezależnego agenta ubezpieczeniowego. (2) W przypadku naruszenia par. 1:

5

Artykuł oparty jest na treści Artykułów 183-189 Dyrektywy 2009/138/WE.

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(a) ubezpieczyciel zobowiązany jest do spełnienia świadczenia na rzecz ubezpieczającego także w zakresie szkód związanych z naruszeniem obowiązku wskazania różnic, chyba że ubezpieczyciel działał tym zakresie nieświadomie, oraz (b) ubezpieczający jest uprawniony do wypowiedzenia umowy na piśmie w terminie dwóch miesięcy od dnia w którym dowiedział się o naruszeniu obowiązku o którym o mowa w par. 1.

Artykuł 2:203 Obowiązek wskazania początku ochrony Jeżeli ubezpieczający pozostaje w uzasadnionym, lecz błędnym przekonaniu, iż początek udzielanej ochrony ubezpieczeniowej przypada na chwilę przyjęcia wniosku ubezpieczeniowego, oraz ubezpieczyciel wie lub powinien wiedzieć o tym przekonaniu, ubezpieczyciel powinien niezwłocznie poinformować ubezpieczającego, iż początek udzielanej ochrony ubezpieczeniowej rozpocznie się z chwilą zawarcia umowy lub odpowiednio z chwilą opłacenia pierwszej składki ubezpieczeniowej, o ile nie przewiduje się tymczasowego udzielenia ochrony ubezpieczeniowej. W przypadku naruszenia powyższej normy ubezpieczyciel będzie odpowiedzialny na podstawie art. 2:202, par. 2(a).

Sekcja trzecia: Zawarcie umowy ubezpieczenia Artykuł 2:301 Sposób zawarcia umowy ubezpieczenia Dla zawarcia umowy ubezpieczenia nie jest wymagana żadna szczególna forma. Fakt zawarcia umowy może być dowodzony każdym sposobem dopuszczonym przez prawo, również przez złożenie ustnego oświadczenia.

Artykuł 2:302 Odwołanie złożonego wniosku ubezpieczeniowego Wniosek ubezpieczeniowy może zostać odwołany przez ubezpieczającego jeśli oświadczenie o odwołaniu dotrze do ubezpieczyciela zanim ubezpieczający otrzyma potwierdzenie zawarcia umowy od ubezpieczyciela.

Artykuł 2:3036 Prawo odstąpienia (1) Ubezpieczający jest uprawniony do odstąpienia na piśmie od umowy ubezpieczenia w terminie dwóch tygodni od dnia otrzymania potwierdzenia lub otrzymania dokumentów o których mowa w art. 2:501, w zależności od tego, które zdarzenie było późniejsze. (2) Ubezpieczający nie jest uprawniony do odstąpienia od umowy ubezpieczenia jeśli: (a) umowa została zawarta na czas krótszy niż jeden miesiąc; (b) umowa została przedłużona w zgodzie z art. 2:602; (c) umowa ubezpieczenia ma charakter tymczasowej umowy ubezpieczenia, umowy ubezpieczenia odpowiedzialności cywilnej lub grupowej umowy ubezpieczenia.

Artykuł 2:304 Klauzule abuzywne7 (1) Warunki umowy, które nie były indywidualnie negocjowane, nie wiążą ubezpieczającego, ubezpieczonego lub beneficjenta, jeżeli stoją w sprzeczności z wymogami dobrej wiary i dobrych praktyk rynkowych, powodują znaczącą nierównowagę wynikających z umowy, dla nich praw i obowiązków, biorąc pod uwagę istotę umowy ubezpieczenia a także pozostałe postanowienia umowy oraz okoliczności w których została zawarta. 6 7

Artykuł oparty jest na treści Dyrektywy 2002/65/EC. Artykuł oparty na treści Dyrektywy 93/13/EEC.

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(2) Umowa w pozostałej część obowiązuje strony, jeżeli jest to możliwe po wyłączeniu z niej określonych warunków. Jeśli nie, nieuczciwe warunki powinny być zastąpione warunkami, na które zdecydowałyby się strony, gdyby wiedziały o ich nieuczciwości. (3) Niniejszy artykuł stosuje się do warunków, które ograniczają lub zmieniają zakres ochrony ubezpieczeniowej, jednakże ocena nieuczciwego charakteru warunków nie dotyczy: (a) relacji wartości ochrony ubezpieczeniowej do składki ubezpieczeniowej, ani (b) określenia głównego przedmiotu udzielanej ochrony ubezpieczeniowej i uzgodnionej składki ubezpieczeniowej, o ile warunki te zostały wyrażone prostym i zrozumiałym językiem. (4) Warunki umowy zawsze zostaną uznane za nie wynegocjowane indywidualnie, jeżeli zostały sporządzone wcześniej i ubezpieczający nie miał w związku z tym wpływu na ich treść, zwłaszcza jeżeli zostały przedstawione konsumentowi w formie uprzednio sformułowanej umowy standardowej. Fakt, że niektóre aspekty warunku lub jeden szczegółowy warunek były negocjowane indywidualnie, nie wyłącza stosowania niniejszego artykułu do pozostałej części umowy, jeżeli ogólna ocena umowy wskazuje na to, że została ona sporządzona w formie uprzednio sformułowanej umowy standardowej. Jeżeli ubezpieczyciel twierdzi, że standardowe warunki umowne zostały wynegocjowane indywidualnie, ciężar dowodu w tym zakresie spoczywa na nim.

Sekcja czwarta: Ochrona tymczasowa i ochrona udzielana przed zawarciem umowy Artykuł 2:401 Ochrona udzielana przed zawarciem umowy (ochrona wsteczna) (1) W razie udzielania ochrony ubezpieczeniowej w okresie przed zawarciem umowy ubezpieczenia (ochrona wsteczna), jeśli ubezpieczyciel posiada wiedzę, iż do chwili zawarcia umowy nie doszło do wypadku ubezpieczeniowego, ubezpieczający zobowiązany jest do uiszczenia składek wyłącznie za okres następujący po zawarciu umowy ubezpieczenia. (2) W przypadku udzielania ochrony ubezpieczeniowej w okresie przed zawarciem umowy ubezpieczenia, jeśli ubezpieczający posiada wiedzę, że w chwili zawarcia umowy ubezpieczenia wypadek ubezpieczeniowy już zaszedł, ubezpieczyciel zgodnie z art. 2:104 zapewnia ochronę ubezpieczeniową wyłącznie za okres następujący po chwili zawarcia umowy ubezpieczenia.

Artykuł 2:402 Tymczasowa ochrona ubezpieczeniowa (1) Jeżeli strony zawierają umowę w ramach której udzielana jest tymczasowa ochrona ubezpieczeniowa, to ubezpieczyciel jest zobowiązany dostarczyć w tym zakresie informacje o których mowa w art. 2:501 (a), (b), (d), (e), oraz (h) o ile mają zastosowanie. (2) Art. 2:201-2:203 oraz art. 2:501, poza zakresem o którym mowa w par. 1, nie stosuje się.

Artykuł 2:403 Czas trwania tymczasowej ochrony ubezpieczeniowej (1) Jeżeli ubezpieczyciel udziela tymczasowej ochrony ubezpieczeniowej osobie składającej wniosek ubezpieczeniowy to udzielana tymczasowa ochrona ubezpieczeniowa nie może zakończyć się wcześniej niż w dniu rozpoczęcia udzielania ochrony ubezpieczeniowej z umowy właściwej lub w dniu otrzymania oświadczenia ubezpieczyciela o odmowie udzielenia właściwej ochrony ubezpieczeniowej. (2) Jeżeli ubezpieczyciel udziela tymczasowej ochrony ubezpieczeniowej osobie składającej wniosek ubezpieczeniowy kierowany do innego ubezpieczyciela to udzielana tymczasowa ochrona

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ubezpieczeniowa może zakończyć się wcześniej niż w terminie wskazanym w par. 1, może być także wypowiedziana przez każdą ze stron z dwutygodniowym okresem wypowiedzenia.

Sekcja piąta: Dokument ubezpieczenia Artykuł 2:501 Treść Ubezpieczyciel jest obowiązany doręczyć dokument potwierdzający zawarcie umowy ubezpieczenia oraz ogólne warunki ubezpieczenia o ile nie zawierają się one w dokumencie potwierdzającym zawarcie umowy. Wymienione dokumenty powinny zawierać następujące informacje, o ile są one właściwe: (a) nazwę, imię, adres zamieszkania, siedzibę stron umowy, w szczególności adres siedziby i formę prawną ubezpieczyciela oraz (jeśli to uzasadnione) jego oddziału zawierającego umowę ubezpieczenia lub udzielającego ochrony ubezpieczeniowej; (b) nazwę, imię, adres zamieszkania, siedzibę ubezpieczonego, a w przypadku ubezpieczeń na życie także uposażonego, lub osoby wobec, której może ziścić się ryzyko zajścia wypadku, (c) nazwę, imię, adres zamieszkania, siedzibę pośrednika ubezpieczeniowego, (d) określenie przedmiotu ubezpieczenia i zakres ryzyk objętych ubezpieczeniem, (e) sumę ubezpieczenia i wszelkie koszty, (f) wysokość składki ubezpieczeniowej i sposób jej wyliczenia, (g) termin zapłaty składki, a także miejsce i sposób płatności, (h) okres trwania umowy ubezpieczenia włącznie ze sposobem jej wypowiedzenia oraz okresem trwania odpowiedzialności; (i) prawo do odwołania złożonego wniosku ubezpieczeniowego oraz prawo odstąpienia od umowy na podstawie odpowiednio dla ubezpieczeń innych, niż ubezpieczenia na życie art. 2:303 lub art. 17:203 dla ubezpieczeń na życie (j) właściwości ZEPU dla umowy ubezpieczenia, (k) istnienie pozasądowych sposobów rozstrzygania sporów i ich dostępność dla ubezpieczającego, (l) fundusze gwarancyjnych i inne systemy zabezpieczenia.

Artykuł 2:502 Różnice treści (1) Jeżeli postanowienia znajdujące się w dokumencie potwierdzającym zwarcie umowy ubezpieczenia różnią się od postanowień wynikających z wniosku ubezpieczeniowego lub wcześniejszej umowy zawartej między stronami to, o ile takie różnice zostały wyróżnione w dokumencie potwierdzającym zawarcie umowy, domniemuje się, iż ubezpieczający akceptuje wskazane różnice, chyba że wyrazi on swój sprzeciw w terminie jednego miesiąca od dnia otrzymania dokumentu potwierdzającego zawarcie umowy ubezpieczenia. Ubezpieczyciel jest zobowiązany wyraźnie przedstawić ubezpieczającemu w formie pisemnej prawo do zgłoszenia sprzeciwu w stosunku do różnic przedstawionych w dokumencie ubezpieczenia. (2) Jeżeli ubezpieczyciel nie spełnia obowiązku wskazanego w par. 1, umowę uważa się za zawartą na warunkach określonych we wniosku ubezpieczeniowym lub we wcześniejszej umowie zawartej miedzy stronami.

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Sekcja szósta: Czas trwania umowy ubezpieczenia Artykuł 2:601 Czas trwania umowy ubezpieczenia (1) Umowę ubezpieczenia zawiera się na okres jednego roku. Strony mogą zawrzeć umowę ubezpieczenia na inny okres, jeżeli wynika to z natury ubezpieczanego ryzyka. (2) Par. 1 nie stosuje się do ubezpieczeń osobowych.

Artykuł 2: 602 Klauzula prolongacyjna (1) Po upływie okresu jednego roku o którym mowa w art. 2:601 umowę uznaję się za zawartą na kolejny okres jednego roku, chyba że: (a) ubezpieczyciel oświadczył na piśmie inaczej, w terminie co najmniej na jeden miesiąc przed upływem okresu jednego roku na który została zawarta umowa ubezpieczenia i wskazał przyczyny swej decyzji; (b) ubezpieczający oświadczy na piśmie inaczej, nie później niż na dzień, w którym upływa okres jednego roku od dnia zawarcia umowy ubezpieczenia lub w terminie jednego miesiąca od dnia otrzymania informacji ubezpieczyciela o wysokości składki ubezpieczeniowej na kolejny roczny okres, w zależności od tego, który ze wskazanych terminów jest późniejszy. Jednakże miesięczny termin od otrzymania informacji ubezpieczyciela o wysokości składki ubezpieczeniowej na kolejny roczny okres rozpoczyna swój bieg jeśli ubezpieczyciel powiadomił ubezpieczającego o tym prawie na piśmie w jasny sposób, pogrubioną czcionką. (2) Oświadczenie ubezpieczającego o którym mowa w par. 1 uważa się za skuteczne z chwilą jego nadania.

Artykuł 2:603 Zmiana treści umowy ubezpieczenia (1) W przypadku stosowania klauzuli prolongacyjnej zgodnie z art. 2:602, postanowienia umowy, które przewidują zmianę treści umowy, w szczególności w zakresie wysokości składki ubezpieczeniowej, są nieważne, chyba że spełnione są następujące warunki: (a) jakakolwiek zmiana nie może nastąpić wcześniej niż przed kolejną prolongacją umowy, (b) ubezpieczyciel powiadomi na piśmie ubezpieczającego o zmianie nie później niż jeden miesiąc przed upływem okresu na który zawarta jest trwająca umowa ubezpieczenia, i (c) powiadomienie o którym mowa w lit. (b) powinno zawierać informacje o prawie ubezpieczającego do wypowiedzenia umowy ubezpieczenia i konsekwencjach nie skorzystania z przysługującego prawa wypowiedzenia umowy. (2) Par. 1 stosuje się bez względu na inne warunki ważności zastosowania klauzul prolongacyjnych dotyczących zmian treści umowy.

Artykuł 2:604 Wypowiedzenie umowy w przypadku zajścia wypadku ubezpieczeniowego (1) Postanowienie umożliwiające wypowiedzenie umowy w przypadku zajścia wypadku ubezpieczeniowego jest nie ważne, chyba że: (a) przysługuje obu stronom, i (b) nie dotyczy umowy ubezpieczenia osobowego. (2) Zarówno postanowienie odnoszące się do wypowiedzenia umowy a także wykonanie tego prawa musi być uzasadnione. (2) Prawo do wypowiedzenia umowy ubezpieczenia w przypadku zajścia wypadku ubezpieczeniowego wygasa jeśli strona, która chce skorzystać ze swego uprawnienia, nie wypowiedziała na

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piśmie umowy w ciągu dwóch miesięcy od dnia w którym dowiedziała się o zajściu wypadku ubezpieczeniowego. (3) Ochrona ubezpieczeniowa ustaje w terminie dwóch tygodni od dnia wypowiedzenia umowy ubezpieczenia, o którym mowa w par. 3.

Sekcja siódma: Obowiązki informacyjne ubezpieczyciela po zawarciu umowy ubezpieczenia Artykuł 2:701 Ogólna reguła informowania W trakcie trwania umowy ubezpieczenia ubezpieczyciel jest obowiązany do informowania na piśmie ubezpieczającego bez zbędnej zwłoki o każdym wypadku: zmiany nazwy lub siedziby ubezpieczyciela, formy prawnej prowadzonej działalności ubezpieczeniowej, zmiany adresu siedziby głównej oraz zmiany adresu agencji lub oddziału który doprowadził do zawarcia danej umowy ubezpieczenia.

Artykuł 2:702 Pozostałe powinności informacyjne ubezpieczyciela na żądanie (1) Na żądanie ubezpieczającego ubezpieczyciel jest obowiązany udzielić bez zbędnej zwłoki informacji dotyczących: (a) w zakresie w jakim może być uzasadnionym wymaganie od ubezpieczyciela, wszelkich informacji dotyczących wykonania umowy ubezpieczenia; (b) nowych ogólnych warunków na podstawie których zawierane są umowy ubezpieczenia tego samego typu jak zawarta z ubezpieczającym. (2) Oświadczenia ubezpieczającego i ubezpieczyciela o których mowa w par. 1 wymagają formy pisemnej.

Rozdział 3: Pośrednicy ubezpieczeniowi Artykuł 3:101 Agent ubezpieczeniowy (1) Agent ubezpieczeniowy jest umocowany do dokonywania wszelkich czynności w imieniu ubezpieczyciela, które zgodnie z praktyką pozostają w zakresie działalności agenta. Wszelkie ograniczenia pełnomocnictwa agenta ubezpieczeniowego powinny być wyraźnie notyfikowane ubezpieczającemu w odrębnym dokumencie. Jednakże zakres pełnomocnictwa musi co najmniej pokrywać się z zakresem umowy agencyjnej. (2) W każdym wypadku pełnomocnictwo agenta ubezpieczeniowego musi obejmować: (a) informowanie i doradzanie ubezpieczającemu, oraz (b) przyjmowanie oświadczeń od ubezpieczającego. (3) Odpowiednia wiedza agenta ubezpieczeniowego którą posiada lub powinien posiadać w zakresie umowy agencyjnej uznawana jest za wiedzę ubezpieczyciela.

Artykuł 3:102 Agenci ubezpieczeniowi uważani za niezależnych Jeżeli agent ubezpieczeniowy będący niezależnym pośrednikiem, poprzez swoje działalnie lub zaniechanie narusza zasady nałożone przez przepisy prawa, ubezpieczyciel ponosi odpowiedzialność za takie działanie lub zaniechanie.

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Rozdział 4: Ryzyko ubezpieczeniowe Sekcja pierwsza: Środki prewencyjne Artykuł 4:101 Definicja środków prewencyjnych Środek prewencyjny oznacza postanowienie umowy ubezpieczenia, niezależnie od tego czy stanowi ono przesłankę odpowiedzialności ubezpieczyciela, na podstawie którego zobowiązano ubezpieczającego lub ubezpieczonego do określonego działania lub zaniechania określonego działania, przed zajściem wypadku ubezpieczeniowego.

Artykuł 4:102 Prawo ubezpieczyciela do wypowiedzenia umowy (1). Postanowienie umowne przyznające ubezpieczycielowi prawo do wypowiedzenia umowy ubezpieczenia w przypadku niedochowania środka prewencyjnego jest nieskuteczne, chyba że ubezpieczający lub ubezpieczony naruszył swój obowiązek z zamiarem wyrządzenia szkody lub lekkomyślnie wiedząc o tym, że dane działanie lub zaniechanie może spowodować wystąpienie szkody (2) Ubezpieczyciel może, z uwzględnieniem pa.1 wypowiedzieć umowę na piśmie w terminie jednego miesiąca od dnia w którym dowiedział się o naruszeniu obowiązków prewencyjnych lub naruszenie stało się oczywiste. Ochrona ubezpieczeniowa ustaje z chwilą wypowiedzenia umowy.

Artykuł 4:103 Zwolnienie ubezpieczyciela z odpowiedzialności (1) Postanowienia umowy, które zwalniają ubezpieczyciela całkowicie lub częściowo od spełnienia świadczenia w przypadku nie dochowania środków prewencyjnych, są ważne jeśli wypadek ubezpieczeniowy był spowodowany działaniem umyślnym z zamiarem wyrządzenia szkody lub lekkomyślnie przez ubezpieczającego lub ubezpieczonego, który wiedział o tym, że dane działanie lub zaniechanie może spowodować stratę. (2) Z uwzględnieniem zrozumiałego postanowienia przewidującego zmniejszenie świadczenia ubezpieczeniowego w zależności od stopnia winy, ubezpieczający lub ubezpieczony, w zależności od przypadku, są uprawnieni do świadczenia ubezpieczeniowego w razie straty spowodowanej przez niedbalstwo w stosowaniu środków prewencyjnych.

Sekcja druga: Zwiększenie ryzyka zajścia wypadku ubezpieczeniowego Artykuł 4:201 Postanowienia umowne dotyczące zwiększenia ryzyka zajścia wypadku ubezpieczeniowego Jeżeli umowa ubezpieczenia zawiera postanowienie dotyczące zwiększenia ryzyka zajścia wypadku ubezpieczeniowego w trakcie trwania umowy ubezpieczenia, to nie jest ono skuteczne dopóki do zwiększenia ryzyka nie dochodzi i dopóki nie jest to zwiększenie tego rodzaju, o którym mowa w umowie ubezpieczenia.

Artykuł 4:202 Obowiązki informacyjne dotyczące zwiększenia ryzyka (1) Jeżeli postanowienie odnoszące się do zwiększenia ryzyka zajścia wypadku ubezpieczeniowego, wprowadza obowiązek powiadomienia o takim zwiększeniu, powiadomienie to powinno być złożone przez odpowiednio: ubezpieczającego, ubezpieczonego lub beneficjenta, jeżeli osoba zobowiązana do złożenia takiego powiadomienia wiedziała lub powinna była wiedzieć o istnieniu ochrony ubezpieczeniowej i o zwiększeniu ryzyka. Skutki braku powiadomienia ubezpie-

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czyciela o zwiększeniu ryzyka nie następują, jeżeli ubezpieczyciel otrzymał powiadomienie o zwiększeniu ryzyka również od innej osoby. (2) Jeżeli postanowienie przewiduje złożenia powiadomienia w określonym terminie, termin ten powinien być odpowiedni do okoliczności. Powiadomienie jest skuteczne z chwilą nadania. (3) W przypadku naruszenia obowiązku powiadomienia o zwiększeniu ryzyka, ubezpieczyciel nie jest uprawniony do odmowy spełnienia świadczenia ubezpieczeniowego, chyba że strata powstała w wyniku braku powiadomienia o zwiększeniu się ryzyka zajścia wypadku ubezpieczeniowego.

Artykuł 4:203 Konsekwencje wypowiedzenia umowy (1) Jeśli umowa przewiduje, że w przypadku zwiększenia ryzyka zajścia wypadku ubezpieczeniowego ubezpieczyciel jest uprawniony do wypowiedzenia umowy, może on z tego uprawnienia skorzystać poprzez złożenie pisemnego oświadczenia ubezpieczającemu w okresie jednego miesiąca, licząc od chwili w której ubezpieczyciel dowiedział się o zwiększeniu ryzyka lub zwiększenie to stało się dla niego oczywiste. (2) Ochrona ubezpieczeniowa wygasa po upływie jednego miesiąca od daty wypowiedzenia lub wygasa z dniem wypowiedzenia umowy jeśli ubezpieczający umyślnie naruszył obowiązek o którym mowa w art. 4:202. (3) Jeżeli do wypadku ubezpieczeniowego doszło w wyniku zwiększenia się ryzyka zajścia wypadku ubezpieczeniowego, o którym ubezpieczający wiedział lub powinien był wiedzieć, zanim ochrona ubezpieczeniowa wygasła, odszkodowanie nie należy się, jeśli ubezpieczyciel w ogóle nie ubezpieczyłby zwiększonego ryzyka. Jeżeli jednak ubezpieczyciel ubezpieczyłby zwiększone ryzyko przy wyższej składce ubezpieczeniowej lub na podstawie odmiennych postanowień umowy ubezpieczenia, odszkodowanie należy się proporcjonalnie lub zgodnie z powyższymi postanowieniami.

Sekcja trzecia: Zmniejszenie się ryzyka zajścia wypadku ubezpieczeniowego Artykuł 4:301 Skutki zmniejszenia się ryzyka zajścia wypadku ubezpieczeniowego (1) Jeżeli zmniejszeniu uległo ryzyko zajścia wypadku ubezpieczeniowego, ubezpieczający ma prawo żądać proporcjonalnego zmniejszenia składki ubezpieczeniowej za pozostały okres ubezpieczenia. (2) Jeżeli strony nie zgodzą się na proporcjonalne zmniejszenie składki ubezpieczeniowej, ubezpieczający ma prawo wypowiedzieć na piśmie umowę ubezpieczenia w terminie dwóch miesięcy od dnia żądania proporcjonalnego zmniejszenia składki.

Rozdział 5: Składka ubezpieczeniowa Artykuł 5:101 Pierwsza albo pojedyncza składka ubezpieczeniowa Jeżeli ubezpieczyciel uczyni z zapłaty pierwszej albo pojedynczej składki przesłankę zawarcia umowy lub udzielenia ochrony ubezpieczeniowej, taka przesłanka jest bezskuteczna, chyba że: (a) osobie składającej wniosek ubezpieczeniowy przedstawiono taką przesłankę na piśmie w sposób zrozumiały jednocześnie ostrzegając że osobie tej ochrona ubezpieczeniowa nie jest udzielana do czasu zapłacenia składki ubezpieczeniowej, oraz

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(b) minął termin dwóch tygodni od dnia otrzymania przez ubezpieczającego informacji o których mowa w lit. (a), a składka ubezpieczeniowa do tego czasu nie została zapłacona.

Artykuł 5:102 Kolejna składka ubezpieczeniowa (1) Postanowienie umowy zwalniające ubezpieczyciela z obowiązku ponoszenia ochrony ubezpieczeniowej w przypadku nie opłacenia kolejnej składki ubezpieczeniowej jest bezskutecznie, chyba że: (a) ubezpieczający otrzymał wezwanie do zapłaty składki wskazujące precyzyjnie wysokość składki i termin jej płatności; (b) po upływie terminu płatności, ubezpieczyciel wezwał ubezpieczającego do zapłaty składki, wskazując precyzyjnie jej wysokość, wyznaczając dodatkowy termin co najmniej dwóch tygodni oraz ostrzegając ubezpieczającego o możliwym zawieszeniu udzielania ochrony ubezpieczeniowej jeśli składka nie zostanie zapłacona; oraz (c) dodatkowy termin o którym mowa w lit. (b) upłynął, a składka nie została opłacona. (2) Ubezpieczyciel jest wolny od odpowiedzialności po upływie dodatkowego terminu o którym mowa w par. 1 lit. (b). Ochrona ubezpieczeniowa będzie przywrócona tak szybko jak ubezpieczający zapłaci składkę w odpowiedniej wysokości, chyba że umowa zostania wypowiedziana zgodnie z art. 5:103.

Artykuł 5:103 Wypowiedzenie umowy ubezpieczenia (1) W wypadku upływu okresu o którym mowa w art. 5:101 lit. (b) lub art. 5:102 par. 1 lit. (b), jeżeli składka ubezpieczeniowa nie została zapłacona, ubezpieczyciel jest uprawniony do wypowiedzenia umowy na piśmie, jeżeli wezwanie o którym mowa, odpowiednio, w art. 5:101 lit. (b) lub art. 5:102 par. 1 lit. (b), zawiera w swej treści uprawnienie ubezpieczyciela do wypowiedzenia umowy ubezpieczenia. (2) Umowę ubezpieczenia uważa się za rozwiązaną jeśli, w zależności od okoliczności, ubezpieczyciel nie wzywa do zapłacenia: (a) pierwszej składki, w okresie dwóch miesięcy po upływie terminu, o którym mowa w art. 5:101 lit. (b); lub (b) kolejnej składki, w okresie dwóch miesięcy po upływie terminu, o którym mowa w art. 5:102 par. 1 lit. (b).

Artykuł 5:104 Podział składki Jeżeli umowa ubezpieczenia ulega rozwiązaniu przed upływem terminu na który była zawarta, ubezpieczyciel jest wyłącznie uprawniony do żądania zapłaty składki za okres poprzedzający rozwiązanie umowy ubezpieczenia.

Artykuł 5:105 Prawo do zapłaty składki Ubezpieczyciel nie ma prawa odmówić przyjęcia składki ubezpieczeniowej od osoby trzeciej, jeśli: (a) osoba trzecia działa w imieniu ubezpieczającego, lub (b) osoba trzecia ma interes w udzielaniu ochrony ubezpieczeniowej a ubezpieczający nie zapłacił składki ubezpieczeniowej lub stało się jasne że nie zapłaci składki w terminie płatności.

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Rozdział 6: Wypadek ubezpieczeniowy Artykuł 6:101 Powiadomienie o zajściu wypadku ubezpieczeniowego (1) Ubezpieczający, ubezpieczony lub beneficjent jest zobowiązany do powiadomienia ubezpieczyciela o zajściu wypadku ubezpieczeniowego, o ile zobowiązana osoba wiedziała lub powinna była wiedzieć o udzielanej ochronie ubezpieczeniowej i zajściu wypadku ubezpieczeniowego. Skuteczne jest powiadomienie ubezpieczyciela dokonane przez inną osobę. (2) Powiadomienie powinno nastąpić bez zbędnej zwłoki i staje się skuteczne z chwilą jego nadania. Jeśli umowa przewiduje, że powiadomienie powinno być złożone w oznaczonym terminie, taki termin powinien być odpowiedni i w żadnym wypadku nie może być krótszy niż 5 dni. (3) Wysokość świadczenia ubezpieczeniowego powinna być zmniejszona proporcjonalnie do zakresu uszczerbku wywołanego, udowodnioną przez ubezpieczyciela, zbędną zwłoką w powiadomieniu go o zajściu wypadku ubezpieczeniowego.

Artykuł 6:102 Współpraca przy ustalania okoliczności zajścia wypadku ubezpieczeniowego (1) Ubezpieczający, ubezpieczony lub beneficjent jest zobowiązany do współpracy z ubezpieczycielem w celu ustalenia okoliczności zajścia wypadku ubezpieczeniowego, – w szczególności poprzez: – udzielanie informacji o okolicznościach zajścia wypadku ubezpieczeniowego, – udostępnianie dokumentów oraz dowodów dotyczących wypadku ubezpieczeniowego, – dostęp do danych, dotyczących przyczyn wypadku ubezpieczeniowego (2) W przypadku jakiegokolwiek naruszenia par. 1, z uwzględnieniem par. 3, świadczenie ubezpieczyciela powinno być zmniejszone w zakresie w jakim ubezpieczyciel udowodnił iż naruszenie spowodowało szkodę. (3) W przypadku jakiegokolwiek naruszenia par. 1 umyślnie lub lekkomyślnie ale ze świadomością, że takie działanie lub zaniechanie mogłoby wyrządzić szkodę, ubezpieczyciel nie jest obowiązany do spełnienia świadczenia ubezpieczeniowego.

Artykuł 6:103 Uznanie roszczeń (1) Ubezpieczyciel powinien podjąć wszelkie uzasadnione czynności zmierzające do terminowego rozstrzygnięcia o roszczeniu ubezpieczeniowym. (2) Jeżeli ubezpieczyciel nie odrzuci roszczenia albo nie odroczy uznania tego roszczenia poprzez pisemne oświadczenie zawierające podstawy jego decyzji w okresie jednego miesiąca licząc od daty otrzymania wymaganych dokumentów i innych informacji, uważa się że roszczenie zostało uznane.

Artykuł 6:104 Termin spełnienia świadczenia ubezpieczeniowego (1) W przypadku uznania roszczenia ubezpieczyciel powinien niezwłocznie spełnić świadczenie pieniężne lub odpowiednio inne przyrzeczone świadczenie ubezpieczeniowe. (2) Jeżeli pełna wartość roszczenia nie została jeszcze określona, ale dochodzący roszczenia jest uprawniony przynajmniej w zakresie jego części, to w tej części świadczenie powinno być spełnione niezwłocznie. (3) Płatność świadczenia pieniężnego, o którym mowa w ust. 1 albo 2, powinna nastąpić nie później niż w ciągu jednego tygodnia od daty uznania i określenia pełnej wysokości dochodzonego roszczenia albo odpowiednio jego części.

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Artykuł 6:105 Opóźnienie w spełnieniu świadczenia ubezpieczeniowego8 (1) Jeżeli świadczenie pieniężne nie zostanie spełnione zgodnie z art. 6:104, dochodzący roszczenia, jest uprawniony do żądania zapłaty odsetek od sumy świadczenia ubezpieczeniowego od chwili gdy ubezpieczyciel był zobowiązany spełnić świadczenie do czasu, gdy świadczenie spełnił. Wysokość odsetek stanowi sumę stopy procentowej odsetek zastosowanych przez Europejski Bank Centralny do jego ostatniej głównej operacji refinansowania przeprowadzonej przed pierwszym dniem kalendarzowym odnośnego półrocza oraz dodatkowych 8 punktów procentowych. (2) Dochodzący roszczenia jest uprawniony do rekompensaty z tytułu wszystkich dodatkowych szkód spowodowanych przez opóźnienie spełnienia świadczenia pieniężnego.

Rozdział 7: Przedawnienie Artykuł 7:101 Roszczenie o zapłatę składki ubezpieczeniowej Roszczenie o zapłatę składki przedawnia się z upływem roku od dnia wymagalności składki.

Artykuł 7:102 Roszczenie o zapłatę świadczeń ubezpieczeniowych (1) Co do zasady, roszczenie o zapłatę świadczeń ubezpieczeniowych przedawnia się z upływem lat trzech od dnia, w którym ubezpieczyciel rozstrzygnął ostatecznie w zakresie zgłoszonego roszczenia lub od dnia w którym można przyjąć, że o roszczeniu w ten sposób rozstrzygnął, zgodnie z art. 6:103. Jednakże termin ten nie może być dłuższy niż dziesięć lat od dnia zajścia wypadku ubezpieczeniowego, za wyjątkiem roszczeń wynikających z ubezpieczeń na życie, gdzie okres ten wynosi lat 30. (2) Roszczenie o zapłatę wartości wykupu ubezpieczenia na życie, przedawniają się z upływem lat trzech od dnia otrzymania przez ubezpieczającego końcowego zestawienia zgromadzonych środków. Jednakże termin ten nie może być dłuższy niż trzydzieści lat, od dnia rozwiązania umowy ubezpieczenia na życie.

Artykuł 7:103 Pozostałe zagadnienia związane z przedawnieniem Zgodnie z art. 7:101 oraz art. 7:102 ZEPU, artykuły 14:101-14:503 Zasad Ogólnych Europejskiego Prawa Kontraktów (PECL9) stosuje się odpowiednio, do roszczeń z umowy ubezpieczenia. Umowa ubezpieczenia może wyłączyć stosowanie powyższych przepisów PECL zgodnie z art. 1:103 par. 2 ZEPU.

Część 2: Postanowienia wspólne dla ubezpieczenia szkody Rozdział 8: Suma ubezpieczenia i wartość ubezpieczenia Artykuł 8:101 Wysokość odszkodowania pieniężnego (1) Ubezpieczyciel nie jest zobowiązany do spełnienia świadczenia pieniężnego wyższego od sumy będącej równowartością szkód poniesionych przez ubezpieczonego.

8 9

Artykuł oparty jest na treści artykułu 3 par. 1 (d) Dyrektywy 2000/35/EC. Cf. Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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(2) Postanowienie umowy, które określa wartość przedmiotu ubezpieczenia jest ważne nawet jeśli określona wartość przekracza rzeczywistą wartość przedmiotu ubezpieczenia, o ile ubezpieczający lub ubezpieczony nie działali na szkodę drugiej strony lub nie wprowadzali ubezpieczyciela w błąd, w chwili gdy wartość była ustalana.

Artykuł 8:102 Niedoubezpieczenie (1) Ubezpieczyciel odpowiada za każdą szkodę do wysokości sumy ubezpieczenia, nawet jeśli suma ubezpieczenia jest niższa niż wartość ubezpieczonego mienia w chwili zajścia wypadku ubezpieczeniowego. (2) Jednakże jeśli ubezpieczyciel udziela ochrony ubezpieczeniowej zgodnie z par. 1, to jest on także uprawniony do wypłaty odszkodowania pozostającego w takim stosunku do wartości szkody w jakim pozostaje suma ubezpieczenia do rzeczywistej wartości ubezpieczonego mienia z chwili wystąpienia szkody. Ponadto zwrot równowartości kosztów, o których mowa w art. 9:102 powinno być dokonane w takiej samej proporcji.

Artykuł 8:103 Zmiana umowy w przypadku nadubezpieczenia (1) Jeśli suma ubezpieczenia przekracza równowartość maksymalnej szkody zgodnie z umową ubezpieczenia, każda ze stron jest uprawniona do żądania zmniejszenia sumy ubezpieczenia i odpowiedniego zmniejszenia składki za pozostały okres trwania umowy. (2) Jeżeli strony nie osiągną porozumienia w zakresie zmniejszenia sumy ubezpieczenia i składki, każda ze stron po upływie jednego miesiąca od chwili przedstawienia żądania o którym mowa w par. 1, jest uprawniona do wypowiedzenia umowy ubezpieczenia.

Artykuł 8:104 Wielokrotne ubezpieczenie (1) Jeżeli ten sam interes ubezpieczeniowy jest odrębnie ubezpieczony przez więcej niż jednego ubezpieczyciela, ubezpieczony jest uprawniony do żądania spełnienia świadczenia od jednego i każdego ubezpieczyciela do wysokości niezbędnej do zaspokojenia ubezpieczonego w zakresie rzeczywiście poniesionych szkód. (2) Ubezpieczyciel, do którego zwrócono się z roszczeniem powinien spełnić świadczenie pieniężne do wysokości sumy ubezpieczenia oraz zwrócić koszty poniesione w związku z zastosowaniem środków zapobiegawczych, niezależnie od prawa dochodzenia świadczenia od jakiegokolwiek innego ubezpieczyciela. (3) Pomiędzy ubezpieczycielami, prawa i obowiązki o których mowa w par. 2, powinny być określone proporcjonalnie do sum, do których wysokości odpowiadają oni, niezależnie od siebie, wobec ubezpieczonego.

Rozdział 9: Uprawnienie do odszkodowania Artykuł 9:101 Przyczynienie się do powstania szkody (1) Ani ubezpieczający ani ubezpieczony nie jest uprawniony do odszkodowania w zakresie w jakim szkoda powstała w wyniku jego działania lub zaniechania, umyślnego z zamiarem wyrządzenia szkody lub lekkomyślnego z wiedzą o tym, że dane działanie lub zaniechanie może spowodować wystąpienie szkody. (2) Zgodnie z jednoznacznym postanowieniem umowy wprowadzającym zmniejszenie należnego odszkodowania, odpowiednio do stopnia zawinienia, ubezpieczający lub ubezpieczony powi-

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nien być uprawniony do odszkodowania jeśli jakakolwiek szkoda została wyrządzona przez działanie lub zaniechanie wynikające z niedbalstwa. (3) Przyczynienie się do powstania szkody o którym mowa w par. 1 i 2 oznacza także bezskuteczność zapobiegnięcia lub zmniejszenia szkody.

Artykuł 9:102 Zwrot kosztów poniesionych w związku z zastosowaniem środków prewencyjnych (1) Ubezpieczyciel powinien zwrócić koszty poniesione lub równowartość szkody poniesionej przez ubezpieczającego lub ubezpieczonego wynikłych z zastosowania środków w celu zmniejszenia rozmiarów szkody w zakresie w jakim zastosowanie tych środków przez ubezpieczającego lub ubezpieczonego było w danych okolicznościach uzasadnione, chociażby okazało się bezskuteczne. (2) Ubezpieczyciel powinien spełnić świadczenie ubezpieczającemu lub odpowiednio ubezpieczonemu jeżeli zastosowano środki, o których mowa w par. 1, nawet jeśli razem z odszkodowaniem suma ta przekroczy sumę ubezpieczenia.

Rozdział 10: Subrogacja Artykuł 10:101 Subrogacja (1) Ubezpieczyciel jest uprawniony do dochodzenia roszczeń wynikających z subrogacji przeciwko osobie trzeciej odpowiedzialnej za szkodę do wysokości w jakiej wypłacił świadczenie ubezpieczonemu, z zastrzeżeniem par. 3 (2) W zakresie w jakim ubezpieczony zrzeka się roszczenia przeciwko osobie trzeciej odpowiedzialnej za szkodę, naruszając tym uprawnienie ubezpieczyciela z tytułu subrogacji, traci on prawo do odszkodowania. (3) Ubezpieczyciel nie jest uprawniony do dochodzenia roszczeń wynikających z subrogacji przeciwko osobie, z którą ubezpieczający lub ubezpieczony pozostaje we wspólnym gospodarstwie domowym lub w analogicznym stosunku do ubezpieczającego lub ubezpieczonego lub też wobec osoby będącej pracownikiem ubezpieczającego lub ubezpieczonego, chyba że sprawca wyrządził szkodę umyślnie lub lekkomyślnie z wiedzą o tym, że może spowodować wystąpienie szkody. (4) Ubezpieczyciel nie może wykonywać swoich praw wynikających z subrogacji z naruszeniem praw ubezpieczonego.

Rozdział 11: Osoby ubezpieczone inne niż ubezpieczający Artykuł 11:101 Zakres uprawnień ubezpieczonego innego niż ubezpieczający (1) W przypadku ubezpieczenia na rzecz osoby ubezpieczonej innej niż ubezpieczający, w razie zajścia wypadku ubezpieczeniowego, osoba ta jest uprawniona do świadczenia pieniężnego. (2) Ubezpieczający może dokonać zmiany takiego wskazania, o ile: (a) dokument ubezpieczenia nie stanowi inaczej; lub (b) nie zaszedł wypadek ubezpieczeniowy. (3) Zmiana wskazania jest skuteczna o ile została sporządzona na piśmie i dostarczona ubezpieczycielowi.

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Artykuł 11:102 Wiedza ubezpieczonego innego niż ubezpieczający Jeżeli ubezpieczający jest zobowiązany do dostarczenia odpowiednich informacji ubezpieczycielowi, wiedza osoby o której mowa w art. 11:101 nie może być przypisana ubezpieczającemu, jeśli osoba ubezpieczona nie jest świadoma swojego statusu.

Artykuł 11:103 Naruszenie obowiązku przez poszczególnego ubezpieczonego, innego niż ubezpieczający Naruszenie obowiązku przez jednego ubezpieczonego nie narusza praw pozostałych osób ubezpieczonych w ramach tej samej umowy ubezpieczenia, chyba że ryzyko jest wspólnie ubezpieczone.

Rozdział 12: Ubezpieczane ryzyko Artykuł 12:101 Skutki braku ubezpieczanego ryzyka (1) Jeżeli ubezpieczane ryzyko nie istnieje w chwili zawarcia umowy ubezpieczenia ani w czasie jej trwania, składka nie należy się. Jednakże ubezpieczyciel jest uprawniony do zwrotu uzasadnionych kosztów poniesionych w związku z zawarciem umowy. (2) Jeżeli ubezpieczane ryzyko przestanie istnieć w okresie trwania umowy, umowę uznaje się za rozwiązaną z chwilą z którą ubezpieczyciel został o tym poinformowany.

Artykuł 12:102 Zbycie przedmiotu ubezpieczenia (1) W razie zbycia tytułu prawnego ubezpieczonego mienia, umowa ubezpieczenia ulega rozwiązaniu w terminie jednego miesiąca od dnia zbycia, chyba że ubezpieczający i nabywca umówią się na rozwiązanie umowy w terminie wcześniejszym. Przepisu tego nie stosuje się jeżeli umowa była zawarta na rzecz nabywcy. (2) Domniemywa się, że nabywca mienia jest ubezpieczony z chwilą, gdy ryzyko związane z ubezpieczonym mieniem zostało przeniesione. (3) Par. 1 i 2 nie stosuje się: (a) jeśli ubezpieczyciel, ubezpieczający i nabywca umówią się inaczej, lub (b) do przejścia tytułu prawnego na podstawie dziedziczenia.

Część 3: Zasady ogólne dla ubezpieczeń na stałe sumy Rozdział 13: Dopuszczalność Artykuł 13:101 Ubezpieczenia na sumy stałe Tylko ubezpieczenia wypadkowe, zdrowotne, na życie, posagowe, zaopatrzenia dzieci oraz inne ubezpieczenia osobowe mogą być ubezpieczeniami na sumy stałe.

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Część 4: Ubezpieczenie odpowiedzialności cywilnej Rozdział 14: Postanowienia ogólne Artykuł 14:101 Koszty obrony Zgodnie z Artykułem 9:102, ubezpieczyciel zobowiązany jest zwrócić koszty poniesione w związku z prowadzeniem obrony.

Artykuł 14:102 Ochrona poszkodowanego Żadne rozstrzygnięcie roszczenia między ubezpieczycielem a ubezpieczającym lub ubezpieczonym na podstawie dokumentu ubezpieczenia, niezależnie czy za pomocą ugody, zrzeczenia się lub spełnienia roszczenia poprzez zapłatę, lub w inny sposób, nie wpływa na status poszkodowanego, chyba że poszkodowany wyrazi na to swoją zgodę na piśmie.

Artykuł 14:103 Przyczynienie się do powstania szkody (1) Ani ubezpieczający ani ubezpieczony nie jest uprawniony do odszkodowania w zakresie, w jakim szkoda powstała umyślnie w wyniku jego działania lub zaniechania, z zamiarem wyrządzenia szkody; w szczególności jeżeli dotyczy to sytuacji, gdy nie zastosowanie się do wskazanego przez ubezpieczyciela sposobu postępowania w razie wystąpienia szkody dokonane było lekkomyślnie, ze świadomością, że dane działanie lub zaniechanie może spowodować powiększenie szkody. (2) W rozumieniu par. 1 przyczynienie się do powstania szkody oznacza także niepowodzenie zapobieżenia powstania szkody i zastosowania środków prewencyjnych. (3) Za wyjątkiem wprowadzenia jednoznacznego postanowienia zawartego w ogólnych warunkach ubezpieczenia, przewidującego zmniejszenie świadczenia ubezpieczeniowego w zależności od stopnia winy, odpowiednio: ubezpieczający lub ubezpieczony, są uprawnieni do odszkodowania w razie gdy jakakolwiek szkoda powstała w wyniku niedbałości w zastosowaniu wskazanego przez ubezpieczyciela sposobu postępowania po wystąpieniu szkody.

Artykuł 14:104 Uznanie odpowiedzialności (1) Postanowienie umowy ubezpieczenia, które zwalnia ubezpieczyciela z jego obowiązków w razie gdy ubezpieczający lub ubezpieczony, w zależności od przypadku, uznaje lub spełnia roszczenie poszkodowanego uznaje się za niewiążące. (2) Ubezpieczyciel nie jest związany porozumieniem zawartym pomiędzy poszkodowanym a ubezpieczającym lub ubezpieczonym, zależnie od przypadku, chyba że wyraził na to zgodę.

Artykuł 14:105 Zbywalność roszczenia Postanowienie umowy ubezpieczenia pozbawiające ubezpieczonego prawa do przelewu roszczenia przysługującego mu na podstawie na umowy ubezpieczenia uznaje się za niewiążące.

Artykuł 14:106 Zniżki za bezszkodowość/ System Bonus-Malus (1) Ubezpieczający ma prawo żądać wydania w każdym czasie oświadczenia dotyczącego jego historii szkód z ostatnich 5 lat. (2) Jeżeli ubezpieczyciel uzależnia składkę oraz inne warunki od liczby lub wielkości szkód zaspokojonych na podstawie umowy ubezpieczenia,ubezpieczyciel powinien zwrócić szczególną uwagę na historię szkód u innych ubezpieczycieli z ostatnich 5 lat.

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Art. 14:107 Wypadek ubezpieczeniowy (1) Wypadkiem ubezpieczeniowym jest zdarzenie, które powoduje odpowiedzialność ubezpieczonego oraz które wystąpiło w okresie odpowiedzialności ubezpieczyciela określonej w umowie, chyba że strony umowy, dla celów handlowych lub zawodowych, zdefiniowały wypadek ubezpieczeniowy inaczej, na przykład w oparciu o inne kryteria, takie jak zgłoszenie roszczenia przez poszkodowanego. (2) W przypadku zdefiniowania wypadku ubezpieczeniowego w oparciu o zgłoszenie roszczenia poszkodowanego, ochronę ubezpieczeniową przyznaje się w stosunku do roszczeń podniesionych w okresie odpowiedzialności ubezpieczyciela lub w następującym okresie, ale nie krótszym niż 5 lat, które oparte są na zdarzeniu, które wystąpiło przed końcem okresu odpowiedzialności. Umowa może wyłączać ochronę ubezpieczeniową jeżeli w momencie zawarcia umowy ubezpieczający był, bądź powinien był być świadomy okoliczności, które mogły być podstawą roszczeń.

Artykuł 14:108 Roszczenia przewyższające sumę ubezpieczenia (1) Jeżeli suma świadczeń pieniężnych należnych wobec kilku poszkodowanych przewyższa sumę ubezpieczenia, świadczenia pieniężne powinny być proporcjonalnie pomniejszone. (2) Ubezpieczyciel, który będąc nieświadomym istnienia innych poszkodowanych, wypłaca świadczenie pieniężne znanym mu poszkodowanym w dobrej wierze, jest odpowiedzialny wobec innych poszkodowanych do granicy sumy ubezpieczenia.

Rozdział 15: Roszczenie bezpośrednie/actio directa Artykuł 15:101 Roszczenie bezpośrednie i zarzuty (1) W zakresie, w jakim, w zależności od przypadku, ubezpieczający lub ubezpieczony jest odpowiedzialny, poszkodowany jest uprawniony do skierowania roszczenia o odszkodowanie bezpośrednio przeciwko ubezpieczycielowi wskazanemu w umowie ubezpieczenia, pod warunkiem, że (a) ubezpieczenie jest obowiązkowe, lub (b) ubezpieczający lub ubezpieczony jest w upadłości, lub (c) ubezpieczający lub ubezpieczony został rozwiązany lub zlikwidowany lub (d) poszkodowany doświadczył szkód osobowych, lub (e) prawo właściwie dla odpowiedzialności dopuszcza roszczenie bezpośrednie. (2) Ubezpieczyciel w stosunku do roszczeń poszkodowanego może podnieść zarzuty dostępne mu na mocy umowy ubezpieczenia chyba, że możliwość taka jest wyłączana przez przepisy szczególne, które określają dane ubezpieczenie, jako obowiązkowe. Jednakże, ubezpieczyciel nie jest uprawniony do podnoszenia któregokolwiek z zarzutów opartych na działaniu ubezpieczającego i/lub ubezpieczonego po powstaniu szkody.

Artykuł 15:102 Obowiązki informacyjne (1) Na żądanie poszkodowanego, ubezpieczający i ubezpieczony powinni udostępnić informacje potrzebne do skierowania roszczenia bezpośredniego wobec ubezpieczyciela. (2) Ubezpieczyciel powinien doręczyć na piśmie, ubezpieczającemu notyfikację o każdym, wniesionym przeciwko niemu roszczeniu bezpośrednim, a doręczenie powinno nastąpić bez zbędnej zwłoki, najpóźniej w ciągu dwóch tygodni od odbioru zgłoszenia roszczenia. W razie naruszenia obowiązku informacyjnego przez ubezpieczyciela, spełnienie świadczenia pieniężnego lub uznanie długu wobec poszkodowanego nie wpływa na prawa ubezpieczającego.

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(3) Jeżeli ubezpieczający w ciągu jednego miesiąca od otrzymania notyfikacji wskazanej w par. 2, nie przekaże ubezpieczycielowi informacji, dotyczących wypadku ubezpieczeniowego, uznaje się że ubezpieczający wyraził zgodę na rozstrzygnięcie o roszczeniu przez ubezpieczyciela. Reguła ta ma zastosowanie także do ubezpieczonych, którzy otrzymali notyfikację w prawidłowym czasie.

Artykuł 15:103 Zwolnienie ubezpieczyciela z odpowiedzialności Wypłacenie świadczenia pieniężnego odpowiednio: ubezpieczającemu lub ubezpieczonemu zwalnia ubezpieczyciela z jego zobowiązań względem poszkodowanego, jeżeli poszkodowany (a) zrzekł się przysługującego mu roszczenia bezpośredniego lub (b) w ciągu 4 tygodni od otrzymania żądania ubezpieczyciela na piśmie, nie poinformował ubezpieczyciela o zamiarze wniesienia roszczenia bezpośredniego.

Artykuł 15:104 Przedawnienie (1) Roszczenie przeciwko ubezpieczycielowi, niezależnie od tego czy wniesione przez ubezpieczonego czy poszkodowanego, ulega przedawnieniu jednocześnie z przedawnieniem roszczenia przysługującemu poszkodowanemu przeciwko ubezpieczonemu. (2) Okres przedawnienia dla powództwa wniesionego przez poszkodowanego przeciwko ubezpieczonemu ulega zawieszeniu od czasu, w którym ubezpieczony dowiedział się o skierowaniu roszczenia bezpośrednie przeciwko ubezpieczycielowi, do czasu, gdy spór zostanie rozstrzygnięty lub roszczenie zostanie jednoznacznie oddalone przez ubezpieczyciela.

Rozdział 16: Ubezpieczenia obowiązkowe Artykuł 16:101 Zakres zastosowania (1) Strony mogą wybrać ZEPU jako prawo właściwie dla umowy ubezpieczenia zawartej w celu realizacji obowiązku ubezpieczenia się (a) wymaganego przez prawo Unii Europejskiej, (b) wymaganego przez prawo państwa członkowskiego Unii Europejskiej, lub (c) wymaganego przez prawo państwa trzeciego, wyłącznie w zakresie w jakim przepisy tego państwa na to zezwalają. (2) Umowa ubezpieczenia czyni zadość obowiązkowi posiadania ubezpieczenia, jeżeli jest zgodna ze szczegółowymi postanowieniami nakładającymi ten obowiązek.

Część 5: Ubezpieczenia na życie Rozdział 17: Postanowienie szczególne dotyczące ubezpieczeń na życie: Sekcja pierwsza: Osoby trzecie Artykuł 17:101 Ubezpieczenie na życie osoby trzeciej Umowa ubezpieczenia na życie zawarta na rzecz innej osoby niż ubezpieczającego jest nieważna, chyba że uzyskano świadomą zgodę osoby wobec której może ziścić się ryzyko zajścia wypadku, wyrażoną na piśmie i potwierdzoną podpisem takiej osoby. Wszelka znacząca, póżniejsza zmiana umowy, dokonana bez uzyskania świadomej zgody,, w szczególności zmiana beneficjenta, wzrost sumy ubezpieczenia oraz zmiana czasu trwania umowy, jest bezskuteczna. Powyższe stosuje się rów-

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nież do przelewu z umowy ubezpieczenia lub obciążenia umowy ubezpieczenia lub wierzytelności o zapłatę świadczenia pieniężnego

Artykuł 17:102 Beneficjent świadczenia ubezpieczeniowego (1) Ubezpieczający może wskazać jednego lub więcej beneficjentów świadczenia ubezpieczeniowego oraz może odwołać lub zmienić takie wskazanie, chyba, że wskazanie zostało zastrzeżone jako nieodwołalne. Wskazanie, zmiana lub odwołanie wskazania, o ile nie zostało uczynione w testamencie, powinno być sporządzone na piśmie i wysłane do ubezpieczyciela. (2) Uprawnienie do wskazania, zmiany lub odwołania wskazania, wygasa z chwilą śmierci ubezpieczającego lub z chwilą wystąpienia wypadku ubezpieczeniowego, w zależności od tego, które z tych zdarzeń wystąpi jako pierwsze. (3) Ubezpieczający lub, w zależności od okoliczności, jego spadkobiercy, powinni zostać uznani beneficjentami świadczenia ubezpieczeniowego, jeśli: (a) ubezpieczający nie wskazał beneficjenta, lub (b) wskazanie beneficjenta zostało odwołane a nie wskazano żadnego innego beneficjenta, (c) beneficjent zmarł przed wystąpienie wypadku ubezpieczeniowego a nie wskazano innych beneficjentów. (4) Jeżeli wskazano dwóch lub więcej beneficjentów, a wskazanie któregokolwiek z nich zostało odwołane lub którykolwiek z nich zmarł przed wystąpieniem wypadku ubezpieczeniowego, świadczenie ubezpieczeniowe, które byłoby jemu należne, powinno być wypłacone pozostałym beneficjentom proporcjonalnie, chyba, że co innego wynika z treści wskazania ubezpieczającego dokonanego zgodnie z par. 1 (5) Z zastrzeżeniem postanowień prawa upadłościowego dotyczących nieważności, bezskuteczności lub nie egzekwowalności czynności prawnych wobec wierzycieli ubezpieczającego, dopóki świadczenie ubezpieczeniowe nie zostanie wypłacone ubezpieczającemu, świadczenie to będące kwotą jego jednostek uczestnictwa lub wartością wykupu umowy ubezpieczenia, nie wchodzi do masy upadłości ubezpieczającego. (6) Ubezpieczyciel, który spełnił świadczenie ubezpieczeniowe na rzecz beneficjenta wskazanego zgodnie z par. 1, zostaje zwolniony z obowiązku wypłacenia świadczenia, chyba, że wiedział, że beneficjent ten nie był uprawniony do świadczeniaubezpieczeniowego.

Artykuł 17:103 Beneficjent wartości wykupu (1) Niezależnie od postanowień Artykułu 17:102, ubezpieczający, w zależności od okoliczności, może również wskazać, a także zmienić lub odwołać beneficjenta wartości wykupu. Wskazanie, zmiana lub odwołanie wskazania powinno być sporządzone na piśmie i wysłane do ubezpieczyciela. (2) Ubezpieczający powinien zostać uznany za beneficjenta świadczenia ubezpieczeniowego, jeśli: (a) beneficjent wartości wykupu nie został wskazany, lub (b) wskazanie beneficjenta wartości wykupu zostało odwołane a inni beneficjenci nie zostali wskazani, lub (c) beneficjent wartości wykupu zmarł a żaden inny beneficjent nie został wskazany. (3) Artykuł 17:102 par. 2, oraz 4 do 6 stosuje się odpowiednio.

Artykuł 17:104 Przelew lub obciążenie (1) W przypadku nieodwołalnego wskazania beneficjenta, przelew z lub obciążenie umowy ubezpieczenia lub wierzytelności o zapłatę świadczenia ubezpieczeniowego jest bezskuteczne do czasu wyrażenia pisemnej zgody przez beneficjenta.

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(2) Przelew lub obciążenie wierzytelności o zapłatę świadczenia ubezpieczeniowego dokonany przez beneficjenta, jest bezskuteczny do czasu wyrażenia pisemnej zgody przez ubezpieczającego.

Artykuł 17:105 Zrzeczenie się spadku W przypadku, gdy beneficjent który jest spadkobiercą zamarłej osoby, wobec której może ziścić się ryzyko zajścia wypadku, zrzekł się spadku, okoliczność zrzeczenia się nie wpływa na jego uprawnienia wynikającego z umowy ubezpieczenia.

Sekcja druga: Zawarcie oraz obowiązywanie umowy Artykuł 17:201 Przedkontraktowe obowiązki udzielenia informacji przez ubezpieczającego (1) Informacje, których ubezpieczający powinien udzielić zgodnie z Artykułem 2:101 par. 1 powinny uwzględniać także okoliczności, o których osoba, wobec której może ziścić się ryzyko zajścia wypadku ubezpieczenia wiedziała lub powinna była wiedzieć. (2) Skutki naruszenia przedkontraktowych obowiązków informacyjnych określone w Artykule 2:102, 2:103 oraz 2:105, z wyłączeniem Artykułu 2:2014, mają zastosowanie tylko przez okres pięciu lat od daty zawarcia umowy.

Artykuł 17:202 Przedkontraktowe obowiązki udzielenia informacji przez ubezpieczyciela (1) Ubezpieczyciel powinien poinformować ubezpieczającego o tym, czy przysługuje mu prawo udziału w zyskach. Potwierdzenie przyjęcia tej informacji do wiadomości ubezpieczającego powinno zostać sporządzone w formie osobnego od wniosku ubezpieczeniowego, jednoznacznego oświadczenia. (2) Dokument, który ma zostać przygotowany przez ubezpieczyciela zgodnie z Artykułem 2:201 powinien zawierać następujące informacje: (a) w odniesieniu do ubezpieczyciela: szczegółowe określenie obowiązku publikacji rocznych sprawozdań obejmujących wypłacalność i kondycję finansową ubezpieczyciela; (b) w odniesieniu do zobowiązań kontraktowych ubezpieczyciela: (i) wyjaśnienie wszystkich świadczeń i wariantów ubezpieczenia; (ii) dotyczące proporcji składki ubezpieczeniowej przypisanej do danego świadczenia, w zależności okoliczności, zarówno w odniesieniu do głównych jak i dodatkowych świadczeń; (iii) dotyczące metod kalkulacji oraz rozdziału dodatkowych świadczeń wraz ze wskazaniem prawa właściwego w zakresie nadzoru, (iv) dotyczące wskazania wartości wykupu oraz wartości związanej z zawieszeniem zapłaty składek ubezpieczeniowych w zakresie, w jakim wartości te są gwarantowane; (v) w przypadku ubezpieczeniowych funduszy kapitałowych; informacje dotyczące powiązanych funduszach oraz o naturze i charakterze powiązanych aktywów; (vi) ogólne informacje o mających zastosowanie do danego typu ubezpieczenia przepisach i zasadach podatkowych. (3) Dodatkowo, ubezpieczającemu powinny zostać udostępnione szczegółowe informacje w celu zapewnienia prawidłowego zrozumienia ryzyka związanego z daną umową ubezpieczenia.

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(4) Jeżeli ubezpieczyciel odwołuje się do kwot możliwych świadczeń ponad te, które są gwarantowane, powinien udostępnić ubezpieczającemu model kalkulacji, uwzględniający możliwy okres zakończenia i wypłaty świadczeń, oparty o aktuarialne zasady kalkulacji składek ubezpieczeniowych oraz uwzględniający trzy różne stopy procentowe odsetek. Powyższe nie ma zastosowania do umów ubezpieczenia, w których ubezpieczyciel może nie ponosić odpowiedzialności oraz do umów z ubezpieczeniowymi funduszami kapitałowymi. Ubezpieczyciel powinien jednoznacznie i w sposób zrozumiały wskazać ubezpieczającemu, że udostępniony model kalkulacji oparty jest jedynie na założeniach najlepszej wiedzy a umowa nie gwarantuje możliwych świadczeń.

Artykuł 17:203 Termin odstąpienia od umowy10 (1) W przypadku umów ubezpieczenia na życie, okres odstąpienia określony w Artykule 2:303 par. 1 wynosi jeden miesiąc od dnia potwierdzenia lub otrzymania dokumentów o których mowa w Artykule 2:501 oraz Artykule 17:202, w zależności od tego, które zdarzenie było późniejsze. (2) Uprawnienie ubezpieczającego od odstąpienia od umowy zgodnie z Artykułem 2:303 par. 1 wygasa z upływem roku od dnia zawarcia umowy.

Artykuł 17:204 Uprawnienie ubezpieczającego do rozwiązania umowy (1) Ubezpieczający ma prawo rozwiązać umowę ubezpieczenia na życie, bez prawa do uzyskania jakiejkolwiek wartości wynikającej z przekształcenia polisy ani niewykorzystanej składki, o ile rozwiązanie nastąpi nie wcześniej, niż jeden rok od zawarcia umowy. Prawo do rozwiązania umowy przed końcem jej okresu może być wyłączone w przypadku opłacenia choć jednej składki. Rozwiązanie umowy wymaga zachowania formy pisemnej i staje się skuteczne po upływie dwóch tygodni od doręczenia zawiadomienia o wypowiedzeniu ubezpieczycielowi. (2) Jeżeli umowa ubezpieczenia na życie wiąże się z prawem uzyskania wartości wynikającej z przekształcenia polisy lub niewykorzystanej składki Artykuły od 17:601 do 17:603mają zastosowanie.,.

Artykuł 17:205 Uprawnienie ubezpieczyciela do rozwiązania umowy Ubezpieczyciel jest uprawniony do rozwiązania umowy ubezpieczenia na życie jedynie w zakresie dozwolonym w niniejszym rozdziale.

Sekcja 3: Zmiany w trakcie obowiązywania umowy Artykuł 17:301 Obowiązki informacyjne ubezpieczyciela po zawarciu umowy (1) W stosownym przypadku, ubezpieczyciel co roku doręcza ubezpieczającemu na piśmie, oświadczenie o obecnej wartości zniżek przypisanych do dokumentu potwierdzającego zwarcie umowy ubezpieczenia. (2) Oprócz wymogów wskazanych w Artykule 2:701 ubezpieczyciel ma obowiązek, bez zbędnej zwłoki poinformować ubezpieczającego o każdej zmianie dotyczącej: (a) postanowień ogólnych i szczegółowych dokumentu potwierdzającego zawarcie umowy ubezpieczenia; (b) zmian w dokumencie potwierdzającym zawarcie umowy ubezpieczenia lub zmian ZEPU: informacji wyszczególnionych w Artykule 2:201 litera f i g, a także w Artykule 17:202 par. 2 litera b punkty od i do v. 10

Artykuł 17:203 par. 1 oparty jest na treści Artykułu 35 Dyrektywy 2002/83/WE dotyczącej ubezpieczeń na życie oraz Artykułu 6 Dyrektywy 2002/65/WE.

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(3) W przypadku gdy wartości mające związek z szacowaną wysokością możliwych świadczeń, są ujawniane w w dowolnym terminie wciągu trwania okresu ubezpieczenia Artykuł 17:202 par. 4 ma zastosowanie. W przypadku gdy ubezpieczyciel ujawnił – przed lub po zawarciu umowywartości dotyczące rozwoju przyszłych potencjalnych korzyści z zawarcia umowy, ubezpieczyciel informuje ubezpieczającego o każdej różnicy pomiędzy obecnym stanem a wstępnymi danymi.

Artykuł 17:302 Zwiększenie ryzyka zajścia wypadku ubezpieczeniowego W umowie ubezpieczenia na życie, postanowienia wskazujące takie przesłanki jak wiek lub pogorszenie zdrowia jako zwiększające ryzyko zajścia wypadku ubezpieczeniowego w rozumieniu Artykułu 4:201 traktuje się jako klauzulę abuzywną w rozumieniu Artykułu 2:304

Artykuł 17:303 Zmiana płatności składki i świadczeń (1) W umowach ubezpieczenia na życie obejmujących ryzyka, za które ubezpieczyciel z pewnością poniesie odpowiedzialność, jest on uprawniony dokonać zmiany jedynie zgodnie z par. 2 i 3. (2) Podwyższenie składki jest dopuszczalne, jeżeli nastąpiła nieprzewidywalna i stała zmiana dotycząca ryzyka biometrycznego zastosowanego dla oszacowania składki, lub jeżeli podwyższenie jest konieczne dla zagwarantowania możliwości wypłaty świadczeń przez ubezpieczyciela lub jeżeli podwyżka została zatwierdzona przez niezależnego aktuariusza lub organ nadzoru. Ubezpieczający jest uprawniony do wyrównania podwyżki poprzez stosowne zmniejszenie świadczeń ubezpieczeniowych. (3) W przypadku opłaconej polisy, ubezpieczyciel jest uprawniony do redukcji świadczeń zgodnie z przesłankami wyrażonymi w par. 2. (4) Zmiany, o których mowa w par. 2 lub 3 są niedpouszczalne jeżeli: (a) wynikają z błądu dokonanego w zakresie kalkulacji składki lub świadczeń, a które by nie powstały, gdyby aktuariusz działał z należytą starannością lub (b) kalkulacja będąc podstawą zmianynie jest stosowana do wszystkich umów, włączając w to umowy zawarte po wprowadzeniu zmiany. (5) Podwyższenie składki lub zmniejszenie świadczeń staje się skuteczne wobec ubezpieczającego z upływem 3 miesięcy od doręczenia przez ubezpieczyciela na piśmie zawiadomienia o podwyżce składki lub zmniejszeniu świadczeń, zawierającego powody wprowadzenia zmian oraz pouczenie o uprawnieniu ubezpieczającego do samodzielnego żądania zmniejszenia świadczeń. (6)W umowach ubezpieczenia na życie obejmujących ryzyka, za które ubezpieczyciel na pewno poniesie odpowiedzialność, ubezpieczający jest uprawniony do żądania zmniejszenia składki, która ze względu na nieprzewidywalną i stałą zmianę dotyczącą ryzyka biometrycznego użytego jako podstawę oszacowania składki, powoduje, że początkowa wysokość składki staje się nieodpowiednia i niekonieczna by zagwarantować możliwość ubezpieczyciela spełnienia świadczeń. Zmniejszenie musi być zatwierdzone przez niezależnego aktuariusza lub organ nadzorujący. (7) Uprawnienia wskazane w tym Artykule mogę być wykonane nie wcześniej niż 5 lat od zawarcia umowy.

Artykuł 17:304 Zmiana treści umowy ubezpieczenia (1) Nieważne jest postanowienie umowy które umożliwia ubezpieczycielowi zmianęumowę ubezpieczenia w zakresie innym niż składka i świadczenia, chyba że zmiana jest (a) wprowadzana, by umowa była w zgodności ze zmianą prawa o nadzorze, włączając w to wiążące zarządzenia organów nadzorujących, lub

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(b) wprowadzana, by umowa była w zgodności ze zmianą bezwzględnie obowiązujących przepisów prawa krajowego dotyczących uprawnień emerytalnych pracowników, lub (c) wprowadzana, by umowa była w zgodności ze zmianą krajowych przepisów nakładających szczególne warunki na umowy ubezpieczenia na życie w zakresie prawa podatkowego lub prawa pomocy publicznej, lub (d) wprowadzana zgodnie z Artykułem 2:304 par. 2 zdanie 2, to jest, jako postanowienie zastępcze umowy. (2) Zmiana staje się skuteczna z początkiem trzeciego miesiąca, po którym ubezpieczającemu doręczono na piśmie zawiadomienie o zmianie z podaniem powodów. (3) Par. 1 ma zastosowanie z uwzględnieniem przesłanek ważności zmiany treści umowy.

Sekcja 4: Prawo krajowe Artykuł 17:401 System emerytalny Z zastrzeżeniem bezwzględnie obowiązujących przepisów prawa krajowego, umowa ubezpieczenia na życie połączona z systemem emerytalnym podlega temu prawu krajowemu. ZEPU ma zastosowanie jedynie w zakresie w jakim jest zgodne z normami prawa krajowego.

Artykuł 17:402 System podatkowy i subsydia państwowe ZEPU nie wpływa na normy nakładające szczególne wymogi na umowy ubezpieczenia na życie w celu ich kwalifikacji do preferencyjnego systemu opodatkowania lub państwowych subsydiów. W przypadku konfliktu norm ZEPU z wymogami prawa krajowego, zastosowanie ma prawo krajowe.

Sekcja 5: Wypadek ubezpieczeniowy Artykuł 17:501 Postępowanie ubezpieczyciela i obowiązek informacyjny (1) Ubezpieczyciel, który ma podstawy do uznania, że wypadek ubezpieczeniowy mógł się wydarzyć, podejmuje uzasadnione czynności w celu potwierdzeniazajścia wypadku ubezpieczeniowego. (2) Ubezpieczyciel, wiedząc, że wypadek ubezpieczeniowy miał miejsce, dopełnia wszelkich możliwych starań by ustalić tożsamość i adres uposażonego oraz informuje uposażonego o zaistnieniu wypadku ubezpieczeniowego. Informację o wypadku ubezpieczeniowym doręcza się uposażonemu nie później niż 30 dni od ustalenia jego tożsamości i adresu. (3) Jeżeli ubezpieczyciel narusza par. 1 lub 2, upływ terminu przedawnienia roszczenia uposażonego ulega zawieszeniu do momentu, gdy uposażony dowie się o swoich uprawnieniach.

Artykuł 17:502 Samobójstwo (1) Jeżeli w przeciągu 1 roku od zawarcia umowy ubezpieczenia, osoba wobec której może ziścić się ryzyko zajścia wypadku popełnia samobójstwo, ubezpieczyciel zostaje zwolniony z odpowiedzialności zapłaty świadczenia pieniężnego.W tym wypadku, ubezpieczyciel płaci wartość wykupu i wszelkie przychody z umowy ubezpieczenia, zgodnie z Artykułem 17:602. (2) Par. 1 nie ma zastosowania gdy (a) osoba wobec której może ziścić się ryzyko zajścia wypadku, popełniła samobójstwo, będąc w stanie psychicznym wykluczającym swobodne podejmowanie i wyrażanie woli, lub

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(b) udowodniono bez żadnych wątpliwości, że w momencie zawarcia umowy, osoba wobec której może ziścić się ryzyko zajścia wypadku nie zamierzała popełnić samobójstwa.

Artykuł 17:503 Zabójstwo z zamiarem bezpośrednim osoby wobec której może ziścić się ryzyko zajścia wypadku ubezpieczeniowego (1) Uposażony traci swój status uposażonego, jeżeli zabija z zamiarem bezpośrednim osobę, wobec której może ziścić się ryzyko zajścia wypadku. (2) Przeniesienie roszczenia owypłatęy świadczenia pieniężnego jest nieskuteczne, jeżeli osoba, na którą przeniesiono roszczenia, zabija z zamiarem bezpośrednim osobę wobec której może ziścić się ryzyko zajścia wypadku. (3) Świadczenie pieniężne nie jest należne, jeżeliubezpieczający, będący także uposażonym, zabija z zamiarem bezpośrednim osobę wobec której może ziścić się ryzyko zajścia,. (4) Niniejszy Artykuł nie ma zastosowania w przypadku, gdy uposażony lub ubezpieczający zabija z usprawiedliwionych powodów, na przykład w akcie obrony koniecznej, osobę wobec której może ziścić się ryzyko zajścia wypadku.

Sekcja 6: Przekształcenie i wykup Artykuł 17:601 Przekształcenie umowy (1) Artykułu 5:103 nie stosuje się do umów ubezpieczenia na życie, z przypisanym prawem do uzyskania jakiejkolwiek wartości wynikającej z przekształcenia umowy lub wartości wykupu. Wspomniane umowy przekształca się na umowy bezskładkowe chyba, że ubezpieczający żąda zapłaty wartości wykupu w ciągu 4 tygodni od otrzymania informacji określonej w par. 2. (2) Ubezpieczyciel informuje ubezpieczającego o wartości przekształcenia i wartości wykupu w ciągu 4 tygodniu od upływu okresu określonego w Artykule 5:101(b) lub Artykule 5:102 par. 1(b) oraz żąda od ubezpieczającego, by dokonał wyboru pomiędzy przekształceniem a zapłatą wartości wykupu. (3) Żądanie przekształcenia lub zapłaty wartości wykupu sporządza się w formie pisemnej.

Artykuł 17:602 Wykup umowy (1) Ubezpieczający może w każdym czasie żądać na piśmie od ubezpieczyciela zapłaty, w całości bądź w części, wartości wykupu, określonej w umowie, przy czym żądanie to nie wywołuje skutku, jeżeli jest dokonane wcześniej niż przed upływem roku od zawarcia umowy. Umowa ulega odpowiednio zmianie lub rozwiązaniu. (2) Z zastrzeżeniem Artykułu 17:601, jeżeli umowa ubezpieczenia na życie z przypisanym prawem douzyskania wartości wykupu, zostaje rozwiązana, unieważniona przez ubezpieczyciela lub ubezpieczyciel od niej odstąpił, ubezpieczyciel zobowiązany jest to zapłaty wartości wykupu nawet w przypadku określonym w Artykule 2:104. (3) Ubezpieczyciel doręcza ubezpieczającemu na jego żądanie, a w jego braku corocznie, informację na temat obecnej wartości wykupu i zakres, w jakim jest gwarantowana. (4) Udział w zysku, do którego ubezpieczający jest uprawniony wypłaca się dodatkowo wraz z wartością wykupu chyba, że udział został od razu włączony do oszacowania wartości wykupu. (5) Zgodnie z niniejszym artykułem, sumę należną wypłaca się nie później niż dwa miesiące od otrzymania przez ubezpieczyciela żądania ubezpieczającego..

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Artykuł 17:603 Wartość przekształcenia; wartość wykupu (1) Umowa ubezpieczenia wskazuje sposób, w jaki oszacowanie wartości przekształcenia i/lub wartości wykupu dokonywane jest w zgodności z obowiązującymi wobec danego ubezpieczyciela przepisami prawa państwa członkowskiego. Wskazany sposób oszacowania wartości wykupu i/ lub wartości przekształcenia musi być zgodny z zasadami aktuarialnymi oraz z par. 2. (2) W przypadku, gdy ubezpieczyciel potrąca koszty zawarcia umowy, zobowiązany jest do potrąceń w równych ilościach i w okresie nie krótszym niż pięć lat. (3) Ubezpieczyciel jest uprawniony do dokonywania potrąceń w stosownej ilości, które szacuje się w zgodności z ustalonymi zasadami aktuarialnymi, w celu pokrycia kosztów związanych z zapłatą wartości wykupu chyba, że oszacowanie pierwotnie zawiera uwzględnienie tych kosztów.

Część 6: Ubezpieczenia grupowe Rozdział 18: Postanowienia szczególne dla ubezpieczeń grupowych Sekcja pierwsza: Postanowienia ogólne na ubezpieczeń grupowych Artykuł 18:101 Zakres zastosowania Umowy ubezpieczenia grupowego podlegają ZEPU gdy organizator grupy i ubezpieczyciel wybrali ZEPU jako prawo właściwe, zgodnie z Artykułem 1:102. Ubezpieczenie grupowe jest akcesyjnym ubezpieczeniem grupowym, które podlega sekcji 2 niniejszego rozdziału bądź fakultatywnym ubezpieczeniem grupowym, które podlega sekcji 3 niniejszego rozdziału.

Artykuł 18:102 Należyta staranność organizatora grupy (1) Organizator grupy zobowiązany jest działać z należytą starannością i w dobrej wierze biorąc pod uwagę uzasadnione interesy grupy w okresie negocjacji warunków i wykonywania umowy ubezpieczenia grupowego. (2) Organizator grupy przekazuje wszystkie istotne informacje podane przez ubezpieczyciela oraz zawiadamia członków grupy o wszelkich zmianach w umowie ubezpieczenia grupowego.

Sekcja Druga: Akcesyjne ubezpieczenie grupowe Artykuł 18:201 Zastosowanie ZEPU Tam gdzie to konieczne postanowienia ZEPU stosuje się odpowiednio do akcesyjnych ubezpieczeń grupowych. Artykuł 18:202 Obowiązki notyfikacyjne (1) Wraz z uzyskaniem statusu członka grupy, organizator grupy poinformuje, bez zbędnej zwłoki o (a) o istnieniu umowy ubezpieczenia grupowego, (b) zakresie ochrony ubezpieczeniowej, (c) środkach prewencyjnych oraz innych warunkach utrzymania ochrony ubezpieczeniowej, oraz (d) procedurze składania wniosków o wypłatę świadczenia. (2) Ciężar udowodnienia, że członek został poinformowany o wszystkim wskazanym w par. 1 spoczywa na organizatorze grupy.

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Artykuł 18:203 Wypowiedzenie przez ubezpieczyciela (1) W rozumieniu Artykułu 2:604, wypowiedzenie umowy przez ubezpieczyciela jest uzasadnione, jeżeli jego podstawą jest wyłączenie udzielenia ochrony ubezpieczeniowej dla tego członka grupy i wobec którego ziścił się wypadek ubezpieczeniowy.. (2) W rozumieniu Artykułu 4:102 i Artykułu 4:203 par. 1 wypowiedzenie umowy przez ubezpieczyciela skutkuje pozbawieniem ochrony ubezpieczeniowej tych członków grupy, którzy nie powzięli wymaganych środków prewencyjnych oraz których ryzyko zajścia wypadku ubezpieczeniowego zwiększyło się odpowiednio.. (3) W rozumieniu Artykułu 12:102 wypowiedzenie umowy ubezpieczeniowej skutkuje pozbawieniem statusu członka grupy wyłącznie wobec tych członków, którzy przenieśli tytuł prawny własności objętej ochroną ubezpieczeniową.

Artykuł 18:204 Kontynuacja ochrony ubezpieczeniowej w ramach grupowego ubezpieczenia na życie (1) W przypadku wypowiedzenia grupowego ubezpieczenia na życie bądź utracenia statusu członka grupy z powodu odejścia, ochrona ubezpieczeniowa kończy się po 3 miesiącach lub z momentem wygaśnięcia umowy ubezpieczenia grupowego na życie, zależnie od tego które zdarzenie nastąpi wcześniej. W momencie zaistnienia zdarzenia, członek grupy ma prawo do ekwiwalentnej ochrony ubezpieczeniowej na podstawie nowej indywidualnej umowy z tym samym ubezpieczycielem wraz z utrzymaniem poprzedniej oceny ryzyka (2) Organizator grupy informuje pisemnie, bez zbędnej zwłoki członka grupy o (a) zbliżającym się wygaśnięciu jego ochrony ubezpieczeniowej na podstawie umowy ubezpieczenia grupowego na życie, (b) o prawach przysługujących mu na podstawie par. 1 (c) o sposobie wykonania wyżej wskazanego prawa. (3) W przypadku wskazania przez członka grupy, że zamierza skorzystać z prawa przysługującego mu na podstawie Artykułu 18:204 par. 1, umowa pomiędzy ubezpieczycielem a członkiem grupy przeistacza się w indywidualną umowę ubezpieczenia ze składką obliczoną na podstawie obowiązujących w tym czasie ogólnych warunków dla klienta indywidualnego i bez wzięcia pod uwagę obecnego stanu zdrowia i wieku tego członka.

Sekcja Trzecia: Fakultatywne ubezpieczenie grupowe Artykuł 18:301 Postanowienia ogólne (1) Fakultatywne ubezpieczenie grupowe oznacza połączenie ramowej umowy ubezpieczenia, między ubezpieczycielem i organizatorem grupy, i umowy ubezpieczenia indywidualnego zawartej na podstawie umowy ramowej pomiędzy ubezpieczycielem a członkiem grupy. (2) ZEPU ma zastosowanie do umowy ubezpieczenia indywidualnego jeżeli ubezpieczyciel i organizator grupy się na to zgodzili. ZEPU nie ma zastosowania do umów ramowych z wyjątkiem Artykułów 18:101 i 18:102.

Artykuł 18:302 Zmiana treści umowy ubezpieczenia Zmiana treści umowy ubezpieczenia wpływa jedynie na umowę ubezpieczenia indywidualnego jeżeli nastąpi odpowiednio przy spełnieniu warunków z Artykułu 2:603, 17:303 i 17:304.

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Artykuł 18:303 Przedłużenie ochrony ubezpieczeniowej Wypowiedzenie umowy ramowej bądź zerwanie członkostwa przez członka grupy nie ma wpływu na umowę ubezpieczenia pomiędzy ubezpieczycielem a członkiem grupy.

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Portuguese version by Pedro Pais de Vasconcelos

Princípios do Direito Europeu do Contrato de Seguro (PEICL) Primeira parte: Disposições comuns a todos os contratos incluídos nos Princípios Comuns do Direito Europeu do Contrato de Seguro (PEICL) Capítulo Primeiro: Disposições Introdutórias Secção I: Aplicação dos PEICL Secção II: Regras gerais Secção III: Execução

Capítulo Segundo: Fase pré-contratual e duração do contrato de seguro Secção I: Dever de informação pré-contratual do Contraente Secção II: Deveres pré-contratuais do segurador Secção III: Conclusão do contrato Secção IV: Cobertura retroativa e preliminar Secção V: Apólice de seguro Secção VI: Duração do contrato de seguro Secção VII: Dever de informação do segurador

Capítulo Terceiro: Intermediação nos seguros Capítulo Quarto: O risco segurado Secção I: Medidas de prevenção Secção II: Agravamento do risco Secção III: Redução do risco

Capítulo Quinto: Prémio do seguro Capítulo Sexto: Sinistro Capítulo Sétimo: Prescrição Segunda parte: Disposições comuns ao seguro de danos Capítulo Oitavo: Capital seguro e valor seguro Capítulo Nono: Direito à indemnização

Capítulo Décimo: Sub-rogação Capítulo Décimo Primeiro: Seguro a favor de terceiro Capítulo Décimo Segundo: Risco seguro Terceira parte: Disposições comuns ao seguro de prestações convencionadas Capítulo Décimo Terceiro: Admissibilidade Quarta parte: Seguro de responsabilidade civil Capítulo Décimo Quarto: Seguro de responsabilidade civil em geral Capítulo Décimo Quinto: Ação direta Capítulo Décimo Sexto: Seguro obrigatório Quinta parte: Seguro de vida Capítulo Décimo Sétimo: Preceitos especiais sobre o seguro de vida Secção I: Terceiros Secção II: Início e duração do contrato Secção III: Modificações durante a vigência do contrato Secção IV: Relação com as leis nacionais Secção V: O sinistro Secção VI: Conversão e resgate

Sexta Parte: Seguro de grupo Capítulo décimo oitavo: Preceitos especiais para o seguro de grupo Secção I: Seguro de grupo em geral Secção II: Seguro de grupo acessório Secção III: Seguro de grupo eletivo

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Primeira parte: Disposições comuns a todos os contratos incluídos nos Princípios Comuns do Direito Europeu do Contrato de Seguro (PEICL) Capítulo Primeiro: Disposições Introdutórias Secção I: Aplicação dos PEICL Artigo 1:101 Âmbito de aplicação (1) Os PEICL aplicam-se aos seguros privados em geral, incluindo os seguros mútuos. (2) Os PEICL não se aplicam ao resseguro.

Artigo 1:102 Aplicação Opcional Os PEICL são aplicados quando as partes assim o estipularem no contrato, não obstante as limitações de escolha da lei em direito internacional privado. Sem prejuízo do disposto no Artigo 1:103, os PEICL serão aplicados na sua totalidade, não sendo admitidas quaisquer exclusões das suas disposições.

Artigo 1:103 Carácter injuntivo (1) Os artigos 1:102 parágrafo 2, 2:104, 2:304, 13:101, 17:101 e 17:503 têm carácter injuntivo. Os demais artigos são injuntivos naquilo em que regerem comportamentos fraudulentos. (2) O contrato pode derrogar todas as demais disposições desde que a derrogação não resulte em detrimento do tomador, do segurado ou do beneficiário. (3) A derrogação, no sentido do parágrafo 2, é permitida em benefício de qualquer das partes em contrato que cubram grandes riscos, no sentido do artigo 13. nº 27, da Diretiva 2009/138/EC. No seguro de grupo a derrogação apenas é admitida contra um segurado individual que corresponda às caraterísticas pessoais previstas no artigo 13, nº 27, alíneas b) ou c) da Diretiva 2009/138/ EC, quando aplicável.

Artigo 1:104 Interpretação Os PEICL serão interpretados à luz do seu texto, contexto, fim e enquadramento comparativo. Em particular, deverá ser tomada em consideração a necessidade de promover a boa fé e a correção no sector dos seguros, a segurança nas relações contratuais, a uniformidade na aplicação e a proteção adequada dos tomadores.

Artigo 1:105 Direito interno e princípios gerais (1) Não é permitido o recurso à lei nacional, quer para restringir quer para complementar os PEICL. Tal não se aplica às leis nacionais imperativas especificamente estatuídas para os ramos de seguro não cobertos por regras especiais contidas nos PEICL. (2) As questões que se suscitem no contrato de seguro e que não estejam expressamente previstas nos PEICL, serão resolvidas de acordo com os Princípios do Direito Europeu dos Contratos (PDEC) e, quando estes não contiverem regras aplicáveis, de acordo com os princípios gerais comuns aos direitos dos Estados Membros.

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Secção II: Regras Gerais Artigo 1:201 Contrato de seguro (1) “Contrato de Seguro” é um contrato pelo qual uma das partes, o segurador, promete à outra parte, o tomador, a cobertura de um determinado risco em contrapartida de um prémio; (2) “Sinistro” ou “evento seguro” é a concretização do risco determinado no contrato de seguro; (3) “Seguro de danos” é um seguro pelo qual o segurador se obriga a indemnizar um dano sofrido com a ocorrência do sinistro; (4) “Seguro de prestações convencionadas” é um seguro pelo qual o segurador se obriga a pagar a prestação convencionada no seguro com a ocorrência do sinistro. (5) “Seguro de responsabilidade civil” é um seguro cujo risco é a exposição do segurado a responsabilidade civil perante a vítima. (6) “Seguro de Vida” é um seguro em que a obrigação do segurador ou o pagamento do prémio depende da ocorrência de um sinistro ou de um evento seguro definidos exclusivamente por referência à morte ou à sobrevivência da pessoa segura. (7) “Contratos de seguro de grupo” são contratos celebrados entre um segurador e um organizador de um grupo, no interesse dos membros desse grupo que tenham um vínculo comum com o seu organizador. O contrato de seguro de grupo pode também cobrir a família dos membros do grupo. (8) “Seguro de grupo acessório” é um seguro de grupo em que os membros do grupo são automaticamente segurados por pertencerem ao grupo sem possibilidade de recusarem o seguro. (9) “Seguro de grupo eletivo” é um contrato de seguro em que os membros são segurados em resultado da sua pretensão pessoal ou do facto de não terem recusado o seguro.

Artigo 1:202 Outras definições (1) “Segurado” é a pessoa cujo interesse é protegido do sinistro através de um seguro de danos; (2) “Beneficiário” é a pessoa a quem é pagável a prestação devida no quadro de seguro de prestações convencionadas; (3) “Pessoa segura” é a pessoa cuja vida, saúde, integridade ou estado são segurados; (4) “Vítima”, no seguro de responsabilidade civil, é a pessoa por cuja morte, dano corporal ou dano material, o segurado é responsável; (5) “Mediador” é o intermediário de seguros contratado pelo segurador para comercializar, vender ou gerir contratos de seguro; (6) “Prémio” é o pagamento devido ao segurador pelo tomador em contrapartida da cobertura; (7) “Período do contrato“ é o tempo da vinculação contratual, com início na celebração do contrato e termo com o decurso do prazo estipulado; (8) “Período do seguro“ é o período de tempo para o qual o prémio é devido conforme a estipulação das partes; (9) “Período de responsabilidade “ é o tempo de cobertura. (10) “Seguro obrigatório” é o seguro que é contratado no cumprimento dum dever legal ou regulamentar.

Artigo 1:203 Língua e interpretação dos documentos (1) Todos os documentos apresentados pela seguradora devem ser claros e inteligíveis e escritos na língua em que o contrato for negociado.

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(2) Em caso de dúvida sobre o significado do texto de qualquer documento ou informação facultada pela seguradora, deverá prevalecer a interpretação mais favorável para o tomador do seguro, para o segurado ou para o beneficiário.

Artigo 1:204 Receção dos documentos: prova Cabe ao segurador o ónus da prova da receção pelo tomador dos documentos que aquele lhe dirija.

Artigo 1:205 Forma das declarações Sem prejuízo de preceitos específicos contidos nos PEICL, as comunicações pelo contraente, tomador do seguro, segurado ou beneficiário, relativas ao contrato de seguro, não carecem de forma especial.

Artigo 1:206 Imputação do conhecimento Se alguém for incumbido pelo tomador do seguro, pelo segurado ou pelo beneficiário, da prática de atos essenciais para a celebração ou execução do contrato, o conhecimento que essa pessoa tenha ou deva ter de factos pertinentes na execução das suas responsabilidades é considerado do conhecimento do tomador do seguro, do segurado ou do beneficiário, conforme for o caso.

Artigo 1:207 Não discriminação (1) O género, gravidez, maternidade, nacionalidade ou origem étnica não devem constituir fatores de diferenciação no prémio ou no benefício. (2) As cláusulas que violem o parágrafo 1, incluindo as relativas ao prémio, não serão vinculativas para o tomador ou para o segurado. (3) Em caso de violação do parágrafo 1, o tomador pode resolver o contrato. A resolução deve ser comunicada ao segurador por escrito no prazo de dois meses após o conhecimento da violação pelo tomador.

Artigo 1:208 Testes genéticos (1) O segurador não deverá pedir ao proponente, ao tomador ou à pessoa segura que se submeta a testes genéticos ou que faculte o seu resultado, nem deve tal informação ser usada pelo segurador com o fim de avaliação de riscos. (2) O parágrafo 1 não se aplica a seguros pessoais em que a pessoa segura tenha 18 anos de idade ou mais e o capital seguro para esta pessoa exceda EUR 300.000 ou o valor a pagar segundo a apólice exceda EUR 30.000 por ano.

Secção III: Execução Artigo 1:301 Injunções (1) Qualquer entidade competente, tal como definida no parágrafo 2, pode requerer a um tribunal ou a uma autoridade administrativa nacional competente que determine a proibição ou a cessação de infrações dos PEICL, desde que aplicáveis de acordo com o disposto no Artigo 1:102. (2) Considera-se entidade competente qualquer organismo ou organização que conste da lista elaborada pela Comissão Europeia de acordo com o Artigo 4 da Diretiva 2009/22/CE do Parlamento Europeu e do Conselho de 23 de abril de 2009 sobre as ações inibitórias em matéria de proteção dos interesses do consumidor, com as respetivas alterações.

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Artigo 1:302 Mecanismos extrajudiciais de resolução dos litígios A aplicação dos PEICL não preclude o acesso a mecanismos extrajudiciais de resolução dos litígios disponíveis para o tomador do seguro, o segurado ou o beneficiário.

Capítulo segundo: Fase pré-contratual e duração do contrato de seguro Secção I: Dever de informação pré-contratual do contraente Artigo 2:101 Dever de informação (1) No momento da celebração do contrato, o contraente deverá informar o segurador sobre as circunstâncias de que tenha ou deva ter conhecimento e que sejam objeto de perguntas claras e precisas que lhe sejam formuladas por parte do segurador. (2) As circunstâncias mencionadas no parágrafo 1 incluem aquelas de que a pessoa a segurar tenha ou deva ter tido conhecimento.

Artigo 2:102 Violação (1) Em caso de violação do Artigo 2:101 pelo tomador do seguro, o segurador poderá propor uma modificação razoável do conteúdo do contrato ou resolvê-lo, nos termos dos parágrafos 2 a 5. Para este efeito, o segurador deverá comunicar por escrito a sua intenção, com a informação sobre as consequências jurídicas da sua decisão, no prazo de um mês após a violação do Artigo 2:101 ser por si conhecida ou para si aparente. (2) Caso o segurador proponha modificações razoáveis ao conteúdo do contrato, este continuará em vigor nos novos termos propostos, a menos que o tomador rejeite a proposta de modificação no prazo de um mês após a receção da comunicação mencionada no parágrafo 1. Nesse caso, o segurador poderá resolver o contrato no prazo de um mês após a receção da comunicação escrita da rejeição pelo tomador da modificação proposta. (3) O segurador não pode resolver o contrato em caso de violação inocente do Artigo 2:101, a menos que o segurador prove que não teria celebrado o contrato se tivesse sabido da informação em causa. (4) A resolução do contrato terá efeito um mês após a receção pelo tomador da comunicação escrita mencionada no parágrafo 1. A modificação inicia a sua vigência de acordo com o convencionado entre as partes. (5) Se, antes de se tornar eficaz a resolução ou a modificação do contrato, ocorrer um sinistro causado por um elemento do risco em relação ao qual o tomador, negligentemente, tenha omitido informação ou informado erroneamente, não haverá lugar a pagamento quando se concluir que o segurador não teria celebrado o contrato se tivesse tido conhecimento da informação em causa. Se, porém, se concluir que o segurador teria celebrado o contrato com um prémio superior ou um conteúdo diferente, o pagamento será feito proporcionalmente ou de acordo com esse diferente conteúdo.

Artigo 2:103 Exceções As sanções previstas no Artigo 2:102 não se aplicarão relativamente a (a) perguntas que não tenham sido respondidas, ou informações obviamente incompletas ou incorretas;

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(b) informações que deviam ter sido prestadas ou que foram incorretamente prestadas, mas que não tenham sido relevantes para uma decisão razoável, por parte do segurador, de celebrar o contrato ou de o celebrar com aquele conteúdo; (c) informações que o segurador tenha induzido o tomador a crer que não teriam de ser prestadas; (d) informações que o segurador conhecesse ou devesse conhecer.

Artigo 2:104 Violação fraudulenta Sem prejuízo das sanções previstas no Artigo 2:102, o segurador poderá anular o contrato mantendo o direito a qualquer prémio devido quando tenha sido induzido pelo tomador a celebrá-lo com violação fraudulenta do disposto no Artigo 2:101. O segurador deverá comunicar ao tomador a sua intenção de anular o contrato por escrito e no prazo de dois meses após ter conhecimento da fraude.

Artigo 2:105 Informação adicional Os Artigos 2:102 a 2:104 são também aplicáveis a qualquer outra informação prestada pelo tomador ao tempo da conclusão do contrato, para além do previsto no Artigo 2:101.

Artigo 2:106 Informação genética Esta secção não se aplica aos resultados de testes genéticos, que são regidos pelo Artigo 1:208 parágrafo 1.

Secção II: Deveres Pré-contratuais do Segurador Artigo 2:201 Documentos pré-contratuais (1) O segurador deverá disponibilizar ao contraente uma cópia das cláusulas contratuais propostas assim como um documento que inclua a seguinte informação, se relevante: (a) o nome e morada das partes contratantes, principalmente a sede e o tipo legal do segurador e ainda, se for o caso, da sucursal ou dependência que celebra o contrato e garante e assume a cobertura; (b) o nome e morada do segurado e do beneficiário e, em caso de seguro de vida, do beneficiário e da pessoa segura; (c) o nome e morada do agente mediador; (d) o objeto do seguro e os riscos cobertos; (e) o capital seguro e quaisquer deduções; (f) o montante do prémio ou o modo de o calcular; (g) o tempo de vencimento do prémio assim como o lugar e modo do seu pagamento; (h) o período do contrato e o período de responsabilidade; (i) o poder de revogar a proposta ou de resolver o contrato de acordo com o disposto no Artigo 2:303 no caso de seguro não vida, e do Artigo 17:203, no caso de seguro de vida., (j) que o contrato está sujeito aos PEICL; (k) a existência de meios extrajudiciais de resolução dos litígios para o contraente e a forma de ter acesso a eles; (l) a existência de fundos de garantia ou outros acordos de compensação. (2) Se possível, esta informação deverá ser prestada com antecedência suficiente para permitir ao contraente ponderar a celebração ou não do contrato.

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(3) Quando o contraente solicitar uma cobertura de seguro com base numa proposta de contrato e/ou questionário fornecido pela seguradora, a seguradora deverá facultar ao contraente uma cópia de todos os documentos depois de completados.

Artigo 2:202 Dever de informação sobre inadequação da cobertura (1) Na celebração do contrato, o segurador deverá advertir o contraente sobre quaisquer incongruências entre a cobertura oferecida e as conveniências do contraente, das quais o segurador tenha ou deva ter conhecimento, tendo em consideração as circunstâncias e o modo da contratação, em particular quando o contraente tenha sido assistido por um mediador independente. (2) no caso de violação do parágrafo 1 (a) o segurador deverá indemnizar o tomador de todos os danos emergentes da violação da sua obrigação de o advertir, a menos que a seguradora tenha agido sem culpa, e (b) o tomador poderá resolver o contrato mediante comunicação escrita no prazo de dois meses após o conhecimento da violação.

Artigo 2:203 Dever de informação sobre o início da cobertura Se o contraente formar a convicção razoável mas errada de que a cobertura tem início no momento da entrega da proposta do seguro, e o segurador tiver ou dever ter conhecimento de tal convicção, deve o segurador informar o contraente imediatamente de que a cobertura do seguro só tem início ao tempo da celebração do contrato e, se for o caso, do pagamento do primeiro prémio, a menos que tenha sido estipulada uma cobertura preliminar. Se o segurador tiver violado este seu dever de informar será responsável de acordo com o disposto no Artigo 2:202 parágrafo 2(a).

Secção III: Conclusão do Contrato Artigo 2:301 Forma O contrato de seguro não carece de forma ou prova escrita nem está sujeito a outros requisitos de forma. O contrato pode ser provado por qualquer meio, incluindo a prova testemunhal.

Artigo 2:302 Revogação da Proposta A proposta de seguro pode ser revogada pelo contraente desde que a revogação chegue ao segurador antes de o contraente receber deste a aceitação.

Artigo 2:303 Período de Reflexão (1) O tomador poderá resolver o contrato por comunicação escrita, no prazo de duas semanas a contar da mais tardia das duas datas seguintes: do recebimento da aceitação ou da entrega dos documentos mencionados no Artigo 2:501. (2) O tomador não poderá resolver o contrato quando (a) a duração do contrato for inferior a um mês; (b) o contrato for prorrogado nos termos do Artigo 2:602; (c) se tratar de seguro preliminar, seguro de responsabilidade civil ou seguro de grupo.

Artigo 2:304 Cláusulas Abusivas (1) As cláusulas contratuais que não tenham sido negociadas individualmente não vinculam o tomador, o segurado ou o beneficiário se, sendo contrárias às exigências de boa fé e equidade,

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causarem desequilíbrio significativo, em seu detrimento. nos poderes e deveres emergentes do contrato, tendo em consideração a natureza do contrato de seguro, todas as demais cláusulas do contrato e as circunstâncias ao tempo da sua conclusão. (2) O contrato continuará a vincular as partes se puder subsistir sem as cláusulas abusivas. No caso contrário, serão as cláusulas abusivas substituídas por outras com as quais partes que sejam razoáveis teriam contratado se tivessem conhecido o carácter abusivo daquelas. (3) Este Artigo é aplicável a cláusulas que limitem ou modifiquem a cobertura, mas não se aplica (a) nem à adequação do valor da cobertura e do prémio, (b) nem às cláusulas que estipulem sobre a descrição da cobertura ou o prémio acordado, desde que redigidas em linguagem clara e inteligível. (4) Uma cláusula nunca deverá ser considerada como individualmente negociada quando tiver sido pré-estabelecida de modo que o tomador não tenha tido a possibilidade de influenciar o seu conteúdo, particularmente no caso de contratos pré-formulados. O facto de uma cláusula ou de certos aspetos da mesma terem sido individualmente negociados, não exclui a aplicação deste Artigo ao resto do contrato, quando uma avaliação global do contrato revele que, não obstante, se trate de um contrato pré-formulado. Cabe ao segurador o ónus da prova quando alegar que uma cláusula normalizada foi individualmente negociada.

Secção IV: Cobertura retroativa e preliminar Artigo 2:401 Cobertura retroativa (1) Caso tenha sido concedida cobertura por um período anterior à celebração do contrato (cobertura retroativa), se o segurador no momento da conclusão do contrato souber que não ocorreu qualquer sinistro, o tomador só terá de pagar o prémio correspondente ao período posterior à data da conclusão. (2) No caso da cobertura retroativa, se o tomador do seguro, no momento da conclusão do contrato, tiver conhecimento de que o sinistro segurado já ocorreu, o segurador, de acordo com o Artigo 2:104, deverá limitar a cobertura ao período posterior à conclusão.

Artigo 2:402 Cobertura preliminar (1) Quando for concedida uma cobertura preliminar, o segurador deverá emitir uma nota de cobertura com as informações especificadas no Artigo 2:501 (a), (b), (d), (e) e (h) se for pertinente. (2) Não se aplicam à cobertura preliminar os Artigos 2:201 a 2:203 e, como referido no parágrafo 1 supra, o Artigo 2:501.

Artigo 2:403 Duração da cobertura preliminar (1) Quando for concedida uma cobertura preliminar, essa cobertura não deverá terminar antes do início da cobertura acordada como objeto do contrato de seguro ou do momento em que o contraente receber do segurador a comunicação da rejeição definitiva da proposta de seguro, conforme o caso. (2) Quando for concedida uma cobertura preliminar a quem não propuser o contrato de seguro ao mesmo segurador, a cobertura poderá ser concedida por um período inferior ao estabelecido no Artigo 2:601 parágrafo 1. Esta cobertura poderá ser cancelada por qualquer das partes mediante pré-aviso de duas semanas.

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Secção V: Apólice de Seguro Artigo 2:501 Conteúdo Ao celebrar o contrato, o segurador deverá emitir a apólice de seguro, junto com as condições gerais do contrato, caso não estejam incluídas na apólice. A apólice deve conter as seguintes informações: (a) o nome e morada das partes contratantes; (b) o nome e morada do segurado e do beneficiário; (c) o nome e morada do mediador; (d) o objeto do seguro e os riscos cobertos; (e) o capital seguro e todas as exclusões; (f) o montante do prémio ou o modo de o calcular; (g) o tempo do vencimento do prémio, o lugar e modo do seu pagamento; (h) o período do contrato e o período de cobertura; (i) o poder de resolver o contrato de acordo com o disposto no Artigo 2:303; (j) a lei aplicável ao contrato; (k) a existência de mecanismos extrajudiciais de resolução dos litígios para o contraente e o modo de lhes aceder; (l) a existência de fundos de garantia ou outros acordos de compensação

Artigo 2:502 Efeitos da apólice (1) Se as condições constantes da apólice divergirem do que tiver sido proposto pelo tomador ou previamente acordado entre as partes, tais diferenças desde que enfatizadas no texto são tidas como aceites pelo tomador desde que este se lhe nãoponha no prazo de um mês após a receção da apólice. O segurador deverá advertir em negrito o tomador acerca do poder de este se opor às divergências especialmente salientadas na apólice. (2) Caso o segurador não cumpra o parágrafo 1, o contrato será considerado aceite tal como constar da proposta do tomador ou do acordo prévio entre as partes, conforme o caso.

Secção VI: Duração do Contrato de Seguro Artigo 2:601 Duração do contrato de seguro (1) A duração do contrato de seguro é de um ano. As partes poderão acordar um período diferente se for conveniente devido à natureza do risco. (2) O parágrafo 1 não se aplica a seguros de pessoas.

Artigo 2:602 Prorrogação (1) Decorrido o período de um ano referido no Artigo 2:601 o contrato será sucessivamente prorrogado a menos que (a) o segurador comunique por escrito não pretender a prorrogação e as razões da sua decisão, com pelo menos um mês de antecedência em relação ao termo do período do contrato; ou (b) o tomador comunique por escrito ao segurador não pretender a prorrogação, até ao último dia do prazo do contrato ou no prazo de um mês após a receção do aviso para pagamento do prémio, o que ocorrer em último lugar. Neste último caso, o período de um mês só começará a contar se assim for claramente explicitado, em negrito, no aviso. (2) Para os efeitos do parágrafo 1 (b) a comunicação será eficaz no momento da expedição.

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Artigo 2:603 Modificação do contrato de seguro (1) Num contrato de seguro prorrogável de acordo com o Artigo 2:602, qualquer cláusula que permita ao segurador modificar o prémio ou qualquer outra estipulação ou condição do contrato será ineficaz a menos que dela conste que (a) a modificação não terá efeito antes da próxima prorrogação, (b) o segurador comunique por escrito ao tomador a modificação até um mês antes do termo do contrato, e (c) nessa comunicação informe o tomador que tem o poder de se opor à prorrogação do contrato e quais as consequências de não exercer esse poder. (2) O parágrafo 1 aplica-se sem prejuízo de outros requisitos de validade das cláusulas de modificação.

Artigo 2:604 Resolução em caso de sinistro (1) É ineficaz a cláusula que permita a resolução do contrato após a ocorrência de um sinistro, a menos que (a) confira esse poder a ambas as partes e (b) não se trate de um seguro de pessoas. (2) Tanto a cláusula que preveja a resolução do contrato como o próprio ato de resolução devem ser razoáveis. (3) O poder de resolver o contrato caduca se não for exercido por escrito no prazo de dois meses após o conhecimento da ocorrência do sinistro pela parte que exerce a resolução. (4) A cobertura do seguro extingue-se duas semanas após a comunicação da resolução de acordo com o parágrafo 3.

Secção VII: Dever de informação do segurador Artigo 2:701 Dever de informação espontânea Na vigência do contrato, o segurador deverá informar por escrito o tomador, sem demora injustificada, de qualquer modificação relativa ao seu nome e morada, à sua estrutura jurídica e ao local da sua sede sucursal ou dependência que celebrou o contrato.

Artigo 2:702 Dever de informação provocada (1) A pedido do tomador, o segurador deverá prestar ao tomador, sem demora injustificada, a informação relativa a (a) todos os assuntos relevantes para a execução do contrato que lhe seja razoável exigir; (b) as novas condições gerais incluídas pelo segurador em contratos de seguro do mesmo tipo do celebrado com o tomador. (2) Tanto os pedidos de informação do tomador como informações prestadas pelo segurador devem ser feitas por escrito.

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Capítulo terceiro: Intermediação nos seguros Artigo 3:101 Poderes dos mediadores de seguros (1) O mediador de seguros tem poder para praticar todos os atos em nome do segurador que de acordo com a prática corrente da indústria se encontram dentro do âmbito da sua função. Qualquer restrição a este poder do mediador deverá ser comunicada claramente ao tomador do seguro através de uma ata adicional. O poder do mediador deverá, porém, cobrir, pelo menos, o âmbito atual da sua função. (2) Em qualquer caso, a autoridade do mediador de seguros incluirá o poder de: (a) informar e aconselhar o tomador, e (b) receber comunicações do tomador. (3) As informações relevantes que o mediador tenha ou devesse ter no exercício da sua atividade são tidas como do conhecimento do segurador.

Artigo 3:102 Mediadores que se apresentem como independentes Se um mediador de seguros se apresentar como um intermediário independente e agir com violação dos correspondentes deveres que lhe são impostos por lei, o segurador será responsável por essa violação.

Capítulo quarto: O risco segurado Secção I: Medidas de prevenção Artigo 4:101 Medidas de prevenção: significado Medida de prevenção é uma cláusula do contrato de seguro, qualificada ou não como pressuposto da responsabilidade do segurador, que exija do tomador ou do segurado a prática ou omissão de certos atos, antes da ocorrência do sinistro.

Artigo 4:102 Poder do segurador de resolver o contrato (1) A cláusula que permita ao segurador resolver o contrato em caso de incumprimento de uma medida de prevenção só será eficaz se a medida de prevenção tiver sido violada com a intenção de causar danos ou negligentemente e com consciência de que esse dano provavelmente resultaria da violação. (2) A resolução deve ser feita por escrito dirigido ao tomador no prazo de um mês após o incumprimento da medida de prevenção ser conhecido ou cognoscível pelo segurador. A cobertura terminará no momento da resolução.

Artigo 4:103 Exclusão da responsabilidade do segurador (1) A cláusula segundo a qual a violação de medidas de prevenção exclua total ou parcialmente a responsabilidade do segurador, será eficaz apenas na medida em que a perda for causada pela sua violação pelo tomador ou pelo segurado com a intenção de causar a perda ou negligentemente e com consciência de que esse dano provavelmente resultaria da violação. (2) O tomador ou o segurado, conforme o caso, terão direito à prestação relativa a quaisquer perdas causadas por violação negligente de uma medida de prevenção, desde que tenha sido claramente estipulada a redução do capital seguro na proporção da culpa.

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Secção II: Agravamento do Risco Artigo 4:201 Cláusulas sobre o agravamento do risco As cláusulas relativas ao agravamento do risco seguro não terão efeito a menos que o agravamento do risco em questão seja relevante e de um tipo previsto no contrato.

Artigo 4:202 Dever de informação sobre o agravamento do risco (1) Se assim for imposto pela cláusula correspondente, a comunicação do agravamento do risco deverá ser feita pelo tomador, pelo segurado ou pelo beneficiário, conforme o caso, desde que a pessoa obrigada à comunicação tenha ou deva ter conhecimento da cobertura e do agravamento do risco. A comunicação será válida mesmo que seja efetuada por outra pessoa. (2) Quando imposto na respetiva cláusula, o prazo para a comunicação do agravamento deve ser razoável. A comunicação torna-se eficaz na data de expedição. (3) Em caso de violação do dever de comunicar o agravamento do risco, o segurador não poderá, com esse fundamento, recusar o pagamento de perdas resultantes do sinistro no âmbito dessa cobertura, salvo se forem resultantes dessa violação.

Artigo 4:203 Sanções (1) Se o contrato estipular que, no caso de agravamento do risco, o segurador terá o poder de resolver o contrato, a resolução será efetuada por comunicação escrita dirigida ao tomador no prazo de um mês a contar da data em que o agravamento foi conhecido ou se tornou cognoscível para o segurador. (2) A cobertura cessa passado um mês após a resolução ou, caso o tomador tenha violado intencionalmente a obrigação prevista no Artigo 4:202, no momento da resolução. (3) Se o sinistro for causado, antes da cessação da cobertura, por um risco agravado do qual o tomador tivesse ou devesse ter conhecimento, a quantia segura não será paga se se concluir que o segurador não teria segurado o risco agravado. Se se concluir que o segurador teria segurado o risco agravado por um prémio superior ou em termos diferentes, a quantia segura deverá ser paga proporcionalmente ou nos referidos termos.

Secção III: Redução do risco Artigo 4:301 Redução do risco (1) Se ocorrer uma redução relevante do risco, o tomador poderá exigir uma redução proporcional no prémio para o período remanescente do contrato. (2) Se as partes não chegarem a acordo quanto à redução proporcional do prémio no prazo de um mês após a exigência, o tomador poderá denunciar o contrato por comunicação escrita no prazo de dois meses após a exigência.

Capítulo quinto: Prémio do seguro Artigo 5:101 Primeiro ou único prémio Quando o segurador considerar o pagamento do primeiro ou único prémio uma condição da conclusão do contrato ou do início da cobertura, essa condição não terá efeito a menos que

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(a) seja comunicada ao contraente por escrito usando linguagem facilmente compreensível e alertando o contraente de que não se encontra seguro até o pagamento do prémio, e (b) passe um período de duas semanas após a receção do aviso para pagamento do prémio nos moldes previstos em (a) sem que o pagamento tenha sido feito.

Artigo 5:102 Prémios subsequentes (1) A cláusula que disponha que o segurador não será obrigad a cobrir o risco no caso do não pagamento de um prémio subsequente, não terá efeitos a menos que (a) o tomador tenha recebido um aviso com o valor exato do prémio devido e a data do seu vencimento; (b) passada a data do vencimento, o segurador envie ao tomador uma segunda via da fatura com o valor exato do prémio devido, concedendo um prazo adicional de pelo menos duas semanas para pagamento e advertindo o tomador da suspensão imediata da cobertura se não for feito o pagamento; e (c) o prazo adicional (b) tenha expirado sem ter sido feito o pagamento. (2) O segurador fica liberto da sua obrigação a partir do momento em que tenha expirado o prazo adicional referido no parágrafo 1 (b). A cobertura retoma a sua eficácia a partir do momento em que o tomador pague a quantia devida, a menos que o contrato tenha sido resolvido nos termos do Artigo 5:103.

Artigo 5:103 Resolução do contrato (1) Expirado o prazo referido no Artigo 5:101 (b) ou no Artigo 5:102 parágrafo 1 (b), sem ter sido pago o prémio, o segurador poderá resolver o contrato por comunicação escrita, desde que o aviso referido no Artigo 5:101 (b) ou a sua segunda via referida no Artigo 5:102 parágrafo 1 (b), conforme o caso, mencionem o poder de o segurador resolver o contrato. (2) O contrato considera-se resolvido se, conforme o caso, o segurador não propuser a ação para cobrança (a) do primeiro ou único prémio, no prazo de dois meses passado o prazo mencionado no Artigo 5:101 (b); ou (b) do prémio subsequente, no prazo de dois meses passado o prazo mencionado no Artigo 5:102 parágrafo 1 (b).

Artigo 5:104 Divisibilidade do prémio Se um contrato de seguro for resolvido antes do termo do período do contrato, o segurador só terá direito ao respetivo prémio relativamente ao tempo anterior à resolução.

Artigo 5:105 Poder de pagar o prémio O segurador não poderá recusar o pagamento do prémio por parte de um terceiro se (a) este atuar com o consentimento do tomador, ou (b) tiver um interesse legítimo em manter a cobertura e o tomador não tiver feito o pagamento ou for claro que não o vai fazer atempadamente.

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Capítulo sexto: Sinistro Artigo 6:101 Participação do sinistro (1) A ocorrência de um sinistro deverá ser comunicada ao segurador pelo tomador, o segurado ou o beneficiário, conforme o caso, desde que a pessoa obrigada a comunicar tenha ou deva ter conhecimento da existência da cobertura do seguro e da ocorrência do sinistro. A comunicação pode ser feita por outra pessoa. (2) Esta participação deve ser feita sem demora injustificada. A participação considera-se feita na data de expedição. Se o contrato exigir que a participação seja feita dentro de certo prazo, esse prazo deve ser razoável e, em qualquer caso, não inferior a cinco dias. (3) A prestação será reduzida na medida em que o segurador provar que foi prejudicado por demora injustificada na participação.

Artigo 6:102 Cooperação em caso de sinistro (1) O tomador, o segurado ou o beneficiário, conforme o caso, devem cooperar com o segurador na investigação do sinistro, satisfazendo o que lhes seja razoavelmente solicitado, em particular sobre – informação sobre as causas e efeitos do sinistro assegurado; – documentos ou outras provas do sinistro assegurado; – acesso às instalações relacionadas com o mesmo. (2) Em caso de violação do parágrafo 1 e sem prejuízo do disposto no parágrafo 3, a prestação do segurador será reduzida na medida do dano consequente. (3) Quando a violação do parágrafo 1 seja cometida com a intenção de causar o dano ou negligentemente e com consciência da probabilidade de o causar, o segurador não é obrigado à sua prestação.

Artigo 6:103 Regularização do sinistro (1) A seguradora deverá praticar todos os atos razoavelmente exigíveis para uma pronta regularização do sinistro. (2) Considera-se aceite a pretensão se, no prazo de um mês após a receção dos documentos e outras informações relevantes, o segurador não rejeitar ou diferir a pretensão por comunicação escrita que contenha a fundamenação da sua decisão.

Artigo 6:104 Tempo do cumprimento (1) Quando a pretensão for aceite, o segurador deverá pagar ou prestar os serviços prometidos, conforme o caso, sem demora injustificada. (2) Quando o valor a pagar pelo segurador apenas puder ser parcialmente quantificado, essa parte será paga ou posta à disposição sem demora injustificada. (3) O pagamento da prestação, como previsto nos parágrafos 1 e 2, será feito no prazo máximo de uma semana após a aceitação e regularização do sinistro ou parte dele conforme o caso.

Artigo 6:105 Mora (1) Se a prestação não for paga de acordo com o disposto no Artigo 6:104, o credor terá direito a juros sobre essa quantia desde a data de vencimento até ao pagamento efetivo, à taxa aplicada pelo Banco Central Europeu na mais recente operação principal de refinanciamento ocorrida antes do primeiro dia do ano civil do semestre em questão, acrescida sete pontos percentuais.

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(2) O credor terá ainda direito a ser indemnizado por danos adicionais pela mora no pagamento do capital seguro.

Capítulo sétimo: Prescrição Artigo 7:101 Ação para cobrança do prémio A ação para cobrança do prémio prescreve no prazo de um ano a contar da data do vencimento.

Artigo 7:102 Ação para cobrança da prestação emergente do seguro (1) Em regra, a ação para a cobrança da prestação prescreve no prazo de três anos a contar da data em que o segurador tomar, ou se considerar por ele tomada, uma decisão final sobre a pretensão, de acordo com o Artigo 6:103. Em qualquer caso, porém, a ação prescreverá, o mais tardar, no prazo de dez anos a contar da ocorrência do sinistro, exceto no caso do seguro de vida em que o prazo é de 30 anos. (2) A ação para cobrança do valor de resgate do seguro de vida prescreve no prazo de três anos a contar da data em que o tomador receber a conta final do segurador. Em qualquer caso, porém, a ação prescreverá no prazo de 30 anos a contar da cessão do contrato de seguro de vida.

Artigo 7:103 Outras matérias relativas à prescrição Sem prejuízo do Artigo 7:101 e do Artigo 7:102 dos PEICL, os Artigos 14:101-14:503 dos Princípios do Direito Europeu dos Contratos (PDEC) aplicam-se às pretensões emergentes do contrato de seguro. O contrato pode derrogar estas disposições de acordo com o disposto no Artigo 1:103 parágrafo 2 do PEICL.

Segunda parte: Disposições comuns ao seguro de danos Capítulo oitavo: Capital seguro e valor seguro Artigo 8:101 Máximo da prestação (1) A seguradora não será obrigada a pagar mais do que o montante necessário para indemnizar os danos efetivamente sofridos pelo segurado. (2) A cláusula que fixe o valor do objeto seguro é válida mesmo que esse valor exceda o seu valor atual desde que não tenha havido erro ou dolo por parte do tomador ou do segurado ao tempo em que o valor foi acordado.

Artigo 8:102 Subseguro (1) O segurador será responsável por qualquer sinistro segurado até ao valor seguro ainda que este seja menor do que o valor do bem segurado na data da ocorrência do sinistro. (2) Contudo, quando oferecer a cobertura nos termos do parágrafo 1, o segurador poderá oferecer, em alternativa, um seguro em que a indemnização a pagar seja limitada à proporção do valor seguro com o valor real do bem ao tempo do sinistro. Nesse caso, os custos de mitigação, referidos no Artigo 9:102, serão reembolsados na mesma proporção.

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Artigo 8:103 Sobresseguro (1) Se o capital seguro exceder a perda máxima possível, qualquer das partes pode pedir a redução do capital seguro e a correspondente redução do prémio para o período remanescente do contrato. (2) Se as partes não chegarem a acordo quanto à redução no prazo de um mês a contar do pedido, qualquer delas poderá resolver o contrato.

Artigo 8:104 Co-Seguro (1) Se o mesmo interesse estiver separadamente segurado por mais do que um segurador, o segurado poderá exigir o pagamento contra um ou mais desses seguradores, até ao valor necessário para indemnizar as perdas por si efetivamente sofridas. (2) O segurador contra quem for feita a exigência deverá pagar até ao montante do capital seguro na sua apólice, assim como dos custos de mitigação a que houver lugar, sem prejuízo do seu direito às contribuições dos outros seguradores. (3) Entre aqueles seguradores, os direitos e obrigações referidos no parágrafo 2 serão custeados proporcionalmente ao capital seguro de que cada um seja responsável perante o segurado.

Capítulo nono: Direito à indemnização Artigo 9:101 Causação do sinistro (1) Nem o tomador, nem o segurado, conforme o caso, têm direito a indemnização, na medida em que o sinistro resulte de ato ou omissão de sua parte com a intenção de o causar ou com imprudência ou negligência consciente da probabilidade da sua ocorrência. (2) O tomador ou o segurado, conforme o caso, terão direito a ser indemnizados relativamente aos sinistros causados por qualquer ato ou omissão negligentes da sua parte, desde que tenha sido claramente estipulada na apólice a redução da prestação do segurador de acordo com o grau de culpa da parte do tomador ou do segurado, conforme o caso. (3) Para o efeito dos parágrafos 1 e 2 a causação do sinistro inclui a omissão de prevenir ou mitigar o sinistro.

Artigo 9:102 Custos de mitigação (1) O segurador reembolsará os custos ou danos sofridos pelo tomador ou o segurado com as providências tomadas para mitigar o dano segurado, na medida em que tais providências sejam razoáveis nas circunstâncias, ainda que não tenham tido êxito na mitigação do dano. (2) O segurador deverá indemnizar o tomador ou o segurado, conforme o caso, das providências tomadas de acordo com o parágrafo 1 ainda que, juntamente com a indemnização do sinistro segurado, a quantia a pagar exceda o capital seguro.

Capítulo décimo: Subrogação Artigo 10:101 Sub-rogação (1) Sem prejuízo do parágrafo 3, o segurador que tiver pago a indemnização fica sub-rogado, na medida do montante pago, nos direitos do segurado contra o terceiro responsável pelo sinistro.

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(2) O segurado que renunciar a algum direito contra esse terceiro e com isso prejudicar o direito de sub-rogação do segurador, perde o direito a ser indemnizado pelo segurador no montante do dano que assim lhe causar. (3) Não existe direito de sub-rogação do segurador contra membros do agregado familiar do tomador ou do segurado, nem contra pessoas numa posição análoga à de membro do agregado familiar do tomador do seguro ou do segurado, nem contra empregados do tomador do seguro ou do segurado, exceto se o segurador provar que o sinistro foi causado por essas pessoas com intenção de o causar ou com imprudência ou negligência consciente da probabilidade da sua ocorrência. (4) O segurador não exercerá os seus direitos de sub-rogação em detrimento do segurado.

Capítulo décimo primeiro: Seguro a favor de terceiro Artigo 11:101 Direitos do Segurado (1) Em caso de seguro celebrado a favor de pessoa diferente do tomador, se o sinistro ocorrer, essa pessoa terá direito à prestação do segurador. (2) O tomador pode revogar essa cobertura a menos que (a) a apólice contenha uma estipulação contrária; ou (b) o sinistro já tenha ocorrido. (3) A revogação será feita por comunicação escrita e terá efeitos a partir da sua receção pelo segurador.

Artigo 11:102 Conhecimento do segurado Os factos que sejam do conhecimento de pessoa segura nos termos do Artigo 11:101, não serão tidos como conhecidos pelo tomador, a menos que o segurado tenha conhecimento dessa sua qualidade ao tempo em que o tomador tenha o dever de informar o segurador sobre tais factos.

Artigo 11:103 Violação de deveres por parte de um segurado A violação de deveres por parte de um segurado não prejudica os direitos de outros segurados no mesmo contrato de seguro, a menos que o risco esteja segurado conjuntamente.

Capítulo décimo segundo: Risco seguro Artigo 12:101 Inexistência do risco seguro (1) O prémio não será devido se o risco seguro não existir nem ao tempo da celebração do contrato nem durante o período do seguro. Contudo, o segurador terá direito a uma quantia razoável pelas despesas ocorridas. (2) Se o risco seguro cessar durante o período do seguro, o contrato considera-se resolvido no momento em que o segurador de tal for notificado.

Artigo 12:102 Transmissão da Propriedade (1) Em caso de transmissão do bem seguro, o contrato de seguro extingue-se um mês após a transmissão, a menos que o tomador e o adquirente acordem na sua extinção em data anterior. Esta regra não se aplica se o seguro for contratado a favor de um futuro adquirente.

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(2) O adquirente do bem assume a posição de segurado desde o tempo de transferência do risco sobre o bem seguro. (3) Os parágrafos 1 e 2 não se aplicam (a) se o segurador, o tomador e o adquirente acordarem diversamente; ou (b) em caso de transmissão por sucessão por morte.

Terceira parte: Disposições comuns a seguros de prestações convencionadas Capítulo décimo terceiro: Admissibilidade Artigo 13:101 Seguro de prestações convencionadas Só podem ser subscritos como de prestações convencionadas os seguros de acidentes, de saúde, de natalidade, de nascimento ou outros seguros pessoais.

Quarta parte: Seguro de responsabilidade civil Capítulo décimo quarto: Seguro de responsabilidade civil em geral Artigo 14:101 Custos de defesa O segurador deve reembolsar os custos de defesa de acordo com o Artigo 9:102.

Artigo 14:102 Proteção da vítima Salvo em caso de consentimento escrito de sua parte, a vítima não é afetada por qualquer acordo sobre a sua pretensão emergente da apólice, seja pelo tomador ou pelo segurado e pelo segurador, seja por transação, renúncia, pagamento ou ato equivalente.

Artigo 14:103 Causação do dano (1) Nem o tomador nem o segurado terão direito a ser indemnizados da parte do dano que tenha sido causada por ato ou omissão por si praticados com intenção de causar o dano; considera-se também causação do dano o desrespeito de instruções específicas do segurador, dadas após o sinistro, desde que seja cometido com negligência grave e com consciência de que esse desrespeito provavelmente agravaria o dano. (2) Para os efeitos do parágrafo 1, a causação do dano inclui a falta de prevenção ou mitigação do dano. (3) Salvo quando tenha sido estipulada claramente na apólice a redução da indemnização de acordo com o grau de culpa, o tomador ou o segurado, conforme for o caso, tem direito a ser indemnizado por qualquer dano causado pelo desrespeito negligente de quaisquer instruções dadas pelo segurador após o sinistro.

Artigo 14:104 Reconhecimento da responsabilidade (1) É ineficaz qualquer cláusula estipulada na apólice que exonere o segurador das suas obrigações no caso do tomador ou do segurado, conforme o caso, ter aceite ou satisfeito a pretensão da vítima.

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(2) Salvo mediante o seu consentimento, o segurador não fica vinculado por acordo entre a vítima e o tomador ou o segurado, conforme o caso.

Artigo 14:105 Cessão É ineficaz qualquer cláusula. estipulada na apólice que impeça o segurado do seu poder de ceder a sua pretensão emergente da apólice.

Artigo 14:106 Bónus de não participação / Sistemas de bonus-malus (1) O tomador pode sempre exigir o relato do registo das suas participações relativas aos últimos cinco anos. (2) Se o segurador fizer depender o valor do prémio ou outras condições do número ou valor das participações pagas nos termos daquela apólice, deverá tomar do mesmo modo em consideração o registo de participações do tomador perante outros seguradores durante os últimos cinco anos.

Artigo 14:107 O sinistro O sinistro é o facto que dá causa à responsabilidade do segurador e que ocorra durante o período do contrato de seguro salvo se as partes dum contrato de seguro para fins comerciais ou profissionais definirem o sinistro com referência a outros critérios tais como o tempo da reclamação. (2) Quando as partes definirem o sinistro com referência à participação da vítima, a cobertura deve abranger as participações feitas durante o período do contrato ou durante um prazo subsequente de não menos de cinco anos e que tenha como fundamento um facto ocorrido antes do termo do período do contrato.

Artigo 14:108 Reclamações que excedam o valor seguro (1) Se o total dos pagamentos devidos a várias vítimas exceder o capital seguro, os pagamentos devem ser reduzidos proporcionalmente. (2) O segurador que, desconhecendo a existência de outras vítimas, tenha procedido em boa fé ao pagamento às vítimas que conhecia, é responsável perante as outras vítimas até ao limite do capital seguro.

Capítulo décimo quinto : Ação direta Artigo 15:101 Ação direta e defesa (1) A vítima pode reclamar diretamente do segurador a indemnização e acioná-lo diretamente, dentro dos limites da responsabilidade do tomador ou do segurado, conforme o caso, segundo a cobertura da apólice, desde que: (a) o seguro seja obrigatório ou (b) o tomador ou o segurado estejam insolventes, ou (c) o tomador ou o segurado tenham sido liquidados ou dissolvidos, ou (d) a vítima tenha sofrido acidente pessoal, ou (e) a lei que rege a responsabilidade civil admita a ação direta. (2) O segurador pode usar de todos os meios de defesa facultados pelo contrato de seguro, salvo se forem proibidas por algum preceito do regime jurídico que torna o seguro obrigatório. Todavia, não pode usar de meios de defesa baseados na conduta do tomador ou do segurado posteriores ao sinistro.

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Artigo 15:102 Deveres de informação (1) O tomador e o segurado devem facultar à vítima a seu pedido todas as informações de que esta necessitar para a ação direta. (2) O segurador deve notificar por escrito o tomador, sem demora injustificada e no máximo de duas semanas, de qualquer reclamação ou ação direta formuladas contra ele. Em caso de incumprimento pelo segurador deste seu dever de informação, os direitos do tomador não serão prejudicados por proceder a qualquer pagamento ou reconhecimento de dívida perante a vítima. (3) Caso o tomador não faculte ao segurador informação relativa ao sinistro dentro de um mês após ter sido notificado nos termos do parágrafo 2, o segurador poderá transacionar diretamente com a vítima. Esta regra aplica-se também aos segurados que tiverem recebido tempestivamente aquela notificação

Artigo 15:103 Exoneração O pagamento do capital seguro feito diretamente pelo segurador ao tomador ou ao segurado, conforme o caso, só exonera o segurador se a vítima (a) tiver renunciado à ação direta ou (b) não tiver notificado o segurado da sua intenção de proceder à reclamação ou à ação direta dentro de quatro semanas após ter sido notificada por escrito pelo segurador.

Artigo 15:104 Prescrição (1) O direito contra o segurador, seja exercido pelo segurado ou pela vítima, prescreve quando prescrever o direito da vítima contra o segurado. (2) O prazo de prescrição do direito da vítima contra o segurado suspende-se desde o tempo em que o segurado tomar conhecimento de ter sido apresentada a reclamação direta contra o segurador até ao momento em que a reclamação direta tenha sido acordada ou inequivocamente rejeitada pelo segurador.

Capítulo décimo sexto: Seguro obrigatório Artigo 16:101 Âmbito de aplicação (1) Os PEICL podem ser eleitos pelas partes para regerem um seguro obrigatório (a) exigido pelo Direito da Comunidade, (b) exigido num Estado Membro, ou (c) exigido num Estado não membro no que for permitido pela lei desse Estado. (2) O contrato de seguro não satisfará a obrigatoriedade de segurar se não for conforme com os específicos preceitos que imponham a obrigação.

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Quinta parte: Seguro de Vida Capítulo décimo sétimo: Preceitos especiais sobre o seguro de vida Secção I: Terceiros Artigo 17:101 Seguro de vida sobre a vida de um terceiro O seguro de vida em que a pessoa segura seja outra que não o tomador é inválido, salvo com o consentimento informado e escrito da pessoa segura com assinatura autógrafa. Não será válida sem este consentimento qualquer alteração substancial do contrato posterior, incluindo a mudança do beneficiário, o aumento do capital seguro ou a mudança da duração do contrato. O mesmo se aplica à cessão ou oneração do contrato de seguro ou do direito ao capital seguro.

Artigo 17:102 Beneficiário (1) O tomador pode designar um ou mais beneficiários do capital seguro e pode alterar ou revogar a designação, salvo quando a designação tenha sido declarada irrevogável. A designação, mudança ou revogação deve ser feita por escrito e tem de ser comunicada ao segurador, salvo quando for feita em testamento. (2) O poder de designar, mudar ou revogar a designação cessa com a morte do tomador ou com a ocorrência do sinistro ou evento seguro, a que acontecer primeiro. (3) O tomador ou os seus sucessores, conforme o caso, são considerados beneficiários do capital seguro, se (a) o tomador não tiver designado beneficiário ou (b) a designação do beneficiário for revogada sem ter sido designado outro beneficiário ou (c) o beneficiário morrer antes da ocorrência do sinistro ou do evento seguro e não tenha sido designado outro. (4) Se forem designados dois ou mais beneficiários e for revogada a designação de um deles ou morrer antes da ocorrência do sinistro ou do evento seguro, o valor que lhe caberia é distribuído pelos demais proporcionalmente, salvo estipulação diversa do tomador nos termos do parágrafo 1. (5) Sem prejuízo das regras sobre nulidade, anulabilidade ou inoponibilidade de atos prejudiciais aos credores ou à massa em vigor no direito falimentar, a massa falida não tem direito ao capital seguro nem ao valor de resgate desde que esse valor não tenha sido pago ao tomador. (6) O segurador que pagar o capital seguro a quem for designado de acordo com o parágrafo primeiro fica exonerado da sua obrigação de pagar desde que desconheça de que tal pessoa não tenha direito ao pagamento.

Artigo 17:103 Beneficiário do valor de resgate (1) Independentemente da designação segundo o Artigo 17:102, o tomador pode designar também um beneficiário para o valor de resgate, se houver, e pode mudar ou revogar esta designação. A designação, mudança ou revogação deve ser feita por escrito e notificada ao segurador. (2) O tomador é considerado beneficiário do valor de resgate se (a) não tiver sido designado qualquer beneficiário do valor de resgate ou (b) a designação do beneficiário do valor de resgate for revogada sem ter sido designado outro beneficiário ou (c) o beneficiário do valor de resgate tiver morrido e não tiver sido designado outro beneficiário. (3) Aplicam-se os parágrafos 2 e 4 a 5 do Artigo 17:102 mutatis mutandis.

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Artigo 17:104 Cessão ou oneração (1) Quando o beneficiário for designado irrevogavelmente, a cessão ou oneração do contrato de seguro ou do direito ao capital seguro pelo tomador é ineficaz sem o consentimento escrito do beneficiário. (2) A cessão ou oneração do direito ao capital seguro pelo beneficiário é ineficaz sem o consentimento escrito do tomador.

Artigo 17:105 Renúncia à herança Quando o beneficiário for herdeiro da pessoa segura e tiver renunciado à sua herança, esta renúncia não prejudica a sua posição jurídica no contrato de seguro.

Secção II: Início e duração do contrato Artigo 17:201 Deveres pré-contratuais de informação do proponente (1) As informações a prestar pelo proponente de acordo com o Artigo 2:101 parágrafo 1, devem incluir todas as circunstâncias das quais a pessoa segura tenha ou deva ter conhecimento. (2) As sanções pela violação do dever pré-contratual de informação segundo os Artigos 2:102, 2:103 e 2: 105, mas não segundo o Artigo 2:104, só são aplicáveis nos cinco anos subsequentes à celebração do contrato.

Artigo 17:202 Deveres pré-contratuais de informação do segurador (1) O segurador deve informar o proponente se tem direito de participar nos lucros. A receção desta informação deve ser comprovada por uma declaração explícita titulada num documento separado do impresso da proposta. (2) O documento a disponibilizar pelo segurador segundo o Artigo 2:201 deve conter a informação seguinte: (a) no que respeita ao segurador: uma referência específica à publicação obrigatória do relatório anual da sua solvência e situação financeira. (b) no que respeita à vinculação contratual do segurador: (i) uma explicação de cada benefício e de cada opção (ii) informação sobre a proporção do prémio correspondente a cada benefício, principal ou suplementar, conforme o caso (iii) métodos de cálculo e distribuição de bónus, incluindo a especificação do regime de supervisão aplicável (iv) indicação dos valores de resgate e de redução e de até quanto estão garantidos (v) para os seguros unit linked: a explicitação das unidades às quais estão ligados e a natureza dos ativos subjacentes (vi) informação geral sobre o regime fiscal aplicável a cada tipo de apólice. (3) Deve ainda ser fornecida informação específica que permita facilitar a compreensão adequada dos riscos envolvidos pelo contrato que são assumidos pelo tomador. (4) Se o segurador referir em algarismos o valor dos benefícios possíveis acima e abaixo dos pagamentos contratualmente garantidos, deve facultar ao proponente um modelo de cálculo que revele o benefício possível no vencimento com base nos princípios atuariais de cálculo do prémio com três diferentes taxas de juro. Esta regra não se aplica a contratos de seguro que cubram riscos dos quais o segurador não tenha a certeza de ser responsável nem a contratos unit-linked.

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O segurador deve informar com clareza o tomador que o modelo de cálculo só representa um modelo baseado em pressupostos fictícios e que o contrato não garante possíveis pagamentos.

Artigo 17:203 Período de reflexão (1) Para os contratos de seguro de vida, o período de reflexão previsto no Artigo 2:303 parágrafo 1 é de um mês após a receção da aceitação ou da entrega dos documentos referidos no Artigo 2:501 e no Artigo 17:202, conforme o que suceder mais tarde. (2) O poder do tomador de anular o contrato de acordo com o Artigo 2:303 parágrafo 1 cessa um ano após a conclusão do contrato.

Artigo 17:204 Poder do tomador de resolver o contrato. (1) O tomador pode resolver o contrato de seguro de vida que não tenha um valor de resgate nem de conversão, desde que a resolução não tenha efeito antes de um ano após a celebração do contrato. O poder de resolver o contrato antes do seu termo pode ser excluído quando tenha sido pago apenas um prémio. A resolução deve ser feita por escrito e tem efeito duas semanas após a receção da notificação de resolução pelo segurador. (2) Se o contrato de seguro de vida não tiver um valor de conversão ou de resgate, são aplicáveis os Artigos 17:601 a 17:603.

Artigo 17:205 Poder do segurador de resolver o contrato O segurador só tem o poder de resolver o contrato de seguro nos termos previstos neste Capítulo.

Secção III: Modificações durante a vigência do contrato Artigo 17:301 Deveres pós-contratuais de informação do segurador (1) Sempre que for o caso, o segurador deve facultar ao tomador anualmente informação escrita do valor atual dos bónus ligados à apólice. (2) Além do referido no Artigo 2:701, o segurador deve informar o tomador sem demora injustificada, sobre todas as modificações relativas a: (a) condições da apólice, gerais e especiais; (b) em caso de modificação das condições da apólice ou de alteração dos PEICL: a informação listada no Artigo 2:201, alíneas f e g assim como no Artigo 17:202, parágrafo 2, alínea b pontos i a v. (3) Aplica-se o Artigo 17:202 parágrafo 4 sempre que forem facultados números durante o período do contrato. Sempre que o segurador tiver facultado números, antes ou depois da conclusão do contrato, sobre o futuro potencial de participação nos lucros, deve informar o tomador de todas as diferenças entre a situação atual e os dados iniciais.

Artigo 17:302 Agravação do risco Qualquer cláusula do contrato de seguro de vida que especifique a idade ou a deterioração da saúde como agravação do risco no sentido do Artigo 4:201 é considerada abusiva nos termos do Artigo 2:304.

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Artigo 17:303 Correções do prémio e dos benefícios (1) Em contratos de seguro de vida que cubram riscos em relação aos quais o segurador esteja certo de ser responsável, este só pode proceder a correções de acordo com os parágrafos 2 e 3. (2) É lícito o aumento de prémio em caso de modificação imprevisível e permanente relativa ao risco biométrico usado como base do cálculo do prémio, quando o aumento for necessário para garantir a continuação da capacidade de pagamento dos benefícios do seguro quando assim for entendido por um fiduciário independente ou pela autoridade de supervisão. O tomador pode afastar o aumento com redução correspondente dos benefícios do seguro. (3) No caso de apólice pré-paga, o tomador pode reduzir os benefícios do seguro de acordo com o parágrafo 2. (4) Não é permitida a correção nos termos dos parágrafos 2 e 3 (a) se, no cálculo do prémio ou dos benefícios, tiver sido cometido um erro que um atuário diligente poderia ter evitado (b) quando o cálculo subjacente não seja aplicável a todos os contratos incluindo aqueles celebrados após a correção. (5) A correção do prémio ou a redução dos benefícios tem efeito três meses após a comunicação pelo segurador ao tomador da correção do prémio ou da redução dos benefícios, dos seus fundamentos e do poder do tomador de exigir a redução dos benefícios. (6) No contrato de seguro de vida que cubra riscos pelos quais o segurador esteja certo de ser responsável, o tomador pode reduzir o prémio em caso de modificação imprevisível e permanente relativa ao risco biométrico usado como base do cálculo do prémio que torne o valor original do prémio não mais adequado e necessário para garantir a continuação da capacidade do segurador para pagar os benefícios do seguro. A redução tem de ser aceite por um fiduciário independente ou pela autoridade de supervisão. (7) Os poderes previstos neste Artigo não podem ser exercidos antes de decorridos cinco anos após a celebração o contrato.

Artigo 17:304 Alterações das condições do contrato (1) É inválida a cláusula que permita ao segurador modificar unilateralmente as condições do contrato, para além do prémio e dos benefícios, salvo se tal alteração for exigida para (a) satisfazer modificações das leis de supervisão, incluindo providências vinculativas adotadas pela autoridade de supervisão, ou (b) satisfazer modificações das leis imperativas das leis nacionais relativas a planos de pensões dos trabalhadores, ou (c) satisfazer modificações das leis nacionais que imponham requisitos especiais aos contratos de seguro de vida para que possam beneficiar de tratamento fiscal especial ou subsídios estatais, ou (d) substituir uma cláusula do contrato de acordo com o Artigo 2:304 parágrafo 2, frase 2. (2) A modificação tem efeito no início do terceiro mês após a receção pelo tomador da comunicação do segurador informando da modificação e do seu fundamento. (3) O parágrafo 1 é aplicável sem prejuízo de outros requisitos de validade das cláusulas de modificação.

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Secção IV: Relação com as leis nacionais Artigo 17:401 Planos de pensões O contrato de seguro de vida relativo a um plano de pensões está sujeito às normas imperativas das leis nacionais aplicáveis a planos de pensões.

Artigo 17:402 Regime fiscal e subsídios estatais Os PEICL não afetam as leis nacionais que imponham requisitos especiais ao contrato de seguro de vida para beneficiarem de regimes fiscais especiais e de subsídios estatais. Em caso de conflito entre esses requisitos das leis nacionais e os preceitos dos PEICL, estes poderão ser derrogados.

Secção V: O sinistro Artigo 17:501 Dever do segurador de investigação e informação (1) O segurador que tenha razão para crer que o sinistro tenha ocorrido deve adotar todas as providências razoáveis para o verificar. (2) O segurador que tenha conhecimento da ocorrência do sinistro deve exercer os melhores esforços nas circunstâncias para descobrir a identidade e morada do beneficiário e para o informar do sucedido. Esta informação deve ser prestada no prazo de trinta dias após a data em que tomar conhecimento da identidade e morada do beneficiário. (3) A violação pelo segurador dos parágrafos 1 e 2 suspende a prescrição do direito do beneficiário até ao momento em que este tenha conhecimento do seu direito.

Artigo 17:502 Suicídio (1) Em caso de suicídio da pessoa segura no ano subsequente à celebração do contrato, o segurador fica exonerado da sua obrigação de pagar o capital seguro. Nesse caso, o segurador deverá pagar o valor de resgate e os benefícios de acordo com o Artigo 17:602. (2) O parágrafo 1 não se aplica se (a) a pessoa segura, ao cometer o suicídio, tiver agido em estado mental que a impeça da liberdade de formar a sua decisão, ou (b) se provar que ao tempo da celebração do contrato a pessoa segura não tinha intenção de se suicidar.

Artigo 17:503 Homicídio voluntário da pessoa segurado (1) Quando um beneficiário mata intencionalmente a pessoa segura, a sua designação como beneficiário é tida como revogada. (2) A cessão do direito ao capital seguro fica sem efeito se o cessionário matar intencionalmente a pessoa segura. (3) Se o tomador for também o beneficiário e matar intencionalmente a pessoa segura, o capital seguro não será pago. (4) Este Artigo não se aplica se o beneficiário ou o tomador matar a pessoa segura justificadamente, designadamente em legítima defesa.

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Secção VI: Conversão e resgate Artigo 17:601 Conversão do contrato (1) O Artigo 5:103 não se aplica a contratos de seguro de vida que tenham um valor de conversão ou de resgate. Esses contratos serão convertidos em apólices pré-pagas salvo se o tomador reclamar o pagamento do valor de resgate dentro de quatro semanas após ter recebido a informação referida no parágrafo 2. (2) O segurador deve informar o tomador do valor de conversão e do valor de resgate dentro de quatro semanas após o termo do prazo referido no Artigo 5:101(b) ou no Artigo 5:102 parágrafo 1(b) e interpelá-lo para que escolha entre a conversão e o pagamento do valor de resgate. (3) A interpelação para a conversão ou o pagamento do valor de resgate deve ser feita por escrito.

Artigo 17:602 Resgate do contrato (1) O tomador pode a todo o tempo exigir por escrito ao segurador que pague, total ou parcialmente, o valor de resgate que a apólice tiver, desde que tal não ocorra antes de um ano após a celebração do contrato. O contrato será corrigido ou resolvido de acordo com o caso. (2) Sem prejuízo do Artigo 17:601, se um contrato de seguro de vida que tiver um valor de resgate for resolvido ou anulado pelo segurador, este é obrigado a pagar o valor de resgate, mesmo no caso do Artigo 2:104. (3) O segurador deve informar o tomador sempre que solicitado mas em qualquer caso anualmente do valor de resgate e do montante em que estiver garantido. (4) A parte do lucro a que o tomador tiver direito deve ser pago em acréscimo ao valor de resgate, salvo se tiver já sido incluído no cálculo do valor de resgate. (5) Os valores devidos nos termos deste artigo devem ser pagos dentro do prazo de dois meses após a receção da respetiva interpelação pelo segurador.

Artigo 17:603 Valor de conversão, valor de resgate (1) O contrato de seguro deve conter o modo de cálculo do valor de conversão e do valor de resgate que são calculados de acordo com a lei de Estado Membro do segurador. O modo de calcular deve estar de acordo com os princípios atuariais estabelecidos e com o parágrafo 2. (2) Quando o segurador deduzir o custo de celebração do contrato deverá imputá-lo equilibradamente durante um período de pelo menos cinco anos

Sexta Parte: Seguro de Grupo Capítulo décimo oitavo: Preceitos especiais sobre seguro de grupo Secção I: Seguro de grupo em geral Artigo 18:101 Aplicabilidade Os contratos de seguro de grupo são sujeitos aos PEICL desde que o organizador do grupo tenha feito o acordo nos termos do Artigo1:102. O seguro de grupo pode ser acessório, sujeito à Secção II, ou eletivo, sujeito à Secção III deste capítulo.

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Artigo 18:102 Dever geral de cuidado do organizador do grupo (1) Na negociação de execução do contrato de seguro de grupo, o organizador do grupo deve agir com cuidado e boa fé tomando em consideração o interesse dos membros do grupo. (2) O organizador do grupo deve facultar aos membros do grupo todas as comunicações emitidas pelo segurador e informá-los de quaisquer alterações ao contrato.

Secção II: Seguro de grupo acessório Artigo 18:201 Aplicação dos CODECS Sempre que necessário, os CODECS serão aplicáveis ao seguro de grupo acessório mutatis mutandis.

Artigo 18:202 Dever de informação (1) Quando um novo membro adere ao grupo, o organizador do grupo deve informá-lo sem demora injustificada: (a) da existência do contrato de seguro, (b) do âmbito da cobertura, (c) das medidas de prevenção e outros requisitos para a preservação da cobertura, (d) do procedimento de reclamação.

Artigo 18:203 Resolução pelo segurador (1) Para o efeito do Artigo 2:604, o exercício do poder de resolução pelo segurador só é considerado razoável quando limitado à exclusão da cobertura do membro do grupo a quem tenha ocorrido o sinistro. (2) Para o efeito do Artigo 4:102 e do Artigo 4:203 parágrafo 1, o exercício do poder de resolução pelo segurador tem o efeito limitado à exclusão da cobertura os membros do grupo que não tenham respeitado as devidas medidas de precaução ou cujos riscos se tenham agravado, conforme o caso. (3) Para o fim do Artigo 12:102, a resolução do contrato de seguro tem o efeito limitado à exclusão da cobertura dos membros do grupo que tenham alienado a propriedade segura.

Artigo 18:204 Poder de continuar a cobertura – seguro de vida (1) Se um contrato de seguro de grupo vida for resolvido ou se um dos membros deixar o grupo, a cobertura cessa após três meses ou com a cessação do contrato de seguro de grupo vida, o que suceder primeiro. Nestes casos o membro terá direito a uma cobertura equivalente sob um novo contrato individual com o mesmo segurador, sem que ocorra uma nova avaliação do risco. (2) O organizador do grupo deve, sem demora injustificada, informar por escrito o membro do grupo (a) da iminência da resolução da sua cobertura sob o contrato de seguro de grupo vida, (b) dos seus direitos nos termos do parágrafo 1 e (c) de como deve exercer estes direitos.

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Secção III: Seguro de grupo eletivo Artigo 18:301 Seguro de grupo eletivo: em geral (1) O seguro de grupo eletivo é uma união de contratos que enquadra um contrato quadro entre o segurador e o organizador do grupo e os contratos de seguro individuais celebrados neste enquadramento entre o segurador e os membros do grupo. (2) Os PEICL aplicam-se aos contratos de seguro individuais quando o organizador e o segurador assim tenham acordado mas, com exceção dos Artigos 18:101 e 18:102, os PEICL não se aplicam ao contrato quadro.

Artigo 18:302 Alterações das condições A alteração das condições do contrato quadro só afeta os contratos de seguro individuais se os afetar nos termos dos Artigos 2:602, 17:303 e 17:304, conforme o caso.

Artigo 18:303 Continuação da cobertura A extinção do contrato quadro ou a cessação da pertença de um membro ao grupo não afeta o contrato de seguro individual entre o segurado e o membro do grupo.

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Serbian version by Mira Todorovic-Symeonides

Principi Evropskog Ugovornog Prava Osiguranja (PEUPO) Prvi Deo: Zajedničke odredbe za sve ugovore regulisane Principima Evropskog Ugovornog Prava Osiguranja (PEUPO) Prvo Poglavlje: Uvodne Odredbe Odeljak jedan: Primena PEUPO-a Odeljak dva: Opšta pravila Odeljak tri: Primena

Drugo Poglavlje: Početna Faza I Trajanje Ugovora O Osiguranju Odeljak jedan: Predugovorne obaveze podnosioca predloga da pruži informaciju Odeljak dva: Predugovorne obaveze osiguravača Odeljak tri: Zaključenje ugovora Odeljak četiri: Retroaktivno i privremeno pokriće Odeljak pet: Polisa osiguranja Odeljak šest: Trajanje ugovora o osiguranju Odeljak sedam: Obaveze osiguravača da pruži informacije nakon zaključenja ugovora

Treće Poglavlje: Posrednici U Osiguranja Četvrto Poglavlje: Osigurani Rizik Odeljak jedan: Mere predostrožnosti Odeljak dva: Povećanje rizika Odeljak tri: Smanjenje rizika

Peto Poglavlje: Premija Osiguranja Šesto Poglavlje: Osigurani Slučaj Sedmo Poglavlje: Zastarelost Drugi Deo: Opšte Odredbe O Osiguranju Od Štete Osmo Poglavlje: Osigurana Svota I Osigurana Vrednost

Deveto Poglavlje: Pravo Na Obeštećenje Deseto Poglavlje: Pravo Subrogacije Jedanaesto Poglavlje: Osiguranici Koji Nisu Ugovarači Osiguranja Dvanaesto Poglavlje: Osigurani Rizik Treči Deo: Opšte Odredbe O Osiguranju Na Utvrđene Iznose Trinaesto Poglavlje: Dopustivost Četvrti Deo: Osiguranje Od Odgovornosti Četrnaesto Poglavlje: Opšte Osiguranje Od Odgovornosti Petnaesto Poglavlje: Direktni Zahtevi I Tužbe Šesnaesto Poglavlje: Obavezno Osiguranje Peti Deo: Životno Osiguranje Sedamnaesto Poglavlje: Posebne Odredbe O Životnom Osiguranju Odeljak jedan: Treća lica Odeljak dva: Predugovorna faza i trajanje ugovora Odeljak tri: Promene za vreme trajanja ugovora Odeljak četiri: Odnos prema nacionalnim pravima Odeljak pet: Osigurani slučaj Odeljak šest: Konverzija i otkup

Šesti Deo: Kolektivno Osiguranje Osamnaesto Poglavlje: Posebne Odredbe Za Kolektivno Tivno Osiguranje Odeljak jedan: Uopšteno o kolektivnom osiguranju Odeljak dva: Dopunska kolektivna osiguranja Odeljak tri: Izborna kolektivna osiguranja

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Prvi Deo: Zajedničke odredbe za sve ugovore regulisane Principima Evropskog Ugovornog Prava Osiguranja (PEUPO) Prvo Poglavlje: Uvodne Odredbe Odeljak jedan: Primena PEUPO-a Član 1:101 Okvir primene (1) PEUPO će se primenjivati na privatno osiguranje, uključujući i uzajamno osiguranje. (2) PEUPO se neće primenjivati na reosiguranje.

Član 1:102 Dispozitivna primena Osim u slučaju ograničenja izbora prava u skladu sa međunarodnim privatnim pravom, PEUPO će se primenjivati kada se strane sporazumeju da se primenjuje na njihov ugovor. Osim u slučaju drugačijeg regulisanja u članu 1:103, PEUPO će se primenjivati u celini i neće biti dozvoljeno isključenje pojedinih odredbi.

Član 1:103 Obavezni karakter (1) Članovi 1:102 druga rečenica, 2:104, 2:304, 13:101, 17:101 i 17:503 su obavezni. Ostali članovi su obavezni u meri u kojoj se odnose na sankcije za prevarno ponašanje. (2) Ugovorom se mogu derogirati sve ostale odredbe ukoliko takva odstupanja ne idu na štetu ugovarača osiguranja, osiguranika ili korisnika osiguranja. (3) Derogacija odredbi predviđena stavom 2 je dozvoljena u korist bilo koje ugovorne strane u ugovorima koji pokrivaju velike rizike u smislu člana 13 stava 27 Direktive 2009/138/EC. U kolektivnim osiguranjima derogacija se može ugovoriti na štetu osiguranog lica pojedinca koje ispunjava uslove navedene u članu 13 stav 27 pod b) ili c) Direktive 2009/138/EC, kada je to primenjivo.

Član 1:104 Tumačenje Prilikom tumačenja PEUPO-a, primenjivaće se pravila jezičkog, sistematskog, teleološkog i komparativnog tumačenja. Posebno treba imati u vidu potrebu za promovisanjem savesnog i poštenog postupanja u oblasti osiguranja, izvesnosti u ugovornim odnosima, jednoobraznosti primene i adekvatne zaštite osiguranika.

Član 1:105 Nacionalno pravo i opšti principi (1) Nije dozvoljeno upućivanje na primenu nacionalih prava, bilo u cilju ograničavanja ili dopune odredbi PEUPO-a. Ova zabrana se ne primenjuje na obavezne nacionalne propise koji su posebno doneti za grane osiguranja koje nisu obuhvaćene posebnim odredbama PEUPO-a. (2) Pitanja koja proisteknu iz ugovora o osiguranju, koja nisu naročito regulisana PEUPO-om, urediće se u skladu sa Principima evropskog ugovornog prava (PEUP), a u odsustvu odgovarajućih odredbi u tom propisu, ta pitanja će se rešavati u skladu sa opštim principima koji su zajednički za prava Država Članica EU.

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Odeljak dva: Opšta pravila Član 1:201 Ugovor o osiguranju (1) „Ugovor o osiguranju“ je ugovor u kome se jedna strana, osiguravač, obavezuje da drugoj strani, osiguraniku, pruži pokriće određenog rizika, a zauzvrat primi premiju; (2) „Osigurani slučaj“ predstavlja materijalizaciju rizika određenog u ugovoru o osiguranju; (3) „Osiguranje od štete“ predstavlja osiguranje kod koga je osiguravač obavezan da naknadi štetu nastalu nastupanjem osiguranog slučaja; (4) „Osiguranje na nepromenljive iznose“ je takvo osiguranje kod koga je osiguravač obavezan da isplati određeni iznos novca u slučaju nastupanja osiguranog slučaja. (5) „Osiguranje od odgovornosti“ je osiguranje kod koga rizik predstavlja izloženost osiguranika pravnoj odgovornosti prema oštećenom; (6) „Životno osiguranje“ je osiguranje kod koga obaveza osiguravača i plaćanje premije zavisi od osiguranog slučaja koji je isključivo vezan za smrt ili za slučaj doživljenja osiguranog lica. (7) „Ugovori o kolektivnom osiguranju“ su ugovori između osiguravača i organizatora grupe u korist članova grupe koji su u zajedničkoj vezi sa organizatorom grupe. Ugovor o kolektivnom osiguranju takođe može da pokriva porodice članova grupe. (8) „Dopunsko kolektivno osiguranje“ je takvo kolektivno osiguranje kod koga su članovi grupe automatski osigurani po osnovu samog članstva u grupi i bez mogućnosti da osiguranje odbiju. (9) „Izborno kolektivno osiguranje“ je takvo kolektivno osiguranje po kome članovi grupe postaju osigurani po osnovu individualnog predloga za zaključenje ugovora ili zato što takvo osiguranje nisu odbili.

Član 1:202 Ostale definicije (1) „Osiguranik“ je lice čiji se interes štiti kod osiguranja od štete. (2 ) „Korisnik osiguranja“ je lice u čiju korist se isplaćuje osigurana svota kod osiguranja na utvrđene iznose. (3) „Osigurano lice“ je lice na čiji se život, zdravlje, integritet ili status odnosi osiguranje; (4) „Oštećeno lice“, kod osiguranja od odgovornosti, je lice za čiju je smrt, povredu ili štetu odgovoran osiguranik; (5) „Zastupnik osiguranja“ je posrednik u osiguranju zaposlen kod osiguravača u cilju marketinga, prodaje i nadgledanja izvršenja ugovora o osiguranju: (6) „Premija“ predstavlja uplatu koju osiguravaču duguje ugovarač osiguranja u zamenu za pružanje pokrića. (7) „Ugovorni period“ je vremenski period trajanja ugovorne obaveze koji počinje danom zaključenja ugovora a završava se protekom ugovorenog peroda trajanja; (8) „Trajanje osiguranja“ je vremenski period za koji se duguje premija u skladu sa dogovorom strana; (9) „Trajanje odgovornosti“ predstavlja period trajanja pokrića. (10) „Obavezno osiguranje“ je osiguranje koje je zaključeno zbog postojanja obaveze, predviđene zakonom ili propisom, da se takvo osiguranje zaključi.

Član 1:203 Jezik i tumačenje dokumenata (1) Sva dokumenta koja predaje osiguravač će biti sačinjena na jednostavan i razumljiv način i na jeziku na kojem je ugovor zaključen.

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(2) U slučaju sumnje u pogledu jezičkog značenja bilo kog dokumenta ili informacije koju daje osiguravač, prevagu će imati tumačenje koje je najpovoljnije za osiguranika, osigurano lice, ili ugovarača osiguranja.

Član 1:204 Prijem dokumenata: dokaz Teret dokazivanja da je osiguranik primio dokumenta koja treba da obezbedi osiguravač je na osiguravaču.

Član 1:205 Forma obaveštenja Osim u slučaju kada to drugačije uređuju posebna pravila sadržana u PEUPO-u, obaveštenje u vezi sa ugovorom o osiguranju koje dostavlja podnosilac predloga za zaključenje osiguranja, ugovarač osiguranja, osiguranik ili korisnik osiguranja, ne mora biti dato u određenoj formi.

Član 1:206 Pretpostavka saznanja Ako je ugovarač osiguranja, osiguranik ili korisnik osiguranja ovlastio neko lice da preduzme bitne radnje u cilju zaključenja ili ispunjenja ugovora, smatraće se da odgovarajuća znanja koja to lice ima, ili bi moralo da ima tokom ispunjenja svojih obaveza, ima i ugovarač osiguranja, osiguranik ili korisnik osiguranja, u zavisnosti od slučaja.

Član 1:207 Zabrana diskriminacije (1) Pol, trudnoća, materinstvo, nacionalnost i rasno ili etničko poreklo neće biti činioci koji bi doveli do razlika u individualnim premijama i koristima iz osiguranja. (2) Odredbe suprotne stavu 1, uključujući i one koje se odnose na premiju, neće biti obavezujuće za ugovarača osiguranja kao ni za osiguranika. Osim u slučaju iz stava 3, ugovor će nastaviti da obavezuje strane na osnovu odredbi o zabrani diskriminacije. (3) U slučaju povrede stava 1, ugovarač osiguranja će biti ovlašćen da raskine ugovor. Obaveštenje o raskidu će biti predato osiguravaču u pismenoj formi, u roku od dva meseca od dana kada ugovarač osiguranja sazna za povredu.

Član 1:208 Genetski testovi (1) Osiguravač neće tražiti od podnosioca predloga za zaključenje osiguranja, ugovarača osiguranja ili osiguranog lica da se podvrgne genetskom testiranju ili da rezultate takvog testa otkrije, niti će takvu informaciju osiguravač upotrebiti za procenu stepena rizika. (2) Stav 1 se neće primenjivati na osiguranja lica kada je osigurano lice starije od 18 godina i kada osigurana svota za takvo lice iznosi više od EUR 300.000,00 ili kada novčani iznos koji se isplaćuje po polisi prelazi iznos od EUR 30.000,00 godišnje.

Odeljak tri: Primena Član 1:301 Zahtevi da se zabrani nastanak ili naloži prestanak povrede prava (1) Kvalifikovano lice, definisano u stavu 2, je ovlašćeno da se obrati nadležnom nacionalnom sudu ili organu i traži odluku kojom se zabranjuje ili nalaže prestanak povreda PEUPO-a, ukoliko se primenjuju u skladu sa članom 1:102.

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(2) Kvalifikovano lice je svako telo ili organizacija sa liste koju je sačinila Evropska komisija u skladu sa članom 4 Direktive 2009/22/EC Evropskog parlamenta i Saveta od 23. aprila 2009. godine o povredama zaštite interesa potrošača, sa izmenama.

Član 1:302 Vansudski način rešavanja pritužbi i obeštećenja Primena PEUPO-a ne isključuje mogućnost vansudskog načina rešavanja pritužbi i obeštećenja koji su inače dostupni ugovaraču osiguranja, osiguraniku ili korisniku osiguranja.

Drugo Poglavlje: Početna Faza I Trajanje Ugovora O Osiguranju Odeljak jedan: Predugovorne obaveze podnosioca predloga da pruži informaciju Član 2:101 Dužnost prijavljivanja (1) Prilikom zaključenja ugovora, podnosilac predloga za zaključenje osiguranja će obavestiti osiguravača o okolnostima koje su mu poznate, ili bi morale da mu budu poznate, a koje su predmet jasno i precizno formulisanih pitanja koja mu postavi osiguravač. (2) Okolnosti iz stava 1 uključuju one okolnosti koje su licu koje će biti osigurano bile poznate, ili koje bi trebalo su mu bile poznate.

Član 2:102 Povreda obaveze davanja informacije (1) Kada ugovarač osiguranja prekrši član 2:101, osiguravač, u skladu sa stavovima 2 do 5, ima pravo da predloži razumne izmene ugovora ili da raskine ugovor. U tu svrhu, osiguravač će, u roku od mesec dana od dana kada mu povreda člana 2:101 postane poznata ili očigledna, dostaviti ugovaraču osiguranja pisano obaveštenje o svojoj nameri, sa informacijom o pravnim posledicama njegove odluke. (2) Ukoliko osiguravač predloži razumne izmene ugovora, ugovor će nastaviti da proizvodi dejstva u skladu sa izmenama, osim ukoliko ugovarač osiguranja odbije predlog u roku od mesec dana od dana prijema obaveštenja iz stava 1. U tom slučaju, osiguravač će imati pravo da raskine ugovor u roku od mesec dana od dana prijema pisanog obaveštenja o odbijanju ugovarača osiguranja. (3) Osiguravač neće imati pravo da raskine ugovor ukoliko ugovarač osiguranja nije odgovoran za povredu člana 2:101, osim ako osiguravač ne dokaže da ne bi ni zaključio ugovor da je znao za te informacije. (4) Prestanak ugovora će proizvoditi dejstvo nakon proteka roka od mesec dana od dana kada ugovarač osiguranja primi pisano obaveštenje iz stava 1. Izmene će proizvoditi dejstvo u skladu sa dogovorom strana. (5) Ukoliko osigurani slučaj prouzrokuje okolnost značajnu za ocenu rizika, na koju se neprijavljivanje ili netačno prikazivanje od strane ugovarača osiguranja odnosi, a osigurani slučaj nastupi pre nego što raskid ili izmene počnu da proizvode pravno dejstvo, naknada iz osiguranja neće biti isplaćena ukoliko osiguravač ne bi zaključio ugovor da je znao za te okolnosti. Ukoliko bi pak osiguravač zaključio ugovor, ali uz višu premiju ili pod drugačijim uslovima, naknada iz osiguranja će biti proporcionalno smanjena ili isplaćena u skladu sa takvim uslovima.

Član 2:103 Izuzeci Sankcije predviđene u članu 2:102 se neće primenjivati u odnosu na

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(a) pitanje na koje nije pružen odgovor, ili kada pružena informacija očigledno nije tačna ili je nepotpuna; (b) informaciju koja je trebalo da bude pružena, ili informaciju koja je bila data ali je neprecizna, a koja nije bila suštinski značajna za razumnu odluku osiguravača da uopšte zaključi ugovor, ili da to učini pod ugovorenim uslovima; (c) informaciju u pogledu koje je osiguravač naveo ugovarača da zaključi da je takve prirode da ne mora biti prijavljena; (d) informaciju koja je osiguravaču bila ili morala biti poznata.

Član 2:104 Prevarna povreda ugovora Umesto sankcija predviđenih u članu 2:102, osiguravač će biti ovlašćen da poništi ugovor i da zadrži pravo na isplatu dugovane premije, ukoliko ga je ugovarač naveo da zaključi ugovor prevarnim kršenjem člana 2:101. Obaveštenje o poništenju će biti dostavljeno pisanim putem ugovaraču osiguranja u roku od dva meseca od dana saznanja za prevaru.

Član 2:105 Dodatne informacije Članovi 2:102 do 2:104 će se primenjivati i na sve druge podatke koje pruža ugovarač osiguranja u vreme zaključenja ugovora, a ne samo na one regulisane članom 2:101.

Član 2:106 Genetske informacije Ovaj odeljak se neće primenjivati na rezultate genetskih testova koji su regulisani članom 1:208 stavom 1.

Odeljak dva: Predugovorne obaveze osiguravača Član 2:201 Predaja predugovorne dokumentacije (1) Osiguravač će dostaviti zainteresovanom licu primerak predloženih uslova ugovora kao i dokument koji uključuje sledeće informacije, ukoliko su relevantne: (a) ime i adresu ugovornih strana, posebno sedište i pravnu formu osiguravača i, gde je primenjivo, ogranka koji zaključuje ugovor ili pruža pokriće; (b) ime i adresu osiguranika, korisnika osiguranja u slučaju životnog osiguranja ili osiguranog lica; (c) ime i adresu zastupnika u osiguranju; (d) predmet osiguranja i pokriveni rizik; (e) osiguranu svotu i bilo koje odbitke; (f) iznos premije i metod obračunavanja premije; (g) datum dospelosti premije, kao i mesto i način plaćanja; (h) vreme trajanja ugovora, uključujući i uslove i način prestanka ugovora, i period trajanja odgovornosti; (i) pravo na povlačenje predloga za zaključenje ugovora ili na odustanak od ugovora u skladu sa članom 2:303 u slučaju neživotnog osiguranja i u skladu sa članom 17:203 u slučaju životnog osiguranja; (j) da se na ugovor primenjuje PEUPO; (k) mogućnost vansudskog načina rešavanja pritužbi i obeštećenja za podnosioca predloga kao i načine na koje se istom može pristupiti;

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(l) postojanje garantnih fondova ili drugih načina obeštećenja; (2) Ukoliko je moguće, ove informacije će biti dostavljene u roku koji je dovoljan da podnosilac predloga razmotri da li da zaključi ugovor ili ne. (3) Kada lice predlaže da mu se pruži pokriće osiguranja popunjavanjem obrasca predloga i/ili upitnika koji obezbeđuje osiguravač, osiguravač će mu dostaviti kopije popunjenih dokumenata.

Član 2:202 Dužnost na upozoravanje o nedoslednostima u pokriću (1) Prilikom zaključenja ugovora, osiguravač će upozoriti podnosioca predloga na svako neslaganje između ponuđenog pokrića i predloga zainteresovanog lica, a koji su osiguravaču poznati ili mu moraju biti poznati uzevši u obzir okolnosti i način zaključenja ugovora, i posebno činjenicu da li je podnosiocu predloga pomoć pružao nezavisni posrednik u osiguranju. (2) U slučaju kršenja stava 1 (a) osiguravač će podnosiocu predloga naknaditi svu štetu koja nastane usled povrede obaveze osiguravača o upozorenju podnosiocu predloga, osim ako je osiguravač postupao bez krivice, i (b) ugovarač osiguranja će imati pravo da raskine ugovor pisanim obaveštenjem u roku od dva meseca od dana kada sazna za povredu.

Član 2:203 Dužnost upozoravanja na početak dejstva pokrića Ukoliko podnosilac predloga razumno, ali pogrešno veruje da pokriće počinje momentom podnošenja predloga, a to je osiguravaču poznato, ili mu je moralo biti poznato, osiguravač će odmah upozoriti podnosioca predloga da dejstvo pokrića neće otpočeti sve dok ugovor ne bude zaključen, i, ukoliko je primenjivo, dok prva premija ne bude uplaćena, osim ako je odobreno privremeno pokriće. Ukoliko osiguravač prekrši obavezu da dâ upozorenje, biće odgovoran u skladu sa članom 2:202 stavom 2(a).

Odeljak tri: Zaključenje ugovora Član 2:301 Zaključenje ugovora Ugovor o osiguranju ne mora da bude zaključen i evidentiran u pisanoj formi, niti njegovo zaključenje može biti uslovljeno drugim zahtevima u pogledu forme. Ugovor je moguće dokazivati svim dokaznim sredstvima, uključujući i usmeno svedočenje.

Član 2:302 Povlačenje predloga za zaključenje ugovora o osiguranju Podnosilac predloga ima pravo da povuče predlog za zaključenje osiguranja ukoliko osiguravač primi takav opoziv pre nego što podnosilac primi prihvat predloga od osiguravača.

Član 2:303 Pravo na odustanak od ugovora (1) Ugovarač osiguranja će imati pravo da odustane od ugovora slanjem pisanog obaveštenja u roku od dve nedelje računajući od dana prijema prihvata predloga od strane osiguravača ili od dana dostavljanja dokumentacije iz člana 2:501, u zavisnosti od toga šta nastupi kasnije. (2) Ugovarač osiguranja neće imati pravo na odustanak od ugovora kada (a) je trajanje ugovora kraće od jednog meseca; (b) je trajanje ugovora produženo u skladu sa članom 2:602; (c) je u pitanju privremeno pokriće, osiguranje od odgovornosti ili kolektivno osiguranje.

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Član 2:304 Nepravične ugovorne odredbe (1) Odredba o kojoj se nije posebno pregovaralo neće biti obavezujuća za ugovarača osiguranja, osiguranika ili korisnika osiguranja ukoliko, suprotno načelima savesnosti i poštenja i dobrim poslovnim običajima, stvara značajnu neravnotežu u pravima i obavezama koje proističu iz ugovora na njegovu štetu, a uzevši u obzir prirodu ugovora o osiguranju, sve ostale uslove ugovora kao i okolnosti koje su postojale u vreme zaključenja ugovora. (2) Ugovor će nastaviti da obavezuje strane ukoliko je nepravična odredba takve prirode da ugovor može da nastavi da postoji bez nje. U suprotnom, nepravična odredba će biti zamenjena onom koju bi razumne strane ugovorile da su imale saznanje o nepravičnosti takve odredbe. (3) Ovaj član se primenjuje na odredbe koje ograničavaju ili menjaju pokriće ali se ne primenjuje na (a) adekvatnost vrednosti pokrića ili premije, kao ni na (b) odredbe koje regulišu osnovni opis odobrenog pokrića ili ugovorenu premiju, pod uslovom da su takve odredbe sačinjene na jednostavan i razumljiv način. (4) Uvek će se smatrati da se o nekoj odredbi nije posebno pregovaralo kada je pripremljena unapred, te stoga ugovarač osiguranja nije bio u mogućnosti da utiče na suštinu te odredbe, posebno u kontekstu unapred pripremljenog tipskog ugovora. Činjenica da se o određenim aspektima odredbe, ili o određenoj odredbi posebno pregovaralo neće isključiti primenu ovog člana na preostali deo ugovora ukoliko se po opštoj proceni ugovora smatra da je u pitanju unapred pripremljeni tipski ugovor. Kada osiguravač tvrdi da se o tipskom uslovu posebno pregovaralo, teret dokazivanja u tom smislu leži na osiguravaču.

Odeljak četiri: Retroaktivno i privremeno pokriće Član 2:401 Retroaktivno pokriće (1) Ukoliko, u slučaju da je pokriće odobreno za period pre zaključenja ugovora (retroaktivno pokriće), osiguravač zna da u momentu zaključenja ugovora osigurani slučaj nije nastupio, ugovarač osiguranja će biti obavezan na isplatu premija samo za period nakon zaključenja ugovora. (2) Ukoliko, u slučaju retroaktivnog pokrića, ugovarač osiguranja u momentu zaključenja ugovora zna da je osigurani slučaj već nastupio, osiguravač će, osim u slučaju primene člana 2:104, pružiti pokriće samo za period nakon zaključenja ugovora.

Član 2:402 Privremeno pokriće Prilikom zaključenja privremenog ugovora o osiguranju, osiguravač će izdati listu pokrića u kojoj će biti navedeni podaci predviđeni članom 2:501 (a), (b), (d), (e) i (h), ukoliko je relevantno. (2) Članovi 2:201-2:203 i, u zavisnosti od primene stava 1, član 2:501 se ne primenjuju na privremeno pokriće.

Član 2:403 Trajanje privremenog pokrića (1) Kada je zainteresovanom licu odobreno privremeno pokriće, takvo pokriće neće prestati pre dana za koji je ugovorom o osiguranju ugovoren početak trajanja pokrića, ili dana kada zainteresovano lice primi obaveštenje od osiguravača kojim konačno odbija predlog za osiguranje, u zavisnosti od slučaja. (2) Kada se privremeno pokriće odobri licu koje ne podnese predlog za osiguranje kod istog osiguravača, takvo pokriće može biti odboreno na kraći period od onog definisanog u članu 2:601 stav 1. Svaka strana može otkazati takvo pokriće uz poštovanje otkaznog roka od dve nedelje.

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Odeljak pet: Polisa osiguranja Član 2:501 Sadržaj Prilikom zaključenja ugovora o osiguranju, osiguravač će izdati polisu osiguranja sa sledećim podacima, ukoliko su relevantni, i dostaviti opšte uslove ugovora, ukoliko takvi uslovi već nisu sadržani u samoj polisi: (a) imena i adrese ugovornih strana, a posebno sedište i pravnu formu osiguravača i, gde je primenjivo, ogranka koji je zaključio ugovor o osiguranju i pružio pokriće; (b) ime i adresu osiguranika i, u slučajevima životnog osiguranja, korisnika i osiguranog lica; (c) ime i adresu posrednika; (d) predmet osiguranja i pokriveni rizik; (e) osiguranu svotu i sve odbitke; (f) iznos premije ili metod obračuna premije; (g) datum dospelosti premije, kao i mesto i način plaćanja premije; (h) vreme trajanja ugovora, uključujući i načine njegovog prestanka i vreme trajanja odgovornosti; (i) pravo na povlačenje predloga ili na odustanak od ugovora u skladu sa članom 2:303 u slučaju neživotnih osiguranja i u skladu sa članom 17:203 u slučajevima životnog osiguranja; (j) da se na ugovor primenjuje PEUPO; (k) mogućnost vansudskog načina rešavanja pritužbi i obeštećenja za podnosioca predloga kao i načine na koje se istim može pristupiti; (l) postojanje garantnih fondova ili drugih načina obeštećenja

Član 2:502 Dejstva polise (1) Ukoliko se uslovi iz polise osiguranja razlikuju od uslova navedenih u predlogu ugovarača osiguranja ili u bilo kom ranijem ugovoru između strana, smatraće se da je ugovarač osiguranja prihvatio pomenute razlike koje su istaknute u polisi, osim ukoliko uloži prigovor u roku od mesec dana od dana prijema polise. Osiguravač je u obavezi da dostavi ugovaraču osiguranja obaveštenje u kojem je pravo na prigovor u vezi sa razlikama istaknutim u polisi istaknuto tamnijim slovima. (2) Ukoliko osiguravač ne postupi u skladu sa stavom 1, smatraće se da su strane ugovorile uslove sadržane u predlogu ugovarača osiguranja za zaključenje osiguranja ili u prethodnom ugovoru strana, u zavisnosti od slučaja.

Odeljak šest: Trajanje ugovora o osiguranju Član 2:601 Trajanje ugovora o osiguranju (1) Trajanje ugovora o osiguranju će biti godinu dana. Ugovorne strane mogu ugovoriti drugo vreme trajanja ukoliko to nameće priroda rizika. (2) Stav 1 se ne primenjuje na osiguranje lica.

Član 2:602 Produženje (1) Po isteku perioda od godinu dana koji predviđa član 2:601, ugovor će biti produžen osim u sledećim slučajevima: (a) ako osiguravač dostavi drugoj strani pisano obaveštenje o neproduženju ugovora najmanje mesec dana pre isteka trajanja ugovora, navodeći razloge za svoju odluku; ili

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(b) ako ugovarač osiguranja dostavi drugoj strani pisano obaveštenje najkasnije do dana isteka ugovora ili u roku od mesec dana od dana kada ugovarač osiguranja primi fakturu za premiju, u zavisnosti od toga koji je datum kasniji. U drugom slučaju, jednomesečni rok će početi da teče samo ako je jasno istaknut na fakturi tamnijim slovima. (2) U svrhu stava 1 (b) smatraće se da je obaveštenje dato dana kada je otpremljeno.

Član 2:603 Izmene uslova (1) U ugovoru o osiguranju na koji se primenjuje produženje iz člana 2:602, klauzula koja dozvoljava osiguravaču da izmeni premiju ili bilo koji drugi uslov ugovora biće nevažeća osim ukoliko predviđa: (a) da nijedna izmena neće stupiti na snagu pre sledećeg produženja, (b) da će osiguravač poslati ugovaraču osiguranja pisano obaveštenje o izmenama najkasnije mesec dana pre isteka perioda važenja tekućeg ugovora, i (c) da će u obaveštenju ugovarač osiguranja biti obavešten o svom pravu da raskine ugovor i o posledicama ukoliko to pravo ne iskoristi. (2) Stav 1 ne isključuje primenu drugih preduslova za valjanost klauzule o izmenama uslova.

Član 2:604 Prestanak ugovora nakon nastupanja osiguranog slučaja (1) Klauzula koja predviđa prestanak ugovora nakon nastupanja osiguranog slučaja neće važiti osim ukoliko (a) daje obema stranama pravo da raskinu ugovor i (b) polisa nije za osiguranje lica. (2) Odredbe koje se odnose na prestanak ugovora i na ostvarivanje bilo kog prava vezanog za prestanak ugovora moraju biti razumne. (3) Svako pravo prestanka ugovora će prestati da važi ukoliko odgovarajuća ugovorna strana ne dostavi pisano obaveštenje drugoj strani o raskidu u roku od dva meseca od dana kada je saznala za nastupanje osiguranog slučaja. (4) Osiguravajuće pokriće prestaje dve nedelje nakon slanja obaveštenja u skladu sa stavom 3.

Odeljak sedam: Obaveze osiguravača da pruži informacije nakon zaključenja ugovora Član 2:701 Obaveza pružanja opštih informacija Tokom trajanja ugovora osiguravač će ugovaraču osiguranja pružati, u pisanoj formi, bez neopravdanog odlaganja, informacije o bilo kojoj promeni u vezi sa njegovim nazivom i adresom, pravnim oblikom, adresom sedišta i filijale ili ogranka koji je zaključio ugovor.

Član 2:702 Dodatne informacije po zahtevu (1) Na zahtev ugovarača osiguranja, osiguravač će mu bez neopravdanog odlaganja pružiti informacije u vezi sa: (a) svim pitanjima koja se odnose na izvršenje ugovora, u meri u kojoj se to može razumno očekivati od osiguravača; (b) novim standardnim uslovima koje nudi osiguravač za ugovore o osiguranju istog tipa kao što je ugovor zaključen sa ugovaračem osiguranja. (2) Gore pomenuti zahtev ugovarača osiguranja i odgovor osiguravača moraju biti u pisanoj formi.

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Treće Poglavlje: Posrednici U Osiguranja Član 3:101 Ovlašćenja zastupnika u osiguranju (1) Zastupnik u osiguranju je ovlašćen da u ime osiguravača preduzima sve radnje koje su, prema praksi industrije osiguranja, u granicama svrhe njegovog angažovanja. Ugovarač osiguranja će biti jasno obavešten, posebnim dokumentom, o svakom ograničenju ovlašćenja zastupnika. Međutim, ovlašćenja zastupnika u osiguranju će namanje obuhvatati stvarnu svrhu njegovog angažovanja. (2) U svakom slučaju, ovlašćenja zastupnika u osiguranju će obuhvatati: (a) ovlašćenje da informiše i pruži savet ugovaraču osiguranja, i (b) ovlašćenje da prima obaveštenja od ugovarača osiguranja. (3) Odgovarajuća saznanja koja zastupnik u osiguranju ima ili je morao da ima za vreme njegovog angažovanja smatraće se i saznanjima osiguravača.

Član 3:102 Zastupnik osiguravača koji tvrdi da je nezavistan Osiguravač će biti odgovoran za zastupnika osiguravača koji tvrdi da nastupa kao nezavisni posrednik i postupa kršeći dužnosti koje su takvom posredniku nametnute zakonom.

Četvrto Poglavlje: Osigurani Rizik Odeljak jedan: Mere predostrožnosti Član 4:101 Mere predostrožnosti: značenje Mera predostrožnosti je klauzula ugovora o osiguranju koja, bez obzira da li je opisana kao preduslov za nastupanje odgovornosti osiguravača, zahteva od ugovarača osiguranja ili osiguranika da pre nastupanja osiguranog slučaja preduzmu ili ne preduzmu određene radnje.

Član 4:102 Pravo osiguravača na raskid ugovora (1) Klauzula koja predviđa da će u slučaju nepoštovanja mera predostrožnosti osiguravač imati pravo da raskine ugovor, neće imati dejstvo osim ako ugovarač osiguranja ili osiguranik prekrše svoju obavezu sa namerom da izazovu štetu ili postupajući sa nepažnjom, a sa svešću da će šteta verovatno nastupiti. (2) Pravo raskida ugovora će se ostvariti slanjem pisanog obaveštenja ugovaraču osiguranja u roku od mesec dana od trenutka kada osiguravač sazna za nepoštovanje mera predostrožnosti ili kada ono postane očigledno. Pokriće prestaje u momentu raskida ugovora.

Član 4:103 Oslobođenje osiguravača od odgovornosti (1) Klauzula koja predviđa da nepoštovanje mere predostrožnosti, delimično ili u celosti, oslobađa osiguravača od odgovornosti, će imati dejstvo samo ukoliko je šteta izazvana nepoštovanjem od strane ugovarača osiguranja ili osiguranika mere predostrožnosti sa namerom da izazove štetu ili postupajući sa nepažnjom, a sa svešću da će šteta verovatno nastupiti. (2) Osim u slučaju postojanja jasne i razumljive klauzule koja predviđa smanjenje naknade iz osiguranja u zavisnosti od stepena krivice, ugovarač osiguranja ili osiguranik, u zavisnosti od slučaja, imaće pravo na naknadu iz osiguranja u odnosu na bilo koju štetu izazvanu nehatnim nepoštovanjem mere predostrožnosti.

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Odeljak dva: Povećanje rizika Član 4:201 Klauzule koje se odnose na povećanje rizika Ako ugovor o osiguranju sadrži klauzulu o povećanju osiguranog rizika, takva klauzula neće ima dejstvo osim ako je povećanje predmetnog rizika značajno i one vrste koja je navedena u ugovoru o osiguranju.

Član 4:202 Dužnost obaveštavanja o povećanju rizika (1) Ako klauzula o povećanju osiguranog rizika predviđa obavezu obaveštavanja o povećanju, ugovarač osiguranja, osiguranik ili korisnik osiguranja, u zavisnosti od slučaja, su dužni da dostave takvo obaveštenje, pod uslovom da je lice koje je dužno da pruži obeveštenje znalo ili je moralo da bude svesno postojanja osiguravajućeg pokrića i povećanja rizika. Obaveštenje od strane trećeg lica će se smatrati punovažnim. (2) Ako klauzula predviđa obavezu da obaveštenje bude dostavljeno u određenom roku, taj rok mora biti razuman. Obaveštenje će imati dejstvo od dana njegovog otpremanja. (3) U slučaju povrede obaveze obaveštavanja, osiguravač neće po tom osnovu imati pravo da odbije da isplati naknadu za bilo koju naknadnu štetu, nastalu usled nekog događaja koji je predmet pokrića, osim ako je šteta posledica nepružanja obaveštenja o povećanju rizika.

Član 4:203 Raskid ugovora i oslobođenje osiguravača od odgovornosti (1) Ako ugovor predviđa da u slučaju povećanja osiguranog rizika osiguravač ima pravo da raskine ugovor, to pravo će se vršiti slanjem pisanog obaveštenja ugovaraču osiguranja u roku od mesec dana od trenutka kada povećanje rizika postane osiguravaču poznato ili očigledno. (2) Pokriće prestaje mesec dana nakon raskida ili, ako ugovarač osiguranja namerno prekrši obavezu iz člana 4:202, u trenutku raskida. (3) Ako se osigurani slučaj dogodio usled povećanog rizika, za koji je ugovarač osiguranja znao ili je morao znati, pre isteka pokrića, naknada iz osiguranja neće biti isplaćena ako osiguravač uopšte ne bi ni pristao da osigura takav povećani rizik. Međutim, ukoliko bi osiguravač osigurao rizik po višoj premiji ili pod drugačijim uslovima, naknada iz osiguranja će se isplatiti srazmerno ili u skladu sa takvim uslovima.

Odeljak tri: Smanjenje rizika Član 4:301 Posledice smanjenja rizika (1) U slučaju značajnog smanjenja rizika, ugovarač osiguranja ima pravo da zahteva srazmerno smanjenje premije za preostali period trajanja ugovora. (2) Ako ugovorne strane ne postignu dogovor o srazmernom smanjenju premije u roku od mesec dana od dana podnošenja zahteva, ugovarač osiguranja ima pravo da raskine ugovor uz obavezu slanja pisanog obaveštenja u roku od dva meseca od dana podnošenja zahteva.

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Peto Poglavlje: Premija Osiguranja Član 5:101 Prva rata premije ili jednokratna premija Zahtev osiguravača da je uplata cele premije ili prve rate premije uslov za zaključenje ugovora o osiguranju ili početka pokrića, neće važiti osim u sledećim slučajevima: (a) uslov je saopšten podnosiocu predloga u pisanoj formi na jasan način i podnosilac je upozoren da neće imati pokriće dok se ne izvrši plaćanje premija, i (b) istekao je period od dve nedelje od prijema fakture izdate u skladu sa uslovom pod (a), a plaćanje nije izvršeno.

Član 5:102 Naknadna uplata premije (1) Klauzula koja predviđa da će osiguravač biti oslobođen obaveze da pokrije rizik u slučaju neplaćanja naknadne premije, neće imati dejstvo osim ako: (a) ugovarač osiguranja primi fakturu u kojoj je naveden tačan iznos dospele premije, kao i datum plaćanja iste; (b) nakon dospelosti premije, osiguravač pošalje podsetnik ugovaraču osiguranja u vezi sa tačnim iznosom dospele premije, odobravajući mu dodatni rok za plaćanje u trajanju od najmanje dve nedelje, a istovremeno i upozorenje ugovaraču osiguranja o neposrednoj obustavi pokrića ukoliko se plaćanje ne izvrši, i (c) dodatni rok u zahtevu pod (b) istekne bez vršenja plaćanja. (2) Osiguravač će biti oslobođen od odgovornosti nakon isticanja dodatnog roka iz stava 1 (b). Pokriće će se nastaviti u budućnosti čim ugovarač osiguranja plati dospeli iznos, osim ako je ugovor raskinut u skladu sa članom 5:103.

Član 5:103 Prestanak ugovora (1) Po isteku roka iz člana 5:101 (b) ili člana 5:102 stav 1 (b) za plaćanje premije, osiguravač ima pravo da raskine ugovor slanjem pisanog obaveštenja, ukoliko je u fakturi, shodno članu 5:101(b) ili upozorenju, shodno članu 5:102 stav 1 (b), u zavisnosti od slučaja, navedeno pravo osiguravača da raskine ugovor. (2) Smatraće se da je ugovor prestao ako, u zavisnosti od slučaja, osiguravač ne traži uplatu (a) prve premije u roku od dva meseca po isteku roka iz člana 5:101 (b); ili (b) naknadne premije u roku od dva meseca od isteka roka iz člana 5:102 stav 1 (b).

Član 5:104 Deljivost premije Ako ugovor o osiguranju prestane pre isteka trajanja ugovora, osiguravač ima pravo samo na premiju koja odgovara periodu pre njegovog prestanka.

Član 5:105 Pravo na plaćanje premije Osiguravač nema pravo da odbije plaćanje od trećeg lica ako (a) treće lice postupa uz saglasnost ugovarača osiguranja, ili (b) treće lice ima legitiman interes za održavanje pokrića, a ugovarač osiguranja nije izvršio plaćanje ili je jasno da neće izvršiti plaćanje u vreme dospelosti istog.

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Šesto Poglavlje: Osigurani Slučaj Član 6:101 Obaveštenje o nastupanju osiguranog slučaja (1) Osiguravača će o nastupanju osiguranog slučaja obavestiti ugovarač osiguranja, osiguranik ili korisnik, u zavisnosti od slučaja, pod uslovom da je lice koje dužno da pruži obeveštenje znalo ili je moralo da ima saznanja o postojanju osiguravajućeg pokrića i nastupanju osiguranog slučaja. Obaveštenje od strane trećeg lica će se smatrati punovažnim. (2) Obaveštenje iz gornjeg stava će biti dato bez neopravdanog odlaganja. Ono će proizvoditi dejstvo po otpremanju istog. Ukoliko ugovor predviđa da obaveštenje bude dato u određenom roku, takav rok mora biti razuman i ni u kom slučaju ne sme biti kraći od pet dana. (3) Naknada iz osiguranja koja treba da se isplati biće umanjena u meri u kojoj osiguravač dokaže da je oštećen usled neopravdanog odlaganja.

Član 6:102 Saradnja povodom zahteva za naknadu iz osiguranja (1) Ugovarač osiguranja, osiguranik ili korisnik osiguranja, u zavisnosti od slučaja, će sarađivati sa osiguravačem u istrazi osiguranog slučaja, odgovarajući na razumne zahteve, posebno u pogledu – informacija o uzrocima i posledicama nastupanja osiguranog slučaja; – dokumenata ili drugih dokaza u vezi sa osiguranim slučajem; – pristupa prostorijama koje se odnose na osigurani slučaj. (2) U slučaju bilo kakve povrede stava 1, u zavisnosti od primene stava 3, naknada iz osiguranja koja treba da se isplati biće umanjena u meri u kojoj osiguravač dokaže da je bio oštećen navedenom povredom. (3) U slučaju bilo kakvog kršenja stava 1 učinjenog sa namerom da se nanese šteta ili usled nepažnje, a sa svešću da će takva radnja verovatno izazvati štetu, osiguravač nije dužan da isplati naknadu iz osiguranja.

Član 6:103 Priznavanje zahteva za naknadu iz osiguranja (1) Osiguravač je dužan da preduzme sve razumne radnje u cilju brzog namirivanja zahteva iz osiguranja. (2) Ukoliko osiguravač ne odbaci zahtev ili ne odloži prihvatanje zahteva pisanim obaveštenjem u kojem će navesti razloge za svoju odluku u roku od mesec dana od dana prijema odgovarajuće dokumentacije i drugih informacija, smatraće se da je zahtev prihvaćen.

Član 6:104 Vreme ispunjenja (1) Po prihvatanju zahteva osiguravač će bez neopravdanog odlaganja izvršiti isplatu ili pružiti usluge na koje je obavezan, u zavisnosti od slučaja. (2) Čak i ukoliko se ukupna vrednost potraživanja još uvek ne može obračunati, a pravo podnosioca zahteva na deo potraživanja je nesporno, taj deo zahteva će biti isplaćen odnosno usluga pružena, bez neopravdanog odlaganja. (3) Isplata obaveze iz osiguranja, bilo na osnovu stava 1 ili stava 2, biće izvršena najkasnije u roku od nedelju dana od dana prihvatanja i obračuna zahteva ili dela istog, u zavisnosti od slučaja.

Član 6:105 Docnja u plaćanju (1) Ukoliko naknada iz osiguranja ne bude isplaćena u skladu sa članom 6:104, podnosilac zahteva će imati pravo na kamatu koja se obračunava na taj iznos od vremena dospelosti plaćanja do same isplate, po stopi koju primenjuje Evropska Centralna banka prema poslednjem obračunu

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refinansiranja izvršenom pre prvog kalendarskog dana odgovarajućeg polugođa, uvećanoj za osam procenata. (2) Podnosilac zahteva ima pravo na obeštećenje za bilo koju dodatnu štetu koja je prouzrokovana zakasnelom isplatom.

Sedmo Poglavlje: Zastarelost Član 7:101 Zahtev za plaćanje premije Zahtev za isplatu premije zastareva godinu dana od dana njene dospelosti.

Član 7:102 Zahtev za isplatu koristi iz osiguranja (1) Uopšteno, pravo da se zahteva isplata koristi iz osiguranja zastareva po isteku tri godine od dana kada osiguravač donese ili se smatra da je doneo konačnu odluku o potraživanju, u skladu sa članom 6:103. U svakom slučaju, pravo zastareva najkasnije u roku od deset godina od nastupanja osiguranog slučaja, izuzev u slučaju životnog osiguranja kada rok iznosi 30 godina. (2) Pravo na zahtev za isplatu otkupne vrednosti životnog osiguranja zastareva po isteku tri godine od dana kada ugovarač osiguranja primi konačan račun od osiguravača. U svakom slučaju, pravo zastareva najkasnije u roku od 30 godina od dana prestanka ugovora o životnom osiguranju.

Član 7:103 Ostala pitanja u vezi sa zastarelošću Shodno članu 7:101 i članu 7:102 PEUPO, članovi 14:101-14:503 Principi Evropskog Ugovornog Prava (PEUP) će se primenjivati na potraživanja koja proističu iz ugovora o osiguranju. Ugovorom o osiguranju se može odstupiti od tih odredbi u skladu sa članom 1:103 stav 2 PEUPO-a.

Drugi Deo: Opšte Odredbe O Osiguranju Od Štete Osmo Poglavlje: Osigurana Svota I Osigurana Vrednost Član 8:101 Maksimalan iznos za isplatu (1) Osiguravač nije dužan da isplati više od iznosa koji je neophodan za naknadu štete koju je osiguranik zaista pretrpeo. (2) Klauzula kojom se predviđa ugovorena vrednost predmeta osiguranja važi čak i ukoliko ugovorena vrednost premašuje stvarnu vrednost predmeta osiguranja, pod uslovom da nije bilo prevare ili lažnog predstavljanja ugovarača osiguranja ili osiguranika u vreme kada je vrednost ugovorena.

Član 8:102 Podosiguranje (1) Osiguravač snosi odgovornost za plaćanje osigurane štete do visine osigurane svote čak i ukoliko je osigurana svota manja od vrednosti osigurane imovine u vreme nastupanja osiguranog slučaja. (2) Međutim, kada osiguravač ponudi pokriće shodno stavu 1, ima pravo da alternativno ponudi osiguranje po osnovu koga će naknada koja treba da se isplati biti ograničena na deo osigurane svote koji je srazmeran odnosu te svote i stvarne vrednosti osigurane imovine u vreme nastupa-

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nja štete. U tom slučaju, i troškovi umanjenja štete, definisani u članu 9:102, biće nadoknađeni u istoj srazmeri.

Član 8:103 Prilagođavanje uslova u slučaju nadosiguranja (1) Ako osigurana svota premašuje maksimalnu moguću štetu po osiguranju, svaka ugovorna strana ima pravo da traži smanjenje osigurane svote i odgovarajuće smanjenje premije za preostali ugovorni period. (2) Ako se ugovorne strane ne saglase o takvom smanjenju u roku od mesec dana od dana podnošenja odgovarajućeg zahteva, svaka ugovorna strana će imati pravo da raskine ugovor.

Član 8:104 Višestruko osiguranje (1) Ako je isti interes osiguran zasebnim ugovorima kod više od jednog osiguravača, osiguranik će imati pravo da potražuje isplatu osigurane svote od jednog ili više osigravača u meri koja je neophodna za nadoknadu štete koju je osiguranik pretrpeo. (2) Osiguravač kome je podnet zahtev mora da isplati naknadu do iznosa osigurane svote u skladu sa svojom polisom zajedno sa troškovima umanjenja štete ukoliko postoje, uz zadržavanje prava da zahteva doprinos od ostalih osiguravača. (3) U odnosima između osiguravača, prava i obaveze predviđene stavom 2 biće u srazmeri sa iznosima za koje svaki osiguravač posebno odgovara osiguraniku.

Deveto Poglavlje: Pravo Na Obeštećenje Član 9:101 Izazivanje osiguranog slučaja (1) Ugovarač osiguranja ili osiguranik, u zavisnosti od slučaja, nemaju pravo na naknadu štete ako je osigurani slučaj izazvan njihovim činjenjem ili nečinjenjem koje je učinjeno sa namerom da se prouzrokuje šteta, ili usled nedostatka pažnje, a svesno da će šteta verovatno biti pričinjena. (2) Osim u slučaju primene jasne i razumljive klauzule koja predviđa smanjenje naknade iz osiguranja u zavisnosti od stepena krivice, ugovarač osiguranja ili osiguranik, u zavisnosti od slučaja, imaće pravo na naknadu štete prouzrokovane nehatnom radnjom ili propuštanjem. (3) U svrhu gore navedenih stavova 1 i 2, prouzrokovanje štete uključuje propuštanje da se šteta spreči ili umanji.

Član 9:102 Troškovi umanjenja štetnih posledica (1) Osiguravač je dužan da nadoknadi nastale troškove ili štetu koju pretrpi ugovarač osiguranja ili osiguranik prilikom preduzimanja mera za umanjenje osigurane štete, u meri u kojoj je ugovarač osiguranja ili osiguranik opravdano smatrao te mere razumnim u datim okolnostima, čak i ako je bio neuspešan u umanjivanju štete. (2) Osiguravač će platiti naknadu ugovaraču osiguranja ili osiguraniku, u zavisnosti od slučaja, za svaku meru koju je preduzeo u skladu sa gore navedenim stavom 1, čak i ukoliko zajedno sa naknadom za osigurani gubitak iznos naknade premašuje osiguranu svotu.

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Deseto Poglavlje: Pravo Subrogacije Član 10:101 Subrogacija (1) U skladu sa stavom 3 ovog člana, osiguravač ima pravo da iskoristi pravo subrogacije prema trećem licu koje je odgovorno za štetu do visine u kojoj je on obeštetio osiguranika. (2) U meri u kojoj se osiguranik odrekne prava protiv takvog trećeg lica te time onemogući osiguravača da iskoristi pravo subrogacije, izgubiće svoje pravo na obeštećenje u pogledu te štete. (3) Osiguravač nema pravo da koristi pravo subrogacije prema članu domaćinstva ugovarača osiguranja ili osiguranika, licu koje je u sličnoj društvenoj vezi sa ugovaračem osiguranja ili osiguranikom, ili licu zaposlenom kod ugovarača osiguranja ili osiguranika, osim ako dokaže da je štetu takvo lice pričinilo namerno ili usled nepažnje, a svesno da će šteta verovatno biti prouzrokovana. (4) Osiguravač ne može da ostvari svoje pravo subrogacije na štetu osiguranika.

Jedanaesto Poglavlje: Osiguranici Koji Nisu Ugovarači Osiguranja Član 11:101 Prava osiguranika (1) U slučaju osiguranja koje je zaključeno u korist lica koje nije ugovarač osiguranja, u slučaju nastupanja osiguranog slučaja to lice ima pravo na naknadu iz osiguranja. (2) Ugovarač osiguranja ima pravo da opozove takvo pokriće, osim ako (a) polisa predviđa drugačije; ili (b) osigurani slučaj je već nastupio. (3) Opoziv će stupiti na snagu nakon slanja osiguravaču pisanog obaveštenja o opozivu.

Član 11:102 Saznanje osiguranika Saznanje lica koje je osigurano u skladu sa članom 11:101 ne smatra se saznanjem ugovarača osiguranja, osim ako je to lice svesno svog statusa osiguranika, u kom slučaju je ugovarač osiguranja dužan da pruži relevantne informacije osiguravaču.

Član 11:103 Povreda obaveza od strane jednog osiguranika Povreda obaveza od strane jednog osiguranika neće nepovoljno uticati na prava drugih lica osiguranih po istom ugovoru o osiguranju, osim ako je rizik zajednički osiguran.

Dvanaesto Poglavlje: Osigurani Rizik Član 12:101 Nepostojanje osiguranog rizika (1) Ukoliko osigurani rizik ne postoji ni u vreme zaključenja ugovora niti u bilo koje drugo vreme u toku trajanja perioda osiguranja, neće postojati obaveza plaćanja premije. Međutim, osiguravač ima pravo na razumnu sumu za nastale troškove. (2) Ako osigurani rizik prestane da postoji tokom perioda osiguranja, smatraće se da je ugovor prestao u trenutku kada je osiguravač obavešten o tome.

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Član 12:102 Prenos osigurane imovine (1) Ako se prenosi pravo na osiguranoj imovini, ugovor o osiguranju prestaje mesec dana nakon prenosa, osim ako se ugovarač osiguranja i sticalac dogovore da ugovor prestane ranije. Ovo pravilo se ne primenjuje na ugovor o osiguranju zaključen u korist budućeg sticaoca. (2) Smatraće se da je sticalac imovine osiguran od trenutka prenosa rizika na osiguranoj imovini. (3) Gore navedeni stavovi 1 i 2 se ne primenjuju (a) ako se osiguravač, ugovarač osiguranja i sticalac dogovore drugačije; ili (b) ako je prenos izvršen usled smrti.

Treči Deo: Opšte Odredbe O Osiguranju Na Utvrđene Iznose Trinaesto Poglavlje: Dopustivost Član 13:101 Osiguranje na utvrđene iznose Samo osiguranje od nesrećnog slučaja, osiguranje zdravlja, života, braka, rođenja ili drugo osiguranje lica mogu biti osiguranje na utvrđene iznose.

Četvrti Deo: Osiguranje Od Odgovornosti Četrnaesto Poglavlje: Opšte Osiguranje Od Odgovornosti Član 14:101 Troškovi odbrane Osiguravač če nadoknaditi troškove odbrane nastale u skladu sa članom 9:102.

Član 14:102 Zaštita oštećenog lica Ukoliko oštećeni ne da pismenu saglasnost, bilo kakvo ispunjene zahteva osiguranja po polisi od strane ugovarača osiguranja ili osiguranika i osiguravača, bilo putem dogovora, odricanja od prava, plaćanja ili druge slične radnje neće uticati na položaj oštećenog.

Član 14:103 Prouzrokovanje štete (1) Ni ugovarač osiguranja ni osiguranik, u zavisnosti od slučaja, nemaju pravo na naknadu štete u meri u kojoj je gubitak prouzrokovan njegovim činjenjem ili nečinjenjem sa namerom da prouzrokuje štetu; to obuhvata nepoštovanje određenih uputstava osiguravača nakon nastupanja štete, ukoliko je učinjeno iz nehata i sa svešću da bi šteta verovatno bila uvećana. (2) Za svrhe iz stava 1 prouzrokovanje štete uključuje propust da se šteta spreči ili umanji. (3) Osim u slučaju primene jasne i razumljive klauzule koja predviđa smanjenje naknade iz osiguranja u zavisnosti od stepena krivice, ugovarač osiguranja ili osiguranik, u zavisnosti od slučaja, imaće pravo na naknadu iz osiguranja u odnosu na bilo koju štetu izazvanu nehatnim nepoštovanjem određenih uputstava osiguravača datih nakon nastanka štete.

Član 14:104 Priznanje odgovornosti (1) Klauzula u ugovoru o osiguranju koja oslobađa osiguravača njegovih obaveza u slučaju da ugovarač osiguranja ili osiguranik, u zavisnosti od slučaja, prihvate ili naknade potraživanje oštećenog neće imati dejstvo.

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(2) Osim ukoliko se sa tim složi, osiguravača neće obavezivati ugovor između oštećenog i ugovarača osiguranja ili osiguranika, u zavisnosti od slučaja.

Član 14:105 Ustupanje Neće imati dejstvo klauzula ugovora o osiguranju koja lišava osiguranika prava da ustupi svoje potraživanje iz polise.

Član 14:106 Bonusi za nepostojanje zahteva / Bonus-Malus-Sistemi (1) Ugovarač osiguranja ima pravo da u bilo koje vreme traži da mu osiguravač dostavi izjavu sa podacima o zahtevima za naknadu štete po njegovoj polisi dostavljenim tokom poslednjih pet godina. (2) Ako osiguravač odredi da premija ili drugi uslovi osiguranja zavise od broja ili iznosa zahteva za naknadu štete plaćenih po polisi, osiguravač mora uzeti u obzir podatke o štetama plaćenim u poslednjih pet godina od strane drugih osiguravača kod kojih je ugovarač bio osiguran.

Član 14:107 Osigurani slučaj (1) Osigurani slučaj je činjenica koja povlači odgovornost osiguranika, a koji se dogodio tokom trajanja perioda odgovornosti iz ugovora o osiguranju osim ako strane iz ugovora o osiguranju u komercijalne ili profesionalne svrhe definišu osigurani slučaj uzimajući u obzir druge kriterijume kao što je zahtev od strane oštećenog. (2) Kada ugovorne strane definišu osigurani slučaj u odnosu na zahtev oštećenog, pokriće će biti odobreno u vezi sa zahtevima, prijavljenim u okviru perioda odgovornosti ili u okviru narednog perioda od najmanje pet godina, koji se zasnivaju na učinjenoj radnji ili događaju koji je nastao pre isteka perioda odgovornosti. Ugovor o osiguranju može isključiti pokriće na osnovu toga da je u vreme zaključenja ugovora podnosilac bio ili morao biti svestan okolnosti za koje je trebalo da očekuje da će dovesti do potraživanja.

Član 14:108 Zahtevi koji premašuju osiguranu svotu (1) Ako ukupna plaćanja zbog postojanja više oštećenih premašuju osiguranu svotu, isplate će biti srazmerno umanjene. (2) Osiguravač koji je, ne znajući za postojanje drugih oštećenih, savesno isplatio naknadu iz osiguranja njemu poznatim oštećenim licima, biće odgovoran prema ostalim oštećenima do visine salda osigurane svote.

Petnaesto Poglavlje: Direktni Zahtevi I Tužbe Član 15:101 Direktni zahtevi i prigovori osiguravača U meri u kojoj je odgovoran ugovarač osiguranja ili osiguranik, u zavisnosti od slučaja, oštećeni će imati pravo da neposredno zahteva obeštećenje od osiguravača po ugovoru o osiguranju pod uslovom da: (a) je osiguranje obavezno, ili (b) su ugovarač osiguranja ili osiguranik insolventni, ili (c) su ugovarač osiguranja ili osiguranik likvidirani ili prestali da postoje, ili (d) je oštećeni pretrpeo telesnu povredu ili narušenje zdravlja, ili (e) merodavno pravo za utvrđivanje odgovornosti predviđa direktan zahtev.

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(2) U odnosu na oštećenog, osiguravač može istaći one prigovore na koje ima pravo po ugovoru o osiguranju, osim ukoliko je osiguranje po posebnim odredbama obavezno. Međutim, osigravač nema pravo na isticanje bilo kakvog prigovora po osnovu ponašanja ugovarača osiguranja i/ili osiguranika nakon nastanka štete.

Član 15:102 Obaveza obaveštavanja (1) Po zahtevu oštećenog, ugovarač osiguranja i osiguranik će pružiti informacije koje su neophodne za podnošenje direktnog zahteva. (2) Osiguravač će u pisanoj formi obavestiti ugovarača osiguranja o bilo kom diretnom zahtevu koji je istaknut prema njemu, bez odlaganja, najkasnije u roku od dve nedelje po prijemu zahteva. Ukoliko osiguravač povredi ovu obavezu, isplata ili priznanje duga učinjeno oštećenom neće imati uticaja na prava ugovarača osiguranja. (3) Ukoliko ugovarač osiguranja ne pruži osiguravaču informacije o osiguranom slučaju u roku od mesec dana od prijema obaveštenja u skladu sa stavom 2, smatraće se da je ugovarač osiguranja pristao na direktno obeštećenje zahteva od strane osiguravača. Ovo pravilo se takođe primenjuje na osiguranike koji su stvarno blagovremeno primili takvo obaveštenje.

Član 15:103 Oslobođenje od odgovornosti Plaćanjem naknade iz osiguranja ugovaraču osiguranja ili osiguraniku, u zavisnosti od slučaja, osiguravač se oslobađa svoje obaveze prema oštećenom samo ukoliko se oštećeni (a) odrekao direktnog zahteva ili (b) nije obavestio osiguravača o svojoj nameri da podnese direktan zahtev u roku od četiri nedelje po prijemu pisanog zahteva osiguravača.

Član 15:104 Zastarelost (1) Pravo osiguranika ili oštećenog da zahtevaju naknadu od osiguravača će zastareti pošto zastari zahtev oštećenog prema osiguraniku. (2) Period zastarelosti prava oštećenog prema osiguraniku, u svakom slučaju, ne teče za vreme od kada osiguranik postane svestan da je podnet direktan zahtev prema osiguravaču do trenutka dok direktan zahtev nije ispunjen ili nedvosmisleno odbačen od strane osiguravača.

Šesnaesto Poglavlje: Obavezno Osiguranje Član 16:101 Oblast primene (1) Strane mogu ugovoriti primenu PEUPO-a na ugovor o osiguranju zaključen u cilju ispunjenja obaveze na osiguranje koja je (a) propisana pravom Evropske Unije (EU), (b) propisana u Državi Članici EU, ili (c) propisana u državi koja nije članica EU u meri u kojoj je to dopušteno pravom te države. (2) Neće se smatrati da je ispunjena obaveza da se pribavi osiguranje osim ukoliko je ugovor o osiguranju u saglasnosti sa posebnim odredbama kojima je ta obaveza nametnuta.

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Peti Deo: Životno Osiguranje Sedamnaesto Poglavlje: Posebne Odredbe O Životnom Osiguranju Odeljak jedan: Treća lica Član 17:101 Osiguranje života trećeg lica Ugovor o osiguranju života lica koje nije ugovarač osiguranja smatraće se nepunovažnim osim ukoliko je to lice dalo svoj informisani pristanak u pisanoj formi sa potpisom. Bilo koja značajna naknadna izmena u ugovoru o osiguranju, uključujući promenu korisnika osiguranja, povećanje osigurane svote i promena u trajanju ugovora će biti bez dejstva bez takve saglasnosti. Isto se primenjuje u slučaju ustupanja ili uspostavljanje tereta na ugovoru o osiguranju ili potraživanju osigurane svote.

Član 17:102 Korisnik prava iz osiguranja (1) Ugovarač osiguranja može odrediti da jedno ili više lica budu korisnici prava iz osiguranja, a, osim ukoliko je određivanje neopozivo, i može da promeni ili opozove takvo imenovanje. Određivanje, promena ili opoziv, osim ukoliko je učinjeno u testamentu, mora biti dato u pisanoj formi i poslato osiguravaču (2) Pravo na određenje, promenu ili opoziv prestaje smrću ugovarača osiguranja ili nastupanjem osiguranog slučaja, u zavisnosi od toga šta prvo nastupi. (3) Ugovarač osiguranja ili njegovi naslednici, u zavisnosti od slučaja, će se smatrati korisnicima prava iz osiguranja ukoliko (a) ugovarač osiguranja nije odredio korisnika ili (b) određeni korisnik je opozvan, a drugi korisnici nisu imenovani ili (c) korisnik je preminuo pre nastupanja osiguranog slučaja, a drugi korisnici nisu imenovani. (4) Ukoliko je određeno dva ili više korisnika u slučaju opoziva bilo koga od njih ili ako bilo koji premine pre nastupanja osiguranog slučaja, iznos osigurane svote koji bi pripao tom korisniku ili korisnicima biće srazmerno raspodeljen ostalim korisnicima, osim ukoliko je ugovarač osiguranja drugačije odredio u skladu sa stavom 1. (5) Osim ako nije određeno drugačije odredbama o ništavosti, rušljivosti ili nepunovažnosti pravnih poslova koji su preduzeti na štetu poverilaca u stečajnom pravu, neće postojati nikakva prava u korist nesolventne zaostavštine ugovarača osiguranja u pogledu osigurane svote, konverzione ili otkupne vrednosti, pod uslovom da novac nije isplaćen ugovaraču osiguranja. (6) Smatraće se da je osiguravač, koji je isplatio osiguranu svotu licu koje je određeno u skladu sa stavom 1, ispunio svoju obavezu plaćanja, osim ukoliko je znao da lice u pitanju nema pravo na osiguranu svotu.

Član 17:103 Korisnik otkupne vrednosti (1) Bez obrira na odredbe člana 17:102, ugovarač osiguranja može takođe odrediti korisnika otkupne vrednosti, ukoliko je to slučaj, i može izmeniti ili opozvati takvo određenje. Određivanje, promena ili opoziv će biti učinjeni u pisanoj formi i poslati osiguravaču. (2) Ugovarač osiguranja će se smatrati korisnikom otkupne vrednosti ukoliko (a) korisnik otkupne vrednosti nije određen ili (b) je određenje korisnika otkupne vrednosti opozvano a drugi korisnici nisu određeni ili (c) je korisnik otkupne vrednosti preminuo, a drugi korisnici nisu određeni. (3) Član 17:102 stavovi 2 i 4 do 6 se primenjuju mutatis mutandis.

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Član 17:104 Ustupanje ugovora ili prava i uspostavljanje tereta (1) Kada je korisnik neopozivo određen, ustupanje ugovora i uspostavljanje tereta na ugovoru o osiguranju ili ustupanje ugovora i uspostavljanje tereta na pravu na osiguranu svotu od strane ugovarača osiguranja je bez dejstva, osim ukoliko je korisnik dao svoj pisani pristanak. (2) Ustupanje prava ili uspostavljanje tereta na pravu na osiguranu svotu od strane korisnika je bez dejstva osim ukoliko je ugovarač osiguranja dao svoj pisani pristanak.

Član 17:105 Odricanje od nasledstva Kada je korisnik naslednik osiguranog lica, sama činjenica da se odrekao nasledstva je bez uticaja na njegov položaj po ugovoru o osiguranju.

Odeljak dva: Predugovorna faza i trajanje ugovora Član 17:201 Predugovorna obaveza podnosioca predloga da pruži obaveštenje (1) Informacije koje je podnosilac zahteva dužan da pruži u skladu sa članom 2:101 stav 1 obuhvataju okolnosti koje je osigurano lice znalo ili trebalo da zna. (2) Po isteku roka od pet godina nakon zaključenja ugovora o osiguranju mogu se primeniti sankcije za nepoštovanje predugovorne obaveze obaveštavanja prema članovima 2:102, 2:103 i 2:105, ali ne i po članu 2:104.

Član 17:202 Predugovorna obaveza osiguravača da pruži obaveštenje (1) Osiguravač će obavestiti podnosioca predloga o tome da li ima pravo da učestvuje u dobiti. Prijem ove informacije mora biti potvrđen izričitom izjavom sadržanom u posebnom dokumentu različitom od formulara predloga. (2) Dokument koji osiguravač dostavlja u skladu sa članom 2:201 će sadržati sledeće informacije: (a) u pogledu osiguravača: posebno upućivanje na obavezno objavljivanje godišnjeg izveštaja o solventnosti i finansijskom stanju; (b) u pogledu ugovornih obaveza osiguravača: (i) objašnjenje svake koristi iz osiguranja i svake opcije, (ii) informacija o delu premije koji se odnosi na svaku korist, zajedno u pogledu glavnih i pratećih koristi, gde je to odgovarajuće; (iii) metod obračuna i raspodele bonusa, uključujći i navođenje merodavnog prava nadzora; (iv) indikaciju u pogledu otkupne i isplaćene (kapitalizovane) vrednosti u meri u kojoj su one garantovane; (v) za polise vezane za jedinice investicionih fondova: objašnjenje jedinica za koje su vezane koristi iz osiguranja, i indikacija u pogledu prirode primarnih sredstava (prihodujuće imovine); (vi) uopštena informacija u pogledu poreskog aranžmana koji se primenjuje na taj tip polise. (3) Pored toga, biće pružena određena informacija kako bi omogućila odgovarajuće razumevanje rizika koje ugovor nosi a koji je osiguravač preuzeo. (4) Ukoliko osiguravač navodi iznose mogućih koristi iz osiguranja koje su iznad i povrh isplata koje su garantovane ugovorom pružiće podnosiocu predloga model obračuna u kome se navodi moguća korist iz osiguanja po dospeću na osnovu aktuarskih principa za obračun premije sa tri različite kamatne stope. Ovo se ne primenjuje na ugovore o osiguranju koji obuhvataju rizike za koje osiguravač nije siguran da je odgovoran niti polise vezane za jedinice investicionih fondova.

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Osiguravač će jasno i na razumljiv način naznačiti ugovaraču osiguranja da model obračuna predstavlja samo model zasnovan na zamišljenim pretpostavkama i da ugovor ne garantuje moguće isplate.

Član 17:203 Period važenja prava na odustanak od ugovora (1) Kod ugovora o životnom osiguranju, period za odustanak od ugovora propisan u članu 2:303 stav 1 iznosi mesec dana po prijemu prihvata ili dostavljanja dokumenata iz člana 2:501 i člana 17:202, u zavisnosti od toga koji nastupi kasnije. (2) Pravo ugovarača osiguranja da odustane od ugovora u skladu sa članom 2:303 stav 1 prestaje po isteku godinu dana od zaključenja ugovora.

Član 17:204 Pravo ugovarača osiguranja na raskid ugovora (1) Ugovarač osiguranja ima pravo da raskine ugovor o životnom osiguranju koji nema konverzacionu ili otkupnu vrednost, pod uslovom da raskid ugovora ne proizvodi pravno dejstvo pre isteka godinu dana nakon zaključenja ugovora. Pravo na raskid ugovora pre isteka ugovorenog perioda se može isključiti kad je uplaćena jednokratna premija. Raskid se daje u pisanoj formi i proizvodi pravno dejstvo dve nedelje po prijemu obaveštenja o raskidu od strane osiguravača. (2) Ukoliko ugovor o životnom osiguranju ima konverzionu ili otkupnu vrednost, primenjuju se članovi 17:601 do 17:603.

Član 17:205 Pravo osiguravača na raskid ugovora Osiguravač ima pravo da raskine ugovor o životnom osiguranju u meri u kojoj je to dopušteno ovim Odeljkom.

Odeljak tri: Promene za vreme trajanja ugovora Član 17:301 Osiguravačeva obaveza da pruža informacije posle zaključenja ugovora (1) Kad je primenljivo, osiguravač će ugovaraču osiguranja predati godišnju pisanu izjavu o trenutnoj vrednosti bonusa iz polise. (2) Kao dodatak na zahtev iz člana 2:701, osiguravač će bez odlaganja obavestiti ugovarača osiguranja o bilo kojoj izmeni koja se odnosi na (a) uslove polise, bilo opšte ili posebne (a) u slučaju promene uslova polise ili izmene PEUPO-a: informacije navedene u članu 2:201 pod f i g kao i u članu 17:202 stav 2 pod b tačka i do v. (3) Član 17:202 stav 4 će se takođe primeniti kada su cifre koje se odnose na procenjeni iznos moguće koristi iz osiguranja date tokom trajanja ugovora. Kada je podatke o mogućem budućem razvoju učešća u dobiti dao osiguravač, bilo pre ili posle zaključenja ugovora, on će obavestiti ugovarača osiguranja o svakoj razlici između stvarnog razvoja i početnih podataka.

Član 17:302 Povećanje rizika U ugovoru o životnom osiguranju, klauzula koja određuje starost ili pogoršanje zdravlja kao povećanje rizika u smislu člana 4:201 će se smatrati zloupotrebom po članu 2:304.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Član 17:303 Prilagođavanje visine premija i koristi iz osiguranja (1) U ugovoru o životnom osigurnju, osiguravač će moći da izvrši prilagođavanje u skladu sa stavom 2 i 3 ovog člana samo za rizike za koje je siguran da će biti odgovoran. (2) Povećanje premije će biti dozvoljeno kada je postojala nepredvidiva i stalna izmena vezana za biometričke rizike koji su korišćeni kao osnova za obračun premije, kada je povećanje neophodno da bi se garantovao kontinuitet osiuravačeve sposobnosti plaćanja koristi iz osiguranja i kada je povećanje bilo dogovoreno sa nezavisnim poverenikom ili nadzornim organom. Ugovarač osiguranja će imati pravo da prebije povećanje premija sa odgovarajućim smanjenjem koristi iz osiguranja. (3) U slučaju isplaćene polise, osiguranik će imati pravo na smanjenje koristi iz osiguranja pod uslovima određenim u stavu 2. (4) Prilagođavanje u skladu sa stavom 2 i 3 neće biti dozvoljeno (a) ukoliko je postojala greška u obračunu premije i/ili koristi iz osiguranja koje je sposoban i pažljiv aktuar morao biti svestan, ili (b) kada se navedeni obračun ne primenjuje na sve ugovore uključujući one koji su zaključeni posle prilagođavanja. (5) Povećanje premija ili smanjenje koristi iz osiguranja će se primenjivati po proteku tri meseca od kada je osiguravač dostavio ugovaraču osiguranja pisano obaveštenje o povećanju premije ili smanjenju koristi iz osiguranja, o razlozima za to i o pravu ugovarača osiguranja da traži smanjenje koristi iz osiguranja.. (6) U ugovoru o životnom osiguranju koji pokriva rizik za koji je osiguravač siguran da će biti odgovoran, ugovarač osiguranja će moći da smanji premiju koja zbog nepredviđene i stalne izmene u vezi sa biometričkim rizicima koji su korišćeni kao osnova za obračun premije čine prvobitni iznos premije neodgovarajućim i iznad neopthodnag minimuma da bi se garantovao kontinuitet osiguravačeve sposobnosti plaćanja koristi iz osiguranja. Smanjenje treba da bude potvrđeno od strane nezavisnog poverenika ili nadzorog organa. (7) Prava regulisana ovim članom ne mogu se koristiti pre isteka pet godina od zaključenja ugovora.

Član 17:304 Izmene uslova (1) Klauzula koja omogućava osiguravaču da izmeni uslove ugovora, osim premije i koristi iz osiguranja, će biti nevažeća, osim ukoliko je izmena neophodna za (a) primenu izmenjenih odredbi zakona o nadzoru uključujući obavezujuće mere izdate od strane nadzornog organa, ili (b) primenu izmenjenih obaveznih odredbi merodavnog nacionalnog prava koje regulišu penzione planove zaposlenih, ili (c) primenu izmenjenih nacionalnih pravila koja nameću određene preduslove vezane za ugovor o životnom osiguranju da bi se on kvalifikovao za određeni poreski tretman ili državnu subvenciju, ili (d) zamenu klauzule ugovora u skladu sa članom 2:304 stav 2 druga rečenica. (2) Izmene će stupiti na snagu od početka trećeg meseca od kada je ugovarač osiguranja primio pisano obaveštenje o izmenama i razlozima za izmene. (3) Stav 1 ne isključuje primenu drugih preduslova za valjanost klauzule o izmenama uslova.

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Serbian: Principi Evropskog Ugovornog Prava Osiguranja (PEUPO)

Odeljak četiri: Odnos prema nacionalnim pravima Član 17:401 Penzioni planovi Ugovor o životnom osiguranju koji se odnosi na penzioni plan će biti predmet obavezujućih pravila merodavnog nacionalnog prava o penzionim planovima. PEUPO će se primenjivati samo u obimu u kojem je saglasan sa tim pravilima.

Član 17:402 Poreski tretman i državne subvencije PEUPO neće uticati na nacionalna pravila koja nameću određene zahteve vezane za ugovor o životnom osiguranju da bi se isti kvalifikovao za određeni poreski tretman ili za državne subvencije. U slučaju sukoba između tih zahteva merodavnog nacionalnog prava i odredbi PEUPO-a, od drugih se može odstupiti.

Odeljak pet: Osigurani slučaj Član 17:501 Osiguravačeva dužnost istrage i obaveštavanja (1) Osiguravač koji ima razloga da veruje da je nastupio osigurani slučaj, preduzeće razumne korake da se u to uveri. (2) Osiguravač koji zna da je nastupio osigurani slučaj, će uložiti najveći napor u datim okolnostima da otkrije identitet i adresu korisnika osiguranja i da ga obavesti o nastupanju osiguranog slučaja. Ova informacija će biti pružena najkasnije u roku od 30 dana od saznanja dentiteta i adrese korisnika osiguranja. (3) Ukoliko osiguravač prekrši stav 1 ili 2, zastarelost korisnikovog zahteva će biti prekinuta dok korisnik ne sazna za ovo svoje pravo.

Član 17:502 Samoubistvo (1) Ukoliko, u roku od jedne godine od zaključenja ugovora, osigurano lice izvrši samoubistvo, osiguravač će biti oslobođen odgovornosti da plati osiguranu svotu. U tom slučaju, osiguravač će platiti otkupnu vrednost i korist u skladu sa članom 17:602. (2) Stav 1 se neće primenjivati ukoliko (a) se osigurano lice u momentu samoubistva nalazi u takvom mentalnom stanju koje ga sprečava da slobodno odluči o svojim namerama, ili (b) je dokazano iznad svake razumne sumnje da, u vreme zaključenja ugovora, osigurano lice nije imalo nameru da izvrši samoubistvo.

Član 17:503 Namerno lišenje života osiguranog lica (1) Kada korisnik osiguranja namerno ubije osigurano lice, smatraće se da je njegovo imenovanje kao korisnika povučeno. (2) Prenos protraživanja osigurane svote neće biti važeći, ukoliko prenosilac namerno ubije osigurano lice. (3) Kada ugovarač osiguranja, koji je istovremeno i korisnik osiguranja, namerno ubije osigurano lice, neće se isplatiti osigurana svota. (4) Kada korisnik osiguranja ili ugovarač osiguranja opravdano ubije osigurano lice, kao u slučaju samoodbrane, neće se primeniti ovaj član.

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Odeljak šest: Konverzija i otkup Član 17:601 Konverzija ugovora (1) Član 5:103 se neće primeniti na ugovore o životnom osiguranju koji imaju konverzionu ili otkupnu vrednost. Takav ugovor će biti konvertovan u isplaćenu (kapitalizovanu) premiju osim ukoliko ugovarač osiguranja zahteva plaćanje otkupne vrednosti u roku od četiri nedelje od prijema informacije iz stava 2. (2) Osiguravač će obavestiti ugovarača osiguranja o konverzionoj vrednosti i otkupnoj vrednosti u roku od četiri nedelje od isteka roka iz člana 5:101 (b) ili člana 5:102 stav 1 (b) i zahtevati da ugovarač osiguranja izabere između konverzije i plaćanja otkupne vrednosti. (3) Zahtev za konverziju i plaćanje otkupne vrednosti se podnosi u pisanoj formi.

Član 17:602 Otkup ugovora (1) Ugovarač osiguranja može u bilo koje vreme podneti osiguravaču pisani zahtev da plati, delimično ili u potpunosti, otkupnu vrednost koja se odnosi na polisu, pod uslovom da to ne stupi na snagu pre isteka godinu dana od zaključenja ugovora. Ugovor će u tom smislu biti izmenjen ili raskinut. (2) Osim u slučaju primene člana 17:601, ukoliko je ugovarač raskinuo, otkazao ili poništio ugovor o životnom osiguranju koji je povezan sa otkupnom vrednošču, on je obavezan da plati otkupnu vrednost, čak i u slučaju člana 2:104. (3) Osiguravač će obavestiti ugovarača osiguranja, po zahtevu ali u svakom slučaju jednom godišnje, o trenutnom iznosu otkupne vrednosti i do kog obima je ona garantovana. (4) Udeo u profitu na koji ugovarač osiguranja ima pravo, će biti plaćen preko iznosa otkupne vrednosti, osim ukoliko taj udeo već nije bio uzet u obzir prilikom obračuna otkupne vrednosti. (5) Iznosi koji se duguju u skladu sa ovim članom će biti plaćeni ne kasnije od dva meseca od kada osiguravač primi zahtev ugovarača osiguranja.

Član 17:603 Konverziona vrednost; Otkupna vrednost (1) Ugovor o osiguranju će regulisati način obračuna konverzione vrednosti i / ili otkupne vrednosti u skladu sa zakonom domaće Zemlje Članice EU osiguravača. Taj način obračuna otkupne i/ili konverzione vrednosti će biti u skladu sa ustanovljenim aktuarskim prinicipima i sa stavom 2. (2) Kada osiguravač oduzima troškove zaključenja ugovora, to će činiti u jednakim iznosima i za period ne manji od pet godina. (3) Osiguravač je ovlašćen da oduzme odgovarajući iznos, koji se računa u skladu sa ustanovljenim aktuarskim principima, da pokrije troškove koji se odnose na plaćanje otkupne vrednosti, osim ukoliko obračun več uključuje takvo smanjenje.

Šesti Deo: Kolektivno Osiguranje Osamnaesto Poglavlje: Posebne Odredbe Za Kolektivno Tivno Osiguranje Odeljak jedan: Uopšteno o kolektivnom osiguranju Član 18:101 Primena PEUPO se primenjuje na ugovore o kolektivnom osiguranju ukoliko su organizator grupe (kolektiva) i osiguravač napravili ugovor u skladu sa članom 1:102. Kolektivno osiguranje je ili dopunsko osiguranje i podleže Odeljku 2 ovog Poglavlja ili je izborno osiguranje koje podleže Odeljku 3 ovog Poglavlja.

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Serbian: Principi Evropskog Ugovornog Prava Osiguranja (PEUPO)

Član 18:102 Opšta obaveza organizatora grupe da pruži zaštitu (1) Prilikom pregovora i zaključenja ugovora o kolektivnom osiguranju, organizator grupe će postupati saveno i pošteno, uzimajući u obzir opravdane interese člana kolektiva. (2) Organizator grupe će proslediti članovima kolektiva sva relevantna obaveštenja izdata od strane osiguravača i obavestiti ih o svakoj izmeni ugovora.

Odeljak dva: Dopunska kolektivna osiguranja Član 18:201 Primena PEUPO-a PEUPO će se prema potrebi primenjivati na dopunska kolektivna osiguranja mutatis mutandis (sa neophodnim izmenama).

Član 18:202 Obaveze informisanja (1) Kada se član priduži kolektivu, organizator grupe će ga bez odlaganja obavestiti o (a) postojanju ugovora o osiguranju (b) obimu pokrića (c) merama predostrožnosti ili drugim uslovima za održavanja pokrića, i (d) postupku ostvarivanja zahteva iz osiguranja. (2) Na organizatoru grupe je teret dokazivanja da je član kolektiva primio informaciju iz stava 1.

Član 18:203 Raskid od strane osiguravača (1) Za potrebe člana 2:604, smatraće se da je korišćenje prava osiguravača da raskine ugovor razumno ukoliko je ograničeno na isključenje iz pokrića člana kolektiva kome se desio osigurani slučaj. (2) Za potrebe člana 4:102 i člana 4:203 stav 1, korišćenje prava osiguravača da raskine ugovor će imati snagu ako isključi one članove kolektiva koji nisu preduzeli tražene mere predostrožnosti ili čiji je rizik osiguranja povećan. (3) Za potrebe člana 12:102, raskid ugovora o osiguranju će imati samo efekat isključenja člana kolektiva koji je preneo pravo na osiguranoj imovini iz pokrića.

Član 18:204 Pravo na produženje pokrića – kolektivna životna osiguranja (1) Ukoliko se raskine ugovor o dopunskom kolektivnom životnom osiguranju ili ukoliko član napusti kolektiv, pokriće prestaje posle tri meseca ili sa istekom ugovora o kolektivnom životnom osiguranju, koje prvo nastupi. Kada se to desi, član kolektiva će imati pravo na jednako pokriće u novom pojedinačnom ugovoru sa tim osiguravačem zaključenim bez nove procene rizika. (2) Organizator grupe će bez odlaganja pismeno obavestiti članove kolektiva o (a) predstojećem raskidu njegovog pokrića iz ugovora o kolektivnom životnom osiguranju (b) njegovim pravima iz stava 1 i (c) kako da ostvari ta prava. (3) Ukoliko je član kolektiva nagovestio svoju nameru da ostvari prava iz člana 18:204 stav 1, ugovor između osiguravača i člana kolektiva će se nastaviti kao pojedinačni ugovor o osiguranju po premiji obračunatoj po osnovu za pojedinačnu polisu u to vreme bez uzimanja u obzir sadašnjeg stanja zdravlja ili starosti člana grupe.

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Odeljak tri: Izborna kolektivna osiguranja Član 18:301 Izborna kolektivna osiguranja: uopšteno (1) Izborno kolektivno osiguranje se smatra kombinacijom okvirnog ugovora između osiguravača i organizatora grupe i pojedinačnog ugovora o osiguranju zaključenog unutar tog okvira između osiguravača i članova kolektiva. (2) PEUPO se primenjuje na pojedinačne ugovore osiguranja kada su se organizator grupe i osiguravač saglasili o njihovoj primeni ali, osim u slučaju članova 18:101 i 18:102, PEUPO se neprimenjuju na okvirni ugovor.

Član 18:302 Izmene uslova Izmene uslova okvirnog ugovora će uticati na pojedinačni ugovor osiguranja ukoliko su izvršene u skladu sa zahtevima iz članova 2:603, 17:303 i 17:304, koji bi se primenili u toj prilici.

Član 18:303 Produženje pokrića Raskid okvirnog ugovora ili prestanak članstva pojedinog člana kolektiva neće imati uticaja na ugovor o osiguranju zaključen između osiguravača i člana kolektiva.

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Slovak version by Imrich Fekete and Hana Hlavatovičová

Princípy európskeho práva poistnej zmluvy (PEPPZ) Prvá časť: Spoločné ustanovenia pre všetky poistné zmluvy zahrnuté v princípoch európskeho práva poistnej zmluvy (PEPPZ) Prvá kapitola: Úvodné ustanovenia Prvý oddiel: Použitie PEPPZ Druhý oddiel: Všeobecné pravidlá Tretí oddiel: Ochrana práva

Druhá kapitola: Vznik a doba trvania poistnej zmluvy Prvý oddiel: Predzmluvná informačná povinnosť záujemcu o poistenie Druhý oddiel: Povinnosti poisťovateľa pred uzavretím poistnej zmluvy Tretí oddiel: Uzavretie poistnej zmluvy Štvrtý oddiel: Spätné a predbežné poistné krytie Piaty oddiel: Poistka Šiesty oddiel: Doba trvania poistnej zmluvy Siedmy oddiel: Informačná povinnosť poisťovateľa po uzavretí poistnej zmluvy

Tretia kapitola: Poisťovací sprostredkovatelia Štvrtá kapitola: Poistné riziko Prvý oddiel: Preventívne opatrenia Druhý oddiel: Zvýšenie poistného rizika Tretí oddiel: Zníženie poistného rizika

Piata kapitola: Poistné Šiesta kapitola: Poistná udalosť Siedma kapitola: Premlčanie Druhá časť: Spoločné ustanovenia pre škodové poistenie Ôsma kapitola: Poistná suma a poistná hodnota Deviata kapitola: Právo na náhradu škody

Desiata kapitola: Právo na postih Jedenásta kapitola: Poistenie v prospech tretej osoby Dvanásta kapitola: Poistné riziko Tretia časť: Spoločné ustanovenia pre poistenia na pevnú sumu Trinásta kapitola: Prípustnosť Štvrtá časť: Poistenie zodpovednosti Štrnásta kapitola: Všeobecné poistenie zodpovednosti Pätnásta kapitola: Priame nároky a priame žaloby Šesťnásta kapitola: Povinné poistenie Piata časť: Životné poistenie Sedemnásta kapitola: Osobitné ustanovenia pre životné poistenie Prvý oddiel: Tretie osoby Druhý oddiel: Vznik a doba trvania poistnej zmluvy Tretí oddiel: Zmeny počas doby trvania poistnej zmluvy Štvrtý oddiel: Vzťah k národnému právu Piaty oddiel: Poistná udalosť Šiesty oddiel: Zmena a odkup

Šiesta časť: Skupinové poistenie Osemnásta kapitola: Osobitné ustanovenia pre skupinové poistenie Prvý oddiel: Skupinové poistenie všeobecne Druhý oddiel: Doplnkové skupinové poistenie Tretí oddiel: Voliteľné skupinové poistenie

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Prvá časť: Spoločné ustanovenia pre všetky poistné zmluvy zahrnuté v princípoch európskeho práva poistnej zmluvy (PEPPZ) Prvá kapitola: Úvodné ustanovenia Prvý oddiel: Použitie PEPPZ Článok 1:101 Hmotnoprávny rozsah použitia (1) PEPPZ sa vzťahujú na súkromné poistenie všeobecne, vrátane vzájomného poistenia. (2) PEPPZ sa nevzťahujú na zaistenie.

Článok 1:102 Voliteľné použitie PEPPZ sa použijú v prípade, ak sa zmluvné strany dohodli, nehľadiac na akékoľvek obmedzenia výberu rozhodného práva v súlade s medzinárodným právom súkromným, že ich poistná zmluva sa bude nimi riadiť. S ohľadom na článok 1:103 sa PEPPZ použijú ako celok a nepovoľuje sa výluka konkrétnych ustanovení.

Článok 1:103 Kogentný charakter (1) Články 1:102 druhá veta, 2:104, 2:304, 13:101, 17:101 a 17:503 sú kogentné. Ostatné články sú kogentné, len ak sa týkajú právnych následkov podvodného správania. (2) Poistná zmluva sa môže odchýliť od všetkých ďalších ustanovení, ak taká odchýlka nie je v neprospech poistníka, poisteného alebo oprávneného. (3) Odchýlku v zmysle odseku 2 možno povoliť v prospech ktorejkoľvek zmluvnej strany, ktorá je účastníkom poistných zmlúv pokrývajúcich veľké riziká v zmysle článku 13 ods. 27 Smernice 2009/138/ES. V skupinovom poistení sa môže odchýlka týkať iba jednotlivých poistených, ktorí spĺňajú osobitné charakteristické vlastnosti uvedené v článku 13 ods. 27 písm. b) alebo c) Smernice 2009/138/ES, ak sa na nich tento článok vzťahuje.

Článok 1:104 Výklad PEPPZ sa vykladajú v zmysle svojho znenia, kontextu, účelu a vo svetle právnej komparácie. Ohľad by sa mal brať najmä na potrebu podpory dobrej viery a poctivého konania v poisťovacom sektore, istotu v zmluvných vzťahoch, jednotné použitie a primeranú ochranu poistníkov.

Článok 1:105 Národné právo a PEPPZ (1) Použitie národného práva, či už s cieľom obmedziť alebo doplniť PEPPZ, nie je prípustné. Toto pravidlo sa nevzťahuje na kogentné ustanovenia národných právnych predpisov, ktoré sa týkajú konkrétnych poistných odvetví, na ktoré sa osobitné pravidlá obsiahnuté v PEPPZ v nevzťahujú. (2) Otázky vyplývajúce z poistnej zmluvy, ktoré nie sú výslovne upravené v rámci PEPPZ, sa budú riešiť v súlade s Princípmi európskeho zmluvného práva (PEZP) a v prípade, ak ich niet, v súlade so spoločnými všeobecnými právnymi zásadami právnych poriadkov členských štátov.

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Slovak: Princípy európskeho práva poistnej zmluvy (PEPPZ)

Druhý oddiel: Všeobecné pravidlá Článok 1:201 Poistná zmluva (1) „Poistná zmluva“ znamená zmluvu, na základe ktorej jedna zmluvná strana, poisťovateľ, sľubuje druhej zmluvnej strane, poistníkovi poskytnúť plnenie z poistnej zmluvy v prípade vzniku poistnej udalosti výmenou za úhradu poistného; (2) „Poistná udalosť“ znamená uskutočnenie poistného rizika vymedzeného v poistnej zmluve; (3) „Škodové poistenie“ znamená poistenie, na základe ktorého je poisťovateľ povinný poskytnúť náhradu škody, ktorá vznikla v dôsledku poistnej udalosti; (4) „Poistenie na pevnú sumu“ znamená poistenie, na základe ktorého sa poisťovateľ zaväzuje vyplatiť pevnú poistnú sumu pri vzniku poistnej udalosti. (5) „Poistenie zodpovednosti“ znamená poistenie, na základe ktorého sa riziko vzťahuje na právnu zodpovednosť poisteného voči poškodenému. (6) Životné poistenie je poistenie, pri ktorom povinnosť poisťovateľa alebo platenie poistného závisí od poistnej udalosti, ktorej definícia sa výlučne vzťahuje na smrť alebo dožitie osoby ohrozenej rizikom. (7) Zmluvy pre skupinové poistenie sú zmluvy medzi poisťovateľom a organizátorom v prospech členov skupiny, ktorí sú vzájomne spätí s organizátorom. Zmluva pre skupinové poistenie môže takisto zastrešovať rodinných príslušníkov členov skupiny. (8) „Doplnkové skupinové poistenie“ znamená skupinové poistenie, na základe ktorého sú členovia skupiny automaticky poistení v dôsledku príslušnosti ku skupine a bez možnosti odmietnuť poistenie. (9) „Voliteľné skupinové poistenie“ znamená skupinové poistenie, na základe ktorého sú členovia skupiny poistení v dôsledku osobnej žiadosti alebo z dôvodu neodmietnutia poistenia.

Článok 1:202 Ďalšie definície (1) „Poistený“ znamená osobu, ktorej záujem je chránený proti škode na základe poistenia proti škode; (2) „Oprávnený“ znamená osobu, v prospech ktorej je splatné poistné plnenie na základe poistenia na pevnú sumu; (3) „Osoba ohrozená rizikom“ znamená osobu, na ktorej život, zdravie, telesnú integritu alebo osobný stav je poistenie uzavreté; (4) „Obeť“ v prípade poistenia zodpovednosti znamená osobu, za smrť, ujmu alebo škodu ktorej zodpovedá poistený; (5) „Poisťovací agent“ znamená poisťovacieho sprostredkovateľa zamestnaného u poisťovateľa za účelom propagácie, predaja alebo správy poistných zmlúv; (6) „Poistné“ znamená platbu, ktorú uhradí poistník poisťovateľovi výmenou za poskytnutie poistnej ochrany; (7) „Doba trvania poistnej zmluvy“ znamená obdobie zmluvného záväzku začínajúce uzavretím poistnej zmluvy a končiace uplynutím dohodnutej doby trvania; (8) „Poistné obdobie“ znamená obdobie, za ktoré sa platí poistné v súlade s dohodou zmluvných strán; (9) „Doba ručenia“ znamená dobu poistného krytia. (10) „Povinné poistenie“ znamená poistenie, ktoré je uzavreté v dôsledku povinnosti sa poistiť, ktorá je uložená zákonom alebo nariadeniami.

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Článok 1:203 Jazyk a výklad dokumentov (1) Akékoľvek dokumenty, ktoré poskytne poisťovateľ, musia byť jasné a zrozumiteľné a vyhotovené v jazyku, v ktorom je poistná zmluva dojednaná. (2) V prípade pochybností o význame znenia akéhokoľvek dokumentu alebo informácií, ktoré poskytol poisťovateľ poistníkovi, poistenému alebo oprávnenému, platí primerane výklad pre nich priaznivejší.

Článok 1:204 Doručenie dokumentov: Dôkaz Dôkazné bremeno o tom, že poistníkovi boli doručené dokumenty, ktoré má poisťovateľ poskytnúť, zaťažuje poisťovateľa.

Článok 1:205 Forma oznámenia Platnosť oznámenia zo strany záujemcu o poistenie, poistníka, poisteného alebo oprávneného vo vzťahu k poistnej zmluve nie je, s ohľadom na špecifické pravidlá obsiahnuté v PEPPZ, podmienená osobitnou formou.

Článok 1:206 Predpokladaná vedomosť Ak poistník, poistený alebo oprávnený uloží akejkoľvek osobe povinnosti nevyhnutné pre uzavretie poistnej zmluvy alebo plnenia z nej, má sa za to, že príslušná vedomosť, ktorú taká osoba má alebo by mala mať pri plnení svojich povinností, zodpovedá, podľa okolností konkrétneho prípadu, vedomosti poistníka, poisteného alebo oprávneného.

Článok 1:207 Rovnaké zaobchádzanie (1) Pohlavie, tehotenstvo, materstvo, národnosť a rasový alebo etnický pôvod nie sú kritériá, ktoré môžu mať za následok rozdiely vo výške poistného a poistných plnení. (2) Zmluvné podmienky, ktoré sú v rozpore s odsekom 1, vrátane podmienok týkajúcich sa poistného, nie sú pre poistníka alebo poisteného záväzné. Vzhľadom na odsek 3 je poistná zmluva pre obe zmluvné strany naďalej záväzná na základe nediskriminačných podmienok. (3) V prípade porušenia odseku 1 je poistník oprávnený vypovedať poistnú zmluvu. Poisťovateľovi sa doručí písomná výpoveď poistnej zmluvy do dvoch mesiacov po tom, čo sa poistník o takom porušení dozvedel.

Článok 1:208 Genetické testy (1) Poisťovateľ nemôže žiadať záujemcu o poistenie, poistníka alebo osobu ohrozenú rizikom o podstúpenie genetického testu alebo poskytnutie výsledkov takého testu, ani nemôže použiť túto informáciu za účelom ohodnotenia poistných rizík. (2) Odsek 1 sa nevzťahuje na poistenie osôb v prípade, ak je osoba ohrozená rizikom vo veku 18 rokov alebo viac a poistná suma na túto osobu prevyšuje 300,000 EUR, alebo plnenie vyplatené na základe poistky prevyšuje ročne 30,000 EUR.

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Tretí oddiel: Ochrana práva Článok 1:301 Opatrenia súdu (1) Oprávnený subjekt definovaný v odseku 2 je oprávnený obrátiť sa na príslušný národný súd alebo orgán so žiadosťou o vydanie opatrenia, ktorým sa zakáže alebo prikáže upustenie od porušovania PEPPZ, ak je to v súlade s článkom 1:102. (2) Oprávnený subjekt znamená ktorýkoľvek orgán alebo organizáciu uvedenú na zozname vypracovanom Európskou komisiou podľa článku 4 smernice 2009/22/ES Európskeho parlamentu a Rady zo dňa 23. aprila 2009 o súdnych opatreniach pre ochranu záujmov spotrebiteľov v platnom znení.

Článok 1:302 Mimosúdne vybavenia sťažností a nápravné opatrenia Použitie PEPPZ nebráni prístupu k mimosúdnemu vybaveniu sťažností a nápravným opatreniam, ktoré sú inak dostupné poistníkovi, poistenému alebo oprávnenému.

Druhá kapitola: Vznik a doba trvania poistnej zmluvy Prvý oddiel: Predzmluvná informačná povinnosť záujemcu o poistenie Článok 2:101 Informačná povinnosť (1) Záujemca o poistenie je pri uzavieraní poistnej zmluvy povinný informovať poisťovateľa o okolnostiach, o ktorých vie alebo by mal vedieť, a ktoré sú predmetom jasných a presných otázok, ktoré mu predkladá poisťovateľ. (2) Okolnosti uvedené v odseku 1 zahŕňajú také okolnosti, o ktorých osoba, ktorá má byť poistená, vedela alebo mala vedieť.

Článok 2:102 Porušenie povinnosti (1) Ak poistník poruší informačnú povinnosť podľa článku 2:101, poisťovateľ je oprávnený s ohľadom na odseky 2 až 5, požadovať primeranú zmenu poistnej zmluvy alebo poistnú zmluvu vypovedať. Poisťovateľ za týmto účelom zašle poistníkovi do jedného mesiaca po tom, čo sa o porušení článku 2:101 dozvedel alebo sa mu táto skutočnosť stala zrejmou, písomné oznámenie o svojom úmysle spolu s informáciami o právnych následkoch svojho rozhodnutia. (2) Ak poisťovateľ navrhne primeranú zmenu zmluvy, poistná zmluva naďalej trvá podľa návrhu na zmenu zmluvy, okrem prípadu, že poistník návrh do jedného mesiaca po doručení oznámenia uvedeného v odseku 1 neodmietne. Poisťovateľ je v takom prípade oprávnený poistnú zmluvu vypovedať do jedného mesiaca po tom, čo mu poistník doručil písomné oznámenie o odmietnutí. (3) Poisťovateľ nie je oprávnený poistnú zmluvu vypovedať, ak poistník porušil článok 2:101 bez svojho zavinenia, okrem prípadu, ak poisťovateľ preukáže, že v prípade vedomosti o dotknutej informácii by poistnú zmluvu vôbec neuzavrel. (4) Účinnosť výpovede nastane jeden mesiac po tom, čo bolo poistníkovi doručené písomné oznámenie uvedené v odseku 1. Zmena poistnej zmluvy nastane v súlade s dohodou zmluvných strán. (5) Ak poistná udalosť bola spôsobená takými okolnosťami poistného rizika, ktoré sa týkajú neposkytnutia informácií poistníkom z nedbanlivosti alebo poskytnutia nepravdivých informácií, pričom poistná udalosť vznikne ešte pred zánikom alebo zmenou poistnej zmluvy, poisťovateľ

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sa zbavuje svojej povinnosti plniť, ak by v prípade vedomosti o takej informácii poistnú zmluvu vôbec neuzavrel. Ak by však poisťovateľ poistnú zmluvu napriek tomu uzavrel, ale s vyšším poistným alebo za iných podmienok, plnenie z poistnej zmluvy sa poskytne v pomernej výške alebo v súlade s takými podmienkami.

Článok 2:103 Výnimky Právne následky uvedené v článku 2:102 nemožno použiť vo vzťahu k (a) otázke, na ktorú nebola poskytnutá odpoveď, alebo informácii, ktorá bola zrejme neúplná alebo nesprávna, (b) informáciám, ktoré mali byť sprístupnené, alebo informáciám poskytnutým nepresne, ktoré neboli pre odôvodnené rozhodnutie poisťovateľa pri uzavieraní poistnej zmluvy alebo uzavretie poistnej zmluvy na základe dohodnutých podmienok vôbec podstatné, (c) informácii, o ktorej poisťovateľ vyvolal u poistníka dojem, že túto informáciu nie je povinný poskytnúť, alebo (d) informácii, o ktorej poisťovateľ vedel, alebo mal vedieť.

Článok 2:104 Podvodné porušenie povinnosti Poisťovateľ sa zbavuje povinnosti plniť z poistnej zmluvy a zachováva si právo na poistné bez dotknutia právnych následkov uvedených v článku 2:102, ak k uzavretiu poistnej zmluvy došlo v dôsledku podvodného porušenia článku 2:101 zo strany poistníka. Poisťovateľ o tejto skutočnosti písomne informuje poistníka do dvoch mesiacov po tom, čo sa o takom podvode dozvedel.

Článok 2:105 Dodatočné informácie Články 2:102-2:104 možno použiť taktiež vo vzťahu k akýmkoľvek informáciám, ktoré poistník poskytol v dobe uzavretia poistnej zmluvy okrem informácií uvedených v článku 2:101.

Článok 2:106 Genetické informácie Tento oddiel nemožno použiť vo vzťahu k výsledkom genetických testov, ktoré podliehajú článku 1:208 ods. 1.

Druhý oddiel: Povinnosti poisťovateľa pred uzavretím poistnej zmluvy Článok 2:201 Poskytnutie dokumentov pred uzavretím poistnej zmluvy (1) Poisťovateľ poskytne záujemcovi o poistenie kópiu navrhnutých zmluvných podmienok spolu s dokumentom, ktorý obsahuje nasledujúce informácie, ak sú tieto podstatné: (a) mená a adresy zmluvných strán, obzvlášť ústredia a právnej formy poisťovateľa a v prípade potreby pobočky uzatvárajúcej poistnú zmluvu alebo poskytujúcej poistné krytie, (b) meno a adresu poisteného, oprávneného a osoby ohrozenej rizikom, (c) meno a adresu poisťovacieho agenta, (d) predmet poistenia a riziká kryté poistením, (e) poistnú sumu a akúkoľvek spoluúčasť, (f) výšku poistného a spôsob jej výpočtu, (g) splatnosť poistného, miesto a spôsob úhrady, (h) doba trvania poistnej zmluvy vrátane spôsobu jej vypovedania a doba ručenia, (i) právo na odvolanie návrhu na uzavretie poistenia alebo právo odstúpenia od poistnej zmluvy

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v súlade s článkom 2:303 v prípade neživotného poistenia a v súlade s článkom 17:203 v prípade životného poistenia, (j) poistná zmluva podlieha PEPPZ, (k) existencia mimosúdneho vybavenia sťažností a nápravných opatrení, ktoré sú k dispozícii záujemcu o poistenie a spôsob ich uplatnenia, (l) existencia garančných fondov alebo iných kompenzačných schém. (2) Tieto informácie sa záujemcovi o poistenie poskytnú, ak je to možné, v dostatočnom predstihu, aby tento mohol zvážiť, či poistnú zmluvu uzavrie, alebo nie. (3) Ak záujemca o poistenie požiada o poistné krytie na základe návrhu a/alebo dotazníka poskytnutého poisťovateľom, poisťovateľ je povinný poskytnúť záujemcovi o poistenie kópiu vyplnených dokumentov.

Článok 2:202 Povinnosť upozorniť na nezrovnalosti v poistnom krytí (1) Poisťovateľ pri uzavieraní poistnej zmluvy upozorní záujemcu o poistenie na akékoľvek nezrovnalosti medzi ponúkaným poistným krytím a požiadavkami záujemcu o poistenie, o ktorých poisťovateľ vie alebo mal by vedieť, pričom vezme do úvahy okolnosti a spôsob uzavretia poistnej zmluvy, a najmä skutočnosť, či záujemcovi o poistenie napomáhal nezávislý sprostredkovateľ. (2) V prípade porušenia odseku 1 (a) poisťovateľ odškodní poistníka za akékoľvek škody vzniknuté porušením jeho informačnej povinnosti, okrem prípadu, ak poisťovateľovi nemožno pripočítať zavinenie, a (b) poistník je oprávnený poistnú zmluvu vypovedať v písomnej forme do dvoch mesiacov po tom, čo sa o takom porušení dozvedel.

Článok 2:203 Povinnosť upozorniť na začiatok poistného krytia Ak sa záujemca o poistenie oprávnene, avšak v omyle domnieva, že poistné krytie začína v dobe podania návrhu na uzavretie poistenia, a poisťovateľ o tom vie alebo mal by vedieť, poisťovateľ okamžite upozorní záujemcu o poistenie, že poistné krytie nie je platné, ak sa neuzavrie poistná zmluva, prípadne sa nezaplatí prvé poistné, okrem prípadu, že poisťovateľ poskytne predbežné poistné krytie. Ak poisťovateľ poruší túto povinnosť, zodpovedá podľa článku 2:202 ods. 2 písm. a).

Tretí oddiel: Uzavretie poistnej zmluvy Článok 2:301 Spôsob uzavretia poistnej zmluvy Poistná zmluva nevyžaduje z hľadiska jej uzavretia alebo preukázania písomnú formu a nemusí zodpovedať ani iným formálnym požiadavkám. Existencia poistnej zmluvy môže byť preukázaná akýmikoľvek prostriedkami vrátane ústnej svedeckej výpovede.

Článok 2:302 Odvolanie návrhu na uzavretie poistenia Záujemca o poistenie môže návrh na uzavretie poistenia odvolať v prípade, ak bolo jeho odvolanie doručené poisťovateľovi ešte predtým, ako mu poisťovateľ doručil prijatie návrhu.

Článok 2:303 Lehota na rozmyslenie (1) Poistník má právo od poistnej zmluvy odstúpiť zaslaním písomného vyhlásenia do dvoch týždňov od prijatia návrhu na uzavretie zmluvy alebo doručenia dokumentov uvedených v článku 2:501, podľa toho, čo nastane neskôr.

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(2) Poistník nie je oprávnený od poistnej zmluvy odstúpiť v prípade, ak: (a) doba trvania poistnej zmluvy je kratšia ako jeden mesiac, (b) poistná zmluva bola predĺžená podľa článku 2:602, (c) v prípade predbežného poistenia, poistenia zodpovednosti za škody alebo skupinového poistenia.

Článok 2:304 Neprijateľné zmluvné podmienky (1) Zmluvná podmienka, ktorá nebola individuálne dojednaná, nie je pre poistníka, poisteného alebo oprávneného záväzná, ak v rozpore s požiadavkami dobrej viery a poctivého konania spôsobí v jeho neprospech značnú nerovnováhu v jeho právach a povinnostiach vyplývajúcich z poistnej zmluvy, pričom sa vezme do úvahy charakter poistnej zmluvy, všetky ostatné zmluvné podmienky a okolnosti, na základe ktorých bola poistná zmluva uzavretá. (2) Poistná zmluva je pre zmluvné strany naďalej záväzná, ak môže obstáť i bez neprijateľnej zmluvnej podmienky. Ak nie, neprijateľná zmluvná podmienka sa nahradí takou zmluvnou podmienkou, na ktorej by sa rozumne uvažujúce zmluvné strany dohodli, ak by o takej podmienke vedeli. (3) Tento článok sa vzťahuje na zmluvné podmienky, ktoré obmedzujú alebo menia poistné krytie, avšak nevzťahuje sa na (a) primeranosť výšky poistného krytia a poistného, ani (b) podmienky stanovujúce nevyhnutný popis poskytnutého poistného krytia alebo dojednaného poistného, ak sú zmluvné podmienky jasné a zrozumiteľné. (4) Zmluvná podmienka sa vždy považuje za podmienku, ktorá nebola individuálne dojednaná v prípade, ak bola vypracovaná v predstihu a poistník nebol preto schopný ovplyvniť podstatu tejto zmluvnej podmienky, najmä v súvislosti s predbežne formulovanou štandardnou poistnou zmluvou. Skutočnosť, že určité aspekty zmluvnej podmienky alebo jedna určitá zmluvná podmienka boli individuálne dojednané, nevylučuje použitie tohto článku na zostávajúcu časť poistnej zmluvy, ak celkové hodnotenie poistnej zmluvy dokazuje, že i napriek tomu ide o predbežne formulovanú štandardnú poistnú zmluvu. Ak poisťovateľ tvrdí, že štandardná zmluvná podmienka bola individuálne dojednaná, znáša o tom dôkazné bremeno.

Štvrtý oddiel: Spätné a predbežné poistné krytie Článok 2:401 Spätné poistné krytie (1) Ak v prípade poistného krytia poskytnutého na dobu, ktorá uplynie pred uzavretím poistnej zmluvy (spätného poistného krytia), poisťovateľ v čase uzavretia poistnej zmluvy vedel o tom, že nedošlo k žiadnej poistnej udalosti, je poistník povinný zaplatiť poistné len za dobu, ktorá uplynie od okamihu uzavretia poistnej zmluvy. (2) Ak v prípade spätného poistného krytia poistník v dobe uzavretia poistnej zmluvy vedel, že došlo k poistnej udalosti, poisťovateľ s ohľadom na článok 2:104 poskytne poistné krytie len na dobu, ktorá uplynula od okamihu uzavretia poistnej zmluvy.

Článok 2:402 Predbežné poistné krytie (1) Pri uzavieraní zmluvy o predbežnom poistení vydá poisťovateľ potvrdenie o poistnom krytí, ktoré obsahuje informácie uvedené v článku 2:501 písm. a), b), c), d), e) a h), ak sú tieto podstatné. (2) Články 2:201-2:203 a, s ohľadom na vyššie uvedený odsek 1, článok 2:501, sa nevzťahujú na predbežné poistné krytie.

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Článok 2:403 Doba trvania predbežného poistného krytia (1) Ak sa záujemcovi o poistenie poskytne predbežné poistné krytie, toto poistné krytie sa neskončí skôr ako v dobe, kedy má podľa dohody začať poistné krytie na základe poistnej zmluvy, alebo, podľa okolností konkrétneho prípadu, v dobe, kedy poisťovateľ doručil záujemcovi o poistenie oznámenie o definitívnom zamietnutí návrhu na uzavretie poistnej zmluvy. (2) Ak sa predbežné poistné krytie poskytne osobe, ktorá návrh na uzavretie poistnej zmluvy nepodala u toho istého poisťovateľa, poistné krytie môže byť poskytnuté na kratšie obdobie, ako je uvedené v článku 2:601 ods. 1. Také poistné krytie môže ktorákoľvek zmluvná strana vypovedať v 2-týždňovej výpovednej lehote.

Piaty oddiel: Poistka Článok 2:501 Obsah poistky Pri uzavretí poistnej zmluvy je poisťovateľ povinný vystaviť poistku a odovzdať všeobecné zmluvné podmienky, ak tieto nie sú súčasťou poistky. Poistka musí obsahovať nasledovné informácie, ak sú tieto podstatné: (a) mená a adresy zmluvných strán, obzvlášť ústredia a právnej formy poisťovateľa a v prípade potreby pobočky uzatvárajúcej poistnú zmluvu alebo poskytujúcej poistné krytie, (b) meno a adresu poisteného a v prípade životného poistenia oprávneného a osoby ohrozenej rizikom, (c) meno a adresu sprostredkovateľa, (d) predmet poistenia a riziká kryté poistením, (e) poistnú sumu a akúkoľvek spoluúčasť, (f) výšku poistného alebo spôsob jej výpočtu, (g) splatnosť poistného, miesto a spôsob úhrady, (h) doba trvania poistnej zmluvy vrátane spôsobu jej vypovedania a doba ručenia, (i) právo na odvolanie návrhu na uzavretie poistenia alebo právo odstúpenia od poistnej zmluvy v súlade s článkom 2:303 v prípade neživotného poistenia a v súlade s článkom 17:203 v prípade životného poistenia, (j) poistná zmluva podlieha PEPPZ, (k) existencia mimosúdneho vybavenia sťažností a nápravných opatrení, ktoré sú k dispozícii záujemcu o poistenie a spôsob ich uplatnenia, (l) existencia garančných fondov alebo iných kompenzačných schém.

Článok 2:502 Účinky poistky (1) Ak sa obsah poistky líši od návrhu poistníka na uzavretie poistenia alebo od akejkoľvek predchádzajúcej dohody medzi zmluvnými stranami, má sa za to, že tieto rozdiely vyznačené v poistke poistník prijal, ak proti nim do jedného mesiaca od doručenia poistky neuplatnil námietky. Poisťovateľ je povinný upozorniť poistníka na jeho právo vzniesť námietky proti týmto rozdielom tučným písmom v poistke. (2) Ak poisťovateľ nepostupoval podľa ustanovenia v odseku 1, má sa za to, že poistná zmluva bola dojednaná podľa zmluvných podmienok obsiahnutých v návrhu na uzavretie poistnej zmluvy alebo, podľa okolností konkrétneho prípadu, v pôvodnej dohode zmluvných strán.

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Šiesty oddiel: Doba trvania poistnej zmluvy Článok 2:601 Doba trvania poistnej zmluvy (1) Doba trvania poistnej zmluvy je jeden rok. Ak to vyžaduje povaha poistného rizika, môžu sa zmluvné strany dohodnúť na inej dobe trvania poistenia. (2) Odsek 1 sa nevzťahuje na poistenie osôb.

Článok 2:602 Predĺženie poistnej zmluvy (1) Po uplynutí ročného poistného obdobia uvedeného v článku 2:601 sa poistná zmluva automaticky predĺži, okrem prípadu, ak (a) poisťovateľ oznámil písomne najmenej jeden mesiac pred uplynutím poistného obdobia opačný úmysel a dôvody svojho rozhodnutia; alebo (b) poistník najneskôr do dňa uplynutia poistného obdobia, alebo do jedného mesiaca po tom, čo mu poisťovateľ doručil účet na zaplatenie poistného, podľa toho, čo nastane neskôr, písomne informuje poisťovateľa o svojom úmysle. V naposledy uvedenom prípade začne 1-mesačná lehota plynúť iba v prípade, ak na túto skutočnosť bol poistník na účte na zaplatenie poistného upozornený tučným písmom. (2) Na účely odseku 1 písm. b) sa oznámenie považuje za podané od okamihu odoslania.

Článok 2:603 Zmena zmluvných podmienok (1) Ustanovenie poistnej zmluvy, ktorú je možné predĺžiť podľa článku 2:602, a podľa ktorého môže poisťovateľ zmeniť poistné alebo akúkoľvek inú zmluvnú podmienku, je neplatné, okrem prípadu, ak podľa tohto ustanovenia (a) akákoľvek zmena nenadobudne platnosť pred ďalším predĺžením poistnej zmluvy, (b) poisťovateľ písomne informuje poistníka o svojom zámere zmeniť poistnú zmluvu najneskôr do jedného mesiaca pred uplynutím aktuálneho poistného obdobia, a (c) v oznámení poisťovateľ informuje poistníka o svojom práve poistnú zmluvu vypovedať a o následkoch, ktoré môžu nastať v prípade neuplatnenia tohto práva. (2) Použitie odseku 1 sa nedotýka ďalších požiadaviek, ktoré sa týkajú platnosti ustanovení zmluvy a jej zmien.

Článok 2:604 Výpoveď poistnej zmluvy po vzniku poistnej udalosti (1) Ustanovenie, podľa ktorého poistnú zmluvu možno vypovedať po vzniku poistnej udalosti, je platné, ak (a) obom zmluvným stranám priznáva právo poistnú zmluvu vypovedať a (b) nejde o poistenie osôb. (2) Ustanovenie zmluvy o práve vypovedať poistnú zmluvu, ako aj o uplatnení tohto práva musí byť odôvodnené. (3) Akékoľvek právo na výpoveď poistnej zmluvy zanikne v prípade, ak dotknutá zmluvná strana nepodala druhej zmluvnej strane písomné oznámenie o vypovedaní poistnej zmluvy do dvoch mesiacov po tom, čo sa o poistnej udalosti dozvedela. (4) Poistná ochrana zanikne dva týždne od doručenia výpovede podľa odseku 3.

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Siedmy oddiel: Informačná povinnosť poisťovateľa po uzavretí poistnej zmluvy Článok 2:701 Všeobecná informačná povinnosť poisťovateľa Počas doby trvania poistnej zmluvy poskytuje poisťovateľ poistníkovi bez zbytočného odkladu písomné informácie o akejkoľvek zmene ohľadne svojho názvu a adresy, svojej právnej formy, adresy svojho sídla a agentúry alebo pobočky, v ktorej bola poistná zmluva uzavretá.

Článok 2:702 Ďalšie informácie poskytnuté na základe žiadosti (1) Na žiadosť poistníka mu poisťovateľ bez zbytočného odkladu poskytne informácie ohľadne: (a) všetkých záležitostí, ktoré sú podstatné z hľadiska plnenia z poistnej zmluvy, ak ich možno od poisťovateľa rozumne očakávať; (b) nových poistných podmienok, ktoré poisťovateľ ponúka pre rovnaký typ poistných zmlúv, ako je poistná zmluva uzavretá s poistníkom. (2) Žiadosť poistníka, ako aj odpoveď poisťovateľa treba zaslať v písomnej forme.

Tretia kapitola: Poisťovací sprostredkovatelia Článok 3:101 Oprávnenia poisťovacích agentov (1) Poisťovací agent je oprávnený vykonávať v mene poisťovateľa všetky úkony, ktoré patria do rozsahu jeho pracovnej náplne v súlade s jeho súčasnou praxou v odvetví poisťovníctva. Akékoľvek obmedzenie splnomocnenia poisťovacieho agenta sa poistníkovi jasne oznámi v samostatnom dokumente. Splnomocnenie poisťovacieho agenta však bude zahŕňať prinajmenšom skutočný rozsah jeho pracovnej náplne. (2) Splnomocnenie poisťovacieho agenta v každom prípade zahŕňa právomoc (a) informovať poistníka a poskytovať mu rady a (b) prijímať oznámenia, ktoré mu poistník doručí. (3) Podstatné vedomosti, ktoré poisťovací agent získal alebo mohol získať pri svojej činnosti, možno považovať za totožné s vedomosťami poisťovateľa.

Článok 3:102 Poisťovací agent vydávajúci sa za nezávislého Poisťovateľ zodpovedá za konanie poisťovacieho agenta, ktorý sa vydáva za nezávislého sprostredkovateľa a pri svojej činnosti poruší povinnosti dané takému sprostredkovateľovi podľa zákona.

Štvrtá kapitola: Poistné riziko Prvý oddiel: Preventívne opatrenia Článok 4:101 Preventívne opatrenia: Vymedzenie Preventívnym opatrením sa rozumie také ustanovenie poistnej zmluvy – nezávisle od toho, či ide o podmienku ručenia poisťovateľa alebo nie – ktoré poistníkovi alebo poistenému predpisujú, aby pred vznikom poistnej udalosti vykonal určité úkony alebo aby sa ich vykonania zdržal.

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Článok 4:102 Právo poisťovateľa vypovedať zmluvu (1) Ustanovenie poistnej zmluvy, podľa ktorého v prípade nesplnenia preventívneho opatrenia je poisťovateľ oprávnený poistnú zmluvu vypovedať, je neplatné, okrem prípadu, že poistník alebo poistený porušil svoju povinnosť úmyselne spôsobiť škodu alebo z nedbanlivosti, vedomý si toho, že taká škoda môže vzniknúť. (2) Právo vypovedať poistnú zmluvu sa uplatní podaním písomného oznámenia poistníkovi do jedného mesiaca po tom, čo sa poisťovateľ o nesplnení preventívneho opatrenia dozvedel alebo sa mu stalo zrejmým. Poistná ochrana zanikne v okamihu zániku poistnej zmluvy.

Článok 4:103 Zbavenie poisťovateľa povinnosti plniť (1) Ustanovenie poistnej zmluvy, podľa ktorého nesplnenie preventívneho opatrenia celkom alebo sčasti zbavuje poisťovateľa povinnosti plniť, je platné len v prípade, ak bola škoda spôsobená nesplnením tohto opatrenia zo strany poistníka alebo poisteného úmyselne alebo z nedbanlivosti, vedomý si toho, že taká škoda môže vzniknúť. (2) S ohľadom na jasné ustanovenie poistnej zmluvy, podľa ktorého sa poistné plnenie pomerne zníži podľa stupňa zavinenia, má poistník alebo, podľa okolností konkrétneho prípadu, poistený právo na poistné plnenie vo vzťahu k akejkoľvek škode, ktorá bola spôsobená nesplnením preventívneho opatrenia z nedbanlivosti.

Druhý oddiel: Zvýšenie poistného rizika Článok 4:201 Poistné podmienky týkajúce sa zvýšenia poistného rizika Ak poistná zmluva obsahuje ustanovenie o zvýšení poistného rizika, je takéto ustanovenie platné len vtedy, ak toto zvýšenie poistného rizika je podstatné a bližšie uvedené v poistnej zmluve.

Článok 4:202 Povinnosť oznámiť zvýšenie poistného rizika (1) Ak ustanovenie poistnej zmluvy, ktoré sa týka zvýšenia poistného rizika, vyžaduje zaslanie oznámenia o zvýšení tohto rizika, toto oznámenie zašle poistník, poistený alebo, podľa okolností konkrétneho prípadu, oprávnený poisťovateľovi za podmienky, že osoba, ktorá je povinná oznámenie podať, vedela alebo mala vedieť o existencii poistnej ochrany a zvýšení poistného rizika. Rovnaké účinky má oznámenie urobené prostredníctvom tretej osoby. (2) Ak ustanovenie poistnej zmluvy vyžaduje, aby bolo oznámenie urobené v určenej lehote, musí byť táto lehota primeraná. Účinky oznámenia nastanú okamihom odoslania oznámenia. (3) Poisťovateľ nie je v prípade porušenia oznamovacej povinnosti oprávnený odmietnuť úhradu akejkoľvek následnej škody, ktorá bola spôsobená poistnou udalosťou v rozsahu poistného krytia, okrem prípadu, ak škoda vznikla následkom zanedbania informácií o zvýšení poistného rizika.

Článok 4:203 Výpoveď a zánik poistnej zmluvy (1) Ak poistná zmluva stanovuje, že v prípade zvýšenia poistného rizika je poisťovateľ oprávnený poistnú zmluvu vypovedať, toto právo môže uplatniť vo forme písomného oznámenia poistníkovi do jedného mesiaca po tom, čo sa poisťovateľ o tomto zvýšení dozvedel alebo sa mu stalo zrejmým. (2) Poistná ochrana zanikne jeden mesiac od doručenia výpovede poistnej zmluvy, alebo okamžite, ak poistník úmyselne porušil povinnosť podľa článku 4:202.

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(3) Ak poistnú udalosť spôsobilo pred zánikom poistnej ochrany také zvýšenie poistného rizika, o ktorom poistník vie alebo mal by vedieť, poisťovateľ sa zbavuje povinnosti plniť, ak by na seba takéto zvýšenie poistného rizika inak neprevzal. Ak by však poisťovateľ napriek tomu zvýšené poistné riziko na seba prevzal, ale za vyššie poistné alebo za iných podmienok, plnenie z poistnej zmluvy poskytne v pomernej výške alebo vo výške zodpovedajúcej týmto podmienkam.

Tretí oddiel: Zníženie poistného rizika Článok 4:301 Následky zníženia poistného rizika (1) Ak sa poistné riziko podstatne zníži, je poistník oprávnený požadovať pre zostávajúcu dobu poistenia pomerné zníženie poistného. (2) Ak sa zmluvné strany do jedného mesiaca od podania žiadosti nedohodnú na pomernom znížení poistného, je poistník oprávnený poistnú zmluvu vypovedať podaním písomnej výpovede, ktorá uplynie do dvoch mesiacov od podania žiadosti.

Piata kapitola: Poistné Článok 5:101 Prvé alebo jednorazové poistné Zmluvná podmienka, podľa ktorej uzavretie poistnej zmluvy alebo začiatok poistného krytia je závislé od zaplatenia prvého alebo jednorazového poistného, je platná, ak (a) záujemcovi o poistenie bola oznámená písomne v zrozumiteľnom a jasnom znení a záujemca o poistenie bol upozornený na to, že poistná ochrana nevznikne, ak poistné nebude zaplatené, a (b) od doručenia účtu na zaplatenie poistného, ktorý spĺňa požiadavky podľa písmena a), uplynula 2-týždňová lehota bez toho, aby poistné bolo zaplatené.

Článok 5:102 Následné poistné (1) Zmluvná podmienka, podľa ktorej sa poisťovateľ zbavuje svojej povinnosti plniť v prípade nezaplatenia následného poistného, je platná iba vtedy, ak (a) poistníkovi bol doručený účet na zaplatenie poistného, v ktorom je presne uvedená suma dlžného poistného a doba jeho splatnosti; (b) po uplynutí doby splatnosti poistného poisťovateľ zaslal poistníkovi upomienku, v ktorej je presne uvedená dlžná suma poistného, a na základe ktorej tak poskytne poistníkovi dodatočnú lehotu na jeho zaplatenie poistného v dĺžke najmenej dvoch týždňov, a upozorní ho na možnosť okamžitého zrušenia poistného krytia v prípade nezaplatenia poistného; a (c) dodatočná lehota podľa písmena b) uplynie bez toho, aby poistné bolo zaplatené. (2) Po uplynutí dodatočnej lehoty podľa odseku 1 písm. b) nie je poisťovateľ povinný plniť. Poistná ochrana sa v budúcnosti znovu obnoví, akonáhle poistník uhradí dlžnú sumu, okrem prípadu, ak poistná zmluva bola vypovedaná podľa článku 5:103.

Článok 5:103 Výpoveď poistnej zmluvy (1) Ak lehota uvedená v článku 5:101 písm. b) alebo v článku 5:102 ods. 1 písm. b) uplynie bez toho, aby poistné bolo zaplatené, poisťovateľ je oprávnený poistnú zmluvu vypovedať podaním písomnej výpovede, ak, podľa okolností konkrétneho prípadu, účet na zaplatenie poistného uvedený

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v článku 5:101 písm. b) alebo upomienka uvedená v článku 5:102 ods. 1 písm. b) obsahuje právo poisťovateľa poistnú zmluvu vypovedať. (2) Poistná zmluva sa považuje za zrušenú v prípade, ak, podľa okolností konkrétneho prípadu, poisťovateľ nepodá žalobu na úhradu (a) prvého poistného do dvoch mesiacov po uplynutí lehoty uvedenej v článku 5:101 písm. b); alebo (b) následného poistného do dvoch mesiacov po uplynutí lehoty uvedenej v článku 5:102 ods. 1 písm. b).

Článok 5:104 Deliteľnosť poistného Ak poistná zmluva zanikla ešte pred uplynutím doby trvania poistnej zmluvy, má poisťovateľ nárok len na poistné za obdobie, ktoré uplynie do zániku poistnej zmluvy.

Článok 5:105 Právo na zaplatenie poistného Poisťovateľ nie je oprávnený odmietnuť zaplatenie poistného prostredníctvom tretej osoby, ak (a) táto koná so súhlasom poistníka; alebo (b) táto má oprávnený záujem na zachovaní poistného krytia a poistník poistné nezaplatil alebo je zrejmé, že poistné nezaplatí ani v dobe jeho splatnosti.

Šiesta kapitola: Poistná udalosť Článok 6:101 Oznámenie o vzniku poistnej udalosti (1) Vznik poistnej udalosti je poisťovateľovi povinný oznámiť poistník, poistený alebo, podľa okolností konkrétneho prípadu, oprávnený za podmienky, že povinná osoba vedela alebo mala vedieť o existencii poistnej ochrany a o vzniku poistnej udalosti. Rovnaké účinky má oznámenie prostredníctvom tretej osoby. (2) Toto oznámenie sa vykoná bez zbytočného odkladu. Účinky oznámenia nastanú okamihom odoslania. Ak poistná zmluva ustanovuje, že podanie oznámenia sa má urobiť v určitej lehote, taká lehota musí byť primeraná a v žiadnom prípade nesmie byť kratšia ako päť dní. (3) Poisťovateľ môže poistné plnenie znížiť v takej výške, v akej preukáže, že mu neprimeraným omeškaním povinnej osoby vznikla škoda.

Článok 6:102 Súčinnosť pri vybavení škody (1) Poistník, poistený alebo, podľa okolností konkrétneho prípadu, oprávnený poskytne poisťovateľovi súčinnosť pri vyšetrovaní poistnej udalosti splnením odôvodnených požiadaviek poisťovateľa, najmä s ohľadom na: – informácie o príčinách a následkoch poistnej udalosti; – listinné alebo iné dôkazy o poistnej udalosti; – umožnenie prístupu na miesta, kde došlo k poistnej udalosti. (2) V prípade akéhokoľvek porušenia povinnosti podľa odseku 1, s ohľadom na odsek 3, sa vyplatené poistné plnenie zníži v takom pomere, v akom poisťovateľ preukáže, že z porušenia povinnosti mu vznikla škoda. (3) V prípade akéhokoľvek porušenia povinnosti podľa odseku 1 spôsobeného povinnou osobou úmyselne alebo z nedbanlivosti, vedomej si toho, že taká škoda môže vzniknúť, sa poisťovateľ zbavuje povinnosti vyplatiť poistné plnenie.

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Článok 6:103 Prijatie nárokov (1) Poisťovateľ je povinný vykonať všetky rozumné opatrenia za účelom včasného vyporiadania nároku. (2) Nárok sa považuje za prijatý, okrem prípadu, ak poisťovateľ nárok zamietne alebo prijatie nároku odloží zaslaním písomného oznámenia, v ktorom uvedie dôvody svojho rozhodnutia do jedného mesiaca po tom, čo mu budú doručené príslušné dokumenty a ďalšie informácie.

Článok 6:104 Splatnosť poistného plnenia (1) Akonáhle bol nárok poisteného poisťovateľom prijatý, poisťovateľ vyplatí poistné plnenie, alebo, podľa okolností konkrétneho prípadu, poskytne dohodnuté plnenia bez zbytočného odkladu. (2) Ak celková výška poistného plnenia nemôže byť zatiaľ vyčíslená, avšak žiadateľ má nárok aspoň na jeho časť, táto časť sa vyplatí, resp. splní bez zbytočného odkladu. (3) Plnenie z poistnej zmluvy podľa odseku 1 alebo odseku 2 sa poskytne najneskôr do jedného týždňa po prijatí nároku a vyčíslení výšky poistného plnenia alebo, podľa okolností konkrétneho prípadu, jeho časti.

Článok 6:105 Omeškanie s poistným plnením (1) Ak poistné plnenie nebolo vyplatené v súlade s článkom 6:104, oprávnený má nárok na úroky z omeškania z tejto sumy od doby splatnosti do doby úhrady, a to s použitím úrokovej sadzby, ktorá je o 8 percentuálnych bodov vyššia ako základná úroková sadzba Európskej centrálnej banky platná k prvému dňu príslušného kalendárneho polroka v rámci najnovšej hlavnej operácie prefinancovania, ktorú banka vykonala ešte pred týmto dňom. (2) Žiadateľ má nárok na náhradu škody v súvislosti s akýmikoľvek dodatočnými škodami vzniknutými v dôsledku omeškania s výplatou poistného plnenia.

Siedma kapitola: Premlčanie Článok 7:101 Žaloba na úhradu poistného Právo na podanie žaloby na úhradu poistného sa premlčuje po uplynutí 1-ročnej lehoty odo dňa splatnosti poistného.

Článok 7:102 Žaloba na výplatu poistného plnenia (1) Právo na podanie žaloby na výplatu poistného plnenia sa všeobecne premlčuje po uplynutí 3-ročnej lehoty od okamihu, kedy poisťovateľ urobí, alebo sa má za to, že urobil konečné rozhodnutie o nároku v súlade s článkom 6:103. V každom prípade sa však právo na podanie žaloby premlčí najneskôr po uplynutí 10-ročnej lehoty od vzniku poistnej udalosti, okrem prípadu životného poistenia, pre ktoré platí 30-ročná lehota. (2) Právo na podanie žaloby na výplatu odkupnej hodnoty životného poistenia sa premlčuje po uplynutí 3-ročnej lehoty od okamihu, keď poisťovateľ doručí poistníkovi konečné vyúčtovanie. V každom prípade sa však právo na podanie žaloby premlčí najneskôr po uplynutí 30-ročnej lehoty od zániku zmluvy o životnom poistení.

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Článok 7:103 Ďalšie otázky súvisiace s premlčaním S ohľadom na články 7:101 a 7:102 PEPPZ sa vo vzťahu k nárokom vzniknutým z poistnej zmluvy použijú články 14:101-14:503 Princípov európskeho práva poistnej zmluvy (PEPPZ). Poistná zmluva sa môže odchýliť od uvedených ustanovení v súlade s článkom 1:103 ods. 2 PEPPZ.

Druhá časť: Spoločné ustanovenia pre škodové poistenie Ôsma kapitola: Poistná suma a poistná hodnota Článok 8:101 Najvyššie poistné plnenie (1) Poisťovateľ nie je povinný plniť vo väčšom rozsahu ako je výška škody, ktorú poistený skutočne utrpel. (2) Ustanovenie poistnej zmluvy, ktorým sa určuje hodnota predmetu poistenia je platné aj vtedy, ak táto hodnota prevyšuje skutočnú hodnotu predmetu za predpokladu, že poistník alebo poistený pri stanovení poistnej hodnoty nekonal podvodne alebo s úmyslom poskytnúť nepravdivé informácie.

Článok 8:102 Podpoistenie (1) Poisťovateľ poskytne plnenie z poistnej zmluvy do výšky poistnej sumy, a to aj v prípade, ak v čase vzniku poistnej udalosti je poistná suma nižšia ako poistná hodnota poisteného majetku. (2) Ak však poisťovateľ ponúka poistné krytie v súlade s odsekom 1, je oprávnený ponúknuť poistnú ochranu alternatívne na takom základe, že poistné plnenie zníži v takom pomere, v akom je poistná suma voči skutočnej hodnote majetku v čase vzniku škody. V takom prípade sa v rovnakom pomere navyše uhradia náklady na zmiernenie škôd, definované v článku 9:102.

Článok 8:103 Úprava zmluvných podmienok v prípade nadpoistenia (1) Ak poistná suma prevýši najvyššiu možnú škodu v rámci poistenia, je ktorákoľvek zo zmluvných strán oprávnená navrhnúť zníženie poistnej sumy a pomerné zníženie poistného pre zostávajúcu dobu trvania poistnej zmluvy. (2) Ak sa zmluvné strany do jedného mesiaca od podania návrhu na takom znížení nedohodnú, je akákoľvek zo zmluvných strán oprávnená poistnú zmluvu vypovedať.

Článok 8:104 Viacnásobné poistenie (1) Ak je rovnaký záujem samostatne poistený u viacerých poisťovateľov, je poistený oprávnený uplatniť nárok voči ktorémukoľvek alebo ktorýmkoľvek z týchto poisťovateľov v takom rozsahu, aký je potrebný na náhradu škody, ktorú poistený skutočne utrpel. (2) Poisťovateľ, voči ktorému je uplatnený nárok, vyplatí poistnú sumu na základe svojej poistky, spoločne s nákladmi na zmiernenie škôd, ak tieto existujú, pričom nie je dotknuté jeho právo žiadať refundáciu od ktoréhokoľvek iného poisťovateľa. (3) Vzájomné práva a povinnosti medzi poisťovateľmi podľa odseku 2 sú v takom pomere, v akom títo samostatne ručia poistenému.

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Deviata kapitola: Právo na náhradu škody Článok 9:101 Spôsobenie poistnej udalosti (1) Poistník ani poistený, podľa okolností konkrétneho prípadu, nemá nárok na náhradu škody v takom rozsahu, v akom bola škoda spôsobená jeho konaním alebo opomenutím úmyselne alebo z nedbanlivosti, vedomý si toho, že taká škoda môže vzniknúť. (2) Bez ohľadu na to, či poistka obsahuje jasné ustanovenie o možnosti zníženia poistného plnenia v závislosti od stupňa zavinenia zo strany poistníka alebo, podľa okolností konkrétneho prípadu, poisteného, majú títo nárok na náhradu akejkoľvek škody spôsobenej v dôsledku ich nedbanlivostného konania alebo opomenutia. (3) Na účely odsekov 1 a 2 sa spôsobenie škody vzťahuje aj na prípad, keď nedošlo k odvráteniu alebo zmierneniu škody.

Článok 9:102 Náklady na zmiernenie škôd (1) Poisťovateľ je povinný nahradiť poistníkovi alebo poistenému náklady alebo škodu, ktorú títo utrpeli pri vykonávaní opatrení na zmiernenie poistenej škody v takej výške, v akej bol poistník alebo poistený oprávnený považovať také opatrenia za daných okolností za primerané, a to i v prípade, ak opatrenia na zmierňovanie škôd boli neúspešné. (2) Poisťovateľ poskytne poistníkovi alebo, podľa okolností konkrétneho prípadu, poistenému náhradu škody vzhľadom na akékoľvek opatrenia prijaté v súlade s odsekom 1 dokonca aj v prípade, ak splatná suma spolu s náhradou poistenej škody prevýši poistnú sumu.

Desiata kapitola: Právo na postih Článok 10:101 Prechod nároku na poisťovateľa (1) Poisťovateľ je s ohľadom na odsek 3 oprávnený uplatniť voči tretej osobe zodpovednej za škodu právo postihu v takom rozsahu, v akom poskytol náhradu škody poistenému. (2) Ak sa poistený vzdá uplatnenia svojho práva voči tretej osobe a ohrozí tým právo postihu poisťovateľa, stráca vo vzťahu k tejto škode právo na poskytnutie plnenia z poistnej zmluvy. (3) Poisťovateľ nie je oprávnený uplatniť právo postihu voči členovi domácnosti poistníka alebo poisteného, osobe s rovnocenným spoločenským vzťahom k poistníkovi alebo poistenému, alebo zamestnancovi poistníka alebo poisteného, okrem prípadu, ak preukáže, že taká osoba spôsobila škodu úmyselne alebo z nedbanlivosti, vedomá si toho, že taká škoda môže vzniknúť. (4) Poisťovateľ uplatnením svojho práva postihu nesmie spôsobiť poistenému ujmu.

Jedenásta kapitola: Poistenie v prospech tretej osoby Článok 11:101 Práva poisteného (1) Ak sa poistná zmluva uzavrie v prospech inej osoby ako je poistník, táto tretia osoba má v prípade vzniku poistnej udalosti právo na poistné plnenie. (2) Poistník má právo také poistenie zrušiť, okrem prípadu, ak (a) poistka ustanovuje inak alebo (b) vznikla poistná udalosť.

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(3) Zrušenie poistenia je účinné od okamihu doručenia písomného oznámenia o zrušení poisťovateľovi.

Článok 11:102 Vedomosť poisteného Ak je poistník povinný poskytnúť poisťovateľovi podstatné informácie, vedomosť poistenej osoby podľa článku 11:101 možno poistníkovi pripočítať iba vtedy, ak táto osoba si je vedomá svojho postavenia poisteného.

Článok 11:103 Porušenie povinnosti jedným z poistených Porušenie povinnosti jedným z poistených nemôže mať nepriaznivé následky na práva ďalších osôb poistených na základe tej istej poistnej zmluvy, okrem prípadu, ak ide o poistenie spoločného rizika.

Dvanásta kapitola: Poistné riziko Článok 12:101 Neexistencia poistného rizika (1) Ak poistné riziko v dobe uzavretia poistnej zmluvy ani v žiadnej inej dobe počas trvania poistného obdobia neexistuje, nie je povinnosť platiť poistné. Poisťovateľ má však nárok na primeranú náhradu vzniknutých výdavkov. (2) Ak poistné riziko prestane existovať počas poistného obdobia, poistná zmluva sa považuje za skončenú v dobe, kedy sa táto skutočnosť oznámi poisťovateľovi.

Článok 12:102 Scudzenie poistenej veci (1) Ak dôjde k prevodu vlastníckeho práva k poistenej veci, poistná zmluva sa skončí jeden mesiac po prevode, ak sa poistník a nadobúdateľ nedohodnú na skoršom ukončení poistenia. Toto pravidlo nemožno použiť v prípade, ak bola poistná zmluva uzavretá v prospech budúceho nadobúdateľa. (2) Osoba, na ktorú prešlo vlastnícke právo sa považuje za poistenú od doby, kedy dôjde i k prechodu nebezpečenstva škody vzťahujúceho sa na poistenú vec. (3) Odseky 1 a 2 nemožno použiť, ak (a) sa poisťovateľ, poistník a nadobúdateľ dohodnú inak; alebo (b) k prechodu veci došlo na základe dedenia.

Tretia časť: Spoločné ustanovenia pre poistenia na pevnú sumu Trinásta kapitola: Prípustnosť Článok 13:101 Poistenia na pevnú sumu Iba úrazové, zdravotné alebo životné poistenie, poistenie vena, prostriedkov na výživu detí alebo iné osobné poistenia môžu byť uzavreté ako poistenia na pevnú sumu.

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Štvrtá časť: Poistenie zodpovednosti Štrnásta kapitola: Všeobecné poistenie zodpovednosti Článok 14:101 Náklady právneho zastúpenia Poisťovateľ je povinný nahradiť náklady právneho zastúpenia vzniknuté v súlade s článkom 9:102.

Článok 14:102 Ochrana poškodeného Akékoľvek vyporiadanie poistného nároku na základe poistnej zmluvy uzavretej medzi poistníkom alebo poisteným a poisťovateľom, či už dohodou, zrieknutím sa uplatnenia nároku, výplatou poistného plnenia alebo podobným úkonom, nemá vplyv na právne postavenie poškodeného, okrem prípadu, ak poškodený udelí na to písomný súhlas.

Článok 14:103 Spôsobenie poistnej udalosti (1) Poistník, podľa okolností konkrétneho prípadu, ani poistený, nemá nárok na náhradu škody v takom rozsahu, v akom sa podieľal na vzniku škody svojím zavineným konaním alebo opomenutím; toto zahŕňa nedodržanie osobitných predpisov poisťovateľa po vzniku poistnej udalosti, ak tak urobil z nedbanlivosti a vedomý si toho, že rozsah škody sa inak môže zvýšiť. (2) Na účely odseku 1 sa spôsobenie škody vzťahuje aj na prípad, keď nedošlo k odvráteniu alebo zmierneniu rozsahu škody. (3) Bez ohľadu na to, či poistka obsahuje jasné ustanovenie o možnosti zníženia poistného plnenia v závislosti od stupňa zavinenia zo strany poistníka alebo, podľa okolností konkrétneho prípadu, poisteného, majú títo nárok, aby za nich bola nahradená akákoľvek škoda spôsobená v dôsledku ich nedbanlivostného nedodržania osobitných predpisov poisťovateľa po vzniku poistnej udalosti.

Článok 14:104 Uznanie zodpovednosti (1) Ustanovenie poistnej zmluvy, ktoré zbavuje poisťovateľa jeho povinnosti plniť v prípade, ak poistník alebo, podľa okolností konkrétneho prípadu, poistený uzná alebo uspokojí nárok poškodeného, je neplatné. (2) Poisťovateľ nie je viazaný zmluvou medzi poškodeným a poistníkom alebo, podľa okolností konkrétneho prípadu, poisteným, okrem prípadu, ak s tým vysloví súhlas.

Článok 14:105 Postúpenie nároku Ustanovenie poistnej zmluvy, ktoré zakazuje poistenému postúpiť právo na poistné plnenie, je neplatné.

Článok 14:106 Bonusy pri bezškodovom priebehu/Bonusový a malusový systém (1) Poistník má právo kedykoľvek požiadať o vydanie potvrdenia týkajúceho sa jeho škodového priebehu za posledných päť rokov. (2) Ak poisťovateľ urobí výšku poistného alebo iné podmienky závislé od množstva alebo výšky škôd vyplatených na základe poistky, treba vziať náležitý ohľad na škodový priebeh poistníka za posledných päť rokov.

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Článok 14:107 Poistná udalosť (1) Poistná udalosť je skutočnosť, ktorá vedie k vzniku zodpovednosti poisteného počas doby trvania poistnej zmluvy, okrem prípadu, ak zmluvné strany definujú poistnú udalosť na obchodné a profesionálne účely vzhľadom na ďalšie okolnosti, ako je napríklad nárok uplatnený poškodeným. (2) Ak zmluvné strany definujú poistnú udalosť vzhľadom na nárok uplatnený poškodeným, poistné krytie možno poskytnúť vo vzťahu k nárokom, ktoré boli uplatnené počas doby trvania poistnej zmluvy alebo v rámci nasledujúcej doby v dĺžke nie kratšej ako päť rokov a vznikli na základe skutočnosti pred skončením doby poistenia. Poistné krytie môže byť vylúčené z poistnej zmluvy na základe toho, že v čase uzavretia poistnej zmluvy záujemca o poistenie vedel alebo mal vedieť o okolnostiach, o ktorých mal predpokladať, že budú mať za následok vznik nárokov na náhradu škody.

Článok 14:108 Škody prevyšujúce poistnú sumu (1) Ak celková výška plnenia z poistnej zmluvy, ktoré sa má plniť niekoľkým poškodeným, prevýši poistnú sumu, toto plnenie sa pomerne zníži. (2) Poisťovateľ, ktorý vyplatil v dobrej viere poistné plnenie poškodeným, o ktorých vedel, pričom o existencii ďalších poškodených nemal vedomosť, je povinný plniť týmto poškodeným až do výšky zostatku poistnej sumy.

Pätnásta kapitola: Priame nároky a priame žaloby Článok 15:101 Priame nároky a námietky (1) Poškodený má právo na uplatnenie priameho nároku na náhradu škody voči poisťovateľovi v rozsahu zodpovednosti poistníka alebo, podľa okolností konkrétneho prípadu, poisteného na základe poistnej zmluvy, za podmienky, že (a) poistenie je povinné, alebo (b) poistník alebo poistený je nesolventný, alebo (c) poistník alebo poistený sú v likvidácií alebo ukončili svoju činnosť, alebo (d) poškodený utrpel škodu na zdraví, alebo (e) zákon, ktorý upravuje zodpovednosť za škodu, zavádza priamy nárok. (2) Poisťovateľ môže vzniesť námietky voči nároku poškodeného, ak sú prípustné na základe poistnej zmluvy, okrem prípadu, ak to zakazujú konkrétne ustanovenia, ktorými sa zavádza povinné poistenie zodpovednosti. Avšak poisťovateľ nie je oprávnený vzniesť žiadnu námietku na základe správania sa poistníka a/alebo poisteného po vzniku škody.

Článok 15:102 Informačné povinnosti (1) Poistník a poistený poskytnú na základe žiadosti poškodenému informácie potrebné pre uplatnenie priameho nároku. (2) Poisťovateľ písomne informuje poistníka bez zbytočného odkladu o akomkoľvek priamom nároku uplatnenom voči nemu a to najneskôr do dvoch týždňov od uplatnenia nároku. Ak poisťovateľ poruší túto povinnosť, vyplatenie alebo uznanie dlhu poškodenému nemá vplyv na právne postavenie poistníka. (3) Ak poistník neposkytne poisťovateľovi informácie o poistnej udalosti do jedného mesiaca po doručení oznámenia v súlade s odsekom 2, má sa za to, že poistník súhlasí s vyporiadaním pria-

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meho nároku poisťovateľom. Toto pravidlo sa vzťahuje taktiež na poistených, ktorým bolo také oznámenie skutočne doručené včas.

Článok 15:103 Zbavenie poisťovateľa povinnosti plniť Výplatou poistného plnenia poistníkovi alebo poistenému, podľa okolností konkrétneho prípadu, je poisťovateľ zbavený povinnosti plniť poškodenému v prípade, ak sa tento (a) vzdá uplatnenia priameho nároku alebo (b) neoznámi poisťovateľovi svoj úmysel uplatniť priamy nárok do štyroch týždňov od doručenia písomnej žiadosti poisťovateľa.

Článok 15:104 Premlčanie (1) Nárok voči poisťovateľovi sa premlčí v prípade premlčania nároku poškodeného voči poistenému, bez ohľadu na to, či ho uplatnil poistený alebo poškodený. (2) Plynutie premlčacej doby nároku uplatneného poškodeným voči poistenému sa dočasne zastavuje od doby, keď sa poistený dozvie o uplatnení priameho nároku voči poisťovateľovi do doby vyporiadania nároku alebo jednoznačného zamietnutia priameho nároku poisťovateľom.

Šesťnásta kapitola: Povinné poistenie Článok 16:101 Rozsah použitia (1) PEPPZ si môžu zvoliť zmluvné strany poistnej zmluvy uzavretej za účelom splnenia povinnosti byť poistený, ktorá je (a) nariadená komunitárnym právom, (b) nariadená členským štátom, alebo (c) nariadená nečlenským štátom v rozsahu povolenom zákonom daného štátu. (2) Poistná zmluva nie je v súlade s povinnosťou byť poistený, ak nie je v súlade s konkrétnymi ustanoveniami, ktoré ukladajú túto povinnosť.

Piata časť: Životné poistenie Sedemnásta kapitola: Osobitné ustanovenia pre životné poistenie Prvý oddiel: Tretie osoby Článok 17:101 Životné poistenie v prospech života tretej osoby Poistná zmluva uzavretá v prospech života osoby ohrozenej rizikom inej ako poistník je neplatná, okrem prípadu, ak existuje písomný informovaný súhlas doložený jej podpisom. Akákoľvek podstatná neskoršia zmena v poistnej zmluve vrátane zmeny oprávneného, zvýšenia poistnej sumy a zmeny doby trvania poistnej zmluvy je bez takého súhlasu neplatná. Toto sa taktiež vzťahuje na postúpenie poistnej zmluvy alebo na zaťaženie poistnej zmluvy alebo práva na poistné plnenie.

Článok 17:102 Osoba oprávnená na poistné plnenie (1) Poistník môže určiť jedného alebo viac osôb oprávnených na poistné plnenie a môže také určenie zmeniť alebo odvolať, okrem prípadu, ak bolo toto určenie vyhlásené za neodvolateľné. Určenie,

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(2) (3)

(4)

(5)

(6)

zmenu alebo odvolanie treba zaslať poisťovateľovi v písomnej forme, okrem prípadu, ak sú tieto zahrnuté do závetu. Právo určiť, zmeniť alebo odvolať určenie sa skončí smrťou poistníka alebo vznikom poistnej udalosti, podľa toho, čo nastane skôr. Poistník alebo, podľa okolností konkrétneho prípadu, jeho dedičia, sa považujú za osoby oprávnené na poistné plnenie, ak (a) poistník neurčil oprávneného alebo (b) určenie oprávneného bolo odvolané a ďalší oprávnení neboli určení alebo (c) oprávnený zomrel ešte pred vznikom poistnej udalosti a ďalší oprávnení neboli určení. V prípade, ak boli určení dvaja alebo viac oprávnených a určenie ktoréhokoľvek z nich bolo odvolané, alebo ak ktorýkoľvek z nich zomrie ešte pred vznikom poistnej udalosti, sa výška poistného plnenia, ktorá by bola vyplatená oprávnenému alebo oprávneným, rozdelí medzi pozostalých oprávnených v pomernej výške, pokiaľ poistník v súlade s odsekom 1 neurčil inak. Bez ohľadu na neplatnosť, zrušiteľnosť alebo nežalovateľnosť právnych úkonov spôsobujúcich veriteľom ujmu, ktoré sú stanovené príslušnými predpismi o konkurznom konaní, nemá konkurzná podstata poistníka žiadne práva vo vzťahu k poistnému plneniu, redukovanej alebo odkupnej hodnote, ak plnenie nebolo vyplatené poistníkovi. Poisťovateľ, ktorý vyplatil poistné plnenie osobe určenej v súlade s odsekom 1, je zbavený povinnosti plniť, okrem prípadu, ak vedel, že dotknutá osoba nie je oprávnená na poistné plnenie.

Článok 17:103 Osoba oprávnená na odkupnú hodnotu (1) Poistník môže bez ohľadu na určenie podľa článku 17:102 taktiež určiť osobu oprávnenú na výplatu odkupnej hodnoty, ak táto existuje, a môže také určenie zmeniť alebo odvolať. Určenie, zmenu alebo odvolanie treba zaslať poisťovateľovi v písomnej forme. (2) Poistník sa považuje za osobu oprávnenú na výplatu odkupnej hodnoty, ak (a) osoba oprávnená na odkupnú hodnotu nebola určená, alebo (b) určenie osoby oprávnenej na odkupnú hodnotu bolo odvolané a ďalší oprávnení neboli určení alebo (c) osoba oprávnená na odkupnú hodnotu zomrela a ďalší oprávnení neboli určení. (3) Článok 17:102 ods. 2 a ods. 4 až 6 možno použiť mutatis mutandis.

Článok 17:104 Postúpenie alebo zaťaženie poistnej zmluvy (1) V prípade, ak bol oprávnený neodvolateľne určený, postúpenie alebo zaťaženie poistnej zmluvy alebo práva na poistné plnenie poistníkom sú neplatné, okrem prípadu, ak oprávnený udelil na to písomný súhlas. (2) Postúpenie práva na poistné plnenie alebo zaťaženie práva na poistné plnenie oprávneným sú neplatné, okrem prípadu, ak poistník udelil na to písomný súhlas.

Článok 17:105 Vzdanie sa dedičstva V prípade, ak je oprávnený dedičom zomrelého, na ktorého sa vzťahuje riziko, a ktorý sa vzdal dedičstva, nemá samotná skutočnosť vzdania sa dedičstva vplyv na jeho postavenie ako účastníka zmluvy.

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Druhý oddiel: Vznik a doba trvania poistnej zmluvy Článok 17:201 Predzmluvná informačná povinnosť záujemcu o poistenie (1) Informácie, ktoré má záujemca o poistenie poskytnúť v súlade s článkom 2:101 ods. 1, musia obsahovať také okolnosti, o ktorých osoba ohrozená rizikom vie alebo by mala vedieť. (2) Právne následky porušenia predzmluvnej informačnej povinnosti podľa článkov 2:102, 2:103 a 2:105, ale nie podľa článku 2:104, možno uplatniť len do piatich rokov od uzavretia poistnej zmluvy.

Článok 17:202 Predzmluvná informačná povinnosť poisťovateľa (1) Poisťovateľ informuje záujemcu o poistenie o tom, či má právo na podiely na ziskoch. Poskytnutie týchto údajov musí byť doložené podrobným rozpisom, ktorý je súčasťou samostatného dokumentu mimo návrhu na uzavretie poistenia. (2) Dokument, ktorý má poisťovateľ poskytnúť v súlade s článkom 2:201, musí obsahovať nasledovné informácie, ktoré sa týkajú: (a) poisťovateľa: konkrétne vo vzťahu k povinnému vydaniu výročnej správy o jeho solventnosti a finančnej situácii; (b) zmluvných záväzkov poisťovateľa: (i) vysvetlenia každého plnenia a každej alternatívy plnenia, (ii) informácií o poistnom vo vzťahu ku každému plneniu, ako hlavnému, tak dodatočnému plneniu, ak je to potrebné; (iii) spôsobov výpočtu a rozdelenia bonusov vrátane určenia použiteľného zákona o dohľade nad poisťovníctvom; (iv) údajov o odkupných hodnotách a hodnotách redukovaného poistenia a rozsahu, v ktorom sú tieto garantované; (v) pre poistky investičného životného poistenia: vysvetlenia jednotlivých investičných fondov, na ktoré sa viažu plnenia, a údajov o povahe základných aktív; (vi) všeobecných informácií o daňových schémach použiteľných na daný druh poistky. (3) Okrem toho musia byť poskytnuté konkrétne informácie, aby sa umožnilo správne pochopenie poistných rizík, ktoré tvoria základ poistnej zmluvy a ktoré prevezme na seba poistník. (4) Ak poisťovateľ vyčísli výšku ďalších prípadných plnení nad rámec plnení garantovaných poistnou zmluvou, musí poskytnúť záujemcovi o poistenie vzorový výpočet, ktorý uvádza prípadné splatné poistné plnenia na základe poistno-matematických zásad pre výpočet poistného s použitím troch rozdielnych úrokových sadzieb. Toto sa nevzťahuje na poistné zmluvy pokrývajúce poistné riziká, u ktorých nie je isté, či je poisťovateľ povinný plniť, ani na poistky investičného životného poistenia. Poisťovateľ musí jasne a zrozumiteľne preukázať poistníkovi, že vzorový výpočet predstavuje iba model založený na fiktívnych predpokladoch, a že poistná zmluva nie je zárukou ďalších prípadných plnení z poistnej zmluvy.

Článok 17:203 Lehota na rozmyslenie (1) Pre zmluvy pre životné poistenie je lehota na rozmyslenie stanovená v článku 2:303 ods. 1 v dĺžke jedného mesiaca od prijatia návrhu na uzavretie zmluvy alebo doručenia dokumentov uvedených v článku 2:501 a v článku 17:202, podľa toho, čo nastane neskôr. (2) Poistník má právo odstúpiť od poistnej zmluvy v súlade s článkom 2:303 ods. 1 do jedného roka po uzavretí poistnej zmluvy.

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Článok 17:204 Právo poistníka vypovedať zmluvu (1) Poistník je oprávnený vypovedať poistnú zmluvu pre životné poistenie, na ktorú sa nevzťahuje redukovaná alebo odkupná hodnota, za podmienky, že účinnosť výpovede nenastane skôr ako jeden rok po uzavretí poistnej zmluvy. Právo poistníka vypovedať poistnú zmluvu pred skončením doby jej trvania možno vylúčiť v prípade, ak bolo zaplatené jednorazové poistné. Výpoveď poistnej zmluvy musí byť písomná a nadobudne účinnosť do dvoch týždňov po jej doručení poisťovateľovi. (2) Ak sa na poistnú zmluvu pre životné poistenie vzťahuje redukovaná alebo odkupná hodnota, použijú sa články 17:601-17:603.

Článok 17:205 Právo poisťovateľa vypovedať zmluvu Poisťovateľ je oprávnený vypovedať poistnú zmluvu pre životné poistenie len v rozsahu povolenom v tejto kapitole.

Tretí oddiel: Zmeny počas doby trvania poistnej zmluvy Článok 17:301 Informačná povinnosť poisťovateľa po uzavretí poistnej zmluvy (1) Tam, kde je to vhodné, poisťovateľ zašle poistníkovi ročne písomný výkaz o súčasnej hodnote bonusov, ktoré sa týkajú poistnej zmluvy. (2) Okrem podmienok uvedených v článku 2:701 poisťovateľ informuje poistníka bez zbytočného odkladu o akejkoľvek zmene týkajúcej sa: (a) ako všeobecných, tak osobitných poistných podmienok; (b) informácií uvedených v článku 2:201 písm. f) a g) a tiež v článku 17:202 ods. 2 písm. b) bod i) až v) v prípade zmeny poistných podmienok alebo zmien PEPPZ. (3) Článok 17:202 ods. 4 sa taktiež použije v prípade, ak sú k dispozícii číselné údaje týkajúce sa predpokladanej výšky ďalších prípadných plnení poskytovaných kedykoľvek počas doby trvania poistnej zmluvy. V prípade, ak poisťovateľ poskytol číselné údaje o potenciálnom budúcom vývoji podielu na zisku, či už pred alebo po uzavretí poistnej zmluvy, informuje poistníka o akýchkoľvek rozdieloch medzi aktuálnym vývojom a východiskovými údajmi.

Článok 17:302 Zvýšenie rizika V poistnej zmluve pre životné poistenie sa podmienka, ktorá určuje vek alebo zhoršený zdravotný stav ako zvýšenie rizika v zmysle článku 4:201, považuje za neprijateľnú zmluvnú podmienku podľa článku 2:304.

Článok 17:303 Úprava poistného a poistného plnenia (1) Poisťovateľ je v prípade poistnej zmluvy pre životné poistenie, pokrývajúcej poistné riziká, pri ktorých je isté, že poisťovateľ je povinný plniť, oprávnený na úpravu poistného a poistného plnenia iba v súlade s odsekom 2 a 3. (2) Zvýšenie poistného je prípustné v prípade, ak nastala nepredvídateľná a trvalá zmena vo vzťahu k biometrickým rizikám použitým ako základ pre výpočet poistného, ak je zvýšenie potrebné pre záruku dlhodobej schopnosti poisťovateľa vyplatiť poistné plnenie a v prípade, ak bolo toto zvýšenie schválené nezávislým aktuárom alebo dozorným orgánom. Poistník je oprávnený nahradiť zvýšenie poistného primeraným znížením poistného plnenia.

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(3) V prípade poistky oslobodenej od povinnosti platiť poistné je poisťovateľ oprávnený znížiť poistné plnenie v súlade s podmienkami stanovenými v odseku 2. (4) Úprava podľa odsekov 2 alebo 3 nie je prípustná, (a) pokiaľ sa vo výpočte poistného a/alebo poistného plnenia stala chyba, o ktorej mal poverený a zodpovedný poistný matematik vedieť, alebo (b) ak sa základný výpočet nepoužije na všetky poistné zmluvy vrátane tých, ktoré boli uzavreté po úprave. (5) Zvýšenie poistného alebo zníženie poistného plnenia nadobudne účinnosť tri mesiace po tom, čo poisťovateľ zaslal poistníkovi písomné oznámenie o zvýšení poistného alebo znížení poistného plnenia, o dôvode daného zvýšenia alebo zníženia a o práve poistníka požiadať o zníženie poistného plnenia. (6) Poistník je v prípade poistnej zmluvy pre životné poistenie, pokrývajúcej poistné riziká, pri ktorých je isté, že poisťovateľ je povinný plniť, oprávnený na zníženie poistného, čo má z hľadiska nepredvídateľnej a trvalej zmeny vo vzťahu k biometrickým rizikám použitým ako základ pre výpočet poistného za následok, že pôvodná výška poistného nie je dostatočná a vhodná pre záruku dlhodobej schopnosti poisťovateľa vyplatiť poistné plnenie. Toto zníženie musí byť schválené nezávislým aktuárom alebo dozorným orgánom. (7) Práva uvedené v tomto článku možno uplatniť až po piatich rokoch po uzavretí poistnej zmluvy.

Článok 17:304 Zmena zmluvných podmienok (1) Ustanovenie poistnej zmluvy, ktoré umožňuje poisťovateľovi zmeniť zmluvné podmienky, iné než tie, ktoré sa týkajú poistného a poistného plnenia, je neplatné, okrem prípadu, ak sa táto zmena vyžaduje z dôvodu (a) súladu so zmenou zákona o dohľade nad poisťovníctvom vrátane záväzných opatrení prijatých dozorným orgánom, alebo (b) súladu so zmenou kogentných ustanovení príslušného národného práva pre zamestnanecké dôchodkové schémy, alebo (c) súladu so zmenou národných pravidiel, ktoré ukladajú konkrétne podmienky uzavretia poistnej zmluvy pre životné poistenie za účelom podriadenia pod osobitný daňový režim alebo za účelom oprávnenia na poberanie štátnej (sociálnej) podpory, alebo aby (d) nahradenia ustanovenia poistnej zmluvy v súlade s článkom 2:304 ods. 2 druhá veta. (2) Zmena zmluvných podmienok nadobudne účinnosť začiatkom tretieho mesiaca od doručenia písomného oznámenia poistníkovi, v ktorom ho poisťovateľ informuje o zmene a jej dôvodoch. (3) Odsek 1 sa použije bez ohľadu na ďalšie požiadavky na platnosť zmluvných podmienok.

Štvrtý oddiel: Vzťah k národnému právu Článok 17:401 Dôchodkové schémy Poistná zmluva pre životné poistenie týkajúca sa dôchodkovej schémy podlieha kogentným ustanoveniam príslušného národného práva pre dôchodkové schémy. PEPPZ sa použijú len v rozsahu zodpovedajúcom týmto ustanoveniam.

Článok 17:402 Daňový režim a štátna podpora PEPPZ nemôžu ovplyvniť národné pravidlá, ktoré ukladajú konkrétne podmienky uzavretia poistnej zmluvy pre životné poistenie za účelom podriadenia pod osobitný daňový režim alebo za účelom

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oprávnenia na poberanie štátnej (sociálnej) podpory. V prípade rozporu takých požiadaviek príslušného národného práva s ustanoveniami PEPPZ sa možno od PEPPZ odchýliť.

Piaty oddiel: Poistná udalosť Článok 17:501 Vyšetrenie poistnej udalosti poisťovateľom a jeho informačná povinnosť (1) Poisťovateľ, ktorý má dôvod sa domnievať, že mohlo dôjsť k poistnej udalosti, urobí potrebné opatrenia, aby túto skutočnosť zistil. (2) Ak sa poisťovateľ dozvie o vzniku poistnej udalosti, vynaloží za daných okolností čo najväčšie úsilie, aby zistil totožnosť a adresu oprávneného, a následne túto osobu informuje. Poisťovateľ poskytne tieto informácie najneskôr do 30 dní po tom, čo sa dozvedel o totožnosti a adrese oprávneného. (3) Ak poisťovateľ poruší povinnosti podľa odseku 1 alebo 2, plynutie premlčania nároku oprávneného sa dočasne zastavuje dovtedy, až kým sa oprávnený nedozvie o svojich skutočných nárokoch.

Článok 17:502 Samovražda (1) Ak osoba ohrozená rizikom spácha do jedného roka po uzavretí poistnej zmluvy samovraždu, poisťovateľ je zbavený povinnosti vyplatiť poistnú sumu. Ak sa tak stane, poisťovateľ vyplatí odkupnú hodnotu a akýkoľvek zisk v súlade s článkom 17:602. (2) Odsek 1 sa nepoužije v prípade, ak (a) osoba ohrozená rizikom koná pri spáchaní samovraždy v duševnom stave, ktorý jej zabraňuje slobodne sa rozhodnúť, alebo (b) je nepochybne dokázané, že osoba ohrozená rizikom nemala v čase uzavretia poistnej zmluvy v úmysle spáchať samovraždu.

Článok 17:503 Úmyselné usmrtenie osoby ohrozenej rizikom (1) Ak oprávnený usmrtí osobu ohrozenú rizikom úmyselne, jeho určenie ako osoby oprávnenej na poistné plnenie sa považuje za zrušené. (2) Ak postupník usmrtí osobu ohrozenú rizikom úmyselne, postúpenie nároku na poistné plnenie je neplatné. (3) Ak poistník, ktorý je zároveň oprávnený, usmrtí osobu ohrozenú rizikom úmyselne, poisťovateľ sa zbavuje povinnosti plniť. (4) Ak oprávnený alebo poistník, ktorý usmrtí osobu ohrozenú rizikom, tak urobí oprávnene, tak ako v prípade legitímnej sebaobrany, tento článok sa nepoužije.

Šiesty oddiel: Zmena a odkup Článok 17:601 Zmena poistnej zmluvy (1) Článok 5:103 sa nepoužije na poistné zmluvy pre životné poistenie, na ktoré sa vzťahuje redukovaná alebo odkupná hodnota. Také zmluvy sú zmenené na poistky oslobodené od povinnosti platiť poistné, okrem prípadu, ak poistník požiada o výplatu odkupnej hodnoty do štyroch týždňov od poskytnutia informácií uvedených v odseku 2.

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(2) Poisťovateľ informuje poistníka o redukovanej a odkupnej hodnote do štyroch týždňov od uplynutia lehoty uvedenej v článku 5:101 písm. b) alebo v článku 5:102 ods. 1 písm. b) a požiada poistníka, aby si vybral medzi zmenou poistnej zmluvy a výplatou odkupnej hodnoty. (3) Žiadosť poisťovateľa o zmenu poistnej zmluvy alebo výplatu odkupnej hodnoty treba zaslať v písomnej forme.

Článok 17:602 Odkup poistnej zmluvy (1) Poistník môže kedykoľvek zaslať poisťovateľovi písomnú žiadosť o výplatu odkupnej hodnoty, ktorá sa vzťahuje na poistnú zmluvu, v čiastočnej alebo plnej výške za podmienky, že to nastane najskôr po jednom roku od uzavretia poistnej zmluvy. Poistná zmluva sa primerane upraví alebo ukončí. (2) Ak poisťovateľ, s ohľadom na článok 17:601, vypovedá, odvolá poistnú zmluvu pre životné poistenie, na ktorú sa vzťahuje odkupná hodnota, alebo od nej odstúpi, je povinný vyplatiť odkupnú hodnotu, a to dokonca aj v prípade uvedenom v článku 2:104. (3) Poisťovateľ informuje poistníka na základe jeho žiadosti, ale v každom prípade raz ročne o aktuálnej výške odkupnej hodnoty a rozsahu, v ktorom je garantovaná. (4) Okrem odkupnej hodnoty sa vyplatí podiel na akomkoľvek zisku, na ktorý je poistník oprávnený, okrem prípadu, ak bol tento zohľadnený už vo výpočte odkupnej hodnoty. (5) Splatné sumy v súlade s týmto článkom sa vyplatia najneskôr do dvoch mesiacov po tom, čo poistník doručil žiadosť poisťovateľovi.

Článok 17:603 Redukovaná hodnota; Odkupná hodnota (1) Poistná zmluva stanovuje spôsob výpočtu redukovanej a/alebo odkupnej hodnoty v súlade s právom domovského členského štátu poisťovateľa. Stanovený spôsob výpočtu odkupnej a/alebo redukovanej hodnoty je v súlade s platnými poistno-matematickými zásadami a ustanovením odseku 2. (2) Ak poisťovateľ odpočíta náklady na uzavretie poistnej zmluvy, urobí tak v rovnomerne rozpočítaných sumách a v rámci lehoty nie kratšej ako päť rokov. (3) Poisťovateľ je oprávnený odpočítať primeranú sumu, ktorá sa vypočíta v súlade s platnými poistno-matematickými zásadami, aby pokryl náklady súvisiace s výplatou odkupnej hodnoty, okrem prípadu, ak je vo výpočte také zníženie o danú sumu už zahrnuté.

Šiesta časť: Skupinové poistenie Osemnásta kapitola: Osobitné ustanovenia pre skupinové poistenie Prvý oddiel: Skupinové poistenie všeobecne Článok 18:101 Použiteľnosť Poistné zmluvy pre skupinové poistenie podliehajú PEPPZ za podmienky, že organizátor skupiny a poisťovateľ uzavreli dohodu v súlade s článkom 1:102. Skupinové poistenie je buď doplnkové a podlieha druhému oddielu tejto kapitoly alebo voliteľné a podlieha tretiemu oddielu tejto kapitoly.

Článok 18:102 Všeobecná povinnosť riadnej starostlivosti organizátora skupiny (1) Pri dojednaní a plnení z poistnej zmluvy pre životné poistenie koná organizátor skupiny svedomito a v dobrej viere, pričom vezme do úvahy oprávnené záujmy člena skupiny.

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(2) Organizátor skupiny zašle členom skupiny akékoľvek dôležité informácie vydané poisťovateľom a informuje ich o akýchkoľvek dodatkoch k poistnej zmluve.

Druhý oddiel: Doplnkové skupinové poistenie Článok 18:201 Použitie PEPPZ Ak je to potrebné, PEPPZ sa použijú na doplnkové skupinové poistenie mutatis mutandis.

Článok 18:202 Informačné povinnosti (1) Po zaradení člena do skupiny mu organizátor skupiny bez zbytočného odkladu poskytne informácie o: (a) existencii poistnej zmluvy, (b) rozsahu poistného krytia, (c) akýchkoľvek preventívnych opatreniach a akýchkoľvek ďalších podmienkach na zabezpečenie poistnej ochrany, a (d) vybavovaní nárokov. (2) Dôkazné bremeno o tom, že členovi skupiny boli doručené informácie uvedené v odseku 1, zaťažuje organizátora skupiny.

Článok 18:203 Vypovedanie poistnej zmluvy poisťovateľom (1) Na účely článku 2:604 sa uplatnenie práva vypovedať poistnú zmluvu poisťovateľom považuje za odôvodnené len v prípade, ak sa vzťahuje iba na vylúčenie členov skupiny z poistného krytia, ktorým vznikla poistná udalosť. (2) Na účely článku 4:102 a 4:203 ods. 1 je uplatnenie práva vypovedať poistnú zmluvu poisťovateľom účinné len vylúčením tých členov skupiny z poistného krytia, ktorí nevykonali požadované preventívne opatrenia alebo, podľa okolností konkrétneho prípadu, u ktorých nastalo zvýšenie poistných rizík. (3) Na účely článku 12:102 má zánik poistnej zmluvy účinky len vylúčením členov skupiny, ktorí previedli svoje právo k poistenému majetku, mimo poistného krytia.

Článok 18:204 Právo na predĺženie poistného krytia – Skupinové životné poistenie (1) Ak poistná zmluva pre doplnkové skupinové životné poistenie zanikla, alebo ak člen opustí skupinu, poistné krytie sa skončí uplynutím troch mesiacov alebo zánikom poistnej zmluvy pre skupinové životné poistenie, podľa toho, čo nastane skôr. Ak sa tak stane, člen skupiny má nárok na rovnocenné poistné krytie na základe novej osobitnej poistnej zmluvy uzavretej s príslušným poisťovateľom bez ďalšieho ohodnotenia rizika. (2) Organizátor skupiny poskytne členovi skupiny bez zbytočného odkladu písomné informácie o: (a) okamžitom zrušení jeho poistného krytia na základe poistnej zmluvy pre skupinové životné poistenie, (b) jeho právach podľa odseku 1 a (c) spôsobe uplatnenia týchto práv. (3) Ak člen skupiny naznačil svoj zámer uplatniť svoje právo podľa článku 18:204 ods. 1, poistná zmluva uzavretá medzi poisťovateľom a členom skupiny naďalej trvá ako samostatná poistná zmluva, v rámci ktorej sa poistné vypočíta na základe samostatnej poistky platnej v tom čase, pričom sa nevezme do úvahy súčasný zdravotný stav alebo vek člena skupiny.

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Tretí oddiel: Voliteľné skupinové poistenie Článok 18:301 Voliteľné skupinové poistenie všeobecne (1) Voliteľné skupinové poistenie sa považuje za kombináciu rámcovej zmluvy uzavretej medzi poisťovateľom a organizátorom skupiny a jednotlivých poistných zmlúv uzavretých medzi poisťovateľom a členmi skupiny na jej základe. (2) PEPPZ sa vzťahujú na jednotlivé poistné zmluvy v prípade, ak sa organizátor skupiny a poisťovateľ dohodli na ich použití, ale nevzťahujú sa na rámcovú zmluvu s výnimkou článkov 18:101 a 18:102.

Článok 18:302 Zmena zmluvných podmienok Zmena zmluvných podmienok rámcovej zmluvy má vplyv len na jednotlivé poistné zmluvy, ak, podľa okolností konkrétneho prípadu, je účinok takej zmeny v súlade s podmienkami uvedenými v článkoch 2:603, 17:303 a 17:304.

Článok 18:303 Trvanie poistnej ochrany Výpoveď rámcovej zmluvy alebo zrušenie členstva zo strany konkrétneho člena skupiny nemá žiadne účinky na poistnú zmluvu uzavretú medzi poisťovateľom a členom skupiny.

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Spanish version by Juan Bataller, Paola Rodas Paredes and Nuria Pastor Martorell

Principios de Derecho Europeo del Contrato de Seguro (PDECS) Primera parte: Disposiciones generales aplicables a todos los contratos incluidos en el ámbito de aplicación de los Principios de Derecho europeo del contracto de seguro (PDECS) Capítulo 1: Disposiciones preliminares Sección 1: Aplicación de los PDECS Sección 2: Disposiciones Generales Sección 3: Medios de protección

Capítulo 2: Fase inicial y duración del contrato de seguro Sección 1: Deber de información precontractual del solicitante Sección 2: Deberes precontractuales del asegurador Sección 3: Conclusión del contrato Sección 4: Cobertura preliminar y retroactiva Sección 5: Póliza de seguro Sección 6: Duración del contrato de seguro Sección 7: Los deberes de información postcontractual del asegurador

Capítulo 3: Mediadores de seguro Capítulo 4: El riesgo asegurado Sección 1: Medidas preventivas Sección 2: Agravación del riesgo Sección 3: Reducción del riesgo

Capítulo 5: La prima Capítulo 6: El siniestro Capítulo 7: Prescripción Segunda parte: Disposiciones generales aplicables a todos los seguros indemnizatorios Capítulo 8: Suma asegurada y valor asegurado

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Capítulo 9: Derecho a la indemnización Capítulo 10: Derecho a la subrogación Capítulo 11: Personas aseguradas diferentes del tomador del seguro Capítulo 12: Riesgo asegurado Tercera parte: Disposiciones generales de los seguros de sumas Capítulo 13: Admisibilidad Cuarta parte: Seguro de responsabilidad civil Capítulo 14: Seguro de responsabilidad civil general Capítulo 15: Reclamaciones y acciones directas Capítulo 16: Seguro obligatorio Quinta parte: Seguro sobre la vida Capítulo 17: Disposiciones especiales para el seguro sobre la vida Sección 1: Terceros Sección 2: Fase inicial y duración del contrato Sección 3: Modificaciones durante la vigencia del contrato Sección 4: Derecho nacional Sección 5: Siniestro Sección 6: Reducción y rescate

Sexta parte: Del seguro de grupo Capítulo 18: Disposiciones generales del seguro de grupo Sección 1: Del seguro de grupo en general Sección 2: Seguro de grupo accesorio Sección 3: Contrato de seguro de grupo electivo

Spanish: Principios de Derecho Europeo del Contrato de Seguro (PDECS)

Primera parte: Disposiciones generales aplicables a todos los contratos incluidos en el ámbito de aplicación de los Principios de Derecho europeo del contracto de seguro (PDECS) Capítulo 1: Disposiciones preliminares Sección 1: Aplicación de los PDECS Artículo 1:101 Ámbito sustantivo de aplicación (1) Los PDECS serán de aplicación a los seguros privados en general, incluyendo los seguros mutuales. (2) Los PDECS no serán de aplicación al reaseguro.

Artículo 1:102 Aplicación optativa Los PDECS serán de aplicación cuando las partes, no obstante las limitaciones a la elección de la ley aplicable que existan en Derecho internacional privado, hayan acordado que su contrato esté regido por los mismos. Sin perjuicio de lo dispuesto en el Artículo 1:103, los PDECS serán de aplicación como un todo, sin que se permita la exclusión de artículos concretos.

Artículo 1:103 Carácter imperativo (1) Los artículos 1:102 en su segunda frase, 2:104, 2:304, 13:101, 17:101 y 17:503 tendrán carácter imperativo. Otros artículos son imperativos en tanto que regulan comportamientos fraudulentos. (2) Un contrato podrá disponer la inaplicación de cualquier otra disposición de los PDECS en la medida en que dicha inaplicación no vaya en detrimento del tomador de la póliza, el asegurado o el beneficiario. (3) La inaplicación del segundo párrafo se permitirá en beneficio de cualquiera de las partes en aquellos contratos que cubran altos riesgos y dentro de los términos del artículo 13, párrafo 27 de la Directiva 2009/138/EC. En los contratos de seguro de grupo, la inaplicación sólo podrá llevarse a cabo contra un individuo asegurado que cumpla con las características personales referidas en el artículo 13, párrafo 27, letras b o c de la Directiva 2009/138/EC, cuando sea de aplicación.

Artículo 1:104 Interpretación Los PDECS deben de ser interpretados teniendo en consideración su tenor literal, contexto, finalidad y trasfondo comparativo. En particular, se deberá atender a la necesidad de promover la buena fe1 dentro del mercado asegurador, la seguridad jurídica en las relaciones contractuales, la uniformidad de aplicación y la adecuada protección de los tomadores de seguros.

Artículo 1:105 Derecho nacional y principios generales (1) No se permitirá acudir al Derecho nacional para restringir o complementar los PDECS. Esta regla no será de aplicación a la legislación nacional imperativa especialmente concebida para ramos de seguros que no estén cubiertos por reglas especiales contenidas en los PDECS.

1

N. de la T.: La versión inglesa se refiere a “ fair dealing”. Este concepto hace referencia al deber de lealtad de partes implicadas en una negociación. Entendemos que este concepto en nuestro Derecho se encuentra subsumido en el de la buena fe, por lo que no hemos incluido ninguna mención adicional a la de buena fe, a fi n de evitar una redacción que podría prestarse a confusión.

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(2) Las cuestiones derivadas del contrato de seguro que no estén expresamente resueltas en los PDECS, deberán resolverse de conformidad con los Principios de Derecho Contractual Europeo (PDCE) y, en ausencia de normas relevantes en los mismos, de acuerdo con los principios generales comunes al Derecho de los Estados Miembros.

Sección 2: Disposiciones Generales Artículo 1:201 Contrato de seguro (1) “Contrato de Seguro” significa un contrato en virtud del cual una parte, el asegurador, promete a otra parte, el tomador, una cobertura frente a un riesgo concreto, a cambio de una prima; (2) “Siniestro” significa la materialización del riesgo especificado en el contrato de seguro. (3) “Seguro de daños” significa un seguro en virtud del cual el asegurador se obliga a indemnizar los daños sufridos en caso de que ocurra el siniestro. (4) “Seguro de sumas” significa un seguro en virtud del cual el asegurador se obliga a pagar una suma fija de dinero en caso de que ocurra el siniestro. (5) “Seguro de responsabilidad civil” significa un seguro en virtud del cual el riesgo es la exposición del asegurado a responsabilidad civil respecto de la víctima. (6) “Seguro de vida” significa un seguro en virtud del cual la obligación del asegurador o el pago de la prima dependen de un siniestro determinado exclusivamente en base a la muerte o supervivencia de la persona en riesgo. (7) “Contratos de seguro de grupo” son contratos entre un asegurador y un organizador de un grupo que en beneficio de los miembros que tienen una relación común con el organizador. Un contrato de seguro de grupo podrá cubrir también a los familiares de los miembros del grupo. (8) “Contratos de seguro de grupo accesorio” son contratos de seguro de grupo por los que los miembros pertenecientes al grupo están automáticamente asegurados por el mero hecho de pertenecer al grupo y sin posibilidad de renunciar al seguro. (9) “Contratos de seguro grupo electivo” son contratos de seguro de grupo por los que los miembros pertenecientes al grupo están cubiertos como consecuencia de su previa solicitud del seguro o por su falta de renuncia.

Artículo 1:202 Definiciones adicionales (1) “Asegurado” significa la persona cuyo interés es protegido contra daños por un contrato de seguro de daños; (2) “Beneficiario” significa la persona a cuyo favor se abona el importe asegurado en virtud de un seguro de sumas. (3) “Persona en riesgo” significa la persona sobre cuya vida, salud, integridad o estatus es suscrito un seguro; (4) “Víctima” significa, en un seguro de responsabilidad civil, la persona por cuya muerte, daño personal o daño material es responsable civilmente el asegurado; (5) “Agente de seguros” significa un mediador de seguros contratado por un asegurador para que lleve a cabo la publicidad, la venta o la gestión de contratos de seguros; (6) “Prima” significa el importe debido al asegurador por parte del tomador a cambio de la cobertura; (7) “Período contractual” significa el período de obligaciones contractuales que comienza con la perfección del contrato y termina cuando transcurre el período de tiempo acordado;

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(8) “Período asegurado” significa el período durante el cual se debe la prima de acuerdo con lo dispuesto por las partes (9) “Período de responsabilidad” significa el período de cobertura. (10) “Seguro obligatorio” significa el seguro contratado como consecuencia de una obligación impuesta por ley u otra norma jurídica.

Artículo 1:203 Idioma e interpretación de los documentos2 (1) Todos los documentos suministrados por el asegurador deben de ser claros e inteligibles y deben estar redactados en el idioma en el que el contrato es negociado. (2) Cuando exista duda acerca del significado de una palabra de un documento o de una información suministrada por el asegurador, prevalecerá la interpretación más favorable al tomador del seguro, asegurado o beneficiario, según corresponda.

Artículo 1:204 Recepción de los documentos: prueba La carga de la prueba de que el tomador del seguro ha recibido los documentos que deben ser proporcionados por el asegurador recae en el asegurador.

Artículo 1:205 Forma de las comunicaciones Sin perjuicio de lo estipulado en reglas específicas contenidas en los PDECS, las comunicaciones del solicitante, tomador del seguro, asegurado o beneficiario en relación con el contrato de seguro, no requerirán forma específica alguna.

Artículo 1:206 Conocimiento imputable Si el tomador del seguro, el asegurado o el beneficiario confían a alguna persona responsabilidades esenciales para la conclusión o ejecución del contrato, el conocimiento relevante que esa persona debe o debería tener para cumplir dichas responsabilidades se considerará como el conocimiento del tomador del seguro, asegurado o beneficiario según sea el caso.

Artículo 1:207 No discriminación3 (1) El género, embarazo, maternidad, nacionalidad u origen racial o étnico no serán factores resultantes en diferencias para el cálculo de las primas y beneficios (2) Las cláusulas en contravención del párrafo 1, incluyendo las cláusulas referentes a las primas, no vincularán al tomador del seguro o al asegurado. Sin perjuicio de lo establecido en el párrafo 3, el contrato continuará vinculando a las partes sobre la base de condiciones no discriminatorias. (3) En caso de incumplimiento del párrafo 1, el tomador del seguro podrá finalizar el contrato. La comunicación de la finalización del contrato deberá proporcionarse por escrito al asegurador dentro de los dos meses siguientes a que el incumplimiento sea conocido por el tomador del seguro.

Artículo 1:208 Test genéticos (1) El asegurador no pedirá al solicitante, tomador del seguro o la persona en riesgo que se someta a un test genético o revele los resultados de dicho test. Tampoco deberá ser utilizada dicha información por el asegurador con motivo de la valoración del riesgo.

2 3

Artículo 1:203, segundo párrafo está basado en el artículo 5 de la Directiva 93/13/EEC. Este artículo está basado en la Directiva 2004/113/CE.

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(2) El párrafo 1 no será de aplicación a contratos de seguro personales en los que la persona en riesgo tenga 18 años de edad o más y en los que la suma asegurada de dicha persona exceda los 300,000 euros o la cantidad a pagar en virtud de la póliza exceda los 30,000 euros por año.

Sección 3: Medios de protección4 Artículo 1:301 Acciones de cesación5 (1) Una entidad calificada, tal y como se describe en el párrafo 2, tendrá la facultad de solicitar de un tribunal o autoridad nacional competente la obtención de una orden prohibiendo o requiriendo la cesación del incumplimiento de los PDECS, si ello fuera procedente de acuerdo con lo establecido en el artículo 1:102. (2) Una entidad calificada es cualquier cuerpo u organización de la lista realizada por la Comisión Europea para el cumplimiento del artículo 4 de la Directiva 2009/22/CE del Parlamento Europeo y el Consejo, de 23 de abril 2009, acerca de las acciones de cesación para la protección de los intereses de los consumidores (tal y como la misma ha sido modificada).

Artículo 1:302 Reclamaciones extrajudiciales y mecanismos de autocomposición La aplicación de los PDECS no excluye el acceso a los medios de reclamación extrajudicial o a los mecanismos de autocomposición disponibles para el tomador del seguro, asegurado o beneficiario.

Capítulo 2: Fase inicial y duración del contrato de seguro Sección 1: Deber de información precontractual del solicitante6 Artículo 2:101 Deber de información (1) En el momento de concluir el contrato, el solicitante informará al asegurador de las circunstancias que el solicitante conozca o debería conocer, y que sean objeto de preguntas claras y precisas por parte del asegurador. (2) Las circunstancias a las que hace referencia el párrafo 1 incluyen aquellas que la persona que sea asegurada conocía o debería haber conocido.

Artículo 2:102 Incumplimiento (1) Cuando el tomador del seguro incumpla el artículo 2:101, de conformidad con lo establecido en los párrafos 2 al 5, el asegurador podrá proponer una modificación razonable del contrato o la 4

5 6

N. de la T.: “Enforcement”, en la versión inglesa. Este término hace referencia a los mecanismos existentes para conseguir el cumplimento de una norma, contrato, etc. (en este caso del contrato de seguro). Es un término de difícil traducción en castellano, pues no encuentra un equivalente exacto en nuestra lengua. Por ello, nos hemos decido por procurar una expresión que contenga la esencia del concepto, para lo que ha servido de inspiración la traducción: Benlloch/Irujo/Sanz, Principios de Derecho Europeo de los Contratos (Madrid, Colegios Notariales de España, 2003). Este artículo está basado en la Directiva 2009/22/CE. N. de la T.: Hemos utilizado el término “solicitante” como equivalente a “applicant”, para hacer referencia a la persona que manifiesta al asegurador su interés en contratar un seguro. Sin embargo debe tenerse en cuenta que dicho término no coincide necesariamente con el concepto establecido por la Ley del Contrato de Seguro.

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(2)

(3)

(4)

(5)

finalización del mismo. A tal fin, el asegurador comunicará por escrito su intención, acompañando a la misma la información acerca de las consecuencias legales de su decisión, dentro del mes siguiente a que el incumplimiento del artículo 2:101 sea conocido o resulte patente. Si el asegurador propone una variación razonable, el contrato continuará sobre la base de la variación propuesta, a menos que el tomador del seguro rechace la propuesta dentro de un mes desde que reciba la comunicación a que hace referencia el párrafo 1. En ese caso, el asegurador podrá finalizar7 el contrato dentro del período de un mes desde que reciba la comunicación escrita del rechazo del tomador del seguro. El asegurador no podrá finalizar el contrato si el tomador del seguro incumple, sin que le sea imputable, el artículo 2:101, a menos que el asegurador pruebe que no habría formalizado el contrato si hubiera conocido la información correspondiente. La finalización del contrato tendrá efecto un mes después de que el tomador del seguro hubiera recibido la comunicación por escrito referida en el párrafo 1. La modificación del contrato tendrá efecto de acuerdo con lo establecido por las partes. Si un siniestro es causado por un elemento del riesgo que es objeto de omisión o descripción negligente por parte del tomador del seguro, y ocurre antes de que la finalización o modificación del contrato tenga lugar, ninguna prestación asegurada será abonada si el asegurador no hubiera formalizado el contrato de haber conocido la información en cuestión. Sin embargo, si el asegurador hubiera formalizado el contrato con una prima mayor o en términos diferentes, la indemnización será abonada proporcionalmente o de acuerdo con dichos términos.

Artículo 2:103 Excepciones Las sanciones a las que hace referencia el artículo 2:102 no serán aplicables a: (a) una pregunta que no fue contestada o que lo fue con información obviamente incompleta o incorrecta; (b) información que debería haber sido puesta en conocimiento del asegurador o información suministrada de manera imprecisa, que no fuera relevante para que un asegurador razonable tomara la decisión de celebrar el contrato o de celebrarlo en los términos acordados; (c) información sobre la cual el asegurador hubiera hecho creer al tomador del seguro que no era necesario suministrar; (d) información que el asegurador conocía o debería haber conocido.

Artículo 2:104 Incumplimiento fraudulento Sin perjuicio de las sanciones previstas en el artículo 2:102, el asegurador podrá anular el contrato, conservando el derecho sobre cualquier prima debida, si hubiera concluido el contrato guiado por un incumplimiento fraudulento del tomador del seguro del artículo 2:101. La comunicación de la anulación se entregará por escrito al tomador del seguro dentro de los dos meses siguientes a que el asegurador conociera el fraude.

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N. de la T.: El texto original se refiere a “right to terminate the contract” en un esfuerzo deliberado por eludir la terminología legal empleada en las distintas legislaciones nacionales para referirse a la extinción del contrato. Por esta razón hemos decidido buscar un término que refleje dicho esfuerzo. La nota vale para todos aquellos artículos donde se hace referencia a la fi nalización del contrato.

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Artículo 2:105 Información adicional Los artículos 2:102-2:104 también serán aplicables a cualquier información proporcionada por el tomador del seguro en el momento de concluir el contrato, adicional a aquella requerida por el artículo 2:101.

Artículo 2:106 Información genética Esta sección no será de aplicación a los resultados de test genéticos sujetos al primer párrafo del Artículo 1:208.

Sección 2: Deberes precontractuales del asegurador Artículo 2:201 Entrega de la documentación precontractual8 (1) El asegurador proporcionará al solicitante una copia de las estipulaciones contractuales propuestas, así como un documento que incluya, si es relevante, la siguiente información: (a) el nombre y domicilio de las partes contratantes; en particular la dirección del domicilio social y su forma jurídica, así como, en su caso, la de la sucursal de la empresa de seguros que proporcione la cobertura. (b) el nombre y domicilio del asegurado y, en caso de seguro de vida, del beneficiario y de la persona en riesgo; (c) el nombre y domicilio del agente de seguros; (d) el tipo de seguro y los riesgos cubiertos; (e) la cantidad asegurada y sus deducciones; (f) la prima o el método para calcularla; (g) el momento en que la prima sea exigible, así como el lugar y forma de pago; (h) el período contractual, incluido la forma de finalización del contrato, y el período de responsabilidad; (i) El derecho a revocar la solicitud o a desistir del contrato, de acuerdo con lo establecido en el artículo 2:303 para el caso de contrato de seguro distinto del de seguro de vida; (j) el hecho de que el contrato está sujeto a los PDECS (k) la existencia de mecanismos de reclamación extrajudiciales o mecanismos de autocomposición para el solicitante y las formas de acceso a los mismos; (l) la existencia de fondos de garantía u otros medios de compensación. (2) En la medida de lo posible, esta información deberá proveerse al solicitante con la antelación suficiente para que éste pueda considerar si concluye o no el contrato. (3) Cuando el solicitante solicite la cobertura de un seguro basado en un formulario y/o cuestionario proporcionado por el asegurador, el asegurador proveerá al solicitante de una copia de todos los documentos completados.

Artículo 2:202 Deber de advertencia sobre inconsistencias en la cobertura (1) En el momento de formalizar el contrato, el asegurador deberá advertir al solicitante de cualquier inconsistencia entre la cobertura ofrecida y las necesidades del solicitante que sean o debieran ser conocidas por el asegurador, considerando las circunstancias y la forma de contratación y, en particular, si el solicitante estuvo asistido por un mediador independiente. (2) En caso de incumplimiento del párrafo 1: 8

Este artículo está basado en los Artículos 183 a 189 de la Directiva 2009/138/EC (Solvencia II).

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(a) el asegurador indemnizará al tomador del seguro de cualquier pérdida resultante del incumplimiento del deber de advertencia, a menos que el asegurador hubiera actuado sin culpa; y (b) el tomador del seguro podrá terminar el contrato mediante comunicación escrita dentro de los dos meses siguientes a que el incumplimiento sea conocido por el tomador del seguro.

Artículo 2:203 Deber de advertencia sobre el comienzo de la cobertura Si el solicitante, razonable pero equivocadamente, cree que la cobertura comienza desde el momento en que se envía la solicitud, y el asegurador conoce o debería haber conocido dicha suposición, el asegurador deberá advertir inmediatamente al solicitante de que la cobertura comenzará cuando el contrato se concluya y, si es aplicable, cuando la primera prima haya sido pagada, a menos que se otorgue cobertura preliminar. Si el asegurador incumple el deber de advertencia será responsable de acuerdo con el artículo 2:202 párrafo 2 (a).

Sección 3: Conclusión del contrato Artículo 2:301 Forma de concluir el contrato El contrato de seguro no requiere para su conclusión o prueba la forma escrita ni quedará sujeto a ningún otro requisito de forma. El contrato puede ser probado por cualquier medio, incluido el testimonio oral.

Artículo 2:302 Revocación de una solicitud de seguro Una solicitud de seguro puede ser revocada por el solicitante si la revocación llega al asegurador antes de que el solicitante reciba la aceptación del asegurador.

Artículo 2:303 Periodo de reflexión9 (1) El tomador del seguro podrá desistir del contrato a través de una comunicación escrita dentro de las dos semanas siguientes a la recepción de la aceptación o, si ésta fuera posterior, a la entrega de los documentos contemplados en el artículo 2:501. (2) El tomador del seguro no podrá desistir del contrato cuando: (a) la duración del contrato sea inferior a un mes; (b) el contrato sea prorrogado según establece el artículo 2:602; (c) sea un caso de cobertura preliminar, un seguro de responsabilidad civil o un seguro de grupo.

Artículo 2:304 Cláusulas abusivas (1) Una cláusula que no haya sido negociada individualmente no será vinculante para el tomador del seguro, el asegurado o el beneficiario si, pese a las exigencias de la buena fe, causan un significativo desequilibrio en detrimento de sus derechos y obligaciones derivados del contrato, considerando la naturaleza del contrato de seguro, los demás términos del contrato y las circunstancias en el momento en que el contrato fue concluido. (2) El contrato seguirá siendo vinculante para las partes, si éste puede subsistir sin las cláusulas abusivas. Si no es posible, la cláusula abusiva será sustituida por otra que las partes podrían haber acordado razonablemente de haber conocido el carácter abusivo de la cláusula. (3) Este artículo es aplicable a las estipulaciones que restrinjan o modifiquen la cobertura, pero no se aplicará 9

Este artículo está basado en la Directiva 2002/65/CE.

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(a) a la adecuación del valor de la cobertura y de la prima; ni (b) a las cláusulas que contengan la descripción esencial de la cobertura concertada o la prima acordada, siempre que las cláusulas estén redactadas en un lenguaje sencillo e inteligible. (4) Se considerará que una cláusula no se ha negociado individualmente cuando haya sido redactado previamente y el tomador del seguro, consecuentemente, no haya podido influir sobre su contenido, particularmente en el caso de los contratos de adhesión. El hecho de que ciertos elementos de una cláusula o que una cláusula aislada se haya negociado individualmente no excluirá la aplicación del presente artículo al resto del contrato si la apreciación global lleva a la conclusión de que se trata de un contrato de adhesión. El asegurador que afirme que una cláusula tipo se ha negociado individualmente asumirá plenamente la carga de la prueba.

Sección 4: Cobertura preliminar y retroactiva Artículo 2:401 Cobertura retroactiva (1) En el caso de cobertura concedida antes de que el contrato se hubiera concluido (cobertura retroactiva), si el asegurador conoce, en el momento de la conclusión del contrato, que no ha ocurrido ningún siniestro, el tomador del seguro sólo abonará las primas correspondientes al período posterior a la conclusión del contrato. (2) En el caso de cobertura retroactiva, si el tomador del seguro conoce, en el momento de la conclusión del contrato, que el siniestro ha ocurrido, el asegurador proveerá cobertura sólo para el período posterior al momento de la conclusión del contrato.

Artículo 2:402 Cobertura preliminar (1) Cuando se concluya un contrato de seguro con cobertura preliminar, el asegurador deberá emitir una nota de cobertura que contendrá, si fuera relevante, la información especificada en el artículo 2:501 (a), (b), (d), (e) y (h). (2) Los artículos 2:201-2:203 así como, sin perjuicio de lo establecido en el párrafo 1, el artículo 2:501, no se aplicarán a la cobertura preliminar.

Artículo 2:403 Duración de la cobertura preliminar (1) Cuando se otorgue cobertura preliminar al solicitante de un contrato de seguro, dicha cobertura no podrá terminar antes del momento en que se haya acordado que comience la cobertura concertada en el contrato de seguro, o antes del momento en que el solicitante reciba la comunicación de la denegación de la solicitud de seguro por parte del asegurador, según corresponda. (2) Cuando la cobertura preliminar se concede a una persona que no ha solicitado un contrato de seguro con el mismo asegurador, la cobertura será concedida por un período de tiempo inferior al establecido en el artículo 2:601, párrafo 1. Dicha cobertura puede ser cancelada por cualquiera de las partes previa comunicación con un plazo de dos semanas.

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Sección 5: Póliza de seguro Artículo 2:501 Contenido Cuando se concluya un contrato de seguro, el asegurador deberá emitir una póliza de seguro, junto con las condiciones generales del contrato si éstas no se encuentran incluidas en la póliza, conteniendo la siguiente información, si ésta es relevante: (a) el nombre y domicilio de las partes contratantes; en particular la dirección del domicilio social y su forma jurídica, así como, en su caso, la de la sucursal de la empresa de seguros que proporcione la cobertura. (b) el nombre y domicilio del asegurado y, en caso de seguro de vida, del beneficiario y de la persona en riesgo; (c) el nombre y domicilio del mediador de seguros; (d) el objeto del seguro y los riesgos cubiertos; (e) la suma asegurada y sus deducciones; (f) la prima o el método para calcularla; (g) el momento en que la prima sea exigible, así como el lugar y forma de pago; (h) el período contractual, incluido la forma de finalización del contrato, y el período de responsabilidad; (i) El derecho a desistir del contrato, de acuerdo con lo establecido en el artículo 2:303 para el caso de contrato de seguro distinto al seguro de vida y de acuerdo con el establecido en el Artículo 17:203 para el caso de seguro de vida: (j) el hecho de que el contrato está sujeto a los PDECS (k) la existencia de mecanismos de reclamación extrajudiciales o mecanismos de autocomposición para el solicitante y las formas de acceso a los mismos; (l) la existencia de fondos de garantía u otros medios de compensación.

Artículo 2:502 Efectos de la póliza (1) Si los términos del contrato de seguro difieren de aquellos establecidos en la solicitud del tomador del seguro o de cualquier otro acuerdo anterior entre las partes, dichas diferencias que habrán sido resaltadas en la póliza serán tenidas por aceptadas por el tomador del seguro a menos que éste rechace las mismas dentro del período de un mes desde la recepción de la póliza. El asegurador comunicará al tomador del seguro, resaltándolo con letra negrita, el derecho a rechazar las diferencias destacadas en la póliza. (2) Si el asegurador no cumpliera con lo establecido en el párrafo 1, se considerará que el contrato ha sido acordado en los términos establecidos en la solicitud del tomador del seguro o en el acuerdo anterior entre las partes, según sea el caso.

Sección 6: Duración del contrato de seguro Artículo 2:601 Duración del contrato de seguro (1) La duración del contrato de seguro será de un año. Las partes podrán acordar un período diferente en función de la naturaleza del riesgo. (2) El párrafo 1 no será de aplicación a los seguros de personas.

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Artículo 2:602 Prórroga (1) Una vez transcurrido el período de un año señalado en el artículo 2:601, el contrato se renovara automáticamente a menos que: (a) el asegurador haya comunicado por escrito lo contrario, con al menos un mes de antelación a la fecha de expiración del período contractual, señalando las razones de esta decisión; o (b) el tomador del seguro haya comunicado por escrito lo contrario, y como muy tarde, hasta el día en el que el período contractual expira o dentro del mes siguiente a la recepción del recibo de la prima, si esta fecha es posterior. En este último caso, el período de un mes sólo empezara a correr si ha sido claramente resaltado con letra negrita en el recibo. (2) A los efectos del párrafo 1 (b) la notificación será tenida por entregada en cuanto haya sido enviada.

Artículo 2:603 Modificación de cláusulas y condiciones (1) En un contrato de seguro sujeto a prórroga automática de acuerdo con lo establecido en el artículo 2:602, una cláusula que permita al asegurador modificar la prima o cualquier otra cláusula o condición del contrato será ineficaz a menos que: (a) las modificaciones sólo tengan efecto a partir de la siguiente prórroga; (b) el asegurador haya enviado al tomador del seguro comunicación por escrito de la modificación como mínimo un mes antes de la expiración del período contractual actual; y (c) la comunicación informe al tomador del seguro acerca de su derecho a dar por finalizado el contrato y de las consecuencias si dicho derecho no es ejercido. (2) El párrafo 1 será de aplicación sin perjuicio de otros requisitos para la validez de las cláusulas modificativas.

Artículo 2:604 Finalización tras el acaecimiento del siniestro (1) Una cláusula que prevea la finalización del contrato después de producirse el siniestro no será válida a menos que: (a) otorgue el derecho de finalización a ambas partes; y (b) la póliza no sea una de seguros de personas. (2) Tanto la cláusula de finalización como el ejercicio de cualquier derecho de finalización deberán ser razonables. (3) Cualquier derecho a la finalización expirará si la parte en cuestión no ha comunicado por escrito la finalización a la otra parte, dentro de los dos meses siguientes a haber tenido conocimiento del siniestro. (4) La cobertura del seguro terminará dos semanas después de la comunicación establecida en el párrafo 3.

Sección 7: Los deberes de información postcontractual del asegurador Artículo 2:701 Deber general de información A lo largo del período contractual el asegurador dará al tomador del seguro por escrito y sin demoras injustificadas, información acerca de cualquier cambio concerniente a su nombre o denominación social, domicilio, forma jurídica, domicilio de su oficina principal y de la agencia o sucursal con la que celebró el contrato.

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Artículo 2:702 Información adicional a suministrar bajo requerimiento (1) Cuando el tomador del seguro lo requiera, el asegurador deberá proporcionarle sin demora la información concerniente a: (a) en tanto pueda ser razonablemente esperado del asegurador, todos los temas relevantes relativos a la ejecución del contrato; (b) nuevas cláusulas estándar ofrecidas por el asegurador para los contratos de seguro del mismo tipo que los concluidos con el tomador del seguro. (2) Tanto el requerimiento por parte del tomador del seguro como la respuesta por parte del asegurador deberán ser por escrito.

Capítulo 3: Mediadores de seguro Artículo 3:101 Facultades de los agentes de seguro (1) Un agente de seguros está facultado para realizar, en representación del asegurador, todos los actos que, de acuerdo con la práctica actual del sector asegurador, están dentro del ámbito de su actividad profesional. Cualquier restricción de las facultades del agente deberá ser claramente comunicada en documento separado al tomador del seguro. Sin embargo, las facultades del agente deberán cubrir como mínimo el ámbito de su actividad profesional. (2) En cualquier caso, las facultades del agente de seguros deberán incluir la capacidad de: (a) informar y aconsejar al tomador del seguro; y (b) recibir comunicaciones del tomador del seguro. (3) La información relevante que el agente de seguros tiene o debería tener en su actividad profesional se presumirá conocida por el asegurador.

Artículo 3:102 Agente de seguros que se presenta como independiente Si un agente de seguros se presenta como mediador independiente y actúa incumpliendo los deberes impuestos por ley para dicho tipo de mediador, el asegurador será responsable de dicho incumplimiento.

Capítulo 4: El riesgo asegurado Sección 1: Medidas preventivas Artículo 4:101 Medidas preventivas: significado Una medida preventiva es una cláusula del contrato de seguro, sea o no establecida como una condición precedente para la responsabilidad del asegurador, que exige que, antes de que el siniestro ocurra, el tomador del seguro o el asegurado realicen o no ciertos actos.

Artículo 4:102 Derecho del asegurador a finalizar el contrato (1) La cláusula que prevea que en caso de incumplimiento de las mediadas preventivas el asegurador podrá dar por finalizado el contrato, no surtirá efectos a menos que el tomador del seguro o el asegurado haya incumplido sus obligaciones con la intención de causar los daños o con negligencia y conocimiento de que los daños probablemente se producirían. (2) El derecho a terminar el contrato se ejercerá a través de comunicación escrita al tomador del seguro dentro del mes siguiente al momento en que el incumplimiento de las medidas preven-

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tivas sea conocido o devenga aparente al asegurador. La cobertura terminará en el momento de finalización.

Artículo 4:103 Exención de la responsabilidad del asegurador (1) Una cláusula que establezca que el incumplimiento de una medida preventiva exime total o parcialmente de responsabilidad al asegurador, sólo producirá efectos en la medida en que el daño fuera causado por incumplimiento del tomador del seguro o asegurado con la intención de causar los daños o con negligencia y conocimiento de que los daños probablemente se producirían. (2) Sin perjuicio de que se establezca una cláusula específica que prevea la reducción de la prestación asegurada de acuerdo con el grado de culpa, el tomador del seguro o el asegurado, según sea el caso, tendrán derecho a la prestación asegurada correspondiente a cualquier pérdida ocasionada por el incumplimiento negligente de una medida preventiva.

Sección 2: Agravación del riesgo Artículo 4:201 Cláusulas concernientes a la agravación del riesgo Si el contrato de seguro contiene cláusulas concernientes a la agravación del riesgo asegurado, éstas no producirán efectos a menos que la agravación del riesgo en cuestión sea relevante y de un tipo especificado en el contrato de seguro.

Artículo 4:202 Deber de comunicación de la agravación del riesgo (1) Si una cláusula concerniente a la agravación del riesgo requiere comunicación de la agravación, el tomador del seguro, el asegurado o el beneficiario, según corresponda, deberán comunicar el hecho, siempre y cuando la persona obligada a comunicar tenga o debiera tener conocimiento de la existencia de la cobertura del seguro y de la agravación del riesgo. También será válida la comunicación de la agravación del riesgo efectuada por otra persona. (2) Si la cláusula requiere que la comunicación se lleve a cabo en un período de tiempo limitado, dicho período deberá ser razonable. La comunicación producirá efectos desde que sea remitida. (3) En caso de incumplir el deber de comunicación, el asegurador no podrá rehusar por esta razón el pago de cualquier pérdida que provenga de un suceso que se encuentre dentro de la cobertura, a menos que dicha pérdida haya sido causada por la falta de comunicación de la agravación del riesgo.

Artículo 4:203 Sanciones (1) Si el contrato establece que en caso de agravación del riesgo asegurado el asegurador podrá finalizar el contrato, dicho derecho se ejercitará mediante comunicación escrita al tomador del seguro dentro del mes siguiente al momento en que el asegurador conozca o le resulte aparente la agravación del riesgo. (2) La cobertura cesará un mes después de la finalización o, si el tomador del seguro ha incumplido intencionalmente el deber impuesto en el artículo 4:202, en el momento de la finalización. (3) Si el siniestro ocurre por una agravación del riesgo, que el tomador conocía o debería haber conocido antes de que expire la cobertura, no se satisfará ninguna prestación asegurada si el asegurador de ninguna manera hubiera asegurado el riesgo agravado. Si, no obstante, el asegu-

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rador hubiera asegurado el riesgo agravado por una prima mayor o bajo condiciones diferentes, la prestación asegurada se abonará proporcionalmente o de acuerdo con dichas condiciones.

Sección 3: Reducción del riesgo Artículo 4:301 Consecuencias de la reducción del riesgo (1) Si existiera una reducción significativa del riesgo, el tomador del seguro podrá requerir una reducción proporcional de la prima por el tiempo restante del período contractual. (2) Si dentro del período de un mes desde el requerimiento de la reducción proporcional las partes no llegan a un acuerdo, el tomador del seguro podrá finalizar el contrato a través de comunicación escrita, dentro de los dos meses siguientes al requerimiento.

Capítulo 5: La prima Artículo 5:101 Primera prima o prima única Cuando el asegurador establezca el pago de la primera prima o de una prima única como condición para la perfección del contrato o para el inicio de la cobertura, dicha condición no surtirá efectos a menos que: (a) la condición haya sido comunicada por escrito al solicitante usando un lenguaje claro y advirtiéndole de que carecerá de cobertura hasta que la prima sea pagada; y (b) hayan transcurrido dos semanas desde se haya recibido una factura que cumpla con los requisitos del inciso (a) sin que se haya realizado el pago.

Artículo 5:102 Primas sucesivas (1) La cláusula que prevea la liberación de la obligación del asegurador de cubrir el riesgo en caso de incumplimiento de pago de una prima sucesiva no tendrá efecto a menos que: (a) el tomador del seguro reciba una factura que señale la cantidad exacta de la prima a pagar así como la fecha de pago; (b) después de que la prima sea exigible, el asegurador envíe al tomador del seguro un recordatorio señalando la cantidad exacta de la prima a pagar concediendo un período de pago adicional de, por lo menos, dos semanas, y advirtiendo al tomador del seguro de la suspensión inminente de la cobertura si no realiza el pago; y (c) el período de pago adicional (b) haya terminado, sin que el pago se haya realizado. (2) El asegurador quedará exonerado de su responsabilidad después de que el período adicional de pago que señala el párrafo (b) haya terminado. La cobertura comenzará nuevamente en cuanto el tomador del seguro pague la cantidad debida a menos que el contrato se haya dado por finalizado de acuerdo con el artículo 5:103.

Artículo 5:103 Finalización del contrato (1) Cuando el plazo referido en el artículo 5:101 (b) o en el artículo 5:102 párrafo 1(b) haya expirado sin que el pago de la prima se hubiera realizado, el asegurador podrá dar por finalizado el contrato mediante comunicación escrita, siempre que la notificación requerida en el artículo 5:101(b) o el recordatorio requerido por el artículo 5:102 párrafo 1 (b), según sea el caso, establezca el derecho del asegurador a finalizar el contrato.

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(2) El contrato se tendrá por finalizado si, según sea el caso, el asegurador no inicia la reclamación del pago (a) En el caso de la primera prima, dentro de los dos meses desde que expire el período establecido en el artículo 5:101 (b); o (b) En el caso de primas posteriores, dentro de los dos meses desde que expire el período establecido en el párrafo 1 (b) del artículo 5:102.

Artículo 5:104 Divisibilidad de la prima Si el contrato de seguro finaliza antes de que termine el período del contrato, el asegurador sólo tendrá derecho a la prima correspondiente al período anterior a la finalización.

Artículo 5:105 Derecho al pago de la prima El asegurador no podrá rehusar recibir el pago por parte de un tercero si: (a) el tercero actúa con el consentimiento del tomador del seguro; o (b) el tercero tiene un interés legítimo en mantener la cobertura y el tomador del seguro no ha pagado o está claro que no pagará cuando ésta devenga exigible.

Capítulo 6: El siniestro Artículo 6:101 Comunicación del siniestro (1) El tomador del seguro, el asegurado o el beneficiario, según proceda, comunicará al asegurador el acaecimiento del siniestro siempre que la persona obligada a comunicar tuviera o hubiera debido tener conocimiento de la cobertura del seguro y del acaecimiento del siniestro. Será válida la comunicación efectuada por un tercero. (2) La comunicación se realizará sin demoras injustificadas. Será eficaz desde su envío. Si el contrato exigiera que la comunicación se realice dentro de un período de tiempo limitado, dicho período deberá ser razonable y en cualquier caso no inferior a cinco días. (3) La prestación del asegurador se reducirá en la medida en que el asegurador demuestre que ha resultado perjudicado por una demora injustificada.

Artículo 6:102 Cooperación durante la liquidación10 (1) El tomador del seguro, el asegurado, o el beneficiario, según proceda, cooperará con el asegurador en el esclarecimiento del siniestro, atendiendo sus peticiones razonables, y en particular a las relativas a: – información acerca de las causas y efectos del siniestro; – documentación u otro tipo de evidencias sobre el siniestro; – acceso a los lugares relacionados con el siniestro. (2) En caso de incumplimiento de cualquiera de los puntos señalados en el párrafo 1 y sin perjuicio de lo establecido en el párrafo 3, la prestación del asegurador se reducirá en la medida en que el asegurador pruebe que ha resultado perjudicado por el incumplimiento.

10

N. de la T.: El texto original utiliza la palabra “claims”. Debido a que en nuestra legislación el período que sigue al acaecimiento del siniestro se conoce como liquidación, hemos decido emplear dicho término.

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(3) En caso de que el incumplimiento de cualquiera de los puntos señalados en el párrafo 1 haya sido cometido con intención de causar perjuicio o con negligencia y conocimiento de que dicho perjuicio sería probable, el asegurador quedará liberado de su prestación.

Artículo 6:103 Aceptación de la reclamación (1) El asegurador deberá seguir todos los pasos razonables para resolver rápidamente todas las reclamaciones. (2) La reclamación será tenida por aceptada a menos que el asegurador la rechace o manifieste su discrepancia respecto a su aceptación a través de comunicación escrita, especificando las causas de su decisión dentro del mes siguiente a la recepción de todos los documentos relevantes y demás información.

Artículo 6:104 Momento de cumplimiento (1) Cuando se haya aceptado una reclamación, el asegurador deberá pagar o suministrar los servicios prometidos, según corresponda, sin demora injustificada. (2) Incluso cuando el valor total de la reclamación no pudiera ser cuantificado, pero el reclamante tenga derecho al menos a una parte de la reclamación, dicha parte será pagada o satisfecha sin demora injustificada. (3) El pago de la indemnización, ya sea según el párrafo 1 ó 2, se realizará no más tarde de una semana después de la aceptación y cuantificación de la reclamación, o de una parte de ella, según corresponda.

Artículo 6:105 Mora11 (1) Si no se satisface la indemnización según lo dispuesto en el artículo 6:104, el reclamante tendrá derecho al cobro de intereses sobre esa suma, desde el momento en que fuera pagadera hasta el momento efectivo del pago, y el interés será igual al aplicado por el Banco Central Europeo a su más reciente operación principal de refinanciación efectuada antes del primer día natural del semestre en cuestión, más ocho puntos porcentuales. (2) El reclamante tendrá derecho a que se cubran los daños por las pérdidas adicionales ocasionadas por la demora en el pago de la indemnización.

Capítulo 7: Prescripción Artículo 7:101 Acción para el pago de la prima La acción para reclamar el pago de la prima prescribirá por el transcurso de un año desde el momento en que se deba la prima.

Artículo 7:102 Acción para el pago de la prestación asegurada (1) En general, la acción para reclamar el pago de la prestación asegurada, prescribirá en el plazo de tres años a contar desde que el asegurador tome o se pueda presumir que ha tomado una decisión acerca de la reclamación de conformidad con lo señalado en el artículo 6:103. En todo caso, sin embargo, la acción prescribirá una vez transcurridos diez años desde el acaecimiento del siniestro, excepto en el caso de los seguros de vida en los cuales el período relevante será de 30 años. 11

Este artículo está basado en el artículo 3 párrafo 1 (d) de la Directiva 2000/35/CE.

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(2) La acción para reclamar el valor debido del seguro de vida prescribirá tres años después de que el tomador del seguro reciba el cálculo definitivo del asegurador. En todo caso, sin embargo, la acción prescribirá una vez transcurridos 30 años desde el momento de la finalización del contrato de seguro de vida.

Artículo 7:103 Otros cuestiones relativas a la prescripción Sin perjuicio de lo establecido en los artículos 7:101 y 7:102 de los PDECS, se aplicarán los artículos 14:101-14:503 de los Principios de Derecho Contractual Europeo (PDCE)12 a las acciones derivadas de los contratos de seguro. El contrato de seguro podrá derogar la aplicación de estos artículos de conformidad con lo establecido en el párrafo 2 del artículo 1:103 de los PDECS.

Segunda parte: Disposiciones generales aplicables a todos los seguros indemnizatorios Capítulo 8: Suma asegurada y valor asegurado Artículo 8:101 Indemnización máxima (1) El asegurador no estará obligado a pagar más de la cantidad necesaria para indemnizar las pérdidas sufridas realmente por el asegurado. (2) Una cláusula que determine el valor estimado del bien asegurado será válida incluso si dicho valor excede del valor actual del bien asegurado, siempre que no existiera fraude o engaño por parte del tomador del seguro o del asegurado al tiempo de acordar dicho valor.

Artículo 8:102 Infraseguro (1) El asegurador responderá de las pérdidas hasta el monto máximo de la suma asegurada incluso si la misma es inferior al valor del bien asegurado en el momento en que ocurra el siniestro. (2) Sin embargo, cuando el asegurador ofrezca cobertura de acuerdo con lo establecido en el párrafo 1, podrá alternativamente ofrecerla con la condición de que la indemnización a pagar estará limitada proporcionalmente al valor que tenga el bien asegurado en el momento de materializarse el daño. En dicho caso, además, los gastos de salvamento, definidos en el artículo 9:102, serán satisfechos en la misma proporción.

Artículo 8:103 Modificación de las estipulaciones en caso de sobreseguro (1) Si la suma asegurada excede de la pérdida total máxima del seguro, cualquiera de las partes podrá exigir la reducción de la suma asegurada y la correspondiente reducción de la prima por el período restante. (2) Si las partes no llegaran a un acuerdo sobre dicha reducción dentro del mes siguiente al requerimiento, cualquiera de las partes podrá finalizar el contrato.

12

Lando/Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000); Lando/Clive/Prüm/Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003).

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Artículo 8:104 Seguro múltiple (1) Cuando el mismo interés esté asegurado separadamente por más de un asegurador, el asegurado podrá pedir la indemnización a uno o varios de los aseguradores hasta alcanzar la cantidad necesaria para cubrir las pérdidas reales sufridas por el asegurado. (2) El asegurador al que se le solicite, pagará la suma asegurada en su póliza, junto con los gastos de salvamento, sin perjuicio de su derecho de regreso sobre los otros aseguradores. (3) Entre los aseguradores los derechos y obligaciones referidos en el párrafo 2 serán proporcionales a los que les corresponda por separado ante el asegurado.

Capítulo 9: Derecho a la indemnización Artículo 9:101 Provocación del daño (1) Ni el tomador del seguro ni el asegurado, según sea el caso, tendrá derecho a la indemnización si la pérdida fuera consecuencia de un acto u omisión por su parte realizado con la intención de provocar el daño, o de forma negligente y con conocimiento de que probablemente se causaría el daño. (2) Sin perjuicio del establecimiento de una cláusula específica en la póliza que establezca la reducción de la indemnización en función de su grado de culpa, el tomador del seguro o asegurado, según sea el caso, tendrá derecho a la indemnización respecto a cualquier pérdida causada por una acción u omisión negligente por su parte. (3) Para el caso de lo establecido en los párrafos 1 y 2, provocar daños incluye la omisión de evitar o atenuar el daño.

Artículo 9:102 Gastos de salvamento (1) El asegurador reembolsará los costes o daños en los que incurra el tomador del seguro o el asegurado al tomar medidas destinadas a la atenuación del daño asegurado, si dichas medidas hubieran sido razonables a la luz de las circunstancias existentes, incluso si no hubieran podido efectivamente evitar la pérdida. (2) El asegurador indemnizará al tomador del seguro o al asegurado, según sea el caso, por las medidas tomadas de acuerdo con el párrafo 1, incluso si la cantidad a pagar, junto con la indemnización del daño asegurado, excede de la suma asegurada.

Capítulo 10: Derecho a la subrogación Artículo 10:101 Subrogación (1) Sin perjuicio de lo establecido en el párrafo 3, el asegurador podrá ejercer su derecho a subrogarse contra cualquier tercero responsable del daño, en la medida en que haya indemnizado al asegurado. (2) En la medida en que la renuncia del asegurado a su derecho contra el tercero perjudique el derecho a subrogarse del asegurador, el asegurado perderá su derecho a la indemnización por el daño en cuestión. (3) El asegurador no podrá ejercer su derecho a la subrogación contra un miembro de la familia del tomador del seguro o del asegurado, una persona con una relación social equivalente con el tomador del seguro o asegurado, o un empleado del tomador del seguro o asegurado, excepto

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cuando pruebe que la pérdida fue causada por dicha persona de forma intencionada o con negligencia y conocimiento de que probablemente se produciría el daño. (4) El asegurador no podrá ejercer su derecho a la subrogación en perjuicio del asegurado.

Capítulo 11: Personas aseguradas diferentes del tomador del seguro Artículo 11:101 Derecho del asegurado (1) En el caso de que un seguro sea estipulado para otra persona que no sea el tomador, dicha persona tendrá derecho a la indemnización si acontece el siniestro. (2) El tomador del seguro podrá revocar dicha cobertura, a menos que: (a) la póliza prevea otra cosa; o (b) haya acaecido el suceso asegurado. (3) La revocación tendrá efecto cuando se dé comunicación escrita de la revocación al asegurador.

Artículo 11:102 Conocimiento del asegurado El conocimiento de la persona asegurada de conformidad con el artículo 11:101 no se atribuirá al tomador del seguro, salvo que dicha persona conozca su estatus de asegurado, cuando el tomador esté obligado a suministrar información relevante al asegurador.

Artículo 11:103 Incumplimiento de deberes por parte de un asegurado El incumplimiento de los deberes por parte de un asegurado no podrá afectar negativamente a los derechos de otros asegurados bajo el mismo contrato de seguro, a menos que el riesgo haya sido asegurado conjuntamente.

Capítulo 12: Riesgo asegurado Artículo 12:101 Falta de riesgo asegurado (1) No se devengará prima alguna si el riesgo asegurado no existe en el momento de la conclusión del contrato o en cualquier momento a lo largo de la duración del período asegurado. Sin embargo, el asegurador tendrá derecho a una suma razonable por los gastos en que incurra. (2) Si el riesgo asegurado deja de existir durante el período asegurado, el contrato se tendrá por finalizado en el momento de la comunicación de este hecho al asegurador.

Artículo 12:102 Transmisión de la propiedad (1) Si la propiedad de una cosa asegurada se transmite, el contrato de seguro se considerará finalizado un mes después de que se haya realizado la transferencia, a menos que el tomador del seguro y el nuevo propietario acuerden un plazo inferior para su finalización. Esta regla no será aplicable en el caso de que el seguro hubiera sido estipulado en beneficio de un futuro nuevo propietario. (2) El nuevo propietario será tenido por asegurado desde el momento en que se le transmita el riesgo de la propiedad asegurada. (3) Los párrafos 1 y 2 no serán aplicables: (a) si el asegurador, el tomador del seguro y el nuevo propietario disponen otra cosa; o (b) a una adquisición por sucesión mortis causa.

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Tercera parte: Disposiciones generales de los seguros de sumas Capítulo 13: Admisibilidad Artículo 13:101 Seguros de sumas Únicamente accidentes, asistencia sanitaria, vida, matrimonio, nacimiento u otros seguros de personas podrán estipularse como seguros de sumas.

Cuarta parte: Seguro de responsabilidad civil Capítulo 14: Seguro de responsabilidad civil general Artículo 14:101 Gastos de defensa El asegurador deberá abonar los gastos de defensa incurridos de acuerdo con el Artículo 9:102.

Artículo 14:102 Protección de la víctima Salvo que la víctima otorgue su consentimiento por escrito, su posición no se verá afectada por ningún acuerdo alcanzado en relación a la reclamación del seguro por parte del tomador del seguro bajo la póliza o entre el asegurador y el asegurado, bien sea por acuerdo, exención, pago o cualquier otro acto equivalente.

Artículo 14:103 Causación de la pérdida (1) Ni el tomador del seguro ni el asegurado, según sea el caso, tendrán derecho a indemnización en el caso en que la pérdida fuera causada por su acción u omisión, mediando la intención de causar la pérdida. Tampoco tendrán derecho a indemnización si incumplen las instrucciones específicas dadas por el asegurador con posterioridad a la pérdida, cuando dicho incumplimiento sea negligente y con conocimiento de la probable agravación de la pérdida. (2) A los efectos del párrafo 1, causación de la pérdida incluye la falta de acción para evitar o mitigar la pérdida. (3) Sin perjuicio de la existencia de una cláusula específica en la póliza que prevea la reducción de la cuantía del seguro en relación al grado de culpa por su parte, el tomador del seguro o asegurado, según sea el caso, tendrá derecho a indemnización respecto de cualquier pérdida causada por el incumplimiento negligente de las específicas instrucciones dadas por asegurador con posterioridad a la producción de la pérdida.

Artículo 14:104 Conocimiento de la responsabilidad (1) Cualquier cláusula en el contrato de seguro que exima al asegurador de sus obligaciones en caso de que el tomador del seguro o asegurado, según sea el caso, acepte o satisfaga la reclamación de la víctima se dejará sin efectos. (2) Salvo consentimiento, el asegurador no quedará vinculado por ningún acuerdo entre la víctima y el tomador del seguro o el asegurado, según sea el caso.

Artículo 14:105 Cesión (1) Cualquier cláusula del contrato de seguro que prive al asegurado de su derecho de cesión de la reclamación de la póliza se dejará sin efectos.

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Artículo 14:106 Bono por falta de reclamación / Sistemas bonus-malus (1) El tomador de la póliza tendrá el derecho de solicitar en cualquier momento el documento que contenga su historial de reclamaciones de los últimos cinco años. (2) Si el asegurador asocia el cálculo de la prima u otras condiciones al número o cantidad de reclamaciones abonadas bajo la póliza, deberá tener en consideración el historial de reclamaciones de los últimos cinco años del tomador de seguro con otras compañías aseguradoras.

Artículo 14:107 Siniestro asegurado (1) Se considera siniestro asegurado aquél hecho que da lugar a la responsabilidad del asegurado y que acaece durante el periodo de responsabilidad del contrato de seguro, salvo que las partes contraten el seguro con finalidad comercial o profesional y definan el siniestro asegurado con referencia a otros criterios, como la reclamación realizada por la víctima. (2) Cuando las partes contratantes definan el siniestro asegurado con referencia a la reclamación efectuada por la víctima, la cobertura se otorgará respecto de las reclamaciones hechas dentro del periodo de responsabilidad o subsiguientes periodos no inferiores a cinco años basados en hechos acaecidos durante la vigencia del periodo de responsabilidad. El contrato de seguro podrá excluir la cobertura cuando, al momento de formalizar el contrato, el solicitante conociera o debiera conocer las circunstancias que previsiblemente hubieran dado lugar a las reclamaciones.

Artículo 14:108 Cantidades superiores a la suma asegurada (1) Si el total de los pagos excede la suma asegurada debido a la pluralidad de víctimas, las cantidades a pagar se reducirán proporcionalmente. (2) Un asegurador de buena fe que, sin tener conocimiento de la existencia de otras víctimas, abone la totalidad de las cantidades a las víctimas de las que tiene conocimiento, será responsable respecto de las desconocidas hasta el tope de la suma asegurada.

Capítulo 15: Reclamaciones y acciones directas Artículo 15:101 Reclamación directa y excepciones (1) La víctima tendrá derecho de reclamación directa contra el asegurador en la medida en que tomador del seguro o el asegurado, según sea el caso, sea responsable, siempre y cuando: (a) El contrato de seguro sea obligatorio, o (b) El tomador del seguro o el asegurado sea insolvente, o (c) El tomador del seguro o el asegurado se encuentre en liquidación, o (d) La víctima haya sufrido un daño personal, o (e) La ley que rija la responsabilidad contemple la acción directa. (2) En su condición de agente, el asegurador alegará todas las excepciones a su disposición bajo el contrato de seguro, salvo prohibición de las previsiones específicas que hagan el seguro obligatorio. No obstante, el asegurador no tendrá derecho a alegar ninguna excepción basada en la conducta del tomador del seguro y/o el asegurado con posterioridad a la pérdida.

Artículo 15:102 Deber de información (1) A petición de la víctima, el tomador del seguro y el asegurado facilitarán la información necesaria para proceder a la reclamación directa.

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(2) El asegurador notificará por escrito al tomador del seguro sobre cualquier reclamación efectuada contra él sin demora injustificada y, como muy tarde, dentro de las dos semanas siguientes a la recepción de la reclamación. Si el asegurador incumple dicha obligación, el pago o conocimiento de la deuda hacia la víctima no afectará los derechos del tomador del seguro. (3) Si el tomador del seguro no facilita al asegurador sobre la información relativa al siniestro asegurado dentro del plazo de un mes desde la recepción de la notificación mencionada en el párrafo 2, se considerará que el tomador del seguro se allana con la reclamación realizada por el asegurador. Esta norma también será de aplicación para los asegurados que hayan recibido dicha notificación en tiempo.

Artículo 15:103 Saldo de la obligación El abono de la suma por parte del asegurador al tomador de la póliza o al asegurado, según sea el caso, sólo le liberará de su obligación respecto de la víctima si ésta: (a) Renuncia a su reclamación directa o (b) No ha comunicado al asegurador su intención de realizar una reclamación directa dentro de las cuatro semanas siguientes a la recepción de la solicitud del asegurador por escrito.

Artículo 15:104 Prescripción (1) La acción contra el asegurador, presentada por el asegurado o por la propia víctima, prescribirá cuando la acción de la víctima contra el asegurado haya prescrito. (2) El periodo de prescripción por una reclamación realizada por la víctima contra el asegurado quedará suspendido desde el momento en que el asegurado tenga conocimiento de la existencia de reclamación directa contra el asegurador y hasta que la misma sea satisfecha o inequívocamente rechazada por el asegurador, en su caso.

Capítulo 16: Seguro obligatorio Artículo 16:101 Ámbito de aplicación (1) Las partes en un contrato de seguro formalizado en cumplimiento de la obligación de asegurar podrán acogerse a los PDECS (a) Prescritos por Derecho comunitario (b) Prescritos en un Estado Miembro, o (c) Prescritos en un Estado que no sea miembro en la pedida en que lo permita el derecho de dicho Estado. (2) El contrato de seguro no eximirá de la obligación de aseguramiento, salvo que cumpla con las específicas provisiones que imponga dicha obligación.

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Quinta parte: Seguro sobre la vida Capítulo 17: Disposiciones especiales para el seguro sobre la vida Sección 1: Terceros Artículo 17:101 Seguro sobre la vida de un tercero Un contrato de seguro sobre la vida de un tercero distinto al tomador del seguro será inválido, salvo que la persona en riesgo otorgue su consentimiento por escrito y lo firme. Cualquier cambio sustancial en el contrato, incluido el cambio del beneficiario, un aumento de la suma asegurada y el cambio de la duración del contrato se dejará sin efecto si no existe dicho consentimiento. También será de aplicación en caso de cesión o gravamen del contrato de seguro o del derecho a la prestación.

Artículo 17:102 Beneficiario de la prestación (1) El tomador del seguro designará uno o más beneficiarios de la prestación y podrá modificar o revocar dicha designación, salvo que esta se haya declarado irrevocable. La designación, cambio o revocación, salvo contemplada en testamento, deberá realizarse por escrito y enviada al asegurador. (2) El derecho a designar, modificar o revocar la designación finalizará con la muerte del tomador del seguro o el acaecimiento del siniestro asegurado, cualquier que sea anterior. (3) El tomador del seguro o sus herederos, según sea el caso, se considerarán los beneficiarios de la prestación si (a) El tomador del seguro no ha designado beneficiario o (b) La designación de un beneficiario ha sido revocado y no se han designado otros beneficiarios con posterioridad o (c) Un beneficiario ha fallecido antes del acaecimiento del siniestro asegurado y no se han designado a otros beneficiarios. (4) Si dos o más beneficiarios han sido designados y la designación de cualquiera de ellos ha sido revocada o cualquiera de ellos fallece con anterioridad al acaecimiento del siniestro asegurado, la prestación que se tendría que haber satisfecha al beneficiario o beneficiarios en cuestión se repartirá proporcionalmente entre los restantes beneficiarios, salvo que el tomador del seguro especifique lo contrario en relación con el párrafo 1. (5) Sin perjuicio de las normas de nulidad, invalidez o anulabilidad de actos legales en perjuicio de acreedores sometidos a la legislación concursal, la herencia insolvente del tomador del seguro no tendrá derechos sobre la prestación del seguro, el valor de reducción o el valor de rescate, mientras la prestación no haya sido abonada al tomador del seguro. (6) El asegurador que satisfaga la prestación al beneficiario designado de acuerdo con el párrafo 1 lo liberará de su obligación, salvo que supiese que la persona en cuestión no tenía el derecho a recibirla.

Artículo 17:103 Beneficiario del valor de rescate (1) Independientemente de cualquier designación conforme al Artículo 17:102, el tomador del seguro también podrá designar un beneficiario del valor de rescate, si lo hubiese, y podrá modificar o revocar dicha designación. La designación, modificación o revocación deberá realizarse por escrito y enviarse al asegurador. (2) El tomador del seguro se considerará como beneficiario del valor de rescate si (a) No se ha designado un beneficiario del valor de rescate o

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(b) La designación de un beneficiario del valor de rescate ha sido revocada y no se han designado otros beneficiarios o (c) El beneficiario del valor de rescate fallece y no se han nombrado otros beneficiarios. (3) El artículo 17:102, en sus párrafos 2 y 4 a 6 se aplicará mutatis mutandis.

Artículo 17:104 Cesión o gravamen (1) Cuando un beneficiario haya sido designado de modo irrevocable, la cesión o gravamen del contrato de seguro o el derecho a la prestación del tomador del seguro se dejarán sin efecto salvo que el beneficiario lo consienta por escrito. (2) La cesión o gravamen sobre la prestación por un beneficiario se dejará sin efecto salvo que el tomador del seguro lo consienta por escrito.

Artículo 17:105 Renuncia de la herencia Cuando el beneficiario sea un heredero de la persona fallecida en riesgo renuncie a la herencia, el mero hecho de renunciar no afecta su posición respecto del contrato de seguro.

Sección 2: Fase inicial y duración del contrato Artículo 17:201 Deber de información precontractual del solicitante (1) La información a proporcionar por el solicitante de acuerdo con el Artículo 2:101, párrafo 1 deberá incluir aquellas circunstancias que la persona en riesgo conociera o hubiese debido conocer. (2) La sanción por incumplimiento del deber de información precontractual conforme al artículo 2:102, 2:103 y 2:105, pero no conforme al Artículo 2:104, sólo será posible durante los cinco años siguientes a la conclusión del contrato.

Artículo 17:202 Deber de información precontractual del asegurador (1) El asegurador informará al solicitante acerca de su derecho de participación en los beneficios. La recepción de dicha información deberá ser reflejada mediante una declaración explícita contenida en documento distinto al del impreso de solicitud. (2) El documento que el asegurador facilitará de acuerdo con el Artículo 2:201 incluirá la siguiente información: (a) Respecto de asegurador: una expresa referencia a la obligada publicación de sus cuentas anuales y estados financieros (b) Respecto de los compromisos contractuales asumidos por el asegurado; (i) Una explicación de cada beneficio y cada opción; (ii) Información sobre la proporción de la prima atribuida a cada uno de los beneficios, incluyendo tanto los beneficios principales como los accesorios, cuando corresponda; (iii) Los métodos de cálculo y distribución de los bonus con especial mención de la normativa de supervisión aplicable; (iv) Una indicación de los valores de rescate y desembolsados en la medida en que estén garantizados; (v) Para las pólizas vinculadas a fondos de inversión: una explicación respecto de los fondos de inversión a los que están ligados los beneficios y una indicación sobre la naturaleza de los bienes subyacentes. (vi) Información general sobre el régimen fiscal aplicable al tipo de póliza;

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(3) Además, deberá proporcionarse información específica para facilitar la comprensión de los riesgos subyacentes al contrato asumidos por el tomador del seguro. (4) Si el asegurador cita como dato la cantidad de los posibles beneficios y exceden las sumas contractualmente garantizadas, deberá proporcionar al solicitante un modelo de cálculo que contenga los posibles beneficios al momento del vencimiento de la póliza basado en los principios actuariales para el cálculo de la prima con tres distintos tipos de interés. Esto no será de aplicación a aquellos contratos de seguro en los que el asegurador no tenga certeza de su responsabilidad ni a las pólizas vinculadas a fondos de inversión. El asegurador deberá indicar a los tomadores de seguro de forma clara y comprensible que el modelo de cálculo únicamente representa un modelo basado en conjeturas y que el contrato no garantiza los posibles pagos.

Artículo 17:203 Periodo de reflexión (1) Para los contratos de seguro sobre la vida, el período de reflexión establecido en el Artículo 2:303 párrafo 1 será de un mes tras la recepción de la aceptación o entrega de los documentos mencionados en los Artículos 2:501 y 17:202, cualquiera que sea posterior. (2) El derecho del tomador del seguro de anular el contrato de acuerdo con el Artículo 2:303, párrafo 1 durará un año tras la conclusión del contrato.

Artículo 17:204 El derecho del tomador del seguro de finalizar el contrato (1) El tomador del contrato tendrá la facultad de finalizar el contrato de seguro sobre la vida que no contenga valores de reducción o rescate, considerando que la finalización no tendrá efecto antes del transcurso del primer año tras la conclusión del contrato. El derecho a finalizar el contrato antes de la finalización del periodo del contrato podrá excluirse cuando solamente una prima haya sido objeto de pago. La finalización deberá realizarse por escrito y surtirá efectos después de dos semanas desde la recepción de la comunicación de finalización por el asegurador. (2) Si el contrato de seguro sobre la vida conlleva valores de reducción o de rescate, los Artículos 17:601 a 17:603 serán de aplicación.

Artículo 17:205 Facultad de resolución del contrato del asegurador El asegurador tendrá la facultad de terminar el contrato de seguro sobre la vida dentro de los límites establecidos en el presente Capítulo.

Sección 3: Modificaciones durante la vigencia del contrato Artículo 17:301 Deber de información postcontractual del asegurador (1) Cuando corresponda, el asegurador deberá proporcional información anualmente mediante una declaración escrita del valor actual de los bonos vinculados a la póliza. (2) Además de los requisitos contenidos en el Artículo 2:701, el asegurador deberá informar al tomador del seguro sin demora injustificada sobre cualquier cambio concerniente a: (a) Las condiciones de la póliza, tanto generales como especiales; (b) En el caso de modificación de las condiciones de la póliza o reforma de los PDECS: la información contenida en el artículo 2:201, letras f y g, así como la contenida en el Artículo 7:202 párrafo 2, letra b, puntos i a v. (3) El artículo 17:202 párrafo 4 será también de aplicación cuando las cifras relativas a la suma estimada de posibles beneficios sean proporcionadas en cualquier momento durante la vigencia del

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periodo contractual. Cuando el asegurador, con anterioridad o posterioridad a la conclusión del contrato, haya proporcionado datos acerca del potencial desarrollo de la participación sobre los beneficios, el asegurador informará al tomador del seguro acerca de cualquier diferencia entre los datos inicialmente proporcionados y el desarrollo real.

Artículo 17:302 Agravación del riesgo En un contrato de seguro sobre la vida, cualquier cláusula que considere la edad o deterioro de la salud como agravación del riesgo dentro del significado del Artículo 4:201 será considerada abusiva conforme al Artículo 2:304.

Artículo 17:303 Ajuste de la prima y de la prestación (1) En un contrato de seguro sobre la vida que cubra riesgos sobre los cuales el asegurador no tenga certeza de su responsabilidad, el asegurador sólo tendrá la facultad de ajustarlo conforme a los párrafos 2 y 3. (2) Se permitirá un aumento de la prima cuando se produzca un cambio imprevisible y permanente respecto de los riesgos biométricos utilizados como base para el cálculo de la prima, cuando el aumento sea necesario para garantizar la continuación de la capacidad del asegurador de desembolsar los beneficios del contrato de seguro y cuando el aumento haya sido acordado por un técnico independiente o por la autoridad de supervisión. El tomador del seguro tendrá la facultad de compensar el aumento de la prima con la correspondiente reducción de los beneficios. (3) En el caso de una póliza paid-up, el asegurador tendrá la facultad de reducir los beneficios bajo las condiciones establecidas en el párrafo 2. (4) Un ajuste conforme a los párrafos 2 o 3 no se permitirá (a) Cuando se haya producido un error en el cálculo de la prima y/o los beneficios que un diligente y competente actuario debería haber conocido, o (b) Cuando el cálculo subyacente no se haya aplicado a todos los contratos, incluidos aquellos concluidos con posterioridad al ajuste. (5) Un aumento de la prima o reducción de los beneficios surtirá efectos tres meses después de que el asegurador proporcione una comunicación escrita al tomador del seguro sobre el aumento de la prima o reducción de los beneficios, indicando las razones y el derecho del tomador del seguro de solicitar la reducción de los beneficios. (6) En un contrato de seguro sobre la vida que cubra riesgos sobre los cuales el asegurador tenga certeza de su responsabilidad, el tomador del seguro tendrá la facultad de reducir la prima que, debido a un imprevisible y permanente cambio respecto de los riesgos biométricos utilizados como base para el cálculo de la prima, hagan que la prima originaria sea inapropiada e innecesaria para garantizar la continuidad en la capacidad de pago por parte del asegurador. La reducción tiene que acordarse por un técnico independiente o por la autoridad supervisora. (7) Los derechos establecidos en el presente Artículo no podrán ejercerse con anterioridad al transcurso de cinco años tras la conclusión del contrato.

Artículo 17:304 Modificación de las estipulaciones (1) Una cláusula que permita al asegurador la modificación de cualquier estipulación distinta de la prima y los beneficios a abonar será inválida, salvo que dicha modificación sea necesaria para: (a) Cumplir con una reforma de la ley de supervisión incluyendo aquellas medidas vinculantes adoptadas por la autoridad supervisora, o

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(b) Cumplir con una reforma de normas imperativas de la legislación nacional aplicable sobre los planes de pensiones de empleados, o (c) Cumplir con una reforma de normas imperativas de la legislación nacional que impongan requisitos específicos sobre contratos de seguro sobre la vida para cumplir con los requisitos en materia de régimen fiscal o subvenciones públicas, o (d) Sustituir una cláusula del contrato de acuerdo con el Artículo 2:304, párrafo 2 en su segunda frase. (2) La alteración será efectiva al comienzo del tercer mes tras la recepción por parte del tomador del seguro de la comunicación escrita que le informe sobre la alteración y las razones de su adopción. (3) El párrafo 1 será de aplicación sin perjuicio de los otros requisitos necesarios para la validez de las cláusulas modificadas.

Sección 4: Derecho nacional Artículo 17:401 Planes de pensiones El contrato de seguro sobre la vida referido a un plan de pensiones estará sujeto a las normas imperativas de la ley nacional aplicable a los planes de pensiones. Los PDECS sólo serán de aplicación en la medida en que sean compatibles con dichas normas.

Artículo 17:402 Trato fiscal y subvenciones públicas Los PDECS no afectarán a la legislación nacional que imponga requisitos específicos para los contratos de seguro sobre la vida para que cumplan con las obligaciones necesarias para un tratamiento fiscal especial o subvenciones públicas. En caso de conflicto entre los requisitos de la ley nacional y los PDECS, los últimos no serán de aplicación.

Sección 5: Siniestro Artículo 17:501 ´Los deberes del asegurador de investigación e información (1) El asegurador que tenga razones para creer que el siniestro asegurado podría haber ocurrido debe tomar las medidas adecuadas para asegurarse de ello. (2) El asegurador, conociendo que el siniestro asegurado ha acaecido, debe realizar todos los esfuerzos posibles para descubrir la identidad y dirección del beneficiario e informarlo al respecto. Esta información no deberá proporcionarse más tarde de 30 días desde que el asegurador tiene conocimiento de la identidad y dirección del beneficiario. (3) Si un asegurador incumple los párrafos 1 o 2, el plazo de prescripción del beneficiario para proceder a la reclamación quedará suspendido hasta que éste tenga conocimiento de su derecho a reclamar.

Artículo 17:502 Suicidio (1) Si, después del transcurso de un año desde la conclusión del contrato, la persona en riesgo se suicida, el asegurador será liberado de su responsabilidad de pago del capital. En ese caso, el asegurador pagará el valor de rescate y cualquier beneficio generado de acuerdo con el Artículo 17:602. (2) El párrafo 1 no será de aplicación si

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(a) La persona en riesgo, en el momento de suicidarse, actúa en un estado mental que le impide tomar libremente la decisión; (b) Queda probada cualquier duda razonable acerca de la intención de suicidio de la persona en riesgo en el momento de concluir el contrato.

Artículo 17:503 Homicidio intencionado de la persona en riesgo (1) Cuando un beneficiario cause intencionadamente la muerte de la persona en riesgo, su designación como beneficiario se considerará revocada. (2) La cesión de la reclamación de la prestación se dejará sin efectos cuando el cesionario cause intencionadamente la muerte de la persona en riesgo. (3) Cuando el tomador del seguro sea el beneficiario y cause intencionadamente la muerte de la persona en riesgo, no habrá lugar a prestación. (4) Cuando el beneficiario o el tomador del seguro que causen la muerte a la persona en riesgo lo hagan justificadamente, como es el caso de defensa propia, este Artículo no será de aplicación.

Sección 6: Reducción y rescate Artículo 17:601 Reducción del contrato (1) El artículo 5:103 no será de aplicación a los contratos de seguro sobre la vida que tengan asociados valores de reducción o de rescate. Dichos contratos se convertirán en pólizas paid-up salvo que el tomador del seguro requiera el pago del valor de rescate dentro de las cuatro semanas siguientes a la recepción de la información referida en el párrafo 2. (2) El asegurador informará al tomador del contrato de los valores de reducción y rescate dentro de las cuatro semanas desde el vencimiento del periodo contemplado en el Artículo 5:101(b) o el Artículo 5:102 párrafo 1(b) y solicitará al tomador del seguro la elección entre la reducción y el pago del valor de rescate.

Artículo 17:602 Rescate del contrato (1) El tomador del seguro podrá solicitar por escrito en cualquier momento al asegurador el valor de rescate asociado a la póliza, de forma total o parcial, siempre y cuando no surta efectos con anterioridad al transcurso de un año desde la conclusión del contrato. El contrato se ajustará o finalizará de acuerdo con ello. (2) Sin perjuicio de lo establecido en el Artículo 17:601, si un contrato de seguro sobre la vida que tiene asociado un valor de rescate es finalizado, rescindido o anulado por el asegurador, será obligatorio el abono del valor de rescate, incluso en el caso del Artículo 2:104. (3) El asegurador informará al tomador del seguro a petición de éste y, en todo caso, anualmente sobre la cuantía actual del valor de rescate y el alcance de la cuantía garantizada. (4) La parte de beneficio al que el tomador del seguro tiene derecho deberá abonarse además del valor de rescate, salvo que esta parte ya se haya tenido en consideración para el cálculo del valor de rescate. (5) Las cantidades debidas de acuerdo con el presente Artículo se abonarán no más tarde del transcurso de dos meses tras la recepción por parte del asegurador de la solicitud del tomador del seguro.

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Artículo 17:603 Valores de reducción y de rescate (1) El contrato de seguro establecerá la forma de calcular los valores de reducción y/o rescate de acuerdo con la ley del Estado miembro del asegurador. La forma establecida de cálculo del valor de rescate y/o reducción deberá ajustarse con los principios actuariales y con el párrafo 2. (2) Cuando el asegurador deduzca los constes de conclusión del contrato, deberá hacerlo en sumas equivalentes y durante un periodo de tiempo no inferior a cinco años. (3) El asegurador tiene la facultad de deducirse una suma apropiada, que se calculará de acuerdo con los principios actuariales para cubrir los costes relativos al abono del valor de rescate, salvo que el cálculo ya incluya dicha reducción.

Sexta parte: Del seguro de grupo Capítulo 18: Disposiciones generales del seguro de grupo Sección 1: Del seguro de grupo en general Artículo 18:101 Ámbito de aplicación Los contratos de seguro de grupo están sometidos a los PDECS siempre y cuando el organizador del grupo y el asegurador lo hayan acordado de acuerdo con el Artículo 1:102. El contrato de seguro de grupo podrá ser accesorio, en cuyo caso estará sometido a la Sección 2 del presente Capítulo o electivo, en cuyo caso se someterá a la Sección 3 del presente Capítulo

Artículo 18:102 Deber de diligencia del organizador de grupo (1) En la negociación y ejecución del contrato de seguro de grupo, el organizador del grupo actuará diligentemente y con buena fe, teniendo en consideración los intereses legítimos de los miembros del grupo. (2) El organizador del grupo remitirá cualquier comunicación relevante emitida por el asegurador a los miembros del grupo y los informará sobre cualquier modificación del contrato.

Sección 2: Seguro de grupo accesorio Artículo 18:201 Aplicación de los PDECS Cuando sea necesario, los PDECS se aplicarán al contrato de seguro de grupo accesorio mutatis mutandis.

Artículo18:202 Deberes de información (1) Cuando un miembro se una al grupo, el organizador deberá informarlo sin demoras injustificadas acerca de: (a) La existencia del contrato de seguro, (b) El alcance de la cobertura, (c) Cualquier medida de precaución y otros requisitos para la conservación de la cobertura, y (d) El procedimiento de reclamación. (2) La carga de la prueba de la recepción de la información requerida en el párrafo 1 corresponde al organizador del grupo.

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Artículo 18:203 Finalización por el asegurador (1) A los efectos del Artículo 2:604, el ejercicio del derecho de finalización por parte del asegurador sólo se considerará razonable si se limita a la exclusión de la cobertura del miembro del grupo que sufrió el siniestro. (2) A los efectos de los Artículos 4:102 y 4:203 párrafo 1, el ejercicio del derecho de terminación por parte del asegurador solo tendrá el efecto de excluir la cobertura de aquellos miembros del grupo que no hayan adoptado las medidas de precaución requeridas o que hubiese agravado los riesgos, según sea el caso. (3) A los efectos del Artículo 12:102, la terminación del contrato de seguro sólo tendrá el efecto de excluir de la cobertura aquellos miembros del grupo que hubiesen transferido el título de la propiedad asegurada.

Artículo 18:204 Derecho de continuación de la cobertura – Seguro de vida de grupo. (1) Si un contrato de seguro de vida de grupo accesorio es finalizado o un miembro abandona el grupo, la cobertura cesará tras el transcurso de tres meses o con la expiración del contrato de seguro de vida de grupo, cualquiera que sea anterior. Cuando ello ocurra, el miembro del grupo tendrá derecho a una cobertura equivalente bajo un nuevo contrato individual con el asegurador en cuestión, sin necesidad de evaluar nuevamente el riesgo. (2) El organizador del grupo informará a los miembros por escrito y sin demora injustificada sobre (a) La inminente terminación de la cobertura bajo el contrato de seguro de vida de grupo, (b) Los derechos recogidos en el párrafo 1 y (c) La forma de ejercicio de dichos derechos. (3) Si un miembro del grupo indica su intención de ejercitar su derecho en base al Artículo 18:204 párrafo 1, el contrato entre el asegurador y dicho miembro continuará como un contrato de seguro individual con una prima calculada en base a una póliza individual en ese momento teniendo en cuenta el actual estado de salud del miembro del grupo.

Sección 3: Contrato de seguro de grupo electivo Artículo 18:301 Contrato de seguro de grupo electivo: generalidades (1) El contrato de seguro de grupo electivo se considerará una combinación de contrato marco entre el asegurador y el organizador del grupo y un contrato de seguro individual concluido en ese marco entre el asegurador y los miembros del grupo. (2) Los PDECS serán de aplicación a los contratos de seguro individuales en los que el organizador del grupo y el asegurador hubieran acordado su aplicación. Sin embargo, con excepción de los artículos 18:101 y 18:102, los PDECS no se aplicarán al contrato marco.

Artículo 18:302 Alteración de los términos y condiciones La alteración de los términos y condiciones del contrato marco solamente afectarán a los contratos de seguro individuales de acuerdo con los requisitos establecidos en los Artículos 2:603, 17:303 y 17:304, según sea apropiado.

Artículo 18.303 Continuación de la cobertura La terminación del contrato marco o el abandono de un miembro en la parte individual del grupo no tendrá ningún efecto en el contrato de seguro entre el asegurador y el miembro del grupo.

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Swedish version by Bill W. Dufwa

Principer för en Europeisk Försäkringsavtalsrätt (PEICL) Avdelning 1: Bestämmelser gemensamma för alla avtal inkluderade i principerna för europeisk försäkringsavtalsrätt (PEICL) Kapitel 1: Inledande bestämmelser Sektion 1: Tillämpning av PEICL Sektion 2: Allmänna regler Sektion 3: Verkställighet

Kapitel 2: Försäkringskontraktets början och varaktighet

Kapitel 9: Rätten till försäkringsersättning Kapitel 10: Rättigheter vid subrogation Kapitel 11: Försäkring till förmån för tredje man Kapitel 12: Den försäkrade risken Avdelning 3: Bestämmelser gemensamma för skadeförsäkring Kapitel 13: Tillträde

Sektion 1: Sökandens informationsplikt före kontraktets ingående Sektion 2: Försäkringsbolagets förkontraktuella plikter Sektion 3: Ingående av kontraktet Sektion 4: Retroaktivt och preliminärt skydd Sektion 5: Försäkringsbrev Sektion 6: Försäkringskontraktets varaktighet Sektion 7: Försäkringsbolagets efterkontraktuella informationsplikter

Avdelning 4: Ansvarsförsäkring Kapitel 14: Allmän ansvarsförsäkring Kapitel 15: Direkta krav och direkta rättsliga åtgärder Kapitel 16: Obligatorisk försäkring

Kapitel 3: Försäkringsförmedlare Kapitel 4: Den försäkrade risken

Sektion 1: Tredjemän Sektion 2: Kontraktets början och varaktighet Sektion 3: Ändringar nder kontraktsperioden Sektion 4: Förhållandet till nationell lagstiftning Sektion 5: Försäkringsfallet Sektion 6: Konvertering och återköpsvärde

Sektion 1: Säkerhetsföreskrifter Sektion 2: Riskökning Sektion 3: Riskminskning

Kapitel 5: Försäkringspremie Kapitel 6: Försäkringsfallet Kapitel 7: Preskription Avdelning 2: Bestämmelser gemensamma för skadeförsäkring Kapitel 8: Försäkrad summa och skadeförsäkring

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Avdelning 5: Livförsäkring Kapitel 17: Särskilda bestämmelser för livförsäkring

Avdelning 6: Gruppförsäkring Kapitel 18: Speciella regler för gruppförsäkring Sektion 1: Gruppförsäkring i allmänhet Sektion 2: Automatisk gruppförsäkring Sektion 3: Frivilligt vald försäkring

Swedish: Principer för en Europeisk Försäkringsavtalsrätt (PEICL)

Avdelning 1: Bestämmelser gemensamma för alla avtal inkluderade i principerna för europeisk försäkringsavtalsrätt (PEICL) Kapitel 1: Inledande bestämmelser Sektion 1: Tillämpning av PEICL Artikel 1:101 Substantiellt tillämpningsområde (1) PEICL skall tillämpas på privatförsäkring i allmänhet, inklusive ömsesidig försäkring (2) PEICL skall ej tillämpas på återförsäkring.

Artikel 1:102 Optionell tillämpning PEICL skall tillämpas när parterna, oavsett begränsningar enligt den internationella privaträtten, har kommit överens om att deras avtal skall styras av PEICL. Med förbehåll för artikel 1:103 skall PEICL tillämpas som en helhet och ingen uteslutning av vissa av PEICL:s bestämmelser skall vara tillåten.

Artikel 1:103 Tvingande regler (1) Artiklarna 1:102 andra meningen, 2:104, 2:304, 13:101, 17:101och 17:503 är tvingande. Övriga artiklar är tvingande i den mån de angår sanktioner mot bedrägligt handlande. (2) Kontraktet kan avvika från alla andra bestämmelser i PEICL så länge som en sådan avvikelse inte är till nackdel för försäkringstagaren, den försäkrade eller förmånstagaren. (3) Avvikelse är dock alltid tillåten till fördel för varje part i kontrakt som täcker stora risker i den mening som gäller enligt artikel 13 stycket 27 i direktiv 2009/138/ EG. Vid gruppförsäkring är avvikelse bara tillåten mot en försäkrad individ som uppfyller de personliga kännetecken som nämns i artikel 13 stycket 27 lit. b eller c i direktiv 2009/138/EG i den mån den är tillämplig.

Artikel 1:104 Tolkning PEICL skall tolkas och utvecklas i ljuset av sin text, sitt sammanhang, sitt ändamål och sin komparativa bakgrund. Hänsyn skall särskild tas till behovet att främja god sed och korrekt uppträdande på försäkrings-området, säkerhet i kontraktuella relationer, enhetlighet i tillämpningen och adekvat skydd för försäkringstagare.

Artikel 1:105 Nationell lag och allmänna principer (1) Tillflykt till nationell rätt, vare sig för att inskränka eller komplettera PEICL, är ej tillåten. Detta gäller inte tvingande nationell lag införd för sådana försäkringsbranscher som inte är täckta av specialregler i PEICL. (2) Spörsmål rörande försäkringsavtal som inte är uttryckligen avgjorda i PEICL skall besvaras i överensstämmelse med Principer för Europeisk Kontraktsrätt (PECL)1 och, vid frånvaro av relevanta regler i PECL, i enlighet med de allmänna principer som är gemensamma för medlemsstaternas lagar.

1

Jfr. Lando/Beale (eds), Principles of European Contract Law, Parts I and II (1999), Lando/Clive/Prüm/ Zimmermann (eds.), Principles of European Contract Law, Part III (2002).

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Sektion 2: Allmänna regler Artikel 1:201 Definitioner (1) ”Försäkringskontrakt” betyder ett avtal enligt vilket en part, försäkringsbolaget, lovar en annan part, försäkringstagaren, skydd mot en speciell risk i utbyte mot en premie; (2) ”Försäkringsfall”2 betyder förverkligandet av den risk som är specificerad i försäkringsavtalet; (3) ”Skadeförsäkring” betyder försäkring enligt vilken försäkringsbolaget är skyldigt att ersätta skada tillfogad vid vid försäkringsfall; (4) ”Summaförsäkring” betyder försäkring enligt vilken försäkringsbolaget måste betala en bestämd summa pengar i händelse av ett försäkringsfall. (5) ”Ansvarsförsäkring” betyder en försäkring enligt vilken risken är den försäkrades utsatthet för skadeståndsansvar mot den skadelidande. (6) ”Livförsäkring” är en försäkring enligt vilken försäkraringsbolagets skyldighet eller betalning av premie beror ett försäkringsfall som definieras uteslutande genom en hänvisning till risken för död eller överlevnad av en viss person. (7) ”Gruppförsäkringskontrakt” är kontrakt mellan ett försäkringsbolag och en företrädare till förmån för gruppmedlemmar med gemensam anknytning till företrädaren. Ett gruppförsäkringskontrakt kan täcka också ersättning till gruppmedlemmarnas familjer. (8) Med ”automatisk gruppförsäkring” avses en gruppförsäkring enligt vilken gruppmedlemmarna är automatiskt försäkrade genom att tillhöra gruppen och utan möjlighet att vägra försäkringen. (9) Med ”frivillig gruppförsäkring” förstås en gruppförsäkring enligt vilken gruppmedlemmarna är försäkrade som ett resultat av en personlig anslutning eller därför att de inte har vägrat försäkringen.

Artikel 1:202 Ytterligare definitioner (1) ”Försäkrad” betyder den person vars intresse är skyddat mot skada täckt av skadeförsäkring; (2) ”Förmånstagare” betyder den person till vars förmån försäkringsersättningen är utlovad enligt en summaförsäkring; (3) ”Riskperson” betyder den person på vars liv, integritet eller status en försäkring är tagen; (4) ”Skadelidande”, vid ansvarsförsäkring, betyder den person för vars död, skada eller förlust den försäkrade är ansvarig; (5) ”Försäkringsagent” betyder en försäkringsförmedlare som är anställd av ett försäkringsbolag för att marknadsföra, sälja eller hantera försäkringskontrakt; (6) ”Premie” betyder betalningen till försäkringsbolaget av försäkringstagaren för att erhålla täckning. (7) ”Kontraktsperiod” betyder den period av ett kontraktuellt åtagande som börjar med ingåendet av kontraktet och slutar när det överenskomna villkoret om varaktighet går ut; (8) ”Försäkringsperiod” betyder den tidrymd för vilken premien är bestämd i enlighet med parternas överenskom-melse; (9) ”Ansvarsperiod” betyder den tidrymd under vilken försäkringen täcker. (10) ”Obligatorisk försäkring” betyder en försäkring som är tagen för att uppfylla en skyldighet att vara försäkrad som ålagts i lag eller förordningar.

2

I den engelska texten i „Insured event“.

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Swedish: Principer för en Europeisk Försäkringsavtalsrätt (PEICL)

Artikel 1:203 Språk och tolkning av dokument3 (1) Alla dokument som tillhandahålls av försäkringsbolaget skall vara enkla och förståeliga samt i det språk med vilket avtalet förhandlades fram. (2) Vid ovisshet om meningen med ordalydelsen av ett dokument eller med information som tillhandahållits av försäkringsbolaget skall den för försäkringstagaren, den försäkrade eller förmånstagaren mest fördelaktiga tolkningen gälla.

Artikel 1:204 Mottagande av dokument: bevisning Bevisbördan för att försäkringstagaren har mottagit dokument som försäkringsbolaget skulle tillhandahålla åvilar försäkringsbolaget.

Artikel 1:205 Form för meddelanden Meddelanden av den sökande, försäkringstagaren, den försäkrade eller förmånstagaren som beror på särskilda regler i PEICL och som har med försäkringskontraktet att göra, kräver ingen särskild form.

Artikel 1:206 Identifikation Om försäkringstagaren, den försäkrade eller förmånstagaren har anförtrott en tredje person ett ansvar som är väsentligt vid ingående eller genomförande av försäkringskontraktet skall de tre anses ha haft de insikter som den andra personen hade eller borde ha haft i det enskilda fallet.

Artikel 1:207 Ickediskriminering4 (1) Kön, havandeskap, moderskap, nationalitet och ras eller etniskt ursprung får inte vara faktorer som resulterar i skillnader mellan premier och förmåner. (2) Termer som används vid överträdelse av stycket (1), inklusive termer såvitt avser premien, är inte bindande för försäkringstagaren eller den försäkrade. Med förbehåll för stycket (3) skall försäkringsavtalet fortsätta att binda parterna på grundval av icke diskriminerande termer. (3 ) Vid överträdelse av stycket (1) har försäkringstagaren rätt att låta försäkringsavtalet upphöra. Meddelande härom skall lämnas till försäkringsbolaget skriftligen inom två månader sedan överträdelsen blivit känd för bolaget.

Artikel 1:208 Genetiska tester (1) Försäkringsbolaget får inte be den sökande, försäkringstagaren eller den person som risken gäller att undergå en genetisk test eller avslöja resultatet av testen. Inte heller får sådan information användas av försäkringsbolaget i syfte att gradera risker. (2) Stycket (1) behöver inte tillämpas vid personförsäkring när den person som risken gäller är över aderton år gammal eller mer och försäkringsbeloppet överskrider 300.000 EUR eller den ersättning som skall betalas överskrider 30.000 euros per år.

3 4

Artikel 1:203 stycket 2 har som förebild artikel 5 Direktiv 93/13/EG. Denna artikel har som förebild direktiv 2009/22/EG.

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Sektion 3: Verkställighet Artikel 1: 301 Förelägganden5 (1) En kvalificerad enhet, såsom den definieras i stycket (2), är berättigad att vända sig till en kompetent nationell domstol eller myndighet och begära ett föreläggande om förbud eller krav på upphörande av kränkningar av PEICL, om PEICL är tillämplig enligt artikel 1:102. (2) Med en kvalificerad enhet skall förstås varje organ eller organisation på den lista som föreskrivits av kommissionen i enlighet med artikel 4 i direktiv 2009/22/EG i dess av Europaparlamentet och rådet den 23 april 2009 ändrade skick beträffande förelägganden i syfte att skydda konsumentintressen.

Artikel 1:302 Förfaranden utanför domstol och återkravsmekanismer Tillämpning av PEICL utesluter inte att PEICL kan tillämpas även utanför domstol och på sådana återkravsmekanismer som eljest är tillgängliga för försäkringstagaren, den försäkrade eller förmånstagaren.

Kapitel 2: Försäkringskontraktets början och varaktighet Sektion 1: Sökandens förkontraktuella informationsplikt Artikel 2:101 Informationsplikt (1) När avtalet ingås, skall den sökande informera försäkringsbolaget om förhållanden som han är eller borde vara medveten om och vilka har blivit föremål för klara och precisa frågor som ställts till honom av bolaget. (2) De omständigheter som omfattas av stycket (1) inkluderar de om vilka den person som skall bli försäkrad var eller borde ha varit medveten.

Artikel 2:102 Kontraktsbrott (1) När försäkringstagaren kränkt sin informationsplikt enligt artikel 2:101 har försäkringsbolaget, med förbehåll för styckena (2) – (5), rätt att föreslå en skälig ändring av kontraktet eller avslutat det. För att erhålla denna rätt skall försäkringsbolaget inom en månad sedan kränkningen av artikel 2:101 blev känd eller synbar för bolaget, lämna skriftligt meddelande om sin avsikt, åtföljd av information om de rättsliga konsekvenserna av dess beslut. (2) Om bolaget föreslår en skälig ändring, skall avtalet fortsätta att gälla på grundval av den föreslagna ändringen, såvida inte försäkringstagaren förkastar förslaget inom en månad efter mottagandet av meddelandet enligt stycket (1). I det senare fallet har bolaget rätt att avsluta avtalet inom en månad från mottagandet av ett skriftligt meddelande om försäkringstagarens avslag. (3) Försäkringsgivaren saknar rätt att avsluta kontraktet om försäkringstagaren oskyldigt har kränkt artikel 2:101, såvida inte försäkringsgivaren förmår visa att det inte skulle ha ingått avtalet om det hade känt till informationen i fråga. (4) Avslut av kontraktet blir gällande en månad sedan det skriftliga meddelande, hänvisat till i stycket (1), mottagits av försäkringstagaren. Ändring sker i enlighet med parternas överenskommelse. (5) Om ett försäkringsfall orsakats av ett element i risken som beror på vårdslös information eller falska uppgifter av försäkringstagaren och samtidigt har inträffat före avslut, utgår ingen försäkringsersättning om försäkringsbolaget inte skulle ha ingått kontraktet om det hade känt till 5

Denna artikel har som förebild direktiv 2009/22/EG.

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informationen i fråga. Skulle försäkringsgivaren däremot ha ingått kontraktet men med en högre premie eller på andra villkor skall försäkringsersättningen betalas proportionellt eller enligt sådana villkor.

Artikel 2:103 Undantag De sanktioner som föreskrivits i artikel 2:101 skall ej tillämpas beträffande (a) en fråga som blev obesvarad, eller information som uppenbarligen var ofullständig eller inkorrekt; (b) information som borde ha lämnats eller som inte har lämnats tillräckligt noggrant men som inte var av materiell betydelse för en förnuftig försäkringsgivares beslut att över huvud ingå kontraktet eller att göra detta på överenskomna villkor; (c) information som försäkringsbolaget fick försäkringstagaren att tro att den inte behövde lämnas; eller (d) information om vilken försäkringsgivaren var eller borde ha varit medveten.

Artikel 2:104 Bedrägligt handlande Utan inverkan på de sanktioner som föreskrivits i artikel 2:102 har försäkringsbolaget rätt att undvika kontraktet och att behålla varje premie som tillkommer bolaget, om det har blivit förlett att ingå avtalet genom försäkringstagarens bedrägliga kränkning av artikel 2:101. Meddelande om undvikande av kontraktet skall skriftligen lämnas till försäkringstagaren inom två månader från det att det bedrägliga handlandet blir känt för försäkringsbolaget.

Artikel 2:105 Tilläggsinformation Artiklarna 2:102-2:104 skall också tillämpas på all information som tillhandahållits av försäkringstagaren vid tidpunkten för ingående av kontraktet utöver vad som krävs av honom enligt artikel 2:101.

Artikel 2:106 Genetisk information Denna sektion skall inte tillämpas på resultat av genetiska tester som omfattas av artikel 1:208 stycket 1.

Sektion 2: Försäkringsbolagets förkontraktuella plikter Artikel 2:201 Bestämmelse om förkontraktuella dokument6 (1) Försäkringsbolaget skall tillhandahålla sökanden en kopia av de föreslagna försäkringsvillkoren liksom även ett dokument som inkluderar följande information där denna är relevant: (a) namn och adress för kontraktsparterna, för försäkringsbolaget särskilt huvudkontoret och försäkringsbolagets rättsliga form och i förekommande fall den bransch som ingår avtalet eller garanterar försäkringens täckning; (b) den försäkrades namn och adress och, vid livförsäkring, förmånstagaren och den person som risken gäller; (c) namn och adress till försäkringsagenten; (d) den sak försäkringen gäller och de risker som är täckta; (e) försäkringsbeloppet och varje post kan dras av från beloppet; 6

Denna artikel har som förebilder artiklarna 183-189 i direktiv 2009/138/EG (Solvens II). direktiv 73/239/EG, direktiv 2002/83/EG och direktiv 2002/65/EG.

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(f) (g) (h) (i)

premiens storlek och den metod med vars hjälp premien kalkyleras; förfallodagen för premien samt plats och sätt för betalning; kontraktsperioden, inklusive metoden för att avsluta kontraktet och ansvarsperioden; rätten att återkalla ansökan eller undvika kontraktet enligt artikel 2:303 vid skadeförsäkring och enligt artikel 17:203 vid livförsäkring; (j) att försäkringsavtalet omfattas av PEICL; (k) existensen av ett alternativt tvistelösningsförfarande utanför domstol och återkravsmekanismerna till förmån för sökanden samt vad som krävs för att kunna utnyttja dessa möjligheter; (l) existensen av garantifonder och andra ersättningsanordningar. (2) Om möjligt skall denna information lämnas i så god tid att den sökande hinner överväga om försäkringsavtalet skall ingås eller inte. (3) När sökanden ber om försäkringsskydd på grundval av ett formulär och/eller en questionnaire tillhandahållna av försäkringsbolaget, skall detta förse sökanden med en kopia av de ifyllda dokumenten.

Artikel 2:202 Plikt att varna mot ofullkomligheter i försäkringsskyddet (1) När kontraktet ingås skall försäkringsbolaget varna sökanden för alla ofullkomligheter mellan det erbjudna skyddet och de sökandens krav som det känner till eller borde ha känt till. Härvid skall beaktas omständigheterna och sättet att ingå kontrakt på och, särskilt om sökanden biträddes av en oberoende försäkringsförmedlare. (2) Vid kränkning av stycket 1 (a) skall försäkringsbolaget ersätta försäkringstagaren för alla förluster som blivit ett resultat av den kränkning mot bolagets plikt att varna som bolaget gjort sig skyldig till oavsett skuld, och (b) skall försäkringstagaren vara berättigad avsluta kontraktet genom skriftligt meddelande given inom två månader sedan kränkningen blivit känd för försäkringstagaren.

Artikel 2:203 Plikt att varna angående försäkringsskyddets början Om sökanden skäligen men av misstag tror att täckningen börjar vid den tid då hans ansökan om försäkring har lämnats in och försäkringsbolaget känt till eller borde ha känt till hans uppfattning, skall bolaget omedelbart varna sökanden om att skyddet inte börjar förrän kontraktet har ingåtts och, i förekommande fall, om att skyddet, såvida detta inte har garanterats preliminärt, börjar först när den första premien har betalats. Om bolaget inte har uppfyllt plikten att varna skall det vara ansvarigt enligt art. 2:202 stycket 2 (a).

Sektion 3: Ingående av kontraktet Artikel 2:301 Hur kontraktet skall ingås Ett försäkringsavtal behöver inte ha ingåtts eller vara styrkt skriftligen eller vara föremål för annat krav såvitt avser dess form. Avtalet kan styrkas på alla sätt, inklusive muntligt vittnesmål.

Artikel 2:302 Återkallelse av ansökan om försäkring Ansökan om försäkring kan återkallas av sökanden om återkallelsen kommer försäkringsbolaget till handa innan sökanden mottager en accept av bolaget.

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Swedish: Principer för en Europeisk Försäkringsavtalsrätt (PEICL)

Artikel 2:303 Ångerfrist7 (1) Försäkringstagaren har rätt att bli befriad från avtalet genom att lämna ett skriftligt meddelande härom inom två veckor efter mottagandet av accepten eller, om detta skett senare, överlämnandet av de dokument varom föreskrivs i artikel 2:501, (2) Försäkringstagaren saknar rätt till befrielse från avtalet när (a) försäkringstiden är kortare än en månad (b) avtalet har förlängts enligt artikel 2:602 (c) det är fråga om preliminär försäkring, ansvarsförsäkring eller gruppförsäkring

Artikel 2:304 Oskäliga avtal8 (1) Ett villkor som inte har blivit individuellt behandlat skall inte vara bindande för försäkringstagaren, den försäkrade eller förmånstagaren om, i strid med krav på god tro och rättvisa, det orsakar en signifikant obalans i de nämnda personernas rättigheter och skyldigheter enligt kontraktet och är till deras nackdel. Härvid skall beaktas försäkringsavtalets natur, alla andra villkor i kontraktet och omständigheterna vid tidpunkten för kontraktets ingående. (2) Avtalet skall fortsätta att binda parterna om det kan fortsätta existera utan det oskäliga villkoret. Om inte skall det oskäliga villkoret ersättas av ett villkor som parterna skäligen hade accepterat om de hade känt till villkorets oskälighet. (3) Artikeln skall tillämpas på villkor som begränsar eller modifierar skyddet men tillämpas varken såvitt avser (a) lämpligheten av skyddets värde eller premien, ej heller (b) villkor som fastställer den väsentliga beskrivningen av det garanterade skyddet eller den överenskomna premien, förutsatt att villkoren är skrivna med ett klart och begripligt språk (4) Ett villkor skall alltid betraktas såsom icke individuellt förhandlat om det har blivit utformat i förväg och försäkringstagaren därför inte varit i stånd att influera innehållet i detsamma, särskilt i samband med ett tidigare formulerat standardavtal. Det förhållandet att vissa aspekter av villkoret eller en särskild term har blivit individuellt förhandlad utesluter inte tillämpningen av artikeln såvitt avser resten av avtalet om en helhetsbedömning av avtalet indikerar att det icke desto mindre är ett i förväg formulerat standardavtal. När ett försäkringsbolag påstår att en standardterm har blivit individuellt förhandlad, åvilar bevisbördan i detta avseende bolaget.

Sektion 4: Retroaktivt och preliminärt skydd Artikel 2:401 Retroaktivt skydd (1) Om försäkringsskydd har lämnats för tiden innan avtalet ingicks (retroaktivt skydd) och försäkrings-bolaget vid tidpunkten för kontraktets ingående visste om att ingen försäkrad risk hade inträffat, skall försäkringstagaren betala premier endast för perioden efter avtalets ingående. (2) Om försäkringstagaren när retroaktivt skydd har lämnats vid tidpunkten för ingåendet av avtalet vet om att försäkringsfall redan har inträffat skall avtalet enligt artikel 2:104 ge skydd endast för perioden efter tidpunkten för avtalets ingående.

7 8

Denna artikel har som förebild direktiv 2002/65/EEG. Denna artikel har som förebild direktiv 93/13/EG.

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Artikel 2:402 Preliminärt skydd (1) När ett preliminärt försäkringsavtal ingås, skall försäkringsbolaget tillhandahålla ett försäkringsintyg9 innehållande den information som antecknats i artikel 2:501 (a), (b), (d), och (h) om detta är relevant. (2) Artiklarna 2.201-2.203 och, beträffande första stycket ovan, artikel 2:501 skall inte tillämpas såvitt avser preliminärt skydd.

Artikel 2:403 Försäkringstiden vid preliminärt skydd (1) När den försäkringssökande har tillförsäkrats preliminärt skydd skall detta inte upphöra tidigare än vid den tidpunkt då täckningen av det försäkringsavtal parterna har kommit överens om börjar eller vid den tidpunkt då sökanden mottager ett meddelande från försäkringsbolaget om ett definitivt avslag på ansökan. (2) När preliminärt skydd har tillförsäkrats en person som inte söker försäkring hos samma försäkringsbolag, kan skyddet vara garanterat en mindre försäkringsperiod än som föreskrivs i artikel 2:601 stycket 1. Ett sådant skydd kan hävas av envar part under förutsättning att meddelande skett inom två veckor.

Sektion 4: Försäkringsbrev10 Article 2:501 Innehåll När försäkringsavtalet ingås skall försäkringsbolaget tillhandahålla försäkringsvillkor som, tillhopa med de allmänna villkoren i den mån dessa inte är inkluderade i försäkringsvillkoren, skall innehålla följande information där denna är relevant: (a) namn och adress för kontraktsparterna, för försäkringsbolaget särskilt huvudkontoret och försäkringsbolagets rättsliga identifikation samt i förekommande fall den del av villkoren i vilken avtalet ingår eller vari försäkringens täckning garanteras; (b) den försäkrades namn och adress och, vid livförsäkring, förmånstagaren och den person som risken gäller; (c) namn och adress till försäkringsförmedlaren; (d) slaget av försäkring samt de risker som är täckta; (e) försäkringsbeloppet och varje post som minskar beloppet; (f) premiens storlek och den metod med vars hjälp premien kalkyleras; (g) förfallodagen för premien samt plats och sätt för betalning; (h) kontraktsperioden, inklusive förfarandet för att få försäkringen att upphöra samt ansvarsperioden; (i) rätten att återkalla ansökan eller bli befriad från försäkringskontraktet enligt artikel 2:303 vid skadeförsäkring och enligt artikel 17:203 vid livförsäkring; (j) att försäkringsavtalet omfattas av PEICL; (k) existensen av ett alternativt tvistelösningsförfarande utanför domstol och återkravsmekanismer till förmån för sökande och vad som krävs för att kunna utnyttja dessa möjligheter; (l) existensen av garantifonder och andra ersättningsanordningar.

9 10

I den engelska texten: „ cover note“. I den engelska texten „Insurance policy“.

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Artikel 2:502 Försäkringsbrevets verkningar (1) Om försäkringsbrevets termer avviker från de som återfinns i sökandens ansökan om försäkring eller någon tidigare överenskommelse mellan parterna skall sådana skillnader som understrukits i försäkrings-brevet i förhållande till tidigare dokument anses ha blivit gillade av försäkringstagaren såvida denne inte invänt mot dem inom en månad efter försäkringsbrevets mottagande. Försäkringsbolaget skall med halvfet stil uppmärksamma försäkringstagaren om hans rätt att invända mot de skillnader som understrukits i försäkringsbrevet. (2) Om försäkringsbolaget ej handlar i enlighet med stycket 1 skall avtalet anses ha blivit ingånget enligt de villkor som återfinns i den sökandes ansökan om försäkring eller tidigare överenskommelse mellan parterna.

Sektion 6: Försäkringskontraktets varaktighet Artikel 2:601 Försäkringskontraktets varaktighet (1) Försäkringskontraktets varaktighet är ett år. Parterna kan komma överens om en annan tid om detta är önskvärt med tanke på riskens natur. (2) Stycket 1 tillämpas inte på personförsäkring.

Artikel 2:602 Förlängning (1) Sedan ettårstiden enligt artikel 2:601 har gått ut skall avtalet förlängas, såvida inte (a) försäkringsbolaget åtminstone en månad före kontraktsperiodens utgång skriftligen har motsatt sig förlängning med angivande av skälen för beslutet; eller (b) försäkringstagaren har lämnat skriftligt meddelande om vägrad förlängning senast den dag kontraktsperioden går ut eller, alternativt, inom en månad efter mottagande av försäkringsbolagets premiefaktura, låt vara att fakturans datum är senare. Enmånadsperioden startar endast om den tydligt fastställts i halvfet stil på fakturan. (2) Meddelande enligt stycket 1 (b) skall anses ha lämnats så snart det har avsänts.

Artikel 2:603 Förändring av termer och villkor (1) Om det i ett försäkringskontrakt som skall förlängas enligt artikel 2:602 finns ett villkor som tillåter försäkringsbolaget att ändra premien eller något annat villkor i avtalet skall detta vara ogiltigt om inte ändringen föreskriver att (a) ingen ändring skall ha verkan före nästa förlängning, (b) försäkringsbolaget skall sända skriftligt meddelande om ändring till försäkringstagaren ej senare än en månad innan det löpande kontraktsperioden går ut, och (c) meddelandet informerar försäkringstagaren om hans rätt att avsluta avtalet och konsekvenserna om denna rätt inte utövas. (2) En tillämpning av stycket 1 inverkar inte på andra krav som gäller för giltigheten av ändringsklausuler.

Artikel 2:604 Avslut sedan försäkringsfall inträffat (1) Ett villkor enligt vilket avtalet är avslutat sedan försäkringsfall har inträffat är ogiltigt såvida det inte (a) ger båda parterna rätt att avsluta avtalet och (b) villkoren inte gäller personförsäkring

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(2) Både villkor om avslut och villkor om utövandet av varje rätt att avsluta måste vara skäliga (3) Varje rätt att avsluta upphör om parten i fråga inte skriftligen har lämnat ett skriftligt meddelande om avslut till den andra parten inom två månader efter att ha blivit medveten om försäkringsfallet (4) Försäkringsskyddet avslutas två veckor efter anmälan enligt stycket 3.

Sektion 7: Försäkringsbolagets förkontraktuella förpliktelser Artikel 2:701 Generell informationsplikt Under hela kontraktstiden skall försäkringsbolaget utan oskäligt dröjsmål förse försäkringstagaren med skriftlig information rörande varje förändring beträffande dess namn och adress, legala status, adressen till dess huvudkontor och till den agentur eller filial som ingick avtalet.

Artikel 2:702 Ytterligare information på begäran (1) På försäkringstagarens begäran skall försäkringsbolaget utan oskäligt dröjsmål förse försäkringstagaren med information angående (a) så långt skäligen kan förväntas av försäkringsbolaget, alla omständigheter som är relevanta för att kunna genomföra avtalet (b) nya standardvillkor som försäkringsbolaget erbjuder såvitt avser försäkringsavtal av samma typ som det som ingåtts med försäkringstagaren (2) Både försäkringstagarens begäran och försäkringsbolagets svar skall vara skriftliga.

Kapitel 3: Försäkringsförmedlare Artikel 3:101 Försäkringsagentens behörighet (1) En försäkringsagent har för försäkringsbolagets räkning rätt att utöva alla handlingar för bolagets räkning som enligt gällande försäkringspraxis faller inom ramen för hans tjänst. Varje begränsning av försäkringsförmedlarens behörighet skall tydligt tillkännages försäkringstagaren i ett separat dokument. Agentens behörighet skall dock åtminstone täcka den som faller inom ramen för hans anställning. (2) I alla händelser skall försäkringsförmedlarens behörighet inkludera makten (a) att informera och ge råd till försäkringstagaren, och (b) mottaga meddelanden från försäkringstagaren. (3) Relevanta insikter som försäkringsagenten har eller borde ha haft i tjänsten skall anses vara försäkringsbolagets.

Artikel 3:102 Försäkringsagenter som ger sig ut för att vara oberoende Om en försäkringsagent ger sig ut för att vara en oberoende försäkringsförmedlare och handlar i strid med de skyldigheter en sådan förmedlare har enligt lag, blir försäkringsbolaget ansvarigt för detta handlande.

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Kapitel 4: Den försäkrade risken Sektion 1: Säkerhetsföreskrifter Artikel 4:101 Säkerhetsföreskrifter: betydelse Med en säkerhetsföreskrift förstås ett villkor i ett försäkringskontrakt som, oavsett om det beskrivs som ett villkor för försäkringsbolagets ansvar eller inte, kräver att försäkringstagaren eller den försäkrade fullgör eller inte fullgör vissa handlingar.

Artikel 4:102 Försäkringsbolagets rätt att avsluta kontraktet (1) Ett försäkringsvillkor som föreskriver att försäkringsbolaget har rätt att avsluta försäkringskontraktet i händelse en säkerhetsföreskrift inte åtlytts, är utan verkan såvida inte försäkringstagaren eller den försäkrade har åsidosatt sin skyldighet i uppsåt att orsaka förlusten eller hänsynslöst11 och i medvetande om att skadan sannolikt skulle inträffa. (2) Rätten att avsluta avtalet skall utövas genom ett skriftligt meddelande till försäkringstagaren inom en månad från det att säkerhetsföreskriftens åsidosättande blivit känd eller uppenbar för försäkringsbolaget. Försäkringsskyddet upphör vid tidpunkten för kontraktets avslut.

Artikel 4:103 Bortfall av försäkringsbolagets ansvar (1) Ett klausul om att försäkringsbolaget helt eller delvis befrias från ansvar när en säkerhetsföreskrift inte respekterats har endast verkan i den utsträckning som skadan orsakades av ett bristande tillmötesgående av försäkringstagaren eller den försäkrade i uppsåt eller med hänsynslöst sätt att uppsåtliga eller grovt vårdslösa handlande samtidigt som de haft vetskap om att skadan sannolikt skulle inträffa. (2) Under förutsättning av att ett klart försäkringsvillkor föreskriver nedsättning av försäkringsersättningen med hänsyn till graden av fel har försäkringstagaren eller den försäkrade, vem det nu gäller, rätt till försäkringsersättning för varje skada som orsakats av icke grov vårdslöshet vid uppfyllande av krav enligt en säkerhetsföreskrift.

Sektion 2: Riskökning Artikel 4:201 Försäkringsvillkor angående riskökning Om försäkringsavtalet innehåller en klausul rörande riskökning är klausulen utan verkan om inte ökningn i fråga är materiell och av ett slag som specificerats i avtalet.

Artikel 4:202 Plikten att anmäla en riskökning (1) Om en klausul rörande riskökning kräver anmälan av ökningen skall en sådan i förekommande fall anmälas av försäkringstagaren, den försäkrade eller förmånstagaren, förutsatt att den som har denna plikt var eller borde ha varit medveten om försäkringsskyddets existens och om riskökningen. Även anmälan av en annan person giltig. (2) Om klausulen kräver en anmälan given inom en fastställd tidsperiod skall denna period vara skälig. Anmälan blir giltig från det att den har avsänts. (3) Om anmälningsplikten underlåts, har försäkringsbolaget inte på den grunden rätt att vägra betala varje förlust som är en följd av en händelse täckt av försäkringsskyddet, såvida inte förlusten orsakats av riskökningen. 11

Den engelska texten använder här begreppet „recklessly“ (hänsynslöst).

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Artikel 4:203 Avslut och ansvarsbefrielse (1) Om kontraktet föreskriver att försäkringsbolaget vid riskökning har rätt att avsluta kontraktet skall denna rätt utövas genom ett skriftligt meddelande till försäkringstagaren inom en månad en månad sedan riskökningen blev känd eller uppenbar för bolaget. (2) Försäkringsskyddet upphör en månad efter avslutet eller, om försäkringsavtalet uppsåtligen har brutit sin plikt enligt artikel 4:202, vid tidpunkten för avslutet. (3) Om ett försäkringsfall har orsakats av en riskökning för vilken försäkringstagaren är eller borde ha varit medveten om innan skyddet har gått ut, skall försäkringsersättning ej betalas om försäkringsbolaget inte skulle ha försäkrat riskökningen alls. Om emellertid försäkringsbolaget skulle ha försäkrat riskökningen men med en högre premie eller med andra villkor skall försäkringsersättningen betalas proportionellt härtill eller i enlighet med sådana villkor.

Sektion 3: Riskminskning Artikel 4:301 Konsekvenser av riskminskning (1) Vid materiell riskminskning har försäkringstagaren rätt att begära en proportionell minskning av premien för återstående kontraktsperiod. (2) Om parterna inte är överens om en proportionell minskning inom en månad sedan begäran härom framställts, har försäkringstagaren rätt att avsluta avtalet genom en skriftlig uppsägning inom två månader från framställd begäran.

Kapitel 5: Försäkringspremie Artikel 5:101 Den första eller enda premien När försäkringsbolaget gör den första eller enda premiebetalningen till ett villkor för ingående av kontraktet eller för början av försäkringsskyddet skall detta vara utan verkan om inte (a) villkoret har kommunicerats med den sökande skriftligen med klart språk och varnande sökanden för att han saknar försäkringsskydd till dess premien är betald, och (b) en period på två veckor har gått ut efter mottagandet av en faktura som motsvarar det krav som gäller enligt (a) utan att betalning skett.

Artikel 5:102 Efterföljande premie (1) En klausul som föreskriver att försäkringsbolaget befrias från sin skyldighet att täcka risken i händelse den efterföljande premien inte betalas saknar verkan om inte (a) försäkringstagaren mottar en faktura som fastställer det exakta premiebeloppet liksom förfallodagen; (b) försäkringsbolaget sedan premien förfallit sänder en påminnelse till försäkringstagaren om det exakta premiebeloppet och som ger denne anstånd med betalningen med åtminstone två veckor samtidigt som den varnar försäkringstagaren för att försäkringsskyddet upphör omedelbart vid utebliven betalning; och (c) att tilläggsperioden enligt punkten (b) har löpt ut men betalning uteblivit. (2) Försäkringsbolaget befrias från ansvar sedan tilläggsperioden enligt stycket 1 (b) har gått ut. Försäkringsskyddet träder på nytt i funktion så snart försäkringstagaren betalar såvida kontraktet inte har avslutats enligt artikel 5:103.

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Artikel 5:103 Kontraktets avslut (1) Vid utgången av den period till vilken hänvisas i artikel 5:101 (b) eller i artikel 5:102 stycket 1 (b) har försäkringsbolaget vid utebliven betalning rätt att avsluta avtalet genom ett skriftligt meddelande, förutsatt att den faktura som krävs enligt artikel 5:101 (b) eller den påminnelse som krävs enligt artikel 5:102 stycket 1 fastställer rätten för försäkringsbolaget att avsluta kontraktet. (2) Avtalet skall anses avslutat om försäkringsbolaget inte driver en talan om betalning (a) såvitt avser den första premien inom två månader efter utgången av den period som nämns i artikel 5:101 (b); eller (b) beträffande den följande premien inom två månader efter utgången av den tid som anges i artikel 5:102 stycket 1 (b).

Artikel 5:104 Premiens uppdelning Om försäkringskontrakt är avslutats innan kontraktsperioden har löpt ut, har försäkringsbolaget endast rätt till premie för perioden före avslutet.

Artikel 5:105 Rätt att betala premie Försäkringsbolaget har inte rätt att vägra betalning av en tredje man om (a) denne handlar med försäkringstagarens godkännande; eller (b) tredje man har ett legitimt intresse av att försäkringsskyddet upprätthålls och försäkringstagaren har försummat att betala eller det är klart att han inte kommer att betala vid den tidpunkt detta skulle ske.

Kapitel 6: Försäkringsfallet Artikel 6:101 Anmälan av försäkringsfall (1) Inträffande av ett försäkringsfall skall anmälas till försäkringsbolaget av i förekommande fall försäkringstagaren, den försäkrade eller förmånstagaren och under förutsättning att den som är skyldig att anmäla var eller borde ha varit medveten om existensen av försäkringsskyddet och om försäkringsfallet. Anmälan av annan person är giltig. (2) Sådan anmälan skall lämnas utan oskäligt uppehåll. Den är giltig från avsändandet. Om avtalet kräver anmälan inom en särskild tid skall denna vara skälig och i vart fall inte kortare än fem dagar. (3) Försäkringsersättningen skall reduceras i den utsträckning försäkringsbolaget förmår styrka att det har tillfogats förlust på grund av oskälig försening.

Artikel 6:102 Medverkan (1) Försäkringstagaren, den försäkrade eller, allt efter lämplighet, förmånstagaren skall samarbeta med försäkringsbolaget vid utredningen av försäkringsfallet. Det skall ske genom ett besvarande av rimligt ställda önskemål, särskilt beträffande – information om orsakerna och verkningarna av försäkringsfallet; – dokumentation eller annan bevisning rörande försäkringsfallet; – tillträde till lokaler i anslutning till detta. (2) Vid varje åsidosättande av stycket 1 och med förbehåll för stycket 3 skall försäkringsersättningen jämkas i den grad försäkringsbolaget visar att det har lidit skada av underlåten medverkan.

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(3) I händelse av varje sådan kränkning av stycket 1 som skett med uppsåt att orsaka skada eller som varit hänsynslöst och i medvetande om att sådan skada sannolikt skulle inträda, är försäkringsbolaget befriat från skyldigheten att betala försäkringsersättning.

Artikel 6:103 Godtagande av krav på försäkringsersättning (1) Försäkringsbolaget skall vidta alla mått och steg för att skyndsamt ta ställning till ett krav. (2) Försäkringskravet skall anses godtaget om inte försäkringsbolaget avslår eller skjuter upp ett godtagande av detsamma genom ett skriftligt meddelande med angivande av skälen för beslutet inom en månad efter mottagandet av de relevanta dokumenten och annan information.

Artikel 6:104 Tid för utbetalning av försäkringsersättning (1) När ett krav har blivit godtaget skall försäkringsbolaget utan oskäligt uppehåll betala eller tillhandahålla sådana utlovade tjänster som det kan vara fråga om. (2) Även om det totala värdet av kravet ännu inte kan kvantifieras trots att den som begär ersättning är berättigad till åtminstone en del av beloppet, skall detta betalas utan oskäligt uppehåll. (3) Utbetalning av försäkringsersättning enligt stycket 1 eller stycket 2 skall ej ske senare än en vecka efter antagandet och kvantifieringen av kravet eller en sådan del av det som det kan bli fråga om.

Artikel 6:105 Försenad utbetalning12 (1) Om försäkringsersättning ej har betalats enligt artikel 6:104 har den som krävt ersättning rätt till ränta på beloppet från den tidpunkt betalning skulle ha skett till dess betalning sker och med den räntesats som tillämpats av den Europeiska Centralbanken i dess senaste huvudsakliga återbetalningsoperation genomförd första kalenderdagen i det halvår det är fråga om jämte åtta procents punkter. (2) Den som begär försäkringsersättning har rätt till skadestånd för varje ytterligare förlust orsakad av för sen utbetalning av försäkringsersättningen.

Kapitel 7: Preskription Artikel 7:101 Premien Talan om betalning av premie preskriberas efter en period av ett år från den tidpunkt då betalningen skulle ha skett.

Artikel 7:102 Talan om betalning av försäkringsförmåner (1) I allmänhet preskriberas talan om försäkringsförmåner efter en period av tre år från det ögonblick då försäkringsbolaget fattar eller skall anses ha fattat ett slutligt beslut om kravet i enlighet med artikel 6:103. I alla händelser preskriberas emellertid talan senast efter en period av tio år från det att försäkringsfallet inträffade med undantag för livförsäkring för vilken den relevanta perioden är 30 år. (2) Talan om betalning för återköpsvärdet av livförsäkring preskriberas efter en period av tre år från den tidpunkt då försäkringstagaren erhåller den slutliga beräkningen av försäkringsbolaget. I alla händelser preskriberas talan senast efter en period av 30 år från livförsäkringskontraktets slut.

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Denna artikel har som förebild artikel 3 para.1 (d) direktiv 2000/35/EEG.

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Artikel 7:103 Andra frågor i samband med preskription Med förbehåll för artikel 7:101 och artikel 7:102 i PEICL skall artiklarna 14:101-14:503 i Principerna för en Europeisk Kontraktsrätt (PECL) tillämpas på ersättningskrav grundade på ett försäkringskontrakt. Försäk-ringsavtalet kan avvika från dessa bestämmelser i enlighet med artikel 1:103 stycket 2 i PEICL.

Avdelning 2: För skadeförsäkring gemensamma bestämmelser Kapitel 8: Försäkringsbelopp och försäkringsvärde Artikel 8:101 Maximala ersättningsbelopp (1) Försäkringsbolaget är inte skyldigt att betala mer än det belopp som är nödvändigt för att ersätta den försäkrades faktiska förluster. (2) En klausult som föreskriver ett särskilt mellan parterna överenskommet värde för den försäkrade saken är giltigt även om detta värde överskrider det faktiska värdet under förutsättning att försäkringstagaren eller den försäkrade inte gjort sig skyldig till bedrägeri eller felaktiga uppgifter när värdet en gång fastställdes.

Artikel 8:102 Underförsäkring (1) Försäkringsbolaget är ansvarigt för varje försäkrad skada med försäkringsbeloppet även om detta är mindre än värdet av den försäkrade egendomen vid försäkringsfallet. (2) När försäkringsbolaget erbjuder skydd enligt stycket 1 har det alternativt rätt att erbjuda försäkring på den grunden att försäkringsersättningen skall begränsas till den proportion som det försäkrade beloppet står i förhållande till egendomens aktuella värde vid försäkringsfallet. I det fallet skall dessutom räddningskostnader såsom de definierats i artikel 9:102 betalas i samma proportion.

Artikel 8:103 Villkorsjustering vid överförsäkring (1) Om försäkringsbeloppet överskrider den maximalt möjliga ersättningsgilla förlusten enligt försäkringen, har båda parter rätt att begära en jämkning av försäkringsbeloppet och en motsvarande reduktion av premien för återstående kontraktsperiod. (2) Om parterna inte inom en månad efter förfrågan kan komma överens om en sådan jämkning, har envar av dem rätt att avsluta avtalet.

Artikel 8:104 Försäkringar hos flera försäkringsbolag (1) Om samma intresse är separat försäkrat hos mer än ett försäkringsbolag har den försäkrade rätt att rikta ersättningskrav mot vilket som helst eller flera av dessa bolag i den utsträckning som är nödvändigt för att identifiera den försäkrades faktiska förluster. (2) Det försäkringsbolag mot vilket kravet riktas skall betala ersättning upp till det försäkringsbelopp som villkoren bestämmer samt eventuella räddningskostnader utan förfång för bolagets regressrätt mot andra försäkringsbolag. (3) Den regressrätt till vilken hänvisas i stycket 2 skall utövas i proportion till de försäkringsbelopp för vilka varje bolag svarar separat mot den försäkrade.

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Kapitel 9: Rätten till försäkringsersättning Artikel 9:101 Orsakande av skada (1) Varken försäkringstagaren eller den försäkrade är berättigade till försäkringsersättning i den mån skadan har orsakats av vederbörandes handling eller underlåtenhet med antingen uppsåt att orsaka skadan eller också hänsynslöst samt i medvetande om att skadan sannolikt skulle bli följden. (2) Med förbehåll för en klar bestämmelse i försäkringsvillkoren som föreskriver jämkning av försäkringsersättningen alltefter graden av skuld hos förs äkringstagaren eller den försäkrade är vederbörande berättigad till full ersättning för varje skada orsakad av en handling eller underlåtenhet från hans sida som var vårdslös. (3) Styckena 1 och 2 skall förstås så att orsakande av skada inkluderar försummelse att avvärja eller minska skadan.

Artikel 9:102 Räddningskostnader (1) Om försäkringstagaren eller den försäkrade ådragit sig kostnader eller skadat sin egen egendom för att minska den försäkrade förlusten skall försäkringsbolaget ersätta deras utgifter i anledning härav i den mån åtgärderna varit skäliga med hänsyn till omständigheterna, även om resultatet inte blivit en minskning av förlusten. (2) Försäkringsbolaget skall ersätta försäkringstagaren eller den försäkrade för alla åtgärder som vidtagits enligt stycket 1, även om den ersättningen tillsammans med försäkringsersättningen överstiger försäkringsbeloppet.

Kapitel 10: Regressrätt (1) Med förbehåll för stycket 3 har försäkringsbolaget rätt att utöva regress mot en ansvarig tredje man för den förlust och i den utsträckning som det har ersatt den försäkrade. (2) I den mån den försäkrade avstår från sin regressrätt mot en sådan tredje man på sätt skadar försäkringsbolagets regressrätt, förloras rätten till försäkringsersättning i motsvarande mån. (3) Försäkringsbolaget har inte rätt att utöva regressrätt mot en medlem av försäkringstagarens eller den försäkrades hushåll, en person i ett likartat socialt förhållande till försäkringstagaren eller den försäkrade eller en arbetstagare till försäkringstagaren eller den försäkrade, utom när det har visats att förlusten orsakats av en sådan person uppsåtligen eller hänsynslöst och i medvetande om att förlusten sannolikt skulle inträffa. (4) Försäkringsbolaget får inte utöva sin regressrätt till skada för den försäkrade.

Kapitel 11: Andra försäkrade än försäkringstagaren Artikel 11:101 Den försäkrades rätt (1) Om en försäkring har tagits till förmån för en annan person än försäkringstagaren har denna person rätt till försäkringsersättningen om ett försäkringsfall inträffar. (2) Försäkringstagaren har rätt att återkalla ett sådant försäkringsskydd, om inte (a) försäkringsvillkoren föreskriver något annat, eller (b) försäkringsfallet har inträffat.

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(3) återkallelsen blir giltig när ett skriftligt meddelande om återkallelsen har mottagits av försäkringsbolaget.

Artikel 11:102 Den försäkrades vetskap En försäkrads vetskap enligt artikel 11:101 skall inte tillräknas försäkringstagaren, såvida inte den försäkrade är medveten om att vara försäkrad när försäkringstagaren är skyldig att lämna relevant information till försäkringsbolaget.

Artikel 11:103 Kontraktsbrott av en försäkrad av flera En försäkrads åsidosättande av sin plikt inverkar inte på andra försäkrades rättigheter enligt försäkringsavtalet, såvida inte risken är försäkrad för alla gemensamt.

Kapitel 12: Den försäkrade risken Artikel 12:101 Försäkrad risk saknas (1) Om en försäkrad risk saknas såväl vid tiden för avtalets ingående som under försäkringstiden, skall ingen premie betalas. Försäkringsbolaget har emellertid rätt till en skälig ersättning för de utgifter som uppkommit. (2) Om den försäkrade risken upphör att existera under försäkringstiden, skall avtalet anses avslutat när försäkringsbolaget underrättats härom.

Artikel 12:102 Överlåtelse av försäkrad egendom (1) Om rätten till försäkrad egendom överlåts skall försäkringsavtalet upphöra en månad en månad efter överlåtelsen om inte försäkringstagaren och förvärvaren av överlåtelsen kommer överens om en annan tidpunkt. Denna regel tillämpas inte om försäkringsavtalet ingicks till fördel för en framtida mottagare av överlåtelsen. (2) Förvärvaren av egendomen skall anses vara försäkringstagare från den tidpunkt då risken för den försäkrade egendomen har övergått. (3) Styckena 1 och 2 tillämpas inte (a) om försäkringsbolag, försäkringstagare och förvärvare kommer överens om annat; eller (b) till en överlåtelse genom arv.

Avdelning 3: Bestämmelser gemensamma för summaförsäkring Kapitel 13: Tillträde Artikel 13:101 Summaförsäkring Endast olycka, hälsa, liv, äktenskap, födelse eller annan personförsäkring kan meddelas som summaförsäkring.

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Avdelning 4: Ansvarsförsäkring Kapitel 14: Allmän ansvarsförsäkring Artikel 14:101 Kostnader för den försäkrades försvar Försäkringsbolaget skall betala kostnader för den försäkrades försvar i enlighet med artikel 9:102.

Artikel 14:102 Den skadelidandes skydd Om inte den skadelidande har lämnat sitt skriftliga medgivande härtill berörs hans situation inte av någon förlikning rörande försäkringsanspråket enligt försäkringsvillkoren mellan försäkringstagaren eller den försäkrade och försäkringsbolaget, vare sig genom överenskommelse, eftergift, betalning eller liknande åtgärd.

Artikel 14:103 Orsakssambandet vid skada (1) Varken försäkringstagaren eller den försäkrade är berättigade till ersättning i den mån skadan orsakats av en handling eller en underlåtenhet med uppsåt att orsaka skadan; detta inkluderar bristande uppfyllelse av speciella instruktioner givna efter försäkringsfallet, om handlandet skett hänsynslöst och i medvetande om att skadan sannolikt skulle förvärras. (2) Orsakande av skada enligt stycket 1 inkluderar underlåtenhet att varna eller att avvärja en förlust. (3) Med förbehåll för en klar bestämmelse i försäkringsvillkoren som föreskriver reduktion av försäkringsersättningen med hänsyn till graden av skuld skall försäkringstagaren eller den försäkrade ha rätt till ersättning för varje skada orsakad av vårdslös kränkning av försäkringsbolagets speciella instruktioner efter försäkringsfallet.

Artikel 14:104 Erkännande av ansvar (1) En klausul i försäkringskontraktet befriar försäkringsbolaget från dess skyldigheter om försäkringstagaren eller den försäkrade godkänner eller är nöjd med den skadelidandes krav på ersättning är utan verkan. (2) Såvida försäkringsbolaget inte samtycker härtill skall bolaget inte vara bundet av en överenskommelse mellan den skadelidande och försäkringstagaren eller den försäkrade.

Artikel 14:105 Överlåtelse Ett försäkringsvillkor som berövar den försäkrade hans rätt att överlåta sitt ersättningskrav enligt villkoret saknar verkan.

Artikel 14:106 Ingen bonus vid ersättningskrav/Bonus-Malus system (1) Försäkringstagaren har rätt att när som helst kräva en rapport som visar hur många ersättningkrav han riktat mot försäkringsbolaget under de sista fem åren. (2) Om ett försäkringsbolag gör premie eller andra villkor beroende av antalet eller storleken av de ersättningskrav som riktats mot bolaget från försäkringstagaren, skall vederbörlig hänsyn ges dennes krav även mot andra försäkringsbolag under de senaste fem åren.

Artikel 14:107 Försäkrad händelse (1) Försäkrad händelse skall vara det faktum som ger upphov till den försäkrades ansvar som uppkom under försäkringskontraktets ansvarsperiod såvida inte parterna i ett försäkringsavtal för

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kommersiella eller professionella ändamål definierar försäkrad händelse med hänvisning till andra kriterier såsom den skadelidandes anspråkskrav. (2) När kontraktsparterna definierar försäkrad händelse med hänvisning till den skadelidandes anspråkskrav, skall täckning garanteras med hänsyn till krav framställda inom ansvarsperioden eller inom en följande period, inte mindre än fem år, och som är grundad på ett faktum som inträffat före slutet av ansvarsperioden. Försäkringskontraktet kan exkludera täckning på den grunden att vid tidpunkten för kontraktets ingående, den sökande var eller borde ha varit medveten om omständigheter som han borde ha väntat skulle ge upphov till ersättningskrav.

Artikel 14:108 Ersättningskrav som överstiger försäkringsbeloppet (1) Om de totala utbetalningarna överstiger försäkringsbeloppet på grund av att det finns flera skadelidande skall utbetalningarna nedsättas proportionellt (2) Ett försäkringsbolag som omedvetet om existensen av flera skadelidande i god tro har betalat ut försäkringsersättning till de skadelidande som de kände till, skall endast svara mot övriga skadelidande inom ramen för försäkringsbeloppet.

Kapitel 15: Direkta krav och direkta rättsliga åtgärder Artikel 15:101 Direktkrav och invändningar (1) I den utsträckning försäkringstagaren eller den försäkrade är ansvarig är den skadelidande berättigad att direkt kräva försäkringsbolaget på ersättning enligt försäkringskontraktet under förutsättning att (a) försäkringen är obligatorisk, eller (b) försäkringstagaren eller den försäkrade är insolvent, eller (c) försäkringstagaren eller den försäkrade har trätt i likvidation eller gått i konkurs, eller (d) den skadelidande har tillfogats personskada, eller (e) den lag som bestämmer ansvaret föreskriver ett direktkrav (2) I förhållande till den skadelidande kan försäkringsbolaget resa invändningar som är tillgängliga i Försäkringskontraktet såvida detta inte förhindras av speciella föreskrifter som gör försäkringen obligatorisk. Bolaget har dock inte rätt att resa någon invändning som är grundad på försäkringstagarens handlande och/eller den försäkrade efter skadan.

Artikel 15:102 Informationsplikter (1) På begäran av den skadelidande skall försäkringstagaren och den försäkrade tillhandahålla den information som är nödvändig för att kunna göra ett direktkrav. (2) Försäkringsbolaget skall utan oskäligt dröjsmål meddela försäkringstagaren skriftligen om varje direktkrav som riktats mot det och, åtminstone inom två veckor efter mottagandet av anspråket. Om bolaget åsidosätter denna skyldighet skall en betalning till eller erkännande av skuld mot den skadelidande inte påverka försäkringstagarens rättigheter. (3) Om försäkringstagaren misslyckas i att tillhandahålla försäkringsbolaget information om den försäkrade händelsen inom en månad sedan meddelandet mottagits enligt stycket 2 skall försäkringstagaren anses ha samtyckt till en direkt fastställande anspråket av bolaget. Denna regel tillämpas också på försäkrade som faktiskt mottagit ett sådant meddelande i tid.

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Artikel 15:103 Ansvarsbefrielse Betalningen av försäkringsersättningen till försäkringstagaren eller den försäkrade befriar endast försäkringsbolaget från dess skyldighet mot den skadelidande om den senare (a) har avstått från sitt direktkrav eller (b) inte har underrättat bolaget om sin avsikt att göra ett direktkrav inom fyra veckor efter mottagandet av bolagets skriftliga begäran.

Artikel 15:104 Preskription (1) Talan mot försäkringsbolaget, vare sig driven av den försäkrade eller av den skadelidande, preskriberas när den skadelidandes åtgärd mot den försäkrade preskriberas. (2) Preskriptionstiden för ett krav av den skadelidande mot den försäkrade skjuts upp från den tidpunkt då den försäkrade blir medveten om att ett direktkrav framställts mot försäkringsbolaget till den tidpunkt då kravet blivit reglerat eller otvetydigt förkastats av bolaget.

Kapitel 16: Obligatorisk försäkring Artikel 16:101 Tillämpningsområdet (1) PEICL kan väljas av parterna i ett försäkringskontrakt som slutits för att realisera en skyldighet att försäkra (a) föreskriven av gemenskapslagstiftningen, (b) föreskrivits i en medlemsstat, eller (c) föreskrivits i en icke medlemsstat i den utsträckning detta är tillåtet i den statens lagstiftning. (2) Försäkringskontraktet får inte uppfylla skyldigheten att ta ut försäkring såvida detta inte stämmer överens med de speciella bestämmelser som ålägger skyldigheten.

Avdelning 5: Livförsäkring Kapitel 17: Särskilda föreskrifter för livförsäkring Sektion 1: Tredjeman Artikel 17:101 Livförsäkring på tredje mans liv Ett livförsäkringskontrakt som gäller en annan person än försäkringstagaren är ogiltigt, om inte samtycke av den person risken avser mottagits i skriftlig form och belagts med underskrift. Samtycket skall vara väl genomtänkt och åtminstone innebära kännedom om centrala delar av försäkringskontraktet.13 Varje substantiell senare förändring i kontraktet, inklusive en ändring av förmånstagaren, en ökning av försäkringsbeloppet och en ändring av kontraktstiden har ingen verkan utan ett sådant samtycke. Detsamma gäller en överlåtelse eller belastning av försäkringsavtalet eller rätten till försäkringsersättning.

Artikel 17:102 Förmånstagare till försäkringsersättningen (1) Försäkringstagaren kan förordna en eller flera förmånstagare till försäkringsersättningen och kan ändra eller ta tillbaka en sådan åtgärd såvida utseendet inte förklarats oåterkalleligt. Om inte 13

Den mening som här skrivits återfi nns inte i den engelska texten utan återfi nns i denna blott i orden „informed consent“, ett begrepp som för att bli begripligt har måst uppgå i en separat mening.

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(2) (3)

(4)

(5)

(6)

utseendet, ändringen eller återkallelsen skett genom testamente, måste åtgärden ske skriftligen och sändas till försäkringsbolaget. Rätten att utvälja, ändra eller återkalla förordnandet upphör vid försäkringstagarens död eller vid försäkringsfallet, allt beroende på vad som kommer först. Försäkringstagaren eller dennes arvingar skall betraktas som förmånstagare till försäkringsersättningen om: (a) försäkringstagaren inte har förordnat någon förmånstagare eller (b) förordnandet av en förmånstagare har återkallats och inga andra förmånstagare har blivit förordnade eller (c) en förmånstagare har avlidit före försäkringsfallet och ingen annan förmånstagare har blivit förordnad. Om två eller flera förmånstagare har blivit förordnade och valet av förordnandet av dem återkallats eller någon av dem avlider före försäkringsfallet, skall hela försäkringsbeloppet delas ut proportionellt om inte annat är specificerat av försäkringstagaren enligt stycket 1. Med förbehåll för regler om nullitet, ogiltighet eller ogenomförbarhet av rättsliga åtgärder till förfång för borgenärer som kan återfinnas i tillämpliga regler i insolvensrätten skall försäkringstagarens konkursbo inte ha någon rätt till försäkringsersättningen, det konverterade värdet eller återköpsvärdet så länge ersättningen inte har blivit betald till försäkringstagaren. Ett försäkringsbolag som betalar försäkringsersättning till en person som är förordnad enligt stycket 1 är befriad från sin skyldighet att betala, såvida det inte visste om att personen i fråga inte var berättigad till försäkringsersättningen.

Artikel 17:103 Förmånstagare till återköpsvärdet (1) Oavsett ett förordnande enligt artikel 17:102 kan försäkringstagaren också förordna en förmånstagare till återköpsvärdet, om det finns ett sådant, samt ändra eller återkalla ett sådant förordnande. Förordnandet, ändringen eller återkallelsen skall göras skriftligen och sändas till försäkringsbolaget. (2) Försäkringstagaren skall betraktas som förmånstagare till återköpsvärdet om (a) ingen förmånstagare till återköpsvärdet har förordnats eller (b) ett förordnande av en förmånstagare till återköpsvärdet har återkallats och inga andra förmånstagare har förordnats eller (c) en förmånstagare till återköpsvärdet har avlidit och inga andra förmånstagare har förordnats. (3) Artikel 17:102 styckena 2 och 4 till 6 skall tillämpas mutatis mutandis.

Artikel 17:104 Överlåtelse eller belastning (1) När ett förmånstagare blivit oåterkalleligen förordnad, blir åtgärder av försäkringstagaren i form av en överlåtelse av eller belastning på försäkringskontraktet eller rätten till försäkringsersättning utan verkan såvida inte förmånstagaren har samtyckt härtill skriftligen. (2) En överlåtelse av eller belastning på rätten till försäkringsersättningen av förmånstagaren blir utan verkan såvida inte försäkringstagaren har samtyckt skriftligen.

Artikel 17:105 Avsägelse från dödsbo När en förmånstagare är arvinge efter den avlidne personen som risken gällde och inte har velat kännas vid dödsboet, kan blotta det faktum att han avsagt sig dödsboet inte påverka hans position enligt försäkringsavtalet.

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Sektion 2: Försäkringskontraktets början och varaktighet Artikel 17:201 Sökandens förkontraktuella informationsplikter (1) Information som skall lämnas av den sökande i enlighet med artikel 2:101 stycket 1 skall inkludera de omständigheter om vilka den person för vilken risken gäller var eller borde ha varit medveten. (2) Sanktionerna för brott mot förkontraktuella informationsplikter enligt artikel 2:102, 2:103 och 2:105, men inte enligt artikel 2:104, skall bara vara tillgängliga under fem år efter ingåendet av försäkringskontraktet.

Artikel 17:202 Försäkringsbolagets förkontraktuella informationsplikter (1) Försäkringsbolaget skall informera sökanden om huruvida denne har en rätt att deltaga i förmåner som är förenade med försäkringen. Mottagandet av denna information måste erkännas genom ett explicit fastställande härav i ett i förhållande till ansökningsblanketten separat dokument. (2) Dokumentet enligt stycket 1 skall inkludera följande information: (a) beträffande försäkringsbolaget: en speciell hänvisning till den obligatoriska publikation av årsrapporten om bolagets solvens och finansiella ställning som finns; (b) beträffande försäkringsbolagets kontraktuella åtaganden: (i) en förklaring om varje förmån och varje option, (ii) information om proportionen av premien i förhållande till varje förmån, både huvudsakliga förmåner och supplementära sådana, där detta är lämpligt; (iii) metoderna för kalkylering och distribution av bonusar inklusive en specifikation av tilllämplig försäkringsrörelserättslig lagstiftning; (iv) en indikation om återköp och betalda värden samt den utsträckning i vilken dessa är garanterade; (v) för unit-linked villkor: en förklaring till dessa och till vilka förmånerna är knutna, samt en indikation om naturen av underliggande tillgångar; (vi) allmän information om de skattearrangemang som blir tillämpliga vid den typ av villkor det är fråga om. (3) I tillägg skall speciell information lämnas för att underlätta en korrekt förståelse av de risker som försäkringskontraktet bygger på och vilka förutsatts av försäkringstagaren. (4) Om försäkringsbolaget kvoterar summan av de möjliga förmåner utöver de kontraktuellt garanterade betalningarna skall det tillställa sökanden en modell för kalkylering som fastställer den möjligen mognade förmånen grundat på aktuariella principer för premiekalkyl med tre olika grader av intresse i sammanhanget. Detta skall dock inte tillämpas på försäkringskontrakt som täcker risker för vilka försäkringsbolaget är osäkert på att bli ansvarigt för, inte heller på unit-linked villkor. Bolaget skall klart och begripligt visa försäkringstagaren att modellkalkylen endast representerar en modell grundad på fiktiva antaganden och att kontraktet inte garanterar möjliga betalningar.

Artikel 17:203 Ångerfrist (1) För livförsäkringskontrakt skall ångerfristperioden, som är fastställd i artikel 2:303 stycket 1, vara en månad efter mottagandet av en accept eller, i förekommande fall, avsändandet av de dokument till vilka hänvisas i artikel 2:501 och artikel 17:202. Månaden börjar räknas med den tidpunkt som är den senare av dessa två.

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(2) Försäkringstagarens rätt att undgå kontraktet enligt artikel 2:303 stycket 1 går ut ett år efter ingåendet av kontraktet.

Artikel 17:204 Försäkringstagarens rätt att avsluta avtalet (1) Försäkringstagaren har rätt att avsluta ett livförsäkringskontrakt som inte drar till sig ett konverteringsvärde eller ett återköpsvärde, förutsatt att avslutet inte har verkan tidigare än ett år efter ingåendet av kontraktet. Rätten att avsluta kontraktet före slutet av kontraktsperioden kan vara utesluten när en enda premie betalats. Avslutet skall ske skriftligen och blir gällande två veckor efter mottagande av ett meddelande om avslut från försäkringsbolaget. (2) Om livförsäkringskontraktet har skapat ett konverterat värde eller återköpsvärde skall artiklarna 17:601-17:603 tillämpas.

Artikel 17:205 Försäkringsbolagets rätt att avsluta avtalet Försäkringsbolaget har endast rätt att avsluta ett livförsäkringskontrakt i den utsträckning som det tillåts i detta kapitel.

Sektion 3: Ändringar under kontraktsperioden Artikel 17:301 Försäkringsbolagets postkontraktuella informationsplikter (1) I förekommande fall skall försäkringsbolaget årligen tillhandahålla försäkringstagaren ett skriftligt fastställande av det aktuella värdet av bonusar, kopplade till försäkringsvillkoren. (2) Utöver de krav som ställs upp i artikel 2:701 skall försäkringsbolaget utan oskäligt uppehåll informera försäkringstagare om varje ändring beträffande: (a) försäkringsvillkoren, såväl generella som speciella: (b) i händelse av en ändring av försäkringsvillkoren eller en ändring av PEICL: den information som ställts upp i artikel 2:201 lit. f och g liksom i artikel 17:202 stycket 2 lit. b punkterna i till v. (3) Artikel 17:202 stycket 4 skall också tillämpas när siffrorna beträffande den uppskattade mängden möjliga förmåner tillhandahålls när som helst under avtalsperioden. När försäkringsbolaget har tillhandahållit siffror, vare sig detta skett före eller efter ingåendet av avtalet, om den potentiella framtida utvecklingen av deltagande i förmåner, skall försäkringsbolaget informera försäkringstagaren om varje skillnad mellan den aktuella utvecklingen och tidigare data.

Artikel 17:302 Riskökning I ett livförsäkringskontrakt skall en klausul som specificerar ålder eller hälsoförsämring såsom riskökning14 betraktas som ett oskäligt avtalsvillkor enligt artikel 2:304.

Artikel 17:303 Justering av premie och betalbara förmåner (1) I ett livförsäkringssavtal som täcker risker för vilka försäkringsbolaget är säker på att bli ansvarig, har bolaget endast rätt till en justering i enlighet med styckena 2 och 3. (2) En ökning av premien är tillåten när det finns en oförutsebar och permanent förändring i fråga om biometriska risker, använda som grund för kalkylering av premien, när en ökning är nödvändig för att garantera försäkringsbolagets fortsatta förmåga att betala ut försäkringsförmåner 14

I den engelska texten har här tillfogats orden „within the meaning of Article 4:201“. Denna hänvisning är både onödig och obegriplig, varför den här har fått utgå.

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och där en oberoende förtroendeman eller övervakningsmyndighet har samtyckt till ökningen. Försäkringstagaren har rätt att utjämna premieökningen genom en tillbörlig minskning av försäkringsförmånerna. (3) Vid ett betalt försäkringsvillkor har försäkringsbolaget en rätt till minskning av försäkringsförmånerna enligt de villkor som fastställs i stycket 2. (4) En justering enligt stycket 2 eller 3 är inte tillåten. (a) såvitt ett misstag har begåtts vid kalkyleringen av premien och/eller förmånerna om vilket en kompetent och noggrann aktuarie borde ha blivit medveten, eller (b) där den underliggande kalkyleringen inte tillämpats på alla försäkringkontrakt inklusive de som ingåtts efter justeringen. (5) En ökning av premien eller en minskning av förmåner blir gällande tre månader sedan försäkringsbolaget har tillhandahållit försäkringstagaren ett skriftligt meddelande om ökningen av premien eller minskning av förmånerna, skälen för detta samt om försäkringstagarens egen rätt att begära en minskning av förmånerna. (6) I ett livförsäkringsavtal som täcker risker för vilka försäkringsbolaget är säkert på att bli ansvarig har försäkringstagaren rätt att erhålla en minskning av premien vilken, på grund av en oförutsebar och permanent förändring av biometriska risker använda som grund för premiekalkylen, gör den ursprungliga storleken av premien gångbar och nödvändig för att garantera försäkringsbolagets fortsatta förmåga att betala försäkringsförmån. Minskningen måste godkännas av en oberoende förtroendeman eller av övervakningsmyndigheten. (7) De rättigheter som utvecklats i denna artikel kan ej utövas tidigare än fem år efter ingåendet av försäkringskonraktet.

Artikel 17:304 Ändring av termer eller villkor (1) En klausul som tillåter försäkringsbolaget att ändra andra termer eller villkor än de som gäller premien och betalbara förmåner är ogiltig såvida inte förändringen krävs för att (a) överensstämma med en ändring i försäkringsrörelselagstiftningen som innehåller bindande åtgärder att företas av övervakningsmyndigheten, eller (b) överensstämma med en ändring av tvingande lagstiftning i tillämplig nationell lag om företagares pensionsplaner, eller (c) överensstämma med en ändring av nationella lagregler som ställer speciella krav på ett livförsäkringskontrakt för att detta skall vara kvalificerat för särskild skattebehandling eller för statliga bidrag, eller (d) ersätta en kontraktsklausul i överensstämmelse med artikel 2:304 stycket 2, mening 2. (2) Ändringen blir gällande med början den tredje månaden sedan försäkringstagaren har erhållit ett skriftligt meddelande som informerar försäkringstagaren om ändringen och om skälen till denna. (3) Stycket 1 skall tillämpas utan förfång för andra krav för giltigheten av ändringsklausuler.

Sektion 4: Relationen till nationell lagstiftning Artikel 17:401 Pensionsplaner Ett livförsäkringskontakt som anknyter till en pensionsplan skall lyda under de tvingande reglerna om tillämplig nationell lag om pensionsplaner. PEICL skall endast tillämpas i den mån den överensstämmer med dess regler.

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Artikel 17:402 Skattebehandling och statligt stöd PEICL skall inte påverka nationella regler som föreskriver särskilda krav i fråga om livförsäkringskontrakt för att kvalificera för särskild skattebehandling eller för statligt stöd. Vi en konflikt mellan sådana krav på tillämplig nationell lag och bestämmelser i PEICL, kan avvikelse ske från den senare.

Sektion 5: Försäkringsfallet Artikel 17:501 Försäkringsbolagets undersöknings- och informationsplikt (1) Ett försäkringsbolag som har anledning tro att försäkringsfallet han ha inträffat skall vidta rimliga mått och steg för att förvissa sig om hur det förhåller sig. (2) Det försäkringsbolag som vet om att försäkringsfallet har inträffat skall nedlägga sina bästa ansträngningar med hänsyn till omständigheterna för att förvissa sig om identitet av och adress till förmånstagaren och informera den personen i enlighet härmed. Informationen skall lämnas inte senare än 30 dagar sedan bolaget blev medvetet om förmånstagarens identitet och adress. (3) Om ett försäkringsbolag kränker stycket 1 eller 2 suspenderas preskriptionen av förmånstagarens krav till dess att förmånstagaren får vetskap om sin aktuella rätt.

Artikel 17:502 Självmord (1) Om den person för vilken risken gäller begår självmord inom ett år efter ingåendet av försäkringsavtalet är försäkringsbolaget befriat från sitt ansvar för att betala försäkringsersättningen. Är detta fallet skall försäkringsbolaget betala återköpsvärdet och alla andra förmåner enligt artikel 17:602. (2) Stycket 1 skall ej tillämpas om (a) den person risken gäller handlat i ett mentalt tillstånd som utesluter förmågan att fritt bestämma sin avsikt, eller (b) det utom varje rimligt tvivel är styrkt att den person risken gäller vid ingåendet av försäkringsavtalet inte avsåg att begå självmord

Artikel 17:503 Uppsåtligt dödande av den person risken gäller (1) Om en förmånstagare uppsåtligen dödar den person risken gäller skall hans utnämning till förmånstagare anses återkallad. (2) En överlåtelse av kravet på försäkringsersättning är utan verkan om den som mottagit kravet uppsåtligen dödar den person risken gäller. (3) När en försäkringstagare som också är förmånstagare uppsåtligen dödar den person risken gäller utgår ingen försäkringsersättning. (4) När en förmånstagare eller försäkringstagare rättfärdigt dödar den person risken gäller, såsom vid legitimt självförsvar, skall denna artikel inte tillämpas.

Sektion 6: Konvertering och återköp Artikel 17:601 Konvertering av kontraktet (1) Artikel 5:102 skall inte tillämpas på livförsäkringskontrakt som underkastats en värdekonvertering eller ett återköpsvärde. Sådana kontrakt skall konverteras till betalda villkor om inte för-

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säkringstagaren kräver betalning av återköpsvärdet inom fyra veckor efter att ha mottagit den information till vilken hänvisas i stycket 2. (2) Försäkringsbolaget skall informera försäkringstagaren om konverterings- och återköpsvärdet inom fyra veckor sedan den period till vilken hänvisas i artikel 5:101(b) eller artikel 5:102 stycket 1(b) samt be försäkringstagaren att välja mellan konvertering eller betalning av återköpsvärdet. (3) Begäran om konvertering eller betalning av återköpsvärdet skall ske skriftligen.

Artikel 17:602 Återköp av kontraktet (1) Försäkringstagaren har rätt att när som helst skriftligen kräva försäkringsbolaget att betala, delvis eller fullt, det återköpsvärde som försäkringen åsatts under förutsättning att detta inte får någon verkan tidigare än ett år efter ingåendet av avtalet. Kontraktet skall justeras eller avslutas i enlighet härmed. (2) Med förhåll för artikel 17:601 gäller att om ett livförsäkringskontrakt som erhållit ett återköpsvärde avslutats eller undvikits av försäkringsbolaget, detta är skyldig att betala återköpsvärdet även när artikel 2:104 är tillämplig. (3) Försäkringsbolaget skall på begäran och i vart fall en gång om året informera försäkringstagaren om den aktuella storleken på återköpsvärdet och i vilken utsträckning som det garanteras. (4) Den del av varje förmån till vilken försäkringstagaren är berättigad skall betalas i tillägg till återköpsvärdet även om denna del redan har tagits i beaktande vid kalkyleringen av återköpsvärdet. (5) Summor som beror på denna artikel skall inte betalas senare än två månader efter mottagandet av försäkringstagarens begäran hos försäkringsbolaget.

Artikel 17:603 Konverteringsvärde; återköpsvärde (1) Försäkringskontraktet skall bestämma det sätt på vilket konverteringsvärde och/eller återköpsvärde kalkylerats i enlighet med lagen i försäkringsbolagets hemland. Sättet att bestämma kalkyleringen av återköpsvärde och/eller konverteringsvärdet skall överensstämma med etablerade aktuariella principer och med stycket 2. (2) När försäkringsbolaget minskar kostnaderna för att ingå kontraktet skall det göra detta med lika stora belopp under en period av inte mindre än fem år. (3) Försäkringsbolaget har rätt att minska med ett lämpligt belopp, kalkylerat i enlighet med etablerade aktuariella principer, för att täcka kostnader relaterade till betalning av återköpsvärdet, såvida kalkyleringen redan inkluderar minskningen.

Avdelning 6: Gruppförsäkring Kapitel 8: Särskilda föreskrifter för gruppförsäkring Sektion 1: Gruppförsäkring i allmänhet Artikel 18:101 Tillämplighet Kontrakt för gruppförsäkring omfattas av PEICL under förutsättning att gruppföreträdaren och försäkringsbolaget har träffat en överenskommelse i enlighet med artikel 1:102. Gruppförsäkring är

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antingen automatisk15 och då täckt av sektion 2 av detta kapitel eller också frivilligt vald16 och då omfattad av sektion 3.

Artikel 18:102 Allmän plikt till aktsamhet för gruppföreträdaren (1) I förhandlingar och genomförande av ett gruppförsäkringskontrakt skall gruppföreträdaren handla plikttroget och i god tro och under hänsynstagande av gruppmedlemmens legitima intressen. (2) Gruppföreträdaren skall vidarebefordra varje relevant meddelande från försäkringsbolaget till gruppmedlemmarna och informera dem om varje ändring i kontraktet.

Sektion 2: Frivilligt vald gruppförsäkring Artikel 18:201 PEICL:s tillämplighet När det är nödvändigt skall PEICL tillämpas på frivillig vald gruppförsäkring mutatis mutandis.

Artikel 18:202 Informationsplikter (1) När en gruppmedlem förenar sig med gruppen skall gruppföreträdaren utan oskäligt uppehåll informera medlemmen Om (a) existensen av försäkringskontraktet, (b) försäkringens täckning, (c) alla säkerhetsföreskrifter och varje annat krav för att behålla täckningen, and (d) kravproceduren (2) Bevisbördan för att gruppmedlemmen har mottagit den information som krävs enligt stycket 1 åvilar gruppföreträdaren.

Artikel 18:203 Avslut av försäkringsbolaget (1) För att uppfylla syftena med artikel 2:604 skall försäkringsbolagets utövande av sin rätt att avsluta kontraktet endast uppfattas som skäligt om det begränsas till att endast gälla den gruppmedlem som drabbats av försäkringsfallet. (2) För att uppfylla syftena med artikel 4:102 och artikel 4:203 stycket 1 skall försäkringsbolagets rätt att avsluta endast ha verkan att utesluta de gruppmedlemmar från täckning som inte har tagit krävda säkerhetsföreskrifter eller vars risker ökade (3) För att uppfylla syftena med artikel 12:102 skall försäkringskontraktets avslut endast gälla de gruppmedlemmar som Överfört

Artikel 18:204 Rätt till fortsatt skydd – grupplivförsäkring (1) Om ett automatiskt grupplivförsäkringskontrakt avslutas eller dess medlem lämnar gruppen upphör skyddet efter tre månader eller, om detta är tidigare, med upphörandet av grupplivför15

I den engelska texten har valts ordet „accessory“, på svenska accessorisk. Detta ord har emellertid på svenska (med sin medicinska anknytning till ett bihang) också en betydelse av något mindre väsentligt, knappast lämpligt när det gäller den försäkring här i fråga. En mera träffande term i sammanhanget är automatisk, varför det använts i denna översättning. 16 I den engelska texten står ”elective”, ett ord som skulle kunna heta ”elektiv” på svenska men som inte finns i det svenska språket. Därför har det ord som bäst svarar mot det engelska ”elective” föredragits: ”frivilligt vald”.

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säkringskontraktet. När detta inträffar har gruppmedlemmen en rätt till samma skydd enligt ett nytt individuellt kontrakt med berört försäkringsbolag utan en ny riskvärdering. (2) Gruppföreträdaren skall utan oskäligt uppehåll skriftligen informera gruppmedlemmen om (a) det nära förestående upphörandet av grupplivförsäkringen, (b) dennes rättigheter enligt stycket 1 och (c) hur dessa rättigheter skall utövas. (3) Om gruppmedlemmen har antytt sin avsikt att utöva sina rättigheter enligt artikel 18:204 stycket 1 skall kontraktet mellan försäkringsbolaget och gruppmedlemmen fortsätta som ett individuellt försäkringskontrakt med en premie kalkylerad på grundval av en individuell försäkring vid denna tid utan hänsyn tagen till det aktuella hälsotillståndet eller gruppmedlemmens ålder.

Sektion 3: Frivilligt vald försäkring Artikel 18:301 Frivilligt vald försäkring: allmänt (1) En frivilligt vald försäkring skall anses vara en kombination av ett ramkontrakt mellan försäkringsbolaget och gruppföreträdaren samt ett individuellt försäkringskontrakt ingånget mellan försäkringsbolaget och gruppmedlemmarna. (2) PEICL skall tillämpas på de individuella försäkringskontrakten där gruppföreträdaren och försäkringsbolaget har kommit överens om dess tillämpning men med undantag för artiklarna 18:101 och 18:102, skall PEICL inte tillämpas på ramkontraktet.

Artikel 18:302 Ändring av termer och villkor Ändring av termer och villkor för ramkontraktet skall inte beröra de individuella kontrakten om de har genomförts i överensstämmelse med de krav som uppställts i artiklarna 2:603, 17:303 och 17:304.

Artikel 18:303 Fortsatt skydd Upphörande av ramkontrakt eller medlemskap för en individuell gruppmedlem gäller inte försäkringskontraktet mellan försäkringsbolaget och gruppmedlemmen.

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Turkish version by Samim Ünan and Serap Amasya

Avrupa Sigorta Sözleşmesi Hukuku İlkeleri (ASSHİ) Birinci Kısım: Avrupa Sigorta Sözleşmesi Hukuku İlkelerine (ASSHİ) Tâbi Bütün Sözleşmelere Uygulanacak Ortak Hükümler Birinci Bölüm: Başlangıç Hükümleri Birinci Ayrım: ASSHİ’nin Uygulanabilirliği İkinci Ayrım: Genel Hükümler Üçüncü Ayrım: Kurallara Uyulmasının Sağlanması

İkinci Bölüm: Sigorta Sözleşmesinin Başlangıç Aşaması ve Süresi Birinci Ayrım: Sigorta Yaptırmak İçin Başvuruda Bulunan Kişinin Sözleşme Öncesi Bilgi Verme Yükümlülüğü İkinci Ayrım: Sigortacının Sözleşme Öncesindeki Yükümlülükleri Üçüncü Ayrım: Sözleşmenin Kurulması Dördüncü Ayrım: Geriye Etkili Teminat ve Geçici Teminat Beşinci Ayrım: Sigorta Poliçesi Altıncı Ayrım: Sigorta Sözleşmesinin Süresi Yedinci Ayrım: Sigortacının Sözleşme Kurulduktan Sonraki Bilgilendirme Yükümlülüğü

Üçüncü Bölüm: Sigorta Aracıları Dördüncü Bölüm: Sigortalanmış Riziko Birinci Ayrım: Koruyucu Önlemler İkinci Ayrım: Rizikonun Ağırlaşması Üçüncü Ayrım: Rizikonun Hafiflemesi

Beşinci Bölüm: Sigorta Primi Altıncı Bölüm: Sigortalanmış Olay Yedinci Bölüm: Zamanaşımı İkinci Kısım: Zarar Sigortalarına İlişkin Ortak Hükümler Sekizinci Bölüm: Sigorta Bedeli ve Sigorta Değeri

Dokuzuncu Bölüm: Tazminat Alma Hakkı Onuncu Bölüm: Halefiyet Hakkı On Birinci Bölüm: Sigorta Ettirenden Farklı Sigortalılar On İkinci Bölüm: Sigortalanmış Riziko Üçüncü Kısım: Tutar Sigortalarına İlişkin Ortak Hükümler On Üçüncü Bölüm: İzin Verilen Tutar Sigortaları Dördüncü Kısım: Sorumluluk Sigortası On Dördüncü Bölüm: Genel Sorumluluk Sigortası On Beşinci Bölüm: Doğrudan İstem ve Doğrudan Dava On Altıncı Bölüm: Zorunlu Sigorta Beşinci Kısım: Hayat Sigortası On Yedinci Bölüm: Hayat Sigortasına İlişkin Özel Hükümler Birinci Ayrım: Üçüncü Kişiler İkinci Ayrım: Sözleşmenin Başlangıç Safhası ve Süresi Üçüncü Ayrım: Sözleşme Süresi İçindeki Değişiklikler Dördüncü Ayrım: Ulusal Hukuklarla İlişki Beşinci Ayrım: Sigortalanmış Olay Altıncı Ayrım: Dönüştürme ve Ayrılma

Altıncı Kısım: Grup Sigortası On Sekizinci Bölüm: Grup Sigortası Hakkında Özel Hükümler Birinci Ayrım: Genel Olarak Grup Sigortası İkinci Ayrım: Otomatik Grup Sigortası Üçüncü Ayrım: Seçime Bağlı Grup Sigortası

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Birinci Kısım: Avrupa Sigorta Sözleşmesi Hukuku İlkelerine (ASSHİ) Tâbi Bütün Sözleşmelere Uygulanacak Ortak Hükümler Birinci Bölüm: Başlangıç Hükümleri Birinci Ayrım: ASSHİ’nin Uygulanabilirliği Madde 1:101 Maddi Uygulama Alanı (1) ASSHİ genel olarak özel sigortalara, karşılıklı sigorta dahil olmak üzere, uygulanır. (2) ASSHİ reasüransa uygulanmaz.

Madde 1:102 İsteğe Bağlı Uygulama ASSHİ, milletlerarası özel hukuktaki hukuk seçimine ilişkin sınırlamalar dikkate alınmaksızın, tarafların, yaptıkları sözleşmenin ASSHİ’ye tâbi olması konusunda anlaşmaları hâlinde uygulanır. Madde 1:103 hükmü saklı kalmak kaydıyla, ASSHİ, bazı hükümlerinin hariç bırakılmasına izin verilmeksizin, bütün olarak uygulanır.

Madde 1:103 Emredici Nitelik (1) Madde 1:102 cümle 2, 2:104, 2:304, 13:101, 17:101 ve 17:503 emredicidir. Diğer maddeler, hileli davranışlara ilişkin yaptırımları düzenledikleri ölçüde emredicidir. (2) Sözleşme, sigorta ettiren, sigortalı veya lehtarın aleyhine olmamak kaydıyla, ASSHİ’nin diğer maddelerine aykırı koşul ve hükümler içerebilir. (3) Fıkra 2’de tanımlanan ASSHİ’ye aykırı koşul ve hükümlere, 2009/138/EC sayılı Yönerge Madde 13 Fıkra 27 anlamında büyük rizikolara karşı sigorta teminatı sağlayan sözleşmelerde her iki taraf yararına da yer verilebilir. Grup sigortasında ASSHİ’ye aykırı koşul ve hükümler ancak, uygulanabildiği hallerde, 2009/138/EC sayılı Yönerge Madde 13 Fıkra 27 bent (b) veya bent (c)’de belirtilen kişisel özellikleri taşıyan bireysel sigortalılara karşı geçerlidir.

Madde 1:104 Yorum ASSHİ sözü, bağlamı, amacı ve karşılaştırmalı hukuka dayanan hazırlık sürecinin ışığında yorumlanır. Özellikle, sigortacılıkta dürüstlük kuralı, sözleşme ilişkilerinde kesinlik, uygulamada birlik sağlanması ve sigorta ettirenlerin gereken ölçüde korunmasını özendirme gereksinimi göz önünde tutulur.

Madde 1:105 Ulusal Hukuk ve Genel İlkeler (1) ASSHİ’yi sınırlamak veya tamamlamak için ulusal hukuka başvurulamaz. Ancak bu hüküm, ASSHİ’de bulunan özel hükümlerin düzenlemediği sigorta branşları için özel olarak öngörülmüş olan emredici ulusal hukuk kuralları hakkında uygulanmaz. (2) ASSHİ’nin açıkça hükme bağlamadığı sigorta sözleşmesinden kaynaklanan sorunlar, Avrupa Sözleşme Hukuku İlkeleri (ASHİ) uyarınca, ve, burada da hüküm yoksa Üye Devletlerin hukuklarının ortak genel ilkeleri uyarınca çözümlenir.

İkinci Ayrım: Genel Hükümler Madde 1:201 Sigorta Sözleşmesi (1) “Sigorta sözleşmesi”, taraflardan birinin (sigortacı), diğer tarafa (sigorta ettiren), bir prim karşılığında belirli bir rizikoya karşı koruma sağlamayı üstlendiği bir sözleşmedir.

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Turkish: Avrupa Sigorta Sözleşmesi Hukuku İlkeleri (ASSHİ)

(2) “Sigortalanmış olay”, sigorta sözleşmesinde belirlenmiş olan rizikonun gerçekleşmesidir. (3) “Zarar sigortası”, sigortacının, sigortalanmış olayın gerçekleşmesinden kaynaklanan zararı giderme borcunu üstlendiği sigortadır. (4) “Tutar sigortası”, sigortacının, sigortalanmış olayın gerçekleşmesi hâlinde sabit bir para tutarını ödemekle yükümlü olduğu sigortadır. (5) “Sorumluluk sigortası”, sigortalının zarar görene karşı hukuken sorumlu olma rizikosunu temin eden sigortadır. (6) “Hayat sigortası”, sigortacının borcunun veya primin ödenmesinin yalnızca riziko kişisinin ölümü veya hayatta olması biçiminde tanımlanan bir rizikoya bağlı kılındığı sigortadır. (7) “Grup sigortası sözleşmesi”, sigortacı ile grubu örgütleyen kişi arasında, grubu örgütleyen kişi ile ortak bağı bulunan grup üyeleri yararına yapılmış sözleşmedir. Grup sigortası sözleşmesi grup üyelerinin ailelerini de kapsayabilir. (8) “Otomatik grup sigortası”, grup üyelerinin sırf gruba dahil olmaları üzerine ve sigortayı reddetme olanağı bulunmaksızın otomatik olarak sigortalanmış oldukları grup sigortasıdır. (9) “Seçime bağlı grup sigortası”, grup üyelerinin kişisel başvuru sonucu veya sigortayı reddetmedikleri için sigortalanmış oldukları grup sigortasıdır.

Madde 1: 202 Ek Tanımlar (1) “Sigortalı”, bir zarar sigortası ile çıkarı zarara karşı korunmuş olan kişidir. (2) “Lehtar”, tutar sigortasında sigorta parası kendisine ödenecek olan kişidir. (3) “Riziko kişisi”, hayatı, sağlığı, bedensel bütünlüğü veya statüsü üzerine sigorta yaptırılmış olan kişidir. (4) “Zarar Gören”, sorumluluk sigortasında, sigortalının ölümünden, sağlığının bozulmasından veya zarar görmesinden sorumlu tutulduğu kişidir. (5) “Sigorta acentesi”, bir sigortacının, sigorta sözleşmelerini pazarlamak, satmak veya yönetmek için görevlendirdiği sigorta aracısıdır. (6) “Prim”, sigorta ettirenin sigorta koruması karşılığında sigortacıya yapmakla yükümlü olduğu ödemedir. (7) “Sözleşme süresi”, sözleşmenin kurulmasıyla başlayan ve kararlaştırılan zaman diliminin geçmesiyle sona eren, sözleşmesel bağlayıcılığın devam ettiği süredir. (8) “Sigorta süresi”, tarafların anlaşması uyarınca, karşılığında primin ödenmesi gereken süredir. (9) “Sorumluluk süresi”, sigorta korumasının sağlanacağı süredir. (10) “Zorunlu sigorta”, mevzuatın öngördüğü sigorta yaptırma zorunluluğu uyarınca yaptırılan sigortadır.

Madde 1:203 Dil ve Belgelerin Yorumlanması (1) Sigortacı tarafından sağlanan bütün belgeler sade ve anlaşılabilir ve sözleşmenin görüşüldüğü dilde olmak zorundadır. (2) Sigortacı tarafından sağlanan bir belgenin veya bilginin anlamından kuşku duyulan hâllerde, yerine göre sigorta ettirenin, sigortalının veya lehtarın en lehine olan yorum üstün tutulur.

Madde 1:204 Belgelerin Verilmesi: İspat Sigortacı tarafından sağlanması gereken belgelerin sigorta ettirene verilmiş olduğunu kanıtlama yükü sigortacıya aittir.

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Madde 1:205 Bildirimin Şekli ASSHİ’deki özel hükümler saklı kalmak kaydıyla, sigorta yaptırmak için başvuruda bulunan kişi, sigorta ettiren, sigortalı veya lehtar tarafından yapılacak sigorta sözleşmesi ile ilgili bildirimler herhangi bir şekil koşuluna tâbi değildir.

Madde 1:206 Başkasının Bilgisi Sigorta ettiren, sigortalı veya lehtarın bir kişiye sözleşmenin kurulması veya yerine getirilmesi için esaslı sorumluluklar yüklemiş olması hâlinde, bu kişinin sorumluluklarını yerine getirirken bildiği veya bilmesi gereken hususlar, duruma göre sigorta ettirenin, sigortalının veya lehtarın bilgisi dahilinde sayılır.

Madde 1:207 Ayrım Gözetmeme (1) Cinsiyet, hamilelik, annelik, milliyet ve ırksal veya etnik köken, bireylerin ödeyecekleri primler veya sigortadan elde edecekleri yararlar arasında fark yaratan etkenler olamaz. (2) Sigorta ettiren veya sigortalı, prime ilişkin olanlar da dahil olmak üzere Fıkra 1’e aykırı sözleşme koşullarıyla bağlı tutulamazlar. Fıkra 3 hükmü saklı kalmak kaydıyla sözleşme ayrımcı olmayan koşullar temelinde tarafları bağlamayı sürdürür. (3) Fıkra 1 hükmüne aykırılık halinde sigorta ettiren sözleşmeyi feshedebilir. Sigortacıya fesih bildirimi yazılı biçimde, sigorta ettirenin aykırılığı öğrendiği andan başlayarak iki ay içinde yapılır.

Madde 1:208 Genetik Testler (1) Sigortacı sigorta yaptırmak için başvuruda bulunan kişiden, sigorta ettirenden veya riziko kişisinden genetik test yaptırmasını veya bu çeşit bir testin sonuçlarını bildirmesini isteyemeyeceği gibi bu tür bir bilgi sigortacı tarafından riziko değerlendirmesinde de kullanılamaz. (2) Fıkra 1, riziko kişisinin 18 yaşını doldurmuş ve o kişiye ilişkin sigorta bedelinin 300.000 Avro’dan fazla veya poliçe uyarınca ödenecek sigorta parasının yıllık 30.000 Avro’dan yüksek olduğu can sigortalarında uygulanmaz.

Üçüncü Ayrım: Kurallara Uyulmasının Sağlanması Madde 1:301 Önleme Davası (1) Fıkra 2’de tanımlanan nitelikli kuruluş, yetkili ulusal mahkemeden veya kamu makamından, Madde 1:102 uyarınca ASSHİ’nin uygulandığı hâllerde, ASSHİ’ye aykırı davranışların yasaklanmasını veya durdurulmasını öngören bir kararın verilmesini isteyebilir. (2) Nitelikli kuruluş, Avrupa Parlamentosu ve Avrupa Konseyi’nin tüketicilerin çıkarlarının korunmasına yönelik tedbirlere ilişkin 23 Nisan 2009 tarihli 2009/22/EC sayılı Yönergesinin 4’üncü maddesinin değişik şekli uyarınca Avrupa Komisyonu tarafından hazırlanan listedeki herhangi bir kurum veya örgütü ifade eder.

Madde 1:302 Mahkeme Dışı Şikayet ve Zararı Giderme Yöntemleri ASSHİ’nin uygulanması, sigorta ettiren, sigortalı veya lehtarın yararlanabileceği mahkeme dışı şikayet ve zararı giderme yöntemlerine başvurmaya engel değildir.

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Turkish: Avrupa Sigorta Sözleşmesi Hukuku İlkeleri (ASSHİ)

İkinci Bölüm: Sigorta Sözleşmesinin Başlangıç Aşaması ve Süresi Birinci Ayrım: Sigorta Yaptırmak İçin Başvuruda Bulunan Kişinin Sözleşme Öncesi Bilgi Verme Yükümlülüğü Madde 2:101 Açıklama Yükümlülüğü (1) Sigorta yaptırmak için başvuruda bulunan kişi, sözleşme yapılırken, sigortacıyı, sormuş olduğu açık ve kesin soruların konusunu oluşturan ve kendisince bilinen veya bilinmesi gereken hâllere ilişkin olarak bilgilendirmekle yükümlüdür. (2) Fıkra 1’de sözü geçen hâller, sigorta edilecek kişinin bildiği veya bilmesi gereken hâlleri de kapsar.

Madde 2:102 Aykırılık (1) Sigorta ettiren Madde 2:101’e aykırı davranırsa, sigortacı, Fıkra 2 ila 5 hükümleri saklı kalmak kaydıyla, sözleşmede makul bir değişikliğin yapılmasını önerme veya sözleşmeyi feshetme hakkına sahip olur. Bu amaçla, sigortacı, Madde 2:101’e aykırı davranışı öğrendiği veya bu aykırılık kendisi için anlaşılabilir hâle gelmiş bulunduğu andan başlayarak bir ay içinde seçimini, kararının hukuki sonuçları ile birlikte yazılı olarak bildirmekle yükümlüdür. (2) Sigortacı makul bir değişiklik önerirse, sigorta ettiren bu öneriyi Fıkra 1’de belirtilen bildirimin kendisine ulaştığı andan başlayarak bir ay içinde reddetmiş olmadıkça, sözleşme öneriye uygun olarak değiştirilmiş sayılır. Önerinin reddi durumunda sigortacı, sigorta ettirenin redde ilişkin yazılı bildiriminin kendisine ulaştığı andan başlayarak bir ay içinde sözleşmeyi feshedebilir. (3) Sigorta ettirenin Madde 2:101’e kusuru olmaksızın aykırı davranmış olması hâlinde, sigortacı, söz konusu bilgiye sahip olsa idi sözleşmeyi hiç yapmayacak olduğunu kanıtlamadıkça, sözleşmeyi feshedemez. (4) Fesih, Fıkra 1’de belirtilen yazılı bildirimin sigorta ettirene ulaştığı andan başlayarak bir ay sonra hüküm doğurur. Sözleşmede değişiklik, taraflarca kararlaştırılan tarihten itibaren geçerli olur. (5) Sigortalanmış olay, sigorta ettirenin rizikoya ilişkin olarak kusurlu biçimde bildirmediği veya yanlış bildirdiği bir unsurdan kaynaklanmış ve feshin hüküm doğuracağı veya değişikliğin yürürlüğe gireceği tarihten önce gerçekleşmişse, sigortacının söz konusu bilgiye sahip olsaydı sözleşmeyi hiç yapmayacağı hâllerde, sigorta parası ödenmez. Bununla birlikte, eğer sigortacı sözleşmeyi daha yüksek prim alarak veya farklı koşullarla yapacak idiyse, sigorta parası orantılı biçimde veya o farklı koşullara uygun olarak ödenir.

Madde 2:103 Ayrık Durumlar Madde 2:102’de öngörülmüş olan yaptırımlar aşağıdaki hâllerde uygulanmaz: (a) Bir soru yanıtlanmamış veya verilen bilgi açıkça eksik veya yanlış ise; (b) Verilmeyen veya yanlış olarak verilen bilgiler, makul bir sigortacının sözleşmeyi hiç yapmamak veya kararlaştırılmış olan koşullarla yapmak konusundaki kararını etkileyecek nitelikte değilse; (c) Sigorta ettiren, somut bir bilginin verilmesine gerek olmadığına sigortacı tarafından inandırılmışsa; (d) Sigortacının bildiği veya bilmesi gereken bilgiler söz konusu ise.

Madde 2:104 Hile Sigortacı, sigorta ettirenin Madde 2:101’i hileli biçimde çiğnemiş olması sonucunda sözleşme yapmış ise, o sözleşmeden, Madde 2:102’de belirtilen yaptırımlar saklı kalmak kaydıyla ve prime ilişkin haklarını yitirmeksizin, cayabilir. Sigorta ettirene cayma bildirimi, hilenin sigortacı tarafından öğrenildiği andan başlayarak iki ay içinde yazılı biçimde yapılmak lazımdır.

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Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Madde 2:105 Ek Bilgilendirme Sigorta ettirenin sözleşmenin yapıldığı sırada Madde 2:101’de belirtilenlere ek olarak verdiği bilgilere de 2:102 ila 2:104’üncü maddeler uygulanır.

Madde 2:106 Genetik Bilgiler Bu ayrım, Madde 1:208 Fıkra 1 hükmü kapsamındaki genetik testlerin sonuçlarına uygulanmaz.

İkinci Ayrım: Sigortacının Sözleşme Öncesindeki Yükümlülükleri Madde 2:201 Sözleşme Öncesi Belgelerin Teslimi (1) Sigortacı, sigorta yaptırmak için başvuruda bulunan kişiye, önerilen sözleşmenin hükümlerini ve gerekli olduğu ölçüde aşağıdaki bilgileri içeren bir belgeyi teslim etmekle yükümlüdür: (a) Tarafların isim ve adresleri, özellikle sigortacının hukuksal yapısı, merkezinin adresi, sözleşme şube tarafından yapılmış veya sigorta teminatı şube tarafından sağlanmışsa şubenin hukuksal türü ve adresi; (b) Sigortalının, lehtarın ve riziko kişisinin isim ve adresleri; (c) Sigorta acentesinin isim ve adresi; (d) Sigorta konusu olan malvarlığı unsuru ve temin edilen rizikolar; (e) Sigorta bedeli ve muafiyet tutar veya oranları; (f) Primin tutarı ve hesaplanma yöntemi; (g) Primin muaccel olacağı an ile ödeme yer ve biçimi; (h) Sözleşmenin sona erdirilme yöntemini de içerecek biçimde sözleşmenin süresi ve sorumluluk süresi; (i) Başvuruyu geri alma veya hayat sigortası dışındaki sigortalarda Madde 2:303 uyarınca, hayat sigortalarında da Madde 17:203 uyarınca sözleşmeden cayma hakkı; (j) Sözleşmenin ASSHİ’ye tabi olacağı; (k) Sigorta yaptırmak için başvuruda bulunan kişinin yararlanabileceği mahkeme dışı şikayet ve zararı giderme yöntemleri ile bunlara nasıl başvurulacağı; (l) Garanti fonlarının veya tazminat elde edilmesine ilişkin başkaca düzenlemelerin varlığı. (2) Yukarıdaki bilgiler, sigorta yaptırmak için başvuruda bulunan kişiye, olanaklar ölçüsünde, sözleşme yapıp yapmamayı değerlendirebilmesi için yeterli zaman bırakılarak verilir. (3) Sigorta yaptırmak için başvuruda bulunan kişi, sigorta teminatı için sigortacının sağladığı bir başvuru formu ve/veya soru listesi temelinde başvuru yapmışsa, sigortacı doldurulan belgelerin bir nüshasını başvuru sahibine verir.

Madde 2:202 Sigorta Teminatındaki Tutarsızlıklar Hakkında Uyarı Yükümlülüğü (1) Sigortacı, sözleşme yapılırken, sözleşmenin yapıldığı sıradaki koşullar ve yapılma biçimi ile özellikle sigorta yaptırmak için başvuruda bulunan kişinin bağımsız bir aracıdan yardım alıp almadığını da göz önünde bulundurarak, önerilen teminat ile sigorta yaptırmak için başvuruda bulunan kişinin sigortacı tarafından bilinen veya bilinmesi gereken gereksinimleri arasındaki tutarsızlıklar hakkında başvuru sahibini uyarmakla yükümlüdür. (2) Fıkra 1’e aykırılık hâlinde (a) sigortacı, kusursuz olması hali dışında, uyarı yükümlülüğünü ihlal etmesinden kaynaklanan bütün zararlar için sigorta ettirene tazminat ödemekle yükümlü olur, ve

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Turkish: Avrupa Sigorta Sözleşmesi Hukuku İlkeleri (ASSHİ)

(b) sigorta ettiren, ihlali öğrendiği andan başlayarak iki ay içinde yazılı bildirim yoluyla sözleşmeyi feshedebilir.

Madde 2:203 Teminatın Başlangıcı Hakkında Uyarı Yükümlülüğü Geçici teminat verilmesi hâli dışında, sigorta yaptırmak için başvuruda bulunan kişi, makul fakat hatalı olarak, sigorta teminatının başvuru anında başlayacağına inanmakta ve sigortacı da onun bu inancını bilmekte veya bilmesi gerekmekte ise, sigortacı teminatın ancak sözleşme yapıldıktan sonra ve yerine göre ilk primin ödenmesiyle başlayacağı hususunda başvuru sahibini derhal uyarmak zorundadır. Sigortacı bu uyarı yükümlülüğünü yerine getirmezse, Madde 2:202 Fıkra 2(a) uyarınca sorumlu olur.

Üçüncü Ayrım: Sözleşmenin Kurulması Madde 2:301 Kurulma Biçimi Sigorta sözleşmesinin yazılı olarak yapılması veya yazılı delille kanıtlanması gerekmediği gibi, bu sözleşme başka herhangi bir biçim koşuluna da bağlı değildir. Sözleşme, sözlü tanıklık da dahil, herhangi bir delille kanıtlanabilir.

Madde 2:302 Sigorta Başvurusunun Geri Alınması Sigorta yaptırmak için başvuruda bulunan kişi, bu başvurusunu, sigortacının kabul açıklaması kendisine ulaşmadan önce geri alma beyanı sigortacıya ulaşmış olmak koşuluyla, geri alabilir.

Madde 2:303 Cayma Süresi (1) Sigorta ettiren, hangisi daha sonra gerçekleşmiş ise, kabul açıklamasının kendisine ulaşmasından veya Madde 2:501’de sayılan belgelerin kendisine verilmesinden başlayarak iki hafta içinde, yazılı bildirim yoluyla sözleşmeden cayabilir. (2) Sigorta ettiren aşağıdaki hâllerde sözleşmeden cayma hakkına sahip değildir: (a) Sözleşme süresi bir aydan daha kısa ise; (b) Sözleşme Madde 2:602 uyarınca uzatılmış ise; (c) Geçici sigorta, sorumluluk sigortası veya grup sigortası söz konusu ise.

Madde 2:304 Haksız Sözleşme Koşulları (1) Özel olarak görüşülmüş olmayan bir sözleşme hükmü, sigorta sözleşmesinin çeşidi, sözleşmenin diğer bütün hükümleri ve sözleşmenin yapıldığı sıradaki koşullar göz önünde tutulduğunda, dürüstlüğe aykırı olarak edimler arası dengeyi sigorta ettiren, sigortalı veya lehtar aleyhine belirgin biçimde bozduğu takdirde onlar hakkında bağlayıcı değildir. (2) Sözleşme, haksız koşul olmaksızın varlığını sürdürebilecekse, tarafları bağlamaya devam eder. Aksi hâlde, haksız koşul, tarafların o koşulun haksızlığını bilselerdi makul olarak kararlaştırmış olabilecekleri bir hükümle değiştirilir. (3) Bu madde teminatı daraltan veya değiştiren hükümlere uygulanmakla birlikte (a) teminatın ve primin değer olarak uygunluğuna, veya (b) sade ve anlaşılabilir bir dille belirtilmiş olmaları koşuluyla, verilen teminatın esaslı unsurlarına veya kararlaştırılan prime ilişkin hükümlere uygulanmaz. (4) Bir sözleşme hükmü, önceden oluşturulmuş ve bu sebeple sigorta ettiren onun içeriğine, özellikle önceden hazırlanmış bir katılım sözleşmesinde, etki edememişse, her halde o hükmün özel olarak görüşülmediği kabul edilir. Bir sözleşme bütün olarak değerlendirildiği zaman, bunun önceden

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hazırlanmış bir katılım sözleşmesi sayılması gerekiyorsa, bir hükmün bazı unsurlarının veya belli bir hükmün özel olarak görüşülmüş bulunması, bu maddenin o sözleşmenin geri kalan kısmına uygulanmasını engellemez. Katılım sözleşmesindeki bir hükmün özel olarak görüşüldüğünü ileri süren sigortacı, bu hususu kanıtlamakla yükümlüdür.

Dördüncü Ayrım: Geriye Etkili Teminat ve Geçici Teminat Madde 2:401 Geriye Etkili Teminat (1) Sigorta teminatı sözleşmenin yapılmasından önceki bir dönem için de verilmiş olduğu takdirde (geriye etkili teminat), sigortacı sözleşmenin yapıldığı sırada herhangi bir sigortalanmış rizikonun gerçekleşmediğini bilmekte ise, sigorta ettiren yalnızca sözleşmenin yapılmasından sonraki dönem için prim borcu altına girer. (2) Geriye etkili teminat hâlinde, sigorta ettiren sözleşme yapıldığı sırada sigortalanmış olayın gerçekleştiğini bilmekte ise, sigortacı, Madde 2:104 hükmü saklı kalmak kaydıyla, yalnızca sözleşmenin yapılmasından sonraki dönem için teminat sağlar.

Madde 2:402 Geçici Teminat (1) Geçici sigorta sözleşmesi yapılması hâlinde, sigortacı, gerekli olduğu ölçüde Madde 2:501 (a), (b), (d), (e) ve (h)’de belirtilen bilgileri içeren bir teminat notu düzenleyip verir. (2) Madde 2:201 ila 2:203 ve yukarıdaki Fıkra 1 hükmü saklı kalmak kaydıyla Madde 2:501 geçici teminata uygulanmaz.

Madde 2:403 Geçici Teminatın Süresi (1) Sigorta sözleşmesi yapmak için başvuruda bulunan kişiye geçici teminat verilmişse, bu geçici teminat, duruma göre, sigorta sözleşmesi uyarınca teminatın başlayacağının kararlaştırıldığı veya sigortacının sigorta sözleşmesi başvurusunu kesin olarak reddettiğine ilişkin bildiriminin başvuru sahibine ulaştığı andan önce son bulmaz. (2) Geçici teminat verilen kişi, aynı sigortacıya sigorta sözleşmesi yapmak için başvuruda bulunmamışsa, geçici teminat Madde 2:601 Fıkra 1’de belirtilen süreden daha kısa bir süre için verilebilir. Taraflardan her biri bu teminatı, iki hafta önceden bildirimde bulunarak feshedebilir.

Beşinci Ayrım: Sigorta Poliçesi Madde 2:501 İçerik Sigorta sözleşmesi yapılınca, sigortacı, aşağıdaki bilgileri gerekli olduğu ölçüde içeren bir sigorta poliçesini, bunda yer almayan genel sözleşme koşulları ile birlikte düzenleyip verir: (a) Tarafların isim ve adresleri, özellikle sigortacının hukuksal yapısı, merkezinin adresi, sözleşme şube tarafından yapılmış veya sigorta teminatı şube tarafından sağlanmışsa şubenin hukuksal türü ve adresi; (b) Sigortalının, hayat sigortası halinde lehtar ve riziko kişisinin isim ve adresleri; (c) Sigorta aracısının isim ve adresi; (d) Sigortanın konusu olan malvarlığı unsuru ve temin edilen rizikolar; (e) Sigorta bedeli ve muafiyet tutar veya oranları; (f) Primin tutarı ve hesaplanma yöntemi;

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(g) Primin muaccel olacağı an ile ödeme yer ve biçimi; (h) Sözleşmenin sona erdirilme yöntemini de içerecek biçimde sözleşmenin süresi ve sorumluluk süresi; (i) Başvuruyu geri alma veya hayat sigortası dışındaki sigortalarda Madde 2:303 uyarınca, hayat sigortalarında da Madde 17:203 uyarınca sözleşmeden cayma hakkı; (j) Sözleşmenin ASSHİ’ye tabi olacağı; (k) Sigorta ettirenin yararlanabileceği mahkeme dışı şikayet ve zararı giderme yöntemleri ile bunlara nasıl başvurulacağı; (l) Garanti fonlarının veya tazminat elde edilmesine ilişkin başkaca düzenlemelerin varlığı.

Madde 2:502 Poliçenin Hükümleri (1) Sigorta poliçesinin koşulları, sigorta ettirenin başvurusundaki koşullardan veya taraflar arasında daha önce varılan anlaşmadan farklı ise, sigorta ettiren sigorta poliçesinde vurgulanmış olan bu gibi farklara, poliçenin kendisine ulaşmasından başlayarak bir ay içinde itiraz etmedikçe razı olmuş sayılır. Sigortacı, sigorta poliçesinde vurgulanmış olan farklara itiraz hakkı olduğunu sigorta ettirene kalın punto ile basılı olarak bildirir. (2) Sigortacı Fıkra 1 hükmüne uymazsa, sözleşme, duruma göre, sigorta ettirenin başvurusundaki veya taraflar arasında daha önce varılan anlaşmadaki koşullarla yapılmış sayılır.

Altıncı Ayrım: Sigorta Sözleşmesinin Süresi Madde 2:601 Sigorta Sözleşmesinin Süresi (1) Sigorta sözleşmesinin süresi bir yıldır. Taraflar, rizikonun türü gerektirdiği takdirde, farklı bir süre kararlaştırabilirler. (2) Fıkra 1 can sigortalarına uygulanmaz.

Madde 2:602 Uzatma (1) Madde 2:601’de belirtilen bir yıllık süre bittikten sonra aşağıdaki hâllerden biri söz konusu olmadığı takdirde sözleşme uzatılmış sayılır: (a) Sigortacı, sözleşme süresinin bitmesinden en az bir ay önce, kararının sebeplerini de belirterek, uzatma olmayacağını yazılı biçimde bildirmişse; (b) Sigorta ettiren, hangisi daha sonra gerçekleşmiş ise, en geç sözleşme süresinin sona erdiği tarihte veya sigortacının prim faturasının kendisine ulaştığı andan başlayarak bir ay içinde, uzatma olmayacağını yazılı biçimde bildirmişse. Son hâlde bir aylık süre ancak, fatura üzerinde kalın punto ile açıkça belirtilmiş olduğu takdirde işlemeye başlar. (2) Fıkra 1(b)’de sözü geçen bildirim, gönderme anında yapılmış sayılır.

Madde 2:603 Sözleşme Hüküm ve Koşullarının Değiştirilmesi (1) Madde 2:602 uyarınca uzatılması mümkün olan bir sigorta sözleşmesinde, sigortacının primi veya diğer sözleşme koşullarından birini değiştirmesine imkan sağlayan bir sözleşme koşulu (a) değişikliğin bir sonraki uzatmadan önce yürürlüğe girmeyeceğini, (b) sigortacının, işlemekte olan sözleşme süresinin bitişinden en geç bir ay önce sigorta ettirene yazılı olarak değişiklik bildiriminde bulunacağını, ve (c) bu bildirimin, sigorta ettireni fesih hakkı ve bunu kullanmaması hâlinde doğacak sonuçlar hakkında bilgilendireceğini, öngörmedikçe geçersizdir.

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(2) Fıkra 1, değişiklik yapma hakkı öngören sözleşme hükümlerinin diğer geçerlilik koşullarını etkilemez.

Madde 2:604 Sigortalanmış Olayın Gerçekleşmesinden Sonra Fesih (1) Sigortalanmış olayın gerçekleşmesi üzerine sözleşmeyi fesih hakkı veren kayıtlar, (a) her iki tarafa da fesih hakkı vermiyorsa, ve (b) can sigortası söz konusu ise geçersizdir. (2) Fesih hakkına ve bunun kullanılmasına ilişkin hükümlerin her ikisi de makul olmak zorundadır. (3) Fesih hakkı, ilgili tarafın sigortalanmış olayın gerçekleştiğini öğrendiği andan başlayarak iki ay içinde diğer tarafa yazılı fesih bildiriminde bulunmaması hâlinde son bulur. (4) Sigorta teminatı, Fıkra 3 uyarınca yapılan bildirimden iki hafta sonra sona erer.

Yedinci Ayrım: Sigortacının Sözleşme Kurulduktan Sonraki Bilgilendirme Yükümlülüğü Madde 2:701 Genel Bilgilendirme Yükümlülüğü Sigortacı, sözleşme süresi boyunca, gecikmeksizin, isim ve adresinde, hukuksal yapısında, merkezinin adresinde ve sözleşmeyi yapan acente veya şubesinin adresinde meydana gelen değişiklikleri sigorta ettirene yazılı olarak bildirmekle yükümlüdür.

Madde 2:702 İstem Üzerine Ek Bilgilendirme (1) Sigorta ettirenin istemi üzerine sigortacı, gecikmeksizin, aşağıdaki hususlara ilişkin olarak sigorta ettirene bilgi verir: (a) Sigortacıdan makul olarak beklenebildiği ölçüde, sözleşmenin ifası ile ilgili bütün hususlar; (b) Sigorta ettirenle yapılmış olan sözleşme ile aynı türden sigorta sözleşmeleri için, sigortacı tarafından önerilen yeni katılım sözleşmesi hükümleri. (2) Gerek sigorta ettirenin istemi, gerek sigortacının yanıtı yazılı olmak zorundadır.

Üçüncü Bölüm: Sigorta Aracıları Madde 3:101 Sigorta Acentelerinin Yetkileri (1) Sigorta acentesi, mevcut sigortacılık uygulamasına göre görevinin kapsamına dahil bulunan bütün işlemleri sigortacı adına yapmaya yetkilidir. Sigorta acentesinin yetkilerine getirilen sınırlamalar sigorta ettirene ayrı bir belgede açıkça bildirilir. Bununla birlikte, sigorta acentesinin yetkileri, en azından fiili görev alanını kapsar. (2) Her hâlde, sigorta acentesinin yetkileri (a) sigorta ettireni bilgilendirme ve ona tavsiyede bulunma, ve (b) sigorta ettirenin yapacağı bildirimleri almayı da kapsar. (3) Sigorta acentesinin görevi dolayısıyla bildiği veya bilgi sahibi olması gereken hususların sigortacı tarafından da bilindiği kabul edilir.

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Madde 3:102 Bağımsız Olduğu İzlenimini Yaratan Sigorta Acentesi Sigortacının görevlendirdiği bir acente, bağımsız bir aracı olduğu izlenimini yaratır ve fakat hukuk düzeninin bu gibi bir aracı için öngörmüş bulunduğu yükümlülüklere aykırı davranırsa, sigortacı bu aykırılık dolayısıyla sorumlu olur.

Dördüncü Bölüm: Sigortalanmış Riziko Birinci Ayrım: Koruyucu Önlemler Madde 4:101 Koruyucu Önlemler: Anlam Koruyucu önlem, sigortacının sorumluluğunun ön koşulu olarak tanımlanmış olup olmadığına bakılmaksızın, sigorta ettiren veya sigortalıyı, sigortalanmış olay meydana gelmeden önce bazı davranışlarda bulunmak veya bazı davranışlardan kaçınmakla yükümlü kılan sözleşme hükmüdür.

Madde 4:102 Sigortacının Sözleşmeyi Feshetme Hakkı (1) Koruyucu önlem alma yükümlülüğüne aykırılık hâlinde sigortacının sözleşmeyi feshetme hakkına sahip olacağına ilişkin sözleşme hükümleri, sigorta ettiren veya sigortalının bu yükümlülüğe zarara sebep olma kastıyla veya pervasızca ve zararın meydana gelebileceğinin bilincinde olarak aykırı davranmış bulunması hâli dışında geçersizdir. (2) Fesih hakkı, sigortacının koruyucu önlem alma yükümlülüğüne aykırı davranışı öğrendiği veya bu aykırılığın sigortacı için anlaşılabilir hâle gelmiş bulunduğu andan başlayarak bir ay içinde sigorta ettirene yapılacak yazılı bildirimle kullanılır. Sigorta teminatı fesih anında son bulur.

Madde 4:103 Sigortacının Sorumluluktan Kurtulması (1) Koruyucu önlem alma yükümlülüğüne aykırılık hâlinde sigortacının sorumluluktan tamamen veya kısmen kurtulacağını öngören sözleşme kayıtları, sigorta ettiren veya sigortalının bu yükümlülüğe zarara sebep olma kastıyla veya pervasızca ve zararın meydana gelebileceğinin bilincinde olarak aykırı davranmış bulunması hâli dışında geçersizdir. (2) Sigorta parasının kusurun ağırlığı göz önünde tutularak indirileceğini öngören açık hükümler saklı kalmak kaydıyla, duruma göre sigorta ettiren veya sigortalı, koruyucu önlem alma yükümlülüğüne kusuruyla aykırı davranmış olmasından kaynaklanan zararlar için sigorta parasına hak kazanır.

İkinci Ayrım: Rizikonun Ağırlaşması Madde 4:201 Riziko Ağırlaşmasına İlişkin Hükümler Sigorta sözleşmesi, sigortalanmış rizikonun ağırlaşmasına ilişkin hüküm içermekteyse, bu hüküm ancak söz konusu riziko ağırlaşması önemli ve sigorta sözleşmesinde belirtilen türden olduğu takdirde geçerlidir.

Madde 4:202 Riziko Ağırlaşmasını Bildirme Yükümlülüğü (1) Sigortalanmış rizikonun ağırlaşmasına ilişkin hüküm riziko ağırlaşmasının bildirilmesini öngörüyorsa, bu bildirim, bunu yapması gereken kişinin sigorta teminatının varlığını ve riziko ağırlaşmasını bilmesi veya bilmesinin gerekmesi koşuluyla, duruma göre sigorta ettiren, sigortalı veya lehtar tarafından yapılır. Başka bir kişi tarafından yapılan bildirim de hüküm doğurur.

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(2) Sözleşmedeki hüküm, bildirimin belirli bir süre içinde yapılmasını öngörmekte ise, bu sürenin makul olması gereklidir. Bildirim, gönderme anından başlayarak hüküm doğurur. (3) Bildirim yükümlülüğüne aykırılık hâlinde, sigortacı, sigorta teminatı kapsamındaki bir olayın yol açtığı sonraki bir zararı ödemekten kaçınma hakkına ancak bu zarar ağırlaşmış rizikonun bildirilmemesinden ileri gelmiş bulunduğu takdirde sahip olur.

Madde 4:203 Fesih ve Sorumluluktan Kurtulma (1) Sözleşme, sigortalanmış rizikonun ağırlaşması hâlinde sigortacının sözleşmeyi feshetme hakkına sahip olacağını hükme bağlamışsa, söz konusu fesih hakkı riziko ağırlaşmasının sigortacı tarafından öğrenildiği veya sigortacı için anlaşılabilir hâle gelmiş bulunduğu andan başlayarak bir ay içinde sigorta ettirene yapılacak yazılı bildirimle kullanılır. (2) Teminat, fesihten bir ay sonra veya sigorta ettirenin Madde 4:202’den doğan yükümlülüğü kasten ihlal etmiş olması durumunda fesih anında sona erer. (3) Sigortalanmış olay, sigorta ettirenin teminatın son bulmasından önce öğrendiği veya öğrenmiş olması gereken bir riziko ağırlaşmasından ileri gelmişse, sigortacının ağırlaşmış rizikoyu hiç sigorta etmeyeceği hâllerde sigorta parası ödenmez. Bununla birlikte, eğer sigortacı ağırlaşmış rizikoyu daha yüksek prim alarak veya farklı koşullarla sigorta edecek idiyse, sigorta parası orantılı biçimde veya o farklı koşullar uyarınca ödenir.

Üçüncü Ayrım: Rizikonun Hafiflemesi Madde 4:301 Rizikonun Hafiflemesinin Sonuçları (1) Riziko önemli ölçüde hafiflerse, sigorta ettiren, geri kalan sözleşme süresi için primin orantılı olarak indirilmesini isteyebilir. (2) Taraflar, istemden başlayarak bir ay içinde orantısal bir indirim üzerinde anlaşamazlarsa, sigorta ettiren, istemden başlayarak iki ay içinde yazılı bildirim yoluyla sözleşmeyi feshedebilir.

Beşinci Bölüm: Sigorta Primi Madde 5:101 İlk veya Tek Prim Sigortacı, ilk veya tek primin ödenmiş olmasını sözleşmenin kurulması veya teminatın başlamasının koşulu hâline getirmişse, bu koşul (a) sigorta yaptırmak için başvuruda bulunan kişiye yazılı olarak açık bir dille ve onu primi ödeyene kadar teminattan yoksun olacağı hususunda uyaracak biçimde bildirilmiş, ve (b) bent (a)’da öngörülen koşullara uygun bir faturanın ulaştığı anı izleyen iki haftalık bir süre ödeme yapılmaksızın geçmiş olmadıkça geçersizdir.

Madde 5:102 Sonraki Primler (1) Sonraki primlerden birinin ödenmemesi hâlinde sigortacının rizikoya karşı teminat sağlama borcundan kurtulacağına ilişkin sözleşme kayıtları (a) sigorta ettirene, ödemesi gereken primin tam tutarını ve ödeme zamanını belirten bir fatura ulaşmış;

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(b) primin muaccel olmasından sonra, sigortacı, sigorta ettirene ödemesi gereken primin tam tutarını içeren, ona en az iki haftalık ek bir ödeme süresi veren ve onu ödeme yapılmazsa sigorta teminatının derhal duracağı konusunda uyaran bir ihtar yollamış; ve (c) bent (b)’de öngörülen ek süre ödeme yapılmaksızın geçmiş olmadıkça geçersizdir. (2) Sigortacı, Fıkra 1 bent (b)’de öngörülen ek sürenin sonunda sorumluluktan kurtulur. Sözleşme, Madde 5:103 uyarınca feshedilmiş olmadıkça, sigorta teminatı, sigorta ettirenin ödemesi gereken tutarı ödediği anda tekrar başlar.

Madde 5:103 Sözleşmenin Feshi (1) Madde 5:101 bent (b) veya Madde 5:102 Fıkra 1 bent (b)’de belirtilen sürenin prim ödenmeksizin sona ermesi hâlinde, sigortacı, duruma göre Madde 5:101 bent (b)’de sözü geçen fatura veya Madde 5:102 Fıkra 1 bent (b)’de sözü geçen ihtarda sigortacının sözleşmeyi fesih hakkı belirtilmiş olmak koşuluyla, yazılı bildirim yoluyla sözleşmeyi feshedebilir. (2) Sözleşme, sigortacı duruma göre (a) ilk primin tahsili için Madde 5:101 bent (b)’de belirtilen sürenin bittiği andan başlayarak iki ay içinde, veya (b) sonraki primlerden birinin tahsili için Madde 5:102 Fıkra 1 bent (b)’de belirtilen sürenin bittiği andan başlayarak iki ay içinde dava açmazsa feshedilmiş sayılır.

Madde 5:104 Primin Bölünebilirliği Sigorta sözleşmesi, sözleşme süresi bitmeden önce feshedilirse, sigortacı yalnızca fesihten önceki günlere ait prime hak kazanır.

Madde 5:105 Prim Ödeme Hakkı Sigortacı, bir üçüncü kişi tarafından gerçekleştirilen ödemeyi (a) o üçüncü kişi sigorta ettirenin onayı ile ödeme yaptığı, veya (b) o üçüncü kişinin sigorta teminatının yürürlükte tutulmasında hukuka uygun çıkarı bulunduğu ve fakat, sigorta ettirenin muacceliyet anında ödeme yapmamış olduğu veya yapmayacağının açıkça anlaşıldığı hallerde reddedemez.

Altıncı Bölüm: Sigortalanmış Olay Madde 6:101 Sigortalanmış Olayın Bildirilmesi (1) Sigortalanmış olayın gerçekleştiğine ilişkin sigortacıya yapılacak bildirim, bunu yapması gereken kişinin sigorta teminatının varlığını ve sigortalanmış olayın gerçekleştiğini bilmesi veya bilmesinin gerekmesi koşuluyla, duruma göre sigorta ettiren, sigortalı veya lehtar tarafından yerine getirilir. Başka bir kişi tarafından yapılan bildirim de hüküm doğurur. (2) Bu bildirim gecikmeksizin yapılır ve gönderme anından başlayarak hüküm doğurur. Sözleşme, bildirimin belirli bir süre içinde yapılmasını öngörmekte ise, bu sürenin, hiç bir hâlde beş günden daha kısa olmamak kaydıyla, makul bir süre olması şarttır. (3) Ödenecek sigorta parası, sigortacının, gecikmeden dolayı zarar görmüş bulunduğunu kanıtlayabildiği ölçüde indirilir.

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Madde 6:102 Sigortalanmış Olay Halinde İşbirliği (1) Duruma göre sigorta ettiren, sigortalı veya lehtar, sigortalanmış olayın araştırılmasına yönelik makul istemleri yerine getirerek sigortacıyla işbirliği yapmakla, özellikle – sigortalanmış olayın sebep ve sonuçları hakkında bilgi aktarmakla; – sigortalanmış olaya ilişkin belgeleri ve diğer delilleri vermekle; – bunlarla ilgili yerlere ulaşılmasını sağlamakla yükümlüdür. (2) Fıkra 1 hükmüne aykırılık durumunda, fıkra 3 hükmü saklı kalmak kaydıyla, sigorta parası, sigortacının aykırılıktan dolayı zarar görmüş bulunduğunu kanıtlayabildiği ölçüde indirilir. (3) Fıkra 1 hükmüne zarara sebep olma kastıyla veya pervasızca ve böyle bir zararın meydana gelebileceğinin bilincinde olarak aykırı davranılması durumunda, sigortacı sigorta parasını ödeme borcundan kurtulur.

Madde 6:103 İstemlerin Kabulü (1) Sigortacı, bir istemin hızla çözüme kavuşturulması için gerekli tüm adımları atmakla yükümlüdür. (2) Sigortacı, bir istemi gerekli belge ve diğer bilgilerin kendisine ulaştığı andan başlayarak bir ay içinde, kararının sebeplerini içeren yazılı bir bildirimle reddetmez veya kabulünü ertelemezse, o istem kabul edilmiş sayılır.

Madde 6:104 İfa Zamanı (1) Bir istem kabul edildiğinde, sigortacı, gecikmeksizin, yerine göre ödeme yapar veya sağlamayı söz verdiği hizmetleri yerine getirir. (2) İstemin toplam değeri henüz belirlenememiş olmakla birlikte, istemde bulunan kişinin bunun en azından bir kısmına hak kazandığı anlaşılırsa, gecikmeksizin bu kısım ödenir veya bu kısma ilişkin edim yerine getirilir. (3) Gerek Fıkra 1 gerek Fıkra 2 uyarınca sigorta parası, istemin kabulünden ve yerine göre, miktarının veya hak kazanılan kısmının belirlenmesinden sonra en geç bir hafta içinde ödenir.

Madde 6:105 Gecikmeyle İfa (1) Sigorta parası Madde 6:104 hükmüne uygun olarak ödenmezse, istemde bulunan kişi, bu tutara muacceliyet anından ödeme anına kadar işletilecek, Avrupa Merkez Bankası’nın söz konusu yarıyılın ilk takvim gününden önceki son ana refinansman işlemine uyguladığı orana yüzde sekiz puan eklenerek elde edilecek oran üzerinden faize hak kazanır. (2) İstemde bulunan kişi, sigorta parasının geç ödenmesi sebebiyle uğradığı ek zararı da talep edebilir.

Yedinci Bölüm: Zamanaşımı Madde 7:101 Prim Alacağına İlişkin Dava Prim alacağı için yargı yoluna başvuru hakkı, muacceliyet tarihinden başlayarak bir yıl içinde zamanaşımına uğrar.

Madde 7:102 Sigortacının Edimlerine İlişkin Dava (1) Sigortacının edimi için yargı yoluna başvuru hakkı, sigortacının Madde 6:103 uyarınca istem hakkında kesin kararını verdiği veya vermiş sayıldığı andan başlayarak üç yılda zamanaşımına uğrar.

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Turkish: Avrupa Sigorta Sözleşmesi Hukuku İlkeleri (ASSHİ)

Ancak başvuru hakkı her hâlde, sigortalanmış olayın gerçekleşmesinden itibaren en geç on yılda, hayat sigortalarında ise otuz yılda zamanaşımına uğrar. (2) Hayat sigortalarında ayrılma değerinin ödenmesi için yargı yoluna başvuru hakkı, sigortacının gönderdiği kesin hesabın sigorta ettirene ulaştığı andan başlayarak üç yılda zamanaşımına uğrar. Ancak başvuru hakkı her hâlde, hayat sigortası sözleşmesinin sona ermesinden başlayarak en geç otuz yılda zamanaşımına uğrar.

Madde 7:103 Zamanaşımına İlişkin Diğer Hususlar Sigorta sözleşmesinden doğan istemlere, ASSHİ Madde 7:101 ve Madde 7:102 saklı kalmak kaydıyla, Avrupa Sözleşme Hukuku İlkeleri (ASHİ) Madde 14:101 ila Madde 14:503 hükümleri uygulanır. Sigorta sözleşmesi, ASSHİ Madde 1:103 Fıkra 2’ye uygun olarak, bu hükümlere aykırı düzenleme içerebilir.

İkinci Kısım: Zarar Sigortalarına İlişkin Ortak Hükümler Sekizinci Bölüm: Sigorta Bedeli ve Sigorta Değeri Madde 8:101 Ödenebilecek Tutarın Üst Sınırı (1) Sigortacı, sigortalının fiilen uğradığı zararı gidermek için gerekli olan tutardan fazlasını ödemekle yükümlü değildir. (2) Sigorta konusu malvarlığı unsurunun değerini belirleyen bir sözleşme hükmü, bu değer kararlaştırılırken sigorta ettiren veya sigortalının hile veya yanlış beyanı söz konusu olmamak koşuluyla, sigorta konusu malvarlığı unsuruna ait fiili değeri aşan bir değer öngörse dahi geçerlidir.

Madde 8:102 Eksik Sigorta (1) Sigortalanmış olayın gerçekleştiği anda sigorta bedeli, sigortalı malvarlığı unsurunun değerinden az olsa dahi, sigortacı, sigorta kapsamındaki zararı sigorta bedeline kadar tazmin etmekle yükümlü olur. (2) Bununla birlikte, sigortacı Fıkra 1 uyarınca sigorta teminatı önerirken, bir diğer seçenek olmak üzere, ödenecek tazminatın, sigorta bedelinin malvarlığı unsurunun zarar meydana geldiği andaki fiili değerine olan oranı uygulanarak sınırlanmasını önerebilir. Bu hâlde, ayrıca, Madde 9:102’de tanımlanan zararı azaltma giderleri de aynı oran uygulanarak karşılanır.

Madde 8:103 Aşkın Sigorta Hâlinde Sözleşme Hükümlerinin Uyarlanması (1) Sigorta bedeli, sigorta kapsamında ortaya çıkabilecek en yüksek zararı aşmaktaysa, taraflardan her biri, sigorta bedelinin ve bununla orantılı olarak sözleşmenin geri kalan süresine ilişkin primin indirilmesini isteyebilir. (2) Taraflar istemden başlayarak bir ay içinde söz konusu indirim hakkında anlaşmaya varamazlarsa, bunlardan her biri sözleşmeyi feshedebilir.

Madde 8:104 Birden Çok Sigorta (1) Aynı çıkar, birden çok sigortacı tarafından ayrı ayrı sigortalanmışsa, sigortalı, dilediği sigortacıdan veya sigortacılardan, fiilen uğradığı zararın giderilmesi için gerekli olan ölçüde istemde bulunabilir.

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(2) Kendisinden istemde bulunulan sigortacı, diğer sigortacılara rücu hakkı saklı kalmak kaydıyla, düzenlediği poliçede yazılı sigorta bedeline kadar, varsa zararı azaltma giderleriyle birlikte, ödeme yapar. (3) Fıkra 2’de belirtilen hak ve borçlar, sigortacılar arasında, bunların sigortalıya karşı ayrı ayrı sorumlu oldukları tutarlarla orantılıdır.

Dokuzuncu Bölüm: Tazminat Alma Hakkı Madde 9:101 Zarara Sebep Olma (1) Duruma göre sigorta ettiren veya sigortalı, zarar, kendisinin, zarara sebep olma kastıyla veya pervasızca ve zararın meydana gelebileceğinin bilincinde olarak gerçekleştirdiği bir eylem veya eylemsizliğinden kaynaklanmış olduğu ölçüde, tazminat hakkını yitirir. (2) Sigorta poliçesinde sigorta parasının kusurun derecesine göre indirilmesini öngören açık bir kaydın bulunması hâli saklı kalmak kaydıyla, duruma göre sigorta ettiren veya sigortalı, kusuruyla gerçekleştirdiği bir eylem veya eylemsizliğinden kaynaklanan zarar için tazminata hak kazanır. (3) Fıkra 1 ve 2 uygulamasında zarara sebep olma, zararı önlememe veya azaltmamayı da kapsar.

Madde 9:102 Zararı Azaltma Giderleri (1) Sigortacı, sigorta ettiren veya sigortalının sigorta kapsamındaki bir zararın azaltılması amacıyla önlemler aldığı sırada yaptığı giderleri veya uğradığı zararı, bu önlemler zararı azaltmak bakımından başarısız kalmış olsalar dahi, sigorta ettiren veya sigortalı o anki koşullarda bu önlemleri makul sayabileceği ölçüde ödemekle yükümlüdür. (2) Sigortacı, sigorta kapsamındaki zararın karşılığı olan tazminatla birlikte ödeyeceği toplam tutar sigorta bedelini geçse dahi, duruma göre sigorta ettiren veya sigortalıyı, Fıkra 1 uyarınca almış olduğu önlemler için tazmin eder.

Onuncu Bölüm: Halefiyet Hakkı Madde 10:101 Halefiyet (1) Fıkra 3 hükmü saklı kalmak kaydıyla, sigortacı, sigortalıyı tazmin etmiş olduğu ölçüde, zarardan sorumlu üçüncü kişiye karşı halefiyet hakkına sahiptir. (2) Sigortalı, bu gibi bir üçüncü kişiye karşı, sigortacının halefiyet hakkını zedeleyecek biçimde herhangi bir hakkından vaz geçmiş bulunduğu ölçüde, söz konusu zarar için tazminat almak hakkından yoksun kalır. (3) Sigortacı; sigorta ettirenin veya sigortalının aynı evde birlikte yaşadığı kişilere, sigorta ettirenle veya sigortalıyla eşit sosyal ilişki içinde olan kişilere ya da sigorta ettirenin veya sigortalının çalıştırdığı kişilere karşı, bunların zarara kasıtlı bir davranışla veya pervasızca ve zararın meydana gelebileceğinin bilincinde olarak sebep olduklarını kanıtlaması hâli dışında, halefiyet hakkını ileri süremez. (4) Sigortacı, halefiyet hakkını sigortalıya zarar verecek şekilde ileri süremez.

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On Birinci Bölüm: Sigorta Ettirenden Farklı Sigortalılar Madde 11:101 Sigortalının Hak Sahibi Olması (1) Sigorta sözleşmesi, sigorta ettirenden başka bir kişinin lehine yapılmışsa, sigortalanmış olay meydana geldiğinde, sigorta parasını almaya bu kişi hak kazanmış olur. (2) Sigorta ettiren, sigortalıya tanınan bu hakkı (a) poliçede aksi öngörülmemişse; veya (b) sigortalanmış olay gerçekleşmiş bulunmadığı sürece geri alabilir. (3) Geri alma, sigortacıya yazılı geri alma bildirimi ulaştığı anda hüküm doğurur.

Madde 11:102 Sigortalının Bilgisi Madde 11:101 uyarınca sigorta edilmiş olan bir kişinin bilgisi, bu kişi sigorta ettirenin sigortacıya gerekli bilgileri vermekle yükümlü olduğu anda kendisinin sigortalı sıfatını bilmiyorsa, sigorta ettirenin bilgisiyle bir tutulmaz.

Madde 11:103 Sigortalılardan Biri Tarafından Yükümlülük İhlali Bir yükümlülüğün sigortalılardan biri tarafından ihlal edilmesi, aynı sigorta sözleşmesi uyarınca sigortalı olan diğer kişilerin haklarını, riziko tümü için birlikte sigortalanmış olmadıkça, olumsuz etkilemez.

On İkinci Bölüm: Sigortalanmış Riziko Madde 12:101 Sigortalanmış Rizikonun Var Olmaması (1) Sigortalanan riziko, sigorta sözleşmesinin kurulduğu anda var olmadığı gibi, sigorta süresinin herhangi bir anında da mevcut olmamışsa, prim ödenmesi gerekmez. Bununla birlikte, sigortacı, yapılan giderler karşılığı olarak makul bir tutara hak kazanır. (2) Sigortalanan riziko, sigorta süresi içinde son bulursa, sözleşme sigortacıya bu durumun bildirildiği anda sona ermiş sayılır.

Madde 12:102 Malvarlığı Unsurunun Devri (1) Sigortalı malvarlığı unsuru üzerindeki mülkiyet hakkı devredilirse, sigorta sözleşmesi, sigorta ettiren ve mülkiyeti devralmış olan kişi daha önceki bir anda sözleşmenin sona ermesini uygun bulmuş olmadıkça, devirden bir ay sonra sona erer. Bu hüküm, sigorta sözleşmesinin, gelecekte mülkiyeti kazanacak kişi lehine yapılmış olması hâlinde uygulanmaz. (2) Malvarlığı unsurunu devralan kişi, sigortalı malvarlığı unsuru üzerindeki hasar kendisine geçtiği andan başlayarak sigortalı sayılır. (3) Fıkra 1 ve 2 (a) sigortacı, sigorta ettiren ve malvarlığı unsurunu devralan kişi aksine anlaşma yapmışlarsa; veya (b) mülkiyet miras yoluyla geçmişse uygulanmaz.

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Üçüncü Kısım: Tutar Sigortalarına İlişkin Ortak Hükümler On Üçüncü Bölüm: İzin verilen Tutar Sigortaları Madde 13:101 Tutar Sigortası Tutar sigortası olarak yalnızca kaza, sağlık, hayat, evlilik, doğum veya diğer can sigortaları yapılabilir.

Dördüncü Kısım: Sorumluluk Sigortası On Dördüncü Bölüm: Genel Sorumluluk Sigortası Madde 14:101 Savunma Giderleri Sigortacı, Madde 9:102 uyarınca yapılan savunma giderlerini ödemekle yükümlüdür.

Madde 14:102 Zarar Görenin Korunması Sigorta poliçesi kapsamındaki bir istemin sigorta ettiren veya sigortalı ile sigortacı arasında gerçekleştirilecek bir anlaşma, vaz geçme, ödeme veya bunlara eşdeğer bir işlem yoluyla sonuca bağlanması, yazılı olarak onay vermedikçe zarar görenin durumunu etkilemez.

Madde 14:103 Zararın Sebebi (1) Duruma göre sigorta ettiren veya sigortalı, zarar, kendisinin, zarara sebep olma kastıyla gerçekleştirdiği bir eylem veya eylemsizliğinden kaynaklanmış olduğu ölçüde, tazminat hakkını yitirir. Bu hüküm, zararın meydana gelmesinden sonra sigortacı tarafından verilen özel talimata, pervasızca ve bu talimatın aksine davranış halinde zararın artabileceğinin bilincinde olarak uyulmamasını da kapsar. (2) Fıkra 1 uygulamasında zarara sebep olma, zararı önlememe veya azaltmamayı da kapsar. (3) Kusur derecesi dikkate alınarak sigorta parasının indirileceğini öngören poliçedeki açık hükümler saklı olmak kaydıyla, duruma göre sigorta ettiren veya sigortalı, zararın meydana gelmesinden sonra sigortacı tarafından verilen özel talimata kusuruyla uymamasından kaynaklanan zarar için tazminata hak kazanır.

Madde 14:104 Sorumluluğun İkrar Edilmesi (1) Zarar görenin isteminin yerine göre sigorta ettiren veya sigortalı tarafından kabul edilmesi veya karşılanması halinde sigortacının borçlarından kurtulmuş olacağını öngören sigorta sözleşmesi koşulları hükümsüzdür. (2) Sigortacı, onay vermedikçe, zarar gören ile yerine göre sigorta ettiren veya sigortalı arasındaki anlaşmalarla bağlı değildir.

Madde 14:105 Devir Sigortalıyı, poliçeden doğan istemlerini devretme hakkından yoksun bırakan sigorta sözleşmesi koşulları hükümsüzdür.

Madde 14:106 Hasarsızlık İndirimi/ Bonus-Malus Sistemleri (1) Sigorta ettiren, her zaman son beş yıldaki tazminat istemlerinin dökümünü talep edebilir.

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(2) Sigortacı, primi veya başka sözleşme koşullarını, poliçe kapsamında ödenmiş olan tazminat istemlerinin sayısına veya tutarına bağlamış ise, sigorta ettirenin başka sigortacılarla mevcut olan son beş yıla ilişkin tazminat kayıtları da gereken ölçüde dikkate alınır.

Madde 14:107 Sigortalanmış Olay (1) Ticari veya mesleki amaçlarla yapılmış olan bir sigorta sözleşmesinin taraflarının, sigortalanmış olayı, zarar görenin talepte bulunması gibi farklı bir kıstasa göre tanımlamış olmaları hâli hariç, sigortalanmış olay, sigortalının sorumluluğuna yol açan bir olgunun sigorta sözleşmesinde öngörülen sorumluluk süresi içinde gerçekleşmesidir. (2) Tarafların sigortalanmış olayı zarar görenin talepte bulunması biçiminde tanımlamış olmaları halinde, sigorta teminatı sorumluluk süresi içinde veya bunu izleyen beş seneden az olmayan bir süre içinde yapılan ve sorumluluk süresi sona ermeden önce gerçekleşmiş olan bir olguya dayanan talepler hakkında söz konusu olur. Sigorta yaptırmak için başvuran kişinin sözleşmenin yapıldığı sırada tazminat istemine yol açabileceğini bildiği veya bilmesi gereken hâller sigorta teminatı dışında bırakılabilir.

Madde 14:108 Sigorta Bedelini Aşan İstemler (1) Birden fazla zarar görene ödenmesi gereken tutarların toplamı sigorta bedelini aşarsa, bu ödemeler orantılı olarak indirilir. (2) Başka zarar görenlerin varlığından habersiz olarak, kendisince bilinen zarar görenlere iyi niyetle sigorta parasını ödeyen sigortacı, başka zarar görenlere karşı sigorta bedelinin geri kalan kısmı kadar sorumlu olur.

On Beşinci Bölüm: Doğrudan İstem ve Doğrudan Dava Madde 15:101 Doğrudan İstem ve Savunmalar (1) Duruma göre sigorta ettiren veya sigortalı sorumlu olduğu ölçüde, zarar gören zararının giderilmesi için (a) sigorta zorunlu ise, veya (b) sigorta ettiren veya sigortalı aciz halinde ise, veya (c) sigorta ettiren veya sigortalı tasfiyeye tabi tutulmuş veya münfesih hale gelmişse, veya (d) zarar gören, bedensel zarara uğramış ise, veya (e) sorumluluğa uygulanacak hukuk, doğrudan istem hakkını öngörmekte ise sigortacıya karşı sigorta sözleşmesi çerçevesinde doğrudan istemde bulunabilir. (2) Sigortayı zorunlu kılan özel hükümler yasaklamadıkça, sigortacı zarar görene karşı sigorta sözleşmesinden kaynaklanan savunmaları ileri sürebilir. Bununla birlikte sigortacı, sigorta ettirenin ve/veya sigortalının zarardan sonraki davranışlarına dayanan savunmalarda bulunmak hakkına sahip değildir.

Madde 15:102 Bilgilendirme Yükümlülüğü (1) Sigorta ettiren ve sigortalı, zarar görenin istemi üzerine, doğrudan istem için gereksinim duyulan bilgileri vermekle yükümlüdürler. (2) Sigortacı, kendisine doğrudan yöneltilen istemi gecikmeksizin ve en geç bunun kendisine ulaşmasını izleyen iki hafta içinde sigorta ettirene yazılı olarak bildirir. Sigortacı bu yükümlülüğüne

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aykırı davranırsa, sigorta ettirenin hakları zarar görene ödeme yapması veya ona karşı borç ikrarında bulunması yüzünden etkilenmez. (3) Sigorta ettiren, Fıkra 2’ye uygun olarak bildirimin kendisine ulaşmasını izleyen bir ay içinde sigortacıya sigortalanmış olaya ilişkin bilgi aktarmazsa, istemin doğrudan sigortacı tarafından sonuçlandırılmasına onay vermiş sayılır. Bu kural söz konusu bildirimin zamanında kendilerine fiilen ulaşmış olduğu sigortalılar hakkında da uygulanır.

Madde 15:103 Sorumluluktan Kurtulma Sigorta parasının duruma göre sigorta ettirene veya sigortalıya ödenmesi, sigortacıyı zarar görene karşı sorumluluktan ancak zarar gören doğrudan istem hakkından vaz geçmiş ise, veya sigortacının yazılı isteminin kendisine ulaşmasını izleyen dört ay içinde sigortacıya doğrudan istemde bulunma niyetini bildirmemiş ise kurtarır.

Madde 15:104 Zamanaşımı (1) Sigortacıya gerek sigortalı gerek zarar gören tarafından açılacak davalar, zarar görenin sigortalıya açabileceği dava zamanaşımına uğradığı anda zamanaşımına uğramış olur. (2) Zarar gören tarafından sigortalıya yöneltilen isteme ilişkin zamanaşımı süresi, sigortacıya karşı doğrudan istemde bulunulan hallerde, sigortalının bu doğrudan istemi öğrendiği andan, doğrudan istemin sigortacı tarafından karşılandığı veya açık bir biçimde geri çevrildiği ana kadar durur.

On Altıncı Bölüm: Zorunlu Sigorta Madde 16:101 Uygulama Alanı (1) Taraflar, (a) Topluluk hukukunun, (b) bir Üye Devlet’in, veya (c) hukuku izin verdiği ölçüde Topluluk üyesi olmayan bir Devlet’in öngördüğü bir sigorta yaptırma zorunluluğunun yerine getirilmesi için kurulan bir sigorta sözleşmesine ASSHİ’nin uygulanmasını kararlaştırabilirler. (2) Sigorta sözleşmesi, sigorta yaptırma zorunluluğu öngören özel düzenlemeye uygun bulunmadıkça, zorunluluk koşulunu yerine getirmez.

Beşinci Kısım: Hayat Sigortası On Yedinci Bölüm: Hayat Sigortasına İlişkin Özel Hükümler Birinci Ayrım: Üçüncü Kişiler Madde 17:101 Üçüncü Kişinin Hayatı Üzerine Hayat Sigortası Sigorta ettirenden başka bir kişinin hayatı üzerine kurulan bir hayat sigortası sözleşmesi; riziko kişisinin kendisine yapılan bilgilendirme üzerine verdiği onam yazılı ve imzasıyla kanıtlanmış olmadıkça geçersizdir. Sözleşmenin daha sonra, lehtar değişikliği, sigorta bedelinin artırılması ve sözleşme süresinin değişmesi de dahil olmak üzere esaslı biçimde değişmesi, bu gibi bir onam mevcut olmadıkça

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hüküm doğurmaz. Bu hüküm, sigorta sözleşmesinin veya sigorta parası üzerindeki hakkın başkasına devri veya başkası lehine sınırlanması hâlinde de uygulanır.

Madde 17:102 Sigorta Parasının Lehtarı (1) Sigorta ettiren, belirleme işlemi dönülemez biçimde yapılmış olmadıkça, sigorta parasının lehtarı olarak bir veya birden fazla kişiyi belirleyebilir ve bu belirleme işlemini değiştirebilir veya geri alabilir. Belirleme, değiştirme veya geri alma işlemleri, vasiyet yoluyla gerçekleştirilmiş olmadıkça, yazılı olarak yapılmak ve sigortacıya gönderilmek zorundadır. (2) Belirleme, değiştirme ve belirlemeyi geri alma hakları, hangisi ilkönce meydana gelirse sigorta ettirenin ölümü veya sigortalanmış olayın gerçekleşmesi üzerine son bulur. (3) Duruma göre sigorta ettiren veya mirasçıları, (a) sigorta ettiren lehtar belirlememiş ise, veya (b) lehtar belirleme işlemi geri alınmış ve başka lehtarlar belirlenmemiş ise, (c) sigortalanmış olay gerçekleşmeden önce bir lehtar ölmüş ve başka lehtarlar belirlenmemiş ise sigorta parasının lehtarı sayılır. (4) İki veya daha fazla lehtar belirlenmiş ve bunlardan birine ilişkin belirleme işlemi geri alınmış yahut bunlardan biri sigortalanmış olay gerçekleşmeden önce ölmüşse, sigorta parasının bu lehtara ödenecek olan kısmı, sigorta ettiren tarafından Fıkra 1 uyarınca farklı bir esas öngörülmüş olmadıkça, diğer lehtarlar arasında orantılı biçimde dağıtılır. (5) İcra ve iflas hukukundaki alacaklıların zararına olan işlemlerin geçersizliği, iptal edilebilirliği veya icra yeteneğinden yoksunluğuna ilişkin uygulanabilir kurallar saklı kalmak kaydıyla, sigorta ettirene ait aciz haline düşmüş malvarlığı, para sigorta ettirene ödenmiş olmadığı sürece, sigorta parası, dönüştürme değeri veya ayrılma değeri üzerinde herhangi bir hak ileri süremez. (6) Fıkra 1’e uygun biçimde belirlenmiş bir kişiye sigorta parasını ödeyen sigortacı, bu kişinin sigorta parasına hak kazanmamış olduğunu bilerek ödeme yapmış olmadıkça, ödeme borcundan kurtulur.

Madde 17:103 Ayrılma Değerinin Lehtarı (1) Madde 17:102 uyarınca yapılan belirlemeden bağımsız olarak, sigorta ettiren, varsa ayrılma değeri için de lehtar belirleyebilir ve bu belirleme işlemini geri alabilir yahut değiştirebilir. Belirleme, değişiklik veya geri alma işlemlerinin yazılı olarak yapılması ve sigortacıya gönderilmesi gerekir. (2) Sigorta ettiren (a) ayrılma değeri için lehtar belirlenmemiş ise, veya (b) ayrılma değeri için yapılan lehtar belirleme işlemi geri alınmış ve başka bir lehtar da belirlenmemiş ise, veya (c) ayrılma değeri için belirlenen lehtar ölmüş ve başka bir lehtar da belirlenmemiş ise ayrılma değerinin lehtarı sayılır. (3) Madde 17:102 Fıkra 2 ve Fıkra 4 ila 6 uygun düştüğü ölçüde uygulanır.

Madde 17:104 Devir veya Sınırlama (1) Bir lehtarın dönülemez biçimde belirlendiği hallerde, sigorta ettiren tarafından sigorta sözleşmesinin veya sigorta parası üzerindeki hakkın başkasına devri veya başkası lehine sınırlanması, lehtar yazılı olarak onam vermedikçe hükümsüzdür. (2) Sigorta parası üzerindeki hakkın lehtar tarafından başkasına devri veya başkası lehine sınırlanması, sigorta ettiren yazılı olarak onam vermedikçe hükümsüzdür.

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Madde 17:105 Mirasın Reddi Lehtar, ölen riziko kişisinin mirasçısı ise ve mirası reddetmişse; mirasın reddi olgusu tek başına, onun sigorta sözleşmesine ilişkin konumunu etkilemez.

İkinci Ayrım: Sözleşmenin Başlangıç Safhası ve Süresi Madde 17:201 Sigorta Yaptırmak İçin Başvuruda Bulunan Kişinin Sözleşme Öncesi Bilgi Verme Yükümlülüğü (1) Sigorta yaptırmak için başvuruda bulunan kişi tarafından Madde 2:101 Fıkra 1 uyarınca yapılması gereken bildirim, riziko kişisinin bildiği veya bilmesi gereken hususları da kapsar. (2) Madde 2:104 hariç olmak koşuluyla, Madde 2:102, 2:103 ve 2:105’te öngörülen sözleşme öncesi bilgilendirme yükümlülüğüne aykırılık hâline ilişkin yaptırımlar, ancak sözleşmenin yapılmasının üzerinden beş sene geçtikten sonra uygulanabilir.

Madde 17:202 Sigortacının Sözleşme Öncesi Bilgilendirme Yükümlülüğü (1) Sigortacı sigorta yaptırmak için başvuruda bulunan kişiyi, kazanca katılma hakkının var olup olmayacağı hususunda bilgilendirir. Bu bilginin ulaştığının, başvuru formundan ayrı bir belgede yer alan açık bir beyanla ikrar edilmiş olması lazımdır. (2) Sigortacı tarafından Madde 2:201 uyarınca verilecek olan belge aşağıdaki bilgileri kapsar: (a) Sigortacı hakkında: Sigortacının ödeme gücü ve mali durumuna ilişkin olarak her yıl yayınlanması zorunlu olan rapora özel gönderme; (b) Sigortacının sözleşmesel yükümlülükleri hakkında: (i) sigorta kapsamındaki her teminat ve her seçim olanağı hakkında açıklama (ii) primin sigorta kapsamındaki ana teminatlar ve varsa ek teminatlara karşılık gelen kısmı hakkında bilgi, (iii) hangi denetim hukukunun uygulanacağını da içerecek biçimde, ek getirilerin hesaplanma ve dağıtım yöntemleri, (iv) ayrılma değeri ile prim ödemeden bağışık sigorta değeri ve bunların hangi ölçüde garanti edildiği, (v) birime bağlanmış poliçelerde: Teminatların bağlandığı birimler ve bunların ilişkin bulunduğu malvarlığı unsurlarının türü hakkında açıklama, (vi) poliçeye uygulanacak vergiler hakkında genel bilgi. (3) Ek olarak, sigorta ettirenin sözleşme bağlamında aldığı risklerin gereği gibi anlaşılmasına yardımcı olmak üzere, özel bilgiler de verilir. (4) Sigortacı, sözleşme ile garanti ettiği ödemeleri aşan olası getirileri tutar olarak belirtirse, sigorta yaptırmak için başvuruda bulunan kişiye prim hesaplamasında esas alınan aktüarya ilkelerine uygun biçimde, üç ayrı faiz oranı üzerinden yapılmış ve vade tarihindeki olası getiriyi gösteren bir model hesaplama sunar. Ancak bu hüküm, sigortacının ödeme yükümlülüğünün kesin olmadığı rizikoları temin eden sigortalar ile birime bağlanmış poliçelerde uygulanmaz. Sigortacı, sigorta ettirene, açık ve anlaşılır biçimde, model hesaplamanın yalnızca varsayımsal kabullere dayanan bir model olduğunu ve sigorta sözleşmesinin olası getirileri garanti etmediğini belirtir.

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Madde 17:203 Cayma Süresi (1) Hayat sigortası sözleşmelerinde, Madde 2:303 Fıkra 1’de belirtilen cayma süresi, hangisi daha sonra ise, Madde 2:501 ve Madde 17:202’de sözü geçen belgelerin verilmesinden veya kabul açıklamasının ulaşmasından başlayarak bir aydır. (2) Sigorta ettirenin Madde 2:303 Fıkra 1 uyarınca sigorta sözleşmesinden cayma hakkı, sözleşmenin yapıldığı andan başlayarak bir yıl sonra son bulur.

Madde 17:204 Sigorta Ettirenin Sözleşmeyi Feshetme Hakkı (1) Sigorta ettiren dönüştürme değerine veya ayrılma değerine ulaşmış olmayan bir hayat sigortası sözleşmesini, yapılmasının üzerinden bir yıl geçmeden önce hüküm doğurmamak koşuluyla feshetme hakkına sahiptir. Sözleşme süresi sona ermeden feshetme hakkı, tek primin ödendiği hallerde devre dışı bırakılabilir. Fesih bildiriminin yazılı olarak yapılması gerekir. Fesih, sigortacıya fesih bildiriminin ulaştığı andan iki hafta sonra hüküm doğurmaya başlar. (2) Hayat sigortası sözleşmesinin dönüştürme değerine veya ayrılma değerine ulaşmış olması durumunda Madde 17:601 ila Madde 17:603 uygulanır.

Madde 17:205 Sigortacının Sözleşmeyi Feshetme Hakkı Sigortacı, hayat sigortası sözleşmesini ancak bu Bölümün öngördüğü ölçüde feshetme hakkına sahiptir.

Üçüncü Ayrım: Sözleşme Süresi İçindeki Değişiklikler Madde 17:301 Sigortacının Sözleşme Sonrası Bilgilendirme Yükümlülüğü (1) Sigortacı, uygulanabilir olan hâllerde, sigorta ettirene her yıl, poliçede öngörülen ek getirilerin o anki değerini yazılı olarak bildirir. (2) Sigortacı, Madde 2:701’de sayılanlara ek olarak, sigorta ettireni gecikmeksizin aşağıdaki değişiklikler hakkında da bilgilendirir: (a) Genel ve özel poliçe koşulları, (b) ASSHİ’nin değiştirilmesi veya poliçe koşullarında değişiklik yapılması hâlinde: Madde 2:201 bent (f) ve (g) ile Madde 17:202 Fıkra 2 bent (b) (i) ila (v)’teki bilgiler. (3) Madde 17:202 Fıkra 4, olası getirilerin tutarı hakkındaki tahminlerin sözleşme süresi içinde herhangi bir anda paylaşılması hâlinde de uygulanır. Sigortacının sözleşme yapılmadan önce veya yapıldıktan sonra kazanca katılmanın göstereceği gelişme hakkında tahmin sunmuş olduğu hâllerde, sigortacı başlangıçtaki verilerle fiili gelişme arasındaki farkları sigorta ettirene bildirir.

Madde 17:302 Riziko Ağırlaşması Hayat sigortası sözleşmesinde, yaşın veya sağlık durumundaki kötüleşmenin Madde 4.201 anlamında bir riziko ağırlaşması oluşturacağını öngören hükümler, Madde 2:304 uygulamasında haksız sözleşme koşulu sayılır.

Madde 17:303 Primin ve Ödenecek Getirilerin Ayarlanması (1) Sigortacının kesin olarak sorumlu olacağı rizikoları temin eden bir hayat sigortası sözleşmesinde, sigortacı ayarlama yapmak hakkına ancak Fıkra 2 ve 3 uyarınca sahip olur. (2) Prim artırımı ancak primin hesaplanmasında esas alınan biometrik rizikolarda önceden görülemeyen ve sürekli nitelik taşıyan bir değişiklik meydana gelmesi; prim artışının, sigortacının

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sigorta ile temin edilen getirileri ödeme yeteneğinin sürekliliğini sağlama bakımından gerekli olması ve primin artırılmasının bağımsız bir malvarlığı yöneticisi veya kamu makamı tarafından kabul edilmesi hâllerinde yapılabilir. Sigorta ettiren, primin artırılan kısmının sigorta ile temin edilen getirilerden yapılacak uygun bir indirime mahsup edilmesini isteyebilir. (3) Sigortacı, prim ödemeden bağışık poliçelerde sigorta ile temin edilen getirileri Fıkra 2’de belirtilen koşullar çerçevesinde indirebilir. (4) Fıkra 2 veya Fıkra 3 uyarınca ayarlama (a) prim ve/veya sigorta ile temin edilen getirilerin hesaplanmasında uzman ve özenli bir aktüerin farkına varmış olması gereken bir hata yapıldığı, veya (b) ayarlamaya dayanak oluşturan hesaplamanın ayarlamadan sonra kurulanlar dahil bütün sözleşmelere uygulanmadığı hâllerde mümkün değildir. (5) Prim artışı veya sigorta ile temin edilen getirilerden yapılacak indirim, sigortacının sigorta ettirene sebepleriyle birlikte prim artırımını veya getirilerden yapılacak indirimi ve sigorta ettirenin kendisinin de bu getirilerin indirilmesini isteme hakkı bulunduğunu yazılı olarak bildirdiği andan üç ay sonra hüküm doğurmaya başlar. (6) Sigortacının kesin olarak sorumlu olacağı rizikoları temin eden bir hayat sigortası sözleşmesinde; başlangıçtaki prim tutarının, primin hesaplanmasında esas alınan biometrik rizikolarda önceden görülemeyen ve sürekli nitelik taşıyan bir değişme sebebiyle, sigortacının sigorta ile temin edilen getirileri ödeme yeteneğinin sürekliliğini sağlama bakımından artık uygun ve gerekli olmadığı hâllerde, sigorta ettiren primin indirilmesini isteyebilir. İndirimin kamu makamı veya bağımsız bir malvarlığı yöneticisi tarafından kabul edilmiş olması lazımdır. (7) Bu maddede hükme bağlanan haklar, sözleşmenin kurulması üzerinden beş sene geçmiş olmadıkça kullanılamaz.

Madde 17:304 Sözleşme Hüküm ve Koşullarının Değiştirilmesi (1) Sigortacıya prim ve sigorta ile temin edilen getiriler dışındaki hüküm ve koşulları değiştirme hakkı veren hükümler, değişikliğin (a) kamu makamı tarafından alınan uyulması zorunlu önlemler de dahil olmak üzere, denetim hukukunda yapılan değişikliklere uyum sağlama, veya (b) işveren emeklilik planları hakkındaki emredici ulusal hükümlerde yapılan değişikliklere uyum sağlama, (c) ulusal hukukun özel vergi avantajlarından veya devlet katkılarından yararlanmak için hayat sigortası sözleşmesi hakkında öngördüğü koşullarda yapılan değişikliklere uyum sağlama, (d) bir sözleşme koşulunun Madde 2:304 Fıkra 2 cümle 2 uyarınca değiştirilmesi sebebiyle gerçekleştirilmesi dışında, geçersizdir. (2) Değişiklik, sigorta ettirenin değişiklik ve sebepleri konusunda bilgilendirilmesine yönelik yazılı bildirimin sigorta ettirene ulaşmasını izleyen üçüncü ayın başlangıcından itibaren hüküm doğurur. (3) Fıkra 1, değişiklik öngören hükümlerin geçerliği için aranan diğer koşullar saklı kalmak kaydıyla uygulanır.

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Dördüncü Ayrım: Ulusal Hukuklarla İlişki Madde 17:401 Emeklilik Planları Bir emeklilik planıyla ilgili bulunan hayat sigortası sözleşmesi, yetkili ulusal hukukun emeklilik planları hakkındaki emredici kurallarına tabidir. ASSHİ ancak bu hükümlerle uyumlu olduğu ölçüde uygulanır.

Madde 17:402 Vergi Avantajları ve Devlet Katkıları ASSHİ, ulusal hukukların hayat sigortası sözleşmesinin özel vergi avantajlarından veya Devlet katkısından yararlandırılması için öngördüğü koşullarla ilgili hükümlerini etkilemez. Uygulanması söz konusu olan ulusal hukukun öngördüğü koşullarla ASSHİ arasında çatışma bulunması durumunda, ASSHİ’ye aykırı anlaşma yapılabilir.

Beşinci Ayrım: Sigortalanmış Olay Madde 17:501 Sigortacının Araştırma ve Bilgilendirme Yükümlülüğü (1) Sigortacı, sigortalanmış olayın gerçekleşmiş olabileceğine inanmasını gerektiren sebepler var olduğunda, bunu kesinleştirmek için makul girişimlerde bulunur. (2) Sigortalanmış olayın gerçekleşmiş olduğunu öğrenen sigortacı, lehtarın kimliğini ve adresini saptamak ve bu kişiyi bilgilendirmek için var olan koşullar çerçevesinde elinden gelen çabayı gösterir. Söz konusu bilgilendirme, sigortacının lehtarın kimlik ve adresini öğrendiği andan başlayarak en geç 30 gün içinde yapılır. (3) Sigortacı Fıkra 1 veya 2’ye aykırı davranırsa, lehtarın istemi hakkında zamanaşımı, onun hak sahibi olduğunu öğrendiği ana kadar durur.

Madde 17:502 İntihar (1) Riziko kişisi, sözleşmenin kurulduğu anı izleyen bir sene içinde intihar ederse, sigortacı sigorta parasını ödeme sorumluluğundan kurtulur. Bu hâlde sigortacı, ayrılma değerini ve varsa Madde 17:602 uyarınca söz konusu olan kazanç tutarını öder. (2) Fıkra 1 hükmü (a) riziko kişisi intihar sırasında, ayırt etme gücünü ortadan kaldıran bir ruh hali ile davranmışsa; (b) riziko kişisinin sözleşmenin yapıldığı sırada intihar etme niyetine sahip olmadığı herhangi bir kuşkuya yer bırakmayacak bir biçimde kanıtlanmışsa uygulanmaz.

Madde 17:503 Riziko Kişisini Kasten Öldürme (1) Lehtar riziko kişisini kasten öldürürse, kendisinin lehtar olarak belirlenmesine ilişkin işlem geri alınmış sayılır. (2) Sigorta parasına ilişkin istemin devri, devralan kimse riziko kişisini kasten öldürürse hükümsüzdür. (3) Aynı zamanda lehtar olan sigorta ettiren riziko kişisini kasten öldürürse sigorta parası ödenmez. (4) Riziko kişisini öldüren lehtar veya sigorta ettirenin bu eylemi, haklı savunma hâlinde olduğu gibi, hukuka aykırı sayılmıyorsa bu Madde hükmü uygulanmaz.

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Altıncı Ayrım: Dönüştürme ve Ayrılma Madde 17:601 Sözleşmenin Dönüştürülmesi (1) Madde 5:103, dönüştürme değerine veya ayrılma değerine ulaşan hayat sigortası sözleşmelerine uygulanmaz. Bu sözleşmeler, sigorta ettirenin Fıkra 2’de sözü geçen bilginin kendisine ulaşmasını izleyen dört hafta içinde ayrılma değerinin ödenmesini istemesi hâli dışında, prim ödemeden bağışık sigortaya dönüştürülür. (2) Sigortacı, dönüştürme değerini ve ayrılma değerini, Madde 5:101(b) veya Madde 5:102 Fıkra 1(b)’de belirtilen sürenin bitimini izleyen dört hafta içinde sigorta ettirene bildirir ve sigorta ettirenden dönüştürme ile ayrılma değerinin ödenmesi arasında seçim yapmasını ister. (3) Dönüştürme veya ayrılma değerinin ödenmesi istemi yazılı olarak yapılır.

Madde 17:602 Sigortadan Ayrılma (1) Sigorta ettiren, sigorta sözleşmesinin yapılmasından en erken bir yıl sonra hüküm doğurması koşuluyla, poliçenin ulaştığı ayrılma değerinin tamamen veya kısmen ödemesini sigortacıdan yazılı olarak her zaman isteyebilir. Sözleşme bu istem doğrultusunda ayarlamaya konu olur veya sona erer. (2) Madde 17:601 hükmü saklı kalmak kaydıyla, ayrılma değerine ulaşmış olan bir hayat sigortası sözleşmesi sigortacı tarafından fesih veya iptal edilir veya ondan cayılırsa, Madde 2:104’te belirtilen hâlde dahi sigortacı ayrılma değerini ödeme borcu altına girer. (3) Sigortacı, istemi üzerine ve her hâlde her yıl sigorta ettireni ayrılma değerinin o anki tutarı ve bunun ne kadarının garanti edilmiş olduğu hususunda bilgilendirir. (4) Sigorta ettirenin hak kazanmış olduğu kazanç payı, ayrılma değeri belirlenirken hesaba katılmış olmadıkça, ayrılma değerine ek olarak ödenir. (5) Bu madde uyarınca ödenmesi gereken tutarlar, sigorta ettirenin isteminin sigortacıya ulaştığı andan başlayarak en geç iki ay içinde ödenir.

Madde 17:603 Dönüştürme Değeri; Ayrılma Değeri (1) Sigorta sözleşmesinde, dönüştürme değerinin ve/veya ayrılma değerinin hesaplanma yöntemi sigortacının kayıtlı olduğu Üye Devletin hukukuna uygun biçimde belirtilir. Dönüştürme değerinin ve/veya ayrılma değerinin hesaplanma yöntemi yerleşmiş aktüarya ilkelerine ve Fıkra 2’ye uygun olmak zorundadır. (2) Sigortacı sözleşme kurma maliyetini, eşit tutarlar olarak ve beş senelik bir zaman dilimine yayarak indirebilir. (3) Sigortacı, ayrılma değerine ilişkin hesaplamaya evvelce dahil edilmiş olmamak koşuluyla, yerleşmiş aktüarya ilkeleri uyarınca hesaplanan uygun bir tutarı, ayrılma değerinin ödenmesine ilişkin maliyet karşılığı olarak indirmek hakkına sahiptir.

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Altıncı Kısım: Grup Sigortası On Sekizinci Bölüm: Grup Sigortası Hakkında Özel Hükümler Birinci Ayrım: Genel Olarak Grup Sigortası Madde 18:101 Uygulanabilirlik Grup sigortası sözleşmeleri, grubu örgütleyen kişi ve sigortacının Madde 1:102’ye uygun olarak anlaşma yapmış olmaları koşuluyla ASSHİ’ye tabidir. Grup sigortası ya otomatik grup sigortası niteliğini taşır ve bu Bölümün İkinci Ayrımına tabi olur; ya da seçime bağlı grup sigortası niteliğini taşır ve bu Bölümün Üçüncü Ayrımına tabi olur.

Madde 18:102 Grubu Örgütleyen Kişinin Genel Özen Yükümlülüğü (1) Grubu örgütleyen kişi, grup sigortası sözleşmesinin görüşülmesi ve ifasında, grup üyesinin hukuka uygun çıkarlarını göz önünde tutarak özenli ve iyi niyetli davranır. (2) Grubu örgütleyen kişi, sigortacının grup üyelerine yönelik bildirimlerini onlara iletir ve sözleşmede yapılan değişiklikler hakkında onları bilgilendirir.

İkinci Ayrım: Otomatik Grup Sigortası Madde 18:201 ASSHİ’nin Uygulanması Gerektiğinde ASSHİ otomatik grup sigortasına uygun düştüğü ölçüde uygulanır.

Madde 18:202 Bilgilendirme Yükümlülüğü (1) Bir grup üyesi gruba katıldığında, grubu örgütleyen kişi, bu üyeyi gecikmeksizin (a) sigorta sözleşmesinin varlığı, (b) sigorta teminatının kapsamı, (c) koruyucu önlemler ve sigorta teminatından yararlanmanın diğer koşulları, (d) hasar istemlerine ilişkin yöntem konularında bilgilendirir. (2) Grup üyesine Fıkra 1’de öngörülen bilgilendirmenin yapıldığını kanıtlama yükü grubu örgütleyen kişiye aittir.

Madde 18:203 Sigortacının Sözleşmeyi Feshetmesi (1) Madde 2:604 uygulamasında sigortacının sözleşmeyi feshetme hakkı ancak feshin sonucunun sigortalanmış olaya maruz kalan grup üyesinin sigorta teminatı kapsamı dışında kalmasıyla sınırlı ise makul sayılır. (2) Madde 4:102 ve Madde 4:203 Fıkra 1 uygulamasında, sigortacı tarafından fesih hakkının kullanılması duruma göre yalnızca gereken koruyucu önlemi almamış veya riziko ağırlaşmasına konu olmuş bulunan grup üyelerinin sigorta teminatı dışında bırakılması sonucunu doğurur. (3) Madde 12:102 uygulamasında, sigorta sözleşmesinin feshedilmiş sayılması, yalnızca sigortalı malvarlığı unsuru üzerindeki mülkiyet hakkını devretmiş olan grup üyelerinin sigorta teminatı dışında kalmaları sonucunu doğurur.

859

Principles of European Insurance Contract Law (PEICL): Translations (non-authentic)

Madde 18:204 Sigorta Teminatını Sürdürme Hakkı- Grup Hayat Sigortası (1) Bir otomatik grup hayat sigortası feshedilmiş olduğu veya grup üyesi gruptan ayrılmış bulunduğu takdirde, sigorta teminatı hangisi ilk önce gerçekleşirse üç ay sonra veya grup hayat sigortasının süresi bitince sona erer. Bu hâlde, grup üyesi, yeniden risk değerlendirmesi yapılmaksızın, aynı sigortacıdan yeni bir bireysel sözleşme çerçevesinde eşdeğer bir sigorta teminatı elde etme hakkına sahip olur. (2) Grubu örgütleyen kişi grup üyesini (a) grup hayat sigortası çerçevesindeki sigorta teminatının son bulmak üzere olduğu, (b) grup üyesinin Fıkra 1 uyarınca sahip bulunduğu hakları, ve (c) bu hakların nasıl kullanılacağı hususlarında yazılı olarak gecikmeksizin bilgilendirir. (3) Grup üyesi Madde 18:204 Fıkra 1 uyarınca sahip bulunduğu hakkı kullanma niyetini açıkladığı takdirde, sigortacı ile grup üyesi arasındaki sözleşme, grup üyesinin mevcut sağlık durumu veya yaşı dikkate alınmaksızın, o tarihteki bir bireysel sigorta poliçesi için hesaplanan prim tutarı üzerinden, bireysel bir sigorta sözleşmesi olarak sürer.

Üçüncü Ayrım: Seçime Bağlı Grup Sigortası Madde 18:301 Seçime Bağlı Grup Sigortası: Genel Olarak (1) Seçime bağlı grup sigortası, grubu örgütleyen kişi ile sigortacı arasındaki çerçeve sözleşme ile bu çerçeve sözleşme kapsamında grup üyeleri ile sigortacı arasında yapılan bireysel sigorta sözleşmelerinin birleşimidir. (2) ASSHİ, grubu örgütleyen kişi ile sigortacının kararlaştırmaları hâlinde, bireysel sigorta sözleşmeleri hakkında uygulanır. ASSHİ, Madde 18:101 ve 18:102 hükümleri dışında, çerçeve sözleşmeye uygulanmaz.

Madde 18:302 Sözleşme Hüküm ve Koşullarının Değiştirilmesi Çerçeve sözleşmenin hüküm ve koşullarındaki değişiklikler, bireysel sigorta sözleşmelerini ancak bu değişikliklerin duruma göre Madde 2:603, 17:303 ve 17:304 hükümlerine uygunluğu sağlamak amacıyla yapılmış olması durumunda etkiler.

Madde 18:303 Sigorta Teminatının Sürmesi Çerçeve sözleşmenin son bulması veya grubun bireysel üyelerinden birinin grup üyeliğinin sona ermesi, sigortacı ile bu grup üyesi arasındaki sigorta sözleşmesi üzerinde herhangi bir etki meydana getirmez.

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Annexes

Abbreviations AC, App Cas Ad & El All ER All ER (Comm)

Appeal Cases Adolphus & Ellis’ Queen’s Bench Reports All England Law Reports All England Law Reports (Commercial Cases)

BG BGB BGBl. BGE BGH BGHZ Bull. Civ. Burr

Bundesgericht Bürgerliches Gesetzbuch Bundesgesetzblatt Entscheidungen des Schweizerischen Bundesgerichts (1876 ff.) Bundesgerichtshof Entscheidungen des Bundesgerichtshofs in Zivilsachen Bulletin des Arrêts de la Chambre Civile de la Cour de Cassation Burrow’s King’s Bench Reports

CA Cass. Cass. civ. Cass. civ. 1er CC CEA cert den CESL CFR Ch Ch. Ch D CISG CLC Co COM ComC CoPECL Cowp

Court of Appeal Cour de cassation (Belgium, France, Italy, Luxembourg) Cour de Cassation civile Cour de Cassation, Première chambre civile Civil Code Comité Européen des Assurances certiorari denied Common European Sales Law Common Frame of Reference Law Reports, Chancery Division (3rd Series) Chapter Law Reports, Chancery Division (2nd Series) United Nations Convention on Contracts for the International Sale of Goods CCH Commercial Law Cases Company Commission proposal Commercial Code Common Principles of European Contract Law Cowper’s King’s Bench Reports

DC Doc. DP

District of Columbia Document Dalloz périodique

E&B EC ECR ed. edn eds. EEC EEIG EESC EGBGB EIOPA

Ellis & Blackburn’s Queen’s Bench Reports European Community/EC Treaty European Court Report editor edition editors European Economic Community European Economic Interest Grouping European Economic and Social Committee Einführungsgesetz zum Bürgerlichen Gesetzbuch European Insurance and Occupational Pensions Authority

863

Annexes

EP EU EWCA Civ EWHC number (Comm) Exch

European Parliament European Union Court of Appeal (Civil Division) High Court, Commercial Court Exchequer Reports

FCA Foro it.

Financial Conduct Authority Il Foro Italiano

HL

House of Lords

IA ICA ICOBS IDD

Insurance Act Insurance Contract Act Insurance Conduct of Business Sourcebook Proposal for a Directive of the European Parliament and of the Council on insurance mediation (recast) – Confirmation of the final compromise text with a view to agreement, Doc. No. 10747 / 15 of 16 July 2015, Interinstitutional File: 2012 / 0175 (COD) Insurance Irish Reports Insurance Supervisory Act Instituto per la vigilanza sulle assicurazioni private e di interesse colletivo

Ins IR ISA ISVAP KB

Law Reports, King’s Bench

LJKB Lloyd’s Rep Lloyd’s Rep IR Lloyd’s Rep, Ll. L. R. LR LT LTC

Law Journal Reports, King’s Bench New Series Lloyd’s Law Reports Lloyd’s Law Reports Insurance & Reinsurance Lloyd’s List Law Reports Law Reports (1st series) Law Times Reports Long-term care

M&G MiFID2

Manning & Granger’s Common Pleas Reports Directive 2014 / 65 / EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002 / 92 / EC and Directive 2011 / 61 / EU (Text with EEA relevance) [2014] OJ L173 / 349

No., no. NoB

number Nomiko Bima (Greece)

OG OGH OI OJ OLG OR

Obergericht (Switzerland) Oberster Gerichtshof (Austria) Optional Instrument Official Journal of the European Communities Oberlandesgericht (Austria, Germany) Obligationsrecht

PECL PEICL PHI PRIIP

Principles of European Contract Law Principles of European Insurance Contract Law permanent health insurance Regulation (EU) No. 1286 / 2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIP) [2014] OJ L352 / 1

864

Abbreviations

QB QBD

Queen’s Bench Division (1891-) Law Reports Queen’s Bench Division (1875-1890) Law Reports

RCA RGAT RGDA

Responsabilité civile et assurances Revue Générale des Assurances Terrestres Revue General du Droit des Assurances

S. S.I. SE Soc SVA

Seite Statutory Instrument Societas Europaea Society Entscheidungen Schweizerischer Gerichte in privaten Versicherungsstreitigkeiten Sammlung der Entscheidungen des Österreichischen Obersten Gerichtshofes in Zivil- und Justizverwaltungssachen

SZ TFEU TLR TR

Treaty on the Functioning of the European Union Times Law Reports Taxation Reports

UK

United Kingdom

UKHL UNCITRAL UNIDROIT UNTS US

United Kingdom House of Lords United Nations Commission on International Trade Law Institut international pour l’unification du droit = International Institute for the Unification of Private Law United Nations Treaty Series United States

VersVG Ves Snr vol. vols. VVG

Versicherungsvertragsgesetz (Austria) Vesey Senior’s Chancery Reports volume volumes Versicherungsvertragsgesetz (Germany, Switzerland)

WLR

Weekly Law Reports

865

Table of National Statutes (including draft legislation and like sources) Austria CC – Allgemeines bürgerliches Gesetzbuch, JGS Nr. 946/1811, as amended Consumer Protection Act – Bundesgesetz vom 8. März 1979, mit dem Bestimmungen zum Schutz der Verbraucher getroffen werden (Konsumentenschutzgesetz – KSchG), BGBl. Nr. 140/1979, as amended ICA – Bundesgesetz vom 2. Dezember 1958 über den Versicherungsvertrag (Versicherungsvertragsgesetz 1958), BGBl. Nr. 2/1959, as amended Income Tax Act – Bundesgesetz vom 7. Juli 1988 über die Besteuerung des Einkommens natürlicher Personen (Einkommensteuergesetz 1988 – EStG 1988), BGBl. Nr. 400/1988 ISA – Bundesgesetz vom 18. Oktober 1978 über den Betrieb und die Beaufsichtigung der Vertragsversicherung (Versicherungsaufsichtsgesetz – VAG), BGBl. Nr. 569/1978, as amended Law on Genetic Engineering – Bundesgesetz, mit dem Arbeiten mit gentechnisch veränderten Organismen, das Freisetzen und Inverkehrbringen von gentechnisch veränderten Organismen und die Anwendung von Genanalyse und Gentherapie am Menschen geregelt werden (Gentechnikgesetz – GTG), BGBl. Nr. 510/1994, as amended Motor Insurance Act – Kraftfahrzeug-Haftpflichtversicherungsgesetz 1994 (KHVG 1994), BGBl. Nr. 651/1994, as amended Occupational Pensions Act – Bundesgesetz vom 17. Mai 1990, mit dem betriebliche Leistungszusagen gesichert werden (Betriebspensionsgesetz – BPG), BGBl. Nr. 282/1990, as amended

Belgium Act of 6 April 2010 on Market Practices and Consumer Information and Protection – Wet van 6 april 2010 betreffende marktpraktijken en consumentenbescherming (Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur) Code of Economic Law – Wetboek van economisch recht (Code de droit économique) ComC, Book II – Wet van 21 augustus 1879 houdende Boek II Zee- en Binnenvaart van het Wetboek van Koophandel (Loi du 21 août 1879 contenant le Livre II du Code de Commerce. De la navigation maritime et de la navigation intérieure) IA 2014 – Wet van 4 april 2014 betreffende de verzekeringen (Loi du 4 avril 2014 relative aux assurances) ICA – Wet van 25 juni 1992 op de landverzekeringsovereenkomst (Loi du 25 juin 1992 sur le contrat d’assurance terrestre) ISA – Wet van 9 juli 1975 betreffende de controle der verzekeringsondernemingen (Loi du 9 juillet 1975 relative au contrôle des entreprises d´assurances) Law of 26 May 2002 on Intra-Community Injunctions for the Protection of Consumers’ Interests – Wet van 26 mei 2002 betreffende de intracommunautaire vorderingen tot staking op het gebied van de bescherming van de consumentenbelangen. (Loi du 26 mai 2002 relative aux actions en cessation intracommunautaires en matière de protection des intérêts des consommateurs) Royal Decree of 12 October 1990 on Legal Expenses Insurance – Koninklijk besluit van 12 oktober 1990 betreffende de rechtsbijstandverzekering (Arrêté royal du 12 octobre 1990 relatif à l´assurance protection juridique)

866

Table of National Statutes

Royal Decree of 14 November 2003 on Life Assurance – Koninklijk besluit van 14 november 2003 betreffende de levensverzekeringsactiviteit (Arreté royal du 14 novembre 2003 relatif à l´activité d´assurance sur la vie) Royal Decree of 22 February 1991 on Insurance Supervision – Koninklijk besluit van 22 februari 1991 houdende het algemeen reglement betreffende de controle der verzekeringsondernemingen (Arrêté royal du 22 février 1991 portant règlement général relative au contrôle des entreprises d´assurances) Royal Decree of 24 December 1992 implementing the ICA – Koninklijk besluit van 24 december 1992 tot uitvoering van de wet van 25 juni 1992 op de landverzekeringsovereenkomst (Arrêté royal du 24 décembre 1992 portant exécution de la loi du 25 juin 1992 sur le contrat d´assurance terrestre) Royal Decree of 24 December 1992 on Fire Insurance of Normal Risks – Koninklijk besluit van 24 december 1992 betreffende de verzekering tegen brand en andere gevaren wat de eenvoudige risico´s betreft (Arrêté royal du 24 décembre 1992 réglementant l´assurance contre l´incendie et d´autres périls, en ce qui concerne les risques simples) Royal Decree of 21 February 2014 – Koninklijk besluit van 21 februari 2014 inzake de krachtens de wet vastgestelde gedragsregels en regels over het beheer van belangenconflicten, wat de verzekeringssector betreft (Arrêté royal du 21 février 2014 relatif aux règles de conduite et aux règles relatives à la gestion des conflits d’intérêts, fixées en vertu de la loi, en ce qui concerne le secteur des assurances) Royal Decree of 21 February 2014 – Koninklijk besluit van 21 februari 2014 over de regels voor detoepassing van de artikelen 27 tot 28bisvan de wet van 2 augustus 2002 betreffende het toezicht op definanciële sector en definanciële diensten op de verzekeringssector (Arrêté royal du 21 février 2014 relatif aux modalités d’application au secteur des assurances des articles 27 à 28bis de la loi du 2 août 2002 relative à la surveillance du secteur financier et aux services financiers) Law of 2 August 2002 on the supervision of the financial sector and on financial services – Wet van 2 augustus 2002 betreffende het toezicht op de financiële sector en de financiële diensten (Loi du 2aout 2002 relative à la surveillance du secteur financier et aux services financiers)

Czech Republic Zákon č. 89 / 2012 Sb., občanský zákoník (Act No. 89 / 2012 Coll., Civil Code) ICA – Zákon č. 37/2004 Sb., o pojistné smlouvě a o změně souvisejících zákonů (zákon o pojistné smlouvě) (Act No. 37/2004 Coll. on Insurance Contract and on Amendments to Related Acts) Repealed by the Civil Code to the extent of Part One and Part Two of the ICA. Insurance contracts concluded before 1 / 1 / 2014 are governed by the ICA.

Denmark Contract Act – Aftaleloven, Bekendtgørelse af lov om aftaler og andre retshandler på formuerettens område, as amended ICA – Lov (LBK) nr. 999 af 5. oktober 2006 (Forsikringsaftaleloven) Act No. 1257 of 20 December 2000 on the Protection of the Consumers’ Interests – Lov nr. 1257 af 20. december 2000 om forbud til beskyttelse af forbrugernes interesser Act No. 451 of 9 June 2004 on Certain Consumer Contracts – Lov nr. 451 af 09. juni 2004 om visse forbrugeraftaler

Finland Act regulating the procedure for cross-border injunctions (1189/2000) – Laki rajat ylittävästä kieltomenettelystä (1189/2000) Consumer Protection Act (38/1978) – Kuluttajansuojalaki (38/1978), as amended ICA – Vakuutussopimuslaki (543/1994), as amended

867

Annexes

Income Tax Act (1535/1992) – tuloverolaki (1535/1992) Insurance Mediation Act (570/2005) – Laki vakuutusedustuksesta (570/2005) Ministry of Justice Decree on Information to be provided on Life Insurance (177/2011) – oikeusministeriön asetus henkivakuutuksesta annettavista tiedoista (177/2011)

France CC – Code civil, as amended Consumer Code – Code de la consommation, as amended ICA – Codes des assurances: le contrat, as amended

Germany CC – Bürgerliches Gesetzbuch (BGBl. I S. 42, 2909; 2003 I S. 738), as amended Former German ICA – Gesetz über den Versicherungsvertrag vom 30. Mai 1908 (RGBl. S. 263), as amended, now repealed Code of Procedure for the Insurance Ombudsman – Verfahrensordnung für den Versicherungsombudsmann (VomVO), beschlossen am 28.9. 2001 vom Vorstand des Versicherungsombudsmann e.V. ICA – Versicherungsvertragsgesetz vom 23. November 2007 (BGBl. I S. 2631), as amended Injunctions Act – Unterlassungsklagengesetz in der Fassung der Bekanntmachung vom 27. August 2002 (BGBl. I S. 3422, S. 4346), as amended Income Tax Act – Einkommensteuergesetz (EStG) neugefasst durch B. v. 08.10.2009 BGBl. I S. 3366, 3862; zuletzt geändert durch Artikel 3 G. v. 25.07.2014 BGBl. I S. 1266; Geltung ab 30.06.1979 ISA 2016 – Gesetz über die Beaufsichtigung der Versicherungsunternehmen (Versicherungsaufsichtsgesetz – VAG) vom 1. April 2015 (BGBl. I S. 434) Genetic Diagnostics Act – Gesetz über genetische Untersuchungen bei Menschen (Gendiagnostikgesetz – GenDG) G. v. 31.07.2009 BGBl. I S. 2529 (Nr. 50), 3672; zuletzt geändert durch Artikel 4 G. v. 07.08.2013 BGBl. I S. 3154; Geltung ab 01.02.2010 Company Pension Act – Betriebsrentengesetz (BetrAVG) – Gesetz zur Verbesserung der betrieblichen Altersversorgung G. v. 19.12.1974 BGBl. I S. 3610; zuletzt geändert durch Artikel 3 G. v. 23.06.2014 BGBl. I S. 787; Geltung ab 22.12.1974 Act on the Certification of Retirement and Basic Pension Plans – Gesetz über die Zertifizierung von Altersvorsorge- und Basisrentenverträgen (Altersvorsorgeverträge-Zertifizierungsgesetz – AltZertG) Artikel 7 G. v. 26.06.2001 BGBl. I S. 1310, 1322; zuletzt geändert durch Artikel 15 G. v. 25.07.2014 BGBl. I S. 1266; Geltung ab 01.08.2001 Regulation on Duties of Information Relating to Insurance Contracts of 18 December 2007 – VVG-Informationspflichtenverordnung vom 18. Dezember 2007 (BGBl. I S. 3004)

Greece CC – Αστικός Κώδικας, Προεδρικό Διάταγμα 456/1984, ΦΕΚ Α’ 164/1984 (Greek Civil Code, Presidential Decree No. 456/1984, Official Government Gazette, A’ 164/1984) Code on Motor Liability Insurance – Κωδικοποιημένος Νόμος 489/1976 «Περί υποχρεωτικής ασφαλίσεως εξ ατυχημάτων αυτοκινήτων αστικής ευθύνης», ΦΕΚ Α 331/1976: Code on Motor Liability Insurance, Law No. 489/1976 “On Motor Liability Insurance”, Official Government Gazette, Α΄ 331/1976 Code on Private Maritime Law – Κώδικας ιδιωτικού Ναυτικού Δικαίου, Νόμος 3816/1958 «Περί κυρώσεως του κώδικος ιδιωτικού ναυτικού δικαίου» ΦΕΚ A’ 32/28.02.1958 (Greek Code on Private Maritime Law, Law No 3816/1958 “On Certifying the Private Code on Maritime Law”, Official Government Gazette, A’ 32/28.02.1958)

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ICA – Νόμος 2496/1997 «Νόμος για την Ασφαλιστική Σύμβαση», ΦΕΚ A’ 87/16.05.1997 (Greek Law No. 2496/1997 “on Insurance Contract Law”, Official Government Gazette, A’ 87/16.05.1997) Law on Consumer Protection – Νόμος 2251/1994 «Προστασία των καταναλωτών» (Greek Law No. 2251/94, “On Consumer Protection”, Official Government Gazette, A’ 191/16.11.1994) Law on Income Tax – Νόμος 4172/2013 «Κώδικας Φορολογίας Εισοδήματος» (Greek Law No. 4172/2013, «On Income Tax», Official Government Gazette, A› 167/23.7.2013) Law on Agency in Private Insurance Contracts – Νόμος 1569/1985 «Διαμεσολάβηση στις συμβάσεις ιδιωτικής ασφάλισης, σύσταστη σώματος ειδικών πραγματογνωμόνων τροχαίων ατυχημάτων, λειτουργία γραφείου διεθνούς ασφάλισης και άλλες διατάξεις» ΦΕΚ A’ 183/25.10.1985 (Greek Law No. 1569/1985, “on Agency in Private Insurance Contracts”, Official Government Gazette, A’ 183/25.10.1985) Legislative Decree on Insurance Undertakings – Νομοθετικό Διάταγμα 400/1970 «Περί ιδιωτικής επιχειρήσεως ασφαλίσεως» ΦΕΚ Α’ 10/17.01.1970 (Greek Legislative Decree No. 400/1970 “On private insurance undertakings”, as amended, Official Government Gazette, A’ 10/17.01.1970) Presidential Decree No. 190/2006 – Προεδρικό Διάταγμα 190/2006 «Προσαρμογή της ελληνικής νομοθεσίας στην Οδηγία 2002/92/ΕΚ σχετικά με την ασφαλιστική διαμεσολάβηση», ΦΕΚ Α’ 196/14.09.2006: Greek Presidential Decree No. 190/2006 “On Insurance Intermediaries” implementing Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation, Official Government Gazette, A’ 196/14.09.2006 Presidential Decree No. 301/2002 – Προεδρικό Διάταγμα 301/2002 «Προσαρμογή της ελληνικής νομοθεσίας προς τις διατάξεις της οδηγίας 98/27/ΕΚ του Ευρωπαϊκού Κοινοβουλίου και του Συμβουλίου της 19ης Μαίου 1998 «περί των αγωγών παραλείψεως στον τομέα της προστασίας των συμφερόντων των καταναλωτών» (ΕΕ αριθ. L 166 της 11/06/1998, σ. 51-55) και τροποποίηση του Νόμου 2251/1994 για την “Προστασία των καταναλωτών”» ΦΕΚ, A 301/04.11.2002 (Greek Presidential Decree No. 301/2002 “On implementing Directive 98/27 of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests and amending law 3351/1994 “On Consumer Protection”, Official Government Gazette, A’ 301/04.11.2002)

Hungary CC – 2013 évi V. törvény a Polgári Törvénykönyvről (Law no. V of 2013 on the Civil Code) Law on Motor Liability Insurance– 2009 évi LXII. törvény a kötelező gépjármű-felelősségbiztosításról (Law no. LXII of 2009 on the Compulsory Motor Third-Party Liability Insurance)

Ireland Codes of Practice of the Irish Insurance Federation European Communities (Non-Life Insurance) (Legal Expenses) Regulations 1991 – European Communities (Non-Life Insurance) (Legal Expenses) Regulations, 1991 (S.I. No. 197/1991) European Communities (Protection of Consumers’ Collective Interests) Regulations 2001 – European Communities (Protection of Consumers’ Collective Interests) Regulations, 2001 (S.I. No. 449 of 2001) European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 – European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (S.I. No. 27/1995) Insurance Act 1989 – Insurance Act, 1989 Statute of Limitations 1957 – Statute of Limitations, 1957

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Italy CC – Codice Civile Italiano Code of Navigation – Codice della navigazione Code of Private Insurance – Decreto legislativo 7 settembre 2005, n. 209 – Codice delle assicurazioni private Consumer Code – Codice del consumo Decree of 28 August 2008 – Decreto legge 28 agosto 2008 n. 134 ISVAP Regulation No. 5/2006 – Regolamento ISVAP n. 5/2006 Law of 23 July 2009, no. 99 – Legge 23 Luglio 2009, n. 99 Law of 17 December 2012, no. 294 – Legge 17 Dicembre 2012, n. 294

Luxembourg Act on Injunctions of 19 December 2003 – Loi du 19 décembre 2003 fixant les conditions d´agrément des organisations habilitées à intenter des actions en cessation CC – Code civil en vigueur dans le Grand-Duché de Luxembourg Grand Ducal Regulation of 20 December 1991 on Insurance – Règlement grand-ducal du 20 décembre 1991 pris en exécution de la loi du décembre 1991 sur le secteur des assurances et précisant les modalités d´agrément d´exercice des entreprises d´assurance établies à Luxembourg ICA – Loi du 27 juillet 1997 sur le contrat d´assurance

Netherlands CC – Nieuw Burgerlijk Wetboek Boek 7 titel 7 Verzekering (New Civil Code Book 7 Part 17 Insurance) Decree on the Supervision of the Conduct of Financial Enterprises – Besluit gedragstoezicht financiële ondernemingen (Bgfo) Financial Services Ombudsman Regulations – Reglement Ombudsman Financiële Dienstverlening Former Dutch Civil Code relating to insurance – Wetboek van koophandel 1846 Former ISA – Wet toezicht verzekeringsbedrijf 1993 ISA – Wet op het financieel toezicht 2006 (Act on Financial Supervision 2006)

Poland Act on Compulsory Insurance – Ustawa z dnia 22 maja 2003 r. o ubezpieczeniach obowiązkowych, Ubezpieczeniowym Funduszu Gwarancyjnym i Polskim Biurze Ubezpieczycieli Komunikacyjnych, Dziennik Ustaw z 2003 r. nr 124 poz. 1152 ze zm. (Act of 22 May 2003 on compulsory insurance, Insurance Guarantee Fund and Polish Motor Insurer’ Bureau, Official Gazette 2003 no 124 item, as amended) Act on Insurance Activity – Ustawa z dnia 22 maja 2003 r. o działalności ubezpieczeniowej, Dziennik Ustaw z 2003 r. nr 124 poz. 1151 ze zm. (Act of 22 May 2003 on insurance activity, Official Gazette 2003 no. 124 item 1151, as amended) Act on Insurance Mediation – Ustawa z 22 maja 2003 r. o pośrednictwie ubezpieczeniowym, Dziennik Ustaw z 2003 r. nr 124 poz. 1154 ze zm. (Act of 22 May 2003 on insurance mediation, Official Gazette 2003 no. 124 item 1154, as amended) CC – Ustawa z dnia 23 kwietnia 1964 r. Kodeks Cywilny, Dziennik Ustaw z 1964 r. nr 16 poz. 93 ze zm. (Act of 23 April 1964 Civil Code, Official Gazette 1964 no. 16 item 93, as amended)

Portugal CC – Código Civil Português Decreto-Lei nº 47 344, de 25 de Novembro de 1966, as amended ICA – Lei do Contrato de Seguro Decreto-Lei nº 72/2008, de 16 de Abril, as amended

870

Table of National Statutes

Spain ICA – Ley 50/1980, de 8 de octubre, de Contrato de Seguro ISA – Real Decreto Legislativo 6/2004, de 29 de octubre, por el que se aprueba el Texto refundido de la Ley de ordenación y supervisión de los seguros privados Law of Maritime Navigation – Ley 14/2014, de 24 de julio, de Navegación Marítima Law on Mediation of Private Insurance and Reinsurance – Ley 26/2006, de 17 de Julio de mediación en seguros y reaseguros privados Law 39/2002 of 28 October 2002 – Ley 39/2002, de 28 de octubre, de transposición al ordenamiento jurídico español de diversas directivas comunitarias en materia de protección de los intereses de los consumidores y usuarios Royal Decree on Insurance Supervision – Real Decreto 2486/1998, de 20 noviembre, por el que se aprueba el Reglamento de Ordenación y Supervisión de los Seguros Privados Royal Legislative Decree on Consumer and User Interests – Real Decreto legislativo 1/2007, de 16 noviembre 2007 por el que se aprueba el Texto refundido de la Ley General para la defensa de los consumidores y usuarios y otras leyes complementarias

Sweden Act 2000:1175 of 15 June 2001 – Lag (2000:1175) om talerätt för vissa utländska konsumentmyndigheter och konsumentorganisationer (Act (2000:1175) on the right to take legal action against certain consumer authorities and consumer organisations) Act on Contractual Conditions in Consumer Relationships – Lag (1994:1512) om avtalsvillkor i konsumentförhållanden (Act (1994:1512) on contractual conditions in consumer relationships) Consumer Insurance Act – Konsumentförsäkringslag (1980:38) Contract Act – Lag (1915:218) om avtal och andra rättshandlingar på förmögenhetsrättens område (General Contract Law Act (1915:218)) ICA – Försäkringsavtalslag (2005:104) (Insurance Contract Act 2005 (2005:104)) Law on Genetic Integrity – Lag (2006:351) om genetisk integritet m.m.

Switzerland Code of Obligations – Bundesgesetz vom 30. März 1911 betreffend die Ergänzung des Schweizerischen Zivilgesetzbuches (Fünfter Teil: Obligationenrecht) SR 220 Draft Swiss ICA – Bundesgesetz über den Versicherungsvertrag (VVG), Entwurf vom 21. Januar 2009 Explanatory Report on the Draft Swiss ICA – Revision des Bundesgesetzes über den Versicherungsvertrag (VVG), Erläuternder Bericht zur Vernehmlassungsvorlage vom 21. Januar 2009 ICA – Bundesgesetz vom 2. April 1908 über den Versicherungsvertrag (Versicherungsvertragsgesetz, VVG) (SR 221.229.1) Law on Genetic Screening of Humans – Bundesgesetz über genetische Untersuchungen beim Menschen (GUMG) vom 8. Oktober 2004 (SR 810.12) Unfair Competition Act – Bundesgesetz gegen den unlauteren Wettbewerb (UWG) vom 19. Dezember 1986 (SR 241), as amended

United Kingdom Concordat and Moratorium on Genetics and Insurance – Concordat and Moratorium on Genetics and Insurance 2011 Consumer Insurance (Disclosure and Representations) Act 2012 – Consumer Insurance (Disclosure and Representations) Act 2012 Electronic Commerce (EC Directive) Regulations 2002 – Electronic Commerce (EC Directive) Regulations 2002 (S.I. 2002 No. 2013 to implement Directive 2000/31/EC)

871

Annexes

Financial Services (Distance Marketing) Regulations 2004 – Financial Services (Distance Marketing) Regulations 2004, (S.I. 2004 No. 2095) Financial Services and Markets Act 2000 – Financial Services and Markets Act 2000 FSA Handbook – Financial Services Authority Handbook ICOBS – Financial Services Authority Handbook of Rules and Guidance. Insurance: Conduct of Business Sourcebook Insurance Companies (Legal Expenses Insurance) Regulations 1990 – Insurance Companies (Legal Expenses Insurance) Regulations 1990 (S.I. 1990 No. 1159) Joint Consultation Paper on Insurance Contract Law – The Law Commission Consultation Paper No 182 and The Scottish Law Commission Discussion Paper No 134 INSURANCE CONTRACT LAW: Misrepresentation, Non-Disclosure and Breach of Warranty by the Insured A Joint Consultation Paper, 2007 Life Assurance Act 1774 – Life Assurance Act 1774 Marine Insurance Act 1906 – Marine Insurance Act 1906 Statements of Insurance Practice issued by the Association of British Insurers Stop Now Orders (EC Directive) Regulations 2001 – Stop Now Orders (E.C. Directive) Regulations 2001 (S.I. 2001 No. 1422) Unfair Terms in Consumer Contracts Regulations 1999 – Unfair Terms in Consumer Contracts Regulations 1999 (S.I. 1999 No. 2083)

England and Wales (only) Law of Property Act 1925 – Law of Property Act 1925 Limitation Act 1980 – Limitation Act 1980

Scotland (only) Prescription and Limitation (Scotland) Act 1973

872

Table of EU Legislation (including draft legislation and like sources) 1964 Reinsurance Directive (64/225/EEC) – Council Directive 64/225/EEC of 25 February 1964 on the abolition of restrictions on freedom of establishment and freedom to provide services in respect of reinsurance and retrocession [1964] OJ 56/878 2003 Action Plan on European Contract Law – Communication from the Commission to the European Parliament and the Council, ‘A more coherent European contract law – An action plan´, COM (2003) 68 final, 12 February 2003 2004 Communication on European Contract Law – Communication from the Commission to the European Parliament and the Council, ‘European Contract Law and the revision of the acquis: the way forward´, COM (2004) 651 final, 11 October 2004 Aircraft Insurance Regulation (785/2004) – Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators [2004] OJ L138/1 Air Services Operation Regulation (1008/2008) – Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (Recast), OJ 2008 L293/3 Amended Proposal for a Council Directive on Insurance Contract Law – Amendment of the proposal for a Council Directive on the coordination of laws, regulations and administrative provisions relating to insurance contract [1980] OJ C355/30 Annex to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Commission Work Programme 2015, A New Start, COM (2014) 910 final Brussels Convention – Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (consolidated version) [1998] OJ C27/1 Brussels I Regulation (44/2001) – Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1 Brussels Ibis Regulation (1215/2012) – Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1 Charter of Fundamental Rights of the European Union – Charter of Fundamental Rights of the European Union [2000] OJ C364/1 CESL Regulation Proposal – Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, COM (2011) 635 final Commercial Agency Directive (86/653/EEC) – Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents [1986] OJ L382/17 Commission, ‘Communication concerning Article 4(3) of Directive 2009/22/EC of the European Parliament and of the Council on injunctions for the protection of consumers’ interests, which codifies Directive 98/27/EC, concerning the entities qualified to bring an action under Article 2 of this Directive’ [2014] OJ C115/1 Commission Decision of 17 January 2013 on setting up the Commission Expert Group on a European Insurance Contract Law [2013] OJ C16/6

873

Annexes

Community Trademark Regulation (207/2009) – Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (Text with EEA relevance) [2009] OJ L078/1 Consumer Credit Directive (2008/48/EC) – Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC [2008] OJ L133/66 Consumer Rights Directive (2011/83/EU) – Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (Text with EEA relevance) [2011] OJ L 304/64 Data Protection Directive (95/46/EC) – Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L281/31 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22 [2013] OJ L165/63 Directive on Sale of Consumer Goods and Guarantees (1999/44/EC) – Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees [1999] OJ L171/12 Distance Marketing Directive (2002/65/EC) – Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/ EC [2002] OJ L271/16 Draft Common Frame of Reference – Study Group on a European Civil Code and Research Group on the Existing EC Private Law (Acquis Group) (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR) (Full edition Sellier elp, Munich 2009) EC Treaty/Article … EC – Treaty establishing the European Community (consolidated text) [2006] OJ C321E/37 EEIG Regulation (2137/85) – Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG) [1985] OJ L199/1 EESC Opinion on ‘The European Insurance Contract’ – Opinion of the European Economic and Social Committee on ‘The European Insurance Contract Law’ [2005] OJ C157/1 EESC Opinion on ‘The 28th Regime’ – Opinion of the European Economic and Social Committee on ‘The 28th Regime – an alternative allowing less lawmaking at Community level’ [2011] OJ C21/26 Electronic Commerce Directive (2000/31/EC) – Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) [2000] OJ L178/1 Electronic Signatures Directive (1999/93/EC) – Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures [2000] OJ L13/12 European Commission Guidelines – Guidelines on the application of Council Directive 2004 / 113 / EC to insurance, in the light of the judgment of the Court of Justice of the European Union in Case C-236 / 09 (Test-Achats) (Text with EEA relevance) [2012] OJ C11 / 1

874

Table of EC Legislation

European Council Press Release (8397/08) – Press Release of the Council of the European Union, Justice and Home Affairs of 18 April 2008, Press: 96, No: 8397/08 European Parliament legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011)0635 – C7-0329/2011-2011/0284(COD)) (Ordinary legislative procedure: first reading), doc. no. P7_TA-PROV(2014)0159 European Parliament resolution of 3 September 2008 on the common frame of reference for European contract law, P6_TA(2008)0397 European Parliament resolution of 8 June 2011 on policy options for progress towards a European Contract Law for consumers and businesses (2011/2013(INI)), P7_TA-PROV(2011)0262 Final Report of the Commission Expert Group on European Insurance Contract Law (2014) First Non-Life Insurance Directive (73/239/EEC) – First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance [1973] OJ L228/3 Fourth Motor Insurance Directive (2000/26/EC) – Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive) [2000] OJ L181/65 Gender Directive (2004/113/EC) – Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services [2004] OJ L373/37 Green Paper on Financial Services Policy – European Commission, Green Paper on Financial Services Policy (2005-2010), COM (2005) 177 final Green Paper on Options for a European Contract Law – European Commission, Green Paper on policy options for progress towards a European Contract Law for consumers and businesses, COM (2010) 348 final Injunctions Directive (2009/22/EC) – Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (Codified version) (Text with EEA relevance) [2009] OJ L 110/30 Insolvency Regulation (1346/2000/EC) – Council Regulation (EC) No 1346/2000/EC of 29 May 2000 on insolvency proceedings Insurance Mediation Directive (2002/92/EC) – Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation [2003] OJ L9/3, as amended by art. 91 of MiFID2 (2014/65/EU) Late Payment Directive (2011/7/EU) – Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions (Text with EEA relevance) [2011] OJ L 48/1 Lawyers’ Establishment Directive (98/5/EC) – Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, OJ 1998 L77/36 Legal Expenses Insurance Directive (87/344/EEC) – Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance [1987] OJ L185/77 Life Assurance Consolidation Directive (2002/83/EC) – Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance [2002] OJ L345/1 Maritime Insurance Directive (2009/20/EC) – Directive 2009/20/EC of the European Parliament and of the Council of 23 April 2009 on the insurance of shipowners for maritime claims [2009] OJ L131/128

875

Annexes

MiFID2 (2014/65/EU) – Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (Text with EEA relevance) [2014] OJ L173/349 Motor Vehicle Liability Insurance Directive (2009/103/EC) – Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, OJ 2009 L263/1 Package Travel Directive (90/314/EEC) – Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours [1990] OJ L158/59 PRIIP Regulation (1286/2014) – Regulation (EU) No. 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIP) [2014] OJ L352/1 Proposal for a Council Directive on Insurance Contract Law – Proposal for a Council Directive on the coordination of laws, regulations and administrative provisions relating to insurance contract [1979] OJ C190/2 Proposal for an IDD – Proposal for a Directive of the European Parliament and of the Council on insurance mediation (recast) – Confirmation of the final compromise text with a view to agreement, Doc. No. 10747 / 15 of 16 July 2015, Interinstitutional File: 2012 / 0175 (COD) Race Equality Directive (2000/43/EC) – Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin [2000] OJ L180/22 Regulation (EU) 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation 2006/2004 and Directive 2009/22/EC (Regulation on Consumer ODR) Reinsurance Directive (2005/68/EC) – Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC (Text with EEA relevance) [2005] OJ L323/1 Report on the Implementation of the Unfair Contract Terms Directive – Report from the Commission on the implementation of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, COM (2000) 248 final Resolution on the Common Frame of Reference for European Contract Law – European Parliament resolution of 3 September 2008 on the common frame of reference for European contract law, P6_TA-PROV(2008)0397 Rome Convention (80/934/EEC) – 80/934/EEC: Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (consolidated version) [1998] OJ C27/34 Rome I Regulation (593/2008) – Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6 Rome II Regulation (864/2007) – Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199/40 SE Regulation (2157/2001) – Council Regulation (EC) No 2157/2001 of 8 October 2001 on the Statute for a European company (SE) [2001] OJ L294/1 Second Non-Life Insurance Directive (88/357/EEC) – Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC [1988] OJ L172/1

876

Table of EC Legislation

Solvency II Directive (2009/138/EC) – Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (Text with EEA relevance) [2009] OJ L335/1 TFEU – Consolidated version of the Treaty on the Functioning of the European Union [2010] OJ C83/47 Third Life Assurance Directive (92/96/EEC) – Council Directive 92/96/EEC of 10 November 1992 on the coordination of laws, regulations and administrative provisions relating to direct life assurance and amending Directives 79/267/EEC and 90/619/EEC (third life assurance Directive) [1992] OJ L360/1 Third Non-Life Insurance Directive (92/49/EEC) – Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) [1992] OJ L228/1 Timeshare Directive (2008/122/EC) – Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (Text with EEA relevance) [2009] OJ L033/10 Treaty of Lisbon – Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community [2007] OJ C306 / 1 Treaty of Rome – Treaty Establishing the European Economic Community, 25 March 1957, 298 UNTS 11 Unfair Contract Terms Directive (93/13/EEC) – Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L095/29 White Paper ‘An Agenda for Adequate, Safe and Sustainable Pensions’ – White Paper ‘An Agenda for Adequate, Safe and Sustainable Pensions’, COM (2012) 55 final

877

Table of International Conventions and Model Laws CISG – United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG), signed on 11 April 1980 at Vienna, 1489 U.N.T.S. 3 Montreal Convention 1999 – Convention for the Unification of Certain Rules for International Carriage by Air, done at Montreal on 28 May 1999 UNCITRAL Model Law on Electronic Commerce – UNCITRAL Model Law on Electronic Commerce (1996) UNIDROIT Convention on International Factoring – UNIDROIT Convention on International Factoring (Ottawa, 28 May 1988) UNIDROIT Principles – UNIDROIT Principles of International Commercial Contracts 2004 VCLT – Vienna Convention on the Law of Treaties of 1969, done at Vienna on 23 May 1969

878

Table of Cases European Case 26/69 Stauder v Ulm [1969] ECR 419 Case 25/76 Segura v Bonakdarian [1976] ECR 1851 Case 99/79 Lancôme v Etos & Albert Heyn [1980] ECR 2511 Case 125/79 Denilauler v Couchet Frères [1980] ECR 1553 Case 71/83 The Tilly Russ [1984] ECR 2417 Case 205/84 Commission v Federal Republic of Germany [1986] ECR 3755 Case 55/87 Moksel v Bundesanstalt für landwirtschaftliche Marktordnung [1988] ECR 3845 Case C-172/91 Sonntag v Waidmann [1993] ECR I-1963 Case C-85/96 Martínez Zala v Bayern [1998] ECR I-2691 Case C-281/98 Angonese v Cassa di Risparmio di Bolzano [2000] ECR I-4139 Case C-271/00 Gemeente Steenbergen v Baten [2002] ECR I-10489 Case C-144/04 Mangold v Helm [2005] ECR I-9981 Case C-1/06 Bonn Fleisch Ex- und Import GmbH v Hauptzollamt Hamburg-Jonas [2007] ECR I-05609 Case C-180/06 Renate Ilsinger v Martin Dreschers [2009] ECR I-3961 Case C-404/06 Quelle AG v Bundesverband der Verbraucherzentralen und Verbraucherverbände [2008] ECR I-2685 Case C-412/06 Annelore Hamilton v Volksbank Filder eG [2008] ECR I-2383 Case C-445/06 Danske Slagterier v Bundesrepublik Deutschland [2009] ECR I-2119 Case C-275/07 Commission of the European Communities v Italian Republic [2009] ECR I-2005 Case C-489/07 Pia Messner v Firma Steffen Krüger [2009] ECR I-7315 Case C-236/09 Association Belge des Consommateurs Test-Achats ASBL and Others v Conseil des ministres [2011] ECR I-773 Cases T-8/95 and T-9/95 Wilhelm Pelle and Ernst-Reinhard Konrad v Council of the European Union and Commission of the European Communities [2007] ECR II-4117

Austria OGH 19.4.1979, SZ 52/65 OGH 10.5.1984, Versicherungsrecht 1985, 1099 OGH 30.11.1989, Versicherungsrecht 1991, 87 OGH 7.9.2011, 7 Ob 138/11m, SZ 2011/113 OGH 28.3.2012, 7 Ob 100/11y OGH 9.5.2012, 7 Ob 40/12a

France Cass. civ. 14.6.1926, DP 1927. J. 57 Cass. civ. 2.10.1984, Bull. Civ. I n° 241 Cass. civ. 21.2.1989, RGAT 1989, 421 Cass. civ. 1.12.1989, RGDA 1999, 335 Cass. civ. 20.10.1992, RGAT 1993, 99 Cass. civ. 10.5.2000, RGDA 2000, 514 Cass. civ. 1re, 2.6.1964, RGAT 1965, 46 Cass. civ. 1re, 13.2.1979, RGAT 1980, 62 Cass. civ. 1re, 7.3.1989, n° 87-10.266, RGAT 1989, 546 Cass. civ. 1re, 25.10.1994, n° 92-18.447, RGAT 1994, 1098 Cass. civ. 1re, 23.2.1999, RGDA 1999, 325 Cass. civ. 1re, 9.11.1999, n° 97-14.252, RCA 2000, Commentaires, n° 105

879

Annexes

Cass. civ. 1re, 1.2.2000, n°. 97-11.539 Cass. fr. 19.12.1990 (7 decisions), RGAT 1991, 155

Germany BGH 25.11.1963, BGHZ 40, 297 BGH 23.11.1967, Versicherungsrecht 1968, 58 BGH 11.11.1987, BGHZ 102, 194 BGH 23.5.1989, BGHZ 107, 322 BGH 18.12.1991, BGHZ 116, 387 BGH 25.3.1992, BGHZ 117, 385 BGH 10.2.1999, Neue Juristische Wochenschrift 1999, 1633 BGH 4.4.2001, BGHZ 147, 212 BGH 13.7.2005, Versicherungsrecht 2005, 1417 BGH 11.5.2011, Versicherungsrecht 2011, 909 BGH 19.5.2011, Versicherungsrecht 2011, 1549 BGH 22.6.2011, BGHZ 190, 120 BGH 8.5.2013 Versicherungsrecht 2013, 853 BGH 26.3.2014, Versicherungsrecht 2014, 625 OLG München 13.11.1964, Versicherungsrecht 1965, 173 OLG Hamburg 19.8.1966, Versicherungsrecht 1967, 392 OLG Hamburg 6.8.1981, Versicherungsrecht 1982, 543 OLG Köln 21.1.1982, Versicherungsrecht 1983, 922 OLG Hamm 18.5.1988, Recht und Schaden 1988, 302 OLG Köln 16.8.1994, Versicherungsrecht 1995, 567 OLG Saarbrücken 20.9.1995,Versicherungsrecht 1996, 1494 OLG Köln 21.4.1998, Recht und Schaden 1998, 458 OLG Oldenburg 13.1.1999, Versicherungsrecht 1999, 757

Greece Areopag 1805/1986, NoB 1987, 1609 – Αρείου Πάγου (ΑΠ) 1805/1986 Αreopag 6/1990, NoB 1990, 1321 – Ολομέλεια Αρείου Πάγου (ΟλΑΠ) 6/1990 Athens Court of Appeal 110/2011, EEmpD 2011, 119 – Εφετείο Αθηνών (ΕφΑθ) 110/2011

Ireland Carna Foods v Eagle Star [1997] 2 IR 193

Italy Cass. 25.9.1972, no. 2781, Foro it. 1973 Cass. 13.1.2005, no. 562 (Court of Cassation)

Spain Tribunal Supremo, 20 de marzo de 1991 Tribunal Supremo, 23 de abril de 1992 Tribunal Supremo, 14 de julio de 2003 Tribunal Supremo, 1 de diciembre de 2006 Tribunal Supremo, 28 de mayo de 2007 Tribunal Supremo, 3 de julio de 2009

Switzerland BG 9.12.1966, BGE 92 II 342 BG 23.3.1981, SVA XIV Nr. 15 BG 9.1.1989, BGE 115 II 88

880

Table of Cases

BG 22.11.1990, SVA XVIII No. 7, 35 OG des Kantons Zürich 11.4.1969, SVA XIII No. 16

United Kingdom Alfred McAlpine v BAI [1998] 2 Lloyd’s Rep 694; [2001] 1 Lloyd’s Rep 437 (CA) Allis-Chalmers Co v Fidelity & Deposit Co (1916) 114 LT 433 (HL) Anderson v Morice (1876) 1 App Cas 713 Baker v Yorkshire Fire Assurance Co [1892] 1 QB 144 Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd, The Good Luck [1992] 1 AC 233 Bates (Thomas) & Son Ltd v Wyndham’s (Lingerie) Ltd [1981] 1 All ER 1077 (CA) Bennett v Axa Insurance Plc [2003] EWHC 86 (Comm), [2004] Lloyd’s Rep IR 615 Beresford v Royal Exchange Assurance Company [1938] AC 586 British Bank of the Middle East v Sun Life Assurance Co of Canada (UK) Ltd [1983] 2 Lloyd’s Rep 9 (HL) Canning v Farquhar (1886) 16 QBD 727 Carter v Boehm (1766) 3 Burr 1905 Castellain v Preston (1883) 11 QB 380 Dawsons Ltd v Bonnin [1922] 2 AC 413 De Hahn v Hartley (1786) 1 TR 343 Director General of Fair Trading v First National Bank [2001] UKHL 52, [2002] 1 AC 481, [2002] 1 Lloyd’s Rep 489 Eagle Star and British Dominions Ins Co v Reiner (1927) 27 Ll. L. R. 173 Foster v Mentor Life Assurance Co [1854] 3 E & B 48, 65 Fraser v Furman (Productions) Ltd [1967] 1 WLR 898 Freeman & Lockyer v Buckhurst Park Properties Ltd [1964] 2 QB 480 (CA) Freeman v Cooke (1848) 2 Exch 654 Friends Provident Life & Pensions Ltd v Sirius International Insurance [2006] Lloyd’s Rep IR 45 Graham v Western Australian Ins Co Ltd (1931) 40 Ll. L. R. 64 Harrington v Pearl Life Co (1914) 30 TLR 613 Haydenfare v British National Ins Soc Ltd [1984] 2 Lloyd’s Rep 393 Henkle v Royal Exchange Assurance Co (1749) 1 Ves Snr 317 Hepburn v Tomlinson [1966] AC 451 Kausar v Eagle Star Insurance Co Ltd [1997] CLC 129 Lambert v Cooperative Insurance Society Ltd [1975] 2 Lloyd’s Rep 485 Midland Insurance Co v Smith (1881) 6 QBD 561 Morris v Ford Motor Co [1973] QB 792 Murfitt v Royal Insurance Co [1922] 38 TLR 334 Napier v Hunter [1993] AC 713 Page v Scottish Insurance Corporation (1929) 98 LJKB 308 Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd [1995] 1 AC 501 Pawson v Watson (1778) 2 Cowp 785 Pim v Reid (1843) 6 M & G 1 Rambharose v Bovell [2009] UKPC 6 Rayner v Preston (1881) 18 Ch D 1 Re Coleman’s Depositories Ltd [1907] 2 KB 798 Redgrave v Hurd (1881) 20 Ch D 1 (CA) Roberts v Security Co [1897] I QB III, CA Rust v Abbey Life Assurance Co [1978] 2 Lloyd’s Rep 386 S E Lancs Insurance Co v Croisdale (1931) 40 Ll. L. R. 22 Seashell of Lisson Grove v Aviva [2011] EWHC 1761 (Comm) [2012] Lloyd’s Rep IR 356 Sempra Metals v IRC [2007] UKHL 34 Shaw v Robberds (1837) 6 Ad & El 75

881

Annexes

Sillem v Thornton (1854) 3 E & B 868 Smith v Hughes (1871) LR 6 QB 597 Sofi v Prudential Assurance [1993] 2 Lloyd’s Rep 559 Stokell v Heyward [1897] 1 Ch 459 Sun Fire Office v Hart (1889) 14 App Cas 98 T & N Ltd v Royal & Sun Alliance plc [2003] 2 All ER (Comm) 939 Terry v Trafalgar Ins Co Ltd [1970] 1 Lloyd’s Rep 524 The Beursgracht, Glencore Int v Ryan [2001] EWCA Civ 2051, [2002] Lloyd’s Rep IR 335 The Mercandian Continent [2000] 2 Lloyd’s Rep 357 The Zephyr [1984] 1 Lloyd’s Rep 58 Toomey v Eagle Star Ins Co Ltd (No 2) [1995] 2 Lloyd’s Rep 88 Tyrie v Fletcher (1777) 2 Cowp 666 Xenos v Wickham (1866) LR 2 HL 296 Yorkshire Water Services v Sun Alliance & London Insurance [1997] 2 Lloyd’s Rep 221

United States Watson v Massachusetts Mutual Life Ins Co, 140 F 2d 673, 676 (DC, 1943—life), cert den 322 US 746

882

Bibliography of Works Cited (where works have been cited in abbreviated form, as cited in the text followed by full references; otherwise cited in full) Alexandridou – Elisa Alexandridou, ‘Implementation of the EC directive on unfair contract terms in Greece’ (1997) 5 European Review of Private Law 173 Alpa – Guido Alpa, ‘The implementation of the EC directive on unfair contract terms in Italy’ (1997) 5 European Review of Private Law 181 Christian Armbrüster, ‘PEICL – The Project of a European Insurance Contract Law’ (2013-2014) 20(1) Connecticut Insurance Law Journal 119 Asser/Clausing/Wansink – C. Asser, P. Clausing and J. H. Wansink (eds.), De verzekeringsovereenkomst. Mr. C. Asser’s handleiding tot de beoefening van het Nederlands burgerlijk recht, Bijzondere overeenkomsten, Part VI (2nd edn Kluwer, Deventer 2007) Balate – Eric Balate, ‘La mise en oeuvre de la directive 93/13 ce concernant les clauses abusives dans les contrats conclus avec les consommateurs en droit belge’ (1997) 5 European Review of Private Law 143 Jürgen Basedow, ‘Versicherungsvertragsrecht als Markthindernis?’, Europäische Zeitschrift für Wirtschaftsrecht 2014, 1. Jürgen Basedow, ‘The Optional Application of the Principles of European Insurance Contract Law’ in Angelika Fuchs (ed.), European Contract Law – ERA Forum Special Issue 2008 (ERA Forum scripta iuris europaei), vol. 9 (Springer, Heidelberg 2008) 111 Jürgen Basedow, ‘Der Gemeinsame Referenzrahmen und das Versicherungsvertragsrecht’, Zeitschrift für Europäisches Privatrecht (2007) 280 Jürgen Basedow, ‘Der Versicherungsbinnenmarkt und ein optionales europäisches Vertragsgesetz’ in Manfred Wandt (ed.), Kontinuität und Wandel des Versicherungsrechts. Festschrift für Egon Lorenz zum 70. Geburtstag (VVW, Karlsruhe 2004) 93 Jürgen Basedow, ‘Insurance Contract Law as Part of an Optional European Contract Act’ [2003] Lloyd’s Maritime and Commercial Law Quarterly 498, abridged version in ERA Forum 2003 (ERA Forum scripta iuris europaei), vol. 4, issue 2 (Springer, Heidelberg 2003) 56 Jürgen Basedow, ‘Die Gesetzgebung zum Versicherungsvertrag zwischen europäischer Integration und Verbraucherpolitik’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 13 Jürgen Basedow, ‘Das österreichische Bundesgesetz über internationales Versicherungsvertragsrecht – Eine rechtspolitische Würdigung’ in Reichert-Facilides (ed.), Aspekte des internationalen Versicherungsvertragsrechts im Europäischen Wirtschaftsraum (Mohr Siebeck, Tübingen 1994) 89 Jürgen Basedow and Till Fock, ‘Rechtsvergleich’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 1 Basedow/Fock – Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht, vols. I & II (Mohr Siebeck, Tübingen 2002); vol. III (Mohr Siebeck, Tübingen 2003) Basedow/Fock-Bälz – Moritz Bälz, ‘Schweiz’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 1199 Basedow/Fock-Basedow/Fock – Jürgen Basedow and Till Fock, ‘Rechtsvergleich’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 1 Basedow/Fock-Brunetta d’Usseaux – Francesca Brunetta d’Usseaux, ‘Italien’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 655

883

Annexes

Basedow/Fock-Fock – Till Fock, ‘Belgien’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 225 Basedow/Fock-Fock – Till Fock, ‘Niederlande’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 819 Basedow/Fock-Lemmel – Ulrike Lemmel, ‘Deutschland’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 305 Basedow/Fock-Lemmel – Ulrike Lemmel, ‘Österreich’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 1001 Basedow/Fock-Papathoma-Baetge – Anastasia Papathoma-Baetge, ‘Griechenland’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 567 Basedow/Fock-Rühl – Giesela Rühl, ‘Vereinigtes Königreich und Republik Irland’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 1377 Basedow/Fock-Scherpe – Jens Scherpe, ‘Nordland (Dänemark, Schweden, Finnland)’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 907 Basedow/Fock-Schlenker – Susanne Schlenker, ‘Portugal’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 1125 Basedow/Fock-Schlenker – Susanne Schlenker, ‘Spanien’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 1273 Basedow/Fock-Völker – Silke Völker, ‘Frankreich’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 451 Basedow/Fock-Völker – Silke Völker, ‘Luxemburg’ in Jürgen Basedow and Till Fock (eds.), Europäisches Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2002) 755 Bataller/Latorre/Olavarria – Juan Bataller Grau, Nuria Latorre Chiner and Jesús Olavarria Iglesia, Derecho de los seguros privados (Marcial Pons, Ediciones Jurídicas y Sociales, Madrid 2007) Bataller/Veiga – Juan Bataller and Abel Veiga (eds.), La protección del cliente en el mercado asegurador (Thomson Reuters Civitas, Madrid 2014) Beatson/Burrows/Cartwright – Jack Beatson, Andrew Burrows and John Cartwright (eds.) Anson’s Law of Contract (29th edn OUP, Oxford 2010) Bengtsson – Bertil Bengtsson, Försäkringsavtalsrätt (2nd edn Norstedts juridik, Stockholm 2010) Berliner Kommentar-Hübsch – Michael Hübsch in Heinrich Honsell (ed.), Berliner Kommentar zum Versicherungsvertragsgesetz (Springer, Berlin 1999) Bernitz – Ulf Bernitz, ‘Swedish standard contracts law and the EC Directive on contract terms’ (2000) 39 Scandinavian Studies in Law 13 Birds – John Birds, Birds’ Modern Insurance Law (9th edn Sweet & Maxwell, London 2013) Bisenius – Roland Bisenius, Versicherungshandbuch Privatpersonen (3rd rev edn Ed. Promoculture, Luxembourg 2003) Uwe Blaurock, ‘Lex mercatoria und Common Frame of Reference’, Zeitschrift für Europäisches Privatrecht (2007) 118 Bonnard – Jérôme Bonnard, Droit des assurances (2nd edn Litec, Paris 2007) Bonnard, Droit et pratique – Jérôme Bonnard, Droit et pratique des assurances particuliers et entreprises (Delmas, Paris 1997) Bruck/Möller-Baumann – Horst Baumann in Ernst Bruck and Hans Möller (eds.), Kommentar zum Versicherungsvertragsgesetz, vol. 1 (9th edn Walter de Gruyter, Berlin 2008) Bruck/Möller-Brömmelmeyer – Christoph Brömmelmeyer in Ernst Bruck and Hans Möller (eds.), Kommentar zum Versicherungsvertragsgesetz, vol. 1 (9th edn Walter de Gruyter, Berlin 2008) Bruck/Möller-Johannsen – Katharina Johannsen in Ernst Bruck and Hans Möller (eds.), Kommentar zum Versicherungsvertragsgesetz, vol. 1 (9th edn Walter de Gruyter, Berlin 2008) Bruck/Möller-Knops – Kai-Oliver Knops in Ernst Bruck and Hans Möller (eds.), Kommentar zum Versicherungsvertragsgesetz, vol. 1 (9th edn Walter de Gruyter, Berlin 2008) Bruck/Möller-Möller – Hans Möller in Ernst Bruck and Hans Möller (eds.), Kommentar zum Versicherungsvertragsgesetz, vol. 1 (8th edn Walter de Gruyter, Berlin 1961)

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Bruck/Möller-Rolfs – Christian Rolfs in Ernst Bruck and Hans Möller (eds.), Kommentar zum Versicherungsvertragsgesetz, vol. 1 (9th edn Walter de Gruyter, Berlin 2008) Buckley – Austin J. Buckley, Insurance Law in Ireland (Oak Tree Press, Dublin 1997) Jacquetta Castle, ‘Book Review’ (March 2012) British Insurance Law Association No. 124, 84 CEA, ‘Position Paper: CEA views on the European Commission’s Green Paper on policy options for progress towards an EU contract law for consumers and businesses’ (2011) CEA Policy Report – Comité Européen des Assurances, ‘CEA Policy Report on The European Retail Insurance Market(s)’ (2004) Cendon-Franzoni – M. Franzoni in Paolo Cendon (ed.), Commentario al Codice Civile (Giuffrè, Milan 2008) Cerini – Diana Cerini, ‘Italy’ in Herman Cousy (ed.), International Encyclopaedia of Laws: Insurance Law (Kluwer, Deventer 2013) Chatzinikolaou-Aggelidou – Rania Chatzinikolaou-Aggelidou, Idiotiko Asfalistiko Dikaio (2nd edn Sakkoulas Publications, Athens 2008) Chatzinikolaou-Aggelidou, Simvasi – Rania Chatzinikolaou-Aggelidou, Asfalistiki Simvasi (Sakkoulas Publications, Athens 2000) Clarke – Malcolm Clarke, The Law of Insurance Contracts (6th edn Informa, London 2009) Clarke, Compensation – Malcolm Clarke, ‘Compensation for Failure to Pay Money Due: A “Blot on English Common Law Jurisprudence” Partly Removed’ [2008] Journal of Business Law 291 Clarke/Heiss – Malcolm Clarke and Helmut Heiss, ‘Towards a European Insurance Contract Law? Recent Developments in Brussels’ [2006] Journal of Business Law 600 CMS – Cameron McKenna LLP, Insurance Broking Practice and the Law (Informa Law, London 2008) Colinvaux – Robert Merkin (ed.), Colinvaux’s Law of Insurance (8th edn Sweet & Maxwell, London 2006) Colinvaux (1990) – Robert Merkin (ed.), Colinvaux’s Law of Insurance (6th edn Sweet & Maxwell, London 1990) Cousy/Schoorens – Herman Cousy and Gert Schoorens, La nouvelle loi sur le contrat d’assurance terrestre. Travaux préparatoires de la loi du 25 juin 1992 (Kluwer Editions Juridiques, Belgium 1994) Davo – Hélène Davo, ‘Clauses abusives: loi du février 1995 transposant la directive 93/13/CEE en droit français’ (1997) 5 European Review of Private Law 157 De Gregorio/Fanelli – Alfredo De Gregorio and Giuseppe Fanelli, Il contratto di assicurazione (riveduto, integrato ed annotato da A. La Torre) (Giuffrè, Milan 1987) Deschamps – Jacques Deschamps, L’agent général d’assurances (3rd edn Librairies techniques, Paris 1975) Dohr – Kirstine Iuel Dohr, Die Stellung des Versicherungsnehmers im dänischen Versicherungsvertragsrecht (VVW, Karlsruhe 1995) Donati – Antigono Donati, Trattato del diritto delle assicurazioni private, vol. II (III. Il diritto del contratto di assicurazione) (Giuffrè, Milan 1954) Donati/Volpe Putzolu – Antigono Donati and Giovanna Volpe Putzolu, Manuale di diritto delle assicurazioni private (5th edn Giuffrè, Milan 1999) Doolan – Brian Doolan, Principles of Irish Law (4th edn Gill & Macmillan, Dublin 1996) Martin Ebers, European Review of Private Law (2010) 1037 El Vinger – Marc El Vinger, ‘La Directive 93/13/CEE du 5 avril 1993 et le droit luxembourgeois’ (1997) 5 European Review of Private Law 185 Favre Rochex/Courtieu – Andre Favre Rochex and Guy Courtieu, Le droit des assurances obligatoires (Librairie Générale de Droit et de Jurisprudence, Paris 2000) Fenyves/Kronsteiner/Schauer-Fenyves – Attila Fenyves in Attila Fenyves, Franz Kronsteiner and Martin Schauer (eds.), Kommentar zu den Novellen zum VersVG (Springer, Vienna 1998) Fil – Patrice Fil, L’obligation d’information et de conseil en matière d’assurance (Presses Univ. d’Aix-Marseille, Aix-en-Provence 1996)

885

Annexes

Alex Flessner, ‘Der Gemeinsame Referenzrahmen im Verhältnis zu anderen Regelwerken’, Zeitschrift für Europäisches Privatrecht (2007) 112 Fontaine – Marcel Fontaine, Droit des Assurances (3rd edn Larcier, Brussels 2006) Fontaine (1996) – Marcel Fontaine, Droit des Assurances (2nd edn Larcier, Brussels 1996) Forte – Angelo Forte, ‘Insurance’ in Thomas Smith and Robert Black (eds.), The Laws of Scotland: Stair Memorial Encyclopaedia, vol. 12 (The Law Society of Scotland: Butterworths, Edinburgh 1992) Fuchs – Dariusz Fuchs, ‘Właściwość sądu i właściwość prawa w europejskich ubezpieczeniach gospodarczych’, Prawo Asekuracyjne, nr 2/2008 Fuchs, Funkcja – Dariusz Fuchs, ‘Funkcja prewencyjna Ubezpieczeń w świetle projektu nowelizacji przepisów kodeksu cywilnego o umowie ubezpieczenia’, Prawo Asekuracyjne, nr 1/2006 Fuchs, Podwójne – Dariusz Fuchs, ‘Podwójne (wielokrotne)ubezpieczenie – de lege lata oraz de lege ferenda’, Przegląd Prawa Handlowego, nr 6/2006 Fuchs, Ochrona – Dariusz Fuchs, ‘Ochrona ubezpieczeniowa jako świadczenie głowne ubezpieczyciela’, Prawo Asekuracyjne, nr 2/2006 Fuchs, Rozprawy – Dariusz Fuchs in Leszek Ogiegło, Wojciech Popiołek and Maciej Szpunar (eds.), Rozprawy Prawnicze: Księga ku czci Profesora Maksymiliana Pazdana (Zakamycze, Cracow 2005) Fuchs, Zakres – Dariusz Fuchs, ‘Zakres obowiązku prewencji w prawie ubezpieczeń gospodarczych. Uwagi na tle art. 826 k.c.’, Prawo Asekuracyjne, nr 2/2004 Fuchs/Nowak/Nowak-Kowalewski – Eugeniusz Kowalewski in Darius Fuchs, Alojzy Zbigniew Nowak and Stanisław Nowak (eds.), Umowa ubezpieczenia. Dyskusja nad formą prawną i treścią unormowań (Wydawnictwo Naukowe Wydziału Zarządzania Uniwersytetu Warszawskiego, Warsaw 2008) Mario Pérez Garrigues, ‘Book Review: J.Basedow, J. Birds, M. Clarke, H.Cousy, H. Heiss (eds), Principles of European Insurance Contract Law’ (2010) Revista de Derecho Mercantil 797 Groutel – Hubert Groutel, Le contrat d’assurance (2nd edn Dalloz, Paris 1997) Halsbury – Lord Hailsham of St. Marylebone (ed.), Halsbury’s Laws of England, vol. 25 (Butterworths, London 1994) David Harari, ‘The Role of the Intermediary’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 75 Helmut Heiss, ‘Optionales europäisches Versicherungsvertragsrecht’, Rabels Zeitschrift für ausländisches und internationales Privatrecht 76 (2012) 316 Helmut Heiss, ‘Introduction’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 7 Helmut Heiss, ‘Mobilität und Versicherung’, Versicherungsrecht (2006) 448 Helmut Heiss, ‘Europäischer Versicherungsvertrag – Initiativstellungnahme des Europäischen Wirtschafts- und Sozialausschusses verabschiedet’, Versicherungsrecht (2005) 1 Helmut Heiss, ‘Stand und Perspektiven der Harmonisierung des Versicherungsvertragsrechts in der EG’ in Petra Pohlmann (ed.), Veröffentlichungen der Münsterischen Forschungsstelle für Versicherungswesen an der Westfälischen Wilhelms-Universität zu Münster („Münsteraner Reihe“), Issue 99 (VVW, Karlsruhe 2005) Helmut Heiss and Noemi Downes, ‘Non-optional Elements in an Optional European Contract Law: Reflections from a Private International Law Perspective’ (2005) 13 European Review of Private Law 693 Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) Heiss/Lorenz-Heiss – Helmut Heiss in Helmut Heiss and Bernhard Lorenz, Versicherungsvertragsgesetz (2nd edn Linde, Vienna 1996) Helmut Heiss and Anton K. Schnyder, ‘Versicherungsverträge’ in Herbert Kronke, Werner Melis and Anton K. Schnyder (eds.), Handbuch des Internationalen Wirtschaftsrechts (Schmidt, Cologne 2005) Hellner – Jan Hellner, Försäkringsrätt (2nd edn Försäkringsjuridiska Föreningens Publikation Nr 15, Stockholm 1965)

886

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Peter Hinchliffe, ‘The Consumer’s View’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 59. Hofmann – Edgar Hofmann, Privatversicherungsrecht (4th edn Beck, Munich 1998) Hondius – Ewoud Hondius, ‘Non-implementation of the Directive on Unfair Contract Terms: the Dutch case’, (1997) 5 European Review of Private Law 193 Honsell/Vogt/Schnyder-Fuhrer – Stephan Fuhrer in Heinrich Honsell, Nedim Peter Vogt, and Anton K. Schnyder (eds.), Kommentar zum Schweizerischen Privatrecht: Bundesgesetz über den Versicherungsvertrag (VVG) (Helbing & Lichtenhahn, Basel 2001) Hoppu/Hemmo – Esko Hoppu and Mika Hemmo, Vakuutusoikeus (WSOY, Helsinki 2006) Johansson/van der Sluijs – Svante O. Johansson and Jessika van der Sluijs, ‘Direktkrav vid ansvarsförsäkring enligt den nya försäkringsavtalslagen’, Svensk Juristtidning (2006) 72 Kiantos – Vasileios Kiantos, Asfalistiko Dikaio (9th edn Sakkoulas Publications, Athens 2005) Kiantos, Praktoras – Vasileios Kiantos, Asfalistikos Praktoras (Sakkoulas Publications, Athens 2002) Gerhard Köbler, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung (2011) No. 128 Koenig – Willy Koenig, Schweizerisches Privatversicherungsrecht (3rd edn Lang, Bern 1967) Kowalewski – E. Kowalewski, D. Fuchs, W. W. Mogilski, M. Serwach, Prawo Ubezpieczeń Gospodarczych (3rd edn Bydgoszcz, Toruń 2006) La Torre-Benini, S. Benini in Antonio La Torre (ed.), Le Assicurazioni (Giuffré, Milan 2000) Lambert-Faivre – Yvonne Lambert-Faivre, Droit des assurances (12th edn Dalloz, Paris 2005) Lamy Assurances – Jérôme Kullmann (ed.), Lamy Assurances (2009 edition Kluwer, Paris 2008) Lando/Beale – Ole Lando and Hugh Beale (eds.), Principles of European Contract Law, Parts I and II (Kluwer Law International, The Hague 2000) Lando/Clive/Prüm/Zimmermann – Ole Lando, Eric Clive, André Prüm, and Reinhard Zimmermann (eds.), Principles of European Contract Law, Part III (Kluwer Law International, The Hague 2003) Lete – Javier Lete, ‘The non implementation of the EC Directive on Unfair Contract Terms in Spain’, (1997) 5 European Review of Private Law 205 Leander D. Loacker, Informed Insurance Choice? (Elgar, Cheltenham 2015) Leander D. Loacker, ‘Vorbemerkung C.’ in Dirk Looschelders and Petra Pohlmann (eds.), VVG-Kommentar (2nd edn Wolters Kluwer Deutschland, Cologne 2011) Leander D. Loacker, ‘Gleich und Gleich gesellt sich gern? Überlegungen zur Einführung verpflichtender Einheitstarife im europäisierten Versicherungsvertragsrecht’ Haftung & Versicherung 2011, 351 Leander D. Loacker, ‘Insurance soft law?’ Versicherungsrecht (2009) 289 Dirk Looschelders and Lothar Michael, ‘§ 11 Europäisches Versicherungsrecht’ in Armin Hatje and Peter-ChristianMüller-Graff (eds.), Enzyklopädie Europarecht, vol. V, Europäisches Sektorales Wirtschaftsrecht (ed. by Ruffert) (Nomos, Baden-Baden 2013) Lowry/Rawlings – John Lowry and Philip Rawlings, Insurance Law: Doctrines and Principles (2nd edn Hart, Oxford 2005) Lyngsø – Preben Lyngsø, Dansk Forsikringsret (7th edn Jurist- og Økonomforbundets Forl., Copenhagen 1994) MacDonald Eggers – Peter MacDonald Eggers in Hugh Beale (ed.), Chitty on Contracts, vol. II (Specific Contracts) (30th edn Sweet & Maxwell/Thomson Reuters, London 2008) MacGillivray – Nicholas Legh-Jones, John Birds, and David Owen, MacGillivray on Insurance Law (11th edn Sweet & Maxwell, London 2008) Maurer – Alfred Maurer, Schweizerisches Privatversicherungsrecht (3rd edn Stämpfli, Bern 1995) Monteiro – António Pinto Monteiro, ‘La transposition de la directive europeenne surl es clauses abusives au Portugal’, (1997) 5 European Review of Private Law 197

887

Annexes

Ulrike Mönnich, ‘Europäisierung des Privatversicherungsrechts’ in Roland Michael Beckmann and Annemarie Matusche-Beckmann (eds.), Versicherungsrechts-Handbuch (3rd edn Beck, Munich 2015) § 2 (Europäisches Privatversicherungsrecht) Ulrike Mönnich, ‘Unisex: Die EuGH-Entscheidung vom 1.3.2011 und die möglichen Folgen’ Versicherungsrecht 2011, 1092 Münchener Kommentar-Basedow – Jürgen Basedow in Franz Jürgen Säcker and Roland Rixecker (eds.), Münchener Kommentar zum BGB, vol. 2 (6th edn Beck, Munich 2012) Münchener Kommentar-Wurmnest – Wolfgang Wurmnest in Franz Jürgen Säcker and Roland  Rixecker (eds.), Münchener Kommentar zum BGB, vol. 2 (6th edn Beck, Munich 2012) Münchener Kommentar-Wandt – Manfred Wandt in Theo Langheid and Manfred Wandt (eds.), Münchener Kommentar Versicherungsvertragsgesetz, vol. 1 (Beck, Munich 2010) O’Regan Cazabon – Attracta O’Regan Cazabon, Insurance Law in Ireland (Round Hall Sweet & Maxwell, Dublin 1999) Palandt-Ellenberger – Jürgen Ellenberger in Otto Palandt (ed.), Kommentar zum Bürgerlichen Gesetzbuch (73rd edn Beck, Munich 2014) Park – Semin Park, The Duty of Disclosure in Insurance Contract Law (Dartmouth, Aldershot 1996) Posch – Willibald Posch, ‘The implementation of the EC Directive on Unfair Contract Terms into Austrian Law’, (1997) 5 European Review of Private Law 135 Prölss/Martin-Armbrüster – Christian Armbrüster in Erich R. Prölss and Anton Martin (eds), Versicherungsvertragsgesetz (29th edn Beck, Munich 2015) Prölss/Martin-Dörner – Heinrich Dörner in Erich R. Prölss and Anton Martin (eds.), Versicherungsvertragsgesetz (29th edn Beck, Munich 2015) Prölss/Martin-Kollhosser – Helmut Kollhosser in Erich R. Prölss and Anton Martin (eds.), Versicherungsvertragsgesetz (27th edn Beck, Munich 2004) Robert Purves, ‘Europe: the architecture and content of EU insurance regulation’ in Julian Burling and Kevin Lazarus (eds.), Research Handbook on International Insurance Regulation (Elgar, Cheltenham 2011) 621 Reich – Norbert Reich, ‘The implementation of Directive 93/13/EEC on unfair terms in consumer contracts in Germany’, (1997) 5 European Review of Private Law 165 Fritz Reichert-Facilides, ‘Verbraucherschutz – Versicherungsnehmerschutz: Überlegungen im Blick auf das Projekt: „Restatement des Europäischen Versicherungsvertragsrechts“‘ in Bernhard Eccher, Kristin Nemeth, and Astrid Tangl (eds.), Verbraucherschutz in Europa. Festgabe für em. o. Univ.Prof. Dr. Heinrich Mayrhofer (Verl. Österreich, Vienna 2002) 179 Fritz Reichert-Facilides, ‘Europäisches Versicherungsvertragsrecht?’ in Jürgen Basedow, Klaus J. Hopt, and Hein Kötz (eds.), Festschrift für Ulrich Drobnig zum siebzigsten Geburtstag (Mohr Siebeck, Tübingen 1998) 119 Fritz Reichert-Facilides, ‘Rechtsvereinheitlichung oder Rechtsvielfalt? Überlegungen vor dem Modell des Versicherungsvertragsrechts’ in Fritz Schwind (ed.), Europarecht, IPR, Rechtsvergleichung (Verl. d. Österr. Akad. d. Wiss., Vienna 1988) 155 Fritz Reichert-Facilides, ‘Gesetzgebung in Versicherungsvertragsrechtssachen: Stand und Ausblick’ in Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) 1 Fritz Reichert-Facilides and Anton K. Schnyder, Versicherungsrecht in Europa – Kernperspektiven am Ende des 20. Jahrhunderts (Helbing und Lichtenhahn, Basel 2000) Rescigno-Gallone – G. Gallone in Pietro Rescigno (ed.), Codice Civile (7th edn Giuffrè, Milan 2008) Roelli/Keller – Hans Roelli and Max Keller (eds.), Kommentar zum schweizerischen Bundesgesetz über den Versicherungsvertrag vom 2. April 1908, vol. I (2nd edn K.J. Wyss, Bern 1968) Rokas, Greece – Ioannis Rokas, ‘Greece’ in Herman Cousy (ed.), International Encyclopaedia of Laws: Insurance Law, vol. 2 (Kluwer, Deventer 2013) Rokas, Eisigiseis – Ioannis Rokas, Asfalistiko Dikaio – Eisigiseis (2nd edn Nomiki Bibliothiki, Athens, 2012) Rokas – Ioannis Rokas, Idiotiki Asfalisi (11th edn Ant. N. Sakkoulas, Athens 2006)

888

Bibliography of Works Cited

Römer/Langheid-Römer – Wolfang Römer in Wolfang Römer and Theo Langheid (eds.), Kommentar zum Versicherungsvertragsgesetz (2nd edn Beck, Munich 2002) Rose – Francis D. Rose, Marine Insurance (2nd edn Informa, London 2012) Rouhette/Lamberterie – Georges Rouhette and Isabelle de Lamberterie, Principes du droit européen du contrat (Soc. de Législation Comparée, Paris 2003) Rühl – Giesela Rühl, Obliegenheiten im Versicherungsvertragsrecht (Mohr Siebeck, Tübingen 2004) Sánchez Calero – Fernando Sánchez Calero (ed.), Ley de contrato de seguro (Aranzadi, Pamplona 1999) Sánchez Calero, Mora del asegurador – Fernando Sánchez Calero, ‘Mora del asegurador’ in Jesús Nicolás Martí Sánchez (ed.), Derecho de seguros, vol. II, Cuadernos de derecho judicial, No. 19 (1996) 327 Schauer – Martin Schauer, Das österreichische Versicherungsvertragsrecht (3rd edn Service-Fachverl., Vienna 1995) Scheltema/Mijnssen – Herman Jan Scheltema and Frans Hendrik Jacobus Mijnssen, Algemeen deel van het schadeverzekeringsrecht in Mr. M. Polak’s handboek voor het Nederlandse handels – en faillissementsrecht (5th edn Samsom, Alphen aan den Rijn 1998) Schimikowski – Peter Schimikowski, Versicherungsvertragsrecht (3rd edn Beck, Munich 2004) Peter Schlechtriem, Internationales UN-Kaufrecht (Mohr Siebeck, Tübingen 2005) Reiner Schulze, ‘Gemeinsamer Referenzrahmen und acquis communautaire’, Zeitschrift für Europäisches Privatrecht (2007) 130 Schütte – John M. Schütte, Insurance Law in Ireland (Schuütte, Dublin 1988) Schwintowski/Brömmelmeyer-Hübsch – Michael Hübsch in Hans-Peter Schwintowski and Christoph Brömmelmeyer (eds.), Praxiskommentar zum Versicherungsvertragsrecht (ZAP-Verl., Munster 2008) Schwintowski/Brömmelmeyer-Kloth/Neuhaus – Andreas Kloth and Kai-Jochen Neuhaus in Hans-Peter Schwintowski and Christoph Brömmelmeyer (eds.), Praxiskommentar zum Versicherungsvertragsrecht (ZAP-Verl., Munster 2008) Schwintowski/Brömmelmeyer-Schwintowski – Hans-Peter Schwintowski in Hans-Peter Schwintowski and Christoph Brömmelmeyer (eds.), Praxiskommentar zum Versicherungsvertragsrecht (ZAP-Verl., Munster 2008) Skouloudis – Zisis Skouloudis, Dikaio tis idiotikis asfalisis (3rd edn P. N. Sakkoulas, Athens 1999) Sørensen – Ivan Sørensen, Forsikringsret (4th edn Jurist- og Økonomforbundet, Copenhagen 2005) Monika Stahl, ‘The Principles of European Insurance Contract Law (PEICL) and Their Application to Insurance Contracts for Large Risks’, Veröffentlichungen aus dem LL.M.-Studiengang Internationales Wirtschaftsrecht der Universität Zürich und des Europa Instituts an der Universität Zürich, vol. 71 (Schulthess, Zurich 2013) Dirk Staudenmayer, ‘Ein optionelles Instrument im Europäischen Vertragsrecht?’ Zeitschrift für Europäisches Privatrecht (2003) 828 Steidl – Enrico Steidl, Il contratto di assicurazione (2nd edn Giuffrè, Milan 1990) Study Group on a European Civil Code and Research Group on the Existing EC Private Law (Acquis Group) (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR) (Full edition Sellier elp, Munich 2009) Verica Trstenjak, ‘Die Auslegung privatrechtlicher Richtlinien durch den EuGH: Ein Rechtsprechungsbericht unter Berücksichtigung des Common Frame of Reference’, Zeitschrift für Europäisches Privatrecht (2007) 145 Andrea Uber and Inga Krebs, ‘Neuerscheinungen versicherungswissenschaftlicher Bücher’ Zeitschrift für die gesamte Versicherungswissenschaft 99 (2010) 237 van der Sluijs, Studier i försäkringsrätt – Jessika van der Sluijs, Studier i försäkringsrätt (Jure, Stockholm 2011) van der Sluijs, Direktkrav – Jessika van der Sluijs, Direktkrav vid ansvarsförsäkring (Jure, Stockholm 2006)

889

Annexes

Vandeputte – Robert Vandeputte, Inleiding tot het Verzekeringsrecht (2nd edn Standaard Wetenschappelijke Uitgeverij, Antwerp 1983) Vasques – José Vasques, Contrato de seguro (Coimbra Editora, Coimbra 1999) Volpe Putzolu – Giovanna Volpe Putzolu, ‘Contratto di assicurazione e clausole abusive’ in G. Furgiuele, Diritto privato, vol. II (Condizioni generali e clausole vessatorie) (Cedam, Milan 1997) Wandt, Zulässigkeit – Manfred Wandt, ‘Anm. zu BGH, 8.5.2013 – Zulässigkeit eines zwischen VN und Versicherer rückwirkend vereinbarten Leistungsausschlusses in einer Gruppenrechtsschutzversicherung’, Versicherungsrecht (2013) 856 Wandt – Manfred Wandt, Versicherungsrecht (4th edn Heymanns, Cologne 2009) Wandt, Anwendbares Recht – Manfred Wandt, ‘Anm. zu BGH, 9. 12. 1998 – Anwendbares Recht auf Bezugsberechtigung aus Lebensversicherung’, Versicherungsrecht (1999) 347 Wansink, Het Verzekeringsarchief 2009 – Han Wansink, Het Verzekeringsarchief 2009, vol. 86, no. 1, 3 Wansink/Kamphuisen/Kalkman – J. H. Wansink, J. G. C. Kamphuisen and W. M. A. Kalkman (eds.), The New Dutch Insurance Contract Law (deLex, Amstelveen 2006) Wansink/Kamphuisen/Kalkman-Kamphuisen – J. G. C. Kamphuisen in J. H. Wansink, J. G. C. Kamphuisen and W. M. A. Kalkman (eds.), The New Dutch Insurance Contract Law (deLex, Amstelveen 2006) Wansink/Kamphuisen/Kalkman-Wansink – J. H. Wansink in J. H. Wansink, J. G. C. Kamphuisen and W. M. A. Kalkman (eds.), The New Dutch Insurance Contract Law (deLex, Amstelveen 2006) Daniela Weber-Rey, ‘Harmonisation of European Insurance Contract Law’ in Stefan Vogenauer and Stephen Weatherill (eds.), The harmonisation of European contract law: implications for European private laws, business and legal practice (Hart Publishing, Oxford 2006) 207 Felix Wieser, ‘The Perspective of the Insurance Industry’ in Helmut Heiss and Mandeep Lakhan (eds.), Principles of European Insurance Contract Law (PEICL): A Model Optional Instrument (Sellier elp, Munich 2011) 51 Wilhelmsson – Thomas Wilhelmsson, ‘The implementation of the EC directive on unfair contract terms in Finland’ (1997) 5 European Review of Private Law 151 Willett – Chris Willett, ‘The Directive on Unfair Terms in Consumer Contracts and its implementation in the United Kingdom’, (1997) 5 European Review of Private Law 223 Wilson/Forte-Forte – Angelo Forte in W. A. Wilson and Angelo Forte (eds.), The Law of Scotland (10th edn W. Green/Sweet & Maxwell, Edinburgh 1995) Alessandra Zanobetti, ‘Book Review: Jürgen Basedow/John Birds/Malcolm Clarke/Herman Cousy/ Helmut Heiss (Editors), Principles of European Insurance Contract Law (PEICL)’ (2010) Uniform Law Review 611

890

Index Abuse of rights Art. 2:304 N4; Art. 2:304 N6; Art. 2:304 N11; Art. 2:604 N1; Art. 2:604 N4; Art. 8:104 C5 Acceptance Art. 2:302 C1; Art. 2:302 C4; Art. 2:302 N1; Art. 2:302 N4; Art. 11:101 N8 Acceptance of the designation by the insured Art. 11:101 N8 Advanced payment of premium Art. 5:101 C4 Policy Art. 2:502 C1; Art. 2:502 C3; Art. 2:502 N2; Art. 2:502 N3; Art. 2:502 N8 See also Claims Accessory Group Insurance Arts. 18:20118:204 See also Group insurance Acknowledgement of Liability Art. 14:104; Art. 15:102 Acceptance of the victim’s claim Art. 14:104 C1 Duty of cooperation Art. 14:104 C1 Acquis communautaire see Community law Adjustment see Alteration Adjustment of premium Art. 2:601 C1; Art. 2:602 C3; Art. 2:603; Art. 17:303; Art. 17:304 C1; Art. 17:304 C12 Actuarial principles Art. 17:202; Art. 17:303 C12; Art. 17:303 C13; Art. 17:603 Actuary Art. 17:303 C9; Art. 17:603 C4 Adjustment clauses Art. 17:303 C14 Alteration of risk Art. 17:303 C6 Biometric risks Art. 17:303 C8; Art. 17:303 C12; Art. 17:303 C13 Calculation of the benefits Art. 17:303 C9; Art. 17:303 C10 Certainty of insured event Art. 17:303 C5 Form Art. 17:303 C11 Health insurance Art. 17:303 C3 Independent supervisory authority Art. 17:303; Art. 17:303 C8; Art. 17:303 C12 Independent trustee Art. 17:303; Art. 17:303 C8; Art. 17:303 C12 Insurance benefits Art. 17:303; Art. 17:303 C1; Art. 17:303 C6; Art. 17:303 C7; Art. 17:303 C8 Insurer’s solvency Art. 17:303 C8 Investment risk Art. 17:303 C5 Mortality tables Art. 17:303 C14 Offset Art. 17:303 Paid-up policy Art. 17:303 C6 Premium increase Art. 4:203 C3; Art. 15:102 C8; Art. 17:303; Art. 17:303 C7; Art. 17:303 C11

Premium reduction Art. 1:205 C5; Art. 4:301; Art. 4:301 C6; Art. 4:301 N1; Art. 4:301 N2; Art. 4:301 N3; Art. 4:301 N4; Art. 4:301 N6; Art. 8:103; Art. 8:103 N1; Art. 8:103 N5; Art. 17:303; Art. 17:303 C2; Art. 17:303 C12 Premium stability Art. 17:303 C13 Procedure of alteration Art. 17:303 C8 Recalculation Art. 18:204 C6 Reduction of benefits Art. 17:303 C6; Art. 17:303 C7; Art. 17:303 C11 Right to terminate Art. 17:303 C1 Risks for which the insurer is certain to be liable Art. 17:303 Savings element Art. 17:303 C5 Selective adjustment Art. 17:303 C10 Supervisory emergency measures Art. 17:303 C1 Technical provisions Art. 17:303 C13 Term life insurance Art. 17:303 C5 Time of effectiveness Art. 17:303 C11 Time of reduction of premium Art. 17:303 C11 Unit-linked contracts Art. 17:303 C5 Written notice Art. 17:303 C11 See also Agent See also Clauses See also Group insurance See also Risk See also Supervisory law Agency Art. 6:101 N4; Art. 9:101 N6 Authority to give notice Art. 6:101 Imputation of knowledge Art. 1:206 C2; Art. 1:206 N1; Art. 1:206 N2 Power of attorney Art. 3:101 C3; Art. 3:101 C7 See also Agent See also Commercial Agency Directive Agent Art. 1:202; Art. 1:202 C7; Art. 2:202 C4; Art. 2:202 N7; Art. 3:101; Art. 3:101 C1; Art. 3:102; Art. 3:102 C3; Art. 11:103 C8 Additional powers to the agent Art. 3:101 C3 Commission Art. 17:204 C4 Knowledge of the agent Art. 1:206 N3; Art. 2:101 C6; Art. 3:101 C7; Art. 3:101 N6 Knowledge of the agent’s conduct Art. 3:102 C2 Liability of the agent I52; Art. 3:101 C8 Powers of the agent Art. 3:101 Purported independence I52; Art. 3:102; Art. 3:102 C1; Art. 3:102 C2

891

Aggravation of risk

See also Agency See also Definitions Aggravation of risk Art. 1:205 N3; Art. 2:103 C2; Art. 2:604 C4; Art. 4:101 C2; Art. 4:201; Art. 4:201 C1; Art. 4:201 C2; Art. 4:201 C4; Art. 4:203 C1; Art. 17:302; Art. 18:203 C1; Art. 18:203 C3-C4 Abusive clause Art. 17:302 C3 Age Art. 17:205 C3; Art. 17:205 C7; Art. 17:302; Art. 17:302 C2; Art. 17:302 C3 Deterioration in health Art. 17:205 C3; Art. 17:205 C7; Art. 17:302; Art. 17:302 C2; Art. 17:302 C3; Art. 18:204 C6 Employment of the person at risk Art. 17:205 C8 Insurance period Art. 4:201 C2 Material Art. 4:201; Art. 4:201 C4; Art. 4:201 N2; Art. 4:203 C1; Art. 17:302 C1 Notice of an aggravation Art. 4:202; Art. 4:202 C1; Art. 4:202 C3; Art. 4:202 N1; Art. 11:103 C5 Sanctions of aggravation of risk Art. 4:203; Art. 17:302 C4; Art. 18:203 C3; Art. 18:203 C4 Specification in the contract Art. 4:201 N3 Termination of contract Art. 2:604 C4; Art. 4:102 C2; Art. 4:203; Art. 4:203 C1; Art. 4:203 C2;Art. 17:205 C3; Art. 17:205 C7; Art. 17:205 C8; Art. 18:203; Art. 18:203 C1; Art. 18:203 C3; Art. 18:203 C4 Air Services Operation Regulation Art. 16:101 C7 Aircraft Insurance Regulation Art. 16:101 C7 All-or-nothing principle Art. 2:102 N1; Art. 2:102 N2; Art. 2:102 N3; Art. 2:104 N2; Art. 4:202 N2; Art. 4:203 N2 Alteration of terms and conditions Art. 2:202 C5; Art. 2:601 C5; Art. 2:603; Art. 8:103; Art. 8:103 C1; Art. 8:103 N2; Art. 17:303; Art. 17:304; Art. 17:304 C1; Art. 18:302; Art. 18:302 C1; Art. 18:302 C2; Art. 18:302 C3 Abusive clauses Art. 17:304 C14 Adjustment of contract Art. 2:304 C14; Art. 2:602 C3; Art. 8:104 N6; Art. 17:102 C11; Art. 17:102 C12; Art. 17:303 C11; Art:304 C2 Alteration clauses Art. 17:304 C3-C4 Alteration clauses in life insurance Art. 17:304 C14 Alteration of administrative practice Art. 17:304 C6 Alteration of existing national law Art. 17:304 C6; Art. 17:304 C14 Alteration of supervisory law Art. 17:304 C7 Bold print Art. 2:502; Art. 2:502 C2; Art. 2:602 Clear terms Art. 17:304 C11 Contract period Art. 17:304 C13

892

Index

Employers’ pension plans Art. 17:304 Language Art. 17:304 C11 Minimum requirements for alteration Art. 2:603 C5; Art. 17:304 C3; Art. 17:304 C4; Art. 17:304 C11; Art. 17:304 C12; Art. 17:304 C14; Art. 18:302 C3; Art. 18:302 C4 Need for adjustments Art. 2:603 C1 Non-notification of alteration Art. 2:604 C4 Pension schemes Art. 17:304 C8 Reasons for alterations Art. 17:304 C5; Art. 17:304 C6 Replacement of invalid clauses Art. 17:304 C10 Retroactive effect Art. 17:304 C13 Savings element Art. 17:304 C7; Art. 17:304 C10 Small print Art. 2:304 C14 State subsidies Art. 17:304 C9 Supervisory authority Art. 17:304 C7 Supervisory law Art. 17:304 C7 Tax privileges Art. 17:304 C9 Tax treatment Art. 17:304 Written notice Art. 17:303 C11; Art. 17:304 C11 See also Clauses See also Premium See also Transparency Alternative dispute resolution I29; I33; Art. 1:302 C1; Art. 2:701 N6; Art. 15:102 C4 See also Arbitration clause See also Out-of-court complaint and redress mechanisms Annuity Art. 1:201 C6; Art. 13:101 N5 Applicant Requirements Art. 2:202 Right to a copy of documents Art. 2:201 C4 Application form Art. 2:201; Art. 2:201 N7 Application of the PEICL I13; Art. 1:101 – Art. 1:105; Art. 18:201; Art. 18:301 Absolutely mandatory provisions I20; Art. 1:103 C4; Art. 1:103 N4; Art. 17:601 C6; Art. 18:201 C2 Applicable law Art. 15:101 C7; Art. 15:101 C11 Application ex officio I33 Choice of law I45; Art. 1:103 C6; Art. 1:103 C7; Art. 1:103 N13; Art. 1:104 C8; Art. 15:104 C7; Art. 18:101 C5 Collective insurance Art. 1:101 N1; Art. 1:103 N11 Common Frame of Reference Art. 1:105 C7 Comprehensive protection I47; I49; Art. 1:102 C5 Conflict of laws I1; Art. 1:101 C5; ; Art. 1:102 C3; Art. 1:103 C6; Art. 8:104 C8; Art. 17:401 C8; Art. 17:402 C2

Index

Consent by group members Art. 18:101 C4; Art. 18:101 C5 Construction Art. 1:203 C3 Derogation Art. 1:103; Art. 1:103 C4; Art. 1:103 C5 Domestic insurance contracts Art. 1:102 C4 Enforcement see Enforcement Group insurance Art. 1:103; Art. 1:103 C7; Art. 18:101; Art. 18:101 C5; Art. 18:102 C2; Art. 18:201 C3-C5; Art. 18:301 C2-C4 Intermediaries Art. 1:101 C6; Art. 1:102 C7 Language I27 Lex mercatoria Art. 1:101 C8 Life insurance Art. 1:201 C12; Art. 17:401 Mutatis mutandis Art. 14:108 C7; Art. 17:103 C6; Art. 18:201; Art. 18:201 C4-C7; Art. 18:202 C2; ; Art. 18:303 C4 Recourse to national law I14; Art. 17:401 C3 Partial choice Art. 1:102 C5 Principles common to the laws of the Member States I16; Art. 1:105 Private insurance Art. 1:101; Art. 1:101 N1 Professionals Art. 1:103 C7 Reinsurance I13; Art. 1:101; Art. 1:101 C8; Art. 1:101 N6 Semi-mandatory I21; I22; Art. 1:103 C4; Art. 1:103 C5; Art. 1:103 C6; Art. 12:101 C3; Art. 17:502 C8 Small businesses Art. 1:103 C7; Art. 4:103 N4 Substantive scope Art. 1:101 C1 Supervisory law Art. 1:105 C3 Terminology I14; I27 Translations I27 Transport insurance Art. 1:103 C6; Art. 1:103 N6; Art. 1:103 N11; Art. 12:102 C7 Uniform application I28; Art. 1:104 C7; Art. 1:105 C2; Art. 1:105 C3; Art. 1:204 N1 Uniform interpretation I28 Uniform law Art. 1:105 C6 Arbitration I60; Art. 2:304 C13; Art. 2:304 C14 Arbitration clause Art. 2:304 C14 See also Alternative dispute resolution Assignment Art. 11:101 C6; Art. 11:101 N4; Art. 12:102 N8; Art. 14:105; Art. 17:101; Art. 17:104; Art. 17:503 Assignment of the claim Art. 10:101 N1; Art. 14:105 C1; Art. 14:105 C2; Art. 14:105 C3; Art. 17:503 C3 Collusion Art. 14:105 C2 Consent Art. 17:104 C4 Consent of person at risk Art. 17:101 C8 Direct claim Art. 14:105 C1 Effect Art. 17:104 C5 No-claims bonuses Art. 14:105 C4

Beneficiary

Written consent of beneficiary Art. 17:104 C1; Art. 17:104 C2 Written consent of person at risk Art. 17:101 C8; Art. 17:101 C9; Art. 17:101 C11; Art. 17:104 C3 Written consent of policyholder Art. 17:104 C1; Art. 17:104 C3 See also Cessio legis See also Subrogation Association Art. 11:103 C1 Association of British Insurers Art. 2:102 N8 Assurance see Insurance Austrian Consumer Protection Act Art. 17:303 C3; Art. 17:304 C3; Art. 2:603 N2 Average adjuster Art. 6:104 N1 Avoidance Cooling-off period Art. 2:303; Art. 2:303 C3; Art. 2:303 C4 Exception for short duration Art. 2:303 C8 Fraud Art. 2:104; Art. 2:104 C3 Non-disclosure Art. 2:104 C5 Right to cancellation Art. 2:303 N1; Art. 2:303 N4 Bad faith Art. 2:401 N3; Art. 2:401 N5; Art. 6:105 C3; Art. 12:101 N4 Exceptio doli Art. 2:103 N2 Beneficiary I2; I21; I22; I29; I43; Art. 2:201; Art. 2:501; Art. 4:103 N15; Art. 7:103 C1; Art. 11:101 C7; Art. 12:102 N6; Art. 17:101; Art. 17:102; Art. 17:104; Art. 17:105; Art. 17:501; Art. 17:503 Cover Art. 2:401 N1; Art. 2:402 C2; Art. 2:402 N8; Art. 5:101 C12 Economic incentive Art. 17:101 C3 Economic interest Art. 17:101 C2; Art. 17:101 C3 Enforcement of rights I29; Art. 1:302; Art. 1:302 C2; Art. 1:302 C3 Imputation Art. 1:206; Art. 1:206 N1; Art. 1:206 N2; Art. 3:101 C7; Art. 11:101 N1 Information Art. 17:501 C1; Art. 17:501 C2; Art. 17:501 C3; Art. 17:501 C7-C9 Information duty Art. 6:102 C1 Insurance money Art. 17:102 C1; Art. 17:102 C2; Art. 17:102 C3; Art. 17:102 C4; Art. 17:102 C5; Art. 17:102 C6; Art. 17:502 C6 Insurance of fixed sums Art. 13:101; Art. 13:101 C1; Art. 13:101 C2; Art. 13:101 N3 Notice Art. 1:205; Art. 1:205 C2; Art. 1:205 C6; Art. 1:205 C7; Art. 1:205 N1; Art. 1:205 N2; Art. 1:205 N3; Art. 4:202; Art. 6:101; Art. 6:101 N3 Protection I51; Art. 1:103; Art. 1:103 C2; Art. 1:103 C7; Art. 1:105 C4; Art. 1:203; Art. 2:304; Art. 2:304 C10; Art. 2:304 C12; Art. 17:205 C2

893

Benefit

Rights Art. 17:104 C1; Art. 17:104 C2; Art. 17:105 C1; Surrender value Art. 17:102 C1; Art. 17:102 C2; Art. 17:102 C3; Art. 17:102 C4; Art. 17:602 C1 See also Definitions See also Designation See also Enforcement See also Killing of the person at risk See also Third party Benefit Benefit insurance Art. 13:101 N1 Benefits payable Art. 17:303 Calculation of benefits Art. 13:101 N1 Changes in benefits Art. 2:701 N10 Insurance contract for the benefit of a third party Art. 12:102 C10 Insurance for the benefit of a future transferee Art. 12:102; Art. 12:102 C7 Paid-up policy Art. 17:303 C6; Art. 17:303 C7 Reduction of benefits Art. 17:303 C7; Art. 17:303 C11 Right to reduce the insurance benefit Art. 17:303 C1 Bonus-Malus systems see No-claims bonuses Branches of insurance I11; I17; I71; Art. 1:103 C1; Art. 2:603 C5 Causation of loss Art. 9:101 N2 Cooling-off period Art. 2:303 C3; Art. 2:303 N4 Exclusion Art. 1:101 N7 Insurance of fixed sums Art. 13:101 C1-C2 Mandatory national law Art. 1:105; Art. 1:105 C5 Mandatory regulation Art. 1:103 C1; Art. 1:103 C6; Art. 1:103 N10; Art. 1:103 N11 Pre-contractual documents Art. 2:201 C3 Retroactive cover Art. 2:401 N4 Variations in insurance contracts Art. 1:201 N4 See also Insurance Breach Breach of a co-insured’s duty Art. 11:103 C2; Art. 11:103 C10 Breach of duty by the insured Art. 11:103 Group insurance Art. 11:103 C7-C8 Innocent breach Art. 2:102; Art. 2:102 N9 Intentional breach Art. 2:102 C6; Art. 2:102 N2; Art. 2:102 N6; Art. 2:604 N6; Art. 4:103 N15; Art. 4:203; Art. 6:101 N11 Pre-contractual disclosure duties Art. 17:205 C4-C6 Proportionality rule Art. 2:104 C5 Remedies for breach of disclosure duty Art. 2:102 C1; Art. 2:102 C4 See also Disclosure

894

Index

See also Duty of disclosure See also Fraud See also Notice See also Payment Brussels Convention I1; Art. 1:104 C5 Brussels Ibis Regulation I2; I22; Art. 1:103 C6; Art. 1:104 C8; Art. 14:101 C7 Burden of proof Art. 1:207 C9; Art. 2:202 C7; Art. 2:304; Art. 2:304 C7; Art. 2:304 C12; Art. 2:304 C14; Art. 2:403 N2; Art. 2:501 N7; Art. 4:102 N5; Art. 4:103 C2; Art. 6:102 C3; Art. 9:102 N4 Group insurance Art. 18:202 C8 Shifting the burden of proof Art. 8:101 N4 Unfairness Art. 2:304 C12-C13 See also Conclusion of the contract See also Receipt of documents Cancellation Art. 2:304 C14 Carelessness Art. 9:101 N1 Causal connection Art. 2:102 C6; Art. 2:102 N2; Art. 4:101 C2; Art. 4:103 N6; Art. 4:103 N8; Art. 4:203 C4 See also Cessation of insured risk Causal link see Causal connection Causation Art. 4:101 N1; Art. 4:102 N3; Art. 4:102 N5; Art. 4:103 C1; Art. 4:103 C2; Art. 4:103 N2; Art. 4:103 N4; Art. 4:202; Art. 4:203 Repräsentantenhaftung Art. 9:101 N6 See also Causal connection See also Insured event See also Intent See also Loss See also Policyholder See also Pre-contractual information duties Causation of loss Art. 9:101; Art. 9:101 N2; Art. 14:103 Degree of fault Art. 9:101 C4; Art. 14:103 C4 Intentional Art. 14:103 C1 Precautionary measures Art. 14:103 C2 Reduction of insurance money Art. 14:103 Specific instructions Art. 14:103 C2 See also Mitigation of loss CEICL see Common European Insurance Contract Law CESL see Common European Sales Law CESL Regulation Proposal I15; I53-I55 See also Common European Sales Law Cessation of insured risk Art. 2:401 N6; Art. 12:101 C5; Art. 12:101 N1; Art. 12:101 N5 Notice of the cessation of the risk Art. 12:101 C6 Permanent cessation of risk Art. 12:101 C8 Cessio legis Art. 10:101 C1; Art. 10:101 N1 See also Assignment

Index

Charter of Fundamental Rights of the European Union Art. 1:207 C2 Choice of jurisdiction Art. 1:103 C7; Art. 1:103 N13 Choice of law I31; I37; I39; I40; Art. 1:102 C2; Art. 1:102 C3; Art. 1:103 C6; Art. 1:103 C7; Art. 1:103 N13; Art. 1:104 C8 Choice of foreign law I40 Overriding mandatory provision I39 Substantive choice I43 See also Application of the PEICL Chronological principle Art. 8:104 C6 CISG see United Nations Convention on Contracts for the International Sale of Goods (CISG) Claims Art. 3:101 C1; Art. 6:103 Acceptance of claims Art. 6:103; Art. 6:104; Art. 7:102 C2 Beneficiary Art. 7:103 C1 Claim for reduction Art. 8:103 N2 Claim form Art. 6:101 C6 Claims cooperation Art. 6:102 Claims settlement office Art. 2:701 N6 Constructive acceptance Art. 7:102 C2 Final decision on the claim Art. 7:102 C2 Insured’s claim Art. 10:101 C12 Rejection Art. 7:102 C2; Art. 7:102 N8 Right to claim the insurance money Art. 11:101 C3 Settlement Art. 6:103; Art. 6:103 C3 Statement of claim by the policyholder Art. 7:102 C2 Validity of insurance claims Art. 6:103 C2 Wrongful rejection Art. 7:102 C2 See also Direct claims See also Enforcement See also Prescription Claims exceeding the sum insured Art. 14:108 Aggregate of claims Art. 14:108 C1 Distribution among victims Art. 14:108 C2 Duty of equal treatment of victims Art. 14:108 C3; Art. 14:108 C7 Good faith Art. 14:108 C3; Art. 14:108 C7; Art. 14:108 C8; Art. 14:108 C9 Multiple events Art. 14:108 C6-C7 Proportionality (rule) Art. 14:108 C2; Art. 14:108 C4-C5 Protection of the insurer Art. 14:108 C8 Unlimited coverage Art. 14:108 C1 See also Sum insured Claims made clauses Art. 14:107 C20-23 Anterior cover Art. 14:107 C3 Duration of cover Art. 14:107 C18 Liability period Art. 14:107 C15

Common Frame of Reference

Posterior cover Art. 14:107 C3; Art. 14:107 C12; Art. 14:107 C22; Art. 14:107 C23 Subsequent period Art. 14:107 C10; Art. 14:107 C21 Claims made policies Art. 14:107 C4 Anterior cover Art. 14:107 C3 Austria Art. 14:107 C8 Belgium Art. 14:107 C12 Germany Art. 14:107 C9 France Art. 14:107 C10 Luxembourg Art. 14:107 C13 Netherlands Art. 14:107 C7 Prohibition Art. 14:107 C6 Restriction Art. 14:107 C6 Spain Art. 14:107 C11 Clauses Abusive clauses Art. 2:304; Art. 8:104 C5; Art. 17:303 C3; Art. 17:304 C14 Adjustment clauses I71; Art. 17:303 C4; Art. 17:303 C14; Art. 17:304 C3; Art. 17:304 C4 Alteration clauses see Adjustment clauses Clear clauses Art. 4:103 C4; Art. 9:101 Discharge clauses Art. 4:101 C2; Art. 4:103 C1; Art. 4:103 N1 En-bloc clauses Art. 2:603 N1 Escape clauses Art. 8:104 C5 Exclusion clauses Art. 4:103 N1 Invalidity of a clause Art. 2:304 N13 One-sided clause Art. 2:604 C2 Rateable proportion clause Art. 8:104 N9 Requirement for a valid alteration clauses Art. 2:603 C2; Art. 2:603 C4; Art. 17:304 C3; Art. 17:304 C4 Unfairness Art. 2:304; Art. 14:107 C25 See also Adjustment of premium See also Arbitration clause See also Notice See also Partial invalidity Collusion Art. 11:102 C1 Commercial Agency Directive Art. 18:102 C2 Commercial contracts Art. 2:304 C2; Art. 2:304 N6 Common European Insurance Contract Law I31-I55; I56; I70; I72 Non-State body of law I31 Common European Sales Law I15; I53-I55; I65; I67 Common Frame of Reference I59-I65 Common Frame of Reference of European Contract Law I59-I62; I64; I65; Art. 1:105 C7 Common Frame of Reference of Insurance Contract Law I61; I63; I64 See also Draft Common Frame of Reference

895

Common Principles of European Insurance Contract Law

Index

Common Principles of European Insurance Contract Law I72 Community law I1; I9; I22; I23; I26; I27; I59; I60; Art. 1:102 C2; Art. 1:102 C3; Art. 1:103 C7; Art. 1:103 N10; Art. 1:104 C4; Art. 1:104 C6; Art. 1:104 C8; Art. 1:105 C7; Art. 1:205 N1; Art. 1:207 C3; Art. 1:301 N1; Art. 2:202 N1; Art. 2:203 N1; Art. 2:303 N1; Art. 4:101 N1; Art. 4:103 N1; Art. 7:101 N1; Art. 16:101 EC Directives Art. 2:202 N1 See also European insurance contract law Community Trademark Regulation I38 Compensation Art. 2:201; Art. 2:304 C13; Art. 2:403 N2; Art. 4:103 N13; Art. 6:104 N2; Art. 6:105 C1; 10:101 C1; 10:101 C3; 10:101 N1; 10:101 N3; 10:101 N6; 13:101 N4 Deductible Art. 8:104 C9; Art. 10:101 C6 Exemption Art. 9:101 N1; Art. 9:101 N3; Art. 9:101 N6; Art. 9:101 N8; Art. 9:101 N10 Indemnity principle Art. 8:101 C1; Art. 8:101 C3 Quasi-contractual compensation Art. 2:202 N8 Reduction Art. 9:101 N4; Art. 9:101 N10 Sanctions Art. 2:202 N6; Art. 2:202 N7; Art. 2:202 N8; Art. 2:202 N9 Tortious compensation Art. 2:202 N8 Underinsurance Art. 8:102 C1; Art. 8:102 C2; Art. 8:102 C7; Art. 8:102 N9 See also Mitigation costs Competition I5; Art. 1:102 C4; Art. 1:202 C7; Art. 2:304 C4; Art. 2:601 C2; Art. 2:702 C1; Art. 2:702 C3 Compulsory insurance I18; I71; Art. 1:202; Art. 1:202 C12; Art. 2:601 N1; Art. 8:101 C4; Art. 15:101; Art. 15:101 C2; Art. 15:101 C3; Art. 15:101 C11; Art. 16:101; Art. 16:101 C5; Art. 16:101 C6 Air carriers Art. 16:101 C7 Liability insurance I18; Art. 2:303 C11; Art. 14:107 C12; Art. 16:101 C2 Community law Art. 16:101; Art. 16:101 C7 Corporate veils Art. 16:101 C1 Duty to insure Art. 16:101 C3-C5; Art. 16:101 C6-C9; Art. 16:101 C11 Hazardous activities Art. 16:101 C1 Insurance intermediaries Art. 16:101 C7 Law of the European Union Art. 1:202 C12; Art. 16:101 C6 Law of the Member States Art. 1:202 C12; Art. 16:101 C6; Art. 16:101 C8 Law of third States Art. 1:202 C12; Art. 16:101 C6; Art. 16:101 C9 Lawyers Art. 16:101 C7 Member State Art. 16:101 Motor vehicles Art. 16:101 C7

Municipalities Art. 1:202 C12; Art. 16:101 C8 Non-Member State I72; Art. 16:101 Professional bodies Art. 1:202 C12; Art. 16:101 C8 Scientific and technological progress Art. 16:101 C1 Ship-owners Art. 16:101 C7 Strict liability Art. 16:101 C1 Voluntary insurance Art. 1:202 C12 Conclusion of the contract Art. 1:205 C1; Art. 1:205 N2; Art. 2:301-Art. 2:304; Art. 2:301 C6; Art. 2:302 C1; Art. 12:101 Agreement Art. 2:301 C4: Art. 2:301 C6 Binding nature of an offer Art. 2:302 N3; Art. 2:302 N5 Conclusion in writing Art. 2:301; Art. 2:301 C4 Consensual contract Art. 2:301 N2; Art. 2:301 N4 Cooling-off period Art. 2:303; Art. 2:303 C5 Essentialia negotii Art. 2:304 N12 Exceptions from judicial review Art. 2:304 N12 Fax Art. 2:301 C6 Formalities I71; Art. 2:301 C5; Art. 2:301 C10; Art. 2:301 C11 General contract law Art. 2:301 N1 Grey list Art. 2:304 C9 Offer Art. 2:302 N3; Art. 2:302 N5; Art. 2:302 N1; Art. 2:302 N2 Plain and intelligible language Art. 2:304; Art. 2:304 C5 Post Art. 2:301 C6; Art. 2:302 C1 Review of the fairness Art. 2:304 N4 Rewriting the contract Art. 2:304 N14 Small print Art. 2:304 C14 Third parties Art. 2:303 C3; Art. 2:303 C7; Art. 2:303 C9 Variation of contract Art. 2:304 C14 See also Clauses See also Notice Condition precedent Art. 4:101; Art. 4:101 C3; Art. 4:101 C4; Art. 4:101 C5; Art. 4:102 N1; Art. 4:102 N2; Art. 4:102 N6; Art. 4:103 N5; Art. 4:103 N10; Art. 6:101 C7 Consumer Art. 2:601 N3; Art. 2:602 C5; Art. 6:102 N1; Art. 6:105 C7; Art. 8:102 C1; Art. 14:107 Consumer associations as qualified entity I30 Consumer contracts I3; I22; Art. 2:102 N8; Art. 2:303 N4; Art. 2:304 C2; Art. 2:304 N1; Art. 2:304 N2; Art. 2:304 N3; Art. 2:304 N6; Art. 2:604 N1; Art. 9:102 N8; Art. 14:107 C13; Art. 14:107 C14

896

Index

Consumer insurance I45; Art. 1:101 N1; Art. 1:101 N4; Art. 1:103 C6; Art. 1:103 C7; Art. 1:103 N9; Art. 1:201 N2; Art. 2:102 N6; Art. 2:303 N1; Art. 2:303 N4; Art. 2:304 N6; Art. 4:103 N4; Art. 4:202 N1; Art. 4:203 N2; Art. 5:101 N4 Consumer liability insurance Art. 14:107 C14 Consumer policies Art. 8:102 N1 Consumer protection I41; I48; Art. 1:103 N9; Art. 2:304 N2; Art. 2:602 C6; Art. 2:603 N2 Pre-contractual consumer information Art. 1:203 N2 Withdrawal rights I23 See also Enforcement See also Out-of-court complaint and redress mechanisms See also Transparency Consumer Credit Directive Article 2:201 C1 Consumer rights I48; Art. 2:201 C1; Art. 2:602 C6 Contract Consensual contracts Art. 1:205 C1; Art. 1:205 C2; Art. 2:301 N2; Art. 2:301 N4 Contract in favour of a third party Art. 11:101 C1 Contract of compromise Art. 6:103 C2 Contract on account of a third party Art. 11:101 C1 Contract period Art. 2:701; Art. 5:104 Contract term Art. 2:701 N10 Cross-border I55; Art. 1:102 C4 Distance contracts I55; Art. 2:303 C7; Art. 17:203 C2 Investment contract Art. 17:204 C5 See also Adjustment See also Aggravation of risk See also Benefit See also Compensation See also Consumer See also Definitions See also Duration See also Insurance See also Insurance intermediaries See also Insurance policy See also Life assurance See also Negotiation Contractual derogation Art. 7:103 N2; Art. 8:102 N4; Art. 9:101 C7 Contractual derogations of Articles 7:101, 7:103 Art. 7:103 C3 Contractual stipulations Art. 6:101 N12 Release of the insurer’s duty to perform Art. 6:101 N12 Conversion Art. 17:601 Non-payment of premium Art. 17:601 C1 Request in writing Art. 17:601

Cover

General contract law Art. 17:601 C4 Paid-up policies Art. 17:601 C2 Form of request Art. 17:601 C5 Information duty Art. 17:601 C4 Electronic documents Art. 17:601 C5 Supervisory law Art. 17:601 C1 Written request Art. 17:601 C5 Conversion value Art. 17:601 C1 Calculation of conversion value Art. 17:603; Art. 17:603 C1; Art. 17:603 C3; Art. 17:603 C4; Art. 17:603 C5; Art. 17:603 C6 See also Surrender value Co-owner Art. 9:101 N6 Cooling-off period Art. 2:201 N2; Art. 2:303 Group insurance Art. 2:303; Art. 2:303 C1113; Art. 2:304 N7 Life insurance Art. 17:203 Right to cancellation Art. 2:303 N1; Art. 2:303 N4 Time limit on notice Art. 2:303 C6 CoPECL Network I62; I63; I65 Costs Art. 1:201 C7; Art. 2:701 N8; Art. 12:101 C6 Cost of borrowing Art. 6:105 C6 Cost of repair Art. 1:201 C7; Art. 8:101 C2 Mitigation costs Art. 8:101 C3; Art. 8:102; Art. 8:102 C2; Art. 8:104; Art. 9:102; Art. 9:102 C2; Art. 9:102 C6; Art. 9:102 N1-N8; Art. 15:104 C5; Art. 14:101 C1; Art. 14:101 C3; Art. 15:104 C5 New for old Art. 8:101 C2 Replacement costs Art. 1:201 C7; Art. 8:101 C2 Transaction costs Art. 2:502 C1 See also Defence costs Cover Art. 1:201 C2; Art. 1:201 N5; Art. 2:604; Art. 4:203 Commencement of cover Art. 2:203; Art. 2:203 C1; Art. 5:101; Art. 5:101 C9 Cover “lost or not lost” Art. 2:401 N7 Cover notes Art. 2:501 N12; Art. 2:402; Art. 2:402 N2; Art. 2:402 N8 Einlöseprinzip Art. 5:101 N1 End of cover Art. 4:102 N10 Essential description of the cover Art. 2:304 Exception Art. 4:101 C4 Formation of cover Art. 5:101 Granting of insurance cover Art. 3:101 C1 Immediate cover Art. 2:203 C1 Interim cover Art. 2:402 N8 Minimum content of cover notes Art. 2:402 N3; Art. 2:402 N4 Passing of insurance cover Art. 12:102 N7 Perception Art. 2:202 N3 Provisional cover Art. 2:402 N6 Resumption of cover Art. 5:102 C9

897

Credit

Revocation of cover Art. 5:102 C2; Art. 11:101 C6; Art. 11:101 N4 Short period cover Art. 2:303 C7; Art. 2:303 C8; Art. 2:303 N5 Suspension Art. 5:102 C6; Art. 7:103 N1; Art. 7:103 N3; Art. 7:103 N5 Suspension on lodging notice or claim Art. 7:103 N4 See also Definitions See also Duration See also Indemnity See also Insurance See also Insurance contracts See also Loss See also Preliminary cover See also Pro rata See also Third party Credit Injury to credit reputation Art. 6:105 C6 See also Loss Credit insurance Art. 1:101 N7; Art. 1:103 N6; Art. 1:103 N11 Criminal conviction Art. 11:102 C2 Criminal law Art. 2:104 C2; Art. 13:101 C2 Cross-border Activities I35; I66; I71 Branch offices I4; I5 Foreign subsidiaries I4; I5 Insurance products I2; I31; I50; I66; I71 Pooling of risks I50 Provision of insurance services I3; I4; I6; I7; I56; I67; I71; Art. 1:105 C5; Art. 2:402 N4 Sales I2; I3; I31; I50; I64; Art. 1:105 C6 Damages Art. 1:203 C8; Art. 2:202 C5; Art. 2:202 C6; Art. 2:203 N4; Art. 2:702 C5; Art. 6:101 N10; Art. 6:105; Art. 6:105 C2; Art. 6:105 C3; Art. 6:105 N1; Art. 10:101 N6 Damage from salvage measures Art. 9:102 N5 Damages suffered by the policyholder Art. 9:102 C2 See also Liquidated damages Data Art. 1:208; Art. 1:208 C1 Computer Art. 2:103 C5 Genetic Art. 1:208 C1; Art. 1:208 C2; Art. 1:208 C4; Art. 1:208 C5 Declaration Art. 2:201 N7 Notice Art. 1:205 C5; Art. 1:205 C8; Art. 6:101 N4 Receipt by agents Art. 3:101 N1; Art. 3:101 N3 Termination Art. 1:205 C10; Art. 2:601 C4; Art. 4:102 N1; Art. 4:301 N4; Art. 11:103 C10 Wissenserklärung Art. 6:101 N4 Defence costs I71; Art. 14:101; Art. 15:104 C5 Agreement Art. 14:102 C4

898

Index

Conflicts of interest Art. 14:101 C4 Costs of litigation Art. 14:101 C2 Criminal proceedings Art. 14:101 C7 Disciplinary proceedings Art. 14:101 C7 Free choice of defence lawyer Art. 14:101 C6 Mitigation costs see Costs Multiple insurance Art. 14:101 C8 Prescription Art. 15:104 C5 Reasonableness of defence costs Art. 14:101 C3 Sum insured Art. 14:101 C4; Art. 14:101 C5 See also Mitigation of loss Definitions Art. 1:201 – Art. 1:207; Art. 1:201 C1; Art. 1:201 N1; Art. 1:202 Accessory group insurance Art. 1:201 C13-C14 Agent Art. 1:202 C7 Beneficiary Art. 1:202 C4; Art. 1:202 C5 Compulsory insurance Art. 1:202 C12 Contract period Art. 1:202 C9 Cover Art. 1:202 C8; Art. 1:202 C11 Direct action Art. 1:202 C6 Elective group insurance Art. 1:201 C13-C14 Elements Art. 1:201 N3 Fees Art. 1:202 C8 Further definitions Art. 1:202 Group insurance Art. 1:201 C13-C14; Art. 18:101 C2-C4 Indemnity insurance Art. 1:201 C6-C7; Insurance contract Art. 1:201 C1-C4; Art. 1:201 N1-N2; Art. 1:201 N3; Art. 1:201 N4-N5; Art. 1:202 C1-C2; Insurance money Art. 1:201 N3; Art. 1:202 C3 Insurance of fixed sums Art. 1:201 C8-C9; Art. 1:202 C4 Insurance period Art. 1:202 C10 Insured Art. 1:202 C3; Art. 1:202 C5 Insured event Art. 1:201 C5; Art. 1:201 N3; Art. 1:201 N6 Liability insurance Art. 1:201 C10 Liability period Art. 1:202 C11 Life insurance Art. 1:201 C11 Loss Art. 1:202 C4 Person at risk Art. 1:202 C5 Policyholder Art. 1:202 C3; Art. 1:202 C4; Art. 1:202 C5; Art. 6:101 N3 Premium Art. 1:202 C8 Prolongation Art. 1:202 C9 Retroactive cover Art. 1:202 C11 Tied intermediary Art. 1:202 C7 Tortfeasor Art. 1:202 C6 Uncertainty Art. 1:201 N3; Art. 1:201 N6 Victim Art. 1:202 C6 Delay

Index

Undue delay Art. 2:701; Art. 2:702 C4; Art. 4:102 N8; Art. 6:101; Art. 6:104; Art. 6:104 C2; Art. 6:105 C2; Art. 6:105 C5 Unreasonable delay Art. 4:102 N8 Designation Art. 17:102 Absence of effective designation Art. 17:102 C8-C9 Accepted by beneficiary Art. 17:102 C6 Beneficiary Art. 17:102 C1; Art. 17:102 C3; Art. 18:201 C5 By will Art. 17:102 C4; Art. 17:102 C7 Death of policyholder Art. 17:102 C10 Form of designation Art. 17:102 C7 Heirs Art. 17:102 C8; Art. 17:103 C6 In writing Art. 17:102 C7; Art. 17:103 C3 Irrevocable Art. 17:102 C6 Mental capacity Art. 17:102 C15 Revocation Art. 17:102 C6; Art. 17:102 C10; Art. 17:102 C14; Art. 17:103 C3-C4; Art. 17:104 C2 Right to designate Art. 17:102 C4 Vested rights Art. 17:104 C2 See also Discharge Digital Single Market I53 Direct actions see Direct claims Direct claims Art. 15:101; Art. 15:101 C1-C11 Breach of precautionary measures Art. 15:101 C9 Compulsory insurance Art. 15:101 C2; Art. 15:101 C3; Art. 15:101 C11 Creditors Art. 15:101 C5 Defences Art. 15:101 C2; Art. 15:101 C9-C11 Duty to inform Art. 15:102; Art. 15:102 C2 Information duties See Direct claim information duties Insolvency Art. 15:101 C4; Art. 15:103 C1 Insured event Art. 15:102 C1; Art. 15:102 C6 Law governing liability Art. 15:101 C7 Limits Art. 15:101 C8 Liquidation Art. 15:101 C5 Moral hazard Art. 15:101 C10 Non-payment of premium Art. 15:101 C9 Payment to or acknowledgement of debt 303 Personal injury Art. 15:101 C6 Settlement of the claim Art. 15:102 C1; Art. 15:102 C4-C6; Art. 15:102 C8; Art. 15:104 C6 Waiver Art. 15:103 C4 Winding up Art. 15:101 C5 See also Claims See also Moral hazard See also Discharge Direct claim information duties Art. 15:102 Alternative dispute resolution Art. 15:102 C4 Breach Art. 15:102 C5; Art. 15:102 C6 Contractual documents Art. 15:102 C3

Distance Marketing Directive

Duty to inform Art. 15:102 C2 Imbalance of information Art. 15:102 C1 Insurance ombudsman Art. 15:102 C4 Insured’s information duty Art. 15:102 C7 Insurer’s information duty Art. 15:102 C4 Liability regime applicable Art. 15:102 C2 Policyholder’s information duty Art. 15:102 C6 Directive on Insurance Contract Law Amended proposal Art. 1:205 N1; Art. 2:101 N1; Art. 2:102 N5; Art. 2:103 N3; Art. 2:103 N4; Art. 2:104 N1; Art. 5:102 N3; Art. 2:601 C5 Directives on insurance law I1 Discharge Art. 2:102 C6; Art. 4:101 N1; Art. 4:101 N5; Art. 4:103; Art. 4:103 C1; Art. 4:103 C2; Art. 4:103 N2; Art. 4:203; Art. 4:203 C4; Art. 4:203 N2; Art. 6:101 N11; Art. 6:101 N12; Art. 11:103 C10; Art. 14:103 C2; Art. 15:103; Art. 15:103 C2; Art. 16:101 C11; Art. 17:102 C15-C17; Art. 17:103 C6; Art. 17:502 C7-C8 Avoidance Art. 17:502 C7 Breach of precautionary measures Art. 4:101 C2; Art. 4:103 C1-C4 Exceptions Art. 15:103 C3 Knowledge of wrong payment Art. 17:102 C17 Payment of insurance money Art. 15:103 C1; Art. 15:103 C2; Art. 17:102 C15; Art. 17:502 C7-C8 Rescission Art. 17:502 C7 True beneficiary Art. 17:102 C16 Unjust enrichment Art. 17:102 C17 Waiver Art. 15:103 C4 See also Aggravation of risk See also Suicide See also Termination Disclosure Incorrect disclosure Art. 2:103 N2 Innocent non-disclosure Art. 2:104 C6 Non-disclosure Art. 2:101 C1; Art. 8:101 C7; Art. 8:102 C2; Art. 8:103 C4 Spontaneous Disclosure Art. 2:101 N2 Waiver of disclosure duty Art. 2:101 N6; Art. 2:103 C4; Art. 2:103 N1 See also Breach See also Duty of disclosure See also Negligence Dispatch Art. 1:205 C9; Art. 2:701 N9 Acceptance Art. 2:302 C3; Art. 2:302 C4 Notice Art. 2:604; Art. 2:604 C6; Art. 4:102 N10; Art. 6:101; Art. 6:101 C4; Art. 6:101 N9 Distance Marketing Directive Art. 1:103 C6; Art. 1:103 N9; Art. 1:203 N1; Art. 1:204 N2; Art. 2:201 C1; Art. 2:201 N1; Art. 2:201 N5; Art. 2:202 C4; Art. 2:303 C1; Art. 2:303 C4;

899

Distance Marketing Directive

Art. 2:303 C6-C10; Art. 2:303 C13; Art. 2:303 N1; Art. 2:303 N5; Art. 2:303 N7; Art. 17:202 C1; Art. 17:203 C2 Distress Art. 6:105 C7 Damages for distress Art. 6:105 C7 Doctrine of subrogation see Subrogation Documentary evidence Art. 2:501 C2; Art. 2:501 C3; Art. 2:501 N7; Art. 2:501 N8; Art. 2:502 C1; Art. 6:102 Ex post determination Art. 2:201 C4 See also Policy Documents Art. 2:501 N2; Art. 2:501 N2; Art. 2:501 N5; Art. 2:501 N10; Art. 2:502 C2; Art. 2:502 N6; Art. 2:502 N8; Art. 6:102 N1; Art. 6:103 Electronic documents Art. 2:402 C2 Separate documents Art. 2:402 N6; Art. 2:402 N7; Art. 2:402 N8; Art. 3:101; Art. 3:101 C2 See also Information See also Interpretation of documents See also Language of documents See also Notice See also Pre-contractual documents See also Receipt of documents See also Transparency Dolus directus Art. 6:101 N10 Domestic insurance contracts Art. 1:102 C4 Doorstep Selling Directive Art. 2:602 C6 Draft Common Frame of Reference I15; I63; I65; Art. 1:206 N1 See also Common Frame of Reference Drafting Committee I9 Due date see Payment Duration Art. 2:101; Art. 2:601 End of cover Art. 2:604 N6 Expiry of maximum time-span Art. 2:601 C4 Indefinite period Art. 2:601 N3 Long-term contracts Art. 2:601 C2; Art. 2:602 C3; Art. 2:601 C7 Maximum contract term Art. 2:601 C5 Maximum period Art. 2:601 N1; Art. 2:601 N2 Minimum duration Art. 2:601 C1 One-year term Art. 2:601 C5 Period of prolongation Art. 2:602 N2 Short-term contracts Art. 2:601 C1; Art. 2:604 C2 Duty Duty of notification Art. 8:104 N2 Duty to avert Art. 9:101 C5; Art. 9:102 N1 Duty to cooperate Art. 6:102 C1; Art. 15:102 C6 Duty to give notice Art. 6:101 N2; Art. 6:101 N3; Art. 6:101 N1

900

Index

Duty to mitigate Art. 9:101 C5; Art. 9:101 N9; Art. 9:102 N1 Duty to salvage Art. 9:101 N9; Art. 9:102 N1 See also Breach See also Contractual stipulations See also Duty of disclosure See also Information See also Insurance money See also Payment See also Post-contractual information duties of the insurer See also Pre-contractual duties of the insurer See also Pre-contractual information duties See also Sanctions Duty of disclosure Art. 1:205 C5; Art. 2:101; Art. 2:101 N1; Art. 11:102 N2 Breach Art. 2:102; Art. 4:202 C4 Facts Art. 2:101 N3 Prudent insurer Art. 2:101 N4 See also Disclosure EEIG see European Economic Interest Grouping EESC see European Economic and Social Committee EIOPA Art. 17:202 C6 Elective Group Insurance Art. 18:301-18:303 See also Group insurance Electronic Commerce Directive Art. 2:201 N1; Art. 2:301 C6; Art. 2:301 N2; Art. 2:302 C1; Art. 2:302 C4; Art. 2:501 N13 Electronic Signatures Directive Art. 17:101 C4 E-mail Art. 1:104 C2; Art. 2:201 C5; Art. 2:301 C6; Art. 2:302 C1; Art. 2:302 C3; Art. 2:302 C4; Art. 2:302 C3; Art. 2:402 C2; Art. 4:102 C3 Employee of the policyholder see Policyholder Encumbrance Art. 17:104 Consent Art. 17:104 C4 Effect Art. 17:104 C5 Written consent of beneficiary Art. 17:104 C1; Art. 17:104 C2 Written consent of person at risk Art. 17:101 C8; Art. 17:101 C9; Art. 17:101 C11; Art. 17:104 C3 Written consent of policyholder Art. 17:104 C1; Art. 17:104 C3 Enforcement I29; I30; Art. 1:301; Art. 1:203 C3; Art. 1:203 C8; Art. 2:304 C10; Art. 2:501 C2 Alternative dispute resolution I29; I33; Art. 1:302 C1; Art. 2:701 N6; Art. 15:102 C4 By consumer associations I30 Enforcing claims Art. 1:302 C2; Art. 5:102 C2; Art. 7:101 C2; Art. 9:101 C2; Art. 9:101 C3 European Commission Art. 1:301 Injunctions Art. 1:301 Injunctions Directive Art. 1:301; Art. 1:301 C1; Art. 1:301 C2; Art. 1:301 N1; Art. 1:301 N2

Index

Life assurance Art. 13:101 N3 PEICL I29; I30 Out-of-court complaint and redress mechanisms I29; Art. 1:302 Qualified entity I30; Art. 1:301; Art. 1:301 C2; Art. 1:301 N2 Third party Art. 9:101 C3; Art. 11:101 C1 Subrogation Art. 10:101 N5 See also Direct action Enquiries Art. 2:101 C7 Estoppel Art. 2:604 N4 Euro-mobile citizens I7; I31; I35 European Central Bank Art. 6:105; Art. 6:105 C1 European Commission I4; I7; I15; I30; I53; I59-71; Art. 1:207 C4; Art. 1:301 Action Plan on European Contract Law I59; I61 Commission Decision of 17 January 2013 I68; I69 Communication on European Contract Law I59; I61 Green Paper on Options for a European Contract Law I67 Guidelines on insurance Art. 1:207 C4 White Paper ‘An Agenda for Adequate, Safe and Sustainable Pensions’ I69 See also Common Frame of Reference of European Contract Law European Company I38 European contract law I47; I50; I53; I54; I58 See also Common Frame of Reference European Economic and Social Committee I56-I57; I67 Opinion on ‘The European Insurance Contract’ I56; I67; Art. 1:102 C1 Opinion on the ‘28th Regime’ I57 European Economic Interest Grouping I38 European insurance contract law I28; I35; I38; I56; I64; I67; Art. 1:105 C7; Art. 1:207 C6 See also Restatement of European Insurance Contract Law See also Common European Insurance Contract Law European Parliament Second resolution of 8 June 2011 I58 European Union I2; Art. 1:104 N1; Art. 1:105 C7; Art. 1:207 C2; Art. 1:207 C3; Art. 1:207 C7; Art. 16:101 C3; Art. 16:101 C6; Art. 16:101 C9 Competence for approximation of laws I70 Contingency competence I70 Law I18; I26; I28; I32; I33; Art. 1:102 C3; Art. 1:103 N9; Art. 1:202 C12; Art. 1:207 C3; Art. 1:207 C5; Art. 1:207 Note; Art. 1:301 C1; Art. 2:304 N1-N3; Art. 16:101 C7

First loss

Evidence Art. 1:204 N1; Art. 2:301 N3; Art. 2:402 C2; Art. 2:502 C1; Art. 3:101 C5; Art. 6:101; Art. 6:103 C1 Commencement de prevue par écrit Art. 2:501 N7 Evidence by expert opinion Art. 6:102 N2; Art. 6:102 N4 Evidence in writing Art. 2:301; Art. 2:301 C4; Art. 2:501 C2; Art. 2:501 N7 Parol evidence rule Art. 2:501 N8; Art. 2:501 N14; Art. 2:502 C4 Prima facie evidence Art. 1:204 C2; Art. 1:207 C9 See also Documentary evidence See also Fraud Exclusions Art. 2:201 N5; Art. 2:201 N6; Art. 4:103 N1 Expenses Art. 2:303 C4; Art. 12:101 C3; Art. 12:101 C4; Art. 12:101 N5 Expense of settling the amount of actual loss Art. 8:101 C6 Medical expenses Art. 13:101 C3 Expert Art. 2:603 C5 Expert opinion Art. 6:102 N4; Art. 6:104 N1; Art. 6:104 N2; Art. 8:101 N6 See also Evidence Expert Group on European Insurance Contract Law I66-I71 Executive summary I71 Final Report I11; I71 Failure to avert Art. 9:101; Art. 9:101 C4; Art. 9:101 N9 Failure to mitigate Art. 9:101; Art. 9:101 C4; Art. 9:101 N9; Art. 9:101 N10 Fairness Art. 4:301 C3; Art. 6:101 N7 Fair dealing Art. 1:104 C5; Art. 2:103 C5; Art. 2:304; Art. 2:304 C8 Fairness test Art. 2:304 C8 Review of the fairness Art. 2:304 N4 See also Conclusion of the contract See also Unfair contract terms Fault Art. 2:202; Art. 2:202 C6; Art. 2:202 N6; Art. 2:202 N7; Art. 4:101 N1; Art. 4:102 N6; Art. 4:102 N7; Art. 4:103; Art. 4:103 C3; Art. 4:103 C4; Art. 4:103 N10; Art. 4:103 N15; Art. 5:101 N4; Art. 12:101 N4 Degree of fault Art. 4:103 C4; Art. 4:203 N4 Grave Art. 4:103 N16 Financial Services Authority See FSA Financial Services (Distance Marketing) Regulations 2004 Art. 2:201 N5 Financial Services Handbook See FSA Handbook First loss Art. 8:102 C1 Cover see Loss Premier risque Art. 8:102 C1

901

First Non-Life Insurance Directive

First Non-Life Insurance Directive I22; Art. 1:103 C6 Forfeiture Art. 9:101 N1; Art. 10:101; Art. 10:101 N5 Forfeiture of the premium Art. 12:101 N4 Form Art. 2:402 N2 Documents Art. 2:201 C5 E-mail Art. 1:104 C2; Art. 2:302 C3; Art. 2:302 C4; Art. 2:602 C4; Art. 4:102 C3 Internet Art. 2:201 N5 Post Art. 2:201 N5; Art. 2:301 C6; Art. 2:302 C1 Telefax Art. 2:301 C6; Art. 2:602 C4; Art. 4:102 C3 Telegram Art. 2:602 C4; Art. 4:102 C3 Telephone Art. 2:201 N5 Telex Art. 2:602 C4; Art. 4:102 C3 Formal requirements Art. 2:301; Art. 2:603 N2 Registration of a letter Art. 1:205 C8 See also Language of documents Fraud Art. 1:103 C2; Art. 1:103 C4; Art. 2:103 N2; Art. 2:104; Art. 2:104 C2; Art. 2:104 C3; Art. 2:104 C5; Art. 2:104 N1; Art. 2:401 C4; Art. 2:604 N6; Art. 4:102 N4; Art. 4:102 N8; Art. 4:103 N4; Art. 4:103 N7; Art. 4:203 N2; Art. 5:101 C3; Art. 5:102 C4; Art. 5:104 C3; Art. 6:101 C3; Art. 6:101 N10; Art. 6:101 N11; Art. 6:103 C3; Art. 6:103 N2; Art. 7:102 N2; Art. 7:102 N5; Art. 8:101; Art. 8:101 C7; Art. 8:101 N7; Art. 8:103 N1; Art. 8:104 N4; Art. 8:104 N6; Art. 17:201 C4; Art. 17:201 C5 Evidence Art. 4:102 N4; Art. 4:103 N4 Fraudulent applicant Art. 2:102 N2; Art. 2:102 N5; Art. 2:102 N7; Art. 2:104 N1-N2 Fraudulent breach Art. 2:104; Art. 2:104 C1-C6; ; Art. 17:201 C6-C7; Art. 17:205 C5; Art. 17:602 C3 fraus omnia corrumpit Art. 2:104; Art. 17:102 C13; Art. 17:202 C7 Morality Art. 2:104 C2 Remedies Art. 2:104 C1; Art. 2:104 C3 Freedom of contract I13; Art. 1:101 C7; Art. 1:101 N3; Art. 1:103 C1; Art. 1:103 C2; Art. 1:103 C7; Art. 1:103 N2; Art. 1:103 N7; Art. 1:103 N8; Art. 1:103 N11; Art. 1:201 N1; Art. 2:304 C5; Art. 2:304 C6; Art. 6:102 N3; Art. 7:103 C3; Art. 12:102 C2; Art. 14:103 C2 Limits Art. 1:103 C2 Public policy Art. 1:103 C2 FCA Art. 2:102 N8 FCA Handbook Art. 2:201 N5; Art. 2:202 N2; Art. 2:202 N9 FCA Rules Art. 6:102 N1 Gender Directive I24; Art. 1:207 C5; Art. 1:207 C6

902

Index

General contract law Art. 2:301 N1 General contract terms Art. 1:103 C1; Art. 2:501 N10; Art. 2:502 C2; Art. 2:702 C2 Living law of the insurance contract Art. 1:103 C1 See also Terms of contract General principles common to the laws of the Member States Art. 9:101 C3 General principles of contract law Art. 1:105 C7; Art. 2:203 N5 General principles of European contract law I43 See also Community law Good faith Art. 1:104 C5; Art. 1:203 C2; Art. 2:102 N2; Art. 2:103 C5; Art. 2:301 C7; Art. 2:304; Art. 2:304 C8; Art. 2:401 N5; Art. 2:401 N6; Art. 2:402 N9; Art. 2:602 C4; Art. 2:701 C6: Art. 3:101 N1; Art. 4:102 N8; Art. 6:102 C1; Art. 7:102 C3; Art. 8:104 N5 Utmost good faith Art. 6:101 N2; Art. 6:102 N1 See also Claims exceeding the sum insured Gross negligence Art. 1:206 N1; Art. 2:102 N2; Art. 6:101 N11; Art. 6:105 C3; Art. 9:101 C3; Art. 9:101 N3; Art. 9:101 N4; Art. 9:101 N10 Group insurance I11; I12; I17; Art. 18:10118:303 Accessory group insurance Art. 1:201; Art. 1:201 C13-14; Art. 18:101; Art. 18:101 C3-C4; Arts. 18:201-18:204; Art. 18:201 C1-C7; Art. 18:202 C1-C9; Art. 18:203 C1-C5; Art. 18:204 C1-C10 Accident insurance Art. 18:102 C4 Amendments Art. 18:102; Art. 18:102 C5; Art. 18:202 C9 Assessment of risk Art. 18:204; Art. 18:204 C4-C6 Automatically insured Art. 1:201 C14 Cessation of membership Art. 18:303; Art. 18:303 C1 Classification Art. 18:101 C3-C4 Company workforce Art. 18:204 C1 Continuation of cover Art. 18:204; Art. 18:204 C1-C8 Contracts for group insurance Art. 18:101; Art. 18:101 C1-C5; Art. 18:102; Art. 18:201; Art. 18:201 C1-C7; Art. 18:301; Art. 18:301 C1-C4 Cover in transitional period Art. 18:204 C2-C3 Duty to warn the policyholder Art. 18:201 C3; Art. 18:201 C5; Art. 18:202 C1 Economies of scale Art. 18:101 C1 Elective group insurance Art. 1:201; Art. 1:201 C13-14; Art. 18:301-18:303;

Index

Art. 18:101 C3-C5; Art. 18:102 C6; Art. 18:301 C1-C4; Art. 18:302 C1-C4; Art. 18:303 C1-C3 Employment Art. 18:101 C2; Art. 18:102 C4 Framework contract Art. 11:103 C8; Art. 18:102 C6; Art. 18:301; Art. 18:301 C1-C4; Art. 18:302; Art. 18:302 C1-C4; Art. 18:303; Art. 18:303 C1-C3 Health deterioration Art. 18:204 C6 Health Art. 18:204; Art. 18:204 C6 Indemnity insurance Art. 1:201 C14 Individual insurance Art. 18:202 C8; Art. 18:204; Art. 18:204 C3; Art. 18:204 C5-C8; Art. 18:301; Art. 18:301 C1-C4; Art. 18:302; Art. 18:302 C1; Art. 18:303 C1-C3 Information Art. 18:102; Art. 18:102 C5-C6; Art. 18:202 C1-C6; Art. 18:202 C9; Art. 18:204 C2; Art. 18:204 C9 Insured Art. 1:201 C14; Art. 18:201 C3 Language Art. 18:102 C3; Art. 18:102 C5 Life insurance Art. 18:204; Art. 18:204 C1-C7; Art. 18:303 C3 Loan Art. 18:102 C4; Art. 18:201 C5 Medical examination Art. 18:204 C6 New contract Art. 18:204 C8 Notices Art. 18:102; Art. 18:102 C5; Art. 18:202 C9; Art. 18:302 C3 Premium Art. 18:204; Art. 18:204 C6; Art. 18:204 C7; Art. 18:301 C1; Art. 18:303 C2 Prolongation Art. 18:204 C2 Protection of group members Art. 18:201 C1-C2 Right to continue cover Art. 18:204; Art. 18:204 C1-C8 Right to individual cover Art. 18:204 C1; Art. 18:204 C4 Sports club Art. 18:204 C1 Termination see Termination of contract Trade union Art. 18:101 C2 Visitors to a sports event Art. 18:101 C2 See also Application of the PEICL See also Branches of insurance See also Breach See also Definitions See also Designation See also Group organiser See also Group organiser’s information duties See also Pension plans See also Person at risk See also Termination See also Transfer Group organiser Art. 18:101; Art. 18:101 C2; Art. 18:101 C5; Art. 18:102; Art. 18:102 C1; Art. 18:201 C1; Art. 18:201 C3; Art. 18:201 C5; Art. 18:202; Art. 18:202 C1; Art. 18:301; Art. 18:301 C1; Art. 18:301 C3; Art. 18:301 C4; Art. 18:302 C2; Art. 18:302 C3 Agent Art. 18:102 C1

Imputation of knowledge

Authority to collect premiums Art. 18:303 C2 Bank Art. 18:102 C1; Art. 18:102 C4 Commission Art. 18:102 C3 Damages Art. 18:102 C3 Duty of care Art. 18:102; Art. 18:102 C2-C3; Art. 18:102 C5; Art. 18:301 C4 Duty under contract Art. 18:102 C4 Employer Art. 18:102 C1; Art. 18:202 C5 Good faith Art. 18:102 C2 Insurance broker Art. 18:102 C1 Insurance intermediaries Art. 18:102 C1 Information duty Art. 18:102; Art. 18:102 C3 -C6; Art. 18:202; Art. 18:202 C1; Art. 18:202 C3-C9; Art. 18:204; Art. 18:204 C9-C10 Liquidation Art. 18:303 C2 Precautionary measures Art. 18:203 C3 See also Burden of proof See also Group organiser’s information duties Group organiser’s information duties Art. 18:102; Art. 18:102 C3 -C6; Art. 18:202; 18:202 C1-C6; Art. 18:202 C3-C9; Art. 18:204; Art. 18:204 C2; Art. 18:204 C9-C10 Amendments to the contract Art. 18:102 C5; Art. 18:202 C9 Breach Art. 18:202 C7; Art. 18:204 C10 Burden of proof Art. 18:202 C8 Claims procedure Art. 18:202 C4 Damages for breach Art. 18:102 C3 Existence of the insurance contract Art. 18:202; Art. 18:202 C4 Extent of cover Art. 18:202; Art. 18:202 C4 Information after joining Art. 18:202 C9 Language Art. 18:102 C3 Notices Art. 18:102 C5 Periodical circulars Art. 18:202 C5 Precautionary measures Art. 18:202 C4 Requirements for preserving cover Art. 18:202 C4 Sanctions Art. 18:202 C4 Termination of the framework contract Art. 18:102 C6 Time when information has to be provided Art. 18:202 C5 Health Art. 2:601 C7 See also Group insurance ICOBS Art. 1:103 N8; Art. 1:203 N4; Art. 2:102 N8; Art. 2:201 N2; Art. 2:201 N5; Art. 2:202 N2; Art. 2:303 N5; Art. 2:701 N10; Art. 3:101 N5; Art. 4:102 N4; Art. 4:103 N4 IDD (Proposal for an) I26; Art. 2:201 C1; Art. 2:202 N1 Imputation of knowledge Art. 1:206; Art. 9:101 N6; Art. 11:102 C6; Art. 11:102 C8 Business organisations Art. 1:206 C4 Domestic relations Art. 1:206 C4

903

Indemnity

Employment Art. 1:206 C4 Family members Art. 1:206 N2 Imputation of acts Art. 1:206 C2 Imputation of insurer’s knowledge Art. 11:102 C2 Knowledge of agents Art. 1:206 C2; Art. 1:206 N3 Knowledge of the applicant Art. 1:206 N5 Knowledge of the insured Art. 11:102 C8; Art. 11:102 N1; Art. 11:103 C9 Marriage Art. 1:206 C4 Persons whose knowledge may be imputed Art. 1:206 C3 Professional caretaker Art. 1:206 C5 Indemnity Art. 10:101 C5 Bereicherungsverbot Art. 8:101 N1 Calculation of loss Art. 1:201 C7; Art. 6:105 C4; Art. 8:101 C4; Art. 8:102 C2 Entitlement to indemnity Art. 9:101 Indemnify the insurer Art. 10:101 N3 Indemnity principle Art. 8:101 C1; Art. 8:101 N1; Art. 13:101 N4 Limits on recovery of indemnity Art. 9:101 C1 Principe indemnitaire Art. 8:101 N1 Principle of indemnity Art. 8:101 N1; Art. 8:104 C1; Art. 8:104 N3 Principo indennitario Art. 8:101 N1 Indemnity insurance I10; Art. 1:101 N1; Art. 1:201; Art. 1:201 C6; Art. 1:201 N2; Art. 2:302 N5; Art. 2:604 N3; Art. 8:101 C1; Art. 10:101 C2; Art. 11:101 N4; Art. 12:101 C2; Art. 13:101 C1; Art. 13:101 C3; Art. 13:101 N1; Art. 13:101 N2; Art. 13:101 N6 Provisions common to indemnity insurance Art. 8:101 See also Indemnity Information Art. 1:206 C1; Art. 1:206 N4; Art. 2:202 N1; Art. 2:303 C2; Art. 2:402 N2; Art. 2:501 C1; Art. 2:501 N3; Art. 3:101 C6; Art. 6:102 N1; Art. 6:103 Applicant’s information duties Art. 2:602 C2 Available information Art. 6:102 C2 Information about the right of termination Art. 5:103 C6 Information duty Art. 1:105 C3 Information readily accessible Art. 2:103 C5 Insurer’s information duties Art. 2:602 C2 Material information Art. 2:101 N1; Art. 2:101 N2; Art. 2:105 C; Art. 4:201 C4 Misinformation Art. 2:604 C4 Pre-contractual information documents Art. 1:203 N2 Pre-contractual information duties Art. 2:401 C6 Relevant information Art. 2:201 C2

904

Index

Requirements Art. 4:201 N1 Written information of the contract Art. 2:501 N5 See also Consumer See also Group insurance See also Group organiser See also Pre-contractual duties of the insurer See also Post-contractual information duty See also Pre-contractual information duties See also Termination of contract Inheritance Art. 12:102; Art. 12:102 C9; Art. 12:102 N2; Art. 12:102 N8 Injunctions I23; Art. 1:203 C8; Art. 1:301 See also Enforcement Injunctions Directive I30; Art. 1:301 C1; Art. 1:301 C2; Art. 1:301 N1 See also Enforcement Insolvency law Art. 17:102 C12; Art. 17:102 C13; Art. 17:105 C4 Lex fori concursus Art. 17:102 C13 Insolvency Regulation Art. 17:102 C13 Instalments see Premium Instruction by the insurer Art. 9:102 N1 Insurance Art. 11:101 C4; Art. 12:102 C7 Accident insurance Art. 1:201 C9; Art. 13:101; Art. 13:101 N5 Aircraft insurance see Aviation insurance Alternative insurance cover Art. 2:202 C7 Aviation insurance I13; Art. 1:103 N3; Art. 1:103 N11 Baggage insurance Art. 2:303 N5 Benefit insurance Art. 13:101 N1 Birth insurance Art. 1:201 C9; Art. 13:101 Collective insurance Art. 1:101 N1; Art. 1:103 N11; Art. 1:201 N2; Art. 11:103 Note Domestic insurance contracts Art. 1:102 C4 Double insurance Art. 1:205 N3; Art. 8:104 C5 Enterprise insurance Art. 1:201 N2 Fire insurance Art. 2:401 N8 Group insurance Art. 2:303 C11; Art. 2:303 C12; Art. 11:103 C7; Art. 18:101-18:303 Guarantee insurance Art. 1:103 N6 Health insurance Art. 1:103 C1; Art. 1:201 C9; Art. 2:303 N3; Art. 2:603 N1; Art. 2:603 N2; Art. 2:604 N3; Art. 4:201 C3; Art. 4:301 N7; Art. 13:101; Art. 13:101 C3; Art. 18:102 C4 Household insurance Art. 10:101 C6 Indefinite insurance Art. 2:601 C7 Individual insurance Art. 1:101 N1 Insurance brokers Art. 2:101 C6 Insurance for whom it may concern Art. 11:101 C4; Art. 11:101 N10 Insurance of exhibition equipment Art. 2:601 C3 Insurance of fixed sums Art. 13:101

Index

Insurance period Art. 4:201 C2; Art. 12:101; Art. 12:101 N5 Insurer’s behaviour Art. 2:103 N4 Joint insurance Art. 1:206 C5; Art. 11:103 C12 Land insurance Art. 1:101 N1; Art. 1:101 N3; Art. 2:401 N5; Art. 2:401 N6 Large risk insurance I13 Legal expenses insurance Art. 1:103 C1; Art. 1:201 N2; Art. 2:701 N6; Art. 2:701 N7; Art. 14:101 C6 Long-term insurance Art. 2:303 N3; Art. 2:303 N5; Art. 2:602 C3; Art. 2:702 C3 Marine insurance I13; Art. 1:101 C7; Art. 1:101 N1; Art. 1:101 N3; Art. 1:101 N4; Art. 1:101 N5; Art. 1:103 N6; Art. 1:103 N11; Art. 1:201 N4; Art. 2:401 N1; Art. 2:401 N5; Art. 2:401 N6; Art. 2:401 N7; Art. 2:501 N14; Art. 12:101 N3 Marriage insurance Art. 1:201 C9; Art. 13:101 Mass risk insurance I22; I71; Art. 2:101 C3 Motor liability insurance I11; I69; I71; Art. 2:303 C9; Art. 10:101 C6 Non-marine insurance Art. 2:501 N2 Normal insurance practice Art. 3:101 N1 Personal accident insurance Art. 2:303 N3 Personal insurance Art. 1:101 N1; Art. 1:201 C9; Art. 2:601; Art. 2:601 C7; Art. 2:601 N4; Art. 2:604; Art. 2:604 C2; Art. 4:201 C3; Art. 4:301 N7; Art. 7:101 N2; Art. 7:101 N3; Art. 11:101 N4; Art. 13:101; Art. 13:101 N2; Art. 13:101 N5; Art. 13:101 N6 Preliminary insurance Art. 2:402 Private insurance Art. 1:101; Art. 1:101 N1 Property insurance Art. 12:102 C8 Pure risk insurance Art. 17:204 C2; Art. 17:205 C9; Art. 17:301 C3; Art. 17:303 C5; Art. 17:304 C14 Reinsurance I13; Art. 1:101; Art. 1:101 C8; Art. 1:101 N6 Retroactive insurance Art. 1:201 C3; Art. 2:401 N5 Small businesses insurance Art. 1:103 C7; Art. 4:103 N4 Transit insurance Art. 2:401 N8 Transport insurance Art. 1:103 C6; Art. 1:103 N11; Art. 12:102 C7 Travel insurance Art. 2:303 N5; Art. 2:601 C3 See also Branches of insurance See also Claims See also Compulsory insurance See also Conclusion of the contract See also Consumer See also Consumer insurance See also Credit insurance

Insurance industry practice

See also Definitions See also Duration See also Enforcement See also European insurance contract law See also Group insurance See also Indemnity See also Indemnity insurance See also Insurance contracts See also Insurance intermediaries See also Insurance money See also Insurance of fixed sums See also Insurance policy See also Insured See also Insured event See also Insurer See also International insurance contract law See also Knowledge See also Liability See also Liability insurance See also Life insurance See also Multiple insurance See also Mutual insurance See also Out-of-court complaint and redress mechanisms See also Payment See also Premium See also Retroactive cover See also Social insurance law Insurance acquis I23; I26 Insurance broker Art. 2:101 C6; Art. 2:202 C4b; Art. 2:402 N8; Art. 2:601 C1; Art. 3:101 N5 Intermediaries Art. 1:202 C7; Art. 2:202 N3; Art. 2:202 N7 See also Insurance intermediaries Insurance Companies (Legal Expenses Insurance) Regulations 1990 Art. 2:701 N7 Insurance contract law Art. 2:701 C1 Comparative analysis I8 Insurance contracts Art. 1:201; Art. 1:201 C1; Art. 1:201 N1 Cover Art. 1:201 C2; Art. 1:201 N5 Depreciation Art. 1:201 C7 Gambling Art. 1:201 C9 Interpretation of insurance contracts Art. 1:203 C1 Investment contracts Art. 1:201 N6; Art. 17:205 C5 Minimum protection rule Art. 1:201 N1 Sum Art. 1:201 C8 Uncertainty Art. 1:201 C4; Art. 1:201 N6 See also Consumer See also Insurance See also Life assurance See also Transparency Insurance industry practice Art. 3:101

905

Insurance Mediation Directive

Insurance intermediaries I52; Art. 1:101 C6; Art. 1:102 C7; Art. 2:101 C6; Art. 2:202 C4; Art. 2:202 N1; Art. 3:101; Art. 3:102 Actual scope of employment Art. 3:101 C5 Advice Art. 3:101 C6 Apparent authority Art. 3:101 C3 Applications Art. 3:101 N1 Authority Art. 3:101 C1 Authority to receive all notices Art. 3:101 C6 Broker Art. 3:101 N5 Collecting premiums Art. 3:101 C4 Contractual limitations of authority Art. 3:101 N3 Implied authority Art. 3:101 C3 Independent insurance intermediary Art. 3:101 N5 Independent intermediary Art. 2:202; Art. 2:202 N5; Art. 3:102 C1 Knowledge Art. 3:101 Liability of intermediaries Art. 3:101 C8 Minimum authority Art. 3:101 C5; Art. 3:102 C4 Minimum powers Art. 3:101 N4 Proof Art. 3:101 C5 Pseudo-brokers Art. 3:102 C1; Art. 3:102 C4 Purporting to be independent Art. 3:102 Reasonable expectations Art. 3:102 C1 Scope of employment Art. 3:101 Statutory powers Art. 3:101 N1 See also Agency See also Agent See also Definitions Insurance Mediation Directive I25; I26; Art. 1:101 C6; Art. 2:202 C4a; Art. 2:202 C4d; Art. 2:202 N1; Art. 2:202 N5; Art. 3:101 N4; Art. 3:102 C2; Art. 18:101 C4 See also Insurance intermediaries Insurance money Art. 2:303 C4; Art. 6:101; Art. 6:102; Art. 6:105; Art. 8:103 C3; Art. 11:101; Art. 11:101 N6; Art. 12:102 C10; Art. 17:102 Beneficiary Art. 17:102 C3 Calculation Art. 1:201 C6 Duty to pay Art. 4:202 N2; Art. 12:102 C10 Insolvency Art. 17:102 C11-C12 Irrevocable entitlement to the insurance money Art. 11:101 N6 Proportional reduction Art. 2:104 N1; Art. 4:103 N14; Art. 4:203 N3; Art. 8:102 N1; Art. 8:102 N2; Art. 8:102 N3 Reduction of insurance money Art. 2:102 N4; Art. 4:103; Art. 6:101 N10; Art. 6:102 C3; Art. 9:101; Art. 11:103 C10-C11; Art. 11:103 C13; Art. 14:103 Right to claim insurance money Art. 11:101 C3; Art. 12:102 C10 See also Definitions

906

Index

See also Designation See also Discharge See also Sum insured Insurance of fixed sums I10; Art. 1:201; Art. 1:201 C6; Art. 1:201 C8; Art. 10:101 C2; Art. 12:101 C2; Art. 13:101; Art. 13:101 N2 Admissibility of insurance of fixed sums Art. 13:101 Lump sum Art. 13:101 N5 See also Definitions Insurance policy Art. 1:205 C1; Art. 2:501; Art. 2:501 C1; Art. 2:501 N1; Art. 11:101 C7 Application Art. 2:502; Art. 2:502 N9 Constitutive effect Art. 2:501 N9; Art. 2:502 C2 Contents of the insurance policy Art. 2:202 C2; Art. 2:501 Counter offer Art. 2:502 N2 Effects of the policy Art. 2:502 Final agreement Art. 2:502 C3 General insurance conditions Art. 2:201 N5 Means of proof Art. 2:501 N6 Object Art. 2:502 N4 Preliminary insurance contracts Art. 2:501 C4 Prior agreement Art. 2:502 Rectification Art. 2:502 N3; Art. 2:502 N5 Signature Art. 2:502 N8 Terms of the policy Art. 6:103 C1 Transferable insurance policies Art. 12:102 N6 Written policy Art. 2:501 C2; Art. 2:502 C2; Art. 2:501 N13 See also Consumer Insurance premium see Premium Insurance tariffs see Insurance Insured Art. 2:101 C8; Art. 8:104; Art. 9:101 N6; Art. 9:102 C5; Art. 10:101 C8; Art. 10:101 N2; Art. 10:101 N10; Art. 12:102; Art. 12:102 C4; Art. 14:104; Art. 14:105 Breach of duty Art. 11:103 Entitlement Art. 11:101; Art. 11:101 N2; Art. 11:101 N6 Information duties Art. 15:102 C2-C3; Art. 15:102 C7-C8 Insolvency Art. 15:101 C4 Insured’s entourage Art. 10:101 N7 Liability Art. 14:107 C14; Art. 14:107 C15-C17 Liquidation Art. 15:101 C5 Protection of the insured Art. 11:101 C2 Winding up Art. 15:101 C5 See also Acknowledgement of liability See also Assignment See also Claims made clauses See also Defence costs

Index

Insured event Art. 1:201; Art. 1:201 C5; Art. 1:205 N3; Art. 2:102; Art. 2:102 C6; Art. 2:102 N2; Art. 2:604; Art. 2:702 C2; Art. 6:101; Art. 6:102; Art. 8:101 C1; Art. 8:102; Art. 8:104 N2; Art. 9:101 N5; Art. 11:101; Art. 11:101 C7; Art. 11:101 N5; Art. 12:101 C7; Art. 13:101 C1; Art. 14:107; Art. 14:107 C13; 17:501 Act committed Art. 14:107 C3; Art. 14:107 C24 Act of the insured Art. 14:107 C1 Asbestos cases Art. 14:107 C4 Business risks Art. 14:107 C13 Causation of the insured event Art. 13:101 C2 Claims made Art. 14:107 C1; Art. 14:107 C3; Art. 14:107 C4 Commercial risks Art. 14:107 C17-C18 Consumer contracts Art. 14:107 C13 Consumer liability insurance Art. 14:107 C14 Duty to inform beneficiary Art. 17:501 C7-C9 Long tail risks Art. 14:107 C4; Art. 14:107 C14; Art. 14:107 C18 Notice of the insured event Art. 1:205 N5; Art. 6:101; Art. 15:102 C6 Occurrence of loss Art. 14:107 C1; Art. 14:107 C3 Occurrence of the insured event Art. 7:102 C4; Art. 7:102 N2; Art. 7:102 N3; Art. 7:102 N5; Art. 7:102 N9; Art. 8:104 C1; Art. 17:501 C2-C3 Professional risks Art. 14:107 C17-C18 Sleeping contracts Art. 17:501 C1 Status of the beneficiary Art. 17:501 C8 Triggers for liability Art. 14:107 C1 See also Claims made clauses See also Claims made policies See also Definitions See also Investigation See also Suicide Insured good Art. 12:102 N1 Insured risk see Risk; Risk insured Insured sum see Sum insured Insurer Insurer’s decision Art. 7:102 N7 Insurer’s rejection Art. 7:102 N8 Protection Art. 10:101 C7 Intent Art. 1:206 N1; Art. 4:203 C3; Art. 6:102; Art. 6:102 C3; Art. 9:101; Art. 9:101 C2; Art. 9:101 C1; Art. 9:101 N3; Art. 9:101 N4; Art. 9:101 N5; Art. 9:101 N10; Art. 10:101; Art. 10:101 N9 Causation of damage Art. 4:103 N16 See also Breach See also Loss

Joint Insurance

See also Performance Interest Art. 6:105; Art. 6:105 C1; Art. 6:105 C3; Art. 6:105 N1; Art. 6:105 N2 Expectation interest Art. 6:105 C3 Joint interest Art. 11:103 C12 Intermediaries see Insurance intermediaries Internal market I2; I4; I5; I6; I35; Art. 1:101 C5; Art. 1:103 C3; Art. 2:601 C2 Obstacle I64; I66; I67; I69; I70; I71; Art. 1:105 C6 Pension products I69 Life assurance products I69 International insurance contract law I6; Art. 1:101 C5 Interpretation of documents Art. 1:203 Contra proferentem rule Art. 1:203 C3 Plain and intelligible Art. 1:203 C3 Transparency Art. 1:203 C2; Art. 1:203 N1 Interpretation of the PEICL I28; Art. 1:104 C1 Context Art. 1:104 C4 Context of Community law Art. 1:104 C4 Languages Art. 1:104 C3 Textual interpretation Art. 1:104 C1 Investigation Art. 2:101 C7; Art. 6:101 C3; Art. 17:501 Address of the beneficiary Art. 17:501 C4 Best efforts Art. 17:501 C3; Art. 17:501 C6 Children Art. 17:501 C5 Costs of investigation Art. 17:501 C3; Art. 17:501 C6 Duty to investigate Art. 17:501 C2-C3; Art. 17:501 C4-C5 Good faith Art. 17:501 C1 Heirs Art. 17:501 C5 Identity of the beneficiary Art. 17:501 C1; Art. 17:501 C4 Investigation of the insured event Art. 6:102; Art. 17:501 Invoices Art. 17:501 C2 Occurrence of insured event Art. 17:501 C2-C3 Reasonable steps Art. 17:501 C6 Sleeping contracts Art. 17:501 C1 Wife Art. 17:501 C5 Will Art. 17:501 C5 Investment services Art. 2:202 N1 Invoice Art. 2:602 C5; Art. 5:101 C10; Art. 5:102; Art. 5:102 C5; Art. 5:103; Art. 5:103 C5; Art. 5:103 C6 Joint Consultation Paper on Insurance Contract Law Art. 4:101 C2 Joint Network on European Private Law see CoPECL Network Joint Insurance Art. 1:206 C5; Art. 11:103 C12 Communauté de biens Art. 11:103 C12

907

Judicial review

Community of heirs Art. 11:103 C12 Gesamthand Art. 11:103 C12 Judicial review Art. 2:304 C2; Art. 2:304 N5; Art. 2:304 N8; Art. 2:602 C4 Essentialia negotii Art. 2:304 N12 Exceptions Art. 2:304 N12-N14 Killing of the person at risk Art. 17:503 Beneficiary Art. 17:503 C1; Art. 17:503 C3 Gross negligence Art. 17:503 C4 Heirs Art. 17:503 C3 Insurance money Art. 17:503 C1 Insured event Art. 17:503 C2 Intention Art. 17:503 C4 Mixed life insurance Art. 17:503 C2 Negligence Art. 17:503 C4 Pure risk contract Art. 17:503 C2 Self-defence Art. 17:503 C5 Surrender value Art. 17:503 C1 Knowledge Common knowledge Art. 2:101 N3 Constructive knowledge Art. 11:102 C6; Art. 11:102 C7 Inequality of knowledge Art. 2:202 C1 Inside knowledge Art. 2:101 C5 Knowledge of the applicant Art. 2:101 C1; Art. 2:101 C4 Knowledge of the insured Art. 11:102 Knowledge of the insurer Art. 2:101 N3; Art. 2:103 N4; Art. 2:401 C2 Knowledge of the policyholder Art. 2:401 C4 Outside knowledge Art. 2:101 C6 Relative knowledge Art. 2:101 C4 Retroactive knowledge Art. 11:102 C5 See also Imputation of knowledge See also Insurance intermediaries Lando Commission I9; I14 Lando Principles see Principles of European Contract Law Language of documents Art. 1:203; Art. 1:203 C4; Art. 1:203 N3; Art. 4:103 C4 Class action Art. 1:203 C8 Clear language Art. 5:101 Collective enforcement Art. 1:203 C8 Cooling-off period Art. 1:205 N2 Formal requirements Art. 1:205 N4 In dubio contra stipulatorem Art. 1:203 N5 Injunctions Art. 1:203 C8 Language Art. 2:603 C6; Art. 5:101 C8 Language of business Art. 1:203 C6 Language regulations Art. 1:203 N3 Member State of the commitment Art. 1:203 N3 Official languages Art. 1:203 N3 Plain and intelligible language Art. 2:304; Art. 2:304 C5; Art. 5:101 C8 Proof Art. 1:205 N2

908

Index

Supervisory law Art. 1:203 C8 Language of the PEICL I27 Late Payment Calculation Art. 6:105 C1 Late Payment Directive Art. 6:105 C1 Profits lost Art. 6:105 C6 Punitive interest rates I71; Art. 6:105 N3 Late Payment Directive Art. 6:105 C1 Law of insurance supervision see Supervisory law Lawyer’s Establishment Directive Art. 16:101 C7 Legal certainty Art. 1:104 C6 Legal expenses I71; Art. 2:701 N6-N7; Art. 14:101 C6; Art. 14:101 C8 Legal Expenses Insurance Directive Art. 2:701 N6-N7 Lex contractus I33 Lex mercatoria I60; Art. 1:101 C8 Liability see Liability insurance Joint and several liability Art. 15:104 C2 See also Agent See also Definitions (liability period) See also Independent liability basis See also Insurance intermediaries See also Motor liability insurance See also Out-of-court complaint and redress mechanisms See also Performance Liability insurance I11; I12; Art. 1:206 C6; Art. 1:206 C11; Art. 2:303; Art. 2:303 C11; Art. 2:303 C13; Art. 2:303 N7; Art. 4:103 N13; Art. 9:101 C3; Art. 11:102 C2; Art. 14:101Art. 14:108 Claims made Art. 1:201 C10 Legal liability Art. 1:201 C10 Occurrence of loss Art. 1:201 C10 Wrongful act Art. 1:201 C10 See also Acknowledgement of liability See also Assignment See also Branches of insurance See also Causation of loss See also Claims exceeding the sum insured See also Claims made clauses See also Claims made policies See also Defence costs See also Insured event See also Mitigation of loss See also No-claims bonuses See also Premium See also Sum insured Life Assurance Act 1774 Art. 13:101 N2 Life Assurance Consolidation Directive Art. 1:203 N1; Art. 1:203 C5; Art. 1:205 N1; Art. 2:201 C1; Art. 2:201 C3; Art. 2:303 C1; Art. 2:303 N1; Art. 2:303 N2; Art. 2:303 N5;

Index

Art. 2:303 N6; Art. 2:303 N7; Art. 2:701 C2; Art. 2:701 C5; Art. 2:701 N2 Life insurance I11; I12; I71; Art. 1:201 C9; Art. 1:201 N2; Art. 1:205 N1; Art. 2:303 N2; Art. 2:601 C7; Art. 2:603 N1; Art. 2:603 N2; Art. 2:604 N3; Art. 4:201 C3; Art. 4:301 N7; Art. 7:101 N2; Art. 7:102; Art. 7:102 C4; Art. 7:102 N1; Art. 7:102 N11; Art. 11:101 N4; Art. 11:101 N9; Art. 13:101; Art. 13:101 N5; Art. 17:101-17:603; Art. 18:204; Art. 18:204 C1-C7; Art. 18:303 C3 Amendments of the contract Art. 17:101 C11 Death of beneficiary Art. 17:102 C10 Death of person at risk Art. 17:101 C2; Art. 17:102 C5; Art. 17:205 C2; Art. 17:401 C5 Biometric risk Art. 1:201 C11 Bonuses Art. 17:301 C2 Cancellation of contract Art. 17:102 C11; Art. 17:102 C12; Art. 17:304 C1 Consent requirements Art. 17:101 C3-C7 Economic incentive of the beneficiary Art. 17:101 C3 Economic interest of the beneficiary Art. 17:101 C2; Art. 17:101 C3 Employer Art. 17:101 C1 Fund linked life assurance policies Art. 2:202 C4d Gambling Art. 17:101 C2; Art. 17:101 C3 In favour of third party Art. 17:102 C1 Instrument to secure a loan Art. 17:502 C8 Insurable interest Art. 17:101 C3 Life insurance contract Art. 7:102 Life of third party Art. 1:103 N5; Art. 11:101 N9; Art. 17:101; Art. 17:101 C1-C4; Art. 17:104 C3 Loan agreement Art. 17:204 C8 Medical examination Art. 17:204 C4; Art. 18:204 C6 Non-life insurance Art. 1:201 N2; Art. 2:601 N2; Art. 7:101 N2 Private pension schemes Art. 17:101 C1 Prolongation Art. 17:203 C4 Pure risk Art. 17:204 C2; Art. 17:205 C9; Art. 17:301 C3; Art. 17:303 C5; Art. 17:304 C14; Art. 17:502 C4; Art. 17:503 C2 Rate of return Art. 17:205 C3 Renunciation of estate Art. 17:105; Art. 17:105 C1 Revocation of beneficiary Art. 17:102 C10 Sanctions for no consent Art. 17:101 C10-C11 Security Art. 17:101 C5; Art. 17:101 C7 Term-fix Versicherung Art. 1:201 C11 Unit-linked life insurance Art. 17:204 C6; Art. 17:303 C5 Wagering Art. 17:101 C2

Mandatory provisions

With-profit policies Art. 17:301 C2 See also Assignment See also Branches of insurance See also Conversion See also Definitions See also Designation See also Encumbrance See also Group insurance See also Killing of the person at risk See also Life Assurance Consolidation Directive See also National laws See also Pension plans See also Person at risk See also Post-contractual information duties of the insurer See also Premium See also Pre-contractual information duties See also Pre-contractual information duties of the insurer See also Suicide See also Surrender See also Termination Limitation see Prescription Limits in recovery of indemnity see Indemnity Liquidated damages Art. 8:101 C6 Loss Art. 1:201 C6; Art. 1:201 C8; Art. 2:102 C6; Art. 2:202; Art. 8:101 C1; Art. 8:101 C2; Art. 13:101 N3 Actual loss Art. 8:104 N5; Art. 8:104 N7 Assessment of loss Art. 6:105 C4 Causation see Causation of loss Financial loss Art. 13:101 C1 First loss cover Art. 8:102 C1 Intent to cause the loss Art. 4:102; Art. 4:102 C1; Art. 4:103; Art. 4:103 C3; Art. 4:201 C5 Loss actually suffered Art. 8:104 Loss insured Art. 9:102 Loss of credit Art. 6:105 C6 Maximum possible loss Art. 8:103 Partial loss Art. 8:101 C1 Precautionary measures Art. 4:101 N6 Profits lost Art. 6:105 C6 Total loss Art. 8:101 C1 See also Definitions See also Notice Main insurance contract Art. 2:402 N1; Art. 2:403 N1 Mandatory provisions I2; I14; I17; I19; I45; I46; I47; I48; I57; Art. 1:103 C2; Art. 1:103 C3; Art. 1:103 C4; Art. 1:103 C7; Art. 1:103 N2; Art. 1:103 N3; Art. 1:103 N4; Art. 1:103 N10; Art. 1:103 N12; Art. 1:105 C1; Art. 1:105 C2; Art. 1:105 C5; Art. 3:101 C5 Absolutely mandatory provisions I20; Art. 1:103 C4; Art. 1:103 N4

909

Maritime Insurance Directive

Derogation Art. 1:103 C4; Art. 1:103 C5 Consumers Art. 1:103 C2 Internationally mandatory provisions Art. 1:105 C4 Labour law I71; Art. 1:103 C2 Law of landlord and tenant Art. 1:103 C2 Mandatory character Art. 1:103 C6; Art. 2:301 C3; Art. 2:301 C10; Art. 17:503 C6 Mandatory protection rule Art. 1:201 N1 Non-mandatory rule Art. 12:102 C5 Public policy Art. 1:103 C2 Semi-mandatory provisions I21; I22; Art. 1:103 C4; Art. 1:103 C5; Art. 12:101 C3 Statutory regulations Art. 1:103 C1 Unfair contract terms Art. 1:103 C2 See also Application of the PEICL See also Freedom of contract See also Internal market Maritime Insurance Directive Art. 16:101 C7 Markets in Financial Instruments Directive Art. 2:202 N1 Materiality Art. 4:301 C5; Art. 8:101 C7 MiFID2 I26; Art. 1:101 C6; Art. 1:202 C7; Art. 2:202 C4; Art. 2:202 N1 Minimum protection Art. 1:103 N1; Art. 1:103 N6; Art. 1:103 N7; Art. 1:103 N10; Art. 1:103 N12; Art. 1:105 C2 Minimum standards Art. 2:603 C4; Art. 2:603 C6 Minimum standard regulation I48-I49 Minimum term Art. 2:601 C3 Misrepresentation Art. 2:101 C1; Art. 8:101; Art. 8:101 C7; Art. 8:101 N7; Art. 8:102 C3; Art. 8:103 C4 Misrepresented information Art. 2:101 C1 Mistake Art. 8:101 N7 Inexcusable mistake Art. 12:101 N4 See also Value Mitigation of loss I71; Art. 9:102 C1; Art. 14:101 C1 Bonus pater familias Art. 9:102 N3 Mitigation costs Art. 8:101 C3; Art. 8:102; Art. 8:102 C2; Art. 8:104; Art. 9:102; Art. 9:102 C2; Art. 9:102 C6; Art. 9:102 N1-N8; Art. 15:104 C5; Art. 14:101 C1; Art. 14:101 C3; Art. 15:104 C5 Objective reasonableness Art. 9:102 N3 Reasonable measures Art. 9:102; Art. 9:102 C3; Art. 9:102 N2; Art. 9:102 N3-N4 Salvage operators Art. 9:102 C2 Subjective reasonableness Art. 9:102 N3 Unsuccessful measures Art. 9:102; Art. 9:102 C4f See also Causation of loss See also Costs Modification see Alteration of terms

910

Index

Montreal Convention I27; Art. 4:102 N7; Art. 9:101 C3 Moral hazard Art. 2:103 C3; Art. 2:104 C1; Art. 9:101 C2; Art. 13:101 C1; Art. 15:101 C2; Art. 15:101 C10 Net profit Art. 13:101 C1 Motor Insurance Directive Art. 6:105 C1; Art. 15:101 C2 Multiple insurance Art. 8:103 C2; Art. 8:104; Art. 8:104 C2; Art. 8:104 N1 Contribution Art. 8:104; Art. 8:104 C8 Independent liability basis Art. 8:104 C9 Subsidiaritätsklausel Art. 8:104 N9 Mutual insurance Art. 1:101; Art. 1:101 C2; Art. 1:101 N2 Mutuality Art. 2:103 C5 National laws Art. 2:201 N5; Art. 17:401; Art. 17:402 State subsidies Art. 17:402 C1; Art. 17:402 C3 See also Pension plans See also Tax treatment Nature of the PEICL see Application of the PEICL Negligence Art. 1:103 C4; Art. 2:102 N2; Art. 2:102 N4; Art. 2:102 N6; Art. 2:104 C6; Art. 4:103 C4 Art. 4:103 N13; Art. 4:103 N14; Art. 9:101; Art. 9:101 N7; Art. 9:101 N9; Art. 9:101 N10; Art. 10:101 C10; Art. 10:101 N9; Art. 14:103 C1; Art. 14:103 C4; Art. 17:503 C4 Negligent non-disclosure Art. 2:102; Art. 2:102 C6 Negotiation Art. 7:103 N3 Individually negotiated term Art. 2:304; Art. 2:304 C6; Art. 2:304 N9; Art. 2:304 N10; Art. 2:304 N11 Negotiations fail Art. 2:403 C1 Non-negotiated contracts Art. 2:304 N9 Renegotiation Art. 2:602 C1 New for old see Costs No-claims bonuses I71; Art. 14:105 C4; Art. 14:106; Art. 14:106 C1 Bonus-Malus systems I71; Art. 14:106 Claims record Art. 14:105 C4; Art. 14:106 C2; Art. 14:106 C3-C4 Transfer of bonuses Art. 14:106 C2 Non-discrimination Art. 1:207 Acquis communautaire Art. 1:207 C5 Actuarial data Art. 1:207 C1 Age Art. 1:207 C1; Art. 1:207 C2; Art. 1:207 C3; Art. 1:207 C4 Avoidance Art. 1:207 C8 Belief Art. 1:207 C2 Benefits Art. 1:207 C4; Art. 1:207 C5; Art. 1:207 C6; Art. 1:207 C9 Burden of proof Art. 1:207 C9 Classes of risk Art. 1:207 C1

Index

Differentiation Art. 1:207 C1; Art. 1:207 C2; Art. 1:207 C4; Art. 1:207 C5; Art. 1:207 C6 Direct discrimination Art. 1:207 C6 Disability Art. 1:207 C2; Art. 1:207 C4 Discrimination Art. 1:207 C2; Art. 1:207 C4; Art. 1:207 C5; Art. 1:207 C7; Art. 1:207 C6; Art. 1:207 C8; Art. 1:207 C9 Discriminatory terms Art. 1:207 C8 Equal treatment Art. 1:207 C4; Art. 1:207 C5; Art. 1:207 C6 Equality Art. 1:207 C2; Art. 1:207 C4; Art. 1:207 C5; Art. 1:207 C7 Ethnic origin Art. 1:207 C2; Art. 1:207 C5; Art. 1:207 C7; Art. 1:207 C9 Gender Art. 1:207 C1; Art. 1:207 C5; Art. 1:207 C6; Art. 1:207 C9 General principle of Community law Art. 1:207 C3 General principle of law Art. 1:207 C3; Art. 1:207 C9 Genetic features Art. 1:207 C2 Indirect discrimination Art. 1:207 C6; Art. 1:207 C7 Labour law Art. 1:207 C3 Labour relations Art. 1:207 C3 Language Art. 1:207 C2 Maternity Art. 1:207 C6; Art. 1:207 C9 National minority Art. 1:207 C2 Nationality Art. 1:207 C2; Art. 1:207 C5; Art. 1:207 C7; Art. 1:207 C9 Other experience Art. 1:207 C1 Personal characteristics Art. 1:207 C1; Art. 1:207 C2 Political opinion Art. 1:207 C2 Pregnancy Art. 1:207 C6; Art. 1:207 C9 Premiums Art. 1:207 C1; Art. 1:207 C2; Art. 1:207 C4; Art. 1:207 C5; Art. 1:207 C6; Art. 1:207 C8; Art. 1:207 C9 Principle of equal treatment Art. 1:207 C4; Art. 1:207 C5; Art. 1:207 C6 Race Equality Directive Art. 1:207 C5; Art. 1:207 C7 Racial origin Art. 1:207 C2; Art. 1:207 C5; Art. 1:207 C7; Art. 1:207 C9 Refusal to offer cover Art. 1:207 C5 Religion Art. 1:207 C2 Risk factors Art. 1:207 C1; Art. 1:207 C5 Risk-based premium Art. 1:207 C5 Sanctions for discrimination Art. 1:207 C8 Sex see Gender Sexual orientation Art. 1:207 C2 Social origin Art. 1:207 C2 Statistical experience Art. 1:207 C1 Test-Achats I24; Art. 1:207 C4; Art. 1:207 C6 See also Unfair Contract Terms Directive Non-payment Art. 5:101 C12; Art. 5:102 C8

Notice

Consequences of non-payment Art. 5:102 C6 Reminder Art. 5:102; Art. 5:102 C6; Art. 5:103; Art. 5:103 C7 See also Period of grace Notice Art. 1:205 C2; Art. 1:205 C5; Art. 2:602; Art. 2:603 N5; Art. 2:102 C5; Art. 3:101 N1 Breach of notice requirements Art. 6:101 C7 Change of circumstances Art. 2:101 C2 Contents of the notice Art. 6:101 C5 Dispatch Art. 6:101 N9 Form of notice Art. 1:205; Art. 1:205 C1; Art. 1:205 C3; Art. 1:205 C5; Art. 1:205 C7; Art. 1:205 C8; Art. 1:205 C10; Art. 1:205 C11; Art. 1:205 N1; Art. 2:602 C4; Art. 11:101 C10 In writing see Written notice Insurance period Art. 12:101 Insured Art. 1:205 C7 Interest in giving notice Art. 6:101 C1 Manner of notification Art. 4:202 C2 Notice by another person Art. 6:101 C1 Notice of an insured loss Art. 6:101 C5 Notice of deferral Art. 6:103 C3 Notice of prolongation Art. 2:602 C3 Notice of termination Art. 2:602 C3; Art. 2:602 C6; Art. 2:604 N6; Art. 5:103 C8; Art. 12:101 Notification clauses Art. 4:201 C2 Obligation to give notice Art. 11:101 C11 Periods Art. 6:101 C4 Proof Art. 6:101 C5 Reasonable time Art. 4:202 C2; Art. 4:202 C3; Art. 4:202 N1; Art. 6:101; Art. 6:101 C4; Art. 6:101 N7 Receipt of notice Art. 4:203 C2; Art. 5:103 C9 Term of notice Art. 2:602 C5 Time for notification Art. 6:101 N5 Time period Art. 6:101 N8 Written notice Art. 1:205 C8; Art. 1:205 C9; Art. 1:205 C11; Art. 2:102; Art. 2:202; Art. 2:301 N3; Art. 2:303; Art. 2:303 C3; Art. 2:602; Art. 2:602 C4; Art. 2:603 C6; Art. 2:603 N4; Art. 2:604; Art. 3:101; Art. 4:301; Art. 5:101 C8; Art. 5:103; Art. 5:103 C8; Art. 5:103 N3; Art. 4:102; Art. 4:102 C2; Art. 4:102 N2; Art. 4:102 N8; Art. 4:102 N9; Art. 6:103; Art. 11:101; Art. 11:101 C10; Art. 15:102; Art. 15:103; Art. 15:103 C5; Art. 17:204; Art. 17:204 C9; Art. 18:204; Art. 18:204 C9 See also Agent See also Aggravation of risk See also Cessation of insured risk See also Conclusion of the contract See also Conveyance See also Duty See also Insurance intermediaries

911

Notification

See also Insured event See also Termination of contract Notification see Notice Objection Art. 2:403 N1 Obligations Insurer’s obligation Art. 1:201 N4 Obligation in kind Art. 1:201 N5 Obligation in money Art. 1:201 N5 See also Disclosure See also Notice See also Payment See also Policyholder Ombudsman I29; I33 Financial Ombudsman Bureau Art. 2:202 N9 Financial Ombudsman Service Art. 1:103 N8; Art. 1:302 C1 Insurance ombudsman Art. 1:302 C1; Art. 1:302 C4; Art. 2:702 C5; Art. 15:102 C4 National ombudsman service Art. 1:302 C4 Rules of procedure Art. 1:302 C4 Optional instrument I34; I36; I37; I38-55; I64; I65; I68; I70; Art. 1:102 C1; Art. 1:207 C6; Art. 1:302 C4; Art. 16:101 C5; Art. 17:203 C2 2nd regime I43, I44, I54, I57 28th regime I57 Advantages I33-I37 Application by national courts I28; I30 Application by national supervisory authorities I33 Application by ombudsmen I33 Application to purely domestic contracts I50 European Regulation I32-I34; I38-I40; I42; I43; I57 Model EU Regulation I32 Model law I8 Model Optional Common European Insurance Contract Law I31-I55 Minimum standard regulation I48-I49 Political developments I56-I71 Substantive choice I43 Supervisory authority I33 See also Rome I Regulation Oral testimony Art. 2:301; Art. 2:301 C6; Art. 2:302 C1; Art. 2:302 C3 See also Evidence Ordre public Art. 1:103 N5; Art. 2:601 C2; Art. 2:602 C4; Art. 9:101 C2; Art. 9:101 C3 Ordine pubblico Art. 1:103 N5 Out-of-court complaint and redress mechanisms I29; Art. 1:302 Access to justice Art. 1:302 C2 Foreign law Art. 1:302 C4 National legislation Art. 1:302 C1 National mechanisms Art. 1:302 C3 Self-regulation Art. 1:302 C1 See also Alternative dispute resolution

912

Index

See also Arbitration clause See also Ombudsman Overinsurance Art. 8:102 N2; Art. 8:103 Package Travel Directive Art. 2:201 C1 Partial invalidity Art. 2:304 N13 Party autonomy Art. 12:102 N8 Payment Art. 1:201 N4; Art. 2:701 N8; Art. 5:101 C12; Art. 5:102 C7; Art. 11:101 C8 Action for payment of premium Art. 5:103; Art. 5:103 C11; Art. 7:102 Additional period Art. 5:102 N3; Art. 5:103 C7 Amount of payment Art. 5:102; Art. 5:102 C5; Art. 6:104 C3 Breach by insurer Art. 6:104 C4 Consequences of non-payment Art. 5:102 C6 Due date Art. 7:101 C3 Lump sum Art. 13:101 N5 Obligation of the insurer to accept premium Art. 5:105 C1 Partial payment Art. 6:104 N2 Payment of insurance money Art. 6:104 Payment with the consent of the policyholder Art. 5:105 C3 Prescription of actions for payment of the premium Art. 7:101 N2; Art. 7:101 N3 Right to non-payment of the premium Art. 11:101 C8 Time limit Art. 6:104 N1 Time periods Art. 6:104 N2 Two weeks for payment Art. 5:103 C5 See also Insurance money See also Non-payment See also Period of grace See also Premium See also Termination of contract PECL see Principles of European Contract Law Pension plans Art. 17:401 Conflict of law Art. 17:401 C8 Employee Art. 17:401 C6 Employers Art. 17:401 C2 Employment Art. 17:401 C1 Group insurance Art. 17:401 C2; Art. 17:401 C4 Individual contract Art. 17:401 C4 Life expectancy Art. 17:401 C1 Precedence of national law Art. 17:401 C3; Art. 17:401 C7-C8 Pure life insurance Art. 17:401 C5 Retirement Art. 17:401 C5 Social security Art. 17:401 C1 Performance Art. 6:104-Art. 6:105; Art. 6:104 C1 Fundamental non-performance Art. 2:604 C4 Improper performance Art. 2:304 C14

Index

Intentional or negligent non-performance Art. 6:105 C3 Performance in money Art. 1:201 N4 Terms excluding liability for inadequate performance Art. 2:304 C14 Terms excluding liability for non-performance Art. 2:304 C14 Time of performance Art. 6:104; Art. 6:104 N1 Period of grace Art. 5:101 N4; Art. 5:102 C6; Art. 5:102 C7; Art. 5:102 N4 Non-payment Art. 5:102 C7 Payment Art. 5:102 C7 Person at risk Art. 1:201 C14; Art. 1:202 C3; Art. 1:202 C4; Art. 1:202 C5; Art. 18:201 C3 Consent Art. 17:101 C3 Life insurance Art. 17:101 C2; Art. 17:101 C3; Art. 17:101 C4 Informed consent Art. 17:101 C5; Art. 17:101 C6 Substantial changes Art. 17:101 C8-C9 Subsequent consent Art. 17:101 C6 Time of consent Art. 17:101 C6-C7 Written consent Art. 17:101 C4 See also Definitions See also Killing of the person at risk Personal relationship see Policyholder Policyholder Art. 1:205 C7; Art. 9:102 C5; Art. 10:101 C8 Children Art. 10:101 N8 Death of the policyholder Art. 2:604 C4 Deliberate causation by the policyholder Art. 9:101 N1; Art. 10:101 C10 Employee of the policyholder Art. 10:101; Art. 10:101 C9; Art. 10:101 C12; Art. 10:101 N8; Art. 11:103 C7 Family members Art. 10:101 C9; Art. 10:101 C11; Art. 10:101 N8 Insolvency of the policyholder Art. 2:604 C4; Art. 15:101 C4 Liquidation Art. 15:101 C4 Member of the household of the policyholder Art. 10:101; Art. 10:101 C11 Members of the policyholder Art. 11:103 C7 Parents Art. 10:101 N8 Performance by the policyholder and any insured Art. 11:103 C5 Person in an equivalent personal relationship Art. 10:101 Persons employed with the same employer Art. 10:101 N8 Protection see Policyholder protection Priority over the insurer Art. 10:101 C3; Art. 10:101 C12 Right to cancellation Art. 2:303 N1; Art. 2:303 N4

Post-contractual information duties of the insurer

Right of termination Art. 17:204 C3 Spouse Art. 10:101 N8; Art. 13:101 N3 Unjust enrichment of the policyholder Art. 10:101 C1 Winding up Art. 15:101 C4 See also Claims See also Clauses See also Damages See also Definitions See also Duration See also Insurance See also Insurance policy See also Knowledge See also Payment See also Pre-contractual duties of the insurer Policyholder protection I2; I47; I49; Art. 1:103 C2; Art. 1:103 C5; Art. 1:103 N1- N14; Art. 1:104 C8; Art. 1:105 C2; Art. 1:105 C4; Art. 2:304 C2; Art. 2:304 C3; Art. 2:304 N12; Art. 2:401 C3; Art. 2:501 C4; Art. 2:502 C1; Art. 2:502 C3; Art. 2:502 N6; Art. 2:502 N8; Art. 2:601 C2; Art. 2:603 C5; ; Art. 2:601 C6; Art. 3:102 C1; Art. 5:101 N3; Art. 6:101 C4; Art. 6:105 C5; Art. 8:102 N3; Art. 8:104 C5; Art. 12:101 C3; Art. 17:104 C1; Art. 17:104 C3; Art. 17:303 C1; Art. 17:304 C14; Art. 17:601 C1 General good I2 Post-contractual information duties of the insurer Art. 2:701; Art. 2:701 N3; Art. 2:702 N1; Art. 17:301 Ad hoc information Art. 17:301 C1; Art. 17:301 C2 Amendment of the PEICL Art. 17:301 Applicable law Art. 2:701 N10 Average investment bonuses Art. 2:701 N4 Average investment yields Art. 2:701 N4 Conflict of interest Art. 2:701 N6 Duration of the contract Art. 2:701 N8 Duty to inform spontaneously Art. 2:701 C3 Duty to inform the beneficiary Art. 17:201 C7-C9 Essential elements of the contract Art. 2:702 C2 Essential features of the insurance product Art. 2:701 C1 Estimated amount of possible benefits Art. 17:301 Fundamental contractual provisions Art. 2:701 N8 Guaranteed capital Art. 2:701 N4 Information in writing Art. 2:701 Information upon request Art. 2:702 Manner of communication Art. 2:702 C4 Mid-term changes Art. 2:701 N10 Policy conditions Art. 17:301 Profit participation Art. 17:301

913

Pre-contractual documents

Remedies Art. 2:702 C5 Right to choose a lawyer Art. 2:701 N6 Sanctions Art. 17:501 C10-C12 Status of the beneficiary Art. 17:501 C8 Supervisory authority Art. 2:702 C5 Supervisory law Art. 2:701 C1 Updating information Art. 2:701 C6 Writing Art. 2:701 C7; Art. 2:702 Written statement of current bonus value Art. 17:301 See also Investigation Pre-contractual documents Art. 1:204 C1; Art. 2:201 Consumer protection Art. 2:201 C1 Copy of documents Art. 2:201; Art. 2:201 C4; Art. 2:201 N5; Art. 2:201 N7 Duty to provide Art. 2:201 C2 Prospective contract Art. 2:201 C1 See also Documents See also Transparency Pre-contractual duties of the insurer Art. 2:201-Art. 2:203; Art. 2:402 C3; Art. 17:202; Art. 18:202 Actuarial principles for premium calculation Art. 17:202 Additional information requirements Art. 17:202 C3 Annual report on solvency and financial condition Art. 17:202 Application of PEICL Art. 17:202 C1 Benefits Art. 17:202 C4 Calculation and distribution of bonuses Art. 17:202 C4 Commitments of the insurer Art. 17:202 C4 Complexity and nature of life insurance Art. 17:202 C2 Culpa in contrahendo Art. 2:202 N7 Draft contract Art. 2:201 N5 Duties to inform Art. 2:202 C1; Art. 15:102 C4; Art. 18:202 C1 Duty to advise Art. 2:202 N1; Art. 2:202 N5 Duty to assist the applicant Art. 2:202 C2 Duty to provide a pre-contractual document Art. 2:201 C2 Duty to warn Art. 2:202; Art. 2:203 C1; Art. 18:202 C1; Art. 18:202 C3; Art. 18:202 C5 Explicit statement Art. 17:202 C5 Guarantee funds Art. 17:202 C1 Insurance conditions Art. 17:202 C1 Insurer’s head office Art. 17:202 C1 Main insurance conditions Art. 17:202 C1 Maturity benefit Art. 17:202 Model calculation Art. 17:202 C7 Options Art. 17:202 C4 Out-of-court complaint mechanisms Art. 17:202 C1

914

Index

Paid-up values Art. 17:202 C4 Participation in profits Art. 17:202 C5 Pre-contractual documents Art. 2:201 Proper understanding of the risks Art. 17:202 C6 Rates of interest Art. 17:202 Reasonable expectations of the policyholder Art. 2:202 C5 Right to avoid the contract Art. 17:202 C1 Right to participate in profits Art. 17:202 Right to revoke Art. 17:202 C1 Risk insured Art. 17:202 C1 Risks underlying the contract Art. 17:202 C6 Supervisory law applicable Art. 17:202 Surrender values Art. 17:202 C4 Tax arrangements Art. 17:202 C4 Underlying assets Art. 17:202 C4 Unit-linked policies Art. 17:202 C4 See also Pre-contractual information duties Pre-contractual information duties Art. 2:101-Art. 2:105; Art. 17:201 Additional information Art. 2:105 Applicant’s duties Art. 2:101 N4; Art. 4:203 C4 Breach Art. 2:102; Art. 17:201 C4; Art. 17:201 C5 Causative information Art. 2:103 C2; Art. 2:104 C4 Contents of the pre-contractual documents Art. 2:201 C2 Duty to give true information Art. 2:105 Fraud Art. 17:201 C4; Art. 17:201 C5; Art. 17:201 C7 Immaterial information Art. 2:103; Art. 2:103 C2; Art. 2:103 N3; Art. 2:104 C4 Incomplete information Art. 2:103; Art. 2:103 N2 Incorrect information Art. 2:103 Indisputability Art. 17:201 C4; Art. 17:201 C6 Information known to the insurer Art. 2:103 C5 Innocent Art. 2:102 N5 Period Art. 2:104 C6 Reasonable insurer Art. 2:103 C2; Art. 2:103 C3 Records Art. 2:101 C7; Art. 2:103 C5 Variation of contract Art. 2:102; Art. 2:102 C3: Art. 2:102 N7; Art. 2:104 C3 See also Consumer See also Information See also Pre-contractual duties of the insurer See also Question See also Receipt of documents Precautionary measures Art. 4:101; Art. 4:101 C3; Art. 4:301 C1

Index

Non-compliance Art. 18:203 C1; Art. 18:203 C3; Art. 18:203 C4 Obliegenheiten Art. 4:101 C1; Art. 4:101 N3 Sanctions Art. 18:203 C3; Art. 18:203 C4 See also Discharge Preliminary cover Art. 1:205 C5; Art. 2:203; Art. 2:203 C1; Art. 2:203 C2; Art. 2:303 N7; Art. 2:303 C9; Art. 2:401; Art. 2:402; Art. 2:402 C1; Art. 2:402 N5; Art. 5:101 C3 Cancellation of preliminary cover Art. 2:403 C2 Duration of preliminary cover Art. 2:403; Art. 2:403 C1 Preliminary cover after formation Art. 2:402 N5 Preliminary cover before formation Art. 2:402 N5 Preliminary cover during formation Art. 2:402 N5 Preliminary insurance Art. 2:402 Proof of preliminary cover Art. 2:402 N3; Art. 2:402 N6 Temporary nature of preliminary cover Art. 2:403 N2 See also Cover Premier risque see First loss Premium Art. 1:201 C2; Art. 1:201 N2; Art. 1:207 C8; Art. 2:104 C5; Art. 2:303 C4; Art. 2:601 C5; Art. 2:604 N5; Art. 2:701 N4; Art. 2:701 N10; Art. 5:101; Art. 11:101 C8; Art. 17:205 C10 Action for payment of premium Art. 5:103; Art. 7:101 Advanced payment of premium Art. 5:101 C4 Amount Art. 5:102; Art. 5:102 C6 Calculation of premium Art. 1:207 C5; Art. 1:207 C6; Art. 2:201; Art. 2:304 C3; Art. 5:101 C7; Art. 5:104 C2; Art. 2:501; Art. 9:102 C4; Art. 17:202; Art. 17:202 C4; Art. 17:204 C5; Art. 17:303; Art. 17:303 C1; Art. 17:303 C5; Art. 17:303 C8; Art. 17:303 C9; Art. 17:303 C13; Art. 18:204; Art. 18:204 C5 Divisibility of premium Art. 5:103 C10; Art. 5:104; Art. 5:104 C1; Art. 5:104 N1; Art. 12:101 C5 Einlöseprinzip Art. 5:101 N1; Art. 5:101 N3 First premium Art. 2:203; Art. 2:203 C2; Art. 5:101; Art. 5:101 C1; Art. 5:101 C5 Indivisibility of premium Art. 5:104 C2; Art. 5:104 N2 Instalments Art. 5:101 C7; Art. 5:102 C3; Art. 7:101 C2 Mode of payment Art. 5:101 C1 Non-payment of premium Art. 2:602 C2; Art. 2:604 C4; Art. 5:101 C1; Art. 11:101 C8

Presumption

Place of payment Art. 5:101 C1 Pre-payment of the premium Art. 5:102 C2 Premium invoice Art. 2:602 Premium refund Art. 12:101 C6 Premium variations Art. 2:601 N2 Pro rata temporis Art. 5:104 Right to pay premium Art. 5:105; Art. 5:105 C2 Single premium Art. 5:101; Art. 5:101 C1; Art. 5:101 C5; Art. 5:101 C6; Art. 5:103 C1; Art. 17:204; Art. 17:204 C5-C6 Subsequent premium Art. 5:101 C5; Art. 5:102; Art. 5:102 C1; Art. 5:102 C3 Time of payment Art. 5:101 C1; Art. 5:102; Art. 5:102 C5 Time of reduction of premium Art. 4:301 N3 See also Adjustment of Premium See also Definitions See also Forfeiture See also Insurance intermediaries See also Payment See also Termination of contract See also Value Prescription Art. 6:103 N2; Art. 7:101; Art. 7:103; Art. 15:104; Art. 17:501 Absolute period Art. 7:102 C4 Actual entitlement Art. 17:501 C11 Commencement Art. 7:102 C1 Commencement of alteration Art. 2:603 N3 Concealment Art. 7:102 N5 Duration of the prescription period Art. 7:102 N8; Art. 17:203 C1 Final account Art. 7:102 Ignorance Art. 7:102 N6; Art. 7:102 N9 Law of prescription Art. 7:101 N4 Liability law Art. 15:104 C1; Art. 15:104 C7 Period of prescription Art. 7:101 C2-C3; Art. 7:102 C1-C4; Art. 15:104 C2-C4 Prescription of claims not covered by Art. 7:101 and 7:102 Art. 7:103 C1 Standstill agreement Art. 7:103 N3 Suspension Art. 15:104 C6-C8; Art. 17:501 C10-C11 Time limit Art. 7:101 N6 Unregulated issues of prescription Art. 7:103 C2 See also Defence costs Presumption Approval Art. 2:502 N1; Art. 2:502 N6; Art. 2:502 N9 Material information Art. 2:103 C2; Art. 2:103 C3; Art. 2:103 C5 Parol evidence rule Art. 2:501 N8 Presumption of termination Art. 5:103 N5 Settlement of claims Art. 6:103 C3; Art. 15:102 C6; Art. 15:102 C8

915

PRIIP Regulation

PRIIP Regulation I26; Art. 2:201 C1 Key information document I26 Principles of European Contract Law (PECL) I9; I14; I15; I27; Art. 1:104 C1; Art. 1:104 C4; Art. 1:104 C5; Art. 1:104 C7; Art. 1:105 C7; Art. 1:203 C1; Art. 1:203 C3; Art. 1:203 C7; Art. 1:205 C2; Art. 1:205 C3; Art. 1:205 C5; Art. 1:206 N1; Art. 2:102 C2; Art. 2:104 C2; Art. 2:104 C5; Art. 2:202 C1; Art. 2:202 C5; Art. 2:301 C1; Art. 2:301 C2; Art. 2:301 C3; Art. 2:301 C8; Art. 2:301 C10; Art. 2:301 C12; Art. 2:302 C3; Art. 2:302 C5; Art. 2:303 C4; Art. 2:304 C1; Art. 2:304 C2; Art. 2:304 C9; Art. 2:402 N9; Art. 2:501 C2; Art. 2:601 C6; Art. 2:602 C6; Art. 3:101 C3; Art. 4:102 C3; Art. 4:201 C3; Art. 5:101 C1; Art. 5:101 C2; Art. 5:101 C12; Art. 5:102 C2; Art. 5:103 C2; Art. 5:103 C4; Art. 5:103 N1; Art. 5:105 C2; Art. 5:105 N1; Art. 5:105 N2; Art. 6:105 C2; Art. 6:105 C4; Art. 7:101 C1; Art. 7:101 C3; Art. 7:102 C1; Art. 7:102 C2; Art. 7:102 C3; Art. 7:103; Art. 7:103 C1; Art. 7:103 C2; Art. 7:103 C3; Art. 7:103 N1; Art. 7:103 N5; Art. 8:104 C1; Art. 11:101 C1; Art. 11:101 C2; Art. 11:101 C5; Art. 11:101 C7; Art. 11:101 C11; Art. 12:101 C2; Art. 17:101 C4; Art. 17:103 C3 Gap filling Art. 1:105 C6 Law of the Member States Art. 1:105 C6 Lex generalis I14; I15; Art. 5:103 C4 Uniform law Art. 1:105 C6 Principles of general contract law see General principles of contract law Private international law I1; I2; I6; I37; I40; I41; I44; I46; I54; Art. 1:101 C5; Art. 1:102 C2; Art. 1:102 C3; Art. 1:103 C7; Art. 1:105 C6 Conflict of laws I1; I2; I37; I40; I41; I42; I46; I54; Art. 1:101 C5; Art. 1:102 C2; Art. 1:102 C3; Art. 1:103 C6; Art. 1:105 C6; Art. 8:104 C8 Harmonisation I2 International insurance contract law I6 Pro rata Basis Art. 8:104 N9 Compensation Art. 8:102 C2 Recovery Art. 8:104 N8 Rule Art. 9:102 C6 Procedures Preliminary ruling I28; I33; I47; I60 See also Ombudsman Professional opinion Art. 2:101 C7 Prolongation of contracts Art. 2:303 C10; Art. 2:303 N6; Art. 2:602; Art. 2:602 N1; Art. 2:603; Art. 17:203 C4 Automatic prolongation Art. 2:601 C5; Art. 4:201 C3 Need for prolongation Art. 2:602 C1

916

Index

Reasons for the insurer’s decision not to prolong Art. 2:602 C4 Statutory prolongation Art. 2:602 N1 Promissory warranties I27; Art. 4:101 C1; Art. 4:101 N4; Art. 4:102 N2; Art. 4:201 C2; Art. 4:201 C5 Promissory conditions Art. 4:101 N4 See also Precautionary measures Proof Art. 1:205 C4; Art. 2:301 Standard of proof Art. 2:202 C7 See also Burden of proof See also Evidence Property Conveyance Art. 12:102 N4 Notification of the conveyance Art. 12:102 N5 Purchase of a house Art. 12:102 C1 See also Transfer See also Value Proposal for a Directive on Consumer Rights Art. 2:201 C1 Provisions common to indemnity insurance see Indemnity insurance Public law Art. 1:101 C4; Art. 2:202 N9 Public policy see Ordre public Questions Art. 2:105 Comment; Art. 2:105 Note Precise and clear questions Art. 2:101 N5; Art. 2:401 N8 Questionnaire I71; Art. 2:101 C3; Art. 2:101 N5; Art. 2:201 Unanswered questions Art. 2:103; Art. 2:103 C1 Race Equality Directive see Non-discrimination Reasonableness Art. 2:604 N4 Mitigation costs Art. 9:102 N3-N4 Reasonable parties Art. 2:304; Art. 2:304 C11; Art. 2:304 N14 Reasonable request Art. 6:102 C2 Reasonable time Art. 6:102 C2 Subjective approach to mitigation Art. 9:102 N3 Receipt of documents Art. 1:204 Burden of proof Art. 1:204 C1; Art. 1:204 N1; Art. 1:204 N2; Art. 18:202 C8 Contents Art. 1:204 C1 Pre-contractual documents Art. 1:204 C1 Proof Art. 1:204 Receipt of the documents Art. 1:204 C1 Res ipsa loquitur Art. 1:204 C2 Standard of proof Art. 1:204 C2 Reckless conduct Art. 4:102; Art. 4:102 C1; Art. 4:103; Art. 4:103 C3; Art. 4:201 C2; Art. 4:201 C5; Art. 6:102; Art. 6:102

Index

C3; Art. 9:101; Art. 9:101 C3; Art. 9:101 N3; Art. 9:101 N5; Art. 10:101; Art. 10:101 C10 Recourse against other insurer Art. 8:104 N10 Redress I29; I71; Art. 2:304 C14; Art. 2:501 See also Out-of-court complaint and redress mechanisms Reduction Art. 9:101 N1 Proportional reduction see Insurance money Reduction by operation of law Art. 8:103 N4 Reduction of the sum insured Art. 8:103 See also Claims See also Insurance money See also Premium See also Risk Renewals Art. 2:601 C1; Art. 2:601 C4; Art. 2:602 C2; Art. 2:602 N3; Art. 2:701 N10; Art. 7:103 N1; Art. 7:103 N5 Rescission Art. 2:102 N3; Art. 2:202 C5; Art. 2:501 N3 Restatement of European Insurance Contract Law I1; I62; I63 Branches of insurance I11 General part I10 See also Optional instrument Restatements of the law I9 See also Restatement of European Insurance Contract Law Restitution Art. 2:104 C5; Art. 2:303 C4; Art. 17:205 C10 Retroactive cover Art. 2:401; Art. 2:401 C2; Art. 2:401 C3; Art. 2:401 N1 Retroactive Art. 2:303 C4 Retroactive effect Art. 2:102 C2; Art. 2:102 C3; Art. 2:104 C5; Art. 2:202 C9; Art. 5:103 C10 Retroactive insurance Art. 1:201 C3; Art. 2:401 N5 Retroactive policies Art. 2:401 N4 See also Definitions See also Knowledge Revocation Art. 1:205 N2; Art. 2:403 N1; Art. 11:101; Art. 11:101 N4 Arrival of revocation Art. 2:302 C4 Effectiveness Art. 2:302 C5; Art. 11:101 C11 Revocation of an application Art. 2:302; Art. 2:302 C2 See also Cover Risk Art. 1:201 C2; Art. 1:201 C4; Art. 2:401 C1; Art. 2:601 C3 Biometric risks Art. 1:201 C11; Art. 17:303; Art. 17:303 C1; Art. 17:303 C2; Art. 17:303 C8; Art. 17:303 C12; Art. 17:303 C13 Change of risk Art. 2:602 C3; Art. 17:303 C6 Classes of risk Art. 1:207 C1

Sanctions

Commercial Risks Art. 1:103 C6; Art. 14:107 C17; Art. 14:107 C20 Evaluation of risks Art. 2:202 C2 Exception to the risk Art. 4:101 C4 Future risk Art. 12:101 N3 Human risk factors Art. 1:207 C1 Initial absence of risk Art. 12:101 N3 Large risks I13; I22; I23; I71; Art. 1:103 C6; Art. 1:103 C7; Art. 1:103 N13; Art. 7:103 C3; Art. 14:107 C13; Art. 18:201 C1; Art. 18:201 C2 Mass risks I22; I71; Art. 2:101 C3; Materialisation of the risk Art. 1:201 C5 Moral risk Art. 11:101 N9 Nature of the risk Art. 2:601; Art. 2:601 C3 Over-estimated risk Art. 4:301 C4 Passing of the risk Art. 12:102 C3 Professional risk Art. 9:101 N8 Reduction of risk Art. 1:205 C5; Art. 4:301 Risk management Art. 4:301 C3 Risk never existed Art. 2:401 N6; Art. 2:401 N9 Risk never occurred Art. 2:401 N9 See also Definitions See also Materiality See also Person at risk See also Risk insured Risk insured Art. 4:101; Art. 8:104 C2; Art. 11:103; Art. 12:101 Calculation Art. 2:102 C1; Art. 2:102 N9; Art. 2:103 N3 Lack of insured risk Art. 12:102 C1 Non-existence of insured risk Art. 12:101 C4; Art. 12:101 N1 Reasonable sum Art. 12:101 C4 See also Cessation of insured risk Rome I Regulation I2; I18; I22; I31; I39; I40; I43; I45; I53; I54; Art. 1:101 C5; Art. 1:102 C2; Art. 1:102 C3; Art. 1:103 C6; Art. 1:104 C8; Art. 1:105 C4; Art. 1:105 C6; Art. 2:501 C2; Art. 8:104 C8; Art. 15:104 C4; Art. 16:101 C4; Art. 16:101 C5; Art. 17:401 C8 Rome II Regulation Art. 1:101 C5; Art. 15:101 C7; Art. 15:104 C4 Rome Convention I1; Art. 1:101 C5 Sanctions Art. 2:202 N6; Art. 2:203 N2; Art. 2:304 C10 Damages Art. 17:501 C12 Estoppel Art. 17:501 C10 For a violation of the duty to cooperate Art. 6:102 N3 Incomplete Sanctions Art. 2:203 N4 Prescription suspension Art. 17:501 C10-C11 Punitive interest rates Art. 6:105 N3 Supervisory law Art. 17:501 C12 Unclear sanctions Art. 2:203 N4

917

Scope of application of the PEICL

Venire contra factum proprium nulli conceditur Art. 17:501 C10 See also Aggravation of risk See also Non-discrimination Scope of application of the PEICL see Application of the PEICL SE see European company Settlement Art. 2:401 C5; Art. 6:103 C1 See also Claims See also Direct claims Single licensing I1; I7 Social insurance law Art. 1:101 C3 Soft law I31 Solvency II Directive I22; Art. 1:103 C6; Art. 1:103 C7; Art. 1:103 N13; Art. 1:201 C10; Art. 1:201 C12; Art. 1:203 C5; Art. 1:203 N1; Art. 1:203 N3; Art. 1:203 N4; Art. 1:205 N1; Art. 2:201 C1; Art. 2:201 C3; Art. 2:201 N1; ; Art. 2:201 N4; Art. 2:203 N1; Art. 2:303 C1; Art. 2:303 N1; Art. 2:303 N5-N7; Art. 2:701 C2; Art. 2:701 C5; Art. 2:701 N2; Art. 2:701 N6; Art. 14:101 C6; Art. 14:106 C2; Art. 17:202 C1-C3; Art. 17:202 C4; Art. 17:202 C6-C7; Art. 17:203 C1-C2; Art. 17:301 C3; Art. 17:303 C3; Art. 17:303 C13; Art. 17:603 C2 Standard terms Art. 2:303 C2 Information for the insured Art. 2:702; Art. 2:702 C3 Preliminary cover Art. 2:402 N1; Art. 2:402 N8 Unfair Art. 2:304 Unfairness control I71 Subrogation Art. 10:101; Art. 10:101 C1-C12; Art. 10:101 N1-N10 Detrimental exercise of subrogation rights Art. 10:101 C12 Doctrine of subrogation Art. 10:101 N3 Prejudice the insurer’s right of subrogation Art. 10:101 C7 Priority of the policyholder over the insurer Art. 10:101 C12 Protection of subrogation rights Art. 10:101 N4 Suicide Art. 17:502 Causation of the insured event Art. 17:502 C2 Depression Art. 17:502 C2 Discharge Art. 17:502 C1; Art. 17:502 C7-C8 Indemnity insurance Art. 17:502 C2 Mental distress Art. 17:502 C2 Mental illness Art. 17:502 C2 Mental incapacity Art. 17:502 C1; Art. 17:502 C6 Mixed life / investment policy Art. 17:502 C4 Obligation to disclose Art. 17:502 C3 Pre-contractual information Art. 17:502 C5

918

Index

Profits 341 Proof beyond reasonable doubt Art. 17:502 C6 Pure risk policy Art. 17:502 C4 Standard contract terms Art. 17:502 C1 Surrender value Art. 17:502 C7 Time period Art. 17:502 C5 Sum insured Art. 2:701 N9; Art. 8:101; Art. 8:101 C1; Art. 8:101 C4; Art. 8:102; Art. 8:102 C1; Art. 8:103; Art. 8:104; Art. 9:102; Art. 9:102 C4; Art. 9:102 N6; Art. 14:108; Art. 17:101 C5 Calculation by the insurer Art. 8:102 N2 Calculation of the sum insured Art. 8:102 N2; Art. 8:102 N3 Claims exceeding the sum insured Art. 14:108 Reduction of the sum insured Art. 8:103 Subject to average Art. 8:102 N1 See also Insurance money See also Claims exceeding the sum insured Sums payable Maximum sums payable Art. 8:101; Art. 8:104 C7 Supervisory authority I33; Art. 1:203 C8; Art. 2:501 N3; Art. 2:603 C2; Art. 2:603 C3; Art. 2:702 C5; Art. 17:303; Art. 17:303 C8; Art. 17:303 C12; Art. 17:304; Art. 17:304 C7 Supervisory law I1; Art. 1:101 C4; Art. 1:101 N9; Art. 1:105 C3; Art. 1:201 C4; Art. 1:203 C8; Art. 2:701 N1; Art. 17:202; Art. 17:304; Art. 17:304 C7; Art. 17:501 C12; Art. 17:601 C1; Art. 17:601 C4; Art. 17:602 C4; Art. 17:602 C5; Art. 17:603 C1; Art. 17:603 C5 Alteration Art. 17:304 C7 Single licensing I1 Surrender Art. 17:602 In writing Art. 17:602 C2 Insurer’s information duty Art. 17:602 C4 Right of surrender Art. 17:602 C1-C2 Supervisory law Art. 17:602 C4; Art. 17:602 C5 Time of payment Art. 17:602 C6 With-profits policies Art. 17:602 C5 See also Surrender value Surrender value I71; Art. 7:102; Art. 17:102; Art. 17:103; Art. 17:204; Art. 17:502; Art. 17:602 C1; Art. 17:603 Actuarial principles Art. 17:603 C4; Art. 17:603 C6 Beneficiary Art. 17:102 C3; Art. 17:103 Calculation I71; Art. 17:303 C7; Art. 17:602; Art. 17:602 C5; Art. 17:603; Art. 17:603 C1; Art. 17:603 C3; Art. 17:603 C4; Art. 17:603 C5; Art. 17:603 C6 Commissions Art. 17:603 C5

Index

Cost of investments Art. 17:603 C3 Costs of contract conclusion Art. 17:603 C5 Deduction of costs of contract conclusion Art. 17:603 C5 Deduction of costs of payment Art. 17:603 C6 Disvestment Art. 17:603 C6 Home country principle Art. 17:603 C1-C4 Insolvency Art. 17:102 C11-C14 Payment Art. 17:601 C3; Art. 17:601 C4; Art. 17:602 C6; Art. 17:603 C5; Art. 17:603 C6 Penalty Art. 17:603 C6 Supervisory law Art. 17:603 C1 Suspension see Cover Tax treatment Art. 17:304; Art. 17:402 Capital cover system Art. 17:402 C1 Conflict of laws Art. 17:402 C2 Demographic changes Art. 17:402 C1 Group insurance Art. 17:402 C2 Mandatory Art. 17:402 C4 National rules Art. 17:402 Old-age provision Art. 17:402 C1 Pension plans Art. 17:402 C1; Art. 17:402 C2 Social security Art. 17:402 C2 Subsidies Art. 17:402 C1; Art. 17:402 C3 Tax law Art. 17:402 C3 Termination of contract Art. 1:207 C8; Art. 2:102; Art. 2:102 C2; Art. 2:102 N7; Art. 2:104 C3; Art. 2:202 C9; Art. 2:604; Art. 4:101 N1; Art. 4:102 N2; Art. 4:301 N5; Art. 5:102; Art. 5:102 C10; Art. 5:102 N2; Art. 5:103; Art. 8:103; Art. 8:103 N5; Art. 8:104 N6; Art. 11:101 C8; Art. 12:101 C6; Art. 12:101 N5; Art. 12:102; Art. 12:102 N5; Art. 17:601 C3 Automatic termination Art. 5:103 C11; Art. 12:102 C3; Art. 12:102 C7; Art. 12:102 N1 Breach of precautionary measures see Precautionary measures Breach of pre-contractual disclosure duties Art. 17:205 C4-C6 Effect Art. 17:205 C10 Ex nunc Art. 4:102 N2 Ex tunc Art. 4:102 N2 Exclusion of group member Art. 18:203 Expiration of the right of termination Art. 2:604 N5 Form Art. 5:103 N3; Art. 17:205 C9 Group insurance Art. 18:203; Art. 18:203 C1-C5; Art. 18:204 Insurer’s right of termination Art. 17:205; Art. 17:205 C4; Art. 17:205 C6; Art. 17:205 C7; Art. 17:602 C3; Art. 18:203; Art. 18:203 C2; Art. 18:302 C3 Means of termination the contracts Art. 2:701 N10 Minimum duration Art. 17:204 C7

Terms of contract

Modalities Art. 17:205 C10 National social security law Art. 17:204 C7 National tax law Art. 17:204 C7 Non-payment of (a subsequent) premium Art. 5:102 C10; Art. 17:205 C9 Occurrence of insured event Art. 18:203 C2 Option of termination Art. 2:604 C3 Policyholder’s right of termination Art. 17:204; Art. 17:204 C3; Art. 17:204 C4; Art. 17:204 C7; Art. 17:204 C8 Premature termination Art. 2:601 C5; Art. 17:205 C7; Art. 17:205 C8 Prospective effect Art. 2:104 C5 Right of termination Art. 2:202 C9; Art. 2:304 C13; Art. 2:601 C4; Art. 2:601 C7; Art. 2:601 N2; Art. 2:601 N3; Art. 2:603; Art. 2:603 C6; Art. 2:603 N5; Art. 2:604; Art. 2:604 C2; Art. 2:604 N1- N8; Art. 4:102; Art. 4:203; Art. 4:203 C2; Art. 4:301; Art. 4:301 N5; Art. 4:301 N6; Art. 5:102 N2; Art. 5:103; Art. 5:103 C1; Art. 5:103 C3; Art. 5:103 C8; Art. 5:103 C12; Art. 5:103 C1; Art. 5:103 N1; Art. 5:103 N2; Art. 12:102; Art. 12:102 N1; Art. 14:107 C7; Art. 17:303 C1; Art. 17:402 C1; Art. 18:201 C3 Termination of the framework contract Art. 18:102 C6; Art. 18:303; Art. 18:303 C1-C3 Time for termination Art. 12:102 C6 Transfer of property Art. 12:102 C3; 18:203 C5 Waiting period Art. 17:204 C4 See also Aggravation of risk See also Breach See also Information See also Notice See also Payment See also Precautionary measures See also Presumption Terminology of the PEICL I27 Precautionary measures I27 Promissory warranties I27 See also Definitions Terms of contract Art. 2:203 N1; Art. 2:603 Contract terms Art. 2:402 N2 Core terms Art. 2:304 C3; Art. 2:304 C4 General policy terms Art. 2:402 N4 Hidden terms Art. 2:304 C14 Intelligibility of the terms Art. 2:304 C14 Maximum terms of insurance contracts Art. 2:601 C2 Previous dealings Art. 2:402 N9 Terms and conditions Art. 2:501 N11 Terms of the cover note Art. 2:402 N9 Uncommon content Art. 2:304 N8 Unsuspected changes of terms Art. 2:502 C1 See also Conclusion of the contract

919

Third Generation Insurance Directives

See also General contract terms See also Insurance policy See also Non-discrimination See also Performance See also Standard terms See also Unfair contract terms Third Generation Insurance Directives I7; Art. 2:201 N1; Art. 2:201 N2; Art. 2:201 N4; Art. 2:603 C2 Third Non-Life Insurance Directive I1; Art. 1:101 C5; Art. 1:205 N1; Art. 2:201 C1; Art. 2:201 N4 Third party Art. 2:303 C3; Art. 2:303 C7; Art. 2:303 C9; Art. 6:101 N3; Art. 10:101; Art. 10:101 C1; Art. 10:101 C8 Direct claim against the insurer Art. 11:101 C9; Art. 11:101 N3 Interest in maintaining the cover Art. 5:105 C4; Art. 12:102 C1 Legitimate interest Art. 5:105 C4 Repräsentantenhaftung Art. 9:101 N6 Spouse Art. 10:101 N8; Art. 13:101 N3 Threat Art. 8:101 N7 Time limit Exercise of right to terminate Art. 2:602 C6; Art. 2:604 C3; Art. 2:604 C5; Art. 4:102 C3; Art. 4:102 N8 See also Cooling-off period See also Payment See also Prescription Timeshare Directive I48; Art. 1:203 C5; Art. 2:201 C1; Art. 2:602 C6 Transfer Art. 12:102 Group insurance Art. 12:102 C11; Art. 18:203 Inter vivos transfers Art. 12:102 N2 Substitution approach Art. 12:102 N5 Termination approach Art. 12:102 N3 Transfer of the insured goods Art. 2:604 C4 Transfer of the insured property Art. 2:604 C4; Art. 12:102; Art. 18:203 C5 Transfer of title Art. 12:101 C9; Art. 12:102 Transferee Art. 12:102 C5; Art. 12:102 C6; Art. 12:102 N1 Transition period Art. 12:102 N1; Art. 12:102 N4; Art. 12:102 N5 Transparency Alteration of terms Art. 2:603 C6 Consumer transactions Art. 1:203 N11 Documents Art. 1:203 C2; Art. 1:203 C4 Insurance contract Art. 2:501 C4 Pre-contractual documents Art. 2:201 C1 Transport conventions I27; Art. 4:102 N7 Treaty of Lisbon Art. 1:207 C2 Treaty of Rome Art. 1:207 C2 Uncertainty Future claims Art. 2:401 C2

920

Index

Insured event Art. 1:201 N3; Art. 1:201 N6 Legal framework Art. 1:105 C2 Performance Art. 1:201 C4 Remedy Art. 2:102 C4 Revocation Art. 11:101 C10 Risk Art. 1:201 C3; Art. 2:401 N1; Art. 2:401 N9 Subjective uncertainty Art. 2:401 C1 Validity of the contract Art. 2:303 C8 UNCITRAL Model Law on Electronic Commerce Art. 2:302 C4 Underinsurance Art. 8:102; Art. 8:102 C1; Art. 9:102 C6 Underwriting Art. 4:201 C2; Art. 17:302 C1; Art. 18:101 C1 Unfair contract terms Art. 1:301 C1; Art. 1:103 C2; Art. 1:103 N9; Art. 2:603 C3; Art. 2:603 C5; Art. 2:604 N1 Remainder of the contract Art. 2:304 C11 Significant imbalance Art. 2:304 C8 Standard contract Art. 2:304 Uncommon content Art. 2:304 N8 Unfair Contract Terms Directive I3; Art. 1:103 C6; Art. 1:104 C5; Art. 1:203 C2; Art. 1:203 N5; Art. 1:207 C8; Art. 1:301 N1; Art. 2:304 C1; Art. 2:304 C8; Art. 2:304 C9; Art. 2:304 C13; Art. 2:304 N1; Art. 2:304 N5; Art. 2:304 N7; Art. 2:304 N8; Art. 2:304 N12 Unfair surprises Art. 2:304 C14 Unfairness Art. 2:304; Art. 14:107 C25 See also Fairness See also Terms of contract UNIDROIT Principles Art. 11:102 N1 Uniform law Art. 1:105 C6 United Nations Convention on Contracts for the International Sale of Goods (CISG) I34; Art. 1:104 C1; Art. 1:104 C7; Art. 5:103 N1 Usage Art. 2:402 N9 Value Adequacy in value of the cover and the premium Art. 2:304 Agreed value Art. 8:101; Art. 8:101 N2 Difference between the agreed value and the real value Art. 8:101 N5 Effect of value agreements Art. 8:101 N3 Insured value Art. 8:101 Market value Art. 1:201 C7; Art. 8:101 C2 Mistake Art. 8:101 C7 Over-valuation Art. 8:101 C7 Probative value Art. 2:502 N3 Property over-valued Art. 4:301 C4 Repurchase value Art. 2:701 N4 Significant value Art. 8:101 N5 Surrender value Art. 7:102 Value of the property Art. 8:102

Index

Valued policies Art. 8:101 C3; Art. 13:101 C1 Variation of contract see Alteration of terms VCLT see Vienna Convention on the Law of Treaties Victims Art. 2:303 C9 Agreement on defence costs Art. 14:102 C4 Claim Art. 14:101 C2; Art. 14:104 C1 Duty to cooperate Art. 6:102 N2 Enforcement of rights Art. 9:101 C3 Payment to the policyholder Art. 14:102 C2 Protection Art. 1:103 C2; Art. 2:303 C9; Art. 14:102 Settlement of claim Art. 14:102; Art. 14:104 C1; Art. 14:104 C2 Termination Art. 2:604 N3 Written consent Art. 14:102 C1 See also Acknowledgement of liability See also Definitions See also Direct claim

Writing

Vienna Convention on the Law of Treaties Art. 1:104 C1 Vis major Art. 7:103 N5 Void contract Art. 2:104 C3; Art. 2:401 C3; Art. 2:401 C4; Art. 2:401 N2; Art. 2:401 N3; Art. 2:401 N6; Art. 2:401 N8; Art. 8:103 N1; Art. 8:104 N4; Art. 12:101 N3; Art. 12:101 N5 Warning Art. 5:101; Art. 5:101 C8; Art. 5:102 N3 Requirement of warning Art. 5:101 N3; Art. 5:102 N4 Warranties Art. 4:101 C2; Art. 4:101 N4; Art. 4:103 N4 See also Precautionary measures See also Promissory warranties Wilful misconduct Art. 4:103 N13; Art. 4:201 C2 Writing Art. 5:101 See also Documentary evidence See also Documents

921