The insurer's and the bank's duty to inform
The misfortunes of life ... markets. Baited by performance prospects superior to those of contracts in euros, the subscriber often forgets that he risks , with unit-linked contracts , of losing all his savings, without paying much attention to the documentary warnings prescribed by the legislator. When the benchmark markets collapse, the greed or naivety of the underwriter gives way to anger towardsinsurers and banks who had touted exceptional performance.
Thus , in 2008 and 2009 , certain unit- linked contracts , like any stock market investment (PEA, securities account), suffered the consequences of the fall in listed shares (for example, the index of the CAC 40 : minus 42.68 % in 2008), since they were discontinued during this period. In addition, many insurers, for purely commercial purposes, had encouraged policyholders with risk-free euro insurance contracts to transform them into multi-support contracts, to take advantage of the Fourgous amendment , introduced in the Breton law. of July 26 , 2005 (more than 56.3 billion euros in transfers at the end of 2008).
For the crisis of 2011 and 2012, the insured will also have to assume the collapse of the financial markets, both in equities and, as a new fact, in the bonds of companies and States in difficulty ,constituting units of account. of its cont rat ( for listed equities , in 2011, the CAC 40 index fell 16.95% ).Of course, as with the previous financial crisis, only policyholders whose contracts expired or who bought them back during this period will be directly affected .
The p questionable business ractices. In defense of the insured, it should be added that the presentation of commercial documents is sometimes biased. In order not to worry the client to whom it is proposed to take out unit-linked life insurance, the sulphurous words of stock market, shares, or CAC 40 are often replaced by the acronyms PEA and FCP, which are much more reassuring. When it comes to life insurance contracts for which the guaranteed sum refers to several investment vehicles in unit-linked units, the word obligation keeps coming back to the detriment of references to other risky financial products such as shares. . In addition, the disappointment of customers is often due to the use, at all times, of the words " guaranteed capital funds " or " full capital guarantee at maturity excluding commission ". This assemblage of words can make them believe that they will necessarily recover the invested capital at the end of the contract. However, all specialists know that these guaranteed funds may not be without risk as long as they depend in whole or in part on market parameters. In general, this clarification only appears in information notices, approved by the Autorité des marchés financiers, whose terms, tables and graphs are off-putting and extremely technical. Conversely , when the capital is not guaranteed, the Advisory Committee of the Financial Sector (CCSF) observes that “ information is often relegated to small print and / or at the bottom of the pages ” (CCSF Annual Report 2010-2011, p. 104).
The diversity of the actions of the insured . When he thinks he has been misled, the insuredsometimes tries to request the cancellation of his contract on the basis of the error on the substance of article 1108 of the Civil Code. However, this action is doomed to failure, insofar as the Court of Cassation recalls that an error on the substance cannot relate to the choice of an investment, nor to the non-perception by the subscriber of the savings. of the contract (Cass. 2 nd civ., 8 October 2009, n ° 08-18928: Bull. civ. II, n ° 239).
The insured may also bring an action for failure by the insurer to fulfill its pre-contractual obligation to provide information , provided for by Articles L. 132-5-1 and A. 132-4 and A. 132-5 of the Insurance Code( See above the information in the informative box relating to units of account). If the insured wins his casein court , he can simply renounce the contract taken out and therefore recover all of the funds paid (C. assur., Art. L. 132-5-2. Jérôme Bonnard, Droit insurance , LexisNexis, 4 th edition forthcoming, No. 853).
But, most often, the insured will bring a liability action for failure of the insurer or the bank to its duty of information, on the basis of article 1147 of the Civil Code , or even on that of specific texts. investment service providers and insurers .
Legal obligation of information. In terms of Articles L. 533-12 and following of the Monetary and Financial Code, theproviders of investment services must act " honestly, fairly and professionally, serving the best interests of customers " (C. I. and finan c . L. 533-11) and all the heart 's information, including promotions must have an " exact content, clear and not misleading. "(C. mon. Et financ. L. 533-12, I). For insurance companies, the new Article L. 132-27 -1 of the Insurance Code, derived from an order n ° 2009-106 of 30 January 2009 pre c ise that the information relating to the individual or group contracts life insurance policies with cash values must present " accurate, clear and not misleading content ." ” Moreover, a new paragraph“ III ”of article L. 520-1 extends the provisions of this article L. 132-27-1 to intermediaries who thus become obligated to advise the company.
Respectable insurance companies and banks. When insurers and bankers make an educational effort to properly explain the nature of the unit-linked life insurance products that they offer to policyholders, the courts do not hesitate to dismiss their liability. An excellent example is given by a judgment of the Court of Cassation dated May 15, 2008, which approved the trial judges not to have upheld a failure by a bank in its duty to advise, due to a clause in a document brought to the attention of policyholders worded as follows : “ The value of units of account changes every week. We remind you that for units of account, the insurer's commitment relates to the number of units of account. The equivalent in euros changes according to the net asset value of each of the vehicles. This value varies upward or downward ”(Cass. 2nd civ., May 15, 2008, n ° 07-11049 : Resp. Civ. Et assur., 2008, comm. 274).
The objectification of the duties of information and warning. On the other hand, insurance companies and banks which failed to explain to policyholders that their life insurance contracts invested in units of account were sensitive to fluctuations in the financial markets, will attempt , a posteriori , to benefit from the jurisprudence which admits a subjective conception of the duties of information, advice and warning. In fact, with regard to banks and financial services, these duties cease with regard to informed customers who master the mechanisms of the products to which they have subscribed (for example :Cass. C om., 14 Dec. 2004 : Bull. Civ. . IV, No. 221, about stock market investments Cass.. 1 st civ, 12 July 2005.. : Bull civ.. I, No. 325, about a loan). However, this exception has difficulty persevering in the presence of certain insurance products. On the one hand, it is not retained by the Court of Cassation in matters of group insurance (Cass. 2 nd civ., Sept. 3, 2009, n ° 08-13952). On the other hand, the Commercial Chamber of the Court of Cassation, in an Axa France actions / Axa international actionsjudgment , dated December 14, 2010, was reluctant to welcome it in terms of life insurance contracts in units of account, operating, it seems, in this regard , a reversal of its own jurisprudence (C ass c. om, Jan 12, 2010, No. 08-17956.. : in this case, the r esponsibility of the bank was dismissed on the grounds that the client had already taken out a unit-linked life insurance contract several years previously and that he thus had experience allowing him to qualify as an adviser on financing using the same financial resources).
The Axa France actions / Axa international actions case . This case gave rise to a judgment dated December 14, 2010, which condemned a bank for failure to fulfill its duty to inform, on the basis of article 1147 of the Civil Code, as well as a general agent of insurance for breach of their duty to advise, on the basis of article 1382 of the Civil Code, as to the characteristics and risks of several contracts that they offered to their client (Com., 14 Dec. 2010, n ° 09-17306 , unpublished). This client had first taken out with the insurance company Axa France vie and through its general agent, two life insurance contracts invested in units of account : Axa France actions and Axa international actions . Then, she had taken out with a bank (the company Axa bank) a variable rate bridging loan, for a term of three years, repayable in fine and guaranteed by the pledge of one of these two contracts, the amount of which was paid directly into one of these two life insurance contracts. The loan not having been repaid by the client, the bank proceeded to the repurchase of the pledged contract, up to a reduced sum compared to the original investment due to the loss of value recorded on the two contracts of life insurance, following the fall of the stock market.
The judgment is all the more remarkable as the client, who exercised the profession of accountant, could undoubtedly understand the mechanisms resulting from these products and the consequences of their interweaving. No doubt for this circumstance, the Montpellier Court of Appeal, on September 22, 2009, had ruled out the liability of the Axa bank and of the general agent of the Axa insurer. However, the Court of Cassation censured this judgment for two reasons which elude any reference to the client's knowledge and skills. On the one hand, the Court of Cassation states that " the banker who offers a financial investment to his client is required to inform him of the characteristics of the products offered and of the less favorable aspects and the risks inherent in the options, which may be the corollary of the stated advantages, as well as their adequacy with the personal situation and the expectations of the client ”. On the other hand, she adds that “ the general insurance agent's duty to advise requires him to inform his client about the characteristics and risks of the insurance products that he offers and their suitability for the situation. personal and client expectations ”. These reasons express an objectification of the duties of information, advice and warning of all those who produce or distribute unit-linked life insurance. The subscribers or members of these contracts are thus placed on an equal footing : whatever their activity or knowledge of the management of life insurance contracts, stock markets and financial products, they are beneficiaries of the same duties of information, advice and warnings from insurers, banks and their intermediaries.
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