What is an insurance contract?
The meeting of three key elements: premium, claim, service
The French insurance code does not define the insurance contract. The insurance code of the Kingdom of Belgium gives one:
"(the insurance contract is) a contract under which, upon payment of a fixed or variable premium, one party, the insurer, undertakes to another party, the policyholder, to provide a service stipulated in the contract in the event of an uncertain event occurring which, depending on the case, the insured or the beneficiary, has an interest in not seeing materialize ".
This definition comes from the Belgian law of June 25, 1992 which was intended, in imitation of the French law known as "Bérégovoy" of December 31, 1989 on the evolution of the insurance code, the maximum protection of the interests of consumers.
Remember: three elements are therefore necessary for the formation of the insurance contract: a premium, through which a service will be performed in the event of an uncertain event (the risk).
A premium (or contribution, if the insurance contract is provided by a mutualist actor): consideration that the insured undertakes to pay to the insurer in exchange for his guarantee. It is in a way the remuneration of the insurer.
A service: this is the execution, by the insurer, of its guarantee. This can be done in money, such as reimbursement of the value of a vehicle, or in kind, such as the repatriation of a person.
A risk: it is the random event (one whose occurrence does not depend on the will of the insured) against the consequences of which we protect ourselves: theft, conflict, fire, death ... object of the insurance contract. By definition, the insurance contract is a random contract: "The hazard exists as soon as when the contract is formed, the parties cannot appreciate the advantage they will derive from it because it depends on 'an uncertain event "(Cass. civ. I, July 8, 1994, n ° 92-15551).
Therefore, the hazard relates to two elements:
the occurrence of the event (occurrence of the theft of the fire or the insured accident);
the date of the occurrence of the event (the date of death, in terms of life insurance, is uncertain).
The assessment of the random nature is subject to the sovereign assessment of the trial judges (Cass. Civ. I, June 20, 2000, no. 97-22681).
What conception of the hazard is adopted? Objective hazard (the event occurred) or subjective hazard (the event occurred but the insured was not aware of it)?
The high judicial court orients its case law on the subjectivization of the hazard. In several judgments, it has ruled that an insurance contract cannot guarantee a risk that the insured already knew to have occurred on the day the policy was taken out (Cass. Civ. I, November 4, 2003, n ° 01-14942 ; Cass. Civ. II, December 21, 2006, n ° 05-11367, Cass. Civ. II, April 15, 2010, n ° 08-20377).
Example: your legal protection insurer cannot take charge of a dispute that arose before taking out the legal protection insurance contract.
> For more information on the legal protection insurance contract, see the INC fact sheet "The legal protection insurance contract".
Consequently, the a contrario reasoning illustrates the desire to cover the risks already realized but ignored by the insured at the time of the conclusion of the contract.
What are the penalties for the absence of hazard?
The absence of the contingency contract on the day of subscription is sanctioned by a "relative" nullity of the contract for lack of cause.
Relative nullity "can only be invoked by the person whose protection the law which has been disregarded tends to ensure" namely essentially the insurer to escape the application of his guarantee (Cass. Civ. I, November 9, 1999, n ° 91-16306).
Example: the insurer can plead the nullity of the contract when the traffic accident which caused the destruction of the insured vehicle occurred before the conclusion of the contract (Cass. Crim, December 11, 2007, n ° 07-81665).
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