Coronavirus and insurance

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Can insurance alleviate the crisis of the coronavirus? And – reverse of the
medal – does this threaten the insurance industry? It is diffi cult to
pronounce as the crisis evolves quickly. The right,
which for its part does not evolve (or not to this
speed), provides some answers, even if its role remains modest.
It invites us to go to the “limits of insurance” (see the eponymous thesis of P. Vaillier,
H. Groutel (ed.): Ed. Tribune de l’assurance, 2001), which are twofold. They
derive from the insurability of the risk (1) and its warranty (2).
1. Risk insurability
It should be remembered here that legally otherwise fi nancially, there are only two limits to
insurability: public order (C. civ., art. 6)
and the hazard (tinged with morality) which opposes
the insurance of certain faults: intentional, even fraudulent (C. assur., art. L. 113-
1). A risk of great magnitude, would it be technically difficult to ensure,
remains insurable for the law (the risk of war, which is admittedly legally excluded
but unless otherwise agreed C. assur., art. L. 121-8, is no exception). If he
It is up to an insurer to cover the consequences of an epidemic, so it can legally do so.
But, if he repents having made such a commitment (the epidemic becoming over time
pandemic), can it come back to it? Of course, he can terminate the contract after
claim (if a clause so provides: C. insur.,
art. R. 113-10), the extent of it revealing to him that he had misjudged the risk at the
subscription. He can also terminate the contract
at the annual deadline (Insurance code, art. L. 113-
12). But this will only have an effect for the future and not on the current disaster. For
this one, it will be necessary to pay the service … except
perhaps to turn to the common law of contracts! We think first of the
force majeure, but if this exonerates a
responsible (see in contractual matters,
C. civ., Art. 1231-1), which indirectly benefits the liability insurer of
this one, it releases a debtor only if
it prevents the performance of its obligation (C. civ., Art. 1218). But, being a
obligation of sum of money as is very generally that of the insurer, we do not
not see how his execution would be rendered impossible. The “direct” insurer (of things
or people) cannot therefore take refuge
behind force majeure to refuse his guarantee.
Can he then allege that the execution of his
obligation, to be possible, would have become excessively onerous due to a
unforeseeable change in circumstances
when concluding the contract? It would be
invoke the notion of unforeseeability now accepted by the Civil Code (C. civ., art.
1195, red. Ord. n ° 2016-131, art. 2). But he
is not sure that this text which, at least to its
reading, would allow a retroactive termination of the contract, find to apply (for
the discussion, V. L. Mayaux, Unpredictability
and insurance: from one code to another: RGDA
feb. 2017, n ° 114e5, p. 87). On the one hand, he
is erased in the presence of a special provision (C. civ., art. 1105). However, as we have
seen, the Insurance Code does not provide for termination of the insurance contract only for
the future. If it allows the insurer to put end to it for increased risk
(Insurance C., art. L. 113-4), it does not release it
of its payment obligation in the event of an aggravation of the claim. And on the other hand, we
may think that having regard to nature itself of the insurance contract which is a contract of
risk cover, the insurer is reputed
have agreed to assume the risk of unpredictability within the meaning of article 1195 of the Code
civil. This excludes any revision or termination of the contract for pending claims.
Otherwise, what would become of the security expected from this contract by the insured?
To circumvent the obstacle, one author suggested that insurers stipulate in their
policies only for all claims with the
same cause, the warranty is limited to such
sum, all contracts combined (J. Kullmann, The insurance benefit in colloque
Today’s insurance benefits and tomorrow: AIDA, Paris, Nov. 20, 2019). Yes
this sum had to be exceeded, the insurer owed nothing more. But such a stipulation appears contrary to the Civil Code which
deems unwritten any clause which deprives
its substance an essential obligation of contract (C. civ., art. 1170). As we have
said, the obligation to cover the risk is
of the essence of the insurance contract. Stipulate that the guarantee is not due for a
circumstance not subject to exclusion, even as for the contract considered, no sum would have yet
been paid by the insurer for the year in
course (unlike a cap per year) amounts to undermining its substance. We will add that this “super-globalization”, which would assimilate several sinister
to one for insured persons covered by
different contracts, is pure fi ction
legal. It amounts to assimilating a portfolio of contracts to a single contract.
which, even with the most
elastic which is the notion of group of
contracts, seems very exaggerated. When an insurer, without ceasing to be bound by its policyholders, seeks to limit the burden of risk
that he agreed to cover, it was rather by the
recourse to reinsurance that he can find
the solution. One will object that this one also has
its limits and that no sector is immune
of a crisis that is both systemic and global.
But, anyway, the insurance and
reinsurance can do nothing against the end of the
world

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