Contract Training: Meeting Wishes and Risk Declarations
The insurance contract, as the vast majority of cases is a consensual contract. That is to say, it is formed from the meeting of the wishes of the insurer and the insured (Cass., July 1, 1941; Cass. Civ. I, November 14, 1995, n ° 93- 14546; Cass. Civ. II, March 17, 2011; N ° 10-16553; Cass. Crim., May 27, 2008, n ° 07-88176).
However, the high court has come to clarify this notion of consensualism: "It is necessary that an agreement intervenes on all the elements of the contract" and that the latter can not form "failure to agree at the moment to from which the risk was guaranteed and the duration of this guarantee "(Cass. Civ. II, July 5, 2006, n ° 05-14566).
Although there is not a formalism ad validatem, that is to say a formalism required as a condition of validity, a writing is required in terms of evidence to report the existence and content of the contract of assurance. This principle is posed by Article L. 112-3, paragraph 1 of the Insurance Code and confirmed by the case law (Cass. 1 July 1941, Cass. Civ. II, March 17, 2011, n ° 10-16553) .
The date of formation of the contract shall not be confused with the effective date of the contract: it is possible to provide for the effectiveness of the guarantees previously or after the conclusion of the contract (the recovery clause of the past or, Conversely, waiting time).
Remote conclusion of the insurance contract
Increasingly, the insurance contract, especially through the use by the consumer of online insurance comparators, is remotely realized by one or more distribution channels (telephone, internet or combination of both).
This conclusion of the remote insurance contract is supervised by the provisions of the Consumer Code for the sale of remote financial services.
The Insurance Code set out in Article L. 112-2-1, the necessary conditions to secure the sales process.
The insurer or intermediary in assurance, such as a comparator, must issue, before the conclusion of the contract, to the consumer in writing or other sustainable support (example: mail) the contractual conditions (such as a draft contract provided for in the article L. 112-2 of the Insurance Code) and the following information:
1 - The name of the Contracting Insurance Company, the address of its registered office, when the insurance company is registered in the Trade and Companies Register (CSR), its registration number, the contact details of the laptop responsible for its control as well as if any, the address of the branch which proposes the coverage;
2 - the total amount of the premium or the assessment or, where the amount may not be indicated, the basis for calculating this premium or contribution allowing the subscriber to verify it;
3 - the minimum contract duration and the guarantees and exclusions provided for by it;
4 - the duration during which the information provided is valid, the terms of conclusion of the contract and payment of the premium or the contribution as well as the indication, if any, of the additional cost specific to the use of a marketing technique from a distance ;
5 - The existence or absence of a right to renunciation and, if this right exists, its duration, the practical arrangements of its exercise in particular to the address to which the notification of the waiver must be sent. The subscriber must also be informed of the amount of the premium or contribution that the insurer may claim him in return for the effectiveness of the guarantee, at his express request, before the expiry of the period of waiver;
6 - The law on which the insurer is based to establish pre-contractual relations with the consumer as well as the law applicable to the contract and the language that the insurer undertakes to use, with the agreement of the subscriber, during the duration of the contract ;
7 - the procedures for reviewing the claims that the subscriber may formulate on the contract including, where appropriate, the existence of a particularly charged body of this review, without prejudice to him to take legal action. as well as, where applicable, the existence of guarantee funds or other compensation mechanisms.
The insurer or the insurance intermediary executes these transmission obligations immediately after the conclusion of the contract, when it has been concluded at the request of the consumer using a remote communication technique that does not allow the transmission of pre-contractual information and contractual on paper support or durable support. We think here naturally on the phone.
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