What is an insurance contract?
The meeting of three key elements: premium, loss, provision
The French Insurance Code does not define the insurance contract. The code of the Kingdom of Belgium Insurance, he gives a:
"(The insurance contract is) a contract under which, on payment of a fixed or variable premium, one party, the insurer, undertakes to another party, the policyholder, provide provision stipulated in the contract in case of an unforeseen event that uncertain, as applicable, the insured or the beneficiary's interest not to see happen. "
This definition comes from the Belgian Law of 25 June 1992 which is intended, in imitation to the said French law "Beregovoy" of 31 December 1989 on the evolution of the Insurance Code, the maximum protective of the interests of consumers.
Remember: three elements are necessary to the formation of the insurance contract: a bonus, with which a benefit will be executed in case of occurrence of an uncertain event (risk).
A premium (or contribution, if the insurance policy is provided by a mutual actor): return the insured agrees to pay to the insurer in exchange for its guarantee. It is in a way the remuneration of the insurer.
A benefit: this is the performance by the insurer, its warranty. This can be realized in cash, as the repayment of the value of a vehicle, or in kind, such as returning a person.
One risk: it is the random event (the one whose occurrence does not depend on the will of the insured) against the consequences of which we are safeguarded theft, war, fire, death ... This is the the very purpose of the insurance contract. By definition, the insurance contract is an aleatory contract: "The hazard exists from los at the time of formation of the contract, the parties can enjoy the advantage they retire because it depends an uncertain event "(Cass. Civ. I, 8 July 1994, No. 92-15551).
Consequently, the hazard involves two elements:
the realization of the event (occurrence of the theft of fire or accident insured);
the date of the occurrence of the event (the date of death, in life insurance, is uncertain).
The appreciation of randomness is subject to the discretion of trial judges (Cass. Civ. I, 20 June 2000, No. 97-22681).
What conception of the hazard is retained? The objective hazard (the event came true) or subjective hazard (the event was realized but the insured did had no knowledge)?
The highest judicial court directs its jurisprudence on the subjectification of the hazard. By several judgments it held that a contract of insurance does not guarantee a risk that the insured knew already done to the police the day subscription (Cass. Civ. I, 4 November 2003, No. 01-14942 ;.. Cass Civ II, 21 December 2006, No. 05-11367, Cass Civ II, 15 April 2010, No. 08-20377)...
Example: your insurer legal protection can support litigation that was carried out before the souscritption of legal protection insurance.
> For more information on the legal protection insurance policy, see the fact sheet INC "The legal protection insurance policy."
Therefore, a contrario reasoning illustrates the willingness to cover risks already made but ignored by the insured at the time of conclusion of the contract.
What are the penalties for lack of randomness?
The absence at the Subscription Day hazard the contract is sanctioned by nullity "relative" of the contract for no reason.
The relative nullity 'may be invoked only by the country whose law has been disregarded tended to protect "ie essentially the insurer to avoid the application of the guarantee (Cass. Civ. I, 9 November 1999 No. 91-16306).
Example: the insurer may plead the nullity of the contract when the traffic accident that caused the destruction of the insured vehicle occurred before the contract is concluded (Cass crim, December 11, 2007, No. 07-81665.).
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