ARTICLES, DISCUSSIONS, ANALYSES, REVIEWS
OBLIGATION OF THE INSURED TO COOPERATE WITH THE INSURER IN ESTABLISHING THE OCCURRENCE OF AN INSURED EVENT IN MODERN LAW OF EUROPEAN COUNTRIES
Considering the differences in legal sources of continental European countries reformed in the last 16 years regulating non-marine insurance contracts, which before all relate to the manner of creation and core of the insured’s obligation to cooperate with the insurer in establishing the occurrence of an insured event and the amount of the insurer’s obligation to indemnify, the author of this paper discusses several important issues relevant for the modern regulation of this obligation in the future Civil Code of the Republic of Serbia. Third draft of the said piece of legislation was issued by the Serbian Government Committee for drafting the Civil Code on 29th May 2015. One of the main issues discussed herein pertains to these differences: should this obligation, not regulated as insured’s legal contractual obligation under the applicable Law on Contracts and Torts from 1978 i.e. under the Insurance Contract Law of Serbia, be regulated as a legal contractual obligation or a stipulated obligation and to what extent, that is, to what extent should it be regulated by the insurer under the insurance conditions? In addition, should this obligation, which is recognized in all insurance lines, be regulated as a single obligation incorporating insured’s obligation to notify the insurer of the occurrence of an insured event, or as an independent one, separated from the latter? If it is regulated as an independent one, does it and to what extent does it form a legal entitety with the insured’s obligation to notify the insurer of the occurrence of an insured event? How to create this obligation in terms of its effect: should it arise at insurer’s request or without it, as a legal contractual obligation or a stipulated one incurred by the insured ex lege, i.e, based on a stipulation in a contract?
Also, the author discusses the issue as to how many elements this obligation
should contain and the extent to which it should be regulated under the law, as well
as the details, i.e. elements the said obligation should comprize in terms of the duties
of the insured towards the insurer so that it is in line with the modern insurance needs
in Serbia. Also, should these duties, which are part of the obligation to cooperate, be
limited by law or contract? Which persons in insurance, other than the insured, should be
defined as persons under this obligation? How should the insurer sanction the insured
who has breached the obligation? Finally, how should the type and severity of fault of
the insured who breached the said obligation affect the type of right the insurer has
and in what way? The author also discusses the issue of adequate terminology applied
to this obligation in our domestic law, for which legal systems of European continental
countries analysed in this paper used different expressions or did not name at all.
The analysis of these issues is carried out, on the one hand, in view of the solutions adopted in the reformed laws of European countries that are, from the aspect of non-marine insurance, finances and economy in general, considered one of the most developed European countries with the most progressive non-marine insurance contract law (Germany, Austria, Switzerland and France), and on the other hand, in the reformed laws applicable in peripheral European countries, in order to establish the extent and areas in which they follow the modern legislation in the most developed countries, bearing in mind the non-marine insurance contract law in particular (The Czech Republic, Bulgaria and Romania). The paper also analyses solutions contained in the international document that should serve as a basis for drafting the future directive on the European (non-marine) Insurance Contract Law, adopted on 1st of November 2015, under the title the Principles of the European Insurance Contract Law. As regards this document, even when it was in a form of the Draft in 2007, i.e. 2009, the European academic community generally considered it a progressive and balanced protection system of the insured and the insurer.
Key words: the insured, the insurer, obligation, cooperation, notification, submission of documentation, breach of obligation, consequences.