Case law

  • Case Details
    • National ID: link
    • Member State: Spain
    • Common Name:“Allianz Ras Seguros y Reaseguros, S. A.” v Order of the Ministry of Economy ...
    • Decision type: Other
    • Decision date: 31/05/2003
    • Court: Tribunal Supremo (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1.
  • Headnote
    1. The list of unfair clauses in the appendix of the Directive 93/13/EEC it is simply indicative but not exhaustive, so a clause that it is not included on that list can be unfair. Moreover, a clause may not be unfair in general but it may be within a particular contractual sector.
    2. The clauses of termination of the insurance contract after an accident happened, although for both parties, and not only for the businessman were acknowledged, are unfair because they produce an imbalance between the rights and the duties of the parties.
  • Facts
    An insurance company challenged the order of the Ministry of Finance of 14th February 1994 and of the National Insurance Office before the Supreme Court. In that order it was forbidden the following clause in the contract “Insurance of my motorcycle”: “After an accident has happened and within up to 15 days after either the compensation had been paid or the insurance cover for that particular accident had been rejected, both parties can terminate the contract”. According to the company, this clause is in accordance to the principle of freedom of agreement of the Civil Code (art. 1255) and it is not contrary to the unfair clause prohibited in the Law 26/1984 and in the Directive 93/13/EEC on reservation of unilateral termination only by the businessman. The Supreme Court, in this judgment and in many others declares the nullity of the clause for being unfair.
  • Legal issue
    The content of this judgment is the same as in other former judgments of the Supreme Court, which this judgment makes reference to, as the ones of 4th March 2002, of 11th July 2002, of 24th June 2002, of 31st December 2002. Nearly all the judgments on this matter reproduce the arguments of the judgment of the Supreme Court of 24th June 2002, to declare the nullity of the clause whereby both parties in an insurance contract can terminate it freely within up to 15 days after one of the accidents, which is object of the insurance, happen. Those arguments are the following:

    1) The administration is competent to control the insurance contracts according to the Law 33/1984, of 2nd of August on private insurance.

    2) This clause goes against the principle of autonomy of will, because it leaves the performance of the contract down to the decision of one of the contracting parties (art. 1256 of the Civil Code) and, besides, it is not the result of a free agreement, but it is imposed by one of the parties in a standard form contract.

    3) The conditions for an insurance contract to be terminated are those imposed by the mandatory rules, which do not prevent from taking as valid ones the stipulations that were more beneficial for the insured person, something that does not happen within these clauses.

    4) These clauses are against art. 10 of the Law 26/1984 despite of being presented as bilateral and as reciprocal, because they break the balance between the parties, although apparently they could produce the opposite impression, because the consumer has on his side that possibility without the need to express it, in application of the general rules on contracts. And there is not proportionality, because the simple refund of part of the price, as the only consequence for the insurance company, does not correspond with the consequences that the insured consumer has to face, because he signed a contract in order to insure a risk which, once it happens is not covered by the insurance company. Therefore, “without bad faith nor negligence, nor any other requirement, the insured person is expelled from his contractual relation after the accident is communicated. It does not seem exaggerated then, to consider damaging some clauses which make him being in a defenceless position”.

    5) The Directive 93/13 does not contradict this, “since though it does not include in its appendix, among what are considered unfair clauses, those with similar content to the ones discussed here, and it does incorporate, in section f) the ones that leave only in the hands of the professional the termination of the contract, it is a simple indicative list not an exhaustive one (art. 3.3), therefore depending on the contract in question and on the circumstances, an stipulation may not be unfair in general but it may be in a particular sector. And, within the insurance one, due to its particular characteristics and the interests that it protects, a termination like the one intended can leave a person without cover”.

    The content of this judgment is the same as in other former judgments of the Supreme Court, which this judgment makes reference to, as the ones of 4th March 2002, of 11th July 2002, of 24th June 2002, of 31st December 2002. Nearly all the judgments on this matter reproduce the arguments of the judgment of the Supreme Court of 24th June 2002, to declare the nullity of the clause whereby both parties in an insurance contract can terminate it freely within up to 15 days after one of the accidents, which is object of the insurance, happen. Those arguments are the following:

    1) The administration is competent to control the insurance contracts according to the Law 33/1984, of 2nd of August on private insurance.

    2) This clause goes against the principle of autonomy of will, because it leaves the performance of the contract down to the decision of one of the contracting parties (art. 1256 of the Civil Code) and, besides, it is not the result of a free agreement, but it is imposed by one of the parties in a standard form contract.

    3) The conditions for an insurance contract to be terminated are those imposed by the mandatory rules, which do not prevent from taking as valid ones the stipulations that were more beneficial for the insured person, something that does not happen within these clauses.

    4) These clauses are against art. 10 of the Law 26/1984 despite of being presented as bilateral and as reciprocal, because they break the balance between the parties, although apparently they could produce the opposite impression, because the consumer has on his side that possibility without the need to express it, in application of the general rules on contracts. And there is not proportionality, because the simple refund of part of the price, as the only consequence for the insurance company, does not correspond with the consequences that the insured consumer has to face, because he signed a contract in order to insure a risk which, once it happens is not covered by the insurance company. Therefore, “without bad faith nor negligence, nor any other requirement, the insured person is expelled from his contractual relation after the accident is communicated. It does not seem exaggerated then, to consider damaging some clauses which make him being in a defenceless position”.

    5) The Directive 93/13 does not contradict this, “since though it does not include in its appendix, among what are considered unfair clauses, those with similar content to the ones discussed here, and it does incorporate, in section f) the ones that leave only in the hands of the professional the termination of the contract, it is a simple indicative list not an exhaustive one (art. 3.3), therefore depending on the contract in question and on the circumstances, an stipulation may not be unfair in general but it may be in a particular sector. And, within the insurance one, due to its particular characteristics and the interests that it protects, a termination like the one intended can leave a person without cover”.
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