Doktrin

Unfair Contract Terms Directive, Article 3

This article is a commentary on the Judgement T 497-20 by the Supreme Court published in 2020 on the unfairness of terms in insurance contracts that give the wrong impression to consumers with regard to their rights and aim at circumventing mandatory provisions. The Supreme Court found in this case that a term in an insurance contract that effectively limits the coverage of the insurance by defining what measures have to be taken by consumers in order to prevent the damage was to be seen as against the mandatory provisions of the Insurance Contracts Acts (2005:104) that provide that if the insured consumer has to act in a specific way according to an insurance contract, this has to be formulated as a duty imposed to the insured consumer and not as a limitation on the coverage of the insurance. Consequently, such a term was also unfair under the Act (1994:1512) on contract conditions in consumer relationships. The author in his analysis concludes there are three main lessons learnt. The first one is that the Supreme Court has not provided any comprehensive guidance on when terms on the coverage of the insurance may constitute a hidden-action clause, namely a clause that aims at circumventing mandatory provisions. Secondly, such clauses may indeed entail great risk for the insurance companies, and thirdly that according to the argumentation provided by the Supreme Court, the mere wording of a term does not suffice for deciding whether this term should be put aside according to Chapter 4 para 11 of the Insurance Contracts Act (2005:104) since other factors may also play a part.