Kontraheringsplikt vid företagsförsäkring - En undersökning av småföretagares rätt till försäkring

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: A duty to contract involves an obligation to enter into an agreement, and there-fore constitutes an exception from the principle of contractual freedom. A duty to contract exists in the Insurance Contracts Act and stipulates an obligation for insurance companies to enter into an agreement with an individual who wants to acquire a consumer- or personal insurance, unless there are special reasons precedent to refuse such insurance. The inquiry Ds 2005:42 establishes that a duty to contract should not be introduced towards small businesses that want to acquire a business insurance. This essay aims at identifying and discussing whether the main arguments, to why there is no duty to contract towards small businesses that want to acquire business insurance, today are justifiable. In addition, this essay aims at investigating whether there are other aspects that can be considered in the discussion of a duty to contract within business insurance. The essay uses a legal analytical method and for this reason a legal critical perspective is applied. From Ds 2005:42, one can derive three main reasons to why there is no duty to contract towards small businesses that want to acquire a business insurance. The first reason is that the legislator should not particularly favour small businesses by providing a right to insurance that goes beyond that of a consumer- and personal insurance. According to the inquiry, a duty to contract towards small businesses would have to go beyond that of a consumer- and personal insurance, and it would be particularly apparent to favour small businesses in this way. It is however possible for small businesses to be favoured in front of consumers in 36 § AvtL, why the first reason is not considered justifiable. The second reason is because of insurance technical reasons. The inquiry’s review of insurance technical reasons is based on the risks of robbery and theft for small businesses in certain suburbs, who sell easily renewable goods. Based on this risk category, the inquiry concludes that insurance technical reasons stand in the way of introducing a duty to contract towards small businesses. One reason behind this conclusion is that it would be unacceptable to remove insurance companies’ power to determine insurance premiums and terms in a manner that correspond with the increased risks. The review of insurance technical reasons is however not based on small businesses as a whole and the second reason is therefore not considered justifiable. The third argument is that a duty to contract in business insurance, is unknown to foreign legal systems. In Norway, however, there is a duty to contract in business insurance, why the third reason is also not considered justifiable. This essay therefore concludes that the three main reasons, to why there is no duty to contract within business insurance, today are unjustifiable, i.e. do not comply with today’s legal position or are not factually correct. The essay further concludes that there are other aspects that can be considered in the discussion of a duty to contract towards small businesses that want to acquire a business insurance. Firstly, some of the general motives behind the duty to contract imply that a duty to contract could be introduced also towards small businesses that want to acquire a business insurance. These motives look to protect those in a position of dependence and social considerations. Another aspect that can be considered is that a duty to contract can be regarded as aligned to the government’s other policies toward small businesses. A jobseeker may, for example, receive a government grant in order to start a business. It would therefore not be remarkable if the Swedish government also facilitated small businesses’ ability to acquire a business insurance. The final aspect that the essay discusses is how insurance companies may adapt to the imposition of a duty to contract within business insurance. The absence of a duty to contract could result in insurance companies deciding which businesses to contract with. This could in turn lead to certain lines of business being unable to conduct business, since an insurance often is a necessity when conducting business. A duty to contract could however also result in insurance companies deciding not to provide a specific insurance, when the actuarial assessments are considered imponderable.

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