Dolda handlingsklausuler i försäkringsavtal
Sammanfattning: Insurance contracts always contain coverage conditions, which specify which event(s) should or should not be covered by the policy. In line with the central principle of product freedom, these terms are not regulated by law. However, due to the unequal balance of power between the parties in insurance contracts, many other parts of the contract are regulated by the Insurance Contracts Act. The policyholder's ancillary obligations are those parts of the contract where legal regulation has been deemed necessary. Ancillary obligations are measures that the policyholder is obliged to take in order to receive full compensation from the insurance when an insurance event occurs. When one has been breached, a judgement must be made on a case-by-case basis to determine the amount of reduction to be made. Problems can arise when insurers draft scope conditions that are in fact secondary obligations, with the result that the mandatory provisions are circumvented. To counter this problem, a provision was introduced in the Insurance Contracts Act which means that the rules on secondary obligations apply when the scope of the insurance is made dependent on a course of action governed by the secondary obligations. Such conditions are referred to as hidden action clauses. It is not always entirely clear when a scope condition in reality constitutes a secondary obligation. This paper therefore intends to investigate this distinction and present various factors that may be decisive in the assessment. This will be done on the basis of the traditional legal sources of law, preparatory work and practice from the Supreme Court. In addition to this, doctrine, lower court practice and board practice are also used. By presenting examples of possible permissible and impermissible scope conditions, a number of general factors are identified that can be helpful in determining whether a scope condition should be considered permissible or not. The first factor to be taken into account is the wording of the condition. If after this assessment it is still uncertain whether the condition is permissible or non-permissible, other factors of interest are also presented. In no particular order, these factors are: Is the risk factor in the term attributable to the insured or to circumstances beyond his control? Can the insurance company demonstrate actuarial reasons that make the term permissible? What is the nature and type of insurance involved? Has the condition been specifically emphasized before and at the time of conclusion of the contract? By asking these questions it is possible to get an answer as to whether a particular term should be considered non-permissible.
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