By Jesús Alfaro Águila-Actual
The existence of a threat It permits to tell apart the insurance coverage of mortgage or funding contracts (when the duty to return the cash delivered by the lender or investor is impartial of future circumstances). Insurance coverage firms are monetary firms, within the sense that they not solely enter into insurance coverage contracts but additionally accumulate financial savings from the general public within the type of pension plans and funds, contracts by which it could actually hardly be stated that there’s a threat within the sense by which it exists in a typical casualty insurance coverage contract, as a result of there’s neither distribution of threat neither is there these particular person. In different phrases, they’re genuine funding contracts.
In harm insurance coverage, the calculation is goal and a posteriori (by an knowledgeable the damages are evaluated as soon as they’ve occurred). In life insurance coverage, the calculation is made a priori and in a subjective method (the insured decides how a lot he desires to pay as a premium primarily based on his financial savings potentialities and what he desires to obtain as capital -he or the beneficiaries- when the “declare” happens) as a result of the one approach to worth lifetime of an individual is asking that particular person how a lot they worth it. Logically, this evaluation have to be made a priori to keep away from overvaluation of the harm as soon as the causal occasion has arrived. Due to this fact, the calculation is unfair. Nevertheless, this distinction will not be as clear because it appears both, since for instance, in accident insurance coverage and life insurance coverage of a 3rd social gathering (eg a debtor) which might be private insurance coverage, the harm is completely quantifiable within the aftermath and in instances such because the appraised or estimated coverage, which is harm insurance coverage, the compensation will not be calculated primarily based on the harm really suffered.
The chance should subsist on the time of the conclusion of the contract. The artwork. four LCS declares the contract void if the chance didn’t exist on the time of its execution or the loss had occurred. For instance, the murals insured in opposition to theft had already been stolen or the life insured had died on the time of taking out the insurance coverage.
The hedged threat have to be fortuitous: it’s forbidden to insure fraud. If the corporate needed to compensate within the instances by which the insured fraudulently causes the loss, it might not be doable for the insurer to make a rational calculation of the premium, for the reason that manufacturing of the declare would rely on the need of the insured. Even when artwork. 19 LCS refers solely to the unhealthy religion of the insured, the prohibition should additionally prolong to the unhealthy religion of all these within the cost of the profit. Typically, it isn’t simple to determine whether or not the insured’s conduct was malicious. Within the case determined within the SAP Vizcaya 9-IV-2001, AC 2001 / @ 829, it was mentioned whether or not the insured ought to be compensated for the damages brought on by the deprivation of the driving license, a penalty that had been imposed on him as a result of the insured particular person had dedicated a criminal offense in opposition to visitors security for having pushed beneath the affect of alcoholic drinks. The vast majority of the court docket says that there was no fraudulent manufacturing of the declare (the withdrawal of the cardboard) as a result of it can’t be stated that such withdrawal was purposely sought by the insured, whereas the non-public opinion affirms that the insured knew that it was unlawful – and that the sanction for such habits may very well be the withdrawal of the license – driving beneath the affect of alcoholic drinks, for which he considers that the insured prompted the accident to be fraudulent. For my part, nearly all of the court docket was appropriate as a result of the withdrawal of the cardboard was not the results of malicious conduct. What the insured particular person did voluntarily was to drink after which, with a lesser diploma of management, to drive, however he did so ruling out (fault with illustration) that they might take away his driving license since anybody in these circumstances expects and desires, with common sense, do not let the police catch you; that he doesn’t have any accidents and that tomorrow can be one other day. A opposite, Sure, it’s doable to cowl the direct or oblique severe fault of the insured.
Once more, in life insurance coverage, though if the beneficiary is the beneficiary who causes the insured’s loss of life, he loses the best to compensation (artwork. 92 LCS), the suicide it’s insurable offered that the suicide’s loss of life has occurred one yr after taking out the insurance coverage (artwork. 93 LCS).
There have to be a protectable curiosity, which signifies that the insured should have some relationship of financial content material with the great object of the insurance coverage in order that the manufacturing of the loss is a “unhealthy” for the insured (“I’m desirous about the home not being destroyed by a fireplace or my automotive radio not being stolen”). That is to forestall the insured from fraudulently inflicting the declare. So if there is no such thing as a curiosity, the contract is void. The nice may be of any nature and the financial relationship between the topic and the great assumes that the previous obtains financial utility from it and that this relationship is able to financial analysis. Thus, what’s insured aren’t issues or individuals however the pursuits now we have in them. Proof of the requirement that there be a curiosity the factor is the lifetime of an individual can’t be assured with out their consent, Besides, exactly, that the curiosity of this particular person within the insurance coverage may be presumed (artwork. 83 LCS), which permits to tell apart the insurance coverage from the guess (if somebody guarantees to pay me an sum of money if the Pope dies this yr, the contract that we enter into will not be an insurance coverage contract however a wager on how lengthy the Pope will reside) V., Lynch, Timothy E., Gambling by Another Name; The Challenge of Purely Speculative Derivatives (2012). Por eso los swaps puramente especulativos no son seguros.
Photo: Pedro Fraile