General Insurance Law (Germany)
The General Insurance Law in Germany - with the exception of the back and marine insurance - is mainly determined by the Insurance Contract Act (ICA), the respective General Insurance Conditions determined (AVB) and optionally additionally agreed clauses.
The AVB used are general terms and conditions (AGB) are subject to the content control of §§ 305 ff BGB. In the event of ambiguity, they are therefore not interpreted like laws where the legislator's motives may have to be researched, but based on the understanding of an average policyholder. Any ambiguities in the AVB are at the expense of the user (Section 305c (2) BGB). Specially adapted general insurance conditions are used in the respective insurance types, such as the general conditions for motor vehicle insurance in Germany (AKB), the general liability conditions (AHB) and the general legal protection conditions (ARB). A two- or four-digit year number is usually added after the respective abbreviation for the entry into force (e.g. VHB 2010 for the general household insurance conditions, which have been in use since 2010). Since the liberalization of insurance law , not only the AVB of the different versions, but also the AVB of a year between different insurers can differ in content.
Conclusion of the insurance contract
Obligations of the insurer and the policyholder before the conclusion of the contract
The insurer (VR) is obliged to advise the policyholder (VN) before concluding the contract (Section 6 (1) VVG) and to document the result of the consultation (Section 6 (2) VVG). The GCI must be sent to the policyholder in writing before the contract is concluded (Section 7 (1) VVG).
The policyholder is obliged to notify the insurer of all risk circumstances known to him for the insured property or activities (Section 19 (1) VVG). If the insured fraudulently fails to inform the insurer of all relevant risk circumstances, the insurer has the option to contest the insurance contract (Section 22 VVG). If the insured has not informed the insurer of the dangerous circumstances known to him either intentionally or through gross negligence, the insurer has the right to withdraw within one month (Section 19 (3) VVG). These rights of the BoD require that the policyholder has been instructed in writing about these rights of the BoD beforehand (Section 19 (5) VVG).
The insurer must send the insurer an insurance policy , also known as a policy (Section 3 (1) VVG). If the insurance policy contains deviations in content from the policyholder's application, the discrepancies in the policyholder's policy are deemed to have been approved if the policyholder does not object within one month of receipt and the policyholder has been informed in writing of the deviation from his application (Section 5 (1) and (2) VVG) ). As a lex specialis, this regulation takes precedence over Section 150 of the German Civil Code (BGB), according to which an acceptance with changes to the content must be assessed as a new application. If the insurer has not instructed the insurer in accordance with section 5 (2) VVG, the conditions in the form of the insurer's application (section 5 (3) VVG) apply. The policyholder can revoke his declaration of intent for the conclusion of the contract within 14 days (Section 8 VVG, for life insurances a period of 30 days applies as an exception, Section 152 (1) VVG). The revocation must be made in writing. It is sufficient to send the revocation within the period. The policyholder can request copies of all declarations (in particular, the insurance application is important) from the insurer at its own expense, which it has submitted with reference to the contract (Section 3 (4) VVG).
Premium payment
The policyholder is obliged to pay the first premium within 14 days of receipt of the insurance policy (Section 33 VVG). Insurance coverage, i.e. the insurer's obligation to provide benefits in the event of an insured event, only begins with the payment of the first premium ("redemption clause", Section 37 (2) VVG) if the insurer has been informed of this in writing beforehand and insured is not responsible for the non-payment. Some (not all!) AVB contain an "extended redemption clause", according to which the VR is also liable to pay benefits if the first premium is made immediately after the request for payment. If the policyholder does not pay the initial premium, the insurer has the right to withdraw (Section 37 (1) VVG). If the policyholder does not pay a follow-up premium, the insurer can set a payment deadline at the policyholder's expense, which must be at least two weeks and precisely quantify the amount in arrears (Section 38 (1) VVG). If the policyholder misses this payment deadline, the insurer can terminate the insurance contract without observing a notice period (Section 38 (3) VVG).
Involved
Some types of insurance are insurance for the account of a third party (§§ 43 ff. VVG, § 328 BGB), in which, in the event of an insured event, payments are made not to the policyholder but to a third party (e.g. in health insurance to the treating doctor or the hospital ). In the event of an insured event, it is also possible to designate a beneficiary rather than the policy holder as the recipient of the benefit (e.g. the spouse or children in the event of death with a life insurance policy).
Provisional coverage
Provisional coverage of the risk can also be agreed prior to the conclusion of an insurance contract with certain terms (Sections 49 - 52 VVG). These are then two independent contracts. In the case of the provisional coverage agreement, the information obligation of Section 7 VVG does not apply and the VR initially defers the premium (Section 51 VVG). This means that the VR will be required to take action in the event of a claim, even if he has not yet received the initial premium. If the main contract does not materialize, the insured has to pay the insurer the pro rata premium for the period of provisional cover that would have been payable for the main contract during this period (pro rata temporis, Section 50 VVG). The contract for the provisional cover usually ends with the retroactive conclusion of the main contract (Section 52 (1) VVG). The policyholder is required to provide evidence that a provisional cover letter has been issued.
Course of the insurance contract
Increase in risk and obligations
One of the obligations of the policyholder is not to increase the risk without the approval of the insurer (Section 23 (1) VVG). If an increase in risk occurs afterwards or if one becomes recognizable, the insurer must be informed of these circumstances immediately (Section 23 (2) and (3) VVG). A one-time increase in risk is not yet an increase in risk. If the risk increases, the insurer can demand a corresponding increase in the premium to restore the balance between premium and risk. If circumstances that increase a risk occur at the same time as circumstances that reduce a risk, the circumstances must be netted in order to decide whether the risk of an insured event has increased overall. The regulations on the increase in risk according to §§ 23 ff VVG do not apply to private health insurance (§ 194 para. 1, p. 2 VVG). For life insurance (Section 158 VVG) and private accident insurance (Section 181 VVG), only increases in risk that have been expressly agreed beforehand are taken into account.
If the policyholder has violated obligations that have become causal for the occurrence or scope of the insured event, this can lead to the loss or reduction of the insurance benefit. The policyholder is not obliged to fulfill the obligations, but must accept disadvantages if the obligations as prerequisites for the services of the VR are not met. If the insured has acted willfully (knowing and willing) and if this act is causal for the damage, the insurer is exempt from payment (Section 81 (1) VVG). If the policyholder even acted fraudulently, the insurer will also be exempt from payment if this fraudulent intent was not causal for the alleged insured event (Section 28 (3), sentence 2 VVG). In the event of a grossly negligent breach of duty, the BoD can reduce its benefits proportionally (Section 81 (2) VVG).
One of the obligations of the policyholder is to notify the occurrence of an insured event immediately (section 30 VVG) and to provide the insurer with any information that is necessary to determine the insured event and its scope (section 31 VVG). In addition, he has an obligation to avert and mitigate damage (Section 82 (1) VVG). If the UN commits an accident escape , at least since the AKB came into force in 2015, this alone does not indicate malice. The UN's intention to flee the accident must at least also run counter to the interests of the VR. Since all claims of the policyholder against the damaging party are transferred to the insurer if the insurer compensates the insured party for the damage, it is a duty of the insurer to do everything possible so that the insurer can enforce its right of recourse against the damaging party (Section 86 (1) and (2) VVG), unless the policyholder lives with the non-intentional damaging party in a domestic community ("recourse block", Section 86 (3) VVG). For example, the injured party in a traffic accident may not mutually waive claims with the other party if this thwarted the recourse of the comprehensive insurance.
General insurance conditions (AVB), clauses, prospectus declarations
Clauses are additional conditions agreed to in addition to the AVB, which are usually incorporated into the AVB as modules. With clauses the assumption of risks can be excluded (in order to agree on lower premiums at the same time) or the coverage of additional risks against correspondingly higher premiums can be determined. Insofar as the clauses are not included individually but with frequently used text modules, the provisions on general terms and conditions (GTC) of §§ 305ff BGB also apply to them. If the prospectus declarations of the insurer, typically explained in the product information sheet, suggest services by the insurer beyond the provisions of the AVB and the clauses, they can also justify a claim for coverage by the policyholder.
If the VR draws up new AVB and would like to exchange them for the AVB on which the contract was based, it must send them to the policyholder and wait for the objection not to arise (§§ 7,8 VVG). If the UN objects, the old AVB remain valid. If there is no objection, the new AVB will become part of the contract (Section 5 (2) VVG). The VR bears the burden of proof that the policyholder has received the new AVB. If access to the new AVB is disputed and the insurer cannot prove access to the policyholder, a court will use the old AVB as a basis in the event of a dispute.
End of the insurance contract
The insurance contract concluded for an indefinite period can only be terminated by both parties at the end of the current insurance period (Section 11 (2) VVG). The insurance period, if it is not shorter, is one year (Section 12 VVG). In some cases, special rules apply to traffic insurance law : According to Section 5 (5) of the Compulsory Insurance Act (PflVG), the term of insurance for liability insurance is a maximum of one year, but it is extended by a further year if the insurance contract is not terminated in writing at least one month prior to expiry becomes. Section 4a of the AKB ( General Conditions for Motor Vehicle Insurance in Germany ) regulates this accordingly for comprehensive insurance .