The Insurer’s Pre-Contractual Information Duties in General Consumer Insurance
PART IV: A conclusion in eight final observations
Information is a key factor in any market. The insurance market forms no exception. In the form of the insurance mediation sector it even features a large submarket which primarily serves information exchange purposes. As relates to the direct relationship between the insurer and its customer, it was recognised long ago that the exchange of certain information before the contract’s conclusion is desirable. The economist referred to the overcoming of information asymmetries, and the jurist to the notion of good faith. As there has never been serious doubt that the dilemma of imperfect information exists for both parties of an insurance contract, it was only consistent to acknowledge the existence of corresponding information duties on each side. However, although the starting point was thus identical, the practical significance which subsequently was attached to these mutual duties could hardly have been more diverse. Whereas the extent of the customer’s duties attracted the full attention of case law and both legal and economic literature from the very beginning, those of the insurer in comparison were instead largely doomed to a shadowy existence. Interestingly enough, the more the law stressed the importance of good faith, the darker the shade could become: the common law which on the one hand did not tire of using superlatives by classifying insurance contracts as being of uberrimae fidei or of the utmost good faith completely failed on the other hand to develop a suitable basis for the effective protection of the insured’s interests.
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