In case of non-transparent clauses in the contract
The Federal Court of Justice (BGH) decided in a ruling of 26. 9. 2007 (Ref. IV ZR 321/05) (VersR 2007, 1547) that policyholders may be entitled to a minimum surrender value after termination – also in the case of unit-linked life insurance. The BGH points out that contract clauses on the charging of acquisition costs may also be invalid in the case of unit-linked contracts due to lack of transparency. In the event of premature termination, the insurance customer is entitled to a minimum surrender value from the insurer. The legal grounds were non-transparent or invalid clauses in the insurance conditions, in the contract in question in §§ 12 III and 24 I GCI. According to the BGH, the insurance companies should have already informed the customers “at the conclusion of the contract” about the economic disadvantages of a premature termination in a transparent manner. The clause on the offsetting of the acquisition costs (including the commission for the brokerage) by way of Zillmerisation was also non-transparent and thus invalid if the insurance customer “cannot see the extent of the disadvantage associated with the offsetting”. The BGH refers to earlier decisions, according to which the “supplementation of the contract by clauses with the same content” made by the insurer, if applicable, is also invalid. In the case at issue, the insurer itself had apparently assumed that its old clauses were invalid – but the replaced new clauses had not even been validly concluded in the trustee procedure according to the BGH ruling.
Actuarial reserves and fund assets equated
Insurers have so far not considered the preceding BGH rulings of 12 October 2004 to be relevant for unit-linked life insurance, because they relate the minimum surrender value to the unzillmerised actuarial reserve. In unit-linked life insurance, however, there is no such unzillmerized actuarial reserve, only a fund account. However, the court now ruled clearly that in the case of unit-linked life insurance, the “unzillmerised fund account” instead of the unzillmerised actuarial reserve represents the starting point for the customer’s claim for subsequent payment. The ruling does not mention cancellation deductions – these were originally only invalid because their calculation was based on the “current value”, a term which the BGH also considered to be non-transparent. However, there is also no non-transparent current value in the case of unit-linked contracts, as the fund account takes its place. So if cancellation deductions are provided for at all in unit-linked contracts, these at least cannot be challenged with the preceding BGH rulings.
Dr. Johannes Fiala/Peter A. Schramm
(Insurance Industry 23/2007, 1952)
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Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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