Withdrawal of the insurer:
Special features have always applied in insurance contract law. For example, contracts are not concluded by “offer and acceptance” but by “application and policy issue” – the reform of the VVG (Insurance Contract Act) could change this. According to § 16 II VVG, the insurer can withdraw from the contract if, in particular, incorrect information has been provided by the policyholder. The insurer has to prove this so-called breach of the duty of disclosure.
Eye-and-Ear Jurisprudence:
It has been known for decades that the insurer is responsible for its intermediaries (vicarious liability, e.g. in the case of incorrect advice) and must also generally accept responsibility for their personal knowledge. This let itself an insurer by the OLG Thuringia (Az. 4 U 120/04) by judgement of 05.10.2005 again into the master book write.
Missing pre-existing conditions in the application: In the specific case, an agent had filled out the insurance application.
The insurer wanted to use this document to prove that the policyholder had not fulfilled his obligation. The insured person, in turn, submitted concretely and precisely (substantiated) that he had informed the intermediary correctly. The court believed the insured and, by its ruling, found that the “health insurance contract had not been terminated by rescission.” The withdrawal had been ineffective, because the intermediary has always been regarded by the courts as the “eyes and ears of the insurer” (BGH VersR 2001, 1541).
VN without witness not disadvantaged:
The court emphasized that it is within its discretion under the “principle of equality of arms” (§ 448 ZPO) to hear a party in person without witnesses (§ 141 ZPO) and to give preference to their testimony within the framework of free evaluation of evidence (BGH VersR 1999, 994).
by Dr. Johannes Fiala
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About the author
Dr. Johannes FialaPhD, MBA, MM
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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