Insurance law: Fax cannot replace legal written form

Published on 07.09.2006

*by Johannes Fiala, lawyer (Munich), MBA Financial Services (Univ.Wales), MM (Univ.), certified financial and investment advisor (A.F.A.), banker (www.fiala.de)
The claim: A policyholder had been a proud yacht owner until a loss occurred: a fire had damaged the vessel.
The rejection of the benefit: The insurer later informed the policyholder that it was rejecting the benefit under the insurance contract. The insurer sent this message to the policyholder by fax. In it, the policyholder was also informed ? as required by law ? that the claim must be asserted in court within six months. The legal written form: There is occasionally a written form requirement in the law. This can be found, for example, in the German Civil Code, but also in § 12 VVG. In particular, the refusal of a benefit by an insurer must be in writing. The written form also includes that the corresponding declaration is signed, § 126 BGB. It is to be read in all usual commentaries for decades (!) that from the legal writing form cannot be deviated: It uses thus absolutely nothing, if instead of a letter an email or a fax is sent. The judgement: In its judgement of 14 March 2006 (Az.: VI ZR 335/04) the Federal High Court (BGH) comes to the result that the policyholder had raised complaint in time: Only the substantially later written/letter refusal of the achievement submitted by the insurer had set the complaint period after ? 12 exp. 3 VVG in run. This is in itself a matter of course, because the law student usually learns the meaning and content of the “written form” in the first semester. Do such processes then belong to the business policy or was it a regrettable mistake at the insurer?