Sindacato di meritevolezza degli interessi perseguiti ed equilibrio delle prestazioni nel contratto di assicurazione claims made

Abstract

The doctoral thesis starts from a complete reconstruction of the normative development that the civil liability insurance contract has adapted to the needs of the production systems of the most advanced economies. The survey develops around the structure of the made claims clauses, the role of private autonomy, their impact on insurable risk, as well as on the advantages and contraindications for companies and for policyholders. The second chapter handles the question of the validity of the clauses made by reviewing the precise objections to the main objections of nullity. The analysis also deals with the problem of the typicality of the insurance contract in the current domestic and international regulatory context. This problem is linked to that of the cause in concrete terms and the limits of the automatic substitution of the clauses considered null, where the jurisprudence of the Court of Cassation plays an important role. The third chapter deals with the profiles of merit and contractual balance. The work is structured through a detailed examination of the various doctrinal positions advanced on the point, to arrive at the numerous jurisprudential rulings that in various sectors of bargaining have dealt with the scope of application of the art. 1322, paragraph 2, c.c. Among these, of great importance was the sentence of the United Sections of 6 May 2016, n. 9140, both for the exegetical ideas offered regarding the merit of the claims made clauses, and for the disorientation that has determined on the subsequent jurisprudence that has applied these parameters. In conclusion, the last chapter is dedicated to the regulation of the most sensitive sectors (of which the critical issues and inconsistencies are showed) and the most recent sentences, put into question by the order of the Court of 2018, which expresses multiple concerns. [edited by Author]