Le clausole claims-made nel contratto di assicurazione

Abstract

The practice of claims made insertion in insurence sphere causes curiosity between modern commentators, because of the general attention dedicated for long time to “socially typical” contracts. After all, this phenomenon’s evolution shows that we moved from an initial scepticism, owed to the reluctance of civil law system for everything that is not ex ante provided for by law, to its reception, explicitly declared by the renown judgement of Sezioni Unite n. 9140/16. In fact, the occurrence that even now law knows just an only one “type” of civil liability insurence contract, within the meaning of art. 1917, c. 1, c.c., based on loss occurrence (or act committed) model, has made difficult the framework for all contracts, that, as has happened in America and Great Britain, went common even in the rest of Europe and that grounded insurer obligation, not to the event that caused the damage or to its insurgence, but to the reparation claim from third party damaged. In contrast to other civil law system, where it was decided to solve the problem creating an appropriate law, in Italy, the lagislator remained silent on this issue, leaving to interprets tha task of verifying the nature of claims made insurence contracts. So, it is not surprising that there have been various interpretations, that, from time to time, deemed claims made clauses invalid, or valid, but atypical, ex art. 1322, c.c. However, Sezioni Unite, in the metioned judgement, decided that the insurence contract with claims made clause is, not only, totally valid, but even typical, because just the claims made clause is considered as atypical. But the solution couldn’t have been different: the increasing use of this clause by insurence companies would have made inadequate every other solutions. However, predictably, other questions have arisen on this phenomenon. In particular, we moved from the analysis of the clause’s physiology, to its pathology, that probably, is the most complex aspect. So, it is relevant the claims made clause interaction with legal arrangement, that are, in themselves, very difficult to analyze in the contest of private law. Good faith, nullity, harrassment clauses and, than, so-called “ibridazione dei rimedi” and “frammentazione del contratto” are just some of legal arrangement that we tried to relate with claims made clause, to include this important phenomenon in the modern private law. These issues have led to the identification of the real problem: the absence of a precise regulation that could balance the various competing interests in insurence contract, always on the line between contracts and torts law. So nullity like “immeritevolezza” is not a real problem, because it concerns every kind of contract, even if typical. The assessment regarding harrassment clauses dipends from applicability of “Codice del Consumo”, that concerns, in the same way, every kind of contract, whether the conditions for applicability of the same codice. So, the real problem remains the one concerning conctractual balance, tested by insurence contracts, that are not always respectful of contractual balance, because they usually are developed unilaterally, without any agreement to risize it. Various proposals have been put forward by Community case-law and legal writings, trying to find a way to resolve this problem, but it’s evident that every single case is unique and it is therefore necessary and useful, because of the astonishing variety of practice, that legislator should now act, to order the discipline and insert limitations and/or conditions to enter into an insurence contract with claims made clause, to resize the contractual imbalance and also to guide jurisprudence, that resembles now, more and more often, inevitably, an equity judgment. [edited by author]