Asymmetrical business-to-consumer terms in insurance contracts and enforceability deprivation for non-disclosure
Asymmetrical business-to-consumer terms in insurance contracts and enforceability deprivation for non-disclosure

Author(s): Juanita Goicovici
Subject(s): Law on Economics, Socio-Economic Research, Sociology of Law
Published by: ADJURIS – International Academic Publisher
Keywords: asymmetrical terms; consumer; duty of disclosure; enforceability; insurance contract;
Summary/Abstract: The paper approaches the problematics of assessing the unfairness of asymmetrical terms in B2C insurance contracts and the enforceability deprivation for nondisclosure at the pre-contractual stage, as reflected in recent case law of the Court of Justice of the EU (CJEU), particularly in the CJUE’s decision pronounced in the Ocidental – Companhia Portuguesa de Seguros de Vida case (C-263/22), which permits the courts to assess the unbalanced nature of adhesion terms relating to the exemptions from professionals’ liability, based on the transparency criteria. Saliently, in hypotheses where the consumer requested eliminating the asymmetrical terms of B2C insurance contracts, related to the excluding of specific risks or the restricting of the insured risks coverage, the unfairness of litigious terms would be interconnected to the (in)opposability of the non-disclosed terms, at the pre-contractual stage. The paper addresses the unenforceability of B2C contractual terms classified as unfair or unbalanced when depriving the consumer from the possibility of invoking the professional insurer’s liability, seen through the lens of the transparency criteria. Congruently, the significant imbalance in the mutual obligations of the parties may arise from the depriving the consumer of the rights to become acquainted to the contractual terms addressing the exclusion of specific risks from the sphere of B2C insurance clauses, prior to concluding the litigious contract.

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