Obliegenheiten im Versicherungsvertragsrecht aus historisch-vergleichender Perspektive
Volume 76 (2012) / Issue 4, pp. 864-892 (29)
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Condition Precedent in Insurance Contract Law in Historical and Comparative Perspective Both English and German law first qualified those terms which oblige an assured after the occurrence of the loss, such as giving notice of the loss within a certain time, as conditions precedent. English courts still uphold this qualification. As a consequence, the insurer may refuse payment under the policy even if the assured has, without being at fault, not fulfilled such condition precedent. In contrast, German case law saw a dramatic change between 1865 and 1870. Since 1865, German courts have developed the view that it is sufficient if the purpose of the term has been fulfilled, even if there is not strict compliance with the term. Furthermore, if fulfilment of the term was no longer possible, then this would be taken into consideration by the courts. Finally, it was held that the insurer may refuse payment under the policy only if the assured was at fault. By way of justification, the German courts referred to the nature of the contract as one of utmost good faith. The observation that both English and German law share a common root is important. Firstly, it proves that the method of comparative legal history may also be fruitfully applied to insurance law, an approach that has been forcefully promoted by Reinhard Zimmermann. However, within insurance law the focus of comparative-historical research needs to be on the development of insurance practice and the case law. Secondly, in the context of insurance contract law the findings of comparative and historical research may also be useful to bridge the gap between the continental civil law and the English common law.