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The author summarizes the Transparency in the Insurance Contract in Peru, noting that it is a new concept in the country and that it is more legislated than applied and practiced by deficiencies of the Regulator. He exposes and criticizes the main problems related to the issue in the Peruvian insurance market, suggesting some changes and improvements.
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Wandt and Unan ( 2012).
“Transparency of information is a mechanism aimed at improving the user’s access to information, so that the latter can, in a responsible manner, make informed decisions regarding the services that they wish to contract”.
In Germany, the regulation allows the insurer to alter premiums if the technical basis for calculating the rates has changed (Section 203 VVG).
For example, the rates for fire and allied lines established in the official tariff that governed the Peruvian market could reach seven or eight per thousand and are currently less than two per thousand. Shortly after the market was released in 1991, the rates reached less than one per thousand.
Before the liberalization of the insurance market in Peru, there were about 20 insurers and some years later the market was reduced to less than 10. Pacifico merged with Peruano-Suiza, El Sol with La Nacional, which was later acquired by Mapfre, Rimac with Internacional, the latter company bought Wiese-Aetna and Royal Sun Alliance, Universal and Vitalicia were liquidated, as well as other mergers and liquidations.
Rindebro, Ulric, Reporte de seguros en el Perú. https://www.apeseg.org.pe/wp-content/uploads/2018/05/Reporte-de-Seguros-en-Per%C3%BA.-BN-americas.pdf. (p. 5). Accessed 1 July, 2019.
Zurita, Manuela. El Comercio (Día 1). https://elcomercio.pe/economia/dia-1/mapfre-debemos-haber-ganado-imagen-aprovechadoras-manera-aniego-san-juan-lurigancho-sedapal-indemnizaciones-seguros-siniestro-noticia-613179. Accessed 1 July, 2019.
Martínez Ventura, Jazmín and others. Apuntes sobre la nueva ley de contrato de seguro: Análisis y críticas a dos años de su publicación. http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&ved=2ahUKEwjZzZKs75TjAhVRuVkKHdg- DFIQFjAHegQIBxAC&url=http%3A%2F%2Frevistas.pucp.edu.pe%2Findex.php%2Factualidadmercantil%2Farticle%2Fdownload%2F13582%2F14206&usg=AOvVaw1wyWKtOj1fEJ4o6xRJZss6. Accessed 1 July, 2019.
Castillo, Diego, Estas son las 8 empresas que controlan la salud privada en el Perú. http://utero.pe/2015/10/16/estas-son-las-8-empresas-que-controlan-la-salud-privada-en-el-peru/. Accessed 1 July, 2019.
Torres López, Fabiola. Los dueños de la salud privada en el Perú. https://ojo-publico.com/93/los-duenos-de-la-salud-privada-en-el-peru. Accessed 1 July, 2019.
According to Article 3 of the Law, the Commission would be created by three members of Congress, two law faculties, one from the Chamber of Commerce of Lima, one from the National Confederation of Chambers of Commerce, one from the Ministry of Justice, one of APEMIPE, one of INDECOPI and one of CONASEV.
The author was part of the Commission at the invitation of its President, Jaime Zavala Costa.
At the time, I published an article criticizing this rule in El Comercio on September 8, 2010 under the heading “Do not do what you should, but what should not be done.”
De la Puente y Lavalle, Manuel. El contrato en General. Tomo I. Palestra Editores. Lima, 2001. Págs. 327–388.
Art. 376. Any insurance contract will be void: Due to the proven bad faith of one of the parties at the time of the conclusion of the contract.
U. K. Marine Insurance Act (1906), S. 18.3 (Disclosure by the assured).
Strive Shipping Corp v. HellenicMutual War Risks Association (“The Grecia Express”)  EWHC 203 (Comm),  Lloyd’s Rep I.R. 669. Kausar v. Eagle Star Insurance Co Ltd  Lloyd’s Rep IR 154. by Staughton LJ at p. 157. Drake Insurance Plc v. Provident Insurance Plc  EWCA Civ 1834,  Lloyd’s Rep I.R. 277.
The aforementioned Article 37 of Law 29946 says “The letter of appointment that the insured or contracting party extends to an insurance broker, authorizes the latter to perform administrative acts of representation, but not of disposition.”
Before the last Reform.
This has been pointed out by the Supreme Court (Civil Chamber of Cassation) of Colombia “the duties of loyalty, probity and good faith that the parties, in any contract and more in this insurance, reciprocally, duties that underpin the intrinsic coherence and total that should show the contractual behavior of one party against the other, so that both in the preparation stage and in the execution of the contract”. Exp. 7125, May 8, 2003.
Reticence and/or inaccurate statement not malicious.
Article 13: If the reluctance and/or inaccurate declaration does not obey the deceit of the contracting party and/or insured and is verified before the loss occurs, the insurer must offer the contracting party the revision of the contract within a period of thirty (28) days computed from the referred verification. The offer must contain an adjustment of premiums and/or coverage and grant a term of ten (10) days for the contracting party to pronounce on acceptance or rejection. If the revision is accepted, the readjustment of the premium is paid as agreed.
In the absence of acceptance, the insurer may terminate the contract by means of a communication addressed to the contracting party, within a period of thirty (28) days computed from the expiration of the ten (10) day period established in the previous paragraph.
The premiums accrued pro rata correspond to the insurer, up to the moment in which the resolution was made.
Review not accepted.
Article 14: If the verification of the reluctance and/or inaccurate declaration indicated in the preceding article is subsequent to the production of a claim, the compensation due is reduced in proportion to the difference between the agreed premium and the one that had been applied. have known the real state of risk.
Subsistence of the contract.
Article 15: In cases of reticence and/or inaccurate declaration, the nullity, revision or termination of the contract is not applicable when:
At the time of completion of the contract, the insurer knows or must know the true state of the risk.
The circumstances omitted or declared inaccurately stopped before the accident occurred or when the reluctance or inaccurate declaration not malicious, did not influence the production of the incident or the extent of compensation or benefit due.
The omitted circumstances were content of an express question not answered in the questionnaire and the insurer also entered into the contract.
Circumstances omitted or declared inaccurately reduce the risk.
This same loyalty (good faith) must correspond to the insurer in the conception of the policy and in the execution of the contract. Efrén Ossa ( 1984), p. 41.
The express acceptance of the right of the insured or the mere passing of time (tacit) prevents the insurer from arguing defenses that is ignoring the right of the insured to be compensated or to obtain the promised benefit.
The first assumption (express acceptance) translates the will to face the main obligation.
The second hypothesis, induced acceptance (by law) of the default of the insurer, is justified on the basis that if the obligor, having in his possession the necessary information and the possibility of verifying the loss and the extension of the benefit at his expense, does not pronounce against the rights of the insured and, on the contrary, lets pass the term (of preclusion) imposed by Article 56 (in Peru it would be Article 332 of Law 267029), Insurance Law, must bear the consequences… Derecho de seguros, tomo II, Pág. 295, Editorial La Ley.
… the insurer must be issued with respect to the right of the insured to receive compensation. Article 56 states: “The insurer must rule on the insured’s right within thirty days of receiving the information… The omission to pronounce implies acceptance.” Soler Aleu ( 1978), p. 181.
Osorio Ruiz ( 1999).
Rodríguez Pastor ( 1987), p. 121.
Web Page of Asociación Peruana de Corredores de Seguros (APECOSE): http://www.apecose.com/wp-content/uploads/2012/05/CL%C3%81USULAS-ILEGALES-EN-P%C3%93LIZAS-DE-SEGURO-EN-EL-PER%C3%9A.pdf.
“It is a sample referred to:
Clauses in which the insured renounce the jurisdiction that favors them.
Clauses that set statutes of limitations shorter than legal ones.
Clauses that seek to annul Article 332 of Law No. 26702”.
This study was used by Dr. Meza himself to prepare his master’s thesis. In: Page Cybertesis - National University of San Marcos.
Conclusion N ° 6, page 183: “The existence of contradictory, ambiguous or difficult to understand contractual documents, when not in violation of express legal norms, does not promote the full determination of the insured risks, on the contrary, they encourage a dangerous indetermination and abuse There are clauses of insurance policies that, despite violating specific provisions of Law N° 26702 and resolutions of the insurance system’s own control authority, are contained in policies that appear as current in the official registry (SBS) and/or circulate in the Peruvian market.”
Birds ( 2010).
“The default of the insurer in pronouncing only implies acceptance of the right of the insured to be guaranteed, but does not presuppose that the manifestation of will induced by the law, extends to the amount of compensation required.” Derecho de seguros, tomo II, Pág. 296, Editorial La Ley. Buenos Aires 2005.
Section XVII, Compensation, Insurer’s Statement. Article 74: The payment of the compensation or the insured capital that is made directly to the insured, beneficiaries and/or endorsees, must be made within a period of no more than thirty (28) days following the consent of the loss.
The claim is construed as consent, when the insurance company approves or has not rejected the adjustment agreement duly signed by the insured within a period not exceeding ten (10) days counted from its subscription and notification to the insurer. In the event that the insurer does not agree with the adjustment indicated in the agreement, it may demand a new adjustment within a term not exceeding thirty (28) days, to consent or reject the claim, determine a new amount or propose to go to the clause of arbitration or the judicial way.
In cases where, objectively, there is no adjustment agreement, either because the adjuster has not been required to participate or it has not yet finalized its report, the loss shall be construed as consent when the insurer has not ruled on the amount claimed. within a period that does not exceed thirty (28) days from the date of completion of all the documentation required in the policy for the payment of the loss, except as indicated in the following paragraph.
When the adjuster requires a longer period to complete their report, they may present a duly substantiated request to the Superintendence, specifying the technical reasons and the time required, under responsibility. The Superintendence will pronounce itself in a motivated manner on said request within a maximum term of thirty (28) days, under responsibility.
Also, when the insurer requires a longer period to carry out additional investigations or obtain sufficient evidence on the origin of the claim or for the appropriate determination of its amount, and the insured does not approve, in the specific case, the extension of said term, the insurer may submit a request duly justified only once and, requesting a period no longer than the original, to the Superintendence within said 30 days.
The Superintendence will pronounce itself in a motivated manner on said request within a maximum term of thirty (28) days, under responsibility. In the absence of a ruling within that period, the request is deemed approved.
In case of default of the insurance company, it will pay the insured an annual moratorium interest equivalent to one point five (1.5) times the average rate for active operations in Peru, of the currency in which the insurance contract is expressed for all the time of the default.
Article 8. Reticence and/or inaccurate misleading statement. The reluctance and/or inaccurate declaration of circumstances known to the contracting party and/or insured, which would have prevented the contract or modified its conditions if the insurer had been informed of the true state of the risk, renders the contract void if the deceit or inexcusable fault of the contracted and/or insured.
Article 59. Conventional expiration.
When the present law does not determine the effect of the breach of a charge imposed on the insured, the parties may agree to the expiration of the rights of the insured if the breach is due to his intent or inexcusable fault, according to the following regime:
Loads before the loss
If the cargo must be fulfilled before the loss, the insurer must plead the expiration within thirty (28) days of the known breach.
When the loss occurs before the insurer alleges expiration, it is released from the payment of its benefit if the breach affected the occurrence of the loss or the extension of its obligation.
If the load must be executed after the loss, the insurer is released due to the failure of the insured, if it influenced the extension of the assumed obligation.
In case of slight fault, the compensation is reduced proportionally to the aggravation of the loss resulting from the breach.
In case of expiration, the insurer bears the premium for the time elapsed until it becomes aware of the breach of the load.
AGGRAVATION AND DECREASE OF RISK
Article 60. Aggravation of risk
The insured or the contracting party, as the case may be, must notify the insurer in writing of the facts or circumstances that aggravate the risk and are of such magnitude that, if they are known by the latter at the time of the contract’s conclusion, he or she would not do so. more burdensome conditions.
Article 61. Effects of the aggravation of risk
Notify the insurer of the aggravation of the risk status, this must tell the contractor, within fifteen (15) days, his willingness to maintain the terms of the contract, modify or resolve it.
As long as the insurer does not state its position in the face of the aggravation, the conditions of the original contract continue. When the insurer chooses to terminate the contract, he has the right to receive the premium proportional to the time elapsed.
If you are not informed in a timely manner, you are entitled to receive the premium for the period of insurance in progress.
Article 62. Effects in case of accidents
If the contracting party or, where appropriate, the insured, fails to report the aggravation, the insurer is released from its benefit if the loss occurs while the aggravation of the risk subsists, except that:
The contracting party or, as the case may be, the insured party incur the omission or delay without inexcusable fault;
If the aggravation of the risk does not affect the occurrence of the loss or the measure of the benefit borne by the insurer;
If he does not exercise the right to resolve or to propose the modification of the contract within the term established in article 61;
The insurer knows the aggravation, at the time when the complaint should be made.
In the cases mentioned in subparagraphs a, b and c of this article, the insurer has the right to deduct from the amount of compensation the proportional amount equivalent to the extra premium that it had charged to the contracting party, if it had been informed in a timely manner of the aggravation of the risk contracted.
Article 63. Termination of the right to resolve
The right to resolve referred to in article 61 expires, if it is not exercised within the prescribed period or if the aggravation has disappeared.
Article 64. Exceptions to the aggravation of risk
The provisions on aggravation of risk do not apply when provoked to avoid the loss or to mitigate its consequences, for a generally accepted duty of humanity, for self-defense, a state of necessity or for compliance with a legal duty.
Article 65. Aggravation between the proposal and acceptance
The provisions of this section are also applicable to the aggravation produced between the proposal and the acceptance of the insurer.
Some years before the enactment of the law, lawyers Pedro Richter and Mario Castillo published a much less ambitious project, reducing the rules of interpretation to the indispensable ones and including in these the types of policies. Richter Valdivia and Castillo Freyre ( 2006), pp. 39–42. A much broader development of these interpretive norms can be found in: Villa Zapata ( 1999), pp. 530–531.
De la Puente y Lavalle, Manuel. Op. cited. Volume III. P. 137–138; and Villa Zapata, Walter. Op cited. pp. 464–465.
Art. 24 of the Res. SBS 1797-2011 is: “The insurance broker carries out an intermediation and advisory activity in the contracting of insurance coverage in the national market, regardless of the insurance companies, decreasing, with their participation, the differences arising from the information asymmetry existing between the contractors or potential contractors and insured and the insurance companies, which improves the conditions of transparency in the insurance contracting”.
Zurück zum Zitat Birds J (2010) Birds’ modern insurance law, 8th edn. Sweet & Maxwell Birds J (2010) Birds’ modern insurance law, 8th edn. Sweet & Maxwell
Zurück zum Zitat Corzo de la Colina, Rafael y otro. Seguros de grandes riesgos y protección desproporcionada de los asegurados en la Ley del contrato de seguro. Ius et Veritas 54 Corzo de la Colina, Rafael y otro. Seguros de grandes riesgos y protección desproporcionada de los asegurados en la Ley del contrato de seguro. Ius et Veritas 54
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Zurück zum Zitat Soler Aleu A (1978) El Nuevo Contrato de Seguros. Ed. Astrea, Buenos Aires Soler Aleu A (1978) El Nuevo Contrato de Seguros. Ed. Astrea, Buenos Aires
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Zurück zum Zitat Wandt M, Unan S (eds) (2012) Transparency in insurance law. Seminar held in Istanbul in May 2012 organized by the AIDA chapters of Turkey and Germany and published by them Wandt M, Unan S (eds) (2012) Transparency in insurance law. Seminar held in Istanbul in May 2012 organized by the AIDA chapters of Turkey and Germany and published by them
- Transparency in the Insurance Contract Law of Peru
Alonso Núñez del Prado Simons
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