Details

Autor(en) / Beteiligte

• Carlos Esteban Jaramillo Mor

Titel

Reflexiones en torno a la exigencia de la relación de causalidad entre el incumplimiento del deber de declarar el verdadero estado del riesgo y la ulterior materialización del siniestro

Ist Teil von

• Revista ibero-latinoamericana de seguros, 2021-01, Vol.30 (55), p.65

Ort / Verlag

Bogotá: Editorial Pontificia Universidad Javeriana

Erscheinungsjahr

2021

Quelle

Business Source Ultimate

Beschreibungen/Notizen

• The main purpose of this paper is, as its title suggests, to carry out a preliminary study, and therefore an approximation, of one of the questions that we consider to be of greatest relevance – in both practical and theoretical aspects- at the present time in insurance matters. Specifically in the sphere of the regulation of the recognized duty to declare the true state of the risk in the pre-contractual phase of negotiations, in regard to the value that can or should be given to the possible non-existence of a causal link or concatenation aimed at linking the non-fulfilment of the aforementioned duty with the effective and subsequent materialization of the insured risk (loss). This, for the purpose of applying or not applying the corrective and sanctioning mechanisms that the different legal systems have adopted as a response to the breach of such a high duty, especially the nullity of the insurance. This study will also briefly examine the reasons that have been put forward in comparative law for and against this causal requirement, which is certainly controversial and, as such, not unanimous. Although it is true that in recent times there has been a legislative change in this respect in some countries, this cannot be generalized, since it requires a detailed and careful examination of each of the individual legislations and systems, as well as the jurisprudence of each, in order to ensure coherence in the hermeneutical field, and to benefit legal stability, certainty and security. This is all the more so when there is clearly more than one normative response to this issue: either negative or positive in relation to the aforementioned causal requirement, and more than one nuance or exception, and a diversity of responses and edges that deserve to be taken into account, so as not to alter the reality of each legislation and its normative history. This is precisely the case in Colombia, in which it is necessary to differentiate the 'to be' from an eventual legislative 'should be', as the case may be. For that purpose, this paper is oriented towards a comparative analysis of the aforementioned subject, from which it can be seen that in recent decades, in line with the new guidelines of contemporary insurance law (civil law and common law), a new approach in the legislative field has gradually made its way. This approach is aimed at attributing significance to the requirement of a causal relation as a requirement for the release of the insurer in the events in which reticence or inaccuracies have been proven, particularly in order to exalt the principle of the preservation of the effects of the contract, subject to the observance of specific limitations.