Abusive clauses in insurances domain

• Author: Oana Elena Galateanu
• Position: Ph.D. Lecturer, Faculty of Juridical, Social and Political Sciences, Juridical Sciences Department, 'Dunarea de Jos' University, Galati, Romania
• Pages: 53-57

AGORA International Journal of Juridical Sciences, www. juridicaljournal.univagora.ro

ISSN 1843-570X, E-ISSN 2067-7677

No. 4 (2014), pp. 53-57

53

ABUSIVE CLAUSES IN INSURANCES DOMAIN

O. E. Gleanu

Oana Elena Gleanu

Ph.D. Lecturer, Faculty of Juridical, Social and Political Sciences, Juridical Sciences

Department

“Dunarea de Jos” University, Galati, Romania

*Correspondence: Oana Elena Gleanu, “Dunarea de Jos” University, 111 Domneasca

Street, Postal Code 800201, Galati, Romania

E-mail: Oana.Galateanu@ugal.ro

Abstract:

The occurrence and development of some specialised domains in selling off products

and in providing services have generate d also new forms of contracts, like adhesion cont racts

and typical contracts. Through their specificity, they lead to the occurrence of an imbalance

between the services provided by the contracting parties, not i n favour of the consumer or of

the client, allowing the occurrence of abusive contractual clauses. Suc h c lauses c an occur

also in the contracts concluded in the insurances domain, contracts that have their character

of adhes ion as a specificity element, the professional insure r being the one who establishes

the clauses and the insured client adheres or not to them, not being able to negotiate.

In this paper there are presented some clauses from the contracts concluded i n

insurances area that can be considered abusive.

Keywords: abusive clauses, clients, insured, insurers

Introductions

Law no.193/2000 regarding abusive clauses from the contracts concluded between

professionals and consumers, republished, defines as abusive that clause not directly

negotiated with the consumer if, through it or along other provisions from the contract,

generates a si gnificant imbalance between the rights and obligations of the parties, on

contrary to the consumer’s good faith and interest.

The same text of the law evidences three elements characteristic to an abusive clause,

namely:

1. The c lause was not directly negotiated with the consumer. It is supposed that it is not

negotiated that clause that does not allow the consumer to influence its nature, to change or

remove it, as there are pre-created contracts. In the doctrine, it was highlighted that accepting

a clause does not mean its negotiation;

2. The rule of good faith is not complied with, rule that implies removing a ny action or

omission that might harm the co-contractor. Law no. 193/2000 refers to good faith in general,

reason for which the professional must have acted with the intent to prejudice the consumer,

in bad faith. It is considered that it is in unconformity with the good faith the inclusion of a

clause that produces an important imbalance not in favour of the consumer;

3. To exist an important, significant imbalance between the rights and responsibilities of the

parties. The criterion of assessing this imbalance is a real one, analysed in report to the

circumstances corresponding to every contract concluded.

Also from Law no. 193/2000 we conclude that the provisions regarding the abusive

clauses are applicable to those juridical reports that take place between consumers and trade rs.

Art.1, paragraph 1 of this law, provides that any contract concluded between traders and