Abusive clauses in insurances domain

• Author: Oana Elena Galateanu
• Position: Faculty of Juridical, Social and Political Sciences, Juridical Sciences Department 'Dunarea de Jos' University, Galati, Romania
• Pages: 54-58

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

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

No. 1 (2014), pp. 54-58

54

ABUSIVE CLAUSES IN INSURANCES DOMAIN

O. E. Gleanu

Oana Elena Gleanu

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 Do mneasca

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 generated also ne w forms of contracts, like adhesion contracts

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

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

the client, allowing the occurrence of abusive contractual clauses. Such clauses can occur

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

of adhesion as a specificity element, the professional insurer 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 in

insurances area that can be considered abusive.

Keywords: abusive clauses, clients, insured, insurers

Introduction

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

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 significant 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 clause was not directly negotiated with the consumer. It is supposed that it is

not negotiated t hat 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 any action or

omission that might harm t he 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 t he 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 t his 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 traders.

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

consumers for the sale of goods or for providing services will include clear contractual