The Court of Cassation therefore considers that whatever the nature of the disputed clause that delimits the insurer’s risk (exclusion, condition of guarantee or lapse), such a clause must always be brought to the attention of the insured in order to be able to oppose it, in the event of a claim.
In this same logic, it was ruled by the Court of Cassation, in a judgment of 24 November 2011 (n°10-17785), that a clause that limits the insurance guarantee must be known and accepted :
“But whereas to declare this clause not effective against Mr. X… , the judgment holds, for its own and adopted reasons, that the insurer, both before the judge of the summary proceedings and before the court of great instance, has not contested the very existence of the insurance contract, which is also the result of the various documents that the insurer produces in the debates ; that it claims, on the other hand, to impose on the insured a clause limiting the ; however, such a clause is enforceable against the latter only if the insurer that avails itself of it establishes that its counterparty has been aware of it and has accepted it ; that the various documents produced by the insurer, in particular the general and specific conditions, are not signed by the insured ; that it cannot be deducted from the payments of contributions made according to the amounts indicated by the broker the knowledge by the insured of the limitation clause of guarantee and its acceptance ;
That from these findings and statements arising from its sovereign assessment of the value and scope of the evidence debated, the Court of appeal, without reversing the burden of proof, and without any distortion of the findings, was able to infer that the insurer did not demonstrate that the insured had known, prior to the claim, of the limitation of warranty clause and had accepted it (…) ; hence it follows that the plea is unfounded (…).ON THESE GROUNDS REJECTS the appeal ())”.
The consistent case law of the Court of Cassation systematically recalls that such evidence can only result from an annex signed by the insured, or, failing that, from an express mention stipulated in the insurance policy attesting that the insured has “read and accepted” the clauses contained in a separate document of the insurance policy and not forming part of it.