FAILURE TO DECLARE TO CUSTOMS – PROOF OF THEFT
In cases involving the theft of jewellery purchased abroad, the lack of a customs declaration for jewellery purchased outside France is often cited by insurers as a reason for refusing insurance coverage.
The refusal of guarantee is thus opposed to the insured who is reproached by his insurer for the commission of a customs infringement punishable by a contravention ranging from the 1st to the 5th class.
Is such an argument legally justified ? Is that a violation of customs regulations can be opposed to the insured when this is not even a condition of guarantee under the insurance policy.
In our opinion, no. The insurer is not the guardian of compliance by litigants with customs regulations. Let’s not mix ” the registers “.
On this point, the Court of Cassation had the opportunity to judge, on March 10, 2004 (n°03-10154), in accordance with the former article 1315 of the Civil Code (now article 1353) and article 6-1 of the European Convention on Human Rights, that the proof of the claim, which is free, cannot be limited by the insurance contract.
“(…) the agreement between the parties provided that, in addition to damage caused by breaking into the passenger compartment, the policyholder must establish that the steering or its anti-theft device has been forced and that the electrical connections which have enabled the vehicle to be started have been modified, and that if the circumstances of the theft envisaged by the police fall within the scope of the legal fact which, in principle, the proof is free, the guarantee is not due, in the event of the use of more refined techniques of fraudulent apprehension, that when these procedures cause material damage which is one of the indications required by the police ; That in ruling thus, while the proof of the claim, which is free, could not be limited by the contract, the Court of appeal violated the aforementioned texts (…)”
The insurer cannot therefore impose on the insured a precise method of proof to establish the materiality of the claim (theft, in this case) to refuse coverage.
The reality of the claim is thus proved by the insured by any means.
The Court of Great Instance of Créteil decided, in a judgment of November 12, 2014, this specific legal question, in a case of theft of jewels, giving victory to the insured :
“Both invoices for the purchase of the jewelry are dated. They indicate in Arabic the name of the store that edited them ; they detail the jewelry acquired. The payment in cash and the absence of a customs declaration are not likely to cause suspicion that the invoices would be false, especially since M X, by his air ticket, justifies his presence in Tunisia at the time of the first purchase in February 2009. As a result, Mr. X clearly reported the circumstances under which he had acquired the jewels and the circumstances of their theft ())”.
It is therefore up to insurers to clearly stipulate in the insurance policy a condition of guarantee subordinating the insurance coverage to the production of a proof of the actual presence in France at the time of the theft of the stolen jewels.
Such proof may be established by the insured by photos, plane tickets or any other means of proof, and this, without the insurer being able to reproach him if necessary for non-compliance with customs regulations…