Before the conclusion of the contract the insurer is obliged to submit to the insured an insurance questionnaire to which the insured must answer in good faith.
Where the insured is in bad faith or if he conceals certain information of which he knows the importance for his future insurer, he risks the invalidity of the contract and, as a consequence, the refusal of insurance compensation.
According to article L. 113 – 8 of the Insurance Code, “the insurance contract is void in the event of reluctance or intentional misrepresentation on the part of the insured when such reluctance or misrepresentation changes the subject matter of the risk or diminishes the opinion of the insurer even though the omitted or misrepresented risk has been without influence on the claim”.
This being recalled, the nullity of the insurance contract is not an automatic penalty.
In a recent judgment of 13 December 2018, the Court of Cassation recalled that the nullity of the insurance contract is not incurred.
In this decision, the insured, owner of a residential house subscribes to an insurance policy ” Multi-guarantee privacy principal residence “. The fire destroys the property. The claim declaration is notified to the insurer. ‘insured had declared the claim to the insurer. The insurer refuses compensation for nullity derived from article L. 113-8 of the insurance code, blaming the insured for failing to declare that his house had been built without a building permit on a prohibited area. The Court of appeal held that the insurance contract was entered into without a preliminary questionnaire on the basis of only spontaneous statements by the insured, that the insurer had no obligation to submit to the applicant for insurance a separate questionnaire when concluding the contract. The judges on the merits also noted that obtaining a building permit prior to the construction of a house was necessarily presumed by the insurer. The insurance contract was therefore declared null and void.
The Court of Cassation disapproves of the first judges. The judgment is broken by the visa of articles L. 113-2, 2°, L. 112-3 and L. 113-8 of the insurance code. The high court recalls that ” according to the first of these texts, [ the insured is obliged to answer exactly the specific questions posed by the insurer, in particular in the risk declaration form by which the latter asks him, at the conclusion of the contract, about the circumstances that are likely to make him assess the risks he takes on ; that it follows from the other two that the insurer can rely on the reluctance or intentional misrepresentation of the insured only if they proceed from the answers he has given to the said questions “.