In a judgment of 17 March 2011, the court of cassation recalled the content of article L. 112-3 of the insurance code: “if the insurance contract constitutes a perfect consensual contract from the meeting of the wishes of the insurer and the insured, its proof is subject to the writing of a written document”.
The case law of the court of cassation does not require the insured to sign each contract document submitted to him at the time of subscription of the insurance contract (such as an annex for example or the general conditions of the insurance policy or its special conditions).
The signature of the specific conditions alone may mean, under certain conditions, the insured’s overall acceptance of the contractual documents which he has not signed.
The court of cassation accepts that the proof of such acceptance may result from a mention in the primary insurance policy, according to which the insured “accepts” or ” acknowledges having read and accepted the clauses contained in the Annex attached to the policy no…. “or” in the special conditions of which he has received a copy”, or: “acknowledges being in possession of the special Conditions and general Conditions of which he has received a copy”.
The court of cassation requires the insured to manifest, unequivocally and unambiguously, the acceptance of unsigned documents.
This was affirmed by the court of cassation, for example, in a judgment of 3 March 2011 issued by the 2nd Civil Chamber of the court of cassation (appeal : 10-11826) :
Having regard to Article 1134 of the civil code ;
Whereas in order to refuse to apply the forfeiture clause provided for in the general conditions of the contract, the judgment holds that the insurer is unable to produce at the debates a contract document signed and accepted by spouses X… concerning the General Clauses of the contract to which the revocation clause invoked forms part ;
That in so ruling, while it follows from the productions that the special conditions signed by the insured were filed before the court of Appeal and stipulated that the insurance was concluded in accordance with the special conditions and the general and annexed provisions of which the subscriber acknowledged having received the full text, the court of Appeal violated the aforementioned text ; On those grounds, and without the need to rule on the first and third parts of the second ground of Appeal : casts and annuls, in all its provisions, the judgment delivered on 14 September 2009, between the parties, by the court of Appeal of Pau ; remits, accordingly, the case and the parties in the state in which they were before that judgment and, in order to be granted, refers them to the Court of appeal of Toulouse (…) “.
Similarly, it was ruled, in a judgment of the court of cassation dated 4 December 2008 (n°07-19919) that the reference clause must expressly mention that the insured acknowledges “having received and accepted” all the documents annexed :
“Having regard to Article 1134 of the civil code ;
Whereas in order to refuse to apply the forfeiture clause provided for in the general conditions of the contract, the judgment holds that the insurer is unable to produce at the debates a contract document signed and accepted by spouses X… concerning the General Clauses of the contract to which the revocation clause invoked forms part ;
That in so ruling, while it follows from the productions that the special conditions signed by the insured were filed before the court of Appeal and stipulated that the insurance was concluded in accordance with the special conditions and the general and annexed provisions of which the subscriber acknowledged having received the full text, the court of Appeal violated the aforementioned text ;
On those grounds, and without the need to rule on the first and third parts of the second ground of Appeal : CASESAND annuls, in all its provisions (…) »
The fact for the insurer to list the various contractual documents of which the insured is totally unaware is insufficient to make enforceable against the insured, failing to specify, in the text of the policy, that the insured acknowledged having accepted the entirety of the contractual clauses arising from the general Conditions and the special Conditions.
The signature of the insured on the last page of the insurance policy is not sufficient to make enforceable against the insured any document not delivered and not accepted by the insured at the time of the subscription of the primary insurance policy.
What to remember: the simple signature of the insured on the last page of the insurance policy does not automatically imply full adherence to all the attached documents, mentioned in the policy.
