نوع مقاله : مقاله پژوهشی
نویسندگان
1 دانشیار گروه حقوق خصوصی و اسلامی دانشکدۀ حقوق و علوم سیاسی دانشگاه تهران
2 دانشجوی دکتری حقوق خصوصی دانشکده حقوق و علوم سیاسی دانشگاه تهران
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
In the insurance contract, assuming the fulfillment of the contractual conditions, the insurer is obliged to fulfill his obligation, to compensate the loss. Sometimes, despite the fulfillment of the conditions for claiming contractual rights for the policyholder (realization of contractual risk), based on the fulfillment of a matter that is typically a breach of obligation by the policyholder, the insurer is released from its obligation, which is interpreted as "Forfeiture ". The basis of this fall of the right can be according to the law or contractual condition. In foreign legal systems, the validity of the clause in the insurance contract is limited to specific cases and subject to compliance with conditions. In French law, the condition of "Forfeiture" is subject to limitations, both in terms of nature and form. In terms of form, the clause must be binding, in the sense that the insured must know precisely which of his obligations the forfeiture of the right is. It should also be written in clear and bold terms. From a substantive point of view, according to the law of December 31, 1989, it is effective only when the insurer proves that the loss occurred as a result of the policyholder's non-obligation. In the law of England, due to the seriousness of the guarantee of the implementation of the breach of warranty in the law of 1906, fundamental reforms were made
in the insurance law of 2015 and in articles 10 and 11 of the insurance law, it is stipulated that the breach of the warranty does not exempt the insurer from the obligation to compensate the damage, but with the breach of the warranty, the insurer's obligation to will be suspended. In addition, the insurer cannot refuse to compensate the damage by using the breach of warranty even if it is not related to the damage. In Iranian law, in Article 15 of the Insurance Law, this ruling is provided for the obligation to inform about the occurrence of an accident and to try to deal with the damage, but regarding whether the parties to the insurance contract can agree on this in other cases as well, or it should be considered limited to legally authorized cases, there is no text. In addition, the law is silent about the legal nature of this condition. The importance of examining the "condition of Forfeiture" is that such a condition is widely used by insurers in insurance contracts. While the provisions of this condition, the collapse of the most important effect of the insurance contract (one of its two cases); It means "Insurer's obligation to compensate". In addition, the explanation of the legal nature of this performance guarantee can help to explain the various aspects of this institution and the conditions of its impact on the legal relationship of the parties and adjust the superior position of the insurer in concluding the contract according to the supplementary nature of the insurance contract. The current research is an applied research and the method of collecting information is a library. The author's research method is descriptive, analytical and critical. The fundamental question is what is the legal nature of the " Forfeiture" in insurance contracts; furthermore, what are its validity conditions? It seems that the nature of this clause is "Falling Obligation" and can be analyzed in the form of causes of falling of obligations and it cannot be considered as a "Exclusion Clause" and the validity of this clause must be confirmed in the insurance contract based on the principle of contractual freedom. This research work is considered fundamental and at the same time practical, which tries to be discussed with an analytical approach and with descriptive, qualitative aspects and using library data to the extent necessary to conduct the research. In order to achieve this, first, according to the background, the required sources were prepared from Persian, English and French legal books and articles, and then according to their content and the analysis of the contents, the desired results, including the explanation of the legal nature of Clause Forfeiture in The insurance contract and its credit terms and conditions were obtained.
کلیدواژه‌ها [English]
الف) فارسی و عربی
11.---------- (1391). نظریۀ عمومی تعهدات، تهران: میزان.
ب)خارجی
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