Limiting and surprising clauses in insurance contracts: protection of expectations and consent of the insured

Abstract

The author analyzes in this paper a matter that has dogmatic and practical interest: the inherent problems to limiting and surprising clauses in insurance contracts. After analyzing the duties of transparency imposed by article 3, paragraph 1, of the Insurance Contract Act, the study concludes that the limiting clauses disappoint the legitímate and reasonable expectations of the insured. One type of them are the surprising clauses that, as afecting the contract’s essential elements, can not be unfair. However, they are injurious. Although normally they produce a damage for the insured, because involves a surprising alteration of the contract’s economic part, its harmfulness is not in this circumstance. These clauses are unlawful because of the lack the consent by the insured, having been stolen their knowledge by the insurer. In short, the analyzed clauses express the need to protect the expectations and consent of the insured.