Cour de cassation, 2e civ., 16 septembre 2021, n° 19-25278
The French Court of Cassation (the French Supreme Court) very clearly recalls, under article 1104 of the Civil Code (former article 1134 of the Civil Code), a text of public order, that contracts must be performed in good faith.
In this case, an individual who had taken out an all-risk insurance contract had his vehicle stolen on December 3, 2012.
The insurer opposed the claim for compensation, invoking a warranty forfeiture clause for false declaration, the insured having indicated that the mileage of the vehicle was 19,400 kilometers, whereas it was 29 673 kilometers when last used.
To declare the forfeiture of cover justified, to reject the claims of the insured and to order him to pay the insurer the costs incurred for the purposes of the investigation, the appeal judgment states that he can only support the mileage of the vehicle is not an element which must be included in the declaration of the loss since the same general conditions provide that the declaration provides in particular with regard to the loss "its causes and its known or presumed consequences".
The decision adds that the insured does not dispute the inaccuracy of his declaration but indicates that it cannot be opposed to him on the grounds of its lack of seriousness, that it cannot be argued that the exclusion of cover would not be incurred only for a significant exaggeration of the extent of the damage, even though the contract covers any false declaration modifying the consequences of the claim and it itself admits a difference in quotation, even if it considers it negligible.
However, for the Court of Cassation, it is up to the insurer to provide proof of the bad faith of its insured in the event of a false declaration relating to the claim, to claim the application of a clause providing for the forfeiture of cover. Thus, for the court, this proof is not provided in the present case.
This argument is obviously based on the principle that since good faith is always presumed, it is up to the insurer to provide proof of the bad faith of its insured.
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