Insurance Contracts CP - Law Reform Commission

(l) the existence of guarantee funds or other compensation arrangements.
(ii) If possible, this information shall be provided in sufficient time to enable the applicant
to consider whether or not to conclude the contract.
(iii) When the applicant applies for insurance cover on the basis of an application form
and/or a questionnaire provided by the insurer, the insurer shall supply the applicant with
a copy of the completed documents.
7.31 It should be noted that Article 2:201 sets out some generic provisions and that the requirement
is imposed only ―if relevant‖. While some of this information will need to be tailored to meet the
requirements of each proposed contract (e.g. risks and exclusion, premiums, details of the insured and
beneficiary) Commission sees no reason why most of these information requirements could not be met
via basic provisions on a website followed by way of an SMS message/email, as long as the text is
retrievable and/or printable.
7.32 Article 2:201(2) raises the question of what consequences will follow if the information
provision is not met when it would have been possible for the insurer to have done so had the insurer
acted in a professional and timely manner. This issue arose in the context of the transposition of the
Distance Marketing of Consumer Financial Services Directive. The 2004 Regulations, S.I. No. 853 of
2004 originally provided that non-compliance with the information requirements and contract terms
provisions made the contract unenforceable against the consumer. S.I. No. 63 of 2005 gave a court of
competent jurisdiction a power to dispense with the obligation where non-compliance was not deliberate
or prejudicial to the consumer, the court having the ability to make the contract subject to such conditions
as the court sees fit to impose. This seems to be a more appropriate response and it is arguable that the
Financial Services Ombudsman‘s jurisdiction should be extended to allow such matters to be within the
remit of the Office rather than requiring an application to a court of competent jurisdiction.
7.33 Article 2:201(3), as the authors of the PEICL concede, is not based upon the Community
acquis but is rooted in a number of national law provisions 32 that requires such details that have been
provided by the proposer to be furnished, in documentary form, not later than the time when the contract
has been concluded.
7.34 Clearly, the authors of the PEICL are correct when they point out that any application form or
questionnaire will be ―of decisive evidential value for ex post determination of the contents of the
concluded insurance contract or a possible breach of the applicant‘s pre-contractual information duty‖. 33
However, while the duty must be observed whenever possible, there must be some question about
whether it is practicable to require this information to be furnished prior to the conclusion of the contract.
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Recommendations
7.35 While the Community acquis in relation to consumer insurance in particular contains a number
of information requirements, there is no basic rule that provides that a contract must be concluded, or
evidenced, in writing. As the authors of the PEICL point out, the core issue is whether the parties have
reached an agreement. Also, ―it is important and socially desirable that insurance cover can be put in
place as quickly as possible after the decision of the applicant to apply for insurance and the agreement
of the parties. Observance of formalities will cause delay.‖ 34
(1) No written requirements
7.36 The fact that no requirements as to form exist a fortiori precludes specific rules as to the means
whereby a contract is concluded. In such a context, the ordinary rules of offer and acceptance, for an
identifiable consideration, will apply. In Kennedy v. London Express Newspapers 35 an advertisement in a
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See PEICL, pages 95-6 for details.
PEICL, page 93.
PEICL, page 104.
[1931] IR 532: see also London v Accident Insurance Co (1904) 43 ILTR 271.
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