Author(s) Patrícia Daniela Pedra de Matos
Advisor(s) Fernando Gravato Morais
Synopsis The purpose of this dissertation is to analyse and study the legal regime regarding pre-contractual obligations under the insurance contract, currently established in Decree-Law no. 72/2008, of 16th of April, with the alterations introduced by Law no. 147/2015, of 9th of September, taking into account the current relevance of this topic, since the insurance area is nowadays an indispensable reality in various aspects of life and whose presence has grown exponentially with the evolution of the socio-economic context in which we live. In fact, the Insurance Contract Regime has autonomised the legal framework for the insurance contract and has taken important steps towards establishing the contractual balance in the precontractual phase, in order to provide a greater protection of the policyholder or insured’s position as a weaker contractual party, without neglecting the equally legitimate interests of the insurer. Based on this objective, the legislator has standardized the pre-contractual information duties and has introduced requirements for the insurer not only with the duty to provide information to the policyholder regarding the initial risk statement and the legal consequences of non-compliance, but also with the creation of a duty of special clarification, which are presented as innovating in the Portuguese legal system. On the other hand, based on the interpretative problems and doubts adjacent to the previous regime established in Article 429 of the Portuguese Commercial Code, the legislator chose to adopt a clearer and more detailed legal solution in the scope of the initial risk statement, having autonomised in two different articles the legal consequences relating to the fraudulent and negligent violations of the precontractual duty of the policyholder or the insured. In addition, the Portuguese legislator decided to go even further compared to the previous legal regime by establishing the criterion of causality for assessing the invalidity of the insurance contract. Thus, throughout this dissertation, we analyse topics and present solutions to problems related to the fulfillment and violation of the pre-contractual information duties of the insurer and the policyholder or insured established in the general part of the Legal Regime of the Insurance Contract (articles 18 to 26), ending with a brief analysis of this subject from the point of view of the Spanish, French and Italian legal systems.
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