Author(s) Toni Melo Fernandes
Advisor(s) Américo Fernando Gravato Morais
Synopsis The aim of this thesis is to describe the legalities involved in the disclosure or declaration of the risk by the policy holder or insured, at the time of the contract and throughout the term of the same policy. Until Decree-Law 72/2008 of 16 April entered into effect, the insurance contract was governed by the Commercial Code of 1888. The wording of Article 429 paragraph (referring to the initial risk statement) and 446 ° (relative to the increase of the risk) of that statute could not, in and of itself, solve all problems related to misrepresentations or ellipses produced by the policyholder or insured, so that role fell largely onto the doctrine and, essentially, the Case law. With the approval of the New Regime of the Insurance Contract, the legislature intended to regulate in a clearer and more detailed manner the matter of the statement of risk. This was achieved through the use of the Comparative Law and the positions previously taken by national doctrine and Case law. By clarifying which criteria governing the adaptation of the current legal regime and by making the necessary comparison with the previous regime, we intend, with respect to the initial statement of risk, to examine: the scope and content of the policyholder’s obligation; the legal ramifications of the violation of such duty, the distinction between cases of fraud and negligence, and the reaction means available to the insurer without forgetting the duties incumbent to the latter. Regarding the issue of increased risk, this work aims to characterize the scope and content of the duty to communicate and explain the different effects that the verification of the aggravating circumstance is likely to produce, particularly in the event of an accident. Given its undoubted practical importance, we have also paid particular attention to special rules applied to life insurance, both for the initial risk statement and to the increase of the risk.
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