Coverage delimitation clauses and rights limiting clauses in the insurance contract

April 26 , 2019 // Specialty

Published in El Derecho

The TS considers that although, in principle, the distinction is simple, between clauses of delimitation of coverage and clauses limiting rights because while the former specify the risk and set the risks, which once produced, give rise to the right to the insured provision, the second, the limiting clauses, restrict the right of the insured once the risk object of the contract has occurred, and must therefore comply with formal requirements required by law, however, there may be clauses that define the risk assimilate to the rights limiting clauses, whose concept must refer to the natural content of the contract.
The jurisprudence, when determining in practice the concept of a limiting clause, refers to the natural content of the contract, "derived, among other elements, from the clauses identified by their defining nature, from the particular clauses of the contract and the typical or usual scope that corresponds to its purpose in accordance with the provisions of the law or in the insurance practice "
In the present case, the insurance arranged falls within the so-called civil liability insurance, regulated in arts. 73 et seq. LCS
In accordance with this regulation, beyond specifying that the obligation covered is that of indemnification to a third party of the damages caused by a fact, insofar as this must be provided in the insurance contract, the natural content of the insurance is determined mainly by the contract itself.
From the contract it is directly extracted that it is the responsibility of the directors and directors of companies, for acts carried out in the exercise of their position, without the special conditions specifying more in this regard. It is the general conditions that do specify which acts are covered and, above all, for what is now of interest, which are excluded. In clause 2.19.3, expressly excluded from the consideration of damage subject to compensation "taxes", that is, tax obligations. What would include the responsibility derived by the AEAT to the administrators of the company regarding the tax debts of the company.
The damage that the plaintiffs claim is covered by the civil liability insurance is the tax obligation derived by the AEAT, pursuant to the provisions of art. 43.1.b) LGT
The insurance arranged is the responsibility of the administrators of a commercial company in which they could have incurred in the exercise of their position. Today, its natural content is not limited to the civil liability regulated in the Capital Companies Law, but also that which, as we have stated, is provided in the administrative regulations, in this case, the General Tax Law.
This is an expected responsibility, due to the position of administrator, to encourage more diligent action in relation to compliance with the company's tax obligations. It is a relatively common responsibility. So much so that, objectively, in the forecast of the one who arranges the insurance, it is logical that the coverage of this risk is also found. In such a way that its exclusion in the section of general conditions, without an express acceptance, should be considered surprising and therefore limited of rights.
Under this characterization, the express acceptance of the policyholder would have been necessary, so, in his absence, the effects provided in art. 3 LCS and, therefore, take it for granted.

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Cláusulas de delimitación de cobertura y cláusulas limitativas de derechos en el contrato de seguro
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