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Reluctance and inaccuracy in Peruvian legislation and the importance of the duty to inquire

Published 14 agosto 2018

Insurance Contract Law No.29946 establishes that a contract is declared null only when there has been fraud or inexcusable fault. Equally, three typical cases are established in which a contract must be preserved: i) When, at the time of the completion of the contract, the insurer knows or must know the true state of the risk ii) When the circumstances omitted or inaccurately declared ceased before the loss occurred, or when the reluctance or unintentional inaccurate declaration did not influence the occurrence of the loss, or the extent of the compensation or benefit due; and iii) When the omitted circumstances were part of a specific question that was not answered in the questionnaire, and the insurer entered into the agreement regardless.

Such a situation must be disputed before the expiration of the contestability period, that is, 30 days from the moment when the insurer becomes aware of the reluctance or inaccurate statement, otherwise the right to use such a defense expires and is unenforceable against the insured and / or the beneficiaries.

Knowing the exact extent of the risk is fundamental for the insurer when entering into a contract, hence why it is important that the insured declares all of the known circumstances that may influence whether a contract is entered into or done so on different terms. Accordingly, not only the questionnaire that the insured completes at the pre-contractual stage, but also the insurer's duty to inquire, is very important.

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Authors

Pedro Richter

Lima

+ (551) 225 5333

prichter@tcpr-abogados.com.pe

La reticencia y la declaración inexacta en la legislación peruana y la importancia del deber de inquirir

By Pedro Richter

La Ley 29946 LCS establece que la nulidad del contrato solo procede cuando ha mediado dolo o culpa inexcusable; igualmente se establecen tres supuestos típicos en los cuales corresponder la…