The enforceability of insurance contractclauses against the insured in France

In insurance matters, a distinction must be made between two concepts: the existence of a clause in the insurance contract and the enforceability of that clause against the insured party.

Therefore, a distinction must be made between proof of the existence of a clause and proof of its enforceability.

The burden of proof lies with the party seeking to invoke the clause: it must prove that it was actually brought to the attention of the other party.

In the case of a clause defining the scope of cover (in particular, the risks covered or the amounts covered), it is for the insured to prove its existence.

Therefore, anyone claiming to have taken out a policy on terms more favourable than those applied by the insurer must provide evidence of this (Cass. 2e civ., 26 November 2020, no. 19-20.369).

Conversely, when a clause tends to restrict coverage (exclusion, limitation, expiry), it is up to the insurer to prove not only its existence but also its applicability to the insured. It should be noted that the unenforceability of a clause invoked by the insurer only refers to clauses that restrict coverage.

The conditions necessary for the enforceability of the clauses of the insurance contract against the insured party (I) are set out below, followed by the limits imposed by law and case law on such enforceability (II).

I. Conditions for the enforceability of the clauses of the insurance contract against the insured party

For a clause to be enforceable against the insured, the insurer must first demonstrate that it was brought to the insured’s attention (1) and, secondly, that it was accepted by the insured (2).

1.The requirement that the insured party be aware of the clause

1.1. Under French contract law, a clause cannot be enforced against a party unless it has been brought to their attention. This principle applies to relations between insurers and insured parties.

1.2. When an insurer decides not to cover certain risks specified in the exclusion clause of the insurance contract, it is up to the insurer to prove that the exclusion of coverage was brought to the attention of the insured (Cass. 2e civ., 8 September 2005, no. 04- 17.989).

1.3. When the insured acts through a representative, such as a broker, the latter is deemed to have conveyed the information. Therefore, the designated broker’s knowledge of a contractual document makes its provisions enforceable against the insured (Cass. 1st civ., 9 May 1996, no. 94-10.302).

1.4. The Court of Cassation accepts that knowledge or ignorance of a clause is a matter for the discretion of the judges of first instance. The latter may, for example, consider that the insured could validly be unaware of the general terms and conditions in the absence of proof that they had been communicated by the insurer (Cass. 1st Civil Chamber, 26 February 1980, No. 78-15.824).

1.5. Finally, case law specifies that the relevant time for assessing whether a clause has been communicated is prior to the occurrence of the risk: a limiting clause is only enforceable if it has been brought to the attention of the insured party before the accident occurs (Cass. 2nd civ., 24 May 2006, no. 04-18.680).

1.6. An interesting example of this occurs when the insurer invokes a clause from a previous insurance contract. If the contract was renewed without modification and the renewal proposal was signed by the insured party, the clause is considered to be known and therefore enforceable against the insured party (Cass. 2nd civ., 19 November 2015, no. 14-26.351). No. 14-26.351).

In addition to knowledge of the clause, case law requires that it be accepted by the insured (Cass. 1st civ., 7 March 1995, no. 92-14.788).

Express or tacit acceptance of the clause by the insured party

1.7. It is true that the signing of a contractual document naturally expresses the consent of the insured. However, in the absence of a signature, consent may be inferred from other elements, in particular from the referral clause or from the attitude of the policyholder.

1.8. The absence of a signature on a document containing a reference clause does not prevent its applicability, provided that the intention of the insured party can be demonstrated (Cass. 1st civ., 5 March 2002, no. 99-21.486).

1.9. For example, the referral clause is valid if it appears on the back of a signed page (CA Paris, 11 December 1984). It is also enforceable if the insured has signed a document stating that they have received the unsigned general terms and conditions (Cass. 2nd civ., 29 June 2017, no. 16-22.422).

1.10. General terms and conditions, special agreements or additional clauses may contain cross-references and allow for the applicability of clauses, provided that it is clearly established that the insured had the opportunity to consult them. This principle is supported by case law: by signing the special conditions that refer to the general conditions, the insured accepts the expiry clause contained therein (Cass. 2e civ., 3 March 2011, no. 10-11.826). Even if the special conditions have not been signed, the insurer may invoke the contractual scope of the contract (Cass 2( civ., 13 February 2025, no. 23-10.039).

1.11. The trial judge may also take into account the tacit acceptance of unsigned documents, particularly when there is a clear link between the policy and the annex (Cass. 2nd civ., 9 June 2016, no. 15-20.106).

The insured party’s signature on a contractual document indicates their consent, but is not sufficient to make a clause enforceable if it is not clearly identified or if it appears in an unsigned annex.

II. The limits of the applicability of clauses vis-à-vis the insured party

Even if the insurer can prove that the insured party was aware of and accepted the insurance contract, it is still necessary, on the one hand, for the clause invoked to meet the formal requirements (1) and, on the other hand, for the annexed document containing it (if it is separate from the signed contract) to have been effectively communicated to the insured party (2).

Formal requirements for restrictive clauses

2.1. Clauses limiting coverage (exclusions, maximum limits, excesses, expiry dates) must be written in clear and intelligible language and must be communicated.

2.2. Article L112-4 of the French Insurance Code requires that “policy clauses providing for nullity, expiry or exclusions [must] appear in clearly visible characters” .

2.3. Reference clauses must also be precise and clearly visible: they may be typed or printed, provided that they attract the attention of the insured. (Cass. 2e civ., 12 March 2009, no. 08-13.714).

2.4. Therefore, a clause hidden in a complex and illegible document, in contradiction with an attractive promotional presentation, will have no effect on the insured party (Cass. 1st civ., 27 February 1996, no. 93-21.845).

2. The unenforceability of ancillary documents that have not been communicated

2.5. Even when the insured party has signed and accepted an insurance contract containing a clause referring to annexes or general conditions, it is still essential to prove that these documents have actually been brought to their attention (Cass. 2nd civ., 13 February 2025, no. 23-16,750).

2.6. A clause may be valid but still ineffective if it cannot be proven that the document containing it has been communicated.

2.7. Therefore, a clause appearing in the contractual documents will be inapplicable if it has not been brought to the attention of the insured (Cass. 1st civ., 25 November 1992, no. 90-16.919). The mere signing of the contract is not sufficient to prove this knowledge.

2.8. In this regard, the French Court of Cassation has ruled that the enforceability of the coverage limit (provided for in the special conditions attached to the insurance contract) against the insured is subject to the prior signature of the special conditions by the latter (Cass. 2nd civ., 13 February 2025, no. 23-17.739).

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