Klauzule wyłączające odpowiedzialność za szkodę a ubezpieczenie odpowiedzialności cywilnej
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Date
1974
Authors
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Journal Title
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Publisher
Wydział Prawa i Administracji UAM
Title alternative
Clauses Excluding Liability for Damage and Liability Insurance
Abstract
The two law institutions specified in the title, so different as they are (i.e.
provision of a contract between a possible wrongdoer and a person subject to damage,
as well as liability insurance), have however one common characteristic:
they both aim at the protection of the damage perpetrator against a diminution of
his assets as result of indemnitary obligations. In short: they release the perpetrator
from the liability incurred by the damage, they protect him against the "legal
risk" consisting in the diminution of his assets by the amount due as indemnity.
As regards the elimination of the liability for damages and the insurance of
the liability, they both result in the exemption of the wrong-doer from a property
sanction and find their justification in the principle of freedom of contract. However,
this principle cannot lead to an exemption from liability for intentionally
caused damage, as nullo pacto effici posse ne dolus praestatur. Therefore, neither
the clause of non-liability nor the liability insurance might protect against the
liability for wilful damage.
It has been shown in the article that the non-liability clause (i.e. the clause
excluding liability) can be applied not only to indemnitary relations ex contractu
but also ex delicto, as testified, among others, by the contents of Art. 437 of the
Civil Code.
There is an essential difference between the clauses excluding liability and
the clauses merely limiting liability. None the less, the legislator regulates jointly
and uniformly the scope of application and of effectiveness of both these kinds of
clauses. Thus they are both invalid by virtue of relevant provisions (e.g. Art 437
and Art. 558 § 2 of the C.C.; Art 160 and Art. 170 of the Maritime Code) and,
moreover, by their being contrary to the principles of social coexixtence. The freedom
of contract in exempting or limiting liabilities is restricted to the highest degree under legislation relating to planned contracts of socialist organisations, e.g.
delivery and building contracts.
One could say that these clauses are a legally admitted form of escape from
the rigours and severities of individual liability conceived sometimes as a specific
and severe risk inherent in economic activity.
The application of these clauses contributes to the fact that the civil liability
does not cover the totality of inflicted damages and does not cover the full amount
of those taken into consideration and to be compensated.
Though — from the point of view of the wrong-doer — the clause excluding
liability and the liability insurance have an identical effect, they are actually in
mutual opposition. In contra-distinction to the non-liability clause the liability
insurance:
a) does not deprive the injured person of the indemnity but guarantees its obtaining;
b) does not release the perpetrator of the indemnity expenses but, on the contrary,
ensures their payment in advance, namely in the form of insurance premiums.
While the exemptive (i.e. excluding liability) clauses bring to light the necessity
of extending the scope of persons' and goods' insurance, the limiting clauses
favour the development of liability insurance: limitation and lumping (in one sum)
of indemnities focilitate a proper evaluation of risks and the respective insurance
protection.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 36, 1974, z. 3, s. 325-340