Abstract:
This dissertation thesis deals with a concept specific to German insurance law called “versicherungsrechtliche Erfüllungshaftung”, which can be seen as a special liability for performance in insurance law, and how this concept relates to the German Law of Obligations. Both the Reform of the German Law of Obligations in 2002 (“Schuldrechtsreform”), which codified the culpa in contrahendo and the concept of a fundamental change of circumstances (based on the clausula rebus sic stantibus), and the reform of the Insurance Law in 2008 gave reason to analyze the connection.
The author distinguishes different types of the “versicherungsrechtliche Erfüllungshaftung” conclusively, with a view to their relevance for the insurer for the past 10 years. Thereby, she calls for solving the cases of the “versicherungsrechtliche Erfüllungshaftung” with alternative, different, statutory concepts in German Insurance Law and German Private Law, and comprehensively discusses all types of cases and their possible solutions – employing, inter alia, § 5 Absatz 3 Versicherungsvertragsgesetz (German Insurance Law), culpa in contrahendo, breach of contract in § 280 Absatz 1 Bürgerliches Gesetzbuch (German Cicil Law) and the concept of a fundamental change of circumstances. The author also deals with the consequences of the “versicherungsrechtliche Erfüllungshaftung” which is almost unlimited liability whenever it comes to an adaption of the insurance policy. She shows that an adaption of the insurance policy can be achieved by applying generic – and not even new, but only recently codificied – civil law terms without disadvantageous consequences for the insured person. Therefore, the “versicherungsrechtliche Erfüllungshaftung”, having been used for nearly a hundred years, is to be abandoned for good.