13.2 Conclusions

A 'broad overview' of the research summarised above indicates first and foremost that - self-evidently - it is not open to debate that the relationships under evidence law between the parties concerned by the insurance contract are primarily governed by the main rule set down in art. 150 of the Dutch Code of Civil Procedure. This states that the party relying upon the legal consequences of the facts or rights it has asserted bears the burden of proof and the concomitant risk arising either from those facts or from their refutation. Subject to exceptions, that main rule appears to provide a clear basis for a balanced interpretation under evidence law to the reciprocal relationships prevailing between the parties concerned by the insurance contract, even in the complex structure specific to an insurance contract with its policy clauses, positive or otherwise, that set out the scope of the cover, its inclusions and the exclusions qualifying those inclusions. As this research shows, this is a specific, unique and balanced interpretation that the character specific to the insurance contract and the social function it fulfils within our society supply.

The final equilibrium it so attains in the relationships under evidence law is a source of reassurance and is exceptional. When subject to preliminary inspection, the expectation may arise that the insurer, who has the power to 'drive' the subject by recourse to applicable conditions, might choose to 'skew' blockages in evidence law, foreseen or otherwise, 'to his own advantage'. In other words, one might imagine that the insurer formulates his stipulations in the policy in such a fashion as to comfort his position underevidence law, minimising the burden falling upon him as the party bearing the risk. This appears to be so in practice on certain points. An example of the easier evidentiary requirement that the insurer has negotiated for himself is where the insurer negotiates a clause where the policyholder's failure to observe the obligation to provide notification of damage leads to the complete forfeiture of the right to payment. The incorporation of guarantee clauses the non-observance of which triggers forfeiture of the right to cover is another example. But even then an equilibrium obtains. This is an equilibrium that is attained through substantive law, as in the case of the first example cited, by mandatory incorporation of article 7:941 paragraph 4 of the Dutch Civil Code. This sets down the requirement that, despite the stipulation of a general forfeiture of the right to payment, the insurer must prove prejudice to his interest. Equilibrium may also be obtained by recourse to reasonableness and fairness in application, as is the case of the second example cited. Even where an agreed guarantee clause does not offer that option, the insured must be permitted to proceed to prove facts and/or circumstances from which it may be deduced that the damage was neither caused nor magnified by non-observance.

I also find it remarkable that within insurance law more or less no recourse is made to 'true' reversal (the reversal of evidence risk). It has been more or less established that evidence risk in the area of the 'fault imputable to the victim' must remain with the insurer, while the application of the rule of reversal - as this has come to be develop in liability law - has, as far as can be assumed, been held back within insurance law. Reversal pure and simple, i.e. one performed subject to art. 150 of the Dutch Code of Civil Procedure, where evidence risk is also entirely reversed, up till now takes place exclusively in the context of non-disclosure and only where the party bound to supply proof has been placed in an unreasonably difficult evidentiary position through the activities of the other party. One part of the area where this form of 'intervention' by the Court was nevertheless not sanctioned by the Supreme Court but that, in my view, could well be entirely appropriate, is that of the proof of the handing over of general terms in the sense of art. 6:233 heading and under b, in conjunction with art. 6:234 of the Dutch Civil Code. This is because (assuming one does not proceed to reversal) the materialisation of the tangible norm would be endangered; for the burden of proof to be allocated uninterruptedly and without limit to the counter-party, which I believe such arrangements would lead to, would nevertheless conflict too sharply with the element of protection arising out of art. 6:233 of the Dutch Civil Code. In all other cases the Courts generally 'only' provide assistance by accommodating the party obliged to supply the proof (what is termed the provisional assessment of proof) and/or by imposing a heavier obligation to furnish facts.

Further investigation shows that the lines governing evidence law are clear and in equilibrium: the proof of the contract and of any part of the elements that are part of the policy descriptions lies with the policyholder while theproof of an exclusion or restriction of coverage lies - subsequently - on the insurer. What, from the above clear delineations, does spring to light is that within insurance law there is much debate about the 'requirements to be placed on proof' in order to avoid the coverage becoming illusory. The remarkable element here is not so much the content-related aspect: indeed every effort must be taken to avoid the coverage becoming illusory. The key issue is that of the description used, the terminology. Literature and case law discuss the issue of 'not placing excessively heavy demands on' the proof of an insured incident. Examples are the proofs of theft of a motor vehicle and the loss of an item insured under a policy insuring valuables. But here I find myself falling into a trap - as the introduction shows - in terms of use of terminology and realise its lack of purity. In these cases it is not so much a question of the proof of an incident but one of the 'preliminary question': does it actually address the issue of showing proof - knowing the nature of the accompanying risks the insured would then face? Rather than 'not placing excessively heavy demands' on the proof, it is a case of placing 'more rigorous requirements' on the reasoning behind the challenge (in the sense of art. 149 of the Dutch Code of Civil Procedure).

Lastly some words about two aspects that spring to attention because, in my view, the desired equilibrium referred to above is lacking. The first example is that of the interpretation given to the rule set down in art. 3:37, paragraph 3 of the Dutch Civil Code that a declaration addressed to another person must have reached that person before taking effect, an interpretation that has become well established in insurance law and has specifically been sanctioned by the Supervisory Council. In those cases where the insurer uses an automated system for collecting premiums (with a similar process) that draws up reminder letters at predetermined times that warn about suspension of cover, establishing that letters were sent to a policyholder is considered sufficient. The requirements set out in art. 3:37 of the Dutch Civil Code are thus abandoned and although the rulings of disciplinary law do not shed light on the underlying thinking, the Supervisory Council seems to wish to protect the insurer. The insurer that always sends his communications by unregistered mail will generally be unable to supply proof of his assertion that the communication reached the addressee. On this point I would plea for equilibrium to be restored by choosing another approach that - given the interest in question of the insured that must weigh more heavily than the 'exclusively' financial interest of the insurer's - is especially called for given the specific character of insurance law. As I see it, the insurer must (under these circumstances) proceed to an approach allowing him to be shown that the letter actually reached the policyholder (therefore: registered mail with acknowledgement of delivery). Only then, in line with the main rules coming from civil law - can the insurer rely on the legal consequences of the declaration he directed to the policyholder. A second point where, in my view, the equilibrium referred to is missing is that of the requirements to be placed on proof to the contrary. The investigation has revealed that in many cases, after having stated that in principlethe burden of proof rests on the insurer and after having shed light on the legal grounds allowing the Courts to base himself on the accuracy of the insurer's assertions unless proof to the contrary is supplied, the Courts then proceed to place on that proof to the contrary demands that go beyond 'shedding doubt on the assumed accuracy'. An interpretation that very definitely opposes a reversal in the burden of proof has been chosen. In the light of the main rule of allocating proof in law in the area of fault imputable to the victim to which reference is made above an interpretation of this nature has, in my opinion, no place within insurance law.