13.1 Summary

The title of this book states clearly and concisely reflects the content of the present study: research has been carried out into the role of evidence in contractual relations of insurance law. The starting point for the research was to consider, on the basis of the provisions of the Dutch Code of Civil Procedure (art. 149 ff.), the extent to which the specific character of the insurance contract and the social function which it fulfils in our society justify a specific interpretation - geared to that character - within the evidence law relationships between the insurer and the policyholder and/or the insured. In this context it was decided to conduct research into the jurisprudence aspects of the various components of the insurance contract.

Before dealing with those components and their practical interpretation, the first chapter provides a brief outline of the general rules of evidence law. Art. 150 of the Dutch Code of Civil Procedure plays a central role in the distribution of the burden of proof: the party which invokes legal consequences must prove them. Substantive law in principle plays the guiding role - explicitly or implicitly - and it must be constantly borne in mind that (a) reasoned contradiction alone in principle entails no evidence law obligations and (b) there may always be a point at which a defence does more than 'just' affect the core of the basis of a claim. If the latter is the case, there is an independent defence, which does entail a burden of proof.

Following these introductory considerations, the first chapter then devotes attention to deviations from the basic rule. These are on the one hand the deviation based on the law: the distribution of the burden of proof may differ as a result of 'any special rule' or 'the demands of reasonableness and fairness'. On the other hand, there is the deviation 'not based on the law'. These deviations, also known as procedural law mechanisms, are 'the provisional evidence judgement', the increased obligation to state reasons and the reversal rule. The most characteristic feature of the latter group of deviations is that they only transfer the burden of providing proof; the evidence risk remains with the party whose responsibility it originally was. The chapter also devotes attention to the importance of the distribution of the burden of proof as such: after all, the party who bears the burden of proof also bears the risk in the event that proof cannot be supplied. The party who is responsible for providing proof and who fails to do so losesthe dispute. Finally, at the end of the first chapter a brief outline is given of the basic rules of evidence under foreign law.

The second chapter deals with the communication between the insurer and the policyholder. On this subject the legislator has sought to protect the pol-icyholder by departing, through imperative law, from the basic civil law rule stated in art. 3:37 of the Dutch Civil Code that statements can be made in any form: according to art. 7:933 of the Dutch Civil Code, all notices which the insurer is required to issue in accordance with the provisions of that title or the contract must be made in writing. In terms of evidence law, the latter provision - viewed in the context of the requirement also specified in the Civil Code that notices must be served at the 'last known place of residence' - is most relevant in those cases in which a notice issued by the insurer has or may have far-reaching consequences. An initial point dealt with is the issuing of demands for premium payment. After dealing with the form and effect of the written statement in 'ordinary' law, the chapter considers how these principles apply to insurance law in practice. The result is striking with regard to evidence law. Where the insurer uses an automated system for premium collection, the 'receipt' requirement is dispensed with. It is deemed sufficient to establish that the notice has been 'sent', and yet that must be deemed to be in conflict with the principle set out in art. 3:37 of the Dutch Civil Code that a declaration sent to another person must be received by that person in order for it to have legal effect. To some extent a shift appears to be occurring in the sense that the civil court (rightly) appears no longer to deem 'sending' to be sufficient - despite occasional civil endorsements of the practice described here in the past and despite the constant (favourable) jurisprudence of the Supervisory Council on this point. This shift 'fits in' with the solution I argue for in 2.1.1.2, to have insurers switch to keeping hard copies of the letters sent by the system to policyholders. If the insurer arranges for his system to produce an extra copy for the file at the same time as issuing the demand, it is possible to check subsequently which letter or letters have been sent to which address on which date(s). If the letter has been sent and its contents are correct (in the sense that it 'demands payment' as referred to in art. 7:934 of the Dutch Civil Code), and the policyholder nevertheless fails to respond within the permitted 14-day period, I would argue that only in those cases should the insurer take steps to ensure that the letter has also actually been received by the policyholder (i.e.: using registered mail with confirmation of receipt). After all, it is only then that - in line with the basic rules of civil law - the insurer can invoke the legal consequences of the declaration he has sent to the policyholder. By limiting the use of registered mail to the group which fails to respond despite the demand, a balance is struck between the cost aspect which (rightly) plays a role for the insurer and the policyholder's interest in not being confronted with suspension or deferment without having received the declaration (warning) sent to him.

A second point in which the issuing and receipt of a written notice play an important role is the issuing of a notice to amend the general terms and conditions. On this point, where 'receipt' plays just as important a role, the insurance law practice complies with the application of art. 3:37 of the Dutch Civil Code that prevails in ordinary law, in the sense that in order for the legal consequence to take effect, the insurer bears the full obligation to prove that the declaration sent to the other person definitely reached that person.

That is the interpretation also applied to the third investigated point, namely the notice sent by the insurer containing a (warning of) termination of the insurance contract. Such a (warning of) termination, which is based on the provisions of art. 7:940 paragraph 3 of the Dutch Civil Code ('the possibility of terminating the contract on grounds which are of such a nature that it can no longer be demanded of the insurer that he remain bound by the contract'), is a notice within the meaning of art. 7:933 paragraph 1 of the Dutch Civil Code, for which, in accordance with the practice that has grown up under insurance law, the insurer is required to prove that the policyholder has actually received it.

An investigation is then made - in 2.2 - of the deviations from art. 3:37 of the Dutch Civil Code which are 'to the detriment' of the insured: those deviations in which the insurer, in the communication with the policy-holder, reserves rights or imposes obligations on the policyholder which, to the latter's detriment, deviate from the provisions of art. 3:37 paragraph 1 of the Dutch Civil Code, are in principle unreasonably onerous within the meaning of art. 6:236, preamble and subsection l, of the Dutch Civil Code. Exceptions to this rule are conditions governing the holding of the addressee's last address known to the insurer or the form of the declarations to be issued by the other party, albeit that the latter permitted deviation is subject to the provisions of art. 6:237, preamble and subsection m, of the Dutch Civil Code: due to the 'grey' nature of this provision, it is the responsibility of the insurer in this case to state and prove that, and why, the stricter form requirement (i.e. stricter than the requirement for the private deed) can pass the test of reasonableness.

Finally, in section 2.3 attention is devoted to the recently created possibility of sending notices electronically. The rule, as set out in the Dutch Electronic Notices Decree, seems balanced. The insurer can only communicate electronically if he has obtained consent, and notices which have to be sent by registered mail are excluded, while the 'burdens' remain on the insurer: it is his responsibility to provide proof of consent and 'receipt' by the addressee.

Chapter three deals with three aspects of evidence law involved in the creation of the insurance contract. First, in section 3.1, it considers the proof of the (establishment of) provisional cover, which gives rise to the following questions: how does the protection which section 6.5.3 of the Dutch Civil Code is intended to offer the insured relate to the (relatively easy) grantingof provisional cover (i), who provides the proof of provisional cover (ii) and the question of whether the situation would be different if the insurer made such provisional cover subject to a conditional/preventive guarantee (iii). The protection as provided in section 6.5.3 of the Dutch Civil Code with regard to the obligation on the insurer to offer the other party a reasonable possibility of reading the general terms and conditions, relates solely to the character of the provisional cover. After all, providing immediate cover usually means it is impossible to read the general terms and conditions before or at the time of entering into the contract. On the basis that such immediate cover is provided in the interests of the policyholder, as I have argued, it does not seem justified to invoke voidability pursuant to 6:233, preamble and subsection b in conjunction with 6:234 of the Dutch Civil Code. Nevertheless, the insurer must send the terms and conditions as soon as possible - i.e. when sending the application form. Questions (ii) and (iii) can be answered on the basis of the broad point - to be discussed also in chapter 5 - that it is the policyholder's responsibility to state and prove the existence of the insurance (cover). On the other hand, it is the insurer's responsibility to state and prove that a condition/preventive guarantee has been agreed.

Section 3.2 then deals with the question of the revocability or irrevocability of a proposal by the policyholder to conclude a contract. Here too, sending and receiving have an important role: if no provisions are included with regard to revocability or irrevocability, the basic rule of art. 6:219 of the Dutch Civil Code applies, and a proposal can in principle be revoked, as long as it has not been accepted and no notice of acceptance has been sent. In the book I have stated that, and on what grounds, the burden of proof of both receipt and - if receipt is not yet applicable - sending rests with the insurer. Attention is then devoted to the significance of two clauses applied in practice which are intended to convey the irrevocability of the offer. The most far-reaching form of constraint is provided by the so-called 14-day clause, which specifies on the one hand that the prospective policy-holder is bound by his proposal for fourteen days and on the other hand -after the specified period has elapsed - an obligation arises for the insurer to accept the contract with effect from a date which may fall before the fourteenth day. The issue arises of the consequences which any damage that has already arisen may have on the (assessment of the) acceptance and the question of whether that has evidence law implications. In my view that is not the case. Since the insurer's obligation resulting from the use of the aforementioned clause in principle lapses only if he makes known by the fourteenth day that the application cannot or is not yet being accepted, the receipt of the notice by the prospective policyholder takes on greater importance. After all, the prospective policyholder who has had his proposal declined may assume - precisely as a result of the use of the aforementioned clause - that he is covered. On the grounds stated in 3.2.2, here too it is the insurer's responsibility to furnish proof of receipt, or to prove that non-receipt or late receipt was due to a circumstance attributable to the addressee as referred to in art. 3:37 of the Dutch Civil Code.

Section 3.3 deals with a third aspect of the creation of the contract, namely the (evidence law) relationships resulting from the applicability of section 6.5.3 of the Dutch Civil Code. It discusses the rapid obligation by the general terms and conditions and the accompanying 'annulment regime', as stated in art. 6:233. The test against the so-called 'open' standard of art. 6:233 subsection a of the Dutch Civil Code, and the elaboration of that standard in the so-called black and grey list, is easiest to interpret under evidence law: the open standard in 6:233, preamble and subsection a, of the Dutch Civil Code entails an obligation of proof upon the party who invokes the voidability, in line with art. 150 of the Dutch Code of Civil Procedure; where the open standard is implemented in the 'grey' or the 'black' list, evidential comfort is created for the 'other party', the policyholder. After all, a condition on the 'black' list is naturally unreasonably onerous and is hence (also) voidable extrajudicially, and the policyholder - as a consumer - is subject 'only' to the obligation to furnish the facts and the burden of proving that a consumer contract exists, that the condition forms part of the standard terms and conditions and that, as such, it also falls within the 'black' list. A condition on the 'grey' list is presumed to be unreasonably onerous. Here too, the policyholder - if contradicted by the insurer - has 'only' to prove that the article is applicable. It is then the responsibility of the insurer, as the user of the conditions, to state and prove that, and on what grounds, the respective provision is not unreasonably onerous. Greater complexity arises from the evidence law obligation resulting from the second ground of protection, providing a reasonable opportunity to read the general terms and conditions. Legal practitioners are divided on the question of whether the burden of proof rests with the user or with the other party. I explain this divergence by the fact that the respective provision, art. 6:233, preamble and subsection b, of the Dutch Civil Code, is elaborated in a subsequent article, art. 6:234 of the Dutch Civil Code. In section 3.3.2 I give a reasoned argument as to why in my view the other party is responsible in principle for proving that an opportunity has been provided to read the terms and conditions. I do argue, however, that having regard to the nature of the proof to be provided, the position of the parties and the system of general terms and conditions, the courts should readily accommodate that party which in principle is responsible for providing the proof. Or by reversing the burden of proof or by 'accommodating' him in another way (by imposing an increased obligation to state reasons on the user who disputes the other party's position or by using the provisional evidence judgement). I also devote attention to the significance of included (standard) terms which are intended to give a judgement on the provision of an opportunity to read the terms and conditions. Finally, the question arises of who bears the burden of proof in the event that an insurer - in order to deter an appeal for annulment under 6:233, preamble subsection a or b - invokes the fact that a specific condition is a core condition (as a result of which section 6.5.3 of the Dutch Civil Code is not applicable). Both on the question of whether there is a core condition and on the question of whetherthat condition forms part of the contract (which is necessary in order to invoke it), the burden of proof in this matter rests with the insurer.

Chapter 4 deals with the disclosure requirement when entering into the insurance contract within the meaning of art. 7:928 of the Dutch Civil Code, or the doctrine of concealment. A general principle in the obligation to furnish facts and the burden of proof with regard to facts which constitute grounds for invoking non-compliance with the disclosure requirement is that this rests with the insurer. It is also his responsibility to state and prove that a new contract exists - if this is contradicted on a reasoned basis by the policyholder. After all, only in that case does the policyholder have a duty of disclosure. With regard to the four requirements which must be fulfilled in order to successfully invoke concealment, the evidence law obligations fall mainly on the insurer: it is his responsibility to state and if necessary prove that the knowledge, relevance and disclosure requirement has been met. More specifically according to the various requirements, it is the responsibility of the insurer - in the light of the knowledge requirement - is to prove to the insurer that the (prospective) policyholder has not disclosed, or has disclosed incorrectly, facts which he knew or should have known. Similarly with regard to the relevance requirement, as has already been stated, it is the responsibility of the insurer to provide proof. It is after all he who is pleading that the concealed fact is relevant and justifies invoking concealment. If a policyholder contradicts this - and disputes the relevance - the evidence law obligation is on the insurer. With regard to the (proof of) relevance, I have nevertheless pointed out that this principle does not alter the fact that in distributing the burden of proof the court must also (continue to) bear in mind the possibility or impossibility of providing proof: a departure from the basic rule such as the provisional evidence judgement, or, going further, a distribution in which the burden of proof is reversed according to criteria of reasonableness and fairness may in my opinion do justice in certain circumstances to the view that the risk of sustained uncertainty as to whether the undisclosed or incorrectly disclosed facts are relevant must lie with the person who has not been completely open with regard to those facts. Or, more specifically: reliance on art. 7:928 of the Dutch Civil Code must not founder on the grounds that the insurer cannot provide the proof of certain facts or circumstances as a result of concealment of those facts or circumstances. The third requirement which arises for insurers under evidence law is the disclosure requirement. The interpretation of this requirement - in cases in which a questionnaire is used in the establishment of the insurance contract - leaves wide scope for interpretation in the literature and jurisprudence: the disclosure requirement is in principle fulfilled by asking a certain question in the questionnaire. The policyholder can argue that a particular question is unclear and that such lack of clarity impedes disclosure. It is then the responsibility of the insurer to provide proof that the insurer knew or should have understood that certain facts fall (or should have fallen) within the formulation of the questions. On this point too, the insurer should be accommodated if theother party has placed him in an unreasonably onerous position with regard to providing proof. The (evidence law) interpretation of the disclosure requirement is different in those cases in which the contract has come into being without a questionnaire: then the insurer does not have the relative ease of referring to the questionnaire. He is required to state and if necessary prove that the policyholder has concealed facts and circumstances while he understood or should have understood that the insurer - as a reasonably acting insurer - would not have concluded the contract, or would not have done so under the same conditions, if the true state of affairs had been known. Only in the fourth requirement, the excusability requirement, does the obligation to provide proof rest with the policyholder. After all, the pol-icyholder's position is that the insurer has not exercised the utmost care in order to avoid concluding the insurance without knowledge of facts and circumstances which are of importance to him. In line with the wording of art. 7:928 paragraph 4 of the Dutch Civil Code and the basic rule of art. 150 of the Dutch Code of Civil Procedure, the policyholder must state and if necessary prove that the facts which he has not disclosed, or has not disclosed correctly, were already known or should have been known to the insurer, or that the insurer 'should have asked further questions'.

Once the concealment is established and the insurer invokes the (possible) legal consequences, it is conceivable that in certain circumstances (unless the concealment has been discovered only after the risk has materialised) the policyholder will put forward the defence that it is not (or is no longer) possible to invoke concealment. That may arise if the policyholder states and proves that the insurer was aware of the non-compliance with the disclosure requirement and despite the fact that the policyholder did not draw attention to it. If that is established, the insurer is not or is no longer free to invoke such non-compliance - having regard to the sanction referred to in art. 7:929 paragraph 1 of the Dutch Civil Code. With regard to the legal consequences of the insurance contract, a further principle that must apply is that it is the responsibility of the insurer to provide evidence of the two grounds which give him the right to terminate the contract, or which result in no payment being due to the policyholder, namely (a) intent on the part of the policyholder to mislead the insurer or (b) the situation in which the policyholder would not have concluded any insurance if he had been aware of the true state of affairs. After all, it is the insurer who invokes his right of termination, or who invokes the relevant provisions to release himself from his payment obligation. I shall deal first with the proof of intent to mislead (a). Whether in a specific case a policyholder had the intent of inducing the insurer to enter into a contract which he otherwise would not have concluded, or would not have concluded under the same conditions, can, if he does not acknowledge it himself, be demonstrated only on the basis of assumptions, drawing on the circumstances of the case. In practice, scarcely any heed is paid to the formation of assumptions and calls not to set the requirements for proving intent too high - so as not to make the intended protection of the insurer illusory. It remains to be seen whether it will be different under the current law. The intent takes ongreater significance in the sense that it is one of the (still only) two possible ways of terminating the contract or not being liable to pay out. But at the same time that means that the court will (have to) be aware that the insurer thus has a particular interest in invoking intent to mislead: after all, it is only then (and in the event that he would not have concluded the insurance at all if he had known the true state of affairs) that is he entitled, if the disclosure obligation is not complied with, to terminate the contract and deny the insured any right to payment. Similarly with regard to the proof in (b), in the event of significantly reasoned contradiction of his statement, the burden of proof rests with the insurer. The court will usually call in an expert to give a judgement on whether the facts in respect of which it subsequently emerges that the policyholder has not complied with his disclosure requirement would have dissuaded a reasonably acting insurer from entering into the concluded insurance.

If the two situations (a) and (b) do not arise, the policyholder is entitled to a payment. There is a full payment right if the undisclosed or incorrectly disclosed facts are of no significance for the assessment of the risk which has materialised ('causality principle') or, if causality does have to be accepted, on the basis of proportionality or 'difference in conditions'. In section 4.3.5 I have argued that, and why, in my judgement it is the responsibility of the policyholder to adduce a lack of causality. After all, it is the pol-icyholder who appeals for the payment to take place in full - despite the fact that concealment has been found to have occurred. Here too, the obvious solution is to rely ultimately on an expert's report. In addition to the 'intrinsic contradiction' with regard to the causality (which, as stated above, leads to an obligation on the policyholder to provide proof), the insurer can also argue that if and to the extent that there is causality, this can at most be a reason for settlement to take place on the basis of different amounts and/or different conditions (proportionality or 'difference in conditions'). In line with the substantive provision and in accordance with art. 150 of the Dutch Code of Civil Procedure, it is the insurer in this case who bears the burden of proving the facts or rights which he cites as a basis for limited payment.

The chapter then deals with the evidence law aspects relating to the moral risk attaching to the policyholder, the risk of his unreliability - a risk which the insurer can actually only gauge by inquiring into any past criminal convictions. In terms of evidence law, the policyholder's answer to such a question can play a role in several regards, first and foremost in situations where the policyholder has answered it 'in the affirmative' (the policyholder states that he has had past criminal convictions). For the insurer, this can constitute grounds for carrying out checks. He may also doubt the accuracy of a 'negative' answer (i.e. where the policyholder states that he has had no criminal convictions). The insurer, upon whom the obligation to provide proof of past criminal convictions rests - in order to further justify the position that he would not have concluded the contract, or not in this way -now finds himself in a difficult position because such proof will usually be difficult to obtain. The Judicial Data and Criminal Records Act and theJudicial Data Decree based upon it after all prevent him from requesting information independently. Precisely because of the privacy protection aspect of these rules, I argue that the insurer should only be accommodated in his furnishing of proof if he can adduce sufficiently weighty circumstances with regard to the existence of past criminal convictions. Only then, after all, could it be argued that the importance of accommodating the insurer in furnishing his proof would prevail over that of the right to protection of the policyholder's personal life.

Attention is also devoted to the evidence law aspects of the so-called awareness clause. By incorporating an awareness clause, the insurer states that on the points of which he has declared himself to be aware he will not or cannot invoke concealment. The burden of proof with regard to this aspect of the concealment rule also lies with the insurer. After all, it is his responsibility to state that, and why, contrary to the clause which applies in principle, he judges that in the given circumstances this clause does not prevent him invoking the concealment rule.

Finally, attention is turned to insurance for which the 'traditional' application form is not used. The principle in remote - electronic or otherwise -effecting of insurance contracts is that the insurer, particularly having regard to the serious consequences that invoking art. 7:928 of the Dutch Civil Code may have for the policyholder, has a duty of care vis-ä-vis the policyholder to avoid evidence-related disputes. That means he must be expected to be able to demonstrate which answer the prospective policy-holder has given to each question. Except in particular circumstances, this will usually be evident only from a written document signed by the policy-holder. Reference is made to the 'solution' also used in practice whereby the evidence problem is 'circumvented' by using an application form that is sent only after the insurance contract is concluded (i.e. with the confirmation of the cover). In the event that the precise information on the policy-holder's form entails an unacceptable risk for the insurer, or if it emerges (subsequently) that the customer has supplied incomplete and/or incorrect information to the insurer on the reply form and the insurer would not have been prepared to accept the customer had he known the true state of affairs, the insurer will terminate the contract. In my book I state that it is unclear to me what the legal grounds for such termination are if they do not lie within the concealment rule. After all, the latter concerns only the disclosure obligation prior to effecting the contract.

Chapter 5 then proceeds to review the obligations incumbent on the policy-holder and the insured when a risk becomes actualised. On the grounds of obligations incorporated in law and normally in the policy as well it is, at such time as when an event covered by the policy arises, for the policy-holder or the insurance claimant or the insured to take measures that may avoid or diminish the damage. In respect of the issue of the duty of mitigation, the relationships pertaining to evidence law render necessary the drawing of a broad distinction between two situations. One situation (a) iswhere the insured performed mitigation for which a request for compensation for costs has been submitted and the other situation (b) is one in which the insurer specifically claims that the insured ought to have taken measures such that he, the insurer, may lay claim to compensation arising from the failure to mitigate the damage suffered. As soon as an insured claims to have taken measures (as referred to under (a)), it is in principle for the latter to demonstrate that the requirements governing compensation for costs incurred have been complied with. The insured must make clear and, if necessary, supply evidence, that a risk could be said to have become actu-alised or imminent, that that risk justified exceptional measures to avoid or limit the damage, that those measures served to avoid the damage covered by the policy, and, finally, identifying the amount at which costs were linked to those (reasonable) measures and/or whether the insured had suffered damage arising from the materials used for mitigation purposes.

5.1.1.1 proceeds to develop the different elements. The 'other' position that can be taken is one in which the insurer claims that the insured should have taken measures and in which he, the insurer, asserts a claim (or counter-claim) for damage he has suffered as a result (situation b). In this situation (analysed under 5.1.1.2) it is for the insurer to assert and, where required, to provide proof that the policyholder or the insured failed to observe the duty of mitigation resting upon him and the extent to which he suffered damage thereby. In summary, it may be argued that the mitigation costs element must always be asserted and proved by the party relying on that claim, be that in the context of the insured's claim for compensation for costs linked to the measures he took or in the context of the insurer's claim for compensation for costs linked to the damage he suffered consequent upon the failure to observe the duty of mitigation.

As soon as the policyholder or insured becomes aware, or ought to become aware, of the risk having become actualised, there falls upon him a double obligation: to advise of that actualisation as soon as is reasonably possible (art. 7:941 paragraph 1 of the Dutch Civil Code) and to supply the insurer with information and documentation that are of importance for the latter to assess his duty to make payment. (art. 7:941 paragraph 2 of the Dutch Civil Code). The question (or preliminary question) of whether notification can be said to have been too late has, in brief, generally been resolved under case law by a review of the timing and a comparison thereof with the conditions of the policy. It is always for the insurer relying on the applicability of the condition to assert and to prove that the damage should have been reported, and the moment thereof. 5.2.1 features the considerations that need to be taken into account when assessing the timeliness of notification. Knowledge (or lack of knowledge) of the policy is a point worthy of special attention under evidence law when examining the question of whether notification can be said to have been too late. Can the failure to be aware of the existence of coverage under the policy serve to obstruct a plea of late notification? In line with the structure of title 7.17 of the Dutch Civil Code a claim made by the insurer based upon too late a notification is alwaysimplicitly bound up with the condition that the insured be aware of its existence. Only then can he proceed to notification. I would argue that the lack of awareness principle must be deemed a non-attributable breach ('I can't notify what I don't know') but also concede that caution needs to be exercised in this respect lest an insured, by merely relying upon non-awareness however well-grounded that may be, succeeds in frustrating compensation for the damage derived from late notification suffered by the insurer. I would argue that that breach (failure to notify or untimely notification) cannot initially be attributed to the obligee, if, 'for a reason that cannot be attributed to him' or 'for generally prevailing reasons would not normally come under the compass of his risk', he was unaware of the existence of the agreement. In this case it is the insured who runs the risk of having his evidence rejected. The point of departure is that it will always be the insurer who relies on the failure to observe these obligations and who - in order to obtain compensation for the damages he suffered, whether through setoff or otherwise - must assert, and in case of sufficiently grounded counterclaim advanced by the counter-party, must further prove that the failure to observe the said obligations prejudiced a reasonable interest of the insurer's. Contrarywise, it is for the insured to show that the prejudice can nevertheless be assessed (whether or not by means of an estimate.) 5.2.3.3 examines a connection (the assumption of which I believe to be erroneous) between paragraphs 3 and 4 art. 7:941 of the Dutch Civil Code. In brief, paragraph 3 supplies the grounds for the obligation to reimburse damage in such case where the body entitled to claim fails to observe the said duty of notification. In brief, paragraph 4 specifies that the sanction consisting of the expiry of the right to payment may only be successfully relied upon where the insurer has suffered prejudice to a reasonable interest. Where the insurer has negotiated a limitation of action clause of this type, paragraph 3 must be dismissed and only an assessment under the provisions of paragraph 4 is appropriate. The difference in approach is chiefly apparent in terms of evidence law: in the context of the provisions of paragraph 3 it falls on the insurer to assert and, where required, to prove the size of the damage that he wishes to apply to reduce the payment due to the insured. This differs from any reliance upon a contractual limitation of action clause: as already set out above, the insurer may content himself with an assertion (and where necessary, a proof) that he suffered prejudice to a reasonable interest. It is then specifically for the insured to show that the claim could nevertheless be assessed, in which case reliance may be placed on the limitation of action clause cannot succeed.

In conclusion, the consequences of misrepresentation may also sustain reliance upon a limitation of action clause. The applicable point of departure is then that, in the context of claims settlement, in principle any intentional misrepresentation justifies the forfeiture of any right to payment. Evidence law relevant to aspects of the arrangements are then reviewed as well as - in terms of penalty - the application or the exclusion set forth in art. 7:941 paragraph 5 ('the right to payment lapses ... except in so far assuch misrepresentation does not justify forfeiture of the right to payment'). In respect of evidence of intent, it is for the insurer to assert and to prove that the policyholder or the insured provided him with inaccurate information about damage that took place and did so with a view to obtaining any compensation, or an increased level of compensation, to which he would have not have been entitled were the true circumstances to be known. Given the interest the policyholder has in the coverage under the policy, the insurer may be expected to supply a rigorous analysis of whether misrepresentation can truly be said to have obtained, or whether this may simply be put down to clumsiness on the part of the insured. An illustration here would be the excusable error when completing a claim form or a misunderstanding in terms of terminology or opinions. The insurer may be expected to comply in large measure with his obligation to furnish facts, to subject to proper review the insured's point of view, to provide details of the investigation whether rigorous or otherwise, he carried out and, should such be present, make available the supporting evidence. It remains for the insured to respond in a sufficiently substantiated fashion, for intent is determined by a state of mind and is thus hard to prove. If an insurer claims that an insured intentionally supplied incorrect information related to processing a claim and the insured has failed to provide adequate rebuttal, intention is thereby established. A claim of intent does not require (or no longer requires) that prejudice to the insurer's interest be held to obtain. Finally we review the application of the exception set forth in art. 7:941 paragraph 5 ('except in so far as such misrepresentation does not justify forfeiture of the right to payment'. The evidence risk in respect of the question of whether general forfeiture is not justified lies with the insured: its exclusion was included to his benefit and it is thus for him to adduce facts and circumstances - as I set forth under 5.2.6.2 - that bear out the assessment that the misrepresentation does not justify forfeiture of the right to payment.

Chapter 6 is concerned with the analysis, or further analysis, of the notice of claim by the insurer and the latter's decision, initial or otherwise, about whether or not to grant coverage. After the notice of claim and the furnishing of data, whether initial or subsequent, an investigation initiated by the insurer often tends to be performed. Although, stricto sensu, it is within the insured's remit to assert and, where required, to prove that a risk has arisen against which the insurance grants coverage, the insurer is, in this initial phase, himself actively involved in determining whether such was actually the case. Considerations of evidentiary law only become germane after the insurer, partly based upon the expert's report, has taken a decision about the question, and, if the answer is positive, about the amount for which he will grant coverage and after the insured is unable to concur with the decision taken. In this phase the substantiation of the decision by the insurer plays an important part, as does the concomitant obligation falling on the insurer to make available, even without being asked, to the insured the factual findings set out in the report of any expert investigation that he mayhave commissioned. At the heart of the matter lie a pair of points about which the insurer must take a point of view. These are (a) the question about the coverage under the policy and, if such coverage obtains, (b), the question about determining the scale of the damage. The coverage question (a) further translates into a number of sub-questions, such as questions about the existence of the insurance contract, the actualisation of the risk, and any reliance the insurer may place on cover limitation or exclusion under the policy. The element linking these sub-questions is that the insurer may not reject a request for coverage in any of these cases except after proper investigation; and that it is incumbent upon the insurer to provide proper substantiation behind any rejection, whether partial or other. The consequences, whether under evidence law or otherwise, that rejection causes are reviewed in Chapter 7. In terms of question (b), that of the level of damage, the rule prevailing here is that the parties were in a position to foresee this matter when concluding the insurance contract, whether in terms of determining the value of the item prior to the event (prior valuation) or determining the scale of the damage after an insured risk had become actualised (post damage valuation).

If the insured item was valued when the insurance was concluded prior to the event and if the value so established was set out in the policy the evidentiary requirement to be supplied by the insured on this point is eased. Based upon the provisions in Article 157, Paragraph 2 of the Dutch Code of Civil Procedure, the specification of that value in the policy signed by the insurer acts as a private treaty, providing compelling evidence supporting the policyholder. The nature of the prior valuation specifically determines the limits within which the insurer may furnish evidence to the contrary pursuant to Article 151 paragraph 2 of the Dutch Code of Civil Procedure. It is argued under 6.3.1 that evidence to the contrary in the sense of the Article just referred to that rebuts 'party valuation', i.e. prior valuation by parties (no longer specified in law) is permissible. Based on the provisions in art. 7:960 of the Dutch Civil Code, the insured may not, pursuant to the insurance, receive compensation as a result of which he would find himself in a clearly more favourable position. The insurer relying on what is termed the indemnity principle for exemption, partial or otherwise, to dispense with his payment obligations must assert and prove this. As is argued in the same paragraph, the option of evidence to the contrary does not obtain in the case of prior expert valuation. Pursuant to art. 7:960 of the Dutch Civil Code (the second sentence thereof), an evaluation of this nature serves as irrefutable evidence of the value of the item prior to the event even where the insured might thereby find himself in a clearly more favourable position.

That the parties were already in a position to foresee the matter when concluding the contract also applies to the issue of determining the scale of the damage after the event. A clause of the type stating 'a valuation jointly performed by two experts one of whom has been appointed by the insured andthe other by the insurers will serve as the exclusive proof of the scale of the damage' is frequently met with. A series of judgments has qualified this clause as a settlement agreement designed to eliminate uncertainty or a dispute, with the consequence that the result pursuant to art. 7:902 of the Dutch Civil Code cannot be challenged on the grounds of conflict with the indemnity principle.

Chapter 7 reviews the obligations under evidence law about granting or not granting coverage from the insurer's standpoint. As from the moment that the insurer decides on rejection, albeit partial, there falls on the policy-holder/insured (if and to the extent the rejection is based thereon) the obligation to assert and, if necessary, to prove (i) that an insurance is in being, (ii) that an event for which in principle the insurance does offer coverage (albeit in the absence of certainty about such event taking place) did in fact take place and (iii) that damage was suffered and the amount thereof. If the insurer relies on an exclusion or limitation of cover that the insured does not accept, then the proof lies with the insurer.

The question of whether an insurance is 'in being' can be answered in several different ways and 7.1.1 reviews the nature of proof in respect of contract content. Put simply, two situations may be distinguished: the policy presents an overly restrictive or an overly generous reflection. Under evidence law, the position for the policyholder is, subject to circumstance, easy or easier given that the rule applying to him as policyholder is that the policy supplies compelling evidence of the truth of the declaration it contains. If the policyholder demands adherence to the contract for coverage issued under the policy, it is for the policyholder to assert that coverage by reference to the policy. It is then for the insurer to provide evidence to the contrary if he asserts that the coverage referred to was not agreed upon. This is unlike the situation where the policyholder asserts that the policy is overly restrictive, for example where a specific clause that extends the coverage was agreed upon but did not find its way into the policy. Pursuant to the general rule set out in Article 150 of the Dutch Code of Civil Procedure it is then for the policyholder to file proceedings and to prove that what was agreed on was more extensive or other in nature, such that the insurer is obliged to comply with that agreement. 7.1.2 reviews the obligations under evidence law in the case where the right of action derived from the insurance contract has been subsumed into a negotiable instrument (order or bearer policy). This out of the ordinary manifestation does not, of itself, carry with it any exceptional obligation for one of the parties: in both of the cases referred to, a claim needs to be asserted by the insured or the holder of the document respectively and possibly to be proved that an uncertain incident may be said to have arisen which incident is insured against and that the claimant, as a consequence thereof, has suffered prejudice to an insured interest of his. And - as with the 'conventional' policy - it is for the insurer to produce evidence should he reject a request for cover under the policy by relying on a reason for exclusion. At the close of this subparagraph attention is devoted to the consequences of problems attendant on order or bearer policies, i.e. the characteristic plea of relativity. A plea of this nature - such as reliance on non-disclosure - cannot be deployed as a counter argument against any third person holding the negotiable instrument, except in such case as where this defence was known to the acquirer of the policy at the time of transfer (and to the latter's successor in law) or could have been known to him from the policy, or the terms thereof, or from the insurance certificate. It is for the insurer to assert and, if necessary, to prove this exception to the protection applying to the third party possessing the negotiable instrument. 7.1.3 reviews a Parliamentary bill for private treaties in digital form.

7.2 examines in detail the proof of a risk whether insured or not, that has become actualised. Pursuant to Article 150 of the Dutch Code of Civil Procedure the insured must always assert that an incident covered under the insurance took place, the legal consequence of which is to engage the insurer's liability to compensation. 7.2.1 further shows that when assembling the elements the insured is required to assert under evidence law it is indispensable to differentiate according to 'coverage type'. The insurance granting coverage for damage irrespective of the cause that triggered it (what is termed all-risks coverage) constitutes here one end of the spectrum. The only proof required here is that the damage is the consequence of an uncertain incident. The policies restricting the coverage to the dangers set out in the conditions constitute the other end of the spectrum: in such cases there rests on the insured the burden of proof that one of these dangers arose and that the damage was a consequence thereof. Theft of an insured motor vehicle is certainly one of the dangers where, as a rule, it is not clear from the circumstances that the incident might have taken place. However proof of theft of a motor vehicle as a rule rarely leads to difficulties, precisely because, in the light of this lack of clarity, 'excessively rigorous standards may not be applied' to any such proof. It suffices to furnish the evidence of facts and/or circumstances that render sufficiently plausible the assertion of theft having taken place. Only where there are grounds for challenge would a 'comprehensive' proof be required. When examining a claim coming under insurance for valuables I would argue that - as with the category discussed previously, and similarly so as not to render the coverage illusory - the duty of furnishing proof of the facts deployed by the insured in support of a claim could be redirected to the insured only where a sufficiently well grounded challenge has been mounted. The extent to which such a sufficiently well grounded challenge can be said to obtain depends in part on the degree to which the insured has complied with his obligation to furnish facts. In this sense it is more trouble for the insured to prove that an accident is the insured cause of damage, given that in principle it is for the insured to assert the accident and all the elements participating in the definition of an accident and to prove this in the face of a well grounded challenge mounted by the insurer. The fact that, in the case of insurances of this type, this concerns matters of vital importto the insured does not authorise a different appropriation of the burden of proof. The rule prevailing here is also that the burden of proof will be reimposed once the facts and circumstances asserted by the insured justify scepticism as to the accuracy of the assertions made by the insured (such being also examined in a reciprocal relationship with the insurer's point of view). Under 7.2 (4) it is argued that a clear test performed in the 'prior' phase can, in my view, add balance to the difficult evidentiary situation a claimant may find himself in given that in the policy the vague difference between an accident and a cause of death or invalidity derived from an internal cause (brain haemorrhage) is embodied in the positive description set out in the coverage. An examination of the case, supplemented if need be by performing a post mortem serves to shed light on these issues and hence on the issue surrounding proof of suicide. The far-reaching significance of what is called the non liquet principle, or he who loses the issue in question if the matter is not cleared up, is further illustrated. The uncertainty element that is so characteristic of an insurance contract is then reviewed. Because, since the introduction of Title 7.17 of the Dutch Civil Code the notion of the 'uncertain incident' is no longer included in the legal description of the insurance contract the market has chosen to specify that uncertainty in the terms of the policy in an attempt to avoid debate over the scope of the risk covered. The form chosen, that of the definition, as a rule creates an obligation that falls on the party relying upon him (the insured). It remains the rule that the assertion of uncertainty is one that in practice is 'tolerated': that, when concluding the contract, uncertainty existed about the question of whether damage, material or other, might arise in the sense of that definition and that this, in fact, constitutes an element of the consistently underemphasised assertions that lie at the heart of any claim for compensation made by the insured. If, in rebuttal, the insurer argues that uncertainty cannot be held to obtain, the insurer is going beyond merely challenging the claim. The insurer is testing the validity of the contract and the insurer is obliged to supply the proof of his independent legal consequence ('no legally valid contract took effect'). The duty to supply proof and the concomitant risk of rebuttal lie again with the insured when the latter asserts an insured interest (in the face of a challenge from the insurer).

As can be seen from the foregoing, there still rests on the insured the duty of proving that an incident has taken place with consequences that, in principle, are covered by the insurance. In those cases where the insurer asserts facts that, according to his assertions, dispense him from his obligation to provide compensation for damage, it is for the insurer to prove those facts. A review is performed of the statutory exclusions (their nature and inherent defect), the exclusions at policy level and - in short, with a reference to chapter 10 - the guarantees.

Chapter 8 reviews the exceptional obligations when, under liability insurance, a risk becomes actualised. Because the 'conventional' obligations, such as that of mitigation, notification or the insured risk becoming actualised and that of furnishing information have already been examined in chapter 5, the main focus of attention in this chapter is that of the insured's duty under liability insurance: that of prohibiting the insured from admitting liability. Reliance on the Article regulating this prohibition (art. 7:953 of the Dutch Civil Code), 'only' comes in play in the mutual relationship between the liability insurer and the insured. Where the insurer relies on the insured's failure to observe his obligations so as to dispense him (the insurer) from his obligations to pay it falls on the insurer to assert and, where necessary, to prove that the insured admitted liability. Should the insured respond with the argument that, in his view, this could only be deemed an admission of the facts, that statement does not bring with it any obligations under evidence law. This only qualifies as a substantiated defence and, derived from the general rule set out in Article 150 of the Code of Civil Procedure it may not be deduced that the counter-party must prove facts that he asserts in order to substantiate his challenge of previously stated facts. It is then for the insurer to prove the admission of liability he asserted. As is argued under 8.1, this will not be different if, from the facts admitted by the insured, nothing bar liability can be deduced. In this way liability is not admitted (which would violate the duties set out under the policy) but the statement becomes one of limited scope. Where the admission of liability is established, whether or not after substantiated challenge and after the insurer supplied the proof, this does not necessarily bear on the issue of coverage. The first sentence of art. 7:953 of the Dutch Civil Code states that violation of a prohibition of admission, even where such prohibition does not incorporate that exception, is without consequence where that admission is correct.

In terms of evidence law this requirement means that, once it may be assumed that the prohibition on admitting liability has been violated, it is then for the insured to show and, where necessary, to prove that the admission was correct and that, pursuant to art. 7:953 of the Dutch Civil Code, the violation of the prohibition is without consequence. This allocation flows from substantive law that states that the party relying on the rule that an admission is without consequence by virtue of its accuracy must prove that accuracy. Finally only one section is devoted to the question of the nature of the legal consequences that the insurer (in terms of the coverage) may link to admission of liability in case the injured party should cause its claim to depend, fully or partly, on such a declaration. An issue of relevance in terms of evidence law in their reciprocal relationship to an injured third party is the situation in which an admission of liability, according to that third party's standpoint, is said to have been made orally, but where the insured asserts that he never made such a declaration (so aligning him with the insurer). It is then for the injured having lodged a claim against the insured to supply the relevant proof.

Chapter 9 describes considerations of evidentiary law relevant to the doctrine of circumstances imputable to the victim. The focus in this review isplaced on what is called 'manifest fault'. At first sight this may appear remarkable, given that the concept of manifest fault (which used to be the old version art. 294 (K)) has been withdrawn from statute. The current statutory exclusion of coverage in respect of fault imputable to the victim, art. 7:952of the Dutch Civil Code provides for the issue of damage caused with intent or recklessness. Nevertheless, the manifest fault concept retains its significance; on the one hand, because it provides for a right of transition where the policy fails to regulate this issue and, on the other hand, because many insurers at policy level (art. 7:952 of the Dutch Civil Code is the governing clause) continue to look for a link to the concept of manifest fault (a concept that has now attained some degree of legal maturity). After describing what needs to be understood under manifest fault, the chapter draws a distinction: manifest fault can always arise from certain forms of careless conduct or from arson. In terms of evidence law, the first category will as a rule lead to the least difficulties, given that the conduct needing to be assessed tends to be accepted as certain in the proceedings. However, in the second category, the proof of arson will often be the subject of dispute because the facts and circumstances playing a part in assessing the question of whether arson can be said to have prevailed often are by no means certain. Only a presumption of arson may obtain, with a lack of clarity about what actually happened. The notion of arson is above all predicated on intent, which is an internal psychic state shielded from observation by third parties. For this reason it can only be deemed imperatively certain where the insured admits to intent as his motive. This will rarely, if ever, be the case in practice. Finally, if reliance on arson is to succeed, the act of arson must have been committed by or on behalf of the insured himself.

The burden of proof rests on the insurer who, in order to dispense with his payment obligations, relies on a fire having arisen through manifest fault/intent on the part of the insured. In order to accommodate the insurer in his major difficulty of providing the proof, what is termed the principle of provisional assessment of proof is applied. The Court accommodates the insurer by accepting the latter's claim, unless counter evidence has been furnished, but in the background the risk of the evidence being rejected lies with the party having been accommodated. The rule pertaining to the counter-proof to be supplied by the party originally not obliged to supply proof is that the latter need only shed sufficient doubt on the assumed accuracy. On further examination of case law in this area, it is remarkable that the Courts, after having established that the burden of proof in principle lies on the insurer and after having set out (in the considerations behind the judgment) the reasons that permitted the Courts to base themselves on the insurer's assertions until the proof of the contrary was furnished, nevertheless 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. Asser, too, notes that in those cases where the issue is one of proof to the contrary where that proof to the contrary is at odds with statutory or case-law presumption, in practice the difference relative to a reversal in burden of proof is minimal. As is argued under 9.2.1, and in the light of the general rule allocating the burden of proof that the Supreme Court reconfirmed in 2001, insurance law allows no scope for a broader interpretation, regardless of what this may mean in a broader context. The proof of the insurer's assertion that the fire was started by the insured himself tends in general to follow these lines. Attention is then paid to the significance of the criminal verdict on the civil proceedings. Article 161 of the Dutch Code of Civil Procedure provides direction: a final criminal verdict no longer subject to appeal that is issued following adversarial proceedings and where a Dutch Criminal Court has ruled as proven that a person has performed an act provides compelling evidence of that fact. Because a party - based upon Article 151, section 1 - is 'simply' free to supply proof to the contrary to rebut that compelling proof, the insured is, under evidence law, the party obligated to produce evidence. Under 9.2.2 it is argued that, unlike the convention applicable to supplying proof to the contrary, it is defensible to claim that higher standards, or even significantly higher standards, may be held to prevail when proof to the contrary in rebuttal of an existing criminal verdict is offered.

In addition to the burden of proof applying to manifest fault or fault imputable to the victim, there also lies in principle on the insurer the duty of proving that the fire was so caused, in other words that a causal connection exists between what is to be qualified as conduct amounting to manifest fault on the part of the insured and the fire. 9.2.3 reviews the reasons why, in the context of applying the rule of reversal, there is no scope of applying this element within insurance law in the same way as this is regularly applied in the area of liability arising from attributable failure to perform and from wrongful act.

Finally attention is paid to liability insurance. This provides details of the development that, for insurers, has come to make it virtually impossible for liability insurers to discharge the burden of proof lying upon them in cases of intent. This development has led to the introduction of a new clause of intent that seeks to circumvent the evidentiary difficulty: on the one hand by no longer linking intent to consequence but to the conduct itself and, on the other hand, by (a) including under the term of intent of the individual insured party the intent on the part of the group (the 'second degree accomplice' is denied cover only because he did not himself or herself cause the damage with intent) and (b) the validity of the clause excluding intent is also extended to a situation where the insured, acting under the influence of alcohol, had lost the effective use of his faculties (the defence of having consumed so much alcohol that the 'insured no longer knew what he was doing' thus fails).

Chapter 10 deals with the doctrine of aggravation of risk. The current law contains no provisions whatsoever on the subject, and an insurer whowants the right to invoke aggravation of risk, or non-cover in the event of aggravation of risk, must incorporate an appropriate provision in the policy conditions. Before dealing with the methods used in practice, I nevertheless devote attention to the 'old' (lapsed) legal provisions: art. 293 K (old). Discussion of these provisions is relevant in that they remain in force - transitionally - for insurances concluded before the law came into effect. The chapter discusses the 'connection' with the doctrine of concealment. After all, the assessment of (facts concerning) the risk at issue and the insurer's decision on acceptance of that risk also plays a role in that doctrine, albeit when entering into the contract (and not, as in the case of aggravation of risk, during the term of the contract). The chapter then considers the 'elements' of art. 293 K (old) which are attributable to the insurer and must be proved if necessary: after all, the legal lapse of cover applies solely if (a) an insured building, (b) is exposed to greater fire risk, (c) as a result of a change of use, and (d) the insurer would not have insured the building, or would not have done so under the same conditions, if the higher risk had already existed before the insurance was effected. In terms of evidence law, the 'change of use' (c) merits particular attention, because even if there a change of use has occurred, particular circumstances may arise as a result of which the insurer is (nevertheless) no longer able to invoke art. 293 K (old). The aforementioned particular circumstances listed by the Supreme Court, on an enunciative basis, have (all three) a different perspective in evidence law. It seems to me, for example, that where there is sufficient scope for a causality defence, that can be put forward by the insured: in principle it is his responsibility to state and prove that the increased fire risk was not the cause of the risk which materialised. The situation is different in the case of the second particular circumstance which may impede an appeal to art. 293 K (old), namely the reversed change of use. On this point the principle remains that it is the responsibility of the insurer to state and prove that the use of the premises at the time of the insured event differs substantially from the insured use within the meaning of the stated article. If the insured - in response to the statement(s) by the insurer - relies on the fact that there was indeed aggravation of risk at some time, but that this was no longer the case when the risk materialised, this makes no difference to the burden of proof. It is and remains the insurer who, in order to release himself from his payment obligation, invokes the aggravation of risk and -in accordance with the basic rule of art. 150 of the Dutch Code of Civil Procedure - it is therefore his responsibility to prove the underlying facts or rights. The third particular circumstance which may impede an appeal to art. 293 K (old) is once again attributable to the insured: it is his responsibility to state and, in the event of a sufficiently reasoned challenge, to prove that the insurer, having taken note of the change of use, has continued the contract without amendment (and thus forfeited his right to invoke aggravation of risk).

The chapter then deals with the methods commonly used in practice as protection against the consequences of aggravation of risk in the policy conditions, namely (i) a risk-limiting description of the insured interest, (ii)imposition of a disclosure obligation on the policyholder, coupled with the insurer's right to revise the premium and/or conditions, and (iii) the provision of so-called preventive guarantees (risk-limiting conditions). The insurer who protects himself against aggravation of risk by describing the insured subject matter in greater detail (method i) and who relies on the fact that there is no such conformity (as a result of which he is not obliged to compensate for damage) must also state that and if necessary provide proof. After all, he is relying on this cover-limiting function of the risk description to release himself from his payment obligation. In my book I point out that the admissibility of reliance on this cover-limiting function requires 'more' than the fact that the description is no longer fulfilled (de facto). Another requirement is that the insured has or should have understood that the policy description means that a change in the nature or use of the subject matter insured would cause such cover to terminate. I argue - having regard to the fact the insurer, as the expert, may be expected to make clear (in the policy) where he sets the limits of the risk he wishes to cover - that the level of understanding of the insured should not be stretched too far, and it should not be assumed too readily that an effect of the policy description is that a change in the risk will cause the cover to end. The evidence law problem arising for the insurer concerning the insured's level of understanding is avoided if the insurer uses the second 'method' (ii). By stating explicitly in the policy which facts must be reported, it is also made clear to the insured which aspects of risk modification the insurer considers particularly important. The policy definition generally includes an obligation to report specified changes in particular (for example, change of use, lack of occupancy, and squatting), without the reporting obligation being linked to 'aggravation of risk'. This creates evidential comfort for the insurer: he then does not have to prove that there is aggravation of risk. Before being able to ascertain the consequences of non-compliance with the reporting obligation in the event of a change of use, it is necessary to assess whether any omission has been committed (by the insured). In the case of aggravation of risk, it is conceivable that the insured will put forward the defence that he did not know of the (described) change of use. In section 10.2.2 I show, by means of a discussion of various policy versions in existence, that the parties' evidence law obligations are determined (partly) by the (structure of the) policy clause used. In the discussion of the consequences of non-compliance with the disclosure obligation in the event of a change of risk, it becomes clear that with regard to the consequences there is no difference in terms of 'settlement' between those situations in which a sanction is specified for non-compliance and those in which no sanction is specified: even if no 'sanction' is specified for non-compliance, the undisclosed change of use will only have consequences if the associated changed risk would have led a reasonably acting insurer to decide that he would not have concluded the insurance, or would not have done so under the same conditions. Such equality does not apply with regard to the evidence law obligations. Where a clause is applied in which the sanction for non-compliance is specified (in my book I cite the example of the NBB 2006 provisionon this point), it is always the insurer who invokes the consequences of non-compliance with the insurance contract, and it is thus his responsibility to state (and if necessary to prove) that the conditions for invoking such consequences have been met. The situation is different in cases where the policy does not specify the sanction: then it is the responsibility of the insured to state and if necessary prove that the exceptional situation has arisen which impedes a complete lapse of the right to payment ('it cannot be assumed that a reasonable insurer would not have insured this change of use or would not have done so under the same conditions'). After all, only where a reasonably acting insurer would not have effected the insurance is it justified to invoke a complete lapse of cover. To conclude the protection methods on the policy level, I deal with the risk-limiting (preventive) guarantees (iii): an undertaking by the policyholder on any point on which the insurer has made his readiness to provide cover dependent. Whether there is a so-called guarantee depends partly on (the wording of) a clause and the sense which each of the parties may reasonably attribute to the clause in the given circumstances and on which they may reasonably base their expectations of each other. To the extent that, in that interpretation, the provision of proof has to be assigned to one of the parties, the principle is that it must be assigned to the insurer, who invokes the clause to release himself from his payment obligation. That applies equally to the proof of non-compliance with the obligations in the clause: in the event that the insured challenges the insurer's appeal on a reasoned basis, the insurer must prove that the obligation(s) has/have not been complied with. When it is established that a clause has an independent meaning in the sense of a 'guarantee' as referred to in this paragraph, the question of whether/in which case(s) the insurer could refuse compensation for the damage that has arisen by appealing to the respective clause plays a role. That is only possible if, as a result of non-compliance with those obligation(s), the guar-antee(s), there is a causal link between the damage that has arisen and the failure to comply with the obligation(s). A guarantee clause with an 'exception' is normally used: the insured is then given an opportunity to prove the lack of causality. Even if the agreed guarantee clause does not offer the insured an opportunity to prove that there is no causal link between the damage that has arisen and the failure to comply with the agreed obligations, the insured can nevertheless be permitted to provide such evidence. The rule therefore provides a good balance between on the one hand the interest of the insurer in not having to pay if the policyholder has not complied with the risk-limiting measure on which the insurer had made his readiness to provide cover dependent and on the other hand the interest of the policyholder/insured in not being confronted with an appeal by the insurer to refuse to pay out every time an agreed obligation is breached, even if this ultimately has not caused or increased the damage. If the non-compliance with the regulation may have been a cause or partial cause, the insurer may hold the policyholder or the insured to the policy condition. Uncertainty with regard to causality (example: the cause of a fire cannot be established) must then be held against the insured; it is not he who hasbreached the rule in the policy.

The final chapter of this book, chapter 11, deals with the evidence law aspects of the concurrence rule, i.e. the situation in which an interest is covered by multiple insurance policies. In its treatment a distinction is drawn between aspects which apply in the insured-insurer relationship and aspects which relate to the relationship between the insurers. The former relationship is characterised by the actual determination of the preliminary question of whether there is concurrency. Only if there is, can it be settled within the second relationship, that of the insurers themselves.

The principle within the first relationship (insured-insurer) is the 'free choice' given to the insured: in the event of concurrent insurance policies, claims may be made on any insurer. Set against that freedom, there is an obligation on the insured to provide the insurer on whom he claims, who may not bear the (entire) payment obligation, with information concerning possible concurrent insurance. If he fails to do so, the insurer may invoke the right of suspension, as specified in art. 7:961 paragraph 1, second sentence, of the Dutch Civil Code. In answering the question concerning the circumstances under which the insurer can invoke this type of suspension right, I draw a distinction between three situations. Only one case has evidence law implications. That is the situation in which the insured fulfils the information obligation ('there are no other insurances'), but the insurer casts doubt on that answer. Who then bears which obligations (under evidence law)? The answer is complicated in the sense that the counterparty of the party who uses the suspension right cannot demand compliance with the insurance contract by legal process. After all, the suspension right is not a 'deficiency in compliance' within the meaning of art. 6:74 of the Dutch Civil Code, but a means of defence by the debtor (the insurer), based on the counterparty's (the insured's) 'own' non-compliance with his obligations. This of course does not alter the fact that the insured who judges that the exercise of the power of suspension is unacceptable according to criteria of reasonableness, can bring the case before the court for judgement.

If the insured, as the plaintiff in the aforementioned procedure, states that he is entitled to performance by the insurer, because for his part he has complied fully with his obligations under the contract, the claim for compliance can nevertheless be 'incorporated' in that same procedure. The (un)accept-ability of the suspension appeal is thus the first issue, after which - if the liability and/or cover under the policy are in dispute between the parties -the claim for compliance must be assessed. In the procedure in which the suspension appeal is made, it is the insurer who must set out the position adopted and - in the event of a continued challenge by the insured - must also prove the existence of concurrent insurances. I do nevertheless argue that the aspect relating to the existence of other insurances should not be 'fought out' in the aforementioned procedure, at any rate if there is no indication that the insured has answered the question concerning other insurances against his better judgement. A situation should be avoided wherebyas a result of relying on the suspension right - despite the clear message of the system chosen in the law - all the policy provisions and any concurrency regimes must be included in the assessment. The legal principle is best served by the solution in which the insured's statement ('there is no other insurance') is assumed to be accurate and the insurer pays out. If it were to emerge subsequently that there was (after all) concurrent insurance, such non-compliance - in the event that, after paying out the full amount, the insurer who received the claim becomes aware of the fact and can no longer claim on the other insurances that have come to light - may lead to compensation for the damage resulting from such omission.

In the relationship between insurers - in the legal concurrency rule - it can be significant in terms of evidence law that the insurer who is seeking recourse finds a counterparty who judges (a) that he is not obliged to provide (additional) cover (in which case there is no concurrency) or (b) that he does not have to follow the decision of the insurer on whom the claim was made, and who is now seeking recourse, because his claim settlement arrangements cannot withstand testing against the standard applied by a reasonably acting insurer. In both cases it is the responsibility of the insurer who has not received a claim to state and if necessary to prove this.