SWITZERLAND Law and Practice Contributed by: Peter Ch Hsu, Daniel Flühmann and Tiffany Ender, Bär & Karrer
The first three elements are generally considered to be the defining and essential elements of an insurance contract (essentialia negotii), while the last two are particularly relevant from a supervisory law perspec- tive. Form Requirements The insurance contract, in principle, does not need to comply with any particular form requirements to be valid, with some exceptions (eg, a third person whose life is covered under the life insurance has to agree to the insurance in writing before the insurance con- tract is concluded (Article 74 paragraph 1 ICA)). Nev- ertheless, the application for an insurance policy and acceptance by the insurance undertaking are usually in writing. In addition, the insurance undertaking must issue a policy to the insured stating the rights and duties of the parties (Article 11 paragraph 1 ICA) and at the insured’s request and against reimbursement, the insurance undertaking must provide a copy or transcript of the insured’s statements in the applica- tion, which were determining for the conclusion of the insurance contract (Article 11 paragraph 2 ICA). Mandatory Provisions A number of mandatory provisions (and provisions that are mandatory for the insurance undertaking only) in the ICA limit the freedom of content for insurance contracts (see Article 97 and 98 ICA). Furthermore, insurance-specific grounds for nullity (eg, the nullity of retroactive insurance if only the policyholder or the insured knew or should have known that the insured event had already occurred) (Article 10 paragraph 2 ICA), as well as general restrictions on the freedom of content (eg, Article 20 CO) apply. 6.5 Multiple Insured or Potential Beneficiaries Collective Insurance Contract A collective insurance contract is generally described as a legally uniform contract that insures several per- sons or several independent objects (Article 3 para- graph 3 and Articles 7, 31 and 95a ICA). It might be an indication of the existence of a collective insurance contract if, eg, the insured is not identical to the poli- cyholder. In principle, the same rules as for individual insurance contracts apply. However, there are certain provisions
in the law that are specific to collective insurance, inter alia, the following. Information duties If the collective insurance contract grants a direct entitlement to benefits to persons other than the poli- cyholder, the policyholder is under an obligation to inform the insured about: • the essential content of the agreement (needs to be determined on a case-by-case basis and is not identical with Article 3 paragraph 1 ICA); • any amendments; and • its termination, whereby the insurance undertaking has to provide the necessary information (Article 3 paragraph 3 ICA). Breach of the information duty If the information duty of the policyholder is only breached in respect of a part of the insured objects or persons, the insurance remains effective for the remaining part, provided that the insurance undertak- ing would have insured this part alone under the same conditions (Article 7 ICA). Requirements for entering into the insurance contract Some legal authors suggest that the requirement that the person whose life is covered by the life insurance has to agree in writing (Article 74 paragraph 1 ICA), is limited to individual life insurance and does not extend to collective life insurance. Insurance for the Benefit of Third Parties A policyholder may, in principle, appoint a third party as beneficiary without the consent of the insurance undertaking (Article 76 paragraph 1 ICA). Even if a third party is appointed as beneficiary, the policyhold- er may freely dispose of the entitlement; the right to revoke the appointment of the beneficiary only lapses if the policyholder has signed a written waiver of revo- cation in the policy and has handed the policy over to the beneficiary (Article 77 ICA). Unless the policy- holder disposes otherwise, the beneficiary obtains a separate claim against the insurance undertaking (Article 78 ICA). There are also specific provisions on the attachment of an insurance claim and the opening
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