An article by Björn Thorben M. Jöhnke, specialist lawyer for insurance law and partner at the law firm Jöhnke & Reichow Rechtsanwälte
A withdrawal from the insurance contract by the insurer must be considered in accordance with Section 19 Paragraph 2 of the Insurance Contract Act (VVG) if the policyholder breaches his obligation according to Section 19 Paragraph 1 VVG. Thereafter, until the policyholder submits his contractual declaration, he must provide the insurer with the dangerous circumstances known to him that are significant for the insurer's decision to conclude the contract with the agreed content and about which the insurer has asked in text form. If the insurer asks questions within the meaning of sentence 1 after the policyholder's contract declaration but before acceptance of the contract, the policyholder is also obliged to report this.
A breach of duty occurs if the policyholder does not disclose to him the dangerous circumstances that are significant for the insurer's decision to conclude the contract with the agreed content and which the insurer asked about in text form.
Exclusion of the right of withdrawal comes into consideration if the policyholder has not violated the obligation to report either intentionally or through gross negligence. There is also an exclusion if the insurer concluded the contract with knowledge of the circumstances in question. Furthermore, the insurer must have informed the policyholder in writing of the consequences of breaching the obligation to disclose. A one-month deadline applies to asserting the right of withdrawal. The deadline begins from the time the insurer becomes aware of the breach of duty to disclose.
Does the insurer have to give reasons for the withdrawal?
Since a lack of insurance coverage puts the policyholder in a particularly vulnerable situation, certain rules must also be observed here. The insurer must not only explain the withdrawal itself, but also the reasons within the one-month deadline for making a claim. For this purpose, it is sufficient if the insurer outlines the reasons for the withdrawal so that the policyholder is made clear about his misconduct. The reasons should be formulated clearly and concisely in order to avoid overwhelming the policyholder.
But what if the insurer adds further reasons in addition to the declared withdrawal and the reasons initially stated? According to Section 21 Paragraph 1 VVG, additional reasons for withdrawal are generally permitted, but only within the one-month period.
However, it is not clear when this period begins. The question arises as to whether the period begins to run when the first reason for withdrawal is known or at any time after the new reason for withdrawal is known. According to previous case law, a distinction must be made between two variants. If the insurer already knows the additional reason when declaring the withdrawal and stating the original reason, it can only postpone this within one month of becoming aware of the original reason. However, if he only becomes aware of a further reason for withdrawal after the deadline has expired, he can exercise his right of withdrawal with regard to this reason again.
