Biennial prescription: the Court of Cassation finally sets limits in favor of insurers

Under the terms of article R.112-1 of the insurance code , insurance policies must recall in extenso the legal provisions relating to the prescription of actions deriving from the insurance contract, namely articles L.114-1 and L.114-2 of the same code establishing a two-year prescription.

This obligation has been refined by the Court of Cassation for several years in a way favorable to policyholders .

Indeed, on the one hand, the High Court considered that “ the ordinary causes of interruption of the limitation period ” referred to in the aforementioned article L.114-2 should be mentioned in the contract [1] .

On the other hand, it considered that the disrespect of these mentions was sanctioned, not only by the unenforceability against the insurer of the biennial prescription, but also of the prescription of common law [2] , leading the insured to a form of "imprescriptibility".

The Court of Cassation even tried to obtain the unconstitutionality of the two-year prescription, considered too short by a part of the doctrine, by referring to the Constitutional Council a priority question of constitutionality relating to the aforementioned article L.114-1[3].

The latter, however, did not give in to this current and validated the compliance of the biennial prescription with the Constitution [4] .

It is in this context that the Court of Cassation had to rule on the appeal of a company to which the insurer AXA had opposed the prescription to refuse to compensate for the thefts suffered by its insured.

The latter invoked in fact in the grounds of its appeal that the insurance policy did not mention the provisions of Article 2243 of the Civil Code according to which " the interruption is void if the plaintiff withdraws his request or allows the proceedings, or if his request is definitively rejected ".

However, in accordance with Article R.112-1 of the Insurance Code, AXA should have recalled the common law provisions of Article 2243 of the Civil Code, in particular so as not to mislead the insured.

The High Court, however, dismissed the appeal considering that the insurance contract is not required to recall the provisions of Article 2243 of the Civil Code.

Thus, she distinguishes:

• the causes of interruption of the ordinary and two-year prescription, which must be mentioned in the policy, in accordance with consistent case law on the matter (see above ); And
• the obstacles to the interruption of the limitation period (eg article 2243 cited above), which do not necessarily have to be mentioned in the policy.

This is a strict application of the law insofar as articles L.114-1 and L.114-2 of the insurance code do not concern themselves with obstacles to interruption, unlike the " causes ordinary interruptions ” which they expressly cite, which is why they do not necessarily have to be mentioned in the insurance policy.

In doing so, the Court of Cassation seems here to set welcome limits to the “imprescriptibility” hitherto defended by its case law.

[1] Cass. 2 ^nd civ., 18 April 2013, n°12-19.519 ; Cas. 2 ^nd civ., November 21, 2013, n°12-27.124

[2] Cass. 3 ^rd civ., March 21, 2019, n°17-28.021 ; Cas. 2 ^nd civ., November 24, 2022, n°21-17.327

[3] Cass. 2 ^nd civ., October 7, 2021, n°21-13.251

[4] cons. const., December 17, 2021, n°2021-957 DC