Civ.2e, January 21, 2021, appeal no. 19-13.347
Following a climatic disaster affecting its crops, an EARL (a type of French agricultural cooperative) contacted its insurer (bound by a "multi-peril crop" policy), who then invoked a clause of forfeiture of guarantee for late declaration of the disaster, arguing that the disaster had been visible months before it was declared.
Article L. 113-2 4° of the Insurance Code provides that the forfeiture of guarantee for late declaration must necessarily be stipulated, provide for a declaration period which cannot be less than 5 days, and that it can only be implemented if the insurer demonstrates that the delay in the declaration of the claim has caused it harm.
Having lost at first instance, the EARL argues on appeal that the clause in its contract is contrary to the Insurance Code, in that it provides for a period for declaring claims of 4 days, less than the floor of 5 days provided for by article L.113-2 4°.
Confirming the first instance decision, the Bourges Court of Appeal notes that the delay in the declaration did indeed cause harm to the insurer, whose experts could have advised the EARL in order to limit the loss, and implies that it matters little that the contractual declaration period is shorter than the legal period since both were disregarded.
The judgment of the Bourges Court of Appeal is overturned by the Court of Cassation with reference to Articles L. 113-2 4° and L. 111-2 of the Insurance Code , on the grounds that a forfeiture clause failing to comply with the minimum 5-day declaration period of Article L.113-2-4° is unenforceable against the insured.
