التأمين كوسيلة من وسائل مواجهة الخطر
بن دخان, رتيبة
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In this research we tackled the insurance contract which is considered as an important method to face a risk. In fact, there are many other methods and means to face risks, and they are different according to the variety of types of risk and their circumstances. Since those methods are in a continual development and renewal, it is difficult to initiate a perfect method that can be applied on all cases without exception. However there is always a perfect method to face some risks, furthermore other secondary alternatives exist and can be used in order to achieve the perfect method; that to say one of these strategies, is the transfer of risk which includes the insurance. The principle of insurance is based on the protection of persons from material losses caused by the incidence of the insured risk, so the insurance depends on the principle of cooperation among a group vulnerable to the risk, by compensating the material losses suffered by some of them. Certainly the insurance company does not deal with a specific risk which has constant and invariable results, but instead it takes in consideration numerous and various risks, that are different according to their natures, causes, the circumstances which controls their degree of probability and the type and the rate of the loss caused by the related incidents. The risk has a deep influence on the insurance contract, either on the insurance companies, by unbalancing their insurance portfolio, considering that they do not deal with one risk as we said before, or affects directly the insurance contract itself, to be the main reason of its termination, thus a commitment is imposed on the insured in order to inform the insurer about the risk reasons, considering this commitment as the main practical method to keep him permanently informed of the risk reality all over the duration of the contract. The non respect of that commitment by the insured, either in the beginning of the contract or during its subscription, or along the duration of the insurance contract, exposes the insured to legal penalties provided by the Algerian legislator in the ordinance 95-07, which is either nullity or annulment, and this according to the case (good intention or bad intention). Consequently, we conclude that the risk and the commitment of informing the insurer about the reasons of its occurrence imposed on the insured, is important in the contract termination. At the same time, the insurer can also include a condition in the insurance contract enabling him to terminate the contact after the occurrence of the risk, and before the expiration of the contact duration, thanks to the implementation of the contractual liberty principle, by the existence of a legislative gap regarding this case.
- Doctorat droit privé