Fabian Alexander KunzDie Rechtsnatur versicherungsvertragsrechtlicher Obliegenheiten im Lichte des historischen und gegenwärtigen Theorienstreits

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The law of obligations (German “Obliegenheitenrecht”) plays a key role in the systematics of German insurance contract law. In addition to statutory obligations, such as disclosure and notification covered in §§ 19, 30, 31, 77 VVG, contractual obligations in the sense of § 28 VVG form the core of every insurance contract. However, since the legislator in 1908 introduced the concept of obligations in the VVG, there has been a debate how to classify these obligations within the general system of German civil law.

This book analyzes the dogmatic and methodological foundations of the main historic theories in literature on the legal nature of obligations as well as modern theoretical approaches that have developed since the reform of the VVG in 2008. The central object of this study is the question of whether the novel theoretical approaches substantiate substantial differences in results from a methodological point of view or whether they (only) serve to promote purely systematic understanding.

The history of the obligation system in German insurance contract law builds the basis of the following elaboration of substantial differences between behavior-controlling instruments of the insurer like contractual and statutory obligations or duties and to the description of the insured risk. In this context, special attention is paid to the institute of so-called "veiled obligations" (German “Institut der verhüllten Obliegenheit”), which is highly controversial in literature and jurisprudence. Finally, the author presents a definition of the term "obligation" (German “Obliegenheit”) and analyzes whether the statutory catalog of legal consequences in the VVG for contractual obligations is conclusive or whether it allows to apply further sanctions outside the VVG, such as claims for damages under §§ 241 (2), 280 (1) BGB.