The liability for negligence in the conclusion of the insurance contract is the liability of the policyholder and the insurer for the loss of the trust interests of the other party in the process of concluding the insurance contract. This kind of liability is civil in nature, and the scope of compensation needs to be determined. At present, the core of the scope of liability for contractual negligence is the loss of trust interests, but there are controversies in both academic and practical circles about the specific content of such losses. One view is that the loss of trust interests only refers to direct losses, while the other view is that the loss of trust interests includes direct losses and indirect losses, resulting in differences in judicial decisions, so it is necessary to unify the applicable law.
One
Loss of trust and consequential loss
Reliance interests, also known as negative interests, usually occur when the contract is not formed, not effective, invalid or revoked, and under special circumstances, although the contract is effective, one party can still claim the losses caused to itself due to the fault of the other party. The losses in the above concept necessarily include direct losses, such as reasonable expenses incurred in contacting the other party and visiting the site due to reliance on the other party's invitation or offer, reasonable expenses incurred in making various preparations for the conclusion of the contract, and reasonable expenses incurred for negotiations.
Indirect loss is a loss of opportunity and benefit, and the counterparty gives up the opportunity to sign a contract with another person because it believes that the contract will be formed and effective. It is a loss of interest that should have increased but not increased the property of the counterparty, so it is also a loss of interest that may be obtained in the future.
Indirect loss is the branch of loss of trust interest. From the perspective of the principle of good faith, the trust interest is evolved from the principle of good faith. The contractual negligence liability system is a specific guarantee for the realization of the principle of good faith, which requires the person responsible for contractual negligence to bear the liability for damages and compensate for the loss of the counterparty's trust interests, so as to urge all kinds of civil entities to act in good faith and abide by their commitments. Therefore, it is also the proper meaning of implementing the principle of good faith and protecting the interests of the counterparty to bear the liability of the person liable for the objective and reasonable indirect losses of the counterparty.
In disputes over liability for negligence in the conclusion of insurance contracts, it often happens that the indirect losses of the policyholder are far greater than the direct losses, that is, the loss of the opportunity and benefit of the policyholder to conclude an insurance contract with other insurers is greater than the loss caused by the negotiation and preparation of the contract between the policyholder and the insurer, and even in the case of Internet insurance, the policyholder and the insurer negotiate and prepare to conclude the contract without actually incurring costs. Under the above circumstances, if the consequential losses are not compensated, the insurer at fault will have the right to collect premiums without assuming any liability for compensation, which is not conducive to creating an honest and trustworthy insurance business environment.
Of course, there is also a difference between the loss of trust interest and the indirect loss. The loss of trust interest must be a definite loss, whereas there is uncertainty about indirect loss.
Two
Indirect losses are not unlimited
In a dispute over liability for negligence in the conclusion of an insurance contract, if compensation for indirect losses is allowed, there is a possibility of malicious collusion between the policyholder and a third party, and a huge amount of opportunity loss may be claimed. In order to prevent moral hazard and to prevent the spread of the scope of compensation, consequential losses should also be limited. In the author's opinion, the indirect loss in the loss of trust interest should have the following characteristics:
First of all, it is predictable. This is because the obtainable benefits are those that the parties expect to obtain through the performance of the contract at the time of the conclusion of the contract, but which have not actually occurred due to contractual negligence. The loss of interest is within the scope of foreseeability and expectation of the parties. Generally speaking, it is unknown whether the contract can be concluded and whether the transaction opportunity resulting from the conclusion of the contract can be finally realized at the transaction negotiation stage, so the transaction opportunity is not yet possible at this time. However, if the two parties have reached an agreement and signed a contract, the degree of mutual trust between the two parties has reached a higher level, and there is a considerable possibility that the counterparty will rely on the opportunity to perform the relevant obligations honestly and faithfully to obtain specific benefits. In this case, if the person responsible for the negligence of the contract fails to perform its obligations honestly and trustworthy, it should foresee that the counterparty will suffer losses as a result. Therefore, the foreseeability criterion should be limited to the fact that the person responsible for contractual negligence knew or should have known of the existence of the counterparty's opportunity costs.
Second, it is determinable. The indirect loss in the loss of trust interest can be converted into a specific monetary amount, which is a loss that can be clearly compensated. If the amount of loss cannot be determined or is difficult to determine, it should not be included in the scope of loss of trust interest, otherwise it is easy to generalize the loss of trust interest or indirect loss.
Again, it is compensable. If a party suffers losses to the other party due to its contractual negligence, that party shall be liable for damages to compensate the counterparty for the losses suffered by the counterparty. The main purpose of the law to establish the contractual negligence liability system is to maintain the security of transactions, make up for the losses suffered by the innocent parties due to the contractual negligence of the other party, and protect the legitimate rights and interests of the contracting parties. Therefore, the remedy for contractual negligence liability is only compensatory, not punitive.
In the end, it makes sense. In terms of the amount of loss, it should be reasonable. Consequential losses should be actual and reasonable losses caused by the negligence of the contracting parties. Among them, the actual loss is the loss actually incurred by the counterparty due to the contractual fault of the person responsible for the contractual negligence. The reasonable loss is generally limited to the benefit of contract performance, and the loss does not include the loss of inherent interests such as personal interests. In terms of the particularity of the insurance contract, it should also be reasonable. One of the important differences between an insurance contract and other contracts is that the contract itself points to the uncertain possibility of the future, and there is uncertainty as to whether the contractual obligor will perform the relevant obligations, but the indirect losses caused by the negligence of the contract cannot be excluded from the scope of compensation because of the uncertain nature of the contract itself. Therefore, including the indirect losses in the above circumstances into the scope of compensation for contractual negligence reflects the concept of substantive freedom and fairness and justice.
Three
Elements of limited consequential loss
The limited consequential loss in the liability for negligence in the insurance contract shall be judged by the following elements:
First, the opportunity for the counterparty to conclude a contract did exist, but now it has been lost. The opportunity to conclude a contract that existed in the past of the counterparty did not exist based on its subjective wishes, so it was not the unilateral will of the counterparty, but the mutual will of the counterparty and the third party, but no agreement was formed.
Second, the loss of the opportunity to conclude a contract is attributable to liability for contractual negligence in the breach of a pre-contractual obligation. Although liability for contractual negligence does not necessarily occur during the conclusion of the contract, the contractual fault for breach of pre-contractual obligations necessarily occurs at the stage of contracting, that is, the loss of opportunity to conclude the contract occurs only at the time of conclusion and cannot occur at other stages of the conclusion of the contract.
Third, the loss of the counterparty's opportunity to conclude a contract is based on the trust in the person responsible for the negligence of the contractor. If the counterparty is subjectively malicious, or knows that it will lose the opportunity to conclude a contract if it "concludes" with one party, it does not constitute liability for negligence in contracting because of the lack of trust and interest in the conclusion of the contract. However, if the counterparty is subjectively bona fide, even if there is a certain degree of fault, it does not affect the constitution of contractual negligence liability.
Fourth, there is a causal relationship between the loss of the counterparty's opportunity to conclude a contract and its trust in the person responsible for the negligence of the contractor. There should be a causal relationship between the loss of the opportunity to conclude a contract and the trust interest, and such causal relationship should be a legally equivalent causal relationship, rather than a necessary causal relationship.
Fifth, the opportunity loss of the counterparty is reasonable. This item has been discussed earlier and will not be repeated here.
Four
Comparison with the benefits of contract performance
Performance interest, also known as positive interest, is the benefit of the creditor in the performance of the contract, that is, the benefit suffered by the creditor when the debtor fails to perform its obligations. The performance interest is a positive interest, while the trust interest is a negative interest, and the two are not the same in nature and are independent concepts. Therefore, the scope of reliance interests cannot be determined by reference to contractual agreements. Moreover, judging from the actual situation, when compensation for contractual negligence occurs, many contracts have not yet been established, and many of those that have been established have not been performed, and some have not even met the conditions for achievement. However, due to the reasonableness standard of indirect loss, the loss of reliance interest generally does not exceed the benefit of contract performance. Therefore, after determining the loss of trust interest, it is also necessary to determine the performance interest to judge and compare whether the loss of trust interest is within a reasonable limit.
For the determination of the interest in contract performance, it is necessary to distinguish between different situations and standards. For the liability for negligence in contracting where the contract is not concluded, because the relevant contract has not been negotiated or no agreement has been reached in the end, the average benefit that can be expected when the actual performance of similar contracts is referred to should be used to make a judgment. For the liability for negligence in contracting a contract that has not taken effect, is invalid or revoked, because the relevant contract has been established but is not binding for various reasons, it can still be judged with reference to the expected benefits under the conclusion of the contract. With regard to the liability for negligence in contracting when a contract is in effect, since the relevant contract is established and takes effect, it shall be judged on the basis of the benefits that can be obtained under the normal performance of the contract.
It is also important to note that one of the important features that distinguishes insurance contracts from other contracts is that insurance contracts often stipulate exclusion clauses such as deductibles, deductibles, and exclusions. Whether these exemption clauses need to be considered when determining the interests of contract performance is also a controversial issue in trial practice. In this regard, it should be analyzed on a case-by-case basis. The premise that the above-mentioned indemnity clause is binding on the parties is that the statutory conditions are met, and in accordance with the provisions of Article 17 of the Insurance Law, the insurer has fulfilled the obligation to remind and clearly explain to the policyholder, so as to ensure that the policyholder can obtain comprehensive and sufficient relevant information, so that the policyholder can freely make a decision on whether to take out insurance.
Therefore, the relevant exclusion clause exists in both the "wrong type of insurance" and the "correct type of insurance", that is, in the case of the "overlap" of the two types of insurance, if the insurer has fulfilled the obligation of prompting and clearly explaining when the insurance contract involved in the "wrong type of insurance" is concluded, the policyholder is "aware" of this, and the relevant exclusion clause should be binding on the policyholder, and the exclusion clause should be considered when determining the benefits of contract performance. On the contrary, if the insurer and the policyholder have not negotiated and reached an agreement on the relevant exemption clauses, or the insurer has not fulfilled the obligation to prompt or clearly state, the above-mentioned exemption clauses shall not be binding on the policyholder, and the deduction of the deductible factor shall not be considered when determining the benefits of contract performance.