Versicherungsvertragliche Anzeigepflicht und Garantiehaftung für culpa in contrahendo

To sanction the insurant’s obligation to disclose the risk-relevant circumstances by the insurer’s exemption from performance does not comply with the ordinary pattern of pre-contractual liability. Instead of making the insurant responsible for the consequences of his breach of duty, the German Insurance Act subjects him to a guarantee which is comparable to the one imposed by the German Civil Code in the case of initial impossibility. The insurant has to guarantee that the facts which he did not, or at least not entirely, disclose do not cause any obligation of the insurer. The structure of this sanction is equivalent to the insurer’s so-called liability of performance. But contrary to the latter it can be justified by the specific importance of the insurant’s pre-contractual obligation of disclosure.