Das Transparenzgebot im Hinblick auf die Überschussermittlung und -beteiligung in der Lebensversicherung

The article deals with the legal requirements of transparency as they apply to general terms and conditions in life insurance policies. The analysis focuses especially on the principles formulated recently by the German Federal Court of Justice (Bundesgerichtshof) concerning contract clauses in life insurance policies that affect the calculation and the share of generated surplus funds. The recent jurisprudence of the Federal Court of Justice raises some basic questions of legal obligations of insurers to keep their general terms and conditions plain and understandable. Of particular concern is the relationship between the precept of transparency and statutory duties of insurers to furnish information to their customers. The conclusion is drawn that it is the exclusive role of the latter to oblige insurers to inform the customers about their objective legal position. The precept of transparency, however, does not create a legal duty to inform which is independent from the individual insurance contract. Further conclusions relate to the general reach of duties to inform, their application vis-à-vis the calculation and the share of surplus funds, the legal consequences that exist in case of their breach and the implications this may have on the reform process of the German Insurance Contract Act (WG). The article ends with the presentation of ten theses recalling briefly the considerations made in the course of the article.