| Abstract: | The current fundamental reform of the German insurance law cannot and will not stop short of the law of insurance mediation. Up to now Sec. 43 to 48 Versicherungsvertragsgesetz (VVG = German Insurance Act) govern only one type of insurance intermediary known as insurance agent. The act only sets up rules to which extent the insurance agent has authority to bind the insurer. In the way the law is construed by the courts it differs in many aspects from the written law. Thus it is suggested to define the generic term ?insurance intermediary“ in the act as well as the subcategories ?insurance broker“ and ?insurance agent“, whereby the term ?insurance agent“ also includes the field staff employed by an insurer. In connection with the diffi-cult distinction between insurance brokers and insurance agents it remains questionable on which type of intermediary the rules regulating the relationship between agents and insurants and thereby protecting the potential customers should be applied accordingly. This controversial and in practice significant question should be explicitly decided by the legislator for reasons of legal certainty. In so far Sec. 43a of the Austrian Insurance Act could act as a model function. Regarding the insurance agents’ authority to receive (Empfangsvertretungsmacht des Versicherungsvertreters) for the insurer propositions exist to explicitly declare Sec. 43 No.l VVG, which grants the agent the authority to receive when accepting a contractual offer for the insurer, as mandatory. This suggestion would be in accordance with the current case law. Furthermore the wording of Sec. 43 No.l VVG should be altered so that the insurants’ pre-contractual risk-notifications, which the prevailing opinion already regards as being included, is explicitly mentioned. In principle Sec. 43 No.2 WG, which grants the agent the authority to receive notifications and representations for the duration of the insurance contract, should be declared as mandatory, too. Exempted should be the authority to receive for dispositions regarding the entitlements to benefits from (life) insurance contracts and the right to receive the insured sum. Sec. 44 WG, which strongly restricts the attribution of the agent’s knowledge to the insurer, is unconvincing, especially from a legal policy point of view. Therefore it is to be cancelled without substitution. Finally the legislator should refrain from codifying the customary liability based on the principles of reliance. |
