The Unfair Terms in the Insurance Contract: The path undertaken in order to consolidate its proper identification and interpretation in the Colombian legal system

Abstract

Under the categorization of the insurance contract as a standard form or type contract, an extensive legal analysis has been unleashed around the equilibrium and contractual imbalance, the negotiation dynamics and the economic position of each of the parties, due to its particular nature and development of mass marketing, being the context propitious for the insertion of the so-called ‘unfair terms’ or ‘abusive clauses’.

Motivated by this setting, the essay auscultates the elements that influence the identification and subsequent declaration of a clause as abusive, it explores as well its interpretation in the insurance contract in Colombia. The foregoing, under the understanding that current legislation and, in a large extent, the judges, have accepted a classic position on the dominant position held by the insurer, ignoring situations where it is precisely the opposing party who imposes conditions by their economic characteristics.

Consequently, to carry out the above-mentioned propositive examination, the authors make a brief historical review of the emergence of what has been considered abusive clauses around the world, as well as the description of the current regulatory framework on them in the Republic of Colombia. Subsequently, the text elucidates the evolution of the national jurisprudence towards the construction of the concept of abusive clauses, the criteria for identifying them and their scope in the courts’ pronouncements related to the insurance contract.