OGH: On the right to withdraw from life insurance policies

Sept 29, 2021 Benn-Ibler Rechtsanwälte

The beginning of the period for the withdrawal from life insurance policies may be made dependent on the receipt of certain documents. These documents must be delivered at the latest with the policy and the policyholder must not have any doubts about the beginning of the period.

In the present case, the plaintiff, who lives in Austria, concluded a life insurance contract with the legal predecessor of the defendant and intended to terminate it before the end of the term. At the time of conclusion, the insurer provided "uniform" legal instructions for customers based in Germany and Austria. This contained terms from German law such as "consumer information (Verbraucherinformation)". According to this, the policyholder should be able to object to the contract within a fixed period after receiving the insurance policy, the policy conditions and the consumer information.

The Supreme Court (Oberster Gerichtshof, OGH) found that the term "consumer information" is not specifically defined in Austrian law, so that the policyholder could not have clarity as to whether and when he had received all the information. Therefore, according to the OGH, the withdrawal period was not triggered even if the "consumer information" was sent at the latest with the policy.

The Insurance Contract Act (Versicherungsvertragsgesetz, VersVG) only uses the term "withdrawal" for the declaration of termination of the contract without cause, but not "objection". The objection of the policyholder according to Section 5 VersVG (in case of deviation of the insurance policy from the application or the agreements made) is literally an "objection", but has no connection with the right of withdrawal according to Sec. 165a para 1 sent 1 VersVG (old version). By using a term that cannot be found in Austrian law in the present context, it is made difficult for the policyholder to inform himself about the applicable specific legal provisions and his rights. This leads to an unlimited right of withdrawal for the policyholder.

OGH 7 Ob 87/21a (23.06.2021)