Critica della causa al servizio dell’adeguatezza in concreto del contratto. Il caso dell’assicurazione della responsabilità civile con copertura claims made

The essay analyses civil liability insurance contracts based on claims made and the tormented evolution of the related jurisprudence. The Author criticizes the position of the jurisprudence, especially with reference to the recent judgment of the Sezioni Unite no.22437 of 2018. Upon examination of the reasons given to support the validity of this type of contract, the Author comes to the conclusion that the latter should be considered void in both versions: pure and impure claims made. Indeed, the claims made agreement drives the related contract beyond the area of the indemnity function, placing it firmly in the context of contracts with speculative cause. The examination then widens to the reckless attempt of the Sezioni Unite to subordinate the validity of these contracts to a judgment of adequacy imbedded in the context of the judgment on the cause of the contractand destined, in case of negative outcome, to allow the judge to redetermine the content of the contract, using the remedy of partial nullity pursuant to Article 1419 of the civil code, in a rebalancing effort. The proposed solution is unacceptable both because it uses an instrument that is not suitable for these purposes, namely the cause of contract, and because it subverts the relationship between private autonomy and heteronomy as set out by the system of the civil code rules and special legislation.