La imputabilidad del retraso en el pago de la prestación debida por el asegurador (art. 18 LCS). Las causas justificadas de la regla octava del art. 20 LCS. Análisis jurisprudencial

  1. Rojano García, Miguel
Supervised by:
  1. Manuel Jesús Díaz Gómez Director

Defence university: Universidad de Huelva

Fecha de defensa: 26 April 2022


Type: Thesis


This study is based on a legal issue as frequent as specific in commercial and procedural law: the delay in the payment of the insurance due by the insurer. Art. 18 of the Spanish Insurance Contract Act (LCS). This issue can be described as specific given that it is confined to a very particular area of law: insurance law, which belongs to the field of commercial law. At the same time, it can also be depicted as frequent because it deals with the controversial subject of assessing the damages caused as a consequence of this delay, which is a recurring problem —alone or accompanied by others— in any declaratory judgment and in any jurisdiction where there is a defendant insurance carrier sued for non-compliance, either in time or form, of its main obligation: to indemnify. This problem increases if we bear in mind the following elements: The urgency to cover the risk to which the insurance contract applies. According to the 1st Art. of the LCS, the purpose of the insurance contract is to indemnify, within the agreed limits, the damage suffered by the insured or to provide with resources, annuity or any other accorded benefits if the event that causes the covered risk eventually happens. (section 1. Art. 1 LCS). This must be accomplished immediately, in accordance with the deadlines established by the Art. 18 and 20 of the LCS. (Occasionally art. 38 LCS in the case of expert’s proceedings or art. 9 LRCSCVM in the case of this specialism). The reason for this celerity lies in the unexpected and precarious situation of uncertainty in which the victim is left. Thus, regardless of how the lessening of assets is manifested, (property or personal insurance) funds or work are required in order to restore the situation to the one existent before the catastrophe or to the ex-ante agreed in the contract. In second place, the systematic impact that insurance activity has on social and economic development must also be considered. Thus, one of the benefits of having insurance coverage is to minimize the fear of risk, which is considered to be a blockage in development. Thanks to these contracts, risk can be assumed by insurance carriers, which according to actuarial criteria, distribute risk’s negative burden in a way that it becomes bearable for the insured. Nevertheless, for this theory to work, legal relationships which shape the insurance system must be effective. That is to say to indemnify the insured to cover the damage immediately. Otherwise, the trust deposited in this private insurance company would be subsided. Furthermore, potential clients would not undertake commercial activities that may involve risk in fear of suffering financial damage that would not be compensated. Weighing up these two points, it can be thought that a rule which is likely to interfere with the rapid payment of the insurance (8th rule of Art. 20 LCS), might cause the insurance carrier to relax, thus compromising the nature and the purpose of the insurance service. For this reason, this current study, before analising the theoretical and technical bases of the legal system, focuses on observing and evaluating the level of discharging tolerance that Courts of Justice presents in the face of these problematic situations.