THE LIMITS OF CONTRACTUAL FREEDOM AND (DIS)RESPECT FOR RISK PROTECTION IN INSURANCE POLICIES

Abstract

The purpose of this article is to outline some considerations about the Judgment of the STJ of 01/24/2018, rendered in the records of Case No. 534/15.2T8VCT.G1.S1, in Portugal. The problem is related to the delimitation of liability operated by the limitation and exclusion clauses contained in the General Conditions and Special Conditions of the insurance contract policies at the time of contracting. Differentiating between the prohibited clauses and the clauses that aim to delimit the object of the contract is important because the verification of the clauses that intend to disallow or empty the guarantee of risk protection that the contract should guarantee, sounds like a measure aimed at ensure contractual balance. The study focuses on the principle of autonomy of will, but above all, on the materialization of the institute as a fundamental principle of Civil Law and on autonomy as an element of the concept of obligation. The aim is to demonstrate that the liability exclusion clauses cannot be substantiated in a lack of attention to the dynamics necessary for the proper functioning of the contractual relationship that is intended to be established, even if it is an adhesion contract, such as insurance policies.