Türk Ticaret Kanunu’nun 1498. Maddesi Bağlamında Hayat Sigortalarında İtiraz Edilemezlik Hükümleri
İtiraz edilemezlik hükümleri, Türk Ticaret Kanunu’nun 1498. maddesinde olduğu gibi, bugün neredeyse tüm çağdaş ülkelerin sigorta kanunlarında yer verdiği düzenlemelerden birisidir. Bu hükümler, sigortalı ölüp sigorta bedelinin ödenmesi talep edildiğinde, sigortacının yıllar evvel sözleşmenin yapıldığı sırada gerçekleşen beyan yükümlülüğü ihlalleri nedeniyle sözleşmeden cayıp, sigorta bedelini ödemeyi reddedeceği düşüncesiyle hayat sigortası yaptırmaktan kaçınan topluma güven vermek üzere 19. yüzyılda İngiltere’de bizzat sigortacılar tarafından düzenlenmişti. Zira bu hükümlerle sigortacının sözleşmenin yapıldığı sırada gerçekleşen beyan yükümlülüğü ihlalleri nedeniyle sözleşmeyi geçersiz kılarak sigorta bedelini ödemekten kurtulma olanağı sözleşmenin yapıldığı andan itibaren başlayan ve adına itiraz süresi denilen bir süre için sınırlanır. Bu hükümlerin ikinci önemli işlevi ise sigortacıları, sigorta ettirenlerin beyanlarını itiraz süresi içinde kontrol etmeye teşvik etmesidir. Bu yönüyle, itiraz edilemezlik hükümleri, doktrinde hayat sigortaları alanındaki en temel düzenlemelerden birisi olarak görülürler. Bununla birlikte Türk kanun koyucusunun 1498. maddedeki düzenleme tarzı, itiraz edilemezlik hükümlerinin bahsi edilen iki işlevinin de zedelenmesine yol açmıştır. Çalışmada çağdaş ülkelerde, hayat sigortalarının temel kurumlardan birisi haline gelen ancak Türk sigorta hukukunda üzerinde çok durulmayan bu hükümlerin temel özellikleri ortaya konulmaya çalışıldığı gibi, Türk kanun koyucusunun 1498. maddedeki düzenlemesi de aynı zamanda Amerikan hukuku ile karşılaştırmalı olarak irdelenmeye çalışılmıştır
Incontestability Provisions in Life Insurance in the Context of Article 1498 of the Turkish Commercial Code
Incontestability provisions, like in Article 1498 of the Turkish Commercial Code, are one of the regulations included in the insurance laws of almost all modern countries. These provisions were designed by the insurers in England in the 19th century to assure the public who avoided taking out life insurance with the thought that when the insured died and the insurance amount was requested to be paid, insurers would rescind from contract and refuse to pay due to misrepresentations at time of the contract was made, years ago. Because of these provisions, the insurer’s ability to avoid paying the insurance amount by rescinding the contract due to misrepresentations is limited for a period called the contestability period, which starts from the moment the contract is made. The second important function of these provisions is to encourage insurers to check policyholders’ statements within contestability period.In this respect, incontestability provisions are seen as one of the most basic regulations in the field of life insurance in the doctrine. However, the regulation style of the Turkish legislator in Article 1498 has led to the damage of both mentioned functions of the incontestability provisions. In the study, we tried to reveal the basic features of these provisions, which have become one of the basic institutions of life insurance in modern countries, but which are not emphasized much in Turkish insurance law, and the regulation of the Turkish legislator in Article 1498 was also tried to be examined in comparison with American law.
Article 1498 of the Turkish Commercial Code (TCC) stipulates that the insurer can’t rescind the contract after five years have passed from the conclusion of the insurance contract, including renewals, due to the misrepresentations at the time the contract was made. In foreign literature, these provisions, which ensure the payment of the insurance amount written in the policy by preventing the insurer from exercising its rights against misrepresentation in application after a certain period of time has passed since the insurance contract is made, are called incontestability clauses. It is accepted that these provisions were first used in England in the 19th century to eliminate distrust in the insurance industry by insurers. However, today they have become mandatory provisions regulated directly by insurance laws. In Turkish law, a regulation in this content was included for the first time at the law level in Article 1498 of TCC No 6102. The main reason why incontestability clauses are mandatory rules and directly regulated by law is to protect the policyholder and the beneficiary.
The main function of these provisions is to assure the policyholder and beneficiaries that the insurance amount written in the policy will be paid after the contestability period expires. The second function of these provisions, which is as important as the first, is to encourage the insurer to check the policyholder’s statements within the contestability period. Incontestability clauses have historically emerged in the context of life insurance. Similarly, these are the provisions that are mostly regulated and discussed in the context of life insurance today. However, it is seen that such provisions are also regulated in the context of insurance contracts such as sickness, health, and accident insurance. As a matter of fact, in Turkish law, the issue is essentially regulated under Article 1498 regarding life insurance. However, via references in Articles 1510/2 and 1591/1, Article 1498 will also apply accident, disease, and health insurance contracts. It is seen that two opposing views are defended regarding whether incontestability provisions should also be applied to property insurance. In this respect, it should be remembered that the main reason why incontestability provisions are regulated by law as mandatory rules is the superior interest related to protecting the policyholder and beneficiaries, and the existence of this superior interest is also valid for the policyholder and the insured in property insurance. Article 1484/1 which is related to compulsory liability insurance regulated as a type of property insurance in the TCC is an incontestability provision because it is stated that even if the insurer is fully or partially relieved of his indemnity obligation towards the insured, his obligation will continue up to the amount of compulsory insurance for the injured party in the article.
In American law, two basic conditions are required for an insurance contract to become incontestable. The first of these is that the insurance premium has been paid, which is a condition directly mentioned in the relevant legal regulations. Article 1498 doesn’t include such a condition. However, in Turkish law, the insurer can always use its rights of rescission and termination of the contract in case of non-payment of premium, whether within or after the contestability period. The second condition of the incontestability provisions is that the contestability period has passed. In Turkish law, this period is determined as five years, which is longer than the period that is usually two years in the USA. However, similar to American law, the Turkish legislator has also regulated that renewals will be taken into account in the calculation of five years. On the other hand, Article 1498 does not include the condition, which is sought in American and even German law that the contestability period must be ended while the insured is alive, in other words, the risk must be occurred after the contestability period.
The main application area of incontestability provisions is the misrepresentations at the time the contract is made. Nevertheless, with Article 1499 of TCC, a separate incontestability regulation has been made regarding the misrepresentation during the continuation of the contract.
In the foreign literature, the two main exceptions that are considered to be outside the scope of application of incontestability provisions are intentional misrepresentations and misstatement of age. Similarly, the Turkish legislator has excluded intentional misrepresentations from the scope of application of Article 1498 and has made an age adjustment regulation in Article 1497 for cases where age is incorrectly declared. The provision of Article 1498, which states that the insurer can’t exercise its right of rescission against misrepresentations at the time the contract was made after the five-year contestability period has passed, is an incontestability regulation. Despite that, in the same regulation, the Turkish legislator gave the insurer the right to request the additional premium. If this request is not accepted, the insurer also has the right to pay a discounted insurance amount according to the ratio between the premium paid and the premium should must paid. Moreover, the insurer has the absolute right of rescission in cases where the increase in risk falls outside the insurance limits of the insurer. Thus, the assurance regarding the payment of the insurance amount provided by incontestability provisions to the policyholder and the beneficiaries has been circumvented by the legislator.
