Article (in Estonian): M. Kratenko, O.-J. Luik, "Vastuolulise käitumise keeld kahjukindlustuses" (The prohibition of contradictory conduct in property insurance), Juridica 2023/2, pp. 139–147. Article page on Juridica (published 2023)
Co-author: Maksim Kratenko.
Research question
Can an insurer rely on a ground for release from performance where the policyholder breached a duty, for example by paying late or failing to notify an increase in risk, but the insurer knew of this and accepted it?
Main arguments
The general duty of good faith helps prevent such uncertainty but is abstract and needs refining in the insurance context, since restricting a right usually requires showing abuse. The article focuses on the insurer's inconsistent conduct or inaction in selected situations and compares how different legal systems protect policyholders through doctrines such as venire contra factum proprium, estoppel and waiver.
Relevance for insurers
Estonian law resolves several situations expressly: for example, the insurer cannot withdraw from the contract if it knew of the undisclosed circumstance or waived the right of withdrawal (Law of Obligations Act (võlaõigusseadus, VÕS) § 441(2)). Otherwise the question is whether reliance on the right would be unacceptable under the good faith principle in VÕS § 6. In practice, a pattern of accepting late premiums or tolerating a known risk change can undermine a later declinature. For common law readers, the functional equivalents are waiver and estoppel by conduct.