As I am sure the reader already knows the title of this capsule, and especially the word “warranty”, has nothing to do with the one offered by manufacturers or stores to consumers to respond for the defects of a product.
The guarantees or warranties to which we will refer on this occasion are clauses inserted in insurance and reinsurance contracts, which contain specific obligations on the conditions of the risk, which oblige the insured to its strict compliance, under penalty of compromising the coverage and payment of the indemnity.
The Colombian scholar Gustavo de Greiff Restrepo, in his essay Las Garantías en el Derecho de Seguros, citing the work Insurance Law by Robert E. Keaton, comments that Insurance Law de Robert E. Keaton, nos comenta que "...the institution of the warranty was born in English law as a jurisprudential creation attributed to Lord Mansfield when in 1756 he occupied the position of Chief Justice of the King's Court. [...] this stipulation constituted a warranty given by the insured to the insurer, the performance of which had to be strict, otherwise the insurer's obligation to pay the agreed indemnity would not arise.
Since the warranty was conceived as a condition, its breach simply resulted in the insurer's obligation not arising, or in other words, in the insured not having the right to demand payment of the agreed indemnity, but without nullity or rescission of the contract". (Emphasis added).
Unlike what happens in other countries in the field of insurance, in Panama this is not the case, and our code does not contain any rule in this respect. Notwithstanding the foregoing, and since in matters of contracting in our country there is contractual freedom in which the parties may freely agree whatever they wish, as long as they are not contrary to the law, morals and public order, and except for some other prohibitions that must be expressly stated in the law, warranties are perfectly viable and may be agreed upon (and in fact it is done with some frequency) in insurance policies.
Unlike a false or inaccurate statement in which the punishment of whoever commits it, for example, in an insurance application form, is punished with the nullity of the policy, in the case of the warranties it is not required that this (the nullity) be invoked and requested, because the mere fact of not complying with it (the warranty) inhibits the birth of the insurer's obligation to pay the indemnity. As an example, we would have the case of a policy in which the insured expressly agrees to maintain an alarm system in operation. This would be the warranty. If the alarm system is deactivated or does not work because it is damaged or disconnected or does not meet specifications or regulations and a burglary occurs, the insurer could deny the claim.
In summary, warranties in insurance and reinsurance contracts are essential to ensure transparency and fairness between the insurer and the insured. Complying with the established warranties not only protects the validity of the contract but also ensures that both parties clearly understand and accept the terms under which the risk is assumed. Failure to comply with these guarantees may have serious consequences in the payment or non-payment of the indemnities to which the insured may aspire and claim.
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