Calitatea procesuală activă a asiguratului în cazul acţiunii introduse împotriva asigurătorului, atunci când drepturile ce decurg din poliţa de asigurare au fost cesionate unui creditor bancar pentru a garanta obligaţia de restituire a creditului
The active standing of the insured in the case of the action brought against the insurer, when the rights deriving from the insurance policy have been assigned to a bank creditor in order to guarantee the obligation to repay the loan

Summary/Abstract: It should be noted, first of all, that the claimant has not lost the status of insured person, that status subsisting in his person, its place in the insurance contract not having been taken by the credit institution. Secondly, it should be noted that the claimant has submitted a claim for the insurer to be obliged to indemnify her, the claim being based on the insurance contract itself, formalized in the Fire and other calamities policy, whereby the insurer undertook to indemnify the claimant in the event of the occurrence of the insured risk. Thirdly, in the specific circumstances of the case, it must be borne in mind that the assignment of the claim by the insurer to the plaintiff has the function of a guarantee, which means that it produces effects subject to a double condition precedent, the first condition being that of the occurrence of the insured risk and the second condition being that of the non performance of the obligation guaranteed, namely repayment of the loan. In view of this function, the assignment of a receivable is imperfect, as it becomes perfect only if the assignor, the debtor under the credit agreement, fails to perform its obligations under the credit agreement. A mortgage creditor who is the assignee of a claim arising out of a contract of insurance of the mortgaged asset could not pursue the claim on the basis of the credit agreement in circumstances other than those in which he could pursue the mortgaged immovable property, namely, only in the event of the debtor's failure to perform his obligation to repay the loan.

• Details
• Contents