The shortcomings of insurers and insurance intermediaries frequently attract the attention of magistrates; it is more rare that they devote themselves to repairing these shortcomings. Relieved from long discussions on the reality of the fault of the insurance professional, the Court of Cassation specifies the conditions of the birth of the damage suffered by the insured due to a lack of information during the acquisition of shares of FCP and the methods for evaluating the resulting loss of opportunity.
After having taken out several unit-of-account life insurance contracts, four people from the same family were offered by the bank, which operated as an intermediary, to modify the units of account. In 2005, they acquired shares in the “Alpha” mutual fund, before, three years later, the bank recommended that they liquidate them in full, which was done without redeeming the life insurance contracts by which the investments had been made. The investment and then the disinvestment operation hit the subscribers doubly: they first cashed in the losses resulting from the poor performance of the fund following the 2007 crisis; they then failed to make up for these losses when, from 2009, the value of the fund started to rise again. The underwriters sued the bank for the violation of the information and advice obligations.
The bank’s failure to acquire shares in the Alpha fund was barely mentioned in the litigation that followed. It was quickly learned that the bank had misjudged the classification of the fund and had presented clearly erroneous documents on the real nature of the investment. The subscribers were certainly not laymen, they were certainly not looking for an investment with guaranteed capital, but had shown their willingness to invest in a secure medium which was clearly not the Alpha fund. The bank’s failure to liquidate the fund’s units was not discussed at length either: “the fact that the Bank in July 2008 alerted its clients who held units of the Alpha fund to the growing trend of its volatility and its negative results, then for having invited them to withdraw from this fund, in a context of severe crisis and particularly worrying downward results, could not constitute a fault on its part, even if it was then experienced an increase that it had not anticipated ”(Paris, pole 5, Feb. 10, 2015, no. 2012/20920).
More delicate were the discussions around the existence and the estimate of the damage.
Existence of prejudice to the conclusion of the contract
The courtyard…
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