NEWSLETTER-2019-metin

375 MISCELLANEOUS Rights of the Insurer in case of Breaching the Obligation of Declaration The rights granted to the insurer and the sanctions that may be im- posed by the insurer in case the insurant acts in contradiction with the pre-contractual obligation of declaration differ according to the stage at which the insurer learns the breach of the obligation of declaration. Learning the Breach before the Risk Occurs If the insurant’s act in breach of obligation of declaration is learned by the insurer before the risk occurs, the insurer may withdraw from the contract within 15 days from the date of learning the breach or request a premium difference. In order to exercise these rights granted to the insurer, it is not necessary that the insurant and other related persons have fault in breaching the declaration obligation. In other words, even if the obligation of declaration has been violated without the insurant’s fault, the insurer may withdraw from the contract or request a premium difference. However, the insurer cannot withdraw from the contract, claiming a breach of the obligation of declaration, if the insurer is already aware of the situation that the insurant does not report or misrepresent. This is because the idea underlying the obliga- tion of declaration is to ensure that the insurer is informed in order to reach a conclusion about the risk. The substantial point is to reach the necessary information, no matter how the information is obtained. Therefore, even if the insurant did not report it, if the insurer acquired the information that could affect its decision, the objective has been achieved. For this reason, it is no longer possible for the insurer to rely on a breach of the obligation of declaration 4 . If the insurer uses his / her right of withdrawal, the premiums paid by the insurant must also be recovered since the insurance contract will retroactively terminate. However, if the insurant has deliberately violated the obligation to declare while the insurance contract is being established, the insurer shall be entitled to premiums for the period in which the risk is carried 5 . In some cases, the legislator has deactivated the right of withdrawal that granted to the insurer. The insurer may not 4 Article 1438 of the TCC. 5 Article 1441 of the TCC.