In general under German law, the insurer has a duty to request additional information if necessary to evaluate the insured risk. Otherwise he is - in principle - barred from rescinding the contract for misrepresentations of the insured. However, the court held that, contrary to the court of appeal's judgment, the insurer does not always lose his right to rescind if he does infringe his duty to request additional information. A request for additional information by the insurer is only necessary if there are serious indications that the information provided by the insured might be false or inconclusive. In the case at hand, the court ruled that the insurer might not have had such serious indications to ask whether the insured had asthma before, although the insured stated that he had neurodermatitis which might include asthma.

Federal Court of Justice

4th Senat for Civil Law

11 May 2011