On principle, misrepresentation can only be made if the assured misrepresents information in an answer to a question asked by the insurer before the parties enter into the insurance contract. The principle stems from FIC article L. 113-2 which put an overwhelming importance is given to the questions asked by the insurer (usually by way of a risk disclosure questionnaire) and the answers they elicit from the insured. FIC article L. 113-2 reads as follows: "The assured shall be obligated to: […] 2° truthfully answer questions put by the insurer, in particular, in the questionnaire whereby the insurer questions him at the time of entering into the contract on circumstances that enable the insurer to assess the risk that it covers."
In practice, application of the above principle leads to a legal regime in which virtually all information provided by the assured takes the form of answers to the insurer's questionnaire and the accuracy of any one statement is appreciated solely in light of the question it answers (Civ.1, 9 April 1991, RGAT 1991, p. 555; Civ.1, 17 March 1993, RGAT 1993 p.547, Note: R. Maurice).
It should be noted, however, that although the questionnaire is the main vehicle for the insurer's questions, they can also be communicated via other avenues – letter, email or even orally (J. Kullmann, Lamy Assurances 2011, No.278).
The possibility that "spontaneous" declarations made by the assured (i.e. not prompted by questions put forth by the insurer) might give rise to misrepresentation has only recently led to published case law emanating from the Cour de cassation. Tentatively, at first, with conflicting decisions (Crim. 28 September 1999 & Civ.1, 24 November 1999 RGDA 2000, p.55, Note: J. Kullmann) on "spontaneous" declarations made by the assured which consisted in signing a declaratory statement provided by the insurer, or a debated decision (Civ.2, 22 January 2009, RGDA 2009, p.99, Note: L. Mayaux) that found that the information contained in the policy but which had not been the object of any questions in a questionnaire had effectively been "spontaneously" disclosed by the assured and could not, as such, give rise to misrepresentation.
The real change was brought about by another 2009 decision in which no questionnaire had been issued and the information that formed the basis of the insurer's appreciation and consent to the insurance cover was exclusively provided via the assured's spontaneous declarations (through its broker) (Civ.2, 19 February 2009, RGDA 2009, p.473, Note: L. Mayaux). The assured's declaration contained a misrepresentation and the Cour de cassation found that the disclosure's spontaneous nature and the absence of any questionnaire did not prevent misrepresentation from being made, and the policy was found to have been null and void. In doing so, the Cour de cassation rendered a decision that enacted what many several commentators had written since the 1989 reform (J. Kullmann, Lamy Assurances 2011, No.286; Groutel, La réforme du Code des assurances, Resp. civ. et assur. 1990, chr. n°3 ), namely that there was no reason for the new regime instituted by the 31 December 1989 law to exclude the possibility of relying on information spontaneously provided by the assured when appreciating whether misrepresentation had taken place.