Infrasseguro e cláusula de rateiocritérios de aplicação no direito brasileiro

Resumo

This study examines the phenomenon of underinsurance and the application of the average clause in commercial property insurance contracts under Brazilian law, with particular emphasis on the tensions observed in case law and the changes introduced by Law No. 15,040/2024 (Insurance Contract Law – LCS). It starts from the premise that, although the clause is supported by a well-established technical foundation and more than two centuries of tradition in comparative law, playing a significant role in preserving the economic balance of insurance contracts and the principle of mutuality, its application has frequently been rejected by Brazilian courts. Such rejection is largely grounded in arguments related to the insurer’s duty to inform, the principle of objective good faith, and the application of consumer protection law. Adopting a dogmatic-analytical approach, combined with qualitative case law research conducted across all State Courts of Justice, the study examines the structural elements of underinsurance and the average clause, identifies decision-making patterns, and critically analyzes the reasoning employed to admit or deny its application. Based on this analysis, this study argues that the average clause cannot be applied automatically, nor can it be indiscriminately set aside. Its application must be guided by criteria relating to the nature of the contract, the structure of the coverage, and the fulfilment of the parties’ informational duties. With respect to large-risk insurance contracts, it is argued that, in the absence of vulnerability between the contracting parties and in light of their presumed parity, the insurer’s duty to inform should be calibrated accordingly, while a stricter standard should be imposed on the policyholder’s duty of disclosure. The study concludes that a proper understanding and application of the average clause in commercial property insurance contributes to the balance of the insurance contract, to premium-rate equivalence among insureds within the same risk pool, and to the stability of the insurance system.

Ficha do documento

Tipo

Dissertação

Ano

2026

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Acesso aberto

Identificador

oai:repositorio.fgv.br:10438/40510

Palavras-chave

Contrato de seguro de dano empresarialInfrasseguroCláusula de rateioDireito securitárioSeguros de grandes riscosLei do Contrato de SeguroCommercial property insurance contractUnderinsuranceCoinsurance clauseAverage clauseInsurance lawLarge-risk insurance contractInsurance Contract LawDireitoSeguros - LegislaçãoContratosClausulas (Direito)Garantia (Direito)