The Aggrieved Party Direct Claim Against The Insured According to the Emirati Civil Mohamed Al Marzooqi Lawyer Dubai Abu Dhabi UAE WhatsApp: +971555570005
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The Aggrieved Party Direct Claim Against The Insured According to the Emirati Civil Mohamed Al Marzooqi Lawyer Dubai Abu Dhabi UAE WhatsApp: +971555570005
The Aggrieved Party Direct Claim Against The Insured According to the Emirati Civil Law and As Amended
In the absolute legal logic, there is no direct relation between the aggrieved party and the Insurer, and the direct relation exists first of all between the aggrieved party and the Insured, and it is controlled by the claim of responsibility. It exists, second, between the Insured and the insurer and it is controlled by the insurance contract. The aggrieved party is not a party in the insurance contract to have a direct right against the insurer under this contract. The insurer is not a partner as well for the insured at work, source of liability, so that the aggrieved party may claim directly under claim of responsibility. The relation then between the aggrieved party and the insurer is indirect, and the aggrieved party does not know the insurer except through the insured. The aggrieved party can, undoubtedly, claim the insurer indirectly and can use right of the insured towards the insurer, then he can claim for due compensation from the insurer in the indirect claim, at limits of the insured value, but the indirect claim does not help the aggrieved party that much. If he uses it, the other creditors of the insured will claim for what is produced out of it, and the insured may be insolvent, and the aggrieved party may get a little portion of his due compensation through the indirect claim.
Therefore, the aggrieved party has to claim directly against the insurer for its due compensation from the insured at limits of the insured value. Thanks to this direct claim, he becomes secured from competition of the insured, and takes the full due compensation from the insurer which is usually generous, as long as the compensation is at limit of the insured value and this is justice. The insured right cannot be proven against the insurer except with the aggrieved party claim against the insured. The insured cannot take its right except through a price paid by the aggrieved party which is the harm affected him and caused liability of the insured. It is just then that the aggrieved party only takes the right which he paid its price independently, and claims directly against the insurer without competition from the other insured creditors.
Jurisprudence tried to find a ground for this direct claim. An opinion is that direct right of the aggrieved party is based on stipulation for benefit of others. The insured, at time of contracting with the insurer, should stipulate paying the insurance amount to the aggrieved party. This can be challenged that the insured usually contracts for its benefit not for benefit of the aggrieved party in order to get the insurance amount as compensation against the affecting harm because of its liability towards the aggrieved party. The insurer contracts as well for benefit of the insured not for benefit of the aggrieved party, and when liability realizes it means to compensate the insured not the aggrieved party against the affecting harm because of realized liability. Another team adopted Labih known doctrine, and proves right of franchising for the creditor against its debtor from the creditor’s debtor if this right is proved for the debtor in consideration of a benefit for the debtor from the creditor, as in sublease and the lessor direct claim against the sublessee, or in consideration of a charge endured by the creditor because of the debtor’s act as in insurance against liability and the aggrieved party direct claim against the insured. The majority support that Labih’s theory fits only as guidance for the legislator to follow its content and to enact its legislation in its light.
Therefore, there must be a provision that gives the aggrieved party a direct right against the insurer, and thanks to this provision the aggrieved party takes its direct right from the same illegal act which resulted in his right against the insured. The illegal act created a direct right for the aggrieved party against the insured under rules of responsibility, and at the same time created a direct right for the aggrieved party against the insurer under the supposed provision, and the aggrieved party has power over the insured’s right towards the insurer because of this direct relationship. This power does not exist because the insured authorizes the insurer for paying for the aggrieved party, as this authorization does not exist, and it does not exist because the aggrieved party has a franchising right on right of the insured against the insurer as the supposed provision does not create a franchising right but it establishes a direct claim.
This power exists because of freezing right of the insured at hands of the insurer so that the aggrieved party can take his right from it, and the nearest example is seizing what the debtor has at other parties, as if right of the insured becomes seized by law at hands of the insurer so that the aggrieved party can take his right without competition from any other creditor for the insured. This provision which establishes a direct claim for the aggrieved party was created in France at successive stages.
In Egypt, judiciary was denying this direct claim without a provision, then changed this position, and the aggrieved party has a direct right from the insurer without a need to a provision based on the theory of stipulation for others’ benefit. The insured meant with insuring upon its responsibility to guarantee full compensation for the aggrieved party to avoid sequences of this responsibility. Through contracting with the insurer, it gives the aggrieved party a direct right upon which it receives compensation from the insurer.
Attorney / Mohamed Al Marzooqi
Mohamed Al Marzooqi Advocates & Consultancy
Lawyer in Abu Dhabi, Dubai – UAE
