The Supreme Court recently abandoned its long practice of limiting recourse to the Gini/Durlemann doctrine, first adopted in 1954. A derogation from existing practice or a modification of existing legislation was also necessary because the framework conditions had changed considerably with the introduction of many acts of risky liability; the existing legal practice or situation was no longer relevant and led to irrepressible differences in the Social Security Act, where insurers have a full right of appeal under Article 72(1) of the Law on Insurance Contracts. Since the doctrine that everyone is responsible for their own actions is enshrined in customary law, there are automatic rights of recourse, whether expressly specified or not. Claims must be deleted or modified by agreement. This is usually done in writing, for example.B. in a contract or condition. In 80 II 247 – and confirmed more recently in BGE 137 III 352 – the Gini/Durlemann doctrine put forward art. Article 51(2) of the Law on Obligations and Article 72 of the Law on Insurance Contracts provides that the insurer liable for damages under a contract shall not oppose other contractual liable persons or a party subject to liability independent of the debt; in the right of appeal. unless it caused the damage through gross negligence. According to this doctrine, there is also no solidarity in the local remedy, even if the insurer has taken measures against other insured persons of civil liability who have caused the damage resulting from an unlawful act. Remedies exist when one party induces another party to assume its legal obligations and responsibilities in a contract or something like that. It is the right to address the person in charge. From time to time, companies are faced with questions of the right of recourse in contracts, but what are the rights of recourse and what is their impact on your position on the liability of a product? Any attempt to restrict or eliminate rights of recourse is contrary to this equitable approach and generally involves a party attempting to gain an advantage by avoiding its common commitments or responsibilities and passing them on to another party by agreement.
In its pioneering decision (4A_602/2017) of 7 May 2018, the Supreme Court held that the applicant, as a private supplementary insurer, had a right of appeal against the civil liability insurer of the bus and coach company on the basis of Article 72(1) of the Law on Insurance Contracts. Since then, many convincing arguments have been put forward.. . . .