The impact of legal regulation on freedom of contract in the field of insurance: A study in light of Algerian insurance laws

Abstract

The insurance contract represents a fertile ground for the erosion of the principle of freedom of contract, leaving room for legislative intervention to limit the powerful party's unilateral control in drafting and structuring the contract. This intervention also compels contracting parties to enter into specific types of insurance, forcing them to comply, such as liability insurance, which has become a necessity and a sophisticated method for compensating damages. Furthermore, contracting parties may lose their freedom to determine the contract's content, as in the case of mandatory car insurance, which is regulated in detail by the legislator. The legislator's intervention in the insurance contract aims to regulate the contract and define its content through direct legal means, specifically regarding the obligations and rights of the contracting parties. This minimizes the scope for contracting parties to impose their own conditions, thus preventing arbitrary terms and serving essential economic interests. In the modern era, the contract derives its enforceability from the law itself, and its content is increasingly governed by mandatory provisions. Based on the above, in this research we tried to address the role of the principle of the supremacy of will, and to identify the manifestations of the restrictions imposed on it, and we applied the treatment to the insurance contract in general, and in particular the limits of the legislator’s intervention in the content of the mandatory insurance contract for liability from vehicle accidents, with the aim of determining whether this insurance is a contract or a legal system.