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Выдача займов под залог картин и скульптур XIX-XXI веков

Первый профессиональный сервис по выдаче займов под залог произведений искусства

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ART-insurance. Part 2
ARTinvestment.RU   10 июля 2007

With conventional insurance, property to its true value insurant states, confirming its documented (contracts and other documents on the property, paid bills, court decisions, opinions of experts / specialists, etc.)

Problems assessment

Insurance customary property to its true value of the insured states, confirming its documented (contracts and other documents on the property, paid bills, court decisions, opinions of experts /specialists, etc.). If necessary, be submitted photo. If the value of the property is not large, the insurers apply the simplified procedure: the information is verified by correspondence of the methodology. Predstrahovaya more thorough examination may be initiated by either party - for example, if the policyholder may indicate only the approximate cost of insurance or the insurer doubt the validity of the price. When the object of insurance is an expensive property, valuables, then predstrahovuyu examination conducted in almost all cases. It is carried out by experts insurer or independent appraisers.

The greatest difficulties arise with the assessment of specific objects of insurance, as the art of artistic or historical value (more difficult, and disputes arise, perhaps, in the evaluation of contemporary art), the demand and collection of religious objects, jewelry . Their price depends on many factors: the degree of preservation, the market situation at some point (and it is not predictable and changeable), the availability of an original signature, mark, mark, the creation of works for inclusion in a given period of creativity of the author, the legitimacy of origin and ownership of property , storage conditions, etc. A great role played by geographical location, qualification of experts, the authoritative views of those already under examination of the subject, and even the image itself part of the thing: the publication of information about the subject in the sound directory, participate in prestigious exhibitions.

Cultural values are divided into two groups: items withdrawn from circulation (museum exhibit), and things that are in circulation. In the first case, an assessment conducted in the museum experts, given the status of the subject in the world market, data directories, auction prices, the market conditions. Insurance collections exported abroad, to the insurers subject to special requirements: a high rating, a long experience in the insurance market risk fine arts, the existence of an insurance company specifically approved the terms of the types of insurance and insurance reserves, sufficient to cover the risks of the amount of insurance evaluation.

In the relatively simple situations, insurance items in circulation (eg, for insurance of antique furniture and old books), may conduct an assessment of the insurer itself, the service is usually free for the insured. In more complex cases, it is necessary to confirm the authenticity of things, so the evaluation is conducted by independent experts /specialists. They take as a market, and the auction price of the 1 . Sometimes the examination and evaluation of assigned prominent museum experts.

Predstrahovaya expertise is becoming a stumbling block for the conclusion of many contracts. It can be initiated by the insurer or the insured. But in the latter case, the insurance company may be reasonable doubt of the validity of the assessment. In turn, the client may receive the discontent due to the need to pay for the services of experts, which indicates the insurer, especially if he does not accept the existing certificate of authorization and prices, compiled by experts who are trusted by the client, and /or those whose opinion it meets queries. Insurers line up to blame the property owners, who are prone to overstatement of the value of its assets and customers dissatisfied with too low amount predstrahovoy assessment.

Especially great is the resentment, if works of art considered as holders of investment instruments. Art Market tesen, yet underestimated, and will then challenge, even if it is able, unpleasant «osadochek» in the history of the thing will remain a long time. There is also a category of citizens and organizations who have ventured to work with the insurance of their artistic value, and are hesitant to allow strangers to them the treasures of individuals. Such hesitation is caused by the owners of a variety of reasons. For example, «dark» past many collectible items, show reluctance of property ownership because of the fear of attracting the attention of criminals and the fiscal agencies (it is necessary to pay taxes). If the insurance company intransigence and insistence on the examination and the conclusion of a contract becomes impossible 2 .

When the insured is not the owner of

insurance for property insurance may not only owners but also other persons (legal and physical) that are responsible for safeguarding the property. For example, a person who values passed to the restoration, demonstration /display, transportation, commission on the sale and storage (galleries, museums, transport companies, pawn shops, etc.). Many of them enter into a contract of insurance liability and insurance of another person's property (for example, such a treaty is insured transportation organization or custodian of the values, it also pays the insurance premium and the beneficiary shall be appointed by the owner of the property, which is when the insured receives a cash refund) .

Consider the issue of insurance of cultural heritage sites are not owned by the example of galleries, antique shops and stores that take from citizens and organizations for things treaties committee.

These intermediaries typically do not insure each thing in isolation, the subject of insurance are all products that are in circulation. The treaties committee, which is an intermediary between the (commission) and citizen /organization (customer), as a rule, there is an indication of the reason the release of the obligations of the parties in the case of force majeure, which recognizes a fire, flood, earthquake or other natural disasters . If adopted by the Commission, the property will be damaged or die, for example, due to fire, the insurer, citing the provisions of the treaty commission may refuse to pay. The logic is simple: because the insured (who is also - middleman) of a treaty commission shall be exempt from the need to compensate for damages to his agent, then he does not bear the losses and the right to receive insurance payments does not arise. If the insurance payment will be made, the policyholder would unjust enrichment.

However, arbitral practice shows that in the event of a dispute about payment of the insurance decision can be rendered in favor of the insured. Thus, in the Regulation of FAS Volga-Vyatka district of 25 May 2007 number A43-3027/2006-39-83 a similar dispute has been found to be a reference to an insurer that point the contract committee, which exempts from liability store for the loss of client assets, followed in due to force majeure. The ordinance was pointed out that the evaluation of evidence of domestic payments for goods between counterparties contract commission went beyond the dispute over the payment of insurance compensation.

By the way, if the insured goods in circulation, that in the absence of special clauses in the contract and the rules of the insurance coverage extends to including the goods offered for display.

In assessing the many works of art in our country and abroad are very topical issue of their authenticity. Forgery, high quality and not very crowded art market. And to recognize the fakes do not always succeed, and some of them get to the auctions, the galleries and even museums. Insurers prefer to sign contracts to receive fresh detention technical expertise made for specific sites with a view to their identification.

It happens that the experts find it difficult to make a final conclusion about the authenticity of an object or the results of evaluations and studies are contradictory. Moreover, not all experts are properly qualified, and if the examination, evaluation carried out correctly, the expert /specialist (art historian, museum staff) the estate is not responsible: it is by issuing a certificate, the conclusion is actually only our reputation at risk. But a good name with this occupation is expensive, so the expert, who is not sure of the authenticity of a work of art or do not want to explicitly state in its opinion on the forgery, could unscrew and made the document so that the view can not be interpreted unambiguously. For example, since nothing meaningful information indicates that in the corner of the painting has a signature eminent master or on the product has some well-known hallmark. Can not compel the phrase may mislead the uninformed people who accept the conclusion that contains a streamlined language listing the obvious as a clear indication of the authenticity of things. In fact, in such documents no definitive conclusions to authenticate items.

In some cases, the owners of works of art themselves doubt their authenticity, and therefore refuse to provide any items for authorization and evaluation by requiring that the insured value is determined according to the documents already available to them 3 . There are contrary examples where the owners of rarities, transmitted from generation to generation, was disappointed to find out that the original was when it replaced forgery.

Preservation

Requirements for security are set very stringent. Showing the presence or absence of warning systems for fire and automatic fire, burglar alarms and perimetralnoy facilities, systems, television broadcasting and surveillance, access control, Panel protection, the use of radio communications for the protected object with a central remote control, etc. In addition, important and such factors as the effectiveness of security measures, reliability and modern signaling systems and equipment, the training of rapid response teams and officers of Technical Services, serving the organization, the possibility of urgent operational force and attract additional funds for emergencies on the protected object.

of insurance contracts and insurers require policyholders to create conditions that ensure the safety of the insured property. Otherwise, the insurer is not responsible and, therefore, compensation is paid.

Example

The owner of two jewelry stores and a jewelry salon has signed a contract of property insurance for 5 million rubles (objects were insurance jewelry made of precious metals and stones that are in stores and supermarkets).

In a statement written by the insured that the insured property is protected from 9.00 to 19.00 linear police department, and from 19.00 to 9.00 pm - PSB region. It also stated that the night-time jewelry store located in an area of 8 sq. km. m on the racks. In the insurance policy, it was noted that the insurer is not liable under the rules of property insurance of legal entities from fire and other hazards.

one night in one of the shops happened theft of jewelry on a large sum. This shop owner has notified the insurance company, but insurance is not waited. Could not get the money even after the arbitral tribunal. Judges, as well as representatives of the insurer, found that the grounds for payment are not available, and denied the claim.

As it was found jewels at the time of the theft were not on the racks in the store, but in a safe room commodity and shop windows. In addition, the notorious night of the PSB is not protected by a shop, because even the contract to protect the property during this period by the owner of the shop was not. Failure to comply with the terms of the contract and the insured change the location of the insured property during the hours of the day, when the theft occurred, the court viewed as gross negligence and failure to insured terms of the contract (a statement of insurance considered part of the contract).

Similar cases are not uncommon, however, the practice shows that the representatives of insurance companies are inclined to interpret the provisions of the obligation of the insured to ensure the property is very broad. For example, completing an application form, the client to answer all questions the insurer on how to access the property (windows and doors) and the availability of protective equipment on the premises (security, fire alarm). But the form does not separate the question of the presence or absence of protective grates on the windows. If the insurer does not ask for this information is optional - it is only his omission. If thieves enter through an insecure window grills, the insurer is not entitled to refuse to pay, citing the fact that the insurer has introduced its deceptive about the degree of risk (the insured is not obliged to provide information that the insurer did not request).

On the other hand, if the insured person knowingly reported false information on the circumstances, which are essential for determining the probability of occurrence and size of possible losses, he has a chance to mend: to remove these circumstances, even before the insured event - for example, replace worn-out signage and install window bars. Then the insurer can not require the recognition of the insurance contract null and void.

During the term of the contract the risk may change. And if, for example, planned construction or repair work near the premises in which the stored value, this must be zagodya notify the insurer, because such changes could significantly increase the degree of risk.

Insurers do not like to pay

Insurers go for some tricks to prevent the need to reduce the size of the payment or even withdraw from it. For example, an insurer may deny reimbursement to the lawful, if the losses arise from negligent or wrongful acts of the household of the insured (if the insured, such as home Collection) or the insured employees (the organization, an entrepreneur, a citizen). The contract or rules of insurance may be mentioned that the recoverable damages resulting from wrongful acts of third persons. And then gives a clarification: «in the event of theft, robbery, robbery». This means that if the property is lost or damaged as a result of fraud, it will not be a case of insurance.

The contract or rules of insurance may be mentioned, that are reimbursed only losses incurred in the intentional destruction of or damage to insured property and its parts. If the injury is caused by negligence (carelessness or levity), the insurer may declare that he was not responsible. But it is not legitimate. Higher courts have long been clearly defined its position on this issue: the condition of contracts (rules) property insurance on the denial of insurance reimbursement when the insured because of gross negligence of the insured or beneficiary is void as contrary to the Civil Code. Cases release the insurer from paying insurance for property insurance contracts with an insurance case due to gross negligence of the insured or beneficiary may be provided only by law (abz. 2, Clause 1, Article. 963 Civil Code).

After the occurrence of the insurance interests of the parties clearly indicated, when the determination of damages and insurance payments. The insurer is liable under the contract within the specified amount and an interest in reducing the insurance cost of damaged or lost items. Insured (beneficiaries), by contrast, are trying to prevent it from doing so. The insurance value of the property is set to conclude a treaty by agreement between the parties on the basis of the actual (real) value of insured items, at the time of contract formation, and can not exceed it. If this condition is violated, then the contract will be deemed null and void ... but not entirely, as the unscrupulous insurers are trying to convince the uninformed of their clients, but only in excess of the sum insured on the real property value.

As a general rule, the insured value of the property specified in the contract can not be subsequently challenged. The exceptions are cases where the insurer is not benefiting to the conclusion of the contract the right to assess the insured risk, was deliberately misled about the insurance cost. It is confusing to refer the insurance companies when benefits are denied.

fair to point out that insurers are trying to challenge the insurance cost. For example, after the insured event indicates allegedly admitted in an evaluation and contract technical errors in the determination of prices, improperly made an assessment, provide new findings of experts, etc. But even if the dispute will be subject to trial, then get through the big insurer, than due to a contract, the amount can not be, because the insured value and insurance amount (within the limits of which must be paid in compensation) have been established contract. In addition, Art. 421 Civil Code stipulates freedom of contract 4 , and the Law on the organization of insurance business in the implementation of property insurance amount can not exceed its actual cost (insurance cost) at the time of conclusion of insurance contract. Report appraiser or expert, non-attachments to the contract of insurance may not be admissible evidence in the case.

Another nostrum of all insurers who wish to fully or partially refuse to pay - trying to challenge the insurance cost, and accuse the insured in violation of procedures for harmonizing losses.

Example

Collection of property offered for sale and located in the premises of the specialized magazine, was insured against fire, theft (including burglary) and other risks. When the indoor shop theft occurred (was stolen and some objects from the collection), in accordance with the rules of insurance companies at the scene were summoned by police officers and are acts of inventory property. The next day, the insurer has received an application for an insurance case, which was previously determined by the value of stolen goods. This estimate is at variance with the data of the inventory and the primary accounting documents. But for such a discrepancy and utsepilsya insurer, justifying the denial of payment so that the value of stolen property has not been established. In doing so, he had not even asked for a complete list of stolen items from the collection. In addition, he pointed out that when the inventory is required to attend was his representative, although no such condition in the contract, or in the rules of insurance are not included.

True, the court rendered its decision on the exact amount of insurance compensation and interest for the use of other people's money. It was established that the rules of insurance and the contract had not been foreseen that the act is proof of the amount of inventory damage. The Court drew attention to the fact that the insurer, received a message on an insurance case, had the opportunity to conduct a survey of the place of theft, check availability and lack of values, but his right, he did not avail himself.

In conclusion, we note that the mass demand for insurance services in cultural property, works of art in Russia yet. Collectors rarely insure their treasures. In part because of reluctance to disclose the fact of ownership of property to pay taxes on property and income. In addition, document the legitimacy of origin of art, as it requires insurers, may not all owners. Increased needs of organizations and citizens in such insurance is expected no sooner than five to ten years. In many ways, this should facilitate the legalization of art collections and the wider practice of property as investment objects.

Elena Pokidova


1 A number of major players of Russian and foreign insurance markets (Lloyds of London, Marsh, « Ingosstrakh »,« Renaissance Insurance »,« RESO-Garantia »and others) are working with an expert company« Art Consulting »(its valuation of private collections of foreign experts have recently recognized the market re-Lloyd),« Rosexpertiza », specialists of leading Russian museums. Return

2 Fears insurer justified. There is a risk that counterfeiting will be confirmed this testimony, given at the examination, evaluation of the original. Such cases do occur. For example, artists from the northern capital a few years ago with the success of the original purchasers were given their copies of paintings that have passed examination. Return

3 While not reliably detected fraud, you can successfully put, resell one or another thing, giving it for real. Return

4 P. 4 provides that the contract terms are determined at the discretion of the parties, unless the relevant conditions prescribed by law or other legal acts. Return



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13/07
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