Abusive clauses: The dark side of insurance contracts

Cláusulas abusivas: el lado oscuro de los contratos de seguros

This article develops a detailed analysis of the dark side of insurance contracts, focusing on the so-called abusive clauses. As contracts of adhesion, the inclusion of abusive clauses has been recurring, distorting the good faith principle and generating a contractual imbalance to the detriment of the insured. This article intends to analyze how the contractual balance principle has evolved within the insurance field in Colombia, specifically focusing on the impact of abusive clauses. Through an in-depth study of regulations, jurisprudence, and doctrine, we have identified which elements are contained in these clauses, what arguments support them, and how they have been addressed by judges. Additionally, we examine the dominant position of insurers in the market and their influence on the spread of these unfair practices. Findings suggest that, despite regulatory advances, a contractual imbalance persists in insurance contracts, which requires greater consumer protection and a more rigorous interpretation of clauses by judges. This study was developed using accurate diagnostic instruments that facilitated the achievement of this research purposes. This descriptive investigative study was based on a solid and structured argumentation that helped understand the problem and its implications.