The threshold of perception in insurance contracts: aleatory risk, good faith and the delimitation of cover in claims-made policies

Abstract

This note examines Italian Supreme Court decision no. 29456 of 7 November 2025, concerning the operation of a professional liability insurance policy for medical malpractice drafted on a claims-made basis. The judgment gives autonomous relevance to the insured’s «perception» of the grounds of liability, as distinct from the mere receipt of a claim, and frames that assessment within Article 1892 of the Italian Civil Code and the principle of uberrima bona fides. Starting from this decision, the note investigates the relationship between the insured’s duty of disclosure, the aleatory function of the insurance contract and the delimitation of cover, questioning the extent to which the perception of a prior fact may affect the operation of the policy. In particular, the contribution addresses the risk that an excessively broad notion of perception may anticipate aleatory risk into the pre-contractual phase, thereby turning good faith into a duty to foresee the insured event. Against this background, the analysis seeks to identify a threshold of relevance for perception which is consistent with the proper representation of risk, the balance between premium and cover, and the need to prevent coverage gaps in claims-made policies.