Unlawful Risk Insurance: Towards a Reinterpretation of Public Order in Light of the Protection of Innocent Victims and Freedom of Contract

The issue of insurance against unlawful risks raises a jurisprudential and judicial debate between two opposing trends: the first considers coverage of these risks invalid due to their impact on public order or morals, while the second—which this research analyzes—calls for the possibility of covering these risks in specific circumstances, based on contractual considerations in accordance with the principle that the contract is the law of the contracting parties, and based on the obligation to compensate the harmed third party—the victim—who has no connection to the unlawful act. In this context, our research highlights that contractual considerations can justify coverage of some unlawful risks, provided that the goal is to achieve a legitimate interest that does not conflict with the fundamental principles of public order. This view has found resonance in some comparative judicial applications, particularly in France and the United States. It also aims to demonstrate the legitimacy of this approach, which prioritizes the achievement of insurance justice by ensuring that victims fully obtain their rights, even if the source of the harm is an unlawful risk. This research also seeks to demonstrate that absolute adherence to the prohibition of coverage for these risks may lead to unfair consequences for others, especially in cases where the victim cannot avoid the harm, which justifies the intervention of insurance companies to bear the burden of compensation.