The Supreme Court Reinforces the Position of Land Carriers: Nullity of the ‘Due Diligence’ Clause
On 23 December 2025, the First Chamber of the Supreme Court issued a ruling of enormous significance for the road transport sector and for the contractual practices of insurance companies: STS No. 1945/2025 of 23 December 2025.
The subject of the legal dispute was to determine whether, in the event of theft of goods transported under a land transport insurance contract, the ‘due diligence clause’ (which must be considered restrictive) applies when said clause is not specifically highlighted in the policy, nor signed by the policyholder/insured party, but the insurance was taken out with the intervention of an insurance broker.
In the first instance and on appeal, the claim had been dismissed in favour of the insurer, but the Supreme Court overturned those decisions, concluding that the clause in question did not meet the formal validity requirements imposed by the Insurance Contract Act (LCS). Thus, the High Court declared the so-called ‘due vigilance’ clause, which had been used to reject compensation for the theft of the lorry and its goods, null and void. And we quote: ‘(…) since the clause invoked by the insurer to deny compensation was not expressly accepted and signed by the policyholder/insured party, it is null and void and unenforceable against the latter, pursuant to Article 3 of the Insurance Contract Act.’
The legal nature of the ‘due diligence’ clause:
The so-called ‘due diligence’ clause had become common practice in goods transport policies. In general terms, it imposed conditions on the insured such as:
- Park the vehicle in places with lighting or 24-hour private security.
- Keep the lorry locked and protected.
- Require the driver to sleep inside the vehicle when there are no other security systems in place.
Traditionally, insurers used this clause to exclude or limit coverage for theft, arguing that the incident had occurred in circumstances where these requirements were not met.
However, the Supreme Court has established doctrine by considering that this clause does not objectively define the insured risk but rather imposes additional obligations on the insured after the occurrence of the accident, which makes it a clause that limits rights and requires certain requirements to be applicable.
This jurisprudential approach connects directly with the analysis already carried out by our firm in a very enlightening article on the distinction between the types of clauses in transport insurance contracts, Transport Insurance: Limiting Clauses vs. Delimiting Clauses.
The key legal principle underlying the Supreme Court’s ruling is that clauses limiting rights are only valid if strict requirements are met. This requirement is set in Article 3 of the Insurance Contract Law, which states that both the general and specific conditions of the insurance policy must be drafted in a clear and precise manner, with particular emphasis on clauses limiting the rights of the insured, which must be specifically accepted in writing.
The well-deserved Supreme Court ruling of 23 December 2025 is based on Article 3 of the Insurance Contract Law. This is corroborated when it states that, as an expression of the principle of material transparency legally imposed for the better protection of the insured party, it conditions the validity of such limiting clauses on compliance with the requirements established in Article 3 of the Insurance Contract Law as follows:
- They must be highlighted in a special way. Any procedure that fulfils the objective of ensuring that the limiting clause does not go unnoticed by the insured party will be admissible, but it must allow the insured party to understand its meaning and scope, and to be able to differentiate it from clauses that are not of this nature.
- They must be specifically accepted in writing by the policyholder. The signature must appear not only on the general contract, but also on the specific conditions, which is the document where clauses limiting rights must normally appear.
- The broker’s intermediation does not equate to the personal will of the policyholder and cannot validate a clause that limits rights if the insured party has not expressly signed it. Therefore, the High Court has been categorical in stating that the insurance broker is not attributed a representative function of the insured party but is only conferred management functions.
Practical effects of the judgment:
This ruling not only has direct effects on the specific case but also establishes binding case law criteria that will influence future claims for similar incidents, especially in a context where thefts from lorries and goods have increased significantly.
The doctrine established by this ruling has significant consequences for both policyholders and insurance companies. This is because it increases contractual transparency by forcing insurers to review their policy models and provides greater legal certainty for carriers as policyholders protected under the Insurance Contract Law and its transparency standards.
