Contra proferentem
A rule of interpretation under which an ambiguous clause is read against the party that drafted it, in insurance almost always the insurer, turning every imprecision in an exclusion into a coverage risk.
The contra proferentem rule holds that, where the meaning of a clause is in doubt, the interpretation least favorable to the party that proposed it prevails. Insurance is its natural ground, because the contract is almost always drafted by the insurer and the insured adheres to it. French law enshrines it in two ways: the Civil Code, since the 2016 reform, provides that in case of doubt an adhesion contract is interpreted against the party that proposed it; the Consumer Code requires, in consumer contracts, the interpretation most favorable to the consumer. English and US law know the same rule, applied more or less vigorously depending on whether the insured is an individual or a large company advised by a broker, which may have negotiated the wording. For the underwriter, the consequence is clear: an exclusion excludes only what it states unambiguously. Twentieth-century war exclusions learned this facing state cyberattacks, which is why the market rewrote dedicated clauses rather than argue that the old ones already covered the case.
In the litigation arising from NotPetya, the New Jersey appellate court held in 2023 that the hostile or warlike action exclusion in Merck's policy, drafted for traditional war, did not extend to a non-military cyberattack: for failing to target the case clearly, the clause was read against the insurers, on a claim of about 1.4 billion dollars.
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