Contracts for Organised Tours within the Consumer Protection Law
Contracts for Organised Tours
(1) The following provisions shall apply to organised tours.
(2) For the purpose of these provisions, the following terms shall have the meanings as set out below:
1. organised tour: a combination, fixed in advance, of at least two of the following services, which is offered or arranged for an overall consideration:
c) other touristic services which are not just ancillary to transport and which constitute a significant part of the overall performance;
this condition shall also be deemed to have been met when individual services are charged separately but rendered within the scope of a single organised tour;
2. tour operator: a person who, on a non-occasional basis, arranges or offers in his own name to render travel services organised by him;
3. traveller: a person who enters into a contract or preliminary contract governing travel services; any other person on whose behalf such person enters into a contract; and any person to whom such person assigns his claims ("assignee").
(1) No agreement made to grant the tour operator the right to increase the consideration specified in the tour contract shall be valid as of the period commencing on or after the twentieth day before the agreed departure date. Otherwise, such an agreement – notwithstanding the general limits of admissibility of such a contractual provision – shall be admissible only if it similarly provides for a reduction in the price in the event that conditions for an increase have been agreed and if it includes precise particulars for calculating the new price, which may take into account solely changes in the transport cost (including, without limitation, fuel costs), in the charges for specified services (including, without limitation, landing charges, embarkation and disembarkation fees in ports and similar fees on airports) or in the exchange rates applicable for the organised tour.
(2) If the tour operator – to the extent that he is entitled to do so by statutory or contractual provisions – makes significant changes to essential components of the contract (including, without limitation, the price) prior to departure, the traveller shall have the choice of accepting the change or rescinding the contract without being obliged to pay a penalty or forfeit. The tour operator shall be obliged to promptly inform the traveller of the change and to instruct him of the choice open to him; the traveller shall be obliged to make his choice promptly.
(3) If the traveller is prevented from participating in the organised tour, he may assign the contractual relationship to another person provided that such person complies with all conditions for participation and the assignment is notified to the tour operator within a reasonable period prior to the date of departure. The assignor and assignee shall be jointly and severally liable for any outstanding consideration and for any extra charges which may have arisen in connection with the assignment.
(1) If the traveller rescinds the contract under § 31c (2) or if the tour operator cancels the tour prior to the agreed date of departure for any reason which is not the traveller’s fault, the traveller may, rather than requesting that the contract be wound up by the refunding of all payments made, demand its performance by participating in another organised tour of equivalent value, provided that the tour operator is able to render such performance. Alternatively, the tour operator may offer the traveller an organised tour of greater value at the same consideration; if the traveller chooses an organised tour of lesser value, the tour operator shall refund the difference between that value and the consideration for the performance originally agreed.
(2) In addition to the title under Para 1 above, the traveller shall be entitled to claim damages for non-performance, except when:
1. the organised tour was cancelled because the number of persons who had booked the organised tour did not come up to the minimum number required and the consumer was informed of the cancellation in writing within the time limit stipulated in the description of the organised tour, or
2. the organised tour was cancelled for reasons of force majeure, i.e. because of unusual and unforeseeable events which were beyond the control of the person pleading force majeure and the consequences of which could not have been avoided in spite of exercising proper care; however, this shall not include overbooking.
(1) If it is found after departure that a significant part of the contractually agreed performance is not or cannot be rendered, the tour operator shall, without charging extra, make reasonable arrangements so as to continue with the organised tour. If such arrangements cannot be made or if the traveller, for valid reasons, does not accept such arrangements, the tour operator shall, if necessary and without charging extra, provide for an equivalent mode to convey the traveller to the place of departure or to any other place agreed with the traveller. The tour operator shall furthermore be obliged to use his best efforts to assist the traveller in overcoming difficulties in the event of non-performance or imperfect performance of the contract.
(2) The traveller shall promptly notify any defect in the performance of the contract which he finds in the course of the tour to a representative of the tour operator, provided that he has been informed of the existence of such representative and that the representative can be contacted locally without any undue effort on the part of the traveller, and that the tour operator has informed the traveller in writing of such obligation, stating that omission of such notification, while not affecting the traveller’s warranty claims, may be deemed to be contributory negligence (§ 1304 of the Civil Code).
(3) If the tour operator has failed to render a substantial part of the contractually agreed performance for reasons within the tour operator’s control, the traveller shall be entitled to claim reasonable damages for his loss of holiday enjoyment. In calculating such damages, consideration shall specifically be given to the severity and duration of the defect, the degree of fault, the agreed purpose of the journey and the price paid for the journey.
(1) § 6 (1) 9 and § 9 shall also apply to contracts for organised tours which in other respects are not governed by Part One of this Act. The period of limitation pursuant to § 31e (3) may be reduced to one year provided that this has been agreed on a case-to-case basis.
(2) To the extent that any agreement deviates from §§ 31b through 31e to the disadvantage of the traveller, it shall be ineffective.