Lack of travel
A trip deficiency is the right to travel is a lack , in which one in a travel or transport contract promised travel services either not, incomplete or different from the contractual terms of reference was provided.
General
The tourism in Germany is an important economic sector , which especially in the sector of mass tourism in vacation packages can lead to travel defects. These defects can occur before the start of the trip or during the trip. Even before the start of the trip, there may be organizational deficiencies caused by the tour operator or third parties, for example in the overbooking of aircraft or hotels . Defects such as inadequate hotel rooms or the cancellation of booked travel services (such as excursions ) can occur during the trip . The travel shortage is a specific legal term in the travel law that has been newly regulated since July 2018, which deals with travel shortages exclusively in package travel contracts. A travel deficiency exists if the actual quality of the travel services deviates from that which the contracting parties agreed upon or jointly assumed , even tacitly , when the contract was concluded , and the benefits of the trip for the traveler are impaired as a result. The new travel law based on the EU Package Travel Directive does not apply to all trips that are not considered to be package tours.
Legal issues
The central regulation is § 651i Abs. 2 BGB , according to which (in reverse to the regulation) there is a travel deficiency if the package tour does not have the agreed quality or if the tour operator does not provide travel services ( non-fulfillment ) or with an unreasonable delay . Travel defects are therefore not present when the package for after the travel contract presupposed benefit is or if it is fit for the ordinary benefits and has a texture that is common in vacation packages of the same type and which expect the traveler on the type of package tour can. The traveler must immediately notify the tour operator of any deficiency in the trip ( Section 651o BGB).
The general disruptions in performance such as impossibility , delay or breach of secondary obligations (§ § 280 ff. BGB, § 323 ff. BGB) are suppressed and replaced by the special guarantee provisions of travel law. To set overbooking (air, hotel) no initial objective impossibility to § 275 para. 1 BGB, but are a travel defect according to § 651i para. 2 BGB. Violations of the duty of care or custody ( safety duties ), the information obligations or the organization are travel defects if these breaches of duty affect the benefits of travel. Typical travel deficiencies (see Frankfurt table ) are transport deficiencies ( delay , accident or failure of buses, flights, ships), deficiencies in accommodation (hotel category, room quality, facilities) or deficiencies in excursions (failure, accident or delay). On the other hand, mere inconveniences that do not affect the benefit of the trip are to be accepted and not a lack of travel such as the one-hour wait for the bus transfer to the hotel (see Kempten travel deficiency table ). The threshold for lack of travel is only reached if the flight is delayed for four hours. The tour operator bears the price risk (i.e. the risk of not receiving the agreed travel price ) even if the success of the trip is thwarted by circumstances that cannot be attributed to him or the traveler.
This includes events that can be assigned to force majeure . Risks that cannot be influenced by the tour operator (such as tropical storms , civil war ) are also a lack of travel because the tour operator is liable regardless of fault (Section 651i, Paragraph 1 BGB). According to § 651H para. 1 and 3 BGB the traveler or the tour operator before departure at any time from the contract without compensation withdraw if unavoidable, extraordinary circumstances occur at the destination or in its immediate vicinity that the implementation of the package or the carriage of passengers to their destination significantly affect (force majeure). Circumstances are unavoidable and exceptional if they are not under the control of the party claiming them and their consequences could not have been avoided even if all reasonable precautions had been taken.
Legal consequences
If the package is defective, the traveler can according to § 651i para. 3 BGB § 651k Abs. 1 BGB Remedy demand ( remedy 2 BGB itself) or 651k according to § para. Remedy ( self-performance ) and demand reimbursement of necessary expenses, according to § 651k para. 3 BGB request remedial action through other travel services (replacement services), demand payment of the costs for necessary accommodation according to § 651k para. 4 and 5 BGB, terminate the contract according to § 651l BGB, which result from a reduction in the travel price from § 651m BGB Assert rights or demand compensation according to § 651n BGB or reimbursement of expenses according to § 284 BGB .
For the duration of the lack of travel, there is a statutory reduction in the travel price in accordance with Section 651m BGB. The travel price is to be reduced in the ratio in which at the time of the conclusion of the contract the value of the package tour in a defect-free condition would have been to the real value.
Reduction claims expire two years after the end of the trip in accordance with Section 651j BGB. Unlike in the past, the right of reduction no longer has to be asserted within one month. In addition to the right to reduce the price, the travel law also allows package travelers under certain conditions to cancel the trip ( § 651l BGB) or claim compensation for damage suffered as a result of the defect ( § 651n BGB). Furthermore, travel law requires travel insurance certificates from organizers in order to ensure the reimbursement of the travel price in the event of their bankruptcy ( Section 651r BGB).
The place of jurisdiction for disputes in the context of air transport is not derived from a natural person ("consumer") - as generally stipulated by law ( § 13 ZPO , § 16 ZPO) - from their place of residence or usual place of residence, but from different criteria.
International
Like Germany, Austria implemented Directive (EU) 2015/2302 on July 1, 2018, but through the independent Package Travel Act (PRG). According to § 2 PRG, a traveler is “any person who intends to conclude a contract subject to the provisions of this federal law or who is entitled to use travel services based on such a contract”. The tour operator has a comprehensive pre-contractual information obligation (§ 4 PRG), the traveler can withdraw at any time before the start of the trip, in the event of force majeure also without compensation (§ 10 PRG). If the minimum number of participants is not reached, the tour operator can withdraw without compensation, but must reimburse the travel price paid (Section 10 (3) PRG). The traveler must immediately notify the tour operator of any lack of conformity during the trip (Section 11 (2) PRG). Travel services that have not been provided or are inadequately provided must be remedied by the tour operator (Section 11 (3) PRG), unless this is impossible or would entail disproportionate costs, taking into account the extent of the lack of conformity and the value of the travel service concerned. If he does not remedy the situation, the traveler can remedy the situation himself (Section 11 (4) PRG).
The legal basis in Switzerland is the Package Travel Act (PRG) of June 1993. It imposes extensive information obligations on the tour operator (Art. 4, 5 PRG), stipulates the content of the travel contract in Art. 6 PRG or regulates the rights of the traveler who is referred to as a consumer (Art. 10 PRG). In the event that the minimum number of participants is not reached and in the event of force majeure, the consumer has no right to compensation for non-fulfillment (Art. 11 Para. 2 PRG). Defects in the trip must be reported immediately (Art. 12 PRG), the organizer is liable for the proper performance of the contract (Art. 14 PRG), except in the event of force majeure (Art. 15 PRG).
Individual evidence
- ↑ BGH, judgment of December 6, 2016, Az .: X ZR 118/15
- ↑ Ernst Führich, Basic Knowledge of Travel Law , 2018, p. 75
- ↑ BGH, judgment of December 6, 2016, Az .: X ZR 117/15 = NJW 2017, 958
- ↑ Ernst Führich , Basic Knowledge of Travel Law , 2018, p. 77
- ↑ Substitute pilot: right of reduction in travel costs: an overview . June 27, 2018 ( ersatz-pilot.de [accessed June 28, 2018]).
- ↑ Merkur: What does the new package travel law mean for vacationers? August 31, 2017 ( merkur.de [accessed June 28, 2018]).
- ↑ Ernst Führich, Basic Knowledge of Travel Law , 2018, pp. 13, 143
