Travel contract

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The travel contract is a contract under the law of obligations , which obliges the tour operator to provide the traveler with certain travel services and for this, in return for the traveler, gives him the right to the travel price . For travel legislation in the broader sense also includes the travel insurance law .

General

The mass tourism in Germany has become an important economic factor developed, so that the legislature was obliged to consider the previously regulated in the law travel contract as a separate type of contract. The travel contract has therefore been regulated in the BGB since January 1979 . Participants in the travel contract are the traveler, the tour operator or the travel agent . In terms of the content of the travel contract, travel law differentiates between individual travel and package travel . In the travel law, only the package tour between tour operator and traveler is comprehensively regulated, so that the individual trip is subject to the general contract law of the BGB ( § 651b BGB ). In the case of travel deficiencies in particular, this applies to the general disruptions in performance such as impossibility , delay or breach of secondary obligations (§ § 280 ff. BGB, § 323 ff. BGB). If the traveler only books an air trip with the travel agency or merely makes a hotel reservation, then this is a travel arrangement for an individual trip, which is subject to general contract law. The conclusion of a travel contract is colloquially called "booking".

Legal issues

There are special regulations for travel contracts that contain a package tour. The German and the travel law of the EU member states implemented the EU Package Travel Directive on July 1, 2018 . In Germany, this happened by changing the travel law in the BGB. Of particular importance is air transport law, which is primarily regulated in the European Union's Passenger Rights Regulation .

General

The starting point of the travel contract is usually the travel catalog , which is legally valid - like all product catalogs - as an invitation to submit an offer . Contractual partners are the traveler, tour operator and travel agent. A travel contract is only concluded when the traveler signs the pre-printed order ( offer ) and the tour operator accepts it with the travel confirmation . The travel contract is a work contract , because the tour operator promises the success of the trip and bears the risk of failure. The tour operator promises a specific design of the trip and assumes liability for its success, insofar as this depends on his services. The travel contract is subject to largely indispensable consumer protection through a special guarantee for travel defects. The travel price to be paid by the traveler includes all unavoidable and foreseeable payments that are obligatory to be made by the consumer, which is why mandatory tips on cruises must be included in the advertised travel price.

General travel conditions

The general travel conditions of the tour operator are general terms and conditions and are recognized under travel law in accordance with Section 651f Paragraph 3 BGB and Section 651h Paragraph 2 BGB. In accordance with Section 305, Paragraph 2, No. 2 of the German Civil Code, they must be given to the traveler in full before the travel contract is concluded. The general travel conditions make general regulations that are not mentioned in the individual travel contract, such as the tour operator's limitation of liability , they must meet the requirements of § § 305 ff. BGB.

Content of the package travel contract

According to § 651a Paragraph 1 BGB, the tour operator is obliged to provide the traveler with a package tour through the package tour contract. The traveler is obliged to pay the tour operator the agreed travel price. According to Section 651a (2) BGB, a package tour is a total of at least two different types of travel services for the purpose of the same trip. A package tour is also deemed to exist if the travel services included in the contract have been compiled at the request of the traveler or according to his selection or if the tour operator grants the traveler the right in the contract to choose the travel services from his offer after conclusion of the contract ("modular trip "). Travel services, in turn, according to Section 651a (3) BGB, are passenger transport , accommodation (except for residential purposes), car rental or any other tourist service (such as excursions , sightseeing ). Under certain conditions, day trips are not considered package tours (Section 651a Paragraph 5 BGB). The law says nothing about the due date of the travel price, but according to the legal model, the tour operator is obliged to make advance payments .

Before departure

Pursuant to Section 651d, Paragraph 1 of the German Civil Code, the tour operator is obliged to provide the traveler with the information about the trip, including the form ( Art. 253, Appendix 11, EGBGB) resulting from Art. 250, Sections 1–3 EGBGB, before concluding the travel contract . The traveler may at any time from the travel contract before departure to resign , the tour operator falls below the prescribed minimum number of participants or force majeure ( § 651H BGB). Payments or prepayments should the tour operator in accordance with § 651t only accept BGB if according to § 651R BGB a third guarantor ( credit institutions or insurance companies ) by payment guarantees the amount of the total price as a travel insurance certificate are hedged.

During the travel

According to § 651i Paragraph 1 BGB, the tour operator must provide the traveler with the package tour free of travel defects , so it must have the agreed quality according to the service description . However, if the package tour is inadequate, the traveler can request remedial action in accordance with Section 651k (1) of the German Civil Code (BGB) or, in accordance with Section 651k (2) of the German Civil Code, take remedial action and demand reimbursement of expenses , a reduction in the travel price in accordance with Section 651m of the German Civil Code or compensation for damages in accordance with Section 651n of the German Civil Code . The Frankfurt table or the Kempten travel deficiency table provide guide values ​​for the amount of the reduction . However, neither in Germany nor in Austria are neither legally binding auxiliary instruments. In the event of force majeure (e.g. blocking of the airspace ), the tour operator must not only ensure the later return transport according to § 651k Paragraph 4 BGB, but also accommodate the travelers for at least three nights in accommodation of the same quality at their own expense. If the package tour is significantly impaired by the lack of travel, the traveler can terminate the contract ( Section 651l BGB). The traveler must immediately notify the tour operator of any deficiency in the trip ( Section 651o BGB). If the traveler finds himself in difficulty, the tour operator must immediately provide him with appropriate assistance in accordance with Section 651q BGB

Legal consequences

The tour operator's liability is excluded in three cases, namely if the traveler is responsible for the defect himself, if a third party (not the tour operator's vicarious agent) is responsible for the defect or if the defect was caused by force majeure. In accordance with Section 651p (1) of the German Civil Code, the tour operator can agree to a limitation of liability to three times the travel price for property damage that was not culpably caused . Since § 651p BGB no longer differentiates between the tour operator's own fault and the fault of his vicarious agents, a limitation of liability is also excluded for the latter. According to § 651y sentence 1 BGB, the tour operator may neither suspend his obligation to carry out the trip without defects nor contractually exclude or limit the liability consequences from §§ 651i ff. BGB. With the end of the trip, the statute of limitations of two years also begins for travel defects ( § 651j BGB). However, this can be limited to one year in the individual travel contract (Austria).

International

Like Germany, Austria implemented the EU Package Travel Directive 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).

A travel contract in Switzerland can be either a travel agency contract or a travel agency contract. The latter can be designed either as an Innominat contract or as a package tour contract . The package travel contract is a nomination contract , which is regulated outside of the Code of Obligations in the Federal Act on Package Travel of June 18, 1993 (PRG). It imposes comprehensive information obligations on the tour operator (Art. 4, 5 PRG), prescribes the content of the travel contract in a binding manner in Art. 6 PRG, deals with significant changes to the contract (including price increases of more than 10%; Art. 8 PRG) or regulates the rights of the traveler who is referred to as the 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 is not entitled to compensation for non-performance (Art. 11, Paragraph 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).

In the Common Law of the travel contract ( English travel contract ) (for the sector of the package English package tour ) by Regulation 4 of the Package Travel, Package Holidays and Package Tours Regulations 1992 regulated (PTR). After that, the information in the travel brochure are in accordance with Reg. 6 (1) PTR for implied (warranty English implied warranties ) of the travel contract, which gives the consumer (a procedure for misstatement English misrepresentation ) or Failure ( English breach of contract allows). Another liability of the tour operator arises also from the Code of Conduct ( English code of conduct ) that the association of British tour operators ABTA has negotiated.

literature

Web links

Individual evidence

  1. ↑ Sören Bär: Holistic Tourism Marketing. 2006, p. 7 ( books.google.de ).
  2. ↑ Dr. Th. Gabler Verlag, Gablers Wirtschaftslexikon. Volume 4, 1984, Col. 806.
  3. ↑ BGHZ 100, 157 , 163
  4. ↑ BGHZ 130, 128
  5. ↑ OLG Schleswig, judgment of 13.12.2018 - 6 U 24/17; NJW 13/2019, p. 894.
  6. ↑ Kurt Schellhammer: law of obligations according to the basis of claims: BGB general part. 2014, p. 329 ( books.google.de ).
  7. ↑ Kurt Schellhammer: law of obligations according to the basis of claims: BGB general part. 2014, p. 331.
  8. ^ Peter Huber, Ivo Bach : Examens-Repetitorium Schuldrecht BT 1 , 2018, p. 220 ( books.google.de ).
  9. ↑ Hartmut Oetker, Felix Maultzsch: contractual obligations. 2018, p. 725 ( books.google.de ).
  10. ^ Andreas Börger: Sanctions for the violation of pre-contractual information obligations. 2010, p. 139 ( books.google.de ).