Package tours, agency must reimburse if customer falls ill

If the customer falls ill he is entitled to full refund, by the travel agent, of the price paid for the package tour. The supervening impossibility of enjoying the service, not attributable to the traveller, in fact, decisively affects the tourist purpose. It thus triggers an independent cause of extinction of the obligation and of the contract and, therefore, the right to recover the sums paid. The existence of insurance coverage is also irrelevant, as is the discipline of cancellation, which operates on a separate level.

The Court of Cassation dictates a principle of law in awarding victory to two couples of customers of atour operator from which they had purchased two packages for a stay in London: trip vanished due to the illness of one of the would-be travellers. Having won their victory before the justice of the peace, the applicants were ordered by the court to return the money received in execution of the first instance judgment, as well as to pay the costs of litigation at both instances. According to the appellate court, the discipline of cancellation of the traveller, provided for by the regulations on package tours, had to be applied, because the cancellation of the trip was due to subjective reasons, and there were, therefore, no conditions for exemption from payment of the cancellation costs.

The Supreme Court, in overturning the unfavourable verdict, instead emphasises thepurpose of the holiday. "In the contract for an all-inclusive holiday, the plurality of activities and services that comprise the service is sufficient to connote the purpose it is intended to achieve. The multiple aspects and profiles of the complex service, devised and organised by the tour operator," reads the order, "are functional to the satisfaction, to be appreciated in normal conditions, having regard to the concrete circumstances of the case, of the profiles of relaxation, recreation, leisure, cultural, excursion, etc., in which the "tourist purpose" or the "purpose of pleasure" ensured by the holiday is substantiated, which the tourist consumer in particular pursues through the stipulation of the "all-inclusive" holiday travel contract". The 'tourist purpose' underlying the contract thus determines its fate.

The Supreme Court clarifies that the supervening impossibility of performance does not exist only when it becomes impossible for the obligor to perform, but also in the case where "it has become impossible for the other party to use the performance, when such impossibility is in any event not attributable to the obligee and itsinterest in receiving the performance has ceased to exist, in which case the essential purpose in which the actual cause of the contract consists is no longer fulfilled and the obligation is extinguished".

The judges of legitimacy overcome the perplexities that there have been in the past on the subject and recognise "that the impossibility of use of the service by the creditor, even if not specifically provided for by law, constitutes, similarly to the impossibility of performance, an autonomous cause of extinction of the obligation". The Supreme Court disregards the Court's argument that the clients should have turned to the insurance company since the contract was covered by a policy against the risk of cancellation. This is a misreading because the existence of the policy cannot be invoked to bring the matter under theparadigm of 'waiver'. The insurance cover operates, in fact, on a different level and may, if anything, be relevant to the risk or internal relations.