Collective Commentary about the New Package Travel Directive

ARTICLE 16 | VALÉRIE AUGROS 377 an obligation of means (where the party should act with care and diligence) 14 . Namely, in the latter case, the contracting partner undertakes to do his best effort and diligence to reach the sought result and to satisfy the other party. However, there is no undertaking to reach a determined result. The behaviour of the contracting partner is then assessed, in abstracto , by reference to the behaviour of the bonus pater familias or now of a reasonable person . The seriousness of the breach is not relevant 15 . Despite some critics, this distinction appeared useful in legal practice to establish a breach of contract, where a fault has to be evidenced (or not depending upon the nature of the obligation) and remains applicable following an important reform on contract law 16 . Under such a general obligation of care and diligence, the same court confirmed in another case that the organisers owe a duty of diligence to their clients in order to perform the contract (here a contract relating to a cruise), which comprises the obligation to provide assistance to the best of their ability 17 . Once again, a French tourist was injured in a collision of the coach that brought her to Spain for a visit with another vehicle. The court blamed the organiser, who failed to inform the traveller in due course that she had to make a claim for her injuries against the coach insurer in Spain. It appeared that she was time- -barred there and could not make a successful claim. The French organiser was held to pay her damages for this failure. Hence, French courts have been quite willing to offer extensive protection to travellers who suffered a prejudice as a result of the inability or failure by the organiser to offer assistance, when they needed it the most. The conditions to benefit from the assistance should now be reviewed. 14 Droit de la responsabilité et des contrats, régimes d’indemnisation – Dalloz Action 2018/2019, §3123.21 onwards. J.Cl. Civil Code, Art. 1146 à 1155, Fasc. 11-10 Droit à réparation, §92 onwards. 15 For example, the mere fact that the travel agent failed to check that the local coach was appropriately insured was considered as a breach to his obligation of care and diligence, in a case where a traveller was injured in a trip in Bangkok. Cass. Civ. 1, 24 June 1964, Bull. Civ. 1964 n°341. The obligation of care and diligence was therefore admitted not only at the time of the conclusion of the travel package contract, but also upon its performance to recognise a duty of security in addition to a duty of assistance. 16 Ordinance n°2016-131 of 10 February 2016. 17 Cass. Civ. 1, 27 October 1970, n°69-11185.