The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

3 Furthermore, the Supreme Court states, in several judgments, that the unexpected impossibility of the performance occurs, not only in the event that the debtor's performance has become impossible, but also in the case in which the use of the service has become impossible of the counterparty (the creditor), for reasons not attributable to him, and his interest in receiving it has ceased. Thus, in this case, there is the supervening impossibility of the essential purpose, in which the concrete cause of the contract consists, and the consequent extinction of the obligation 5 . In other words, the Court declares, precisely in a case concerning a tourist package, that the circumstances that affect the satisfaction of the creditor's interest, in turn, determine the extinction of the mandatory relationship in light of the supervening impossibility of the concrete cause of the contract. The Cassation Court, therefore, affirms that the impossibility operates in conditions of reciprocity for both the debtor and the creditor. He too can, therefore, terminate the contract when he believes he is unable to use the service for reasons not attributable to him. However, while the supervening impossibility that frees the debtor must necessarily be absolute, total and unpredictable, in the case of impossibility to use, the performance can be abstractly still executable. What has failed is the interest of the creditor to be performed, which is, obviously, not on a whim or because he changed his mind, but because unforeseeable circumstances occurred, making the performance entirely extraneous for the achievement of his interest. The concrete cause that the tourist wants to pursue with the stipulation of the contract is lacking. This principle, now shared by majority jurisprudence and doctrine 6 , was also established by Article 41 paragraph 4 of the Tourism Code, implementing Article 12, paragraph 2 of Directive 2015/2302, in which is attributed to the traveller the faculty to withdraw from the contract before the start of the package without paying any withdrawal fee, in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package. Consequently, the impediments relating to the subjective sphere of the traveller (accidents, bereave, and so on) do not operate for the purpose of free withdrawal, during the so-called exceptional circumstances. So, in order to avoid uneven interpretations regarding exceptional and unpredictable 5 See. Corte di Cassazione, Sez. I civile, 10 July 2018, n. 18047, in rivistadirittoeprocesso.eu , with comment of Cerri, p. 320. In the past see: Cass. Civ., 24 July 2007, n. 16315, with comment of Delli Priscoli, Travel contract and relevance of the tourist purpose (Contratto di viaggio e rilevanza della finalità turistica), in Danno e responsabilità, 2008, p. 845; with comment of S. Nardi, All-inclusive travel contract and impracticability of its concrete function (Contratto di viaggio tutto compreso e irrealizzabilità della sua funzione concreta), in Nuova giust. civ. comm., 2008, I, p.531; with comment of B. Izzi, Concrete cause and occurrence in the travel and vacation all-inclusive contract (Causa in concreto e sopravvenienza nel contratto di viaggio e vacanza tutto compreso), in Giur. it., 2008, p. 113. 6 Ferri, G.B., The cause in contract theory (La causa nella teoria del contratto), in Studi sull’autonomia dei privati , (edited by) Angelici - Ferri, Tourin 1997, 97; V. Roppo, The contract (Il contratto), in Tratt. Iudica – Zatti, Milan 2001, 364.