Collective Commentary about the New Package Travel Directive

1042 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE “ Where any person fails to discharge an obligation which he has contracted, he shall be liable in damages.” The Court further examined Article 1133 of the Civil Code whereby “ the debtor, even though there has been no bad faith on his part, shall be liable for damages, where competent, both for the non-performance of the obligation as well as for the delay in the performance thereof, unless he proves that the non-performance or delay was due to an extraneous cause not imputable to him.”. The Court explained this provision by quoting from Baudry-Lacantinerie (Delle Obbligazioni) Vol. 1, Paragraph 455, Page 504 (as translated into English) which stipulated that: “ The failure of a third party which renders impossible the fulfilling of an obligation between two parties constitutes a fortuitous event or a forza maggiore, (a force majeure), unless it is not where the debtor is actually responsible thereto.” The Court quoted from the judgement “Antonio Micallef versus Negte Gius. Gasan nomine” (decided on 20 January 1930) “Since the defendant was not only responsible for the actions of the third party, but has also guaranteed the arrival in the days so indicated... He has assumed the responsibility independently from the fact from what he has contracted, and once he has given that guarantee, and did not exclude such a delay, then, he would be responsible for the payment of the damages .”. Consequently, was the travel agency correct to stipulate that it was the airline that had failed in its obligation to depart on time, which was the actual “cause” of the failure to fulfil its obligations? The Court had to decide whether the failure by a third party with regard to its obligation (in this case for the airline to depart on time and as scheduled) could be actually deemed as force majeure or otherwise. Moreover, a debtor cannot automatically exclude that he is not responsible also for the failure of the obligation of the third party. The travel agency could not allege that the fact that the third party, in this case, the airline company had failed in its obligation for being late, the travel agency is not responsible for the delay. The travel agency has assumed the responsibility of the airline to meet its obligation. The Court of Appeal stated that the risk of the eventuality of a delay in flight is a common factor and the Court assumes that a travel agency knows that these things usually happen.