Collective Commentary about the New Package Travel Directive

ARTICLE 9 | SARA D’URSO 255 some solvable systematic problems, already noticeable with the entry into force of Directive 90/314 27 . As in the previous system, introduced by directive 90/314, the consent of the other party is not required in the assignment of the travel contract. The Organiser’s consent has never been requested. He does not accept the transfer of the contract. He only receives a communication and verifies that the new traveller has the necessary characteristics to participate in the trip. If the conditions are met and communication is made on time, the sale produces its legal effects. The bilateral transfer of the contract is accepted in the Italian legal system and does not conflict with substantive principles if it relates to contracts where, for the transferred contractor, the personal characteristics of the other contracting party are not relevant for the attainment of his own interest. In the case of package transfer, the lack of relevance of the personal characteristics of the transferor is granted by the law, which requires the new contractor to have all the necessary characteristics to be able to take part in the trip. This is also granted by the requirement of a joint and several liability of assignor and assignee. This also occurs by way of derogation from the provisions of the first paragraph of Article 1408 of the civil code. According to the opinion of an authoritative doctrine, the Italian legislator has already assumed bilateral transfers on other occasions, without the consent of the assignee 28 . 5. CONCLUSIONS The analysis of the law clearly shows the legislator’s attempt to reconcile the interests of the parties: on the one hand it grants the traveller the chance to transfer the contract, without the tour operator deciding whether or not to accept the assignment, and balances that with the imposition of joint and several liability of the transferor and the transferee, both for the payment of the trip and for the payment of the transfer costs. Once again, being aware of the difficulties of the professional in modifying the data of the package and reservations, which 27 Regarding the issue related to the bilateral sale not provided for by art. 1406 et seq. of the civil code see, among others: Tassoni, Il contratto di viaggio, (The travel contract), Milan, 1998, p. 206 e 207. 28 See: De Nova, La cessione del contratto (The contract assignment), in Sacco – De Nova, Il contratto (The contract), in Trattato di diritto privato (Treaty of private law), ed. by Rescigno, vol. 10, Tourin, 1995, p. 656.