Collective Commentary about the New Package Travel Directive

ARTICLE 12 | FRANCESCO TORCHIA 289 Nevertheless, this problem can be easily overcome by using the good faith contract general clause (Articles 1175 and 1375 of the Civil Code) that, interpreted in reference to the right mentioned above, imposes the need to execute the withdrawal within a reasonable time based on the nature and the subject of the contract. However, cases where the tourist withdraws because he fell ill immediately after the plane departure, or cases where the tourist contracts a disease that doesn’t allow him to continue are inevitably excluded 11 . As proof of what has been said, see those cases delivered according to the right of withdrawal, based on the current legislation, which can only be executed up to the scheduled date for the start of the trip 12 . Neither of the regulations considered so far specifically foresee any final term within which to execute the right, nor do they prohibit the establishment of conventional withdrawal clauses (without the need to specify the reason) that are effective based on a penitential deposit payment. Consequently, some legal theorists admit this possibility while others deny it. In particular, those denying it 13 assume that, if it’s true that the practice of organisers and intermediaries is unusual, in how they give tourists the right of a conventional withdrawal, basing its effectiveness on a deposit payment fee, whose amount progressively increases as the expected date of departure approaches, it is also true that this would end up disabling the protection given by the EU legislation to tourists in case of inability to leave due to an event beyond their control. This happens because, on the one hand, the tourist can unilaterally dissolve the contract and get back the amount paid, while on the other he 11 Cfr G. BENELLI, La risoluzione del contratto di viaggio per impossibilità sopravvenuta di utilizzazione della vacanza , in Dir. turismo , 2007, 375. 12 Important in this regard is the well-known sentence of the Court of Cassation, according to which: “in the” all-inclusive “travel contract (so-called “tourist package” or package), currently regulated by the art. 82 ff. of the legislative decree n. 206 of 2005 (the so-called “Consumer Code”) and which differs from the organization contract or travel intermediation (CCV) referred to in the Brussels Convention of December 23, 1970 (gaining executive effects in Italy with the law of December 27, 1977, num. 1084), the “tourist purpose” characterizes its concrete cause and becomes important, as well as a qualifying element, also in relation to the contract status, as a criterion of relative adjustment, with the consequence that, in the overall functional economy of the abovementioned contract, the inability of using the service on the part of the creditor/consumer for reasons not attributable to him, even if not specifically foreseen by law, is to be considered a cause of extinction of the obligation, which is autonomous and distinct from the total (referred to in Article 1463 of the Civil Code) or partial (according to Article 1464 of the Italian Civil Code) inability of performing the same. (In this case, the SC, recognizing the operation of the appealed sentence as compliant with the right, in limiting itself to correct the motivation in the part in which the judge had held that a hypothesis of a partial inability of the execution of the performance occurred instead of its use, confirmed the legitimacy of the decision to dissolve the package contract concerning a two-week vacation trip for two people in Cuba, because of an on-going epidemic of dengue hemorrhagic fever on the island, so the tourists, in agreement with the travel agency, opted for a different destination, having as well the honesty of rejecting the request for payment of the indemnity for the withdrawal formulated by the tour operator)... Cfr. Cass. civ., sez. III, 07/24/2007, num. 16315). 13 Cfr. A. FLAMINI, Viaggi organizzati e tutela del consumatore , Naples, 1999, pag. 125 ss.