Collective Commentary about the New Package Travel Directive

458 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE found that before departure he was constrained to alter significantly any of the essential terms of the package contract, he was to take immediate steps to notify the consumer, so as to enable him or her to decide whether to withdraw from the contract or accept the alteration. However, the consumer’s position where an error was made in the booking process itself was not affected by the old Directive. Hence, where a travel agent failed to make a booking properly, or even at all, the laws of each Member State applied in relation to the remedy, if any, available to the consumer. In some Member States the remedy was not at all straightforward. In the jurisdiction of England and Wales, for example, “a precise and complete definition of the travel agent’s status in law has never been forthcoming” 2 , and as a result, it remains unclear for whom a travel agent acts when making a booking. If he acts as an agent of the consumer when the error is made, therefore, arguably he might not be liable for it. If, on the other hand, he could be said to be acting for the tour operator when the error is made, he might not be liable for it; but the tour operator might well be. Furthermore, in some transactions, or parts of them, he might not be acting as an agent at all, but as a facilitator in his own right. This situation can hardly be said to be satisfactory from a consumer’s point of view; a layperson without the detailed knowledge of the law possessed by a travel law specialist could hardly be blamed for being confused about whom to blame when booking errors were made and as a result an appropriate holiday, or elements of it, was not supplied. An example may assist. If a consumer makes his choice of package holiday and informs the travel agent, and the travel agent accepts the booking for transmission to the tour operator, that consumer may well reasonably regard the agent as having apparent authority to bind the operator in respect of any special demands he makes at the time the choice is conveyed to the agent. The consumer may convey his choice to the agent with a special request to the effect that his two rooms are adjacent with connecting doors. The agent may make an error and fail to transmit the special request to the operator, who in turn authorises the agent to conclude a contract on the basis of two rooms on different floors. This error could go unnoticed by the consumer, particularly if the booking was made at the last minute. If at all stages before the contract was concluded, the agent was an agent for the consumer, the consumer would have no redress against the tour operator for the improper performance of the package contract, because 2 Saggerson on Travel Law and Litigation, 6 th ed., para.3.1.