Collective Commentary about the New Package Travel Directive

ARTICLE 21 | SARAH PRAGER 459 the package contract agreed between consumer and operator made provision for exactly what the consumer got, namely, two rooms on different floors. The consumer’s agent, with the consumer’s apparent authority, made a contract (albeit in error) on his behalf without provision for adjacent rooms. Accordingly, there would be no improper performance of the package contract on which the consumer could sue the tour operator. If, on the other hand, the agent was acting as agent for the tour operator at the time the booking was transmitted and by reason of his apparent authority had concluded a contract by accepting the booking from the consumer, then the tour operator would be liable for the error of his agent. The consumer’s package contract would have already been made with the travel agent acting for the tour operator before any authorisation to accept the booking had been given. Which of these analyses would apply in respect of any given transaction depends entirely on whether it could reasonably be said that the tour operator represents to consumers at large (either by words or conduct) that the agent has apparent authority to conclude contracts before a booking is transmitted to the operator. In the author’s experience, on balance an English court would be unlikely to conclude that the tour operator impliedly held out the travel agent as having apparent authority to accept rather than merely transmit bookings to the operator, since generally the contract would only be concluded at the end of the booking process. The English jurisdiction offers conflicting authorities, however. In Kemp v Intasun Holidays 3 the consumer visited a travel agent with her daughter to choose a summer holiday for the family. In the course of a conversation with the travel agent she mentioned that her husband was ill and that he was suffering from asthma and a bronchial attack, as he sometimes did. Mrs Kemp chose a holiday, and in due course a booking form was completed, sent to Intasun, and Intasun accepted the booking. All too predictably, when August arrived and the family went on their holiday, they were allocated a different and substandard hotel to that booked. As a result of the filth in the new hotel, Mr Kemp suffered an attack of asthma, and considerable alarm and distress as a result. The trial judge found in favour of theplaintiffs both inrespect of the substandardaccommodation, and the asthma attack and its consequences. Intasun appealed. In the course of his judgment on appeal, Kerr LJ said this: 3 [1988] 6 TR.L. 161.