Collective Commentary about the New Package Travel Directive

774 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE unless the traveller is not interested in the services (§ 876(2) LOA).Transposition of the Art. 13(6) section 3 has can be found in § 876(3) of the LOA with addition concerning the right of the traveller to be provided with the right to be returned to place agreed upon in the contract. However, termination of the contract is not obligatory precondition for reduction of the price or damages in cases described in the Art. 13(5) section 1 and Art. 13(6) section 2 of the Directive and the traveller shall inter alia have the right, where appropriate, to reduce the price of the package and demand compensation for the damage (§ 876(3 1 ) LOA). Compensation of damages as a remedy shall be guaranteed by the national legislation in the course of transposition of the Directive in all cases of lack of conformity 36 . This principle is transposed into § 877(2) of the LOA 37 . Even failure to notify does not end the right to claim damages, however, this may be taken into account in determining the amount of damages 38 . This can be derived from the general rules on compensation of damages provided for in the § 139(1) of the LOA according to which if damage is caused in part by circumstances dependent on the injured party, the amount of compensation for the damage shall be reduced to the extent that such circumstances or risk contributed to the damage. General rules on preconditions and the extent of the claim for damages can be found in §§ 127-140 and § 115 of the LOA. The legal bases for claim for damages is § 115 of the LOA, except in cases where traveller uses the right to choose between the contractual claim and claim in torts (§ 1043 LOA) 39 . The assessment of damages is based on theory of difference transplanted from German law ( Differenztheorie ) as comparison between the position in which the creditor finds himself as a result of the non-performance and hypothetical position in which he would have found himself but for the non-performance 40 . Thus, the purpose of compensation for damages under § 127(1) of the LOA is 36 Directive, Art. 14(2). 37 General principle on cumulation of remedies, e.g. that in the case of non-performance, invoking a legal remedy arising from non-performance shall not deprive the party of the right to demand compensation for damages caused by non-performance can be found in § 101(2) of the LOA. 38 P.Varul, I. Kull et al . Võlaõigusseadus III. Kommenteeritud väljaanne (Law of Obligations Act III. Commented Edition). Tallinn: Juura 2009, p. 478. 39 In Estonian law, if there is a valid contractual claim, the aggrieved party cannot claim under the rules on extra-contractual liability, except if the death, bodily injury or damage to the health of a person is caused as a result of the violation of a contractual obligation. See § 1044(3) of the LOA. 40 Definition of the theory of difference is slightly modified version of the definition given by R. Zimmermann in Commentaries on European Contract Laws. Edited by N. Jannsen and R. Zimmermann, Oxford University Press, 2018, p. 1460.