Collective Commentary about the New Package Travel Directive

ESTONIA | IRENE KULL 775 to place the aggrieved person in a situation as near as possible to that in which the person would have been if the circumstances which are the basis for the compensation obligation had not occurred. Damage subject to compensation may be material or non-material damage (§ 128(1) LOA). Material damage includes primarily direct material damage and loss of profit (§ 128(2) LOA). The right to claim non-material damage arising from non-performance of a contractual obligation is, in Estonian law, limited by the purpose of the obligation and by subjective and objective awareness of the debitor that non-performance could cause non-material damage (§ 134(1) LOA). Right of the traveller to claim amongst other things, reasonable compensation for non-material damage for the wasted holiday is directly provided for in § 877(2) of the LOA 41 . In case of an obligation to compensate for damage arising from causing bodily injuries to or damage to the health of a person the aggrieved person shall be paid a reasonable amount of money as compensation for non-material damage (§ 134(2) LOA). As such, the traveller is entitled to compensation for non-material damage without any other preconditions except proving that the person whom the travel operator is responsible for caused bodily injuries or damage to traveller’s health by non-performance. In accordance to the § 877(2) of the LOA, the tour operator shall pay the compensation for damages immediately. Exceptions to the traveller’s entitlement to compensation based on liability of the travel operator provided for in Art. 14(3) of the Directive are transposed verbatim into § 877(2 2 ) of the LOA. The general principle that any right to compensation shall not affect the rights of the traveller under EU regulations listed in Art. 14(5) of the Directive and international conventions is transposed into § 877(3 1 ) of the LOA. Any compensation paid to the traveller, compensations pursuant to the EU regulations or international conventions, shall be deducted from each other in order to avoid overcompensation (§ 877(3 3 ) LOA). The same applies to reduction of price. Reduction of price as remedy is provided in the § 112 of the LOA. According to the § 112(1) of the LOA, a party may reduce the price payable by the other party by the proportion of the ratio of the value of defective performance to the value of conforming performance. The values of conforming and defective performances shall be determined as at the time of performance of the obligation. If the values of conforming and defective performances cannot be precisely 41 Here the provision follows the example of non-material damage to be compensated described in recital 33 of the Directive.