Collective Commentary about the New Package Travel Directive

776 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE determined, a court shall decide the values taking into account the circumstances. Transposition of the principle that the traveller shall not be entitled to reduce the price of the package if the tour operator proves that the lack of conformity was attributable to the traveller provided for in Art. 14(1) of the Directive is transposed into § 877(2 1 ) of the LOA. Unlike the Art. 14(1) of the Directive, the LOA does not limit the right of the traveller to reduce the price for the period during which there was a lack of conformity. Recital 20 of the preamble states that the directive should not prejudice the application of national contract law in the areas not covered by it. Thus, it is possible to proceed from the general assumptions of price reduction which allows reduction of the price not only on the bases of the period of the non-conformity but also taking into account the purpose of the travel package contract. For example, if one of the purposes was engagement in sports and it turns out that the sporting opportunities that were hoped for are missing. Liability of the trader for booking errors provided for in Art. 21 of the Directive is transposed verbatim into § 877 1 of the LOA. According to the § 877 1 of the LOA it applies to persons who operate as a tour operator, retailer, trader facilitating entry into linked travel arrangements or individual travel service provider. Liability of the tour operator is guarantee liability which does mean that tour operator’s responsibility for lack of conformity does not depend on the fault of the tour operator or any other person who has to perform the contractual obligations. It is in conformity with the general regime of contractual liability adapted in Estonian law. According to § 103(1) of the LOA a debtor shall be liable for non-performance unless the non-performance is excused. It is presumed that non-performance is not excused. Rules on limitation and preclusion of liability of the trader are transposed into § 878 of the LOA. In the course of transposition of the Directive Estonia decided not to make any changes in the liability of retailers which does mean that prohibitions concerning the liability of the trader apply to a trader who operates as a tour operator, retailer or individual provider of travel services constituting a part of linked travel arrangements, also to retailer established in a Member State of the European Union if a tour operator is established outside the European Economic Area (§ 866(4 1 ) LOA). According to the § 878(1) of the LOA any agreement limiting or precluding liability for any damage which is caused intentionally or due to gross negligence is void. Void is also any agreement which limits the liability for causing the death of a traveller or bodily injury or