Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 939 must be assessed with regard to the diligence required by the service of the corresponding professional activity. The contractual responsibility of the retailer, therefore, derives from the non- -fulfilment of the mandate given to him by his client and does not instead pertain to the exact fulfillment of the package travel provided by the organiser 102 . In other words, a specific regulation has been introduced regarding the liability for non-fulfillment towards the traveller by the travel organiser or the retailer, distinguishing the respective contractual responsibilities according to the substantial diversity of the stipulated contracts, the obligations agreed upon and economic services carried out by the tour operator and travel agent 103 . As a result, the retailer is not responsible towards the consumer for the breach by the tour operator, nor for the non-fulfilment by the suppliers of the single services included in the package travel, but only for the improper execution of the services to which he is directly and personally obliged under the stipulation of the intermediate travel contract. According to the general regulations, art. 50 of the Tourism Code also provides that the retailer is responsible on his behalf (“regardless of whether the service is provided by the retailer”), on behalf of auxiliaries (“auxiliaries or designates when they are exercising their functions”) and on behalf of “third parties” to render the service 104 . The general attribution of the liability criterion is also based on the ordinary outline of assessment of the liability of the agent, considering that the exact fulfillment of the obligations taken on by the retailer towards the traveller must be evaluated with regard to the diligence required for carrying out the service of the corresponding professional activity 105 . In particular, with regard to the agent’s activity, the retailer is responsible for culpa in eligendo in choosing the organiser of the package travels or the service provider with which to conclude the contract in the name and on behalf of the traveller 106 . 102 It should also be noted, incidentally, that the legislator also felt free to return to the use of the traditional terminology “intermediate travel contract”, at least in art. 50 of the Tourism Code. 103 See A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1324. 104 In acordance with art. 1228 of the Civil Code; see A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1327. 105 With regard to the determination of the content of the obligation of the retailer, with reference to the rules established in terms of mandate with representation and, thus, above all to artt. 1710 and followings, 1387 and followings, and 1176, par. 2, of the Civil Code, see Trib. Bologna, 15 October 1992, in Contr. , 1993, p. 327, with a comment by A. Ambanelli, La responsabilità dell’intermediario nel contratto di viaggio , which in this case considered the intermediary “certainly negligent in choosing the package travel organiser”. 106 See Trib. Roma, 25 January 1978, in Giur. merito , 1979, I, p. 338; Trib. Orvieto, 11 February 1992, in Foro it ., 1992, I, c. 1571, with a comment by V. Roppo; Trib. Roma, 25 January 1978, in Giur. merito , 1979, I, p. 338; Trib. Bologna, 15 October 1992, cit. .