The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

9 For what packages are concerned, for some, in fact, the rule was to better protect the consumer/traveller, giving him a triple choice: money, alternative package or voucher. These are three possibilities which give the choice holder a decreasing margin of decision-making freedom, not without effects on his/her financial position. In case of reimbursement, the traveller, returning in possession of his own money, will see his situation reconstructed before the stipulation of the contract, and can, therefore, decide with the maximum degree of freedom in terms of choice: if and when to enter into a new travel contract. Completely opposed is the very unpractical hypothesis of supplying an alternative package, not only the traveller will not be in possession of his own money, but he will have to choose an alternative holiday to the one planned, at a time when his ability and aptitude for choice are certainly spoiled by the terrible circumstances that are being experienced. The hypothesis of the voucher thus represents the middle ground: the tour operator avoids an unsustainable outgoing of financial flows, and the traveller, at the same time, has one year (and not just a few days) to decide on the travel or the replacement holiday. Therefore, if the voucher, as the new tool available to operators, represents the way to balance the interests of the parties, especially if considered an emergency measure, it was presumable that the choice should have been up to the tour operator and not to the traveller. On the one hand, it is clear that if the choice were up to him, the traveller would most likely always opt for a refund, tipping the balance of interests. On the other hand, the reimbursement was already foreseen in the previous legislation, so it is not an emergency tool. It is therefore clear that the choice should be up to the tour operator and not to the traveller. A careful reading of the Article 28 paragraph 5 of Decree-Law No. 9, where it is stated that the operator can: a) offer the traveller an alternative package of equivalent or higher quality; b) proceed with the refund in the terms provided for in paragraphs 4 and 6 of Article 41, therefore, within 14 days of the request; or c) issue a voucher, to be used within the year of its issue, for an amount equal to the reimbursement. This last option is the most plausible qualification, as it is an alternative obligation, for which the choice is the responsibility of the debtor – the tour operator –, who definitively frees himself from his obligation, as foreseen in Art. 1285 CC 9 . It is only with a similar 9 In Italian law, alternative obligations are governed by Article 1285 and following of the Civil Code. This article states that the debtor of an alternative obligation is released by performing one of the two services deducted in obligation, but cannot compel the creditor to receive part of one and part of the other. Art. 1286 refers “The choice is up to the debtor if it has not been attributed to the creditor or a third party. The choice becomes irrevocable with the execution of one of the two performances, or with the declaration of choice communicated to the other party or to both if the choice is made by a third party”. For an analysis of the alternative obligations see, among the others: E.A. Emiliotti, Alternative obbligations, jointly and severally divisible and indivisible (Obbligazioni alternative, in solido, divisibili e indivisibili,), Bologna, 2019.