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

to still be in the position to provide his services – but due to the change of circumstances caused by the pandemic the tour operator will no longer be interested in using the services for his customers. In this regard, the Code does not provide any solution – apart from the fact that it only constitutes “soft law” that is not enforceable. 4. The Legal Doctrine of “Frustration of Purpose” or “Discontinuation of the Basis of the Transaction” The legal doctrine of “frustration of purpose” or “discontinuation of the basis of the transaction” is based on the idea that the parties of a contract should be able to amend or terminate that contract if:  a typical precondition of said contract  which was not referred to in the contract because the parties had taken it for granted  is subject to an unforeseeable and unforeseen substantial change after the conclusion of the contract  with the result that the purpose of the contract definitely cannot be achieved anymore; and  the change is not attributable to the party invoking the situation. The doctrine is acknowledged by the legislation and/or jurisprudence of various countries, as the following examples show. 4.1. Austria The Austrian Civil Code 5 does not contain any provision explicitly referring to the doctrine of “frustration of purpose” or “discontinuation of the basis of the transaction”. However, according to the prevailing theory, Sec. 901 provides a basis for this doctrine 6 . The first sentence of said provision reads as follows: “If the parties have expressly made the motive or ultimate purpose of their consent a condition, the motive or ultimate purpose shall be 5 Allgemeines Bürgerliches Gesetzbuch (ABGB). 6 A detailed analysis of the application of the doctrine in Austria was recently provided by Doralt , Wegfall der Geschäftsgrundlage, JBl 2020, 491.