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

regarded as another condition. ”. Despite the word “expressly”, it is established case law that the provision also allows for implied conditions – and that it can be applied if the basis of the transaction ceases to exist and thus causes the ultimate purpose to become finally unattainable. The theory in particular was applied by the Austrian Supreme Court 7 in travel cases like:  terrorist attacks and threats causing the loss of sufficient safety as a business basis for a family holiday; 8  the 9/11 attacks eliminating the basis of transaction with regard to a flight to Miami in October 2001; 9  a tsunami making the continuation of a package holiday unreasonable; 10 or  an infectious disease (SARS) making it unreasonable to visit certain destinations within a package tour. 11 The Supreme Court held that the considerations of the ABGB justify the derivation of a general principle of law according to which a party is not bound by the transaction or can demand its adjustment if a precondition does not apply, which is always the basis of a transaction of the type concluded - in particular if a journey becomes impossible or unreasonable for the traveller due to events arising after the conclusion of the contract, which are neither the responsibility of the traveller nor of the contracting party and cannot be influenced by either party. 4.2. Germany The Germany Civil Code 12 has a particular provision on the discontinuation of the basis of the transaction 13 according to which a party which, taking into account all circumstances, cannot reasonably be expected to adhere to an unchanged contract may demand adjustment of the contract if circumstances which have become the basis of the contract have changed seriously after the conclusion of the contract and if the parties would not 7 Oberster Gerichtshof (OGH). 8 OGH 8 Ob 99/99p; 1 Ob 257/01b. 9 OGH 9 Ob 42/04y. 10 OGH 10 Ob 2/07b. 11 OGH 4 Ob 103/05h. 12 Bürgerliches Gesetzbuch (BGB). 13 Sec. 313 BGB.