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

the administration did not grant the change of urban development classification of the land 17 . The doctrine is often compared to or even seen as a sub-category of the doctrine of “ clausula rebus sic stantibus ” and is also accepted in COVID-19 related cases as for example tenants of premises used as a nightclub, suspending the payment of the rent until the premises are allowed to reopen. 18 5. Application of the Doctrine of “Frustration of Purpose” or “Discontinuation of the Basis of the Transaction” in Various Case Scenarios Related to the COVID-19 Pandemic 5.1. Destination affected by a high infection rate and/or a lockdown of public life In a scenario where the destination is affected by a high infection rate and/or a lockdown of public life whereas the carriage to that destination remains possible, the impact on the hotel reservation contract between the package organiser and the hotel operator on the one hand and on the contract of carriage between the organiser and an air carrier on the other hand may be different. As far as the hotel reservation contract is regarded, it can be argued that a precondition of the contract which was taken for granted by both parties was the provision of accommodation to tourists for leisure purposes. If, because of high infection rates and/or a lockdown of public life, any leisure activities become impossible or at least unreasonable it could be considered as a frustration of purpose according to the doctrine and the organiser may have a chance to claim back his payments to the hotel operator or defend himself against a claim brought forward by the hotel operator. A bit more difficult is a situation when public life is still possible but expected to be closed down during the period of reservation. In such cases, an objective probability will be required in order to to justify a lapse of the basis of the contract. Given the multiple factors which are influencing the spreading of the pandemic and the measures taken by governments to protect the health of the citizens it does not seem reasonable to require 17 Tribunal Supremo, Sentencia de 21 de julio de 2010. 18 Auto del Juzgado de Primera Instancia No. 81 de Madrid, 447/2020 de 25 Sep. 2020, Proc. 473/2020