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

a particular percentage of probability. However, a high degree of probability should be demonstrated in any case. As soon as a hotel becomes subject to an operation ban it is clear that the hotel operator is not capable anymore to provide the contractual services and therefore the organiser is entitled to terminate the contract due to the impossibility of providing the service. As long as flights are still operated it will probably be hard to argue that a high infection rate and/or a lockdown of public life at the booked destination constitutes frustration of purpose or discontinuation of the basis of the transaction. As air transportation can serve a broad variety of purposes there is no “typical” purpose which could be regarded as a precondition taken for granted by both parties. The situation, however, might be different if it is not a scheduled flight service but a charter flight operated solely for the purpose of holiday packages. In the latter case it could be argued that enjoying and/or experiencing life and culture at the destination is a typical precondition the discontinuation of which allows the organiser to withdraw from the contract based on the doctrine of frustration of purpose. 5.2. Carriage of tourists affected because of a travel ban In order to limit the spreading of the COVID-19 disease, many countries introduced travel restrictions. These ranged from bans on leaving one’s own city or region to entry bans for nationals of other states to so-called travel warnings, some of which were also issued as “worldwide travel warnings”. While travel warnings are a non-binding instrument, travel bans are enforceable and definitely prevent the persons concerned from leaving or entering a certain area. With regard to the hotel reservation contract it is doubtful whether any of the situations mentioned can lead to the cessation of the basis of the contract. As long as the services of the hotel operator are not directly affected and accommodation for leisure purposes (at least theoretically) still could be provided it will probably be regarded as a business risk of the package organiser that his customers are prevented from leaving their area of residence or from entering the area of destination – as least as long as the latter area is not completely closed for non-residents.