Tourism Law in Europe

16 - (other missing) cost advantages. 58 A trader is supposed to act as a professional. This includes among other things necessary knowledge of their industry as well as the capacity to spread financial risk across several transactions—characterised as diversification in an economic sense, and pulverisation in a legal sense. The functional demarcation of the consumer concept implies that consumers act outside their profession and are therefore assumed to have limited or perhaps no knowledge of the service or product type to be contracted. An obvious next step, then, is to note one of the assumptions on which the new institutional economic theory is based. Namely, that the individual actor is limited rationally and acts without pertinent information to be found in legal acts such as the Package Travel Directive. Intermediaries or any other contractual party may try to compensate for this via a set of disclosure requirements for the contractual basis, but the consumer is unable to process and translate all relevant information as a result of cognitive constraints. 59 In relation to the current Danish case-law, cited above, the assessment of the court includes consideration of the performance creditor acting as a consumer, thereby placing less demand on his knowledge of the market. The degree of involvement from the performance debtor is also important in terms of how the consumer must logically understand the contractual situation. In the Booking.com case, it seems very difficult to avoid the conclusion that the place of residence must be deemed the consumer’s contracting party and thus the obligor under the contract. Finally, it appears that if a valid intermediary reservation is to be achieved, it must be clear, precise, easily intelligible, and written in a shared language. 58 MØGELVANG-HANSEN, P, Forbrugerrollen som retligt begreb, in Hyldestskrift til Jørgen Nørgaard, (1st ed., Jurist- Og Økonomforbundets Forlag 2003), p. 528. This is a rather early development regarding notions of what characterizes a consumer. 59 In this sense, economic theory could contribute to qualifying the legal requirements to the contract in order to solve the problem of imperfect and asymmetric information between the parties. Thus, law and economics could contribute to qualifying the concept of the consumer. However, cognitive limitations attached to each individual cannot be solved, although the problem of imperfect and asymmetric information can to some extent be solved by applying extensive information requirements in the pre- contractual phase and to the content of the contract.