the travel contract
The legal basis for the package travel trip is the travel
contract.
When the German law talks of the travel contract, it always means travel package contract. This terminology is admittedly a bit imprecise, as from a hermeneutical point of view the contract with a hotel or an airline, the contract with the travel agency to obtain and arrange for a matching travel package, or even the contract between the tour operator and his service suppliers (e.g. with the airline for providing air transfer, with the hotel to provide for accommodation) are travel - related and hence in a general sense are also "travel contracts" of sorts. Indeed originally the legal text that defines the term in § 651a I BGB wanted to use the term "travel organization contract", which is more precise at inferring the tour operator's contractual obligation to provide the complete organization of a journey/the travel. But eventually the politicians in legislation found that longer word too unwieldy and simply shortened it to travel contract.
Btw contract and agreement are synonymous. A contract, oral or written, is an agreement, and a legal agreement is a contract. they are used synonymous here, so don't get confused should I change back and forth between these terms, that has no significance.
The travel contract is obviously defined at the beginning of the legal rules covering the travel contract, namely in § 651a I BGB. A travel contract is an agreement between a tour operator and a traveler that the former shall provide an organized travel package, and the latter pays a specified price for that. If there is an agreement with that content, it is a travel contract.
When does a journey become a package travel that turns the person selling it into a tour operator? The legal text "a complete set of travel services" in § 651a I BGB provides us the legal criteria:
"set" implies that it must be two or more travel services. Travel services in this context can only be primary travel service, not accompanying ancillary services. The respective differentiation has to be made in the context of the individual case.
Take food for example:
The food in the form of a snack you are being given during your flight does not constitute a primary travel service of catering.
However, if you are taking a trip to Mauritius featuring a sumptuous seven-course Sylvester dinner cooked by a world-renowned famous Michelin cook then you are safe to bet that this food constitutes a primary travel service component.
Another example:
The bed you are being given on a ferry or on a railroad sleeper car during your transportation does not turn this mere transportation by ferry or railroad into a travel package itself (of course, if it constitutes merely the transportation element of a whole travel package incl. accommodation at the holiday destination, then all elements themselves are part of a travel package and hence make the Travel Package Law applicable to all individual elements incl. the bed on the ferry or sleeper car).
The bed at your destination, even a modest camp-bed in a tent on a camping expedition, is your accomodation and hence a primary travel service.
I guess you get the idea.
Examples of combinations of at least two primary travel services that constitute a travel package are
flight and hotel
hotel and visit to a theater event
accommodation and a professional mountain guide
Examples demonstrating the opposite:
cabin on a ferry
meals on a flight
flight with airport transfer
accomodation with meals
note: in those latter examples of course a travel package is established as soon as a further primary travel service is added
"complete set" also implies that this set of primary travel services must have been combined into a set and offered as such before the travel contract is accepted by the traveler. This is usually the case when an established tour operator draws up his catalog of holiday tours and offers these catalogs to the public: many packages are offered in this catalog, each for a set price. This requirement is not fulfilled if a tour is arranged according to the individual wishes of the traveler. However again the criteria of a pre-arranged combined set of travel services is met in the case of dynamic packaging or sets of different provided elements that the traveler can choose from according to a set system of the tour operator organizing these offers. Even if you have an online system "travel kit" where the traveler can put together his journey from many options offered, it is still a complete prearranged set because the user will arrive at a set price for his chosen options within the system provided (=prearranged) for by the tour operator.
Finally, the prearranged combination of at least two primary travel services must have a recreational, tourist holiday character. If you read the text literally, then this is not explicitly required by § 651a I BGB. However, if you consider that the background of both the legislation giving birth to the §§ 651a ff BGB as well as the directive 90/314/EEC is the protection of the traveling consumer citizen and the regulation of his journeys, then it becomes apparent that a business traveler, a businessman meeting his customer or going to a convention, iow a business trip, is not covered by this law. However, it is indeed desireable that legislation would clarify the legal ntext itself by adding respective phrasing that would explicitly limit the applicability to tourist holiday travel or exclude business trips.
When the German law talks of the travel contract, it always means travel package contract. This terminology is admittedly a bit imprecise, as from a hermeneutical point of view the contract with a hotel or an airline, the contract with the travel agency to obtain and arrange for a matching travel package, or even the contract between the tour operator and his service suppliers (e.g. with the airline for providing air transfer, with the hotel to provide for accommodation) are travel - related and hence in a general sense are also "travel contracts" of sorts. Indeed originally the legal text that defines the term in § 651a I BGB wanted to use the term "travel organization contract", which is more precise at inferring the tour operator's contractual obligation to provide the complete organization of a journey/the travel. But eventually the politicians in legislation found that longer word too unwieldy and simply shortened it to travel contract.
Btw contract and agreement are synonymous. A contract, oral or written, is an agreement, and a legal agreement is a contract. they are used synonymous here, so don't get confused should I change back and forth between these terms, that has no significance.
The travel contract is obviously defined at the beginning of the legal rules covering the travel contract, namely in § 651a I BGB. A travel contract is an agreement between a tour operator and a traveler that the former shall provide an organized travel package, and the latter pays a specified price for that. If there is an agreement with that content, it is a travel contract.
When does a journey become a package travel that turns the person selling it into a tour operator? The legal text "a complete set of travel services" in § 651a I BGB provides us the legal criteria:
"set" implies that it must be two or more travel services. Travel services in this context can only be primary travel service, not accompanying ancillary services. The respective differentiation has to be made in the context of the individual case.
Take food for example:
The food in the form of a snack you are being given during your flight does not constitute a primary travel service of catering.
However, if you are taking a trip to Mauritius featuring a sumptuous seven-course Sylvester dinner cooked by a world-renowned famous Michelin cook then you are safe to bet that this food constitutes a primary travel service component.
Another example:
The bed you are being given on a ferry or on a railroad sleeper car during your transportation does not turn this mere transportation by ferry or railroad into a travel package itself (of course, if it constitutes merely the transportation element of a whole travel package incl. accommodation at the holiday destination, then all elements themselves are part of a travel package and hence make the Travel Package Law applicable to all individual elements incl. the bed on the ferry or sleeper car).
The bed at your destination, even a modest camp-bed in a tent on a camping expedition, is your accomodation and hence a primary travel service.
I guess you get the idea.
Examples of combinations of at least two primary travel services that constitute a travel package are
flight and hotel
hotel and visit to a theater event
accommodation and a professional mountain guide
Examples demonstrating the opposite:
cabin on a ferry
meals on a flight
flight with airport transfer
accomodation with meals
note: in those latter examples of course a travel package is established as soon as a further primary travel service is added
"complete set" also implies that this set of primary travel services must have been combined into a set and offered as such before the travel contract is accepted by the traveler. This is usually the case when an established tour operator draws up his catalog of holiday tours and offers these catalogs to the public: many packages are offered in this catalog, each for a set price. This requirement is not fulfilled if a tour is arranged according to the individual wishes of the traveler. However again the criteria of a pre-arranged combined set of travel services is met in the case of dynamic packaging or sets of different provided elements that the traveler can choose from according to a set system of the tour operator organizing these offers. Even if you have an online system "travel kit" where the traveler can put together his journey from many options offered, it is still a complete prearranged set because the user will arrive at a set price for his chosen options within the system provided (=prearranged) for by the tour operator.
Finally, the prearranged combination of at least two primary travel services must have a recreational, tourist holiday character. If you read the text literally, then this is not explicitly required by § 651a I BGB. However, if you consider that the background of both the legislation giving birth to the §§ 651a ff BGB as well as the directive 90/314/EEC is the protection of the traveling consumer citizen and the regulation of his journeys, then it becomes apparent that a business traveler, a businessman meeting his customer or going to a convention, iow a business trip, is not covered by this law. However, it is indeed desireable that legislation would clarify the legal ntext itself by adding respective phrasing that would explicitly limit the applicability to tourist holiday travel or exclude business trips.
© M. Hofbauer 2010; 2011(V1.08c) Impressum