conclusion of the travel contract
So far we learned that the
travel contract is the all-important legal center of package travel
law. But how does it come about?
In Germany, a potential traveler seeking to book his holidays will usually go to a "Reisebuero" travel agency located near him. Think of the travel agency as a sort of broker-realtor, only he is not offering o choice of realty from different owners, but different travel packages from many different tour operators' programs.
Typically, the customer would ask for a certain destination or type of travel, and the travel agency employee will show him matching offers from different operators.
As regards the offer(s) from a specific operator, the travel agency with its employee is acting as a legal representative of that operator: the operator employs the travel agency and its personnel to actually get in contact with the traveller and legally fulfill their pre-contractual and contractual duties (mostly duties to give certain information etc.).
It is important to note here that the travel agency itself is not party to the travel contract. The (oral, or most likely tacit) agreement between the travel agency and the customer entering the shop to have the former look for an appropriate journey and advise the latter correctly on the different offers is a different, own contract referred to as the travel agency brokering contract. Then, as a representative of an operator dealing with a specific travel package of the operator, the travel agency's actions will for and against the represented operator, compare § 164 I BGB.
I will take a closer look at the travel agency brokering contract incl. liability in a separate article one of these days when I get around to doing it. For now let's focus on the travel package again. The traveler finally decides on a certain offer and wants to book it. This is the offer to conclude a respective contract, § 145 BGB. The tour operator will then respond by sending a confirmation immediately electronically or soon thereafter via mail. That would be the acceptance of the offer, § 147 I BGB, and the contract would be concluded.
What if the tour operator's confirmation = acceptance differs from the travelers offer? Well, obviously it can not be an acceptance then. Rather, it is to be considered a rejection in conjunction with a new offer for a contract with the new differing content, § 150 II BGB. I.e., there is no contract yet, we still need an acceptance of that new offer by the traveler. This acceptance may be explicit, or by an (actual) act that implies acceptance. If the customer rejects the differing conditions, or simply doesn't say or act at all, then we have no acceptance and hence no travel contract.
To illustrate:
Mr X opts for the offer of tour operator HolidayFun for a 2 week vacation in the Bahamas, incl. accommodation in the hotel Beach Palace, half-board, flight to and from, for the price of 1.099,00 EUR. For whatever reason the operator however sends a confirmation for vacation with -ceteris paribus- full board for the price of 1.199,00 EUR.
If the traveler now pays the price of 1.199,00 EUR then without any further communication the new contract has been agreed upon. If Mr X calls up the operator and openly rejects the conditions in the "confirmation" (and tells the lady at the phone in rather unkind words what he thinks about this), then there is no contract. If he doesn't pay and doesn't act at all we also have no contract due to a lack of acceptance.
Next we are going to take a closer look at the parties to the contract next.
In Germany, a potential traveler seeking to book his holidays will usually go to a "Reisebuero" travel agency located near him. Think of the travel agency as a sort of broker-realtor, only he is not offering o choice of realty from different owners, but different travel packages from many different tour operators' programs.
Typically, the customer would ask for a certain destination or type of travel, and the travel agency employee will show him matching offers from different operators.
As regards the offer(s) from a specific operator, the travel agency with its employee is acting as a legal representative of that operator: the operator employs the travel agency and its personnel to actually get in contact with the traveller and legally fulfill their pre-contractual and contractual duties (mostly duties to give certain information etc.).
It is important to note here that the travel agency itself is not party to the travel contract. The (oral, or most likely tacit) agreement between the travel agency and the customer entering the shop to have the former look for an appropriate journey and advise the latter correctly on the different offers is a different, own contract referred to as the travel agency brokering contract. Then, as a representative of an operator dealing with a specific travel package of the operator, the travel agency's actions will for and against the represented operator, compare § 164 I BGB.
I will take a closer look at the travel agency brokering contract incl. liability in a separate article one of these days when I get around to doing it. For now let's focus on the travel package again. The traveler finally decides on a certain offer and wants to book it. This is the offer to conclude a respective contract, § 145 BGB. The tour operator will then respond by sending a confirmation immediately electronically or soon thereafter via mail. That would be the acceptance of the offer, § 147 I BGB, and the contract would be concluded.
What if the tour operator's confirmation = acceptance differs from the travelers offer? Well, obviously it can not be an acceptance then. Rather, it is to be considered a rejection in conjunction with a new offer for a contract with the new differing content, § 150 II BGB. I.e., there is no contract yet, we still need an acceptance of that new offer by the traveler. This acceptance may be explicit, or by an (actual) act that implies acceptance. If the customer rejects the differing conditions, or simply doesn't say or act at all, then we have no acceptance and hence no travel contract.
To illustrate:
Mr X opts for the offer of tour operator HolidayFun for a 2 week vacation in the Bahamas, incl. accommodation in the hotel Beach Palace, half-board, flight to and from, for the price of 1.099,00 EUR. For whatever reason the operator however sends a confirmation for vacation with -ceteris paribus- full board for the price of 1.199,00 EUR.
If the traveler now pays the price of 1.199,00 EUR then without any further communication the new contract has been agreed upon. If Mr X calls up the operator and openly rejects the conditions in the "confirmation" (and tells the lady at the phone in rather unkind words what he thinks about this), then there is no contract. If he doesn't pay and doesn't act at all we also have no contract due to a lack of acceptance.
Next we are going to take a closer look at the parties to the contract next.
© M. Hofbauer 2010; 2011(V1.08c) Impressum