the traveler
The "traveler" is legally defined in § 651a I 2
BGB
as the one who is contractually obliged to pay the price of the travel
package to the tour operator. Please note that there is no talk
whatsoever of the traveler actually taking part in the
voyage and actually travelling.
Obviously, most of the time the traveler will
also be the person that goes on the trip. But indeed it can just as
well happen that the traveler doesn't travel, yet a different person
actually participates in the travel but is not traveler in the sense of
the travel contract.
To illustrate:
The parents of best friends Amanda and Becky want to give them a special gift for their college graduation. So their mothers go into a travel agency and book a trip for them on a cruise ship in the Caribbean; since it is a gift obviously their mothers are going to pay for it.
In this case the mothers of Rebecca and Amanda would be the "travelers" because they are parties to the travel contracts and obliged to pay the price for the cruise. Becky and Amanda themselves would go travelling but they would not be "travelers" in the sense of § 651a I BGB; they are not party to the contract; they would only be beneficiaries of the contact, benefitting third persons, and as the ones actually travelling they would be the participants, consuming users, of the journey.
For ease of future reference in the following text, allow me to use the terms "legal traveler" and "actual traveler" to discern between these two roles.
Again, in most cases, usually, a person will be both actual and legal traveler at the same time.
If you go and book a trip for yourself then you will be both legal traveler as a contract party to the travel contract, and actual traveler undertaking the journey.
But since it is not part of the legal definition of the traveler in § 651a BGB that he must undertake the travel himself, the actual traveler may be a third person. This third person is not party to the contract in the sense that it took part in concluding it or in the sense that direct primary contractual duties arise out of the contract for the third person (i.e., he doesn't have to pay for the trip). That third person is merely benefitting from the contract in the sense that it can claim the contractual services for her own use/consumption:
(excursion into the legal figure of a contract to the benefit of a third party)
Obviously, two people cannot make a contract between themselves to the detriment of an outside third party, i.e., a contract that produces contractual obligations for a third person: if I sell you the car of my neighbor, he is obviously not bound by that contract to hand it over to you (unless I was legally representing him when concluding the contract, e.g. with a power of attorney) . But it is possible that two parties conclude a contract that creates contractual rights for a third person. Think of a life insurance, where the insured party will designate a third person that should receive the insurance sum given the occurrence of the insured event (=death of the insured party).
In our much brighter example the mother of Amanda concludes a contract with the tour operator (content: to provide a cruise for Amanda) and is obliged to pay the price. Her daughter can claim the voyage for herself.
Some argument exists over whether that benefitting third person can also claim liability rights should the trip turn out to be faulty, or rather, to what extent she holds such rights herself. It is my personal opinion that for sheer practical purposes the benefitting third party must possess these rights itself: Amanda and Becky on their cruise are distanced quite a bit already, but think of some Charlie who is on a jungle expedition in Indonesia, the trip being a gift of his father, and finds the expedition faulty and in need of relief or termination.
I think the idea of the benefitting third party being able to possess and voice (eventually all) liability rights itself is catching on in German travel law. This should suffice for now, we shall discuss this in a dedicated article in the future and return to our regularly scheduled program for now ;-)
next up: the tour operator.
To illustrate:
The parents of best friends Amanda and Becky want to give them a special gift for their college graduation. So their mothers go into a travel agency and book a trip for them on a cruise ship in the Caribbean; since it is a gift obviously their mothers are going to pay for it.
In this case the mothers of Rebecca and Amanda would be the "travelers" because they are parties to the travel contracts and obliged to pay the price for the cruise. Becky and Amanda themselves would go travelling but they would not be "travelers" in the sense of § 651a I BGB; they are not party to the contract; they would only be beneficiaries of the contact, benefitting third persons, and as the ones actually travelling they would be the participants, consuming users, of the journey.
For ease of future reference in the following text, allow me to use the terms "legal traveler" and "actual traveler" to discern between these two roles.
Again, in most cases, usually, a person will be both actual and legal traveler at the same time.
If you go and book a trip for yourself then you will be both legal traveler as a contract party to the travel contract, and actual traveler undertaking the journey.
But since it is not part of the legal definition of the traveler in § 651a BGB that he must undertake the travel himself, the actual traveler may be a third person. This third person is not party to the contract in the sense that it took part in concluding it or in the sense that direct primary contractual duties arise out of the contract for the third person (i.e., he doesn't have to pay for the trip). That third person is merely benefitting from the contract in the sense that it can claim the contractual services for her own use/consumption:
(excursion into the legal figure of a contract to the benefit of a third party)
Obviously, two people cannot make a contract between themselves to the detriment of an outside third party, i.e., a contract that produces contractual obligations for a third person: if I sell you the car of my neighbor, he is obviously not bound by that contract to hand it over to you (unless I was legally representing him when concluding the contract, e.g. with a power of attorney) . But it is possible that two parties conclude a contract that creates contractual rights for a third person. Think of a life insurance, where the insured party will designate a third person that should receive the insurance sum given the occurrence of the insured event (=death of the insured party).
In our much brighter example the mother of Amanda concludes a contract with the tour operator (content: to provide a cruise for Amanda) and is obliged to pay the price. Her daughter can claim the voyage for herself.
Some argument exists over whether that benefitting third person can also claim liability rights should the trip turn out to be faulty, or rather, to what extent she holds such rights herself. It is my personal opinion that for sheer practical purposes the benefitting third party must possess these rights itself: Amanda and Becky on their cruise are distanced quite a bit already, but think of some Charlie who is on a jungle expedition in Indonesia, the trip being a gift of his father, and finds the expedition faulty and in need of relief or termination.
I think the idea of the benefitting third party being able to possess and voice (eventually all) liability rights itself is catching on in German travel law. This should suffice for now, we shall discuss this in a dedicated article in the future and return to our regularly scheduled program for now ;-)
next up: the tour operator.
© M. Hofbauer 2010; 2011(V1.08d) Impressum