Advantages of concluding a Combined Travel Contract

Article

Advantages of concluding a Combined Travel Contract

The new legal text aims to provide greater protection to the traveler, especially when contracting via the Internet, both for the sale of traditional package tours and the so-called dynamic packages.dynamic packagesIn summary, "the main part of this new regulation insists on the importance of the clients being informed, especially before the purchase of the trip, and that they have all the information that is important" The importance of informing and informing well istranslated in many aspects and, for example, it is established that if before concluding the contract all the information is not provided about: rates, expenses and other additional costs, the traveler will NOT have to bear them.With the evolution of the regulations on package tours, the requirement in relation to the form of this type of contract has become more flexible, so in the now repealed Law 21/1995 of July 6, 1995, regulating package tours, it was established in Article 4. However , in the current Royal Decree Law 23/2018, art 155, it also includes other forms, clarifying that the form must be in writing, although it can be on paper or in any other way, provided that the support is durable and admitting validity to the contract with the mere confirmation, although it can always be required on paper by the traveler. In the case of off-premises contracts, a paper contract is required and only if the consumer agrees may it be in another durable medium: Art 155 "Package travel contracts must be drafted in clear and understandable language and, if they are in writing, must be legible. At the time of conclusion of the contract or without delay thereafter, the organizer or, where applicable, the retailer, shall provide the traveler with a copy of the contract or a confirmation thereof on a durable medium. The traveler shall be entitled to claim a copy of the contract on paper if it has been concluded in the physical presence of both parties.In the case of off-premises contracts, the traveler shall receive a copy of the package travel contract or its confirmation on paper or, if he agrees, on another durable medium."The Royal Legislative Decree 1/2007, of November 16, establishes the definition of what we must understand as "durable medium", art 59. bis, f):"any instrument that allows the consumer and user and the entrepreneur to store information that has been addressed to him personally so that he can consult it in the future for a period of time consistent with the purposes of such information and that allows its faithful reproduction. Among others, paper, USB sticks, CD-ROMs, DVDs, memory cards or computer hard disks, e-mails, as well as SMS messages are considered durable media. "However, we must also bear in mind that, except for the possible inconveniences and suspicions that may be involved in executing a contract, this also brings BENEFITS FOR THE TRAVEL AGENCY, which if not signed would mean, on occasions, the impossibility of its requirement, with respect to certain benefits that the agency can avail itself of.In this way the Royal Legislative Decree 1/2007, of November 16, which approves the revised text of the General Law for the Defense of Consumers and Users and other complementary laws, in the contract THE AGENCY may limit:

  1. The consumer's right of withdrawal:

Article 97. Pre-contractual information on distance contracts and off-premises contracts: "When according to Article 103 the right of withdrawal does not apply, the indication that the consumer and user is not entitled to it, or the circumstances in which he will lose it when it applies to him".

  1. Information on commissions and surcharges to be applied to the consumer:

Art. 154.2 "If prior to the conclusion of the contract the organizer and, where applicable, the retailer do not comply with the requirements for information on commissions, surcharges or other additional costs set forth in Article 153.1.c), the traveler shall not have to bear them."

  1. Cancellation without compensation for not reaching the minimum number of people:

Art. 160.3.a: "Minimum number of persons required, if any, for the realization of the package and, in such case, deadline for informing the consumer and user in case of cancellation, which must be made at least ten days prior to the scheduled date of commencement of the trip".

  1. Modification in the contract before the beginning of the trip:

Art. 158.1. "After the conclusion of the contract, prices may only be increased if the contract expressly reserves this possibility and states that the traveler is entitled to a price reduction in accordance with paragraph 4. In this case, the contract shall indicate how the price revisions are to be calculated."The organizer may not unilaterally change the terms of the contract before the start of the package, with the exception of the price in accordance with Article 158, unless this right has been reserved in the contract, the change is insignificant and the organizer himself or, where applicable, the retailer informs the traveler in a clear, comprehensible and prominent manner on a durable medium."

  1. Application of charges to the consumer if he/she cancels:

Art. 160 "The contract may specify a standard penalty that is reasonable based on how far in advance the termination of the contract is due to the commencement of the package and on the expected cost savings and revenue from the alternative use of the travel services. In the absence of a standard penalty, the amount of the penalty for termination of the contract shall be equal to the price of the package minus the cost savings and revenue from the alternative use of the travel services."

  1. Price reduction and compensation for damages.

Art. 162 : "In other cases, the contract may limit the compensation to be paid by the organizer or retailer provided that such limitation does not apply to bodily injury or damage caused intentionally or negligently and that its amount is not less than three times the total price of the trip."Taking into account everything detailed, we have to make special emphasis to what is specifically established in the regulations, regarding the burden of proof in art. 156 which clearly states: "The burden of proof in relation to compliance with the information requirements set forth in this chapter shall be on the employer."Therefore, it is to the benefit of the agency to require the signature of the documents delivered to the consumer, by any means permitted by law (physical or telematic), and all this in order to assert in a peaceful manner the rights to which he is entitled.And a last consideration, as for the responsibility of the Travel Agency, if it omits the delivery of the copy of the contract and/or confirmation, it supposes an infraction in the matter of tourism, that in the regulation of Madrid established in the Law 1/1999, of March 12, of Arrangement of the Tourism of the Community of Madrid, it is gathered in its art.57 e) as a minor infraction with a penalty of up to 3000 euros.

Paloma Aguilar (Lawyer T&L)