Today, the issue of closing the borders of Ukraine and the borders of other countries in connection with the spread of acute respiratory disease COVID-19 caused by the coronavirus SARS-CoV-2 is quite acute. This situation had the greatest impact on the tourism sector: contracts for the provision of tourist services were concluded, but services for it were not provided. What to do next and how to deal with the funds paid to the account of the unreceived tourist product?
At first glance, the tourist thinks that the situation is stalemate and can be resolved only by agreeing to the proposals of the tour operator. In the legal community, this situation is regarded as such when the tourist as a consumer is a weaker party in the contractual relationship with the tour operator. In this aspect, it should be borne in mind that the relationship between the tourist and the tour operator (travel agent) is contractual, as it is mediated by the contract concluded between them for tourist services. Consequently, the provisions of the Civil Code on the need to take into account the requirements of consumer protection legislation should be applied to such relations. According to the Law “On Consumer Protection” (parts 1, 2 of Article 18), the seller (performer, manufacturer) must not include in contracts with the consumer conditions that are unfair. The terms of the contract are considered unfair if, contrary to the principle of good faith, it results in a significant imbalance of contractual rights and obligations to the detriment of the consumer. In addition, the rights of the consumer are considered in any case violated if the principle of equality of the parties to the contract to which the consumer is a party is violated.
The Civil Code of Ukraine, the Laws “On Tourism” and “On Consumer Protection”, as well as the agreement concluded between the tourist and the tour operator (travel agent) remain key in resolving the situation that has arisen in connection with the introduction of quarantine. Depending on the position of the tourist, the following situations may develop.
The tourist wants to use the tourist service as soon as possible
As a rule, in such a situation, the tour operator (travel agent) offers to sign an additional agreement, which provides for new conditions of the tour. In such cases, you should pay attention to the wording that the tour operator (travel agent) uses in such an agreement. Quite often tour operators (travel agents) prescribe that in accordance with the additional agreement, the tourist unilaterally refuses the previously agreed tourist service. However, this wording does not correspond to the real reason for the change in the terms of the original contract and imposes a burden on the tourist in the form of the obligation to reimburse the costs actually incurred by the tour operator (travel agent).
In fact, the costs incurred represent the total cost of services for the organization of the contract – a hotel reservation / air transportation, the amount of penalties applied by the air carrier / hotel for refusal of services, etc. According to the Law “On Tourism”, indeed, a tourist in case of unilateral refusal from the performance of the contract for tourist services is obliged to reimburse the tour operator (travel agent) actually incurred by him documented costs associated with the refusal. But the real reason for the change in conditions is the occurrence of force majeure in connection with the introduction of quarantine, which should pay attention to tourists when studying the conditions proposed for signing by the tour operator (travel agent) additional agreement.
As a rule, the contract for tourist services contains certain provisions on force majeure. They can be made in the form of a separate section or a separate item (s) in the contract. It is these provisions of the contract that the parties must be guided by. Each specific contract provides for its own procedure for settling the situation of force majeure. As a rule, it is stipulated that a party who is unable to fulfill its obligations under the contract due to force majeure is obliged to notify the other party within a certain period. However, tour operators (travel agents) abuse their position and do not take this into account in additional agreements and prescribe provisions that are beneficial to them and release them from any liability.
In addition, tour operators (travel agents) quite often in an additional agreement allegedly to transfer the tour prescribe the date by which the tour must be agreed, as well as limit the date of the tour. If the tour operator (travel agent) sent you such an agreement, then in any case do not sign it, because the duration of quarantine is unknown, and therefore it is impossible to be sure that you will be able to make a new tour before the date specified in the additional agreement.
There are other cases when the tour operator (travel agent) invites tourists to sign an additional agreement to change the terms of the contract for tourist services in terms of the parameters of the tourist service, namely to leave the tour positions (country, route, tour dates, hotel, etc.) open ( empty). By signing such an additional agreement, you give the original contract the status of unconcluded. This is due to the fact that the Law “On Tourism” (Part 4 of Article 20) defines an exhaustive list of terms of the contract, which are essential and must be agreed by the parties to the contract and only after agreeing on such terms of the contract will be concluded.
The tour operator (travel agent) may offer different options for an additional agreement – they all require detailed legal analysis, because, at first glance, minor changes to the original contract may result in the fact that you can not only not postpone the tour to another date, but not at all. return the funds paid at the expense of such a tour.
Given that the contract for travel services is a contract of accession (its terms are set by one of the parties in the forms or standard forms), and therefore you can change it by sending a tour operator (travel agent) with a proposal and an annex in the form of its own version of the supplementary agreement , which you are invited to amend the original contract.
The tourist wants to return the money paid to the account of the unreceived tourist product
It is possible that due to their own objective or subjective reasons, the tourist does not want to postpone the tour to another date, and therefore logically the question arises about the return of previously paid into the account of the unreceived tour funds. In this case, you should read in detail and study the provisions of the main contract which may prescribe certain conditions for the return of such funds. They can be issued in a separate paragraph or prescribed in the context of force majeure.
It is possible that the text of the contract will not mention the right of the tourist to demand a refund or, conversely, the prescribed provision according to which the right of the tour operator (travel agent) not to return the tourist for non-provided tourist services. In this case, the relevant actions of the tour operator (travel agent) to refuse to return the money paid into the tour account will be illegal and contrary to Art. 18 of the Law “On Consumer Protection”. In any case, the tourist as a consumer of tourist services must be refunded for the unreceived tourist product. For this purpose, the tourist must submit to the tour operator (travel agent) an application for a refund.
Tour operators may agree to a refund of the relevant funds, but less the costs actually incurred by the tour operator (travel agent). However, it should be noted that even in the Law “On Tourism” it is prescribed that only those costs of the tour operator (tourist) that are documented are calculated. Tour operators (travel agents) may abuse their position and, citing a trade secret, not provide tourists with information on the amount of actual costs incurred. Moreover, according to the air carriers, tour operators (travel agents) collect money, which, although paid to the air carriers, was returned due to the occurrence of the same force majeure.
In such cases, again, it is necessary to read the contract for the provision of tourist services, as in this case it is often prescribed that the parties to this contract in case of conflict are resolved by negotiation. In this case, you will have to settle the issue in a claim and only then go to court.
Thus, tourists should be careful and read the documents offered to them by tour operators (travel agents) before signing. Neofelis Lo Group, having experience in providing legal assistance to tourists, can assure that, studying the proposals of tour operators (travel agents), a systematic vision of legislation in the field of tourism, consumer protection and as previously concluded between tourism market participants documents and those proposed for signing. It is not necessary to expect from the tour operator (travel agent) that he will make concessions. The only right decision is to go to court. In this aspect, the legislation is loyal to tourists and, as consumers, exempts from paying court fees when going to court. When the Law provides opportunities, they should be used!
Lawyer Tarasova KI
Phone: + 38 (050) 471-77-71
neofelis.com.ua/new
Email address: neofelis.lg@gmail.com