Case law

  • Case Details
    • National ID: Xa ZR 99/06
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 09/06/2009
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 5, 4.
  • Headnote
    The claims of the social security institution that culpably fails to assert its claims to damages, from a travel contract ceded to it, against the travel organiser within a month following the end of the travel are inadmissible, even when the traveller has asserted his claims in time (continuation of BGHZ 159, 350).
  • Facts
    A married couple had booked a trip to Mexico with the defendant. During a bus tour that was part of the travel, there was an accident. The defendant had the couple flown to Germany by air ambulance, reimbursed the travel cost and paid damages for pain and suffering. The claimant, the health insurance company of the couple, claimed from the defendant, damages for the treatments to the amount of 136,649.67 EUR with interest, as well as a declaration of liability for any further damage arising in the future. However, these claims were only asserted after the expiration of the one-month limitation period under article 651g of the German Civil Code. The claim failed in the court of appeal.
  • Legal issue
    The Federal Court of Justice rejected the appeal from the claimant. The cut-off period had to be respected by each claimant for his claims. The protective purpose of the cut-off period, to grant the travel organiser certain knowledge of the claims asserted against him, would not be fulfilled if only the traveller asserted his own claims. With this, the travel organiser cannot yet be certain whether further claims will be asserted against him from assigned rights and to what extent he will be responsible. It is also conceivable that the travel organiser would not have sufficient cause to determine the situation or to secure evidence, for instance because the amount claimed by the travellers themselves is very low or because simple goodwill suggest the payment or because recourse against the claim seems uneconomical in light of the amount claimed. If the travel organiser, after the assertion of claims of one claimant, had to expect the assertion of further claims for unknown amounts from unknown claimants without a time limit, then the protective purpose of article 651g of the German Civil Code would not be met. Furthermore it would lead to considerable legal uncertainty if the decision, whether the claimant from assigned claims can rely on the assertion by the traveller, depended on whether the traveller still had claims of his own for amounts that justify the necessity of rapidly securing evidence.
  • Decision

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