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Case Details

Case Details
National ID 0825935
Estado-Membro Portugal
Common Name B. v. D. S.A.
Decision type Outro
Decision date 13/10/2009
Tribunal Tribunal da Relação
Assunto
Requerente
Requerido
Palavras-chave

Package Travel Directive, Article 2, 1. Package Travel Directive, Article 5, 2.

In a contract for package travel, the travel agency is not liable if it is demonstrated that the non-performance is due to the client’s own conduct or to unpredictable handling of a third person who is not bound to provide the services covered by the contract (DL 209/97, art. 39, para 4, lit. c). However, restitution can be granted regardless of liability, if the services planned could not be provided (DL 209/97, art. 30, para 3).
F. contracted with company D. S.A. the service of package travel. The price paid included two-ways flight tickets for F, his wife and minor child, accommodation in hotels all-inclusive and transportation necessary to travel between the hotels and places to visit as foreseen in the travel program, which also included land transfer between Maragogi and Porto Galinhas, in Brazil. During this last trip, the touristic micro-bus crashed against a truck. F died immediately. F’s wife and the represented child claim compensation for “dano das férias arruinadas / damage for spoiled vacation” in form of reimbursement of the value paid for the travel.
The court held that the parts contracted a package travel (contrato de viagem organizada), as in DL 209/97, art. 17 para 2. According to DL 209/97, art. 39, para 4, lit. c) the travel agency is not liable if it is demonstrated that the non-performance is due to the client’s own conduct or to unpredictable handling of a third person who is not bound to the provide the services covered by the contract. In the present case it was demonstrated that the defendant’s impossibility to perform the contractual duties lies on negligent and unpredictable handling of a third person (truck driver).

This fact exonerates the travel agency of responsibility for performance of contractual duties, including the duty to restitute the price paid for the travel as a compensation for “damage for spoiled vacation”, as this would require at least presumption of negligence.

However, according to DL 209/97, art. 30, para 3 “the client has a right of restitution of the difference between the price for the planned services and the price of actually provided services, as well as to compensation in general civil law. Art. 30, para 2 refers also to all situations that make the continuation of the trip impossible, regardless of responsibility of the agency or of the service providers the agency had contracted. This is, moreover, the solution that leads to a more equitable sharing of risks surrounding any trip.

The Court thus granted the restitution of a difference, which corresponds with the price of the planned services for the period between the day after the accident and the return.
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