Case law

  • Case Details
    • National ID: link
    • Member State: Spain
    • Common Name:Nuria F. P. and Joaquín C. C. v “Viajes Halcón S. A.” and “Nobel Tours”
    • Decision type: Other
    • Decision date: 29/10/2001
    • Court: Audiencia Provincial (Appellate court, Pontevedra)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 4, 6.
  • Headnote
    The cancellation of a trip by the consumer is valid and involves more or less compensation for the organizer of the trip depending on the amount of time in advance the consumer notifies his decision, according to the scale established in the art. 9.4 of the Law 21/1995. But the notification of the cancellation is understood that happened after the start of the trip at the time the addressee is aware of the statement (fax), although it was done before (theory of the reception).
  • Facts
    A couple of consumers agreed a package holiday to go to Bali, leaving on 20th July 1998 at 7.30 from Vigo airport. Once the costs of the trip were paid for (1,858 euros), they had to cancel it due to serious family events. The consumers communicated their decision to the joint defendants (the retailer and wholesaler agencies) through a fax sent on Sunday 19th July 1998, at 20:15 to “Viajes Halcón S.A.” and at 21:15 to “Nobel Tours”, out of office hours. The fax was not read by the addressees until 9.30 of the following day, when the trip should have already started. According to the general clauses of the contract, the consumer could cancel at any time with the right to a refund of the costs paid though with a compensation of 25% of the price if the change of plans happened within 48 hours previous to departure or with a 100% if they did not appear on departure.
  • Legal issue
    Although the claimants sent a fax communicating their change of plans within the deadline of 48 hours previous to departure, “the reason of the notice cannot be other than to facilitate or allow that the retailer as the wholesaler agencies had enough time to cancel the bookings already made or change them for new ones and that depends on whether the declaration of will of the one who cancels reaches them, so it would be necessary to determine whether the addressee knew or did not know that will of the deponent and providing he acted with diligence whether he could and should know it. To that effect is understood that the criterion that appears to be more fitting to the principle of good faith, is the one of trust and the one that better ponders all the interests at stake is the one of the reception. This is the criterion accepted by the majority by the doctrine to constitute or execute a contract so sensu contrario it should be too the one that rules the action of withdrawal”.

    Therefore as the offices opened at 9.30, once the trip had already started in Vigo (7.30), and the consumers did not appear, although the flight Madrid-Bali was not leaving until 13.30 and the hotel was not to be occupied until the next day, it is understood that the departure time was from Vigo, included in the package holiday, so the consumers lost the money due to a late cancellation.
  • Decision

    Full text: Full text

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