We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
29 January 2014
In a recent press release the Federal Court of Justice announced its December 10 2013 decision (X ZR 24/13) in which it deemed two clauses in the general terms and conditions of a tour operator regarding flight time changes to be invalid.
The claimant was the umbrella association of German consumer centres. The defendant tour operator used general terms and conditions which stipulated, among other things, that the definitive determination of flight times rested with the tour operator issuing the travel documents. Information about flight times given by travel agents was thus not binding. The claimant claimed that the clauses were invalid.
The court agreed with the claimant and deemed the clauses invalid, as they led to an unfair disadvantage of passengers against the principle of good faith.
In the court's view, the first clause modified the principal contractual performance promise contained in the travel contract, not only when definitive flight times were agreed, but also when the contract contained only preliminary flight times. According to the court, pursuant to the general principles of contractual interpretation, preliminary flight times are not to be met by all means. However, the court also held that a passenger can legitimately expect that flight times will not be changed without a material reason and that the time frame implied by preliminary flight times will not be disregarded completely. Yet the clause in question allowed the tour operator to change flight times at will, irrespective of whether a material reason had occurred. The court therefore took the stance that this was unreasonable towards passengers, who rightly expected certainty regarding flight times, even taking into account the legitimate interest of the tour operator to adapt the intended flight times to changed circumstances or circumstances which were unforeseeable at the time of signing the travel contract.
In addition, the court held that the second clause led to an unfair disadvantage of passengers, as it allowed the tour operator to elude a contractual obligation which arose from information given by a travel agency acting for the tour operator.
It will be interesting to see the detailed reasoning of the court once the full judgment is available. What is clear already is that this decision will necessitate the amendment of tour operators' general terms and conditions. It will also impact on the contractual relationship of tour operators with airlines and travel agencies, as tour operators will want to shift liability for passenger claims relating to changed flight times or for reduction of travel price arising from the travel contract.
For further information on this topic please contact Katherina Sarah Bressler or Ulrich Steppler at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (email@example.com or firstname.lastname@example.org).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.