Cancellation by the traveller of a travel and holidays sales contract
Under article L.221-28-12° of the French Consumer Code, the right of withdrawal for distance contracts does not apply to tourism contracts, i.e. contracts for “the provision of accommodation services, other than residential accommodation, goods transport services, car hire, catering or leisure activities to be provided on a specific date or at a specific time”.
On the other hand, the traveller has what we might call :
- An option to withdraw from the contract under article L. 211-14, I of the French Tourism Code: “I.-The traveller may cancel the contract at any time before the start of the trip or holiday. In this case, the seller may require the traveler to pay appropriate and justifiable cancellation fees (…)“.
- An option to cancel the contract, as set out in article L. 211-14, II of the French Tourism Code: “II.-The traveller has the right to cancel the contract before the start of the trip or holiday without paying cancellation fees…“.
Right to withdraw vs. right to terminate
The traveler’s right to withdraw from the contract refers to the traveler’s right to terminate or cancel a travel contract before its execution, in return for payment of compensation.
This allows the traveler to waive further performance of the contract for a variety of reasons, generally including personal ones for which he or she needs neither to state nor provide proof of their occurrence to the tourism professional with whom he or she has contracted.
In practice, contractual documents provide for cancellation charges which are higher the closer the departure date. The mechanism put in place allows the customer to withdraw from the contract in return for payment of a sum of money.
This legal mechanism is known as a right of withdrawal, although it is referred to as a “résolution” of the contract in article L. 211-14, I of the above-mentioned French Tourism Code, the concept of which applies more precisely to II of the same article, as developed below.
The principle of termination previously existed in cases of force majeure. It is now applicable, since the new wording of article L. 211-14, II of the Tourism Code resulting from the ordinance of December 2, 2017, for exceptional and unavoidable circumstances occurring at the destination or in the immediate vicinity thereof, which have significant consequences on the performance of the contract or on the carriage of passengers to the destination.
The hypotheses that give entitlement to this termination, which this time the traveler will have to prove, have therefore been restricted, since only those hypotheses qualified as exceptional and unavoidable allow recourse to it.
These exceptional and unavoidable circumstances obviously refer to the notion of force majeure in article 1218 of the French Civil Code. However, the traveler is only entitled to terminate the contract if these events occur at or near the destination.
Consequences of the traveler’s right to withdraw or terminate the contract
With regard to the right of withdrawal :
- Travel contracts set specific deadlines before which the traveler may cancel without financial consequences.
- Once this period has elapsed, cancellation fees may be charged by the tourism professional, proportional to the total cost of the trip or based on a scale contractually defined in the travel contract or the professional’s general terms and conditions of sale.
These cancellation charges must be reasonable, i.e. calculated on the basis of the date of breach of contract before the start of the trip or holiday, and on the basis of the cost savings and revenue expected to be generated by making the travel services concerned available for sale to another customer.
In addition, a balance must be struck between the conditions and penalties to be borne by the traveler and those to be borne by the tourism establishment, which may be the cause of a breach of contract, this time on its own initiative, in line with the provisions of article L.212-1 of the French Consumer Code, which provides that “In contracts concluded between professionals and consumers, terms are unfair if their purpose or effect is to create, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract”.
With regard to the right to terminate the contract :
- The contract must be rescinded before the start of the trip or holiday.
- If the events on which the traveler relies are indeed verified from the point of view of the definition given by the French Tourism Code (article L. 211-14, II – see above), the traveler is entitled in this case to full reimbursement of payments made, but not to additional compensation.
This reimbursement is made “as soon as possible and in any event no later than fourteen days after the contract has been terminated”, as specified in article R 211-9 of the French Tourism Code.
Cancellation insurance as an alternative to contract termination
Cancellation insurance enables travellers to protect themselves financially in the event of cancellation of their travel and holiday contract.
Cancellation insurance is necessarily optional, and if the traveler wishes to take out such insurance, it is generally taken out separately from the travel contract.
Failure to do so would be tantamount to tying practices, which are prohibited under article L.122-1 of the French Consumer Code: “It is forbidden (…) to make the sale of a product conditional on the purchase of a fixed quantity or the concomitant purchase of another product or service, or to make the provision of a service conditional on the provision of another service or the purchase of a product.”
In any event, if you would like to obtain a legal opinion specific to your case, or to obtain further information on how to end travel and holiday sales contracts, or on cancellation insurance, our lawyers are at your disposal to answer all your questions and advise you.
Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Tourism Law Department
09 72 34 24 72