Groupon package travel and liability for failure to perform the offered services
Journal title RIVISTA ITALIANA DI DIRITTO DEL TURISMO
Author/s Giovanni Cirillo
Publishing Year 2018 Issue 2017/20-21
Language Italian Pages 34 P. 350-383 File size 238 KB
DOI 10.3280/DT2017-020009
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The first issue concerns the inappropriate choice of law reference made by the Judge; a second important question arises whether a combination of services including meals, alongside accommodation, could be considered as a "package" according to its legal definition: the relevant analysis, which is carried out through the analysis of the "other tourist services" requirements - i.e. "non-ancillarity" and "accounting for a significant proportion" - is needed to justify the applicability ratione materiae of the legislation on "organized tourism contracts" to the relevant case, that cannot absolutely be taken for granted, despite the absence of any motivational engagement by the ruling on this point, seems to suggest the opposite. Then, the main substance of the decision can be questioned: after having drawn a schematic reconstruction of the framework of the subjective categories and contractual relationships involved in the "sale of packages", we could contextualize, on one hand, the position taken by Groupon corporation and, on the other, the nature of the obligation which has not been performed. Since the obligation to perform the services included in the package concerns the "Organized Travel Contract", whose party is not Groupon corporation which, instead, takes on the role of “retailer” (or "intermediary") but the owner of the resort, it is questionable if the intermediary may be considered responsible for the infringement of the organizer’s obligations: this question has to be answered negatively, because, according to the most persuasive interpretation of art. 43 of the “Tourism code”, these two subjects are not jointly and severally liable, but each of them is liable only for the obligations that he has personally assumed towards the tourist.
Giovanni Cirillo, "Vendita di pacchetti turistici" tramite Groupon e responsabilità per l’inadempimento dei servizi promessi in "RIVISTA ITALIANA DI DIRITTO DEL TURISMO" 20-21/2017, pp 350-383, DOI: 10.3280/DT2017-020009