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Tourism finality and allocation of risk of impossibility of performance
Author/s: Lorena Ambrosini 
Year:  2014 Issue: 12 Language: Italian 
Pages:  14 Pg. 269-282 FullText PDF:  141 KB
DOI:  10.3280/DT2014-012002
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In organised tourism agreements, the practical purpose is supplemented by the reasons for tourism itself. This has the consequence that there is the impossibility of appropriate performance to discharge ones duty in the event that the tourism purpose is unable to be realised. When the omission to provide the holiday is not ascribable to any of the parties, this poses an issue regarding the assignment of the risk originating from such impossibility. Such assignment seems particularly controversial when the events are ascribable to the creditor’s "subjective" realm (for example, the tourist’s sickness or death). Current legal guidance seems to point toward to risk always falling upon the organiser and, consequently, the tourist would not be held to make any payment. However, the answer is unclear, as other opinions emphasise how the same organiser is unable to bear the burden of any unexpected event. In the search for a middle ground, there is the suggestion of the similar application of the laws related to tenders or the maritime transport passenger’s impediment; however, their connection seems doubtful. The return of the "expenses" sustained by the organiser, without specifying the legal ground, does not satisfy the jurisprudential answers aimed at acknowledging such return. Additional pretexts are searched for in the provisions that govern contract resolution in the event of the partial impossibility of the service; however, the solution seems difficult to sustain where the creditor-tourist interest is unable to be fulfilled, not even partially. The answer is able to be found on second reading of the laws that govern restitution duties in the event of the service’s impossibility; this with the belief that the action of undue repetition is a full legal remedy (also able to be tried in the event of a duty to carry out a deed), the organiser would be able to be paid an indemnity commensurate with the services carried out up to the time of the event bringing about the impossibility.

Lorena Ambrosini, Tourism finality and allocation of risk of impossibility of performance in "RIVISTA ITALIANA DI DIRITTO DEL TURISMO" 12/2014, pp. 269-282, DOI:10.3280/DT2014-012002


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