16. April 2013
You see a flight being offered online for an unbeatable price. You book it and receive confirmation of the booking. A week later, you receive notification from the travel booking service (an online travel agency) that the flight has been cancelled at short notice. What are your rights?
Initial advice if an airline cancels your cheap flight
The starting point is that the confirmation of the booking is evidence of a contract between the passenger and the airline. The booking service is not a party to the contract. Most likely, the travel booking service simply receives commission or is financed through (online) advertising. Therefore, the rights passengers have when their cheap flights are cancelled at short notice are contained in the contract between the passenger and the airline.
Contracts under travel law
Even the Romans abided by the principle “pacta sunt servanda” (agreements must be kept). In other words, a person who enters a contract must be willing to be bound by its provisions. Only in exceptional circumstances can a party consider itself not bound by a contract.
Therefore, the general position is that the contract of carriage which evidenced by the confirmation notice cannot be unilaterally set aside.
In German law there is a possibility to rescind a contract. This means that the parties are put back into the position they were in as if the contract had never been made. However, as the possibility to rescind a contract runs contrary to the above principle that agreements are to be kept, the requirements which must be fulfilled in order to rescind a contract are extremely strict. The other party to the contract should, in principle, be able to rely on the contract.
It can occur that an airline which offers a cheap flight has made a mistake when calculating the price. The question is whether the miscalculation can be used as a justification for rescinding the contract (§ 119 German Civil Code, Bürgerliches Gesetzbuch, BGB).
The case law stipulates that where an internal calculation leads to a mistake, it cannot be used as a ground for rescinding a contract where the consumer was not aware of the mistake (BGHZ 139, 177).
The party wishing to rescind a contract must also give notice promptly and without undue delay (§121 BGB). The time limit is assessed on a case-by-case basis. It is, however, generally recognised that, regardless of the circumstances of the individual case, a delay of over two weeks will exceed the time limit. However, the time limit can also be shorter.
The final question concerns the information a notice of rescission must contain (§143 BGB). The word “rescission” does not have to be present in the notice. However, it must be clear to the recipient (i.e. the passenger) what the reasons for the rescission are.
As a result, in the example above a notice of cancellation must be regarded as insufficient to fulfil the legal requirements, especially as it is received from a travel booking agency and not the airline.
The Saudi-Arabian airline in the current case therefore has no grounds for cancelling the cheap flights. The notice of cancellation given by the travel booking agency is insufficient to fulfil the legal requirements to amount to a notice of rescission. This is because a legal ground for rescinding the contract is not apparent. It is also highly likely that the time limit for serving notice of rescission has expired.
Travellers who have booked cheap flights are entitled to fly on the tickets they have bought or to demand compensation measured with reference to the cost of travelling with another carrier.
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Categories: Travel Law