The need to adapt Contracts after the POST-COVID-19 scenario

There are numerous scenarios that have been radically altered as a result of the COVID-19 pandemic, in all areas, but perhaps even more so in the field of tourism. Not only, at the level of all those modifications that will have to be carried out in physical spaces, work and leisure environments, but deficiencies have also come to light in relation to the specificity in the information provided to consumers of travel services, as well as to foresee unlikely scenarios, but which, if they occurred, had been reflected in contracts with suppliers could have materialized the execution of their compliance and exempted from them, if any. The inertia in contracting with suppliers, and their dominant position in the market, has meant, in most cases for travel agencies and tour operators, simple adherence to their contracting conditions, without assessing or specifying the benefit of negotiating the contract for the provision of services with suppliers, and the value added by having suppliers with whom you can negotiate, since in a market sector in which consumer liability in the case of package trips proves to be supportive, it is the agency that must take a special interest in ensuring that its suppliers are also responsible to the customer. In this new era of COVID-19, and post COVID-19, the importance of having clauses included in contracts with suppliers relating to the application of expenses in case of force majeure, as well as the expenses of managing the agency in combined travel contracts with the customers and these same circumstances of force majeure. Supplier contracts are subject to the scope of civil law or, in their case, commercial law, so the clauses may contain any provision accepted in law and by the parties, without further consideration or duty to submit to travel regulations, always, of course, the clauses are valid and legal. However, in travel contracts with end customers, any provision indicated is very limited, since it must conform to the always protective regulation of consumers and users. However, with regard to the management costs that the travel agency may apply in cases of force majeure, it turns out that it is, precisely, one of the applicable provisions contained in the different regional regulations, since tourism is one of the competencies transferred by the State, with respect to the regulation of travel agencies, so, had it been contained in the contract with the passenger, the agency in this situation of COVID-19, could not have been left “with one hand in front and the other behind”, despite the countless steps they have had to take in the above-mentioned cancellations of services that could not be provided. The package travel regulations expressly exclude package travel and related travel services contracted on the basis of a general agreement for the organization of business trips between an entrepreneur and another natural or legal person acting for purposes related to their commercial activity, business, profession or profession. This involves a third review scenario: the one in which In addition, let's schedule business trips for clients, which, although it allows more freedom in its drafting, must comply with the law with respect to clients, but also, as it could not be otherwise, contain the indications that the agency could benefit, when the time comes. With COVID-19, and although following the same measures that were taken a month before in Spain, it was published, with the aim of containing the good economic health of the injured, and fortunately the business rank was also considered, and the Royal Decree was published -law 11/2020, of March 31, which adopts complementary urgent measures in the social and economic sphere to deal with COVID-19. In its art. 36, it refers to the “Right of termination of certain contracts without penalty by consumers and users”, and taking into account its definition in the preamble of Royal Legislative Decree 1/2007, of November 16:“The consumer and user, as defined by law, is the natural or legal person who acts in an area outside of a business or professional activity. That is, it intervenes in consumer relations for private purposes, contracting goods and services as the final recipient, without incorporating them, either directly or indirectly, into production, marketing or provision processes to third parties.”Therefore, they are measures for consumers and users, and by their definition and concept it means that, all the measures contained therein cannot be applied, under any circumstances, to contracts between companies or with businessmen, which means that on a business trip contracted on the basis of a general agreement, there is no rule that establishes that the Travel Agency can issue a replacement voucher, if there is no agreement between the Travel Agency and the company. Therefore, we can affirm, in principle, as has also been qualified by the jurisprudence, in general, it is not I could come to understand that the company that contracts with the Travel Agency for business trips could be considered as a “user” and/or consumer, of course, much less as a consumer as long as the trip was concluded on the basis of a general agreement for the organization of business trips. When, then, we could apply the regulations for package trips in this type of business travel, as in the following:

1. When you have not signed a general agreement for the organization of business trips between the entrepreneur and the other natural person.
2. When we talk about “bleACHURE”, since it is excluded outside the application of the general agreement, the extension of the business trip for the worker but for the leisure and enjoyment of the worker in a company.

These being all the scenarios, at this time, as we have been making the revision much more relevant, and where appropriate, the inclusion of clauses that moderate and, if possible, better address, the consequences and rights for agencies, relating to cancellation conditions, penalties, management costs when there is force majeure, payment deadlines and deposits, etc.

Paloma Aguilar (T&L Attorney)