Force majeure is characterized by the unforeseeability, irresistibility, and exteriority of the event that prevented the execution of the contract (Civil Code, Art. 1148).
WHAT IS A CASE OF FORCE MAJEURE?
When a travel agency cancels a trip, it is not considered liable if force majeure is the cause of the cancellation.
In the event of cancellation of trips, stays, tickets, or, more seriously, when a transport accident occurs, a company is relieved of its liability, and thus of its duty to compensate, if the concept of force majeure is taken into account.
Following airport closures caused by the volcanic ash cloud, travel agencies invoke force majeure.
It exempts them from their liability in case of non-performance of the contract (Article 23 of the law of July 13, 1992, relating to the organization and sale of trips and stays).
Tour operators are not legally obliged to provide financial compensation or to provide services at their expense to stranded travelers. However, a commercial gesture might be granted by some brands.
Compensation must be paid by the party responsible for the damage. As liability between two parties can sometimes be difficult to determine, it is up to an inquiry commission to rule on the matter. Only the concrete and irrevocable fault of the victim, or the intervention of an unforeseeable and insurmountable event as force majeure, can exempt a company from its liability.
The Case of Force Majeure
Already difficult to define previously, the concept of force majeure has become even more so with the emergence of new risks such as tsunamis, typhoons, terrorist attacks… Nevertheless, the courts have endeavored to regulate some aspects despite its jurisprudential nature.
What constitutes force majeure?
In the case of a Tsunami, there is no doubt that the event indeed exhibits the characteristics of exteriority, unforeseeability, and irresistibility, which constitute force majeure.
Strikes or riots are not always cases of force majeure. Regarding strikes, in particular, it all depends on whether they were announced or not, whether measures could have been taken… The courts rule on a case-by-case basis.
Conversely, regarding airplane breakdowns, for example, force majeure is generally not recognized, as judges consider that the company is responsible for verifying the proper functioning of the equipment.
Foreseeability of Risk
This concept is still interpreted by case law.
Thus, for example, a travel agency was held liable in June 2000 for the moral damage claimed by clients who were victims of their bus being attacked by an armed group during an adventure tour. The court recognized that the tour operator should have inquired more thoroughly about the risks of terrorism in that region.
Nevertheless, the foreseeability of a risk has its limits, as proven by extreme climatic events such as cyclones, where the intensity and trajectory of the event cannot always be predicted in advance, even by meteorologists.
Canceled Trip: What Compensation? Consequence of Force Majeure Status?
If the cause of the cancellation by the professional is not considered a force majeure event, the buyer must receive an immediate and penalty-free refund of the amounts paid.
In case of force majeure, the agency is not considered liable for the non-performance or improper performance of the contract.
It is not obliged to pay damages to its clients. At most, it can offer a date change, a new destination… In this regard, it is up to each agency to determine its response on a case-by-case basis.
To revisit the Tsunami example, it was not feasible to refund all tickets, as this solution would not have been economically viable. The National Union of Travel Agents (SNAV) then issued a recommendation to adapt the replacement offer to the urgency.
Individuals scheduled to depart in the week following the Tsunami were offered a refund, while those scheduled for departure between 10 days and one month after the event were rather directed towards a new date or a new destination.
Some clients, deterred, decided to cancel themselves. The agencies then granted them a reduction in cancellation fees…