As usual, when summer ends the number of Court cases is increased by a peculiar kind of disputes: those concerning claims for damages caused by contractual breaches of tour operators and travel agents.
These situations are referred to as “damages for ruined holidays”. What are they exactly, and what are the safeguards for those who are effected by them? We can speak of damages for ruined holidays when the non-performance or the improper performance of the services covered by the tour package is not of minor importance pursuant to Article 1455 of the Italian Civil Code: if this is the case, in addition to and regardless of the termination of the contract, the tourist may claim the damages related to the holiday time spent uselessly and to the unrepeatability of the lost opportunity (Article 47 Tourism Code). More precisely, it is a kind of non-pecuniary damage which has to be distinguished from the actual pecuniary damage, which, on the contrary, produces an economic loss (for example, loss of baggage by the airline company).
As specified by the article, however, such damage arises if, and only if, the non-performance or the improper performance are “not of little importance”. Case law clearly excludes such kind of damage in case of tolerable discomforts. Therefore, not all inconveniences can justify claims for compensation for such non-pecuniary damage. In fact, the presence of discomfort exceeding a minimum tolerable threshold is necessary. Such discomfort must be assessed with regard to the single incidents to be appraised by the Judge on the merits (Court of Milan Section XI, 24/04/2013).
In order to legitimately exercise the right to recover the allegedly suffered damages, a “filter evaluation” -to be made in conscience- is needed so that each individual case is actually protected by the law. A necessary prerequisite for claiming damages is that of having actually passed that “minimum threshold of tolerability” which the Tourism Code and the subsequent case-law consider an indispensable condition in order to obtain compensation for the damage caused by a ruined holiday.
(Bologna Office – Stefano Campogrande – 0039 (0)51 2750020)
