Sometimes a contract includes more that what is written on the document. Representations made at the time the holiday was booked, orally or even in the form of photographs / promotional brochure illustrations may be held to be legally binding.

A recent decision of the Italian Supreme Court ( Cassazione 04.03.2010 No. 5189) proves that illustrations on a promotional brochure are “terms” of the holiday contract. Any breach of these terms entitles the disgruntled holidaymaker to damages.

This case originates from a package holiday booked by two Italian tourists in Crete. Attracted by a glossy brochure showing a pristine sea and an impeccable beach, the tourists had booked their holiday with their tour operator. To their dismay, upon arrival at the selected hotel the holidaymakers found that the sea was heavily polluted and the beach was littered with rubbish.

Given that complaints did not resolve the issue, the unfortunate holidaymakers had to find alternative accommodation, incurring substantial, unexpected expenses.

Upon their return home, the holidaymakers sued the tour operator under Italian legislation which implements EC Directive 90/314.

In first instance, the local Court in Pordenone (Italy) rejected their claim on the basis that the beach and the sea were not owned by the hotel and that their plight was not imputable to the tour operator.

This decision was appealed against, and the Trieste Court of Appeal quashed the first instance decision and awarded damages to the unfortunate holidaymakers.

This judgment was in turn appealed against by the company that, in the meanwhile had taken over the tour operator, in the Italian Supreme Court (Corte di Cassazione), on the following grounds:

– tour operators have no control and can not be responsible for the state of the sea / beaches even if a photo is printed on the promotional brochure for the relevant holiday.
– tour operators are not under a duty to provide the reasons for the unsatisfactory state of the sea / beach, over which they have no control
– no detailed evidence had been provided by the holidaymakers as to the alleged damages suffered.

The Italian Supreme Court rejected the appeal and confirmed the decision of the lower Court. The relevant Italian legislation which regulates package travel and holidays states that:

in case of breach of contract or incomplete performance of the obligations arising from the sale of package holidays, the organising body and the seller of the holiday are jointly liable for the damages (in proportion to the respective responsibilities, and subject to their being able to prove that the damages occurred for causes which are outside their control), with the additional provision that the organizer / seller who uses other service providers, is always liable for the damages caused to consumers,
Given this legislation, the judgment which has held the travel organiser liable for the breach of the contract with the current respondents, cannot be criticised.

The breach of contract in this case being the difference between what was promised (that is contractually agreed as to the quality of the original package holiday offer, by the said promotional brochure – which is an integral part of the contract) and what has actually been made available as performance of the contract…”.

The Italian Supreme Court also added that the legislation in question, aiming to protect the weaker party (in this case, the holidaymaker), expressly provided for a reversal of the burden of proof. It was therefore up to the tour operator to prove that they were not in breach of contract and that the photographs in the promotional brochure were indeed a correct representation of the package holiday offered.

Finally, on the point relating to damages, the Italian Supreme Court held that in assessing the damages, the lower Court had a discretion to assess on the basis of an equitable valuation of the known circumstances.

Summary: Tour operators should better ensure that their promotional material correctly represents the true state of the area where package holidays offered for sale are to take place.

Dr Claudio Del Giudice
Copyrights reserved 12.08.2010