Tourism Law in Europe

(a) the failures which occur in the performance of the contract are attributable to the consumer; (b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or (c) such failures are due to— (i) unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; or (ii) an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall. ”. This provision is of particular interest to UK lawyers because it removes a common law defence which would otherwise be available to the other party to the package contract. Under UK law, where a party to a contract subcontracts the performance of its obligations under that contract, it is absolved of responsibility for any failure to perform those obligations properly, if it has subcontracted with a reasonably competent subcontractor such as a reputable hotelier (cf Wall v Silver Wing (1981) Unreported (QBD ), in which this argument succeeded). The Regulations deprive the tour operator of this defence; it remains responsible to the traveller even where the failure to perform the contractual obligations properly is a failure on the part of its reasonably selected supplier. Since the 1992 Regulations came into force, a significant body of caselaw relating to the nature and extent of the obligation owed under the forerunner to Regulation 15 has developed. Because all of the legal systems which make up the UK are precedent-based, the decisions of the higher courts are binding on the lower courts, and must be followed. It is settled law in the UK that a court may imply a term into the holiday contract only that a tour operator will use reasonable care and skill to exclude from the services offered any whose characteristics are such that guests could not enjoy them in reasonable safety (cf in this regard Wilson v Best Travel Ltd [1993] 1 All ER 353 and Hone v Going Places, 13 th June 2001, unreported , in which the imposition of an absolute duty to offer safe accommodation was rejected). The legal test to be applied in cases of this nature is fault- based rather than strict liability, so that the Claimant must show that the Defendant has