Volume 10 - Issue 45
/ September 2021
63
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2021.45.09.6
How to Cite:
Andrusiv, U., Kossak, V., Mykhayliv, M., Fedina, N., & Zabzalіuk, D. (2021). Grounds and consequences of waiver of the contract
on the provision of tourist services. Amazonia Investiga, 10(45), 63-72. https://doi.org/10.34069/AI/2021.45.09.6
Grounds and consequences of waiver of the contract on the provision
of tourist services
Підстави та наслідки відмови від договору про надання туристичних послуг
Received: August 1, 2021 Accepted: September 23, 2021
Written by:
Uliana Andrusiv
19
https://orcid.org/0000-0003-2300-5114
Volodymyr Kossak
20
https://orcid.org/0000-0002-8699-9200
Mariya Mykhayliv
21
https://orcid.org/0000-0002-1702-7432
Nataliіa Fedina
22
https://orcid.org/0000-0002-7521-9635
Dmytro Zabzalіuk
23
https://orcid.org/0000-0002-1041-0148
Abstract
The purpose of the article is to clarify the legal
nature, grounds, realization mechanism and
consequences of waiver of the contract on the
provision of tourist services. The research was
conducted using such methods of scientific
knowledge as dialectical, comparative, formal-
legal, logical-legal. Based on the analysis of
doctrinal approaches and regulations, it is
established that the refusal of the agreement on
the provision of tourist services is a measure of
operational influence and a means of protecting
the civil interest. The grounds for unilateral
waiver of the contract differentiated into
unconditional and those that are a consequence
of violation of its terms. At the same time, it is
stated that this subjective right is exercised in
out-of-court procedure by sending a written
(electronic) notice to the counterparty. In the
context of the COVID-19 pandemic, it is
proposed to give tourists the opportunity to
choose between postponing the trip to another
term and exercising withdrawal from the
agreement. Particular attention is paid to the
19
Candidate of Law, Associate Professor, Associate Professor of the Civil Law Disciplines Department, Institute of Law, Lviv State
University of Internal Affairs, Lviv, Ukraine.
20
Doctor of Law, Professor, Head of the Civil Law and Process Department, Faculty of Law, Ivan Franko National University of
Lviv, Lviv, Ukraine.
21
Candidate of Law, Associate Professor, Associate Professor of the Civil Law and Process Department, Faculty of Law, Ivan Franko
National University of Lviv, Lviv, Ukraine.
22
Candidate of Law, Associate Professor of the Theory of Law, Constitutional and Private Law Department, Institute of Specialist
Training for National Police Units, Lviv State University of Internal Affairs, Lviv, Ukraine.
23
Doctor of Law, Associate Professor, Head of the General Legal Disciplines Department, Institute of Law, Lviv State University of
Internal Affairs, Lviv, Ukraine.
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general and special consequences of lawful
refusal. Based on the study, the authors made
generalizations and conclusions about the state
and prospects of improving the mechanism for
exercising the right to unilateral waiver of the
contract on the provision of tourist services.
Key words: contract on the provision of tourist
services, unilateral waiver of the contract,
measure of operative influence, means of
protection of civil interest, legal and factual
grounds, termination of the agreement, actually
incurred costs.
Introduction
Tourism, as a generator of economic growth of
the state, is an important part of modern people
life. The key legal mean of achieving the main
goal of tourism, which is to provide tourists with
quality tourist services, is a civil agreement.
The purpose of the article is to clarify the legal
nature, grounds, realization mechanism and
consequences of unilateral refusal of contractual
obligations that mediate the provision of tourist
services, identify shortcomings in the legal
regulation of this institution and make
suggestions for their elimination.
When concluding an agreement on the provision
of tourist services, it is impossible to predict all
possible scenarios. In practice, there are often
cases when in certain circumstances the
execution of the agreement becomes impossible
or one of the parties loses interest in it. In order
to normalize such situations and prevent negative
consequences for the contractors of the
contractual obligation, the institution of waiver
of the contract is enshrined in law.
Refusal of the agreement is a fairly common
reason for termination of obligations on
provision of travel services. The application of
this institute became especially important in the
conditions of the COVID-19 coronavirus
pandemic, when due to the established
restrictions on movement and closing of borders
tourists are forced to refuse the ordered and paid
tourist services.
However, the mechanism of realization of the
right to unilateral waiver of the contract on the
provision of tourist services, the consequences of
such actions in practice create serious obstacles
associated with insufficient elaboration of these
issues, as well as incompleteness and
inconsistency of legal norms.
In view of this, issues related to the termination
of contractual obligations on provision of tourist
services due to the refusal of them need deep
scientific and theoretical comprehension and
solutions.
Literature review
Problematic issues of legal regulation of tourism
relations, in particular contractual constructions
used in the field of tourism, have repeatedly been
the subject of scientific research of Ukrainian and
foreign civilians. A significant contribution to the
study of contractual obligations for the provision
of tourist services made in their dissertations
V. O. Kokhanovskyi (2018), R. I. Yavorskyy
(2015). However, scholars have focused on
elucidating their legal nature, content, and
termination. The issue of lawful unilateral refusal
of the agreement on the provision of tourist
services, as a legal basis for changing or
terminating the contractual relationship, has not
received adequate coverage.
At the general theoretical level, regardless of the
specifics of tourist services, the institution of
waiver has been studied by such scientists as
L. M. Baranova (2015), T. V. Bodnar (2012),
R. V. Grynko (2014), I. V. Spasibo-Fateeva
(2021), G. O. Urazova (2015), etc.
The absence of special scientific investigations,
which would comprehensively consider the
features of unilateral waiver from the agreement
on the provision of tourist services, causes legal
uncertainty at the stage of law enforcement,
which is reflected in the controversial legal
Andrusiv, U., Kossak, V., Mykhayliv, M., Fedina, N., Zabzalіuk, D. / Volume 10 - Issue 45: 63-72 / September, 2021
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nature of the refusal, distinguishing of this
category from other grounds for termination of
obligation, which mediates the provision of
tourist services, as well as in determining the
grounds and consequences of refusal of it.
Based on the above, we conclude that a
comprehensive theoretical and applied
generalization of the application features of the
institution of refusal of the contract on the
provision of tourist services is urgent and
necessary.
Methodology
In the process of research, general and special
methods of scientific cognition are used in their
combination. The dialectical method helped to
reveal the grounds and consequences of the
waiver of the contract on the provision of tourist
services. With its help, we differentiated the legal
and factual grounds of the refusal, and also
established that the general consequence of the
exercise of this right is the change or termination
of a binding legal relationship.
Using such logical techniques as synthesis and
analysis, we found that by its legal nature, the
waiver of the contract is a unilateral lawful action
of the authorized party. Depending on whether
the application of the waiver is associated or not
related to breach of contract, it should be
interpreted as a measure of operational influence
or a means of protection of civil interest.
The use of the formal-legal method contributed
to the disclosure of the mechanism for exercising
the right of the refusal of the contract for the
provision of tourist services and the separation of
its constituent elements. Thus, we have
established that the party who waives of the
contract exercises this subjective right by
sending a notice to the counterparty without
recourse to the authorities.
The comparative-legal method was used in a
comparative analysis of Ukrainian legislation
that governs tourism relations with the legal field
of foreign countries and the European Union. As
a result, it is proposed to implement in national
legislation alternative mechanisms for
reimbursement of package tours in a state of
emergency, in particular the COVID-19
pandemic.
The logical-legal method helped to formulate the
conclusions and generalizations and to determine
the consistency of the expressed judgments and
concepts. Thus, this method allowed us to
summarize that the institution of waiver of the
contract for the provision of tourist services is
one of the effective mechanisms for protecting
the rights and legitimate interests of participants
in tourism relations.
Results and discussion
The concept and legal nature of the institution
of waiver of the contract on the provision of
tourist services
Refusal of the agreement must be understood as
defined by law or contract the possibility of a
person to commit a conscious lawful action
aimed at achieving organizational and legal
consequences, ie termination or change of the
contractual relationship, without recourse to the
authorized jurisdictional body.
General provisions on waiver of the contract are
regulated by Art. 651 of the Civil Code of
Ukraine. As follows from the provisions of Part
3 of this rule, the agreement may be terminated
in the event of unilateral waiver of the contract in
full or in part, if the right to such waiver is
established by agreement or law. This regulation
corresponds to Art. 310, 525 of the Civil Code of
Ukraine, which enshrines the prohibition of
unilateral waiver of obligations, its execution,
except when the right to such waiver is
established by agreement or law (Law No. 435-
15, 2003).
One of such exceptions is regulated in a special
law governing tourism relations. In particular,
Art. 20 of the Law of Ukraine «On Tourism»
(Law No. 324/95-ВР, 1995) provides the
possibility of each of the parties to the contract
on the provision of tourist services to unilaterally
refuse to execute it or to require changes to it.
A number of European countries also use legal
constructions, which are analogous to the
unilateral refusal of a contractual obligation in
the field of tourist services. For example, the
right to withdraw from the package travel
contract is provided in Art. L211-14 of the
French Tourism Code (Law No. 92-1341, 1992),
§ 651h of the Civil Code of the Federal Republic
of Germany (Law No. 2909, 2002), Art. 41
Legislative decree No 62 of the Italian Republic
(2018).
By its legal nature, a unilateral refusal to
execution of an agreement is a legal fact in which
the unilateral expression of the will of the
authorized party is sufficient to change or
terminate the contractual obligation. This legal
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fact should be interpreted as a simultaneous
waiver of rights and obligations.
We support the position of those scholars who,
given the nature of the will of the entity
exercising the right to unilateral withdrawal from
agreement, as well as the consequences of such
refusal, qualify it as a unilateral legal act
(Bodnar, 2012; Baranova, 2015).
In the case of unilateral refusal, the authorized
party has a subjective civil right, which is
dominated by the right to lawful active action –
to terminate or unilaterally change the rights and
obligations of the parties to the contractual
obligation. That is, for the commission of such a
legal act it is sufficient to have a civil interest of
only one party of the contract, which by law or
agreement is endowed with the right to change or
terminate the legal relationship unilaterally. This
right corresponds to the obligation of the passive
party not to interfere with its realization.
A. B. Grinyak (2013), disclosing the legal nature
of unilateral waiver of contract, emphasizes the
expediency of defining the right to unilateral
refusal as secondary rights, as the creditor’s right
does not correspond to a clearly defined
obligation of the debtor, so the latter must only
«suffer» actions of the creditor on realization of
the right and their corresponding consequences.
That is, the secondary right of the tourist is the
possibility of his active behavior associated with
the waiver to voyage and the ability to demand a
refund of the paid contract price.
The exercise of this subjective right does not
require the filing of a lawsuit to annulment or
amend the agreement. Therefore, by this
unilateral legal act, the agreement is changed or
terminated without recourse to a jurisdictional
body, ie out-of-court settlement.
Grounds and procedure for exercising the right
to waiver of the contract on the provision of
tourist services
The exercise of the right to unilaterally refusal of
the agreement on the provision of tourist services
is expressed through active conduct. The party
who decides to waiver of the contract must notify
the other party. Such notification is a constitutive
element of the mechanism of realization of this
subjective right.
It is necessary to emphasize that although the will
of the party who are refusal of the contract must
be accepted by the counterparty, but its consent
to change or terminate the agreement is not
required.
It is not established at the legislative level in what
way and in what form the counterparty is notified
about the refusal. In this regard, it is appropriate
to support the opinion expressed in the literature
that such a message should be made in written
form (Yavorskyy, 2015), including the use of
means of electronic communication.
The legislator has not determined the moment
from which the contract, which was unilaterally
refused by one of the parties, is considered
amended or terminated.
The prevailing approach among experts in civil
law is that the contract terminates from the
moment of informing the counterparty under the
agreement about the decision of another party to
waiver of contract in due form (Grynko, 2014). It
is noteworthy that the notice of refusal acquires
legal significance from the moment of its receipt
by the addressee, ie, as rightly noted by G. O.
Urazova (2015), the principle of «delivery» is to
be applied.
Therefore, in case of unilateral waiver of one of
the parties of the contract on the provision of
tourist services, the contractual relationship is
considered changed or terminated from the
moment when the counterparty found out about
such refusal, ie received the appropriate notice.
Taking into account the above, we reach a
reasonable conclusion that the mechanism for
exercising the right to withdrawal from the
contract on the provision of tourist services
includes the following components: out-of-court
procedure for changing or terminating the
contractual obligation; the party who refusal of
the contract notifies the counterparty by sending
a notice in written (electronic) form; the
contractual relationship is considered changed or
terminated from the moment of receipt of the
notice by the other party.
From the systematic analysis of the provisions of
Article 20 of the Law of Ukraine «On Tourism»
(Law No. 324/95-VR, 1995) it is seen that the
legislator identifies three grounds for refusal of a
tourist of the contract on the provision of tourist
services. Thus, the tourist is guaranteed the
opportunity to refusal of the agreement in case of
increase in the price of the tourist product by 5
percent compared to the original price. Also, the
customer has the right to waiver of the contract
without compensation to the tour operator (travel
agent) in connection with changes in the essential
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terms of the agreement and the circumstances
that guided them during the concluding of the
contract. In addition, the tourist may refuse to
execute the contract before the trip (regardless of
the reason for such refusal) subject to
reimbursement to the tour operator (travel agent)
of the actually incurred documented expenses
related to the refusal.
With regard to the latter prerequisite for the
waiver of the tourist of the contract on the
provision of tourist services, it should be noted
that in accordance with Art. 12 of the EU
Directive on package travel and linked travel
arrangements (Directive No. 2015/2302, 2015)
the traveler also has a analogous right to
terminate the contract unilaterally at any time
before the start of the trip. In addition, by
notifying the organizer (tour operator) no later
than seven days before the start of the package
tour, he has the right to transfer the rights and
obligations under the contract to another person
(Art. 9). A similar provision is in Art. 651e of the
Civil Code of the Federal Republic of Germany
(Law No. 2909, 2002).
Unfortunately, it should be noted that at the
national level such a provision has not been
regulated. In our opinion, the legislative
enshrinement of such a subjective right for
tourists will not only help create legal guarantees
to protect their interests, but also will help protect
against possible conflict situations and will
ensure compliance with the requirement of
«quality» of the law as one of the integral
elements of the rule of law (Maikut, Andrusiv,
Yurkevych, Dutko, & Zaiats, 2020).
At the same time, the tour operator or travel agent
has the right to withdrawal from the agreement
only if the tourist is fully reimbursed for damages
caused by the termination of the contract,
confirmed in the prescribed manner, unless it was
the fault of the tourist. In the above cases, the
refusal of the agreement on the provision of
tourist services is the right of the party, which it
exercises at its discretion.
Refusal of the agreement on the provision of
tourist services is characterized by certain
features. Yes, it can be unconditional or caused
by a breach of obligations by one of the
counterparties, if it is provided by contract or
law.
In the specialized literature, it is well-established
that unilateral waiver of the contract can be an
independent ground for its termination only in
cases where such a refusal does not require any
legal fact («unconditional refusal») (Spasibo-
Fateeva, (Ed.) 2021). The provisions of Part 10
of Art. 20 of the Law of Ukraine «On Tourism»
visually illustrate the unconditional refusal,
which implies that a tourist may at any time
waiver of the agreement without stating the
reason, ie the reasons for such expression of will
have no legal significance.
However, in most cases, the exercise of the
analyzed subjective right requires a legal fact,
which may be an action (for example, an increase
by tour operator of the price of a tourist product
by 5 or more percent) or an event (for example, a
significant change in circumstances).
According to such a criterion as reason for
occurrence the waiver of the contract on the
provision of tourist services should be
differentiated into:
− waiver, which applies regardless of the
breach of contract by the counterparty and
any other circumstances.
Legitimate prerequisites for such a legal action
are regulated by Art. 907 of the Civil Code of
Ukraine, which enshrines the right to unilateral
waiver of the contract on the provision of
services, which is not related to the breach of
agreement by another party. This general rule is
detailed in Art. 20 of the Law of Ukraine «On
Tourism», which describes the possibility of a
tourist to refusal of the agreement due to a
significant change in circumstances, as well as
unconditional refusal. In these cases, the waiver
of the contract must be qualified as one of the
means of civil protection of the legitimate
interest of the authorized party, the existence of
which is not related to the likelihood of the
offense and the presence of any circumstances
(factors).
− refusal of the authorized party, which is a
consequence of breach of obligations by the
counterparty.
The right to unilateral waiver, as one of the legal
consequences of breach of obligation, is provided
by the provisions of Art. 611, 615 of the Civil
Code of Ukraine. Such refusal shall apply only in
cases established by contract or law.
In case of breach of the obligation by the party,
the waiver of the agreement should be considered
as a measures of operational influence, which in
the doctrine means legal measures of law
enforcement nature, provided by law or
agreement, applied in contractual obligations to
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the person who violated or poses a real threat of
breach of civil rights and obligations directly by
the authorized person without recourse to the
protection of the right to the relevant state bodies
(Polnyi, 2020). Given that such remedies are
used by the party to the agreement which is
entitled to refuse independently without recourse
to the jurisdictional body, they belong to the
methods of self-defense.
In obligations on the provision of tourist services
in the event of their unilateral termination there
are such ways of self-defense as change or
termination of the legal relationship.
The above allows us to state that the tourist can
exercise the right to refuse both in case of breach
of agreement by the counterparty, and when the
refusal is not related to the fact of breach. In the
first case, the refusal should be interpreted as a
measures of operational influence on the violator,
ie self-defense of civil law, and in the second – a
means of protecting the civil interest of the party
entitled to refuse.
It should be noted that experts, considering the
grounds for waiver, rightly differentiate them
into legal (enshrined in the Civil Code of Ukraine
and special legislation rules or terms of the
contract) and factual (specific circumstances, the
presence of which entitles the authorized party to
waiver of the contract) (Lukasevych-Krutnyk,
2019). Both of these grounds create legitimate
preconditions for the exercise of the right to
withdrawal from the contract on the provision of
tourist services.
Features of realization by the tourist of the right
to waiver of the contract in the conditions of a
coronavirus COVID-19
In the context of the researched issue, the
question arises about the possibility of realization
of a tourist’s right to waiver of the contract on the
provision of tourist services in a coronavirus
pandemic. The COVID-19 pandemic has
changed the established world order, affecting all
spheres of public life, including tourism.
It should be noted that the Ukrainian legislation
does not provide special mechanisms for the
protection of tourists in extraordinary
circumstances, in particular in terms of ensuring
their safety, and does not regulate the possibility
of unilateral refusal of the customer to execute
the agreement in case of their occurrence. Tour
operators, based on force majeure – the
establishment of quarantine due to the spread of
coronavirus COVID-19, offer consumers of
travel services only one option – postponement
of travel, refusing to return the money.
Therefore, customers of travel services can
terminate the contract only in court.
In our opinion, under the current circumstances,
when tourists are forced to cancel tourist trips
due to restrictions imposed worldwide, they
should be given alternative rights like to refuse a
tourist trip without compensating the tour
operator and refund all funds for the unprovided
service, or to postpone the date of travel to a later
date.
This approach correlates with the provisions of
Art. 12 (2) of EU Directive No. 2015/2302
(2015), which states that the traveler shall have
the right to terminate the package travel contract
before the start of the package without paying
any termination fee in the event of unavoidable
and extraordinary circumstances occurring at the
place of destination or its immediate vicinity and
significantly affecting the performance of the
package, or which significantly affect the
carriage of passengers to the destination.
In the current situation with the coronavirus
pandemic, the European Commission suggests
EU Member States to take a common approach,
giving tourists whose package travel and
transport services have been canceled the right to
choose between a refund and other forms of
reimbursement, including vouchers for future
trips (European Commission, 2020).
In addition, some EU Member States have
introduced alternative mechanisms for
reimbursing package tours, which customers
(tourists) can claim after the termination of an
contract in connection with a coronavirus
pandemic. Іn Italy in Law Decree no. 9 of March
2, 2020 and in France in Order 2020-315 of
March 25, 2020 such special alternative means of
protection include: refund to the traveler full
amount of money paid under the package tour
contract; issuance of a voucher which can be
used within a specified period; replacement of a
package tour with another package of equivalent
or higher quality (De Berti Jacchia Franchini
Forlani Studio Legale, 2020).
Given the above, in order to make formal and
legal certainty in these relations, as well as to
ensure the effective realization of the tourist’s
right to unilaterally waiver of the agreement and
prevent abuse by tourism entities, we consider it
appropriate at the legislative level to enshrine the
following provisions: «In the event of
circumstances that indicate the emergence in the
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country (place) of temporary stay of the tourist or
in the immediate vicinity of the threat to the
safety of his life or health, as well as
extraordinary circumstances that do not depend
on the tourist and make it impossible to travel, he
has the right to waiver of the agreement on the
provision of tourist services (before or during a
tourist trip) or to choose other forms of
compensation. Upon termination of the contract
on the provision of tourist services in connection
with the occurrence of these circumstances, the
tourist/customer is refunded an amount
proportional to the cost of non-provided tourist
services.». Such legislative innovations ensure a
fair balance between the interests of tourism
entities and the more vulnerable party to the
contract – the consumer of tourist services.
Legal consequences of waiver of the contract on
the provision of tourist services
In accordance with Part 3 of Art. 651 of the Civil
Code of Ukraine in case of waiver of the
agreement in full or in part, if the right to such a
waiver is established by contract or law, the
agreement is terminated or changed accordingly
(Law No. 435-15, 2003). Therefore the
consequences of the refusal of the contract on the
provision of tourist services depend on whether
the refusal was complete or partial. Partial refusal
of the agreement causes a change of its terms,
while a complete refusal leads to the termination
of the obligational relationship. In the latter case,
the debtor is released from the obligation to
fulfill obligations in kind.
Termination of the contract on the provision of
tourist services as a result of its waiver not only
terminates the rights and obligations of its
counterparties, but also entails the occurrence of
other special legal consequences designed to
protect their subjective rights and interests.
In case of termination of the agreement on the
provision of tourist services at the initiative of the
tour operator, he is obliged to fully reimburse the
customer (tourist) for damages caused by the
unilateral termination of the contract.
The tourist has the right to waiver of the contract
unilaterally, provided that the tour operator pays
the costs associated with the provision of tourist
services or with the preparation for their
provision. At the same time, it should be noted
that the costs of the tour operator must be
determined by his actions to fulfill the
contractual obligations, as well as documented.
Only if these requirements are met the costs
acquire the status of «actually incurred» and are
subject to reimbursement.
To confirm the amount of such costs, the tour
operator may submit agreements concluded with
direct providers of tourist services, provide
documents proving payments to third parties for
booking in the name of a particular tourist,
including payment of penalties to these parties
for cancellation of a hotel reservation, return of
tickets, etc. When determining the amount of
actual costs incurred, it is necessary to proceed
from whether they are necessary for the
execution of the contract on the provision of
tourist services.
In addition, it should be noted that the tour
operator, having received notification from the
tourist about the waiver of the agreement, may
conclude a new agreement on the provision of
tourist services with other persons, thereby
minimizing their costs. Of course, this fact
should also be taken into account when
determining the amount of actual costs. Article
L211-14 of the French Tourism Code (Law No.
92-1341, 1992) stipulates that when calculating
the amount of costs reimbursed by the traveler
for the termination of the contract, the amount of
savings and income received by the tour operator
from the re-provision of travel services is
deducted. We consider it appropriate to
implement this regulation in national law,
supplementing Part 10 of Art. 20 of the Law of
Ukraine «On Tourism» with the following
sentence: «If after the tourist’s waiver of the
contract tour operator (travel agent) sells this
tourist product to another customer, when
determining the amount of actual costs, the
amount of savings and income received by entity
that sells the travel product from the re-
conclusion of the contract is deducted».
The tourist must apply to the tour operator for a
refund, as this is the entity that sells the travel
product, while the travel agent only acts as an
intermediary between the executor and the
customer, selecting and booking the tour. In view
of this, intermediaries are not reimbursed for any
actual costs.
Contractual practice abounds with examples of
the inclusion by tour operators in the agreement
terms about the collection of interest penalties
from tourists for unilateral refusal of the contract
(up to 100 percent of the tour cost depending on
the waiver period), the use of which is explained
by the need to reimburse costs (EXPRESS-
VOYAGE, 2021).
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In our conviction, the agreement terms about
collecting from the tourist part of the money paid
under the contract, in the form of a fixed amount,
including as a percentage of the cost of the
service, are contrary to the provisions of Art. 20
of the Law of Ukraine «On Tourism» and
legislation in the field of consumer protection
(Article 18 of the Law of Ukraine «On Consumer
Rights Protection» (Law No. 3161-IV, 2005)), as
they are unfair and restrict the rights of tourists
as consumers of tourist services.
Tour operators unreasonably consider the waiver
of the contract as a violation of the tourist’s
obligation. The following judgments lead to such
a conclusion.
A fixed interest rate as the amount of
reimbursement of expenses actually incurred is
by its nature a penalty, which must be applied in
the manner prescribed by law as a measure of
liability for breach of obligation by the party, in
proportion to the consequences of its violation
(Article 549 of the Civil Code of Ukraine).
Instead, a waiver of an contract, as we have
found, is a lawful act of one of the parties and
therefore cannot be construed as a breach of an
obligation. Refusing services, the tourist
exercises his right to unilateral refusal of the
agreement, regulated by Article 20 of the Law of
Ukraine «On Tourism».
The legislative level does not provide for the
possibility of collecting a penalty (fine) from a
tourist in case the latter refuses of the contract,
the only consequence for the tourist is the
obligation to reimburse the tour operator for the
actual costs incurred. That is, the tourist has the
right to withdrawal from the contract without
applying any sanctions to him.
Moreover, it is impossible to determine in
advance in agreement the amount of actual costs
incurred in case of refusal of the customer to
execute the contract, because it is unknown when
the tourist will declare such a waiver and what
costs will be incurred by the tour operator till that
moment.
Establishment of strict obligations for the tourist,
disproportionately large amount of the fine,
veiled under «reimbursement of actual
expenses», without establishing the obligation of
the tour operator to document them, indicates the
existence of a significant imbalance of
contractual obligations in favor of the entity that
sells the travel product, which violates the rights
of the tourist as a vulnerable party to the
agreement, the importance of protecting the
interests of which has been repeatedly
emphasized by experts (Sanches Lima, 2018).
Conclusions
On the basis of the conducted research we reach
the following substantiated conclusions.
The institute of waiver of the contract on the
provision of tourist services is one of effective
mechanisms of protection of the rights and lawful
interests of participants of tourist relations. By its
legal nature, the refusal of the agreement is a
unilateral legal act, for which the unilateral
expression of the will of one of the parties is
sufficient, and the consent of the counterparty to
change or terminate the agreement is not
required. Both the customer (tourist) and the
executor of tourist services (tour operator) have
such subjective right.
Unilateral waiver of the contract is a measure of
operational influence, ie a way of self-defense,
and a means of protection of civil interest, which
the party to the contract can use both in case of
breach of obligations by the counterparty and
when the refusal is not related to breach and any
other circumstances (unconditional waiver).
The grounds for lawful withdrawal from the
tourist services agreement should be
differentiated into legal and factual.
A party to an contract on the provision of tourist
services may exercise the right to refuse only in
cases established by contract or in the presence
of certain circumstances specified in the law. The
mechanism for exercising of this civil right
includes the following elements: out-of-court
procedure for changing or terminating a
contractual obligation; the party who execute
waiver of the agreement notifies the counterparty
by sending a notice in written (electronic) form;
the contractual relationship is considered
changed or terminated from the moment of
receipt of the notice by the other party.
In the context of the COVID-19 coronavirus
pandemic, the tourist must be able to exercise one
of the following rights at his/her own discretion:
to refuse a tourist trip without compensating the
tour operator and to return all funds for the
unprovided service; to postpone the date of travel
to another date; or choose other forms of
reimbursement offered by the tour operator.
The consequences of waiver of the contract on
the provision of tourist services are divided into
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general and special. The general consequence is
a change or termination of the obligation
relationship, depending on whether the refusal
was partial or full. A special consequence of the
refusal of the agreement by the tour operator is
the full compensation of the tourist losses, and
the customer – the payment to the tour operator
actually incurred and documented costs
associated with the provision of travel services or
in preparation for their provision.
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