DOne-third of travel sites provide their readers with false information, such as prices or promotional offers. And this is just one of many surprises hiding from those who plan their holidays. What should you pay attention to when buying a trip from a tour operator or travel agent so that the long-awaited trip is not remembered as something unpleasant? Why it is important to know the rights and obligations of the tourist and what can be done when the real conditions of rest do not correspond to those that were paid?
What should a tourist be ready for - the results of the check
An audit conducted by the Federal Service for Supervision of Consumer Rights Protection and Human Welfare "Rospotrebnadzor" with the involvement of public organizations operating in the field of consumer protection revealed an unpleasant pattern.
Almost "under the microscope" 325 Internet resources were examined, which offered various prices for holidays, and allowed booking trips, tickets, hotels or renting cars. At the same time, it turned out that as many as 204 sites were misleading their potential customers.
Almost 31% of them have the final the price of the product was higherthan suggested at the beginning of the site because there were additional fees that the person interested in buying was not previously informed about.
The pricing policy or how it was calculated was unclear. In addition, on average, one in five portals tempted users with promotions that were invalidated during the booking process. In this state of affairs, the protection of the rights of tourists remains a hot topic.
These are just a few of the many challenges people face when planning a vacation trip. At the signing of the contract and during the holiday, when the offer does not meet expectations, tourists can expect a completely separate “set of problems”. In each of these situations, travel companies have obligations, and travelers have the right to demand their fulfillment.
What should I pay attention to when buying a tour?
Just before buying a tour and signing a contract, you should practically turn into a detective. It is necessary to collect as much information as possible both about the travel agency you contacted and about the specific vacation spot.
Do not worry too much about the upcoming vacation under the palm trees. At this stage, reason should prevail. Sit down at the computer and find out the opinion of people who used the services of this travel agency, read first-hand reviews about the hotel - this is often an indispensable source of information.
In addition to such basic questions as carefully reading the contract and checking the details of the travel agent and tour operator, the cost and dates of the holiday, always read the general sectioncontained in each document.
Thanks to this, unpleasant surprises can be avoided, among which, for example, a change in departure time or the requirement of a travel agency for an additional surcharge due to a sharp increase in the exchange rate can be.
Just before signing the contract, this document containing the general conditions should become your "bible".
Even if you have never read the latest, you should study the contract as if it were preparation for a serious exam. Among other things, this will help to deal with unforeseen situations and doubts, which will be discussed below.
Rights and obligations of a tourist in a situation where a travel agency requires additional payment
In an ideal situation, the cost of the tour after signing the contract cannot be changed. In reality, sometimes things are a little different. Since the price of a trip is determined by the prevailing fares, fees and exchange rates, it can realistically increase if one or more of these elements changes.
Can the agency demand additional payment for the tour from the tourist, is it legal and how to resolve this situation? This question is not entirely simple and its solution depends on several circumstances. However, there are key nuances that largely determine the result.
If the possibility of additional payments is expressly fixed in the contract
And the majority of lawyers and judicial practice are burning that it is important to have a corresponding clause in the contract or additional agreement, which directly provides for the possibility of increasing the price of the package depending on a change in a number of circumstances. It could be something like this:
In this option, by signing an agreement directly indicating the possibility of changing the price of the travel package by the trip organizer and agreeing to an additional payment, in the cases specified in the agreement, you will be required to make such payments. Especially since Article 424 of the Civil Code of the Russian Federation provides for the possibility of changing the price of the contract, if it is provided for by it.
... "St. 424 of the Civil Code of the Russian Federation: 2. Changing the price after the conclusion of the contract is allowed in cases and on the conditions provided for by the contract, the law or in the manner prescribed by law "...
Here it will not be superfluous to repeat again: read carefully what you sign. Each paragraph of any document should be clear and understandable. In addition, there is currently a practice of signing additional agreements, one of which may contain a provision on possible additional payments.
If the contract does not expressly provide for the possibility of additional payments
The option when the contract for the sale of a tourist product or additional agreements to it do not contain provisions indicating the possibility of additional payment for the tour does not mean at all that the travel agency cannot demand such an additional payment.
The fact is that Federal Law No. 132-FZ of November 24, 1996 "On the Fundamentals of Tourism Activities in the Russian Federation" expressly says that either party has the right to demand termination or amendment of the contract in the presence of a significant change in the circumstances that existed at the time of the conclusion of the contract. According to the law, these circumstances include:
... "St. 10 of the Federal Law No. 132: ... changing the timing of the trip; unforeseen growth of transport tariffs; the impossibility of making a trip by a tourist due to circumstances beyond his control”…
Moreover, the law does not explicitly state that this list is exhaustive, which makes it possible for the tour operator to try to recognize the presence of a significant change in circumstances in other cases in court.
In this issue, it is necessary to clearly distinguish between two possible scenarios that determine whether the travel agency has to demand an additional payment. According to the vast majority of lawyers, payment for the product in full, demand for additional payments for any reason unacceptable.
If the payment for the trip is divided into two payments, and the second has not yet been made, then the operator may legally demand an additional payment, of course, under the circumstances expressly specified in the Law on Tourism.
Rights and obligations of a tourist in a situation where the tour operator cancels the trip
Cases when a trip is canceled due to the fault of the tour operator, or a tourist cannot use most of the services on this tour, are not so frequent. But such facts, unfortunately, exist and no one is immune from them. Therefore, it is important to know your rights in this situation and an approximate algorithm of actions.
If the tour is canceled by the operator before it starts
You are preparing for departure, you have packed your bags and clearly know What to take to the sea. You already imagine yourself on vacation somewhere under the palm trees. But then comes the bad news - the trip is cancelled.
What to do when a travel agent tells you that your trip has been cancelled:
- To write an application for a refund. Its form is arbitrary, but requires a clear indication of the reason - non-fulfillment of its obligations by the tour operator and the inability to use the paid product;
- Submit Application on the return of funds to the recipient. It is recommended to transfer the application to the agent (with registration and a mark of receipt on the second copy). It is possible to send an application directly to the organizer of the trip, but it must be by registered mail with a notification and a description of the attachment;
- After receiving an official response expect a return Money.
A refund for a paid trip, regardless of who the application was sent to, is made through a travel agent. Moreover, it is carried out in a way similar to the initial payment: in cash or to a bank card account.
If the organizer does not respond to the application, then the collection of funds is made in accordance with a court decision. However, the pre-trial procedure for resolving such disputes is not only preferable, but also mandatory.
If problems with the tour arose during its process
In this case, we are talking about the rights of a tourist when part of the mandatory services included in the tour product is not provided. That is - flight canceled or the hotel refuses to check in. A certain discrepancy between paid services and actually received ones is a little different and more on that later.
In any case, you need to know that, according to the current legislation, it is the tour operator is responsible for the quality, completeness and compliance of the services provided to the tourist within the framework of the tour package.
... "St. 10 of Federal Law No. 132: ... the tour operator is responsible for the failure to provide or improper provision of services included in the tourist product to the tourist and (or) another customer, regardless of who should have provided or provided these services "...
The travel agent also bears a certain responsibility. But it is not related to the volume and quality of services included in the tourist package.
What is the responsibility of the travel agent to the tourist:
- For the timely transfer of paid funds for the tour to the tour operator;
- For timely informing the operator that the contract has been concluded;
- For coordinating the terms of the tour with its organizer in accordance with the wishes of the tourist.
Responsibilities and duties of an agent, among other things, are defined in standard contract approved by the Order of the Ministry of Culture of the Russian Federation of October 31, 2016 N 2386 "On approval of standard forms of an agreement on the sale of a tourist product ..."
What to do if there are problems with the tour in its process:
- When canceling a flight, check with the agent or operator about the planned replacement and its timing. In the absence of information, it is possible to independently purchase air tickets. It is recommended to record a telephone conversation;
- If you refuse to check into the hotel, check with the agent or operator for the planned replacement and its timing. In the absence of information, it is possible to independently purchase a room in the same or another hotel of a similar class;
- Upon arrival from the trip, write an application for a refund (by analogy with the procedure for the complete cancellation of the tour). Documents confirming the actual costs from the airline or hotel must be attached to it.
The tourist has the right to demand compensation and other expenses incurred by him in connection with the cancellation of the tour or part of it, up to compensation for moral damage in a pre-trial order. However, the organizer is not obliged to reimburse such costs without a court decision.
Rights and obligations of a tourist in a situation when he cannot go on a tour
In some contracts for the implementation of a travel package, and more often in additional agreements, the agencies indicate how much money you will receive back if you cancel the trip. As a rule, the closer the start date of the tour, the more you lose.
However, this item is in conflict with the law, as it infringes on the right of the client of the travel company to refuse to execute the contract unilaterally.
In a word, the operator does not have the authority to provide for any penalties for unilateral termination of the contract by the client. But this, of course, does not mean that he is obliged to pay the client the funds previously received by him during the sale of the tourist product in full.
And now very important point, which, in accordance with the law, directly affects the amount of the amount withheld when the client refuses the booked tour.
... "St. 782 of the Civil Code of the Russian Federation: 1. The customer has the right to refuse to execute the contract for the provision of services for compensation, subject to payment to the contractor of the expenses actually incurred by him "...
In addition, the possibility of unilateral cancellation of a paid tour is directly provided for by the Federal Law on Tourism Activities:
... "St. 10 of Federal Law No. 132: ... the impossibility of a tourist making a trip due to circumstances beyond his control (illness of a tourist, refusal to issue a visa and other circumstances) "...
Of course, the client has the right to refuse the paid tour, and the travel agency, in turn, has the legal right to withhold a certain amount for the paid travel package. However, this the amount cannot exceed the expenses of the travel agency incurred by it in the process of organizing the tour. Lost profits, penalties, forfeits, penalties included in the contract should not be taken into account when calculating the actual costs incurred - they are illegal.
It is also important to know that not all costs incurred by the travel agency and costs in the process of executing a specific contract with a client are borne by the client. In a controversial situation, when it comes to litigation, it is decided by the court based on the materials presented.
The actual cost itself calculated individually for each specific tour. As a rule, it depends on the terms of the cancellation, the direction of the tour and its special additional conditions.
Always remember that if this is a significant amount for you and you do not agree with the calculation, which, at your request, must be presented by the agent, you have the right to challenge it in court.
For those who want to understand in detail the nuances of the situation arising from a sudden illness of a tourist who has purchased a tour and abandoned it, it is recommended that you familiarize yourself with the information contained in Decision in case No. 2-334/2017 "On the protection of the rights of tourists". It reflects in detail all aspects related to the rights and obligations of a tourist, tour operator and travel agent. The solution is voluminous, but meaningful.
The rights of a tourist in the presence of information about the threat to the safety of life and health
Federal Law No. 2300-1 of 07.02.1992 "On the Protection of Consumer Rights" contains provisions obliging the seller to guarantee the safety of the services provided. These services include tourism services.
... "St. 7 of the Federal Law No. 2300-1: The consumer has the right to ensure that the product (work, service) under normal conditions of its use, storage, transportation and disposal is safe for life and health "...
Federal Law No. 132 of November 24, 1996 “On the Basics of Tourist Activities in the Russian Federation” describes in more detail the circumstances under which the buyer of a tour package can terminate the contract unilaterally.
... "St. 10 of Federal Law No. 132: ... has the right to demand a change or termination of the contract for the sale of a tourist product in connection with a significant change in the circumstances from which the parties proceeded when concluding the contract "...
Information about the presence in the territory (country) of a threat to the safety of health and life is the basis for a real deterioration in the conditions of the tour, enshrined in the contract. In addition, the law directly indicates the possibility of unilateral termination of the contract in such situations.
... "St. 14 of Federal Law No. 132: In the event of circumstances indicating the occurrence in the country (place) of temporary stay of tourists ... a threat to the safety of their life and health, as well as the danger of harm to their property, the tourist ... has the right to demand in court the termination of the contract for the sale of a tourist product "...
Thus, a tourist who has purchased a tour to a country whose stay has become dangerous and may threaten his life or health has the right to terminate the contract and demand a refund of the cost of the paid tour. in full.
But here comes the legitimate question: who determines the danger or safety of a country to visit. Certainly not a tourist. The Law "On the Fundamentals of Tourism in the Russian Federation" provides an answer to this question.
... "St. 14 of the Federal Law No. 132: The presence of these circumstances is confirmed by the relevant decisions (recommendations) of the federal state authorities, state authorities of the constituent entities of the Russian Federation, local governments adopted in accordance with federal laws "...
Depending on the nature of the circumstances that make visiting the country unsafe, such decisions and recommendations are made by various bodies and structures. For example, the Ministry of Foreign Affairs of the Russian Federation often acts as such a body. In the case of the threat of infectious diseases - the Federal Service for Supervision of Consumer Rights Protection and Human Welfare (Rospotrebnadzor).
The spread of the coronavirus infection Covid-19 and its strains has made many tourists think about the feasibility of planned trips abroad and paid tours. In what cases can a tourist count on a full refund of the cost of the tour?
In accordance with the information posted on the website of Rospotrebnadzor, as of March 2020, only three countries except China, were not recommended for visiting due to the threat to life and health. These countries were Italian Republic, Republic of Korea and Iran. Subsequently, the list of such countries has changed several times. It was determined by the current epidemiological situation and the potential threat from new strains of the virus.
Thus, in case of refusal of tours only to these countries, the consumer has the right to count on a full refund of the funds transferred to the agency or operator.
In case of refusal to travel to other countries, the contract is terminated on the general terms and conditions determined by the Civil Code of the Russian Federation and Federal Law No. 132. In any case, pre-trial settlement of disputes and claims is desirable.
The rights and obligations of the tourist in a situation where the actual conditions of the tour do not coincide with the contractual ones
From the window of the room, the view extends not to the sea, but to the backyard, where construction is being carried out? Instead of a wonderful huge pool with crystal clear water, you are invited to swim in a small and musty children's pool?
Of course, in any case, when the service you paid for differs from reality, you can do what you usually do by buying clothes with defects, that is, submit an application or other claim to the seller.
When purchasing a tour, the most common problems of this nature include:
- The conditions of accommodation in the hotel do not correspond to the paid ones;
- The flight does not correspond to the paid one. For example, this is the presence of unplanned transfers when booking a direct flight;
- Lack of transfer or its inconsistency;
- Lack of an accompanying guide from the operator.
Most often, travelers have complaints about the conditions of living in hotels. Actual conditions may absolutely not correspond to those that were discussed when purchasing the package.
What to do if the conditions at the hotel do not match the paid ones:
- Collect the necessary materials to attach them to the application addressed to the tour operator. Such materials can be advertising brochures received from the operator or agent, information about the hotel posted on the operator's website, on the one hand. Video, photo materials made by the recipient of services during their stay at the hotel, showing a clear inconsistency with the materials of the operator, on the other hand;
- Submit an application the operator with the requirement to compensate for the losses incurred (by analogy with the procedure for the complete cancellation of the tour), including compensation for moral damage;
- If there is no response from the tour operator within the established 10-day period, prepare and file a claim to the judicial authorities.
The law determines that it is the organizer of the trip who must prove that the service received by the tourist was of proper quality.
And last but not least. When we choose a special offer, such as "early booking" or "last minute", we retain all the same rights and obligations as a tourist in the Russian Federation, which are provided to those who bought a trip at the regular price.