FAQs: Travel Cancellation

Take note of some basic notions and rights:

GENERAL CONTRACTUAL CLAUSES

General contractual clauses are pre-prepared clauses, proposed unilaterally by one of the parts (the proponent) and where the party that comes to contract with it (the adherent) has no possibility to discuss its content, merely limiting itself, if it intends to contract, to adhere to that contract. Contracts signed using this type of clauses are called adhesion contracts.

The legal regime for the clauses is established in Decree-Law no. 446/85, of 25 October (meanwhile already amended by Decree-Law no. 220/95, of 31/08 and by Decree-Law no. 249/99, of 07/07).

What contracts are entered into using these clauses?

There are many and varied contracts concluded using this type of clauses. As an example, we have bank account opening contracts, consumer credit contracts, telecommunications contracts, electricity or gas supply contracts and travel insurance contracts.

What obligations does the economic agent have that uses these types of clauses in its contracts?

The economic agent is obliged to communicate and inform the adherent, prior to the conclusion of the contract, the clauses that may be part of it.

What does it mean to communicate the clauses?

Communicating the clauses means making them known, reading them to the adherent, making them aware of them, knowing their existence and what they are.

How should the clauses be communicated to the adherent?

The communication must be made in an appropriate manner and with the necessary advance so that, taking into account the importance of the contract and the length and complexity of the clauses, it becomes possible for the adherent to have full and effective knowledge.

What does it mean to inform the clauses to the adherent?

It means explaining its content to the adherent so that he knows its meaning and scope and, thus, being able to form his will to hire or not to hire in a free and informed manner.

In addition to this information, is the applicant obliged to provide any additional information to the participant in the subscription contracts?

Yes. The law says that in addition to communicating and informing the general contractual clauses contained in the contract, the tenderer must also provide the adherent with all other reasonable clarifications requested by him.

What happens to contractual clauses that have not been communicated or informed to the contract adherent?

Clauses not communicated or not informed, says the law, are considered excluded from the contract. That is, they are not part of the contract, they do not exist.

Are only clauses not communicated or not informed considered to be excluded from membership contracts?

No. The law says that, in addition to these, they are also considered to be excluded from the signed membership contracts:

  • The clauses that, due to the context in which they appear, the preceding title or their graphic presentation, go unnoticed by a normal contractor, placed in the position of the real contractor:
  • The clauses inserted in forms, after the signature of any of the contractors.
When the clauses are ambiguous, what happens?

The law states that when the clauses are ambiguous, they "have the meaning that the normal indeterminate contractor would limit them to subscribe to or accept them, when placed in the position of real adherent". In other words, the sense that a normal person would give them, without being explained to them, prevails, being that "when in doubt, the sense most favorable to the adherent prevails".

Are there clauses that are prohibited, and therefore cannot be part of the membership contracts?

There is. The law defines a series of prohibited clauses that cannot be part of contracts and that, if they are part of them, are null (invalid), with emphasis on clauses that are contrary to contractual good faith.
The legislator distinguishes between absolutely prohibited and relatively prohibited clauses. The latter are only prohibited after judicial review, the others are immediately prohibited, provided that they are included in the vast list of absolutely prohibited clauses.
An example of an absolutely prohibited clause will be one that excludes the right to invoke the guarantee to a consumer who buys a new mobile phone from an economic agent.
An example of a relatively prohibited general contractual clause may be the clause inserted in the travel assistance contract, which determines the jurisdiction of the Courts of Lisbon to settle disputes regarding a consumer residing in Funchal.

How to access the unfair contractual clauses judged by the courts?

By law, there is a national register of unfair contractual clauses judged by the courts and which can be accessed at https://portal.oa.pt/ (Register of General Contractual Clauses Declared Null by the Courts)


ORGANIZED TRIPS

The rights of consumers purchasing organized trips are provided for in Decree-Law no. 209/97, of 13 August, amended by Decree-Laws no. 12/99, of 11 January, no. 76-A / 2006, of 29 March, and no. 263/2007, of 20 July.
If, for reasons unrelated to the consumer, he was unable to fully enjoy his vacation (for example, poor hotel conditions, food poisoning attributable to the food provided by the restaurant, etc.), he is entitled to compensation for the damage suffered.

What are package tours?

Organized trips are the previously two of the following services, whether sold or offered for sale at an all-inclusive price, when they exceed twenty-four hours or include an overnight stay:

  1. Transport;
  2. Accommodation;
  3. Tourist services not subsidiary to transport, namely those related to sporting, religious and cultural events, provided that they represent a significant part of the trip.
The contract concluded with the travel agency that is not valid reduced to writing?

In principle, yes, as long as the agency has delivered the program to the consumer and an invoice / receipt for the amounts paid. However, the consumer can demand that the contract be in a document signed by both parts.

What if the agency cancels the trip?

The consumer can terminate the contract without any penalty and must do so within 7 days after receiving the notice of failure to comply with the agency.

Can the agency change the price of the trip?

The agency can only change the price of the trip up to 20 days before the start of the trip and if cumulatively:

  1. The contract expressly provides for it and determines the precise rules for calculating the change;
  2. The change results solely from changes in the cost of transportation or fuel, duties, taxes or collectable fees or exchange rate fluctuations.
And if the agency unilaterally changes the price after 20 days prior to the start of the trip?

The consumer is not obliged to pay the price increase, and may also terminate the contract without any penalty. The consumer is also entitled to a refund of the amounts paid.

Can the consumer terminate the contract?

Yes. The consumer can terminate the contract at any time, and the agency must reimburse the amounts paid in advance, deducting the charges that the beginning of the contract and the termination have given rise to, as well as a percentage of the service price not exceeding to 15%.

What rights does the consumer have if the travel agent tells him that he is unable to fulfill the contract?

In the event that it is impossible for the agency to provide part of the contracted services, the consumer is entitled to replace them with equivalent services without increasing the price.
If the impossibility respects an essential obligation, the client can terminate the contract without any penalty or accept in writing an amendment to the contract and any price variation.
The consumer must inform the agency of his decision within four working days after receiving notification from the travel agency.
If the agency cancels the package before the departure date, the consumer is entitled, without prejudice to the agency's civil liability, to:

  1. be immediately reimbursed of all amounts paid;
  2. Alternatively, choose to participate in another organized trip, having to be reimbursed for any price difference.
Where to file a complaint if the hotel does not have the conditions advertised on the travel agency program?

With the travel agency, since the agencies are accountable to consumers, even if the services are provided by other providers.

When should the consumer claim?

Within a maximum period of 20 working days after the end of the trip or within the period provided for in the contract, if longer.


AIR TRANSPORT

Denied boarding, cancellation or delay of air flights are some of the problems faced by passengers.

In these cases, the legislation in force gives them rights that the airlines have to guarantee, except when faced with force majeure, such as a storm.

Passenger rights apply to scheduled and charter flights, domestic and international, operated by all types of airlines, whether traditional or low cost.
These rights are enshrined in several laws, namely:

  • Regulation (EC) No. 2027/97, of 9 October, in the wording resulting from Regulation (EC) No. 889/2002, of 11 May;
  • Regulation (EC) No. 261/2004, of 11 February.
What constitutes air flight delay?

Delay is considered to be:

  • More than two hours on flights up to 1500 km;
  • More than three hours on intra-Community flights over 1500 km, or other flights outside the European community up to 3500 km;
  • More than four hours for flights over 3500 km.
What rights does the passenger have if the flight is delayed?

The passenger will be entitled to assistance which translates into the following:

  • Meals and drinks according to the waiting time, two phone calls, messages via fax or email;
  • When the departure only takes place on the days following the scheduled, free provision of hotel accommodation and transportation between the airport and the place of accommodation.
Is the passenger obliged to travel if there is a flight delay?

If the delay is at least five hours, you can decide not to travel. In this case, you are entitled within seven days to a refund of the ticket price and a return flight to the departure point if you have already made part of the trip.

The reimbursement will have to be made either for the part of the trip not completed, or for the total trip, including the one already completed, if the flight is no longer justified in relation to the initial travel plan.

What rights does the passenger have if the flight is canceled?

The passenger can choose between:

  • The refund of the total ticket price, within seven days and a free flight to the departure point, if you have already made part of the trip;
  • Or alternative transport, at the first possible opportunity, to the destination you wanted.
What rights does the passenger have if the flight is canceled without notice?

If the flight has been canceled without notice and a reasonable alternative is not presented to the passenger, the passenger is entitled to compensation calculated as follows:

  • Flight up to 1500 Km - 250 euros
  • Intracommunity flight over 1500 km or other flights up to 3500 km - 400 euros
  • All other flights - 600 euros
Under what circumstances is the passenger not entitled to this compensation?

You will not be entitled if the cancellation has been communicated:

  • Two weeks in advance;
  • Between two weeks and seven days in advance, if you are given the option of leaving up to two hours before and arriving at the final destination within four hours after the scheduled date;
  • Less than seven days in advance, if you are given the option of leaving up to one hour before and arriving at the final destination within two hours.
As the passenger proves that the airline informed him of the cancellation?

It is not up to the passenger to do this test. In the event of a dispute, it is up to the airline to prove whether and when it informed the passenger of the cancellation.

What rights does the passenger have in the event of delay, loss or damage to luggage?

The passenger is entitled to compensation up to 1000 dSe (Special Drawing Right) per registered piece. This amounts to around 1220 euros, but varies from day to day (to find out the current exchange rate you can consult the Banco de Portugal website).
If, until the time of check-in, the passenger has submitted a special declaration to the airline, a higher refund is possible.
In case of delay in the delivery of luggage, the carrier may immediately make available an amount for emergency purchases, the amounts of which may vary from carrier to carrier.
The passenger must keep receipts for expenses incurred in order to add them to his claim.

What time does the passenger have to complain?

Whether there is delay, loss, damage or destruction of luggage, you must file a complaint immediately so that the carrier does not assume that the passenger has received your luggage. However, there are maximum deadlines:

  • When the luggage is damaged, 7 days;
  • If there was a delay in the delivery of luggage, 21 days.

In both cases, the period runs from the date on which the luggage is made available to the passenger.
There is no time limit for the loss of luggage.
Baggage is lost as of 1 day after the date it should have arrived.

What rights does the passenger have in case of denied boarding?

In case of denied boarding due to overbooking (because the number of reservations exceeds the number of available seats), the passenger has the right to choose between re-routing to the final destination or the ticket refund.
The passenger will also be entitled to assistance and compensation equal to that provided for cases of flight cancellation.



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