The travel agency can take "irresistible" losses?

- Gu Qing

   One, the case playback:

   In July 11, 2007, tourists, Ms. Lee and a line of 3 people to Liaoning to an International Travel Agency registration CanTuan tourism. After a careful screening of tourist routes and for a supply of sth., Ms. Li a line of 3 people decided to participate in the agency, "Tibet Qinghai Shuang Fei swims eight days".

   Taking into account the western tourism is a newly developed lines, coupled with the summer s people, uncertain factors in the process of tourism activities are difficult to control, Ms. Lee to control their own risk, ask the travel agent must indicate in the contract signed with tourism,: "all the losses caused by the force majeure and other factors, borne by the travel agency".

   Travel reception staff in a dilemma, and the guests had to patiently explain, hope the guests can understand. However, the guests insisted that this article was written into the contract. To this end, both sides not dispute..........

   Then, the travel agency can bear the losses caused by force majeure?

   Two, case analysis:

   China's existing laws on "irresistible force (Force Majeure)" defined. "General principles of civil law" the 153rd regulation, force majeure means unforeseeable, unavoidable and insurmountable objective conditions.

   The cause of irresistible force has two kinds: one is the natural reason, disaster accidents such as flood, storm, earthquake, drought, snow man cannot control the forces of nature caused; two is the social reasons, such as war, strike, the government ban.

   1, guests can request the travel agent in the travel contract must be marked "all the losses caused by the force majeure and other factors, bear" by travel agency terms?

   Don't force majeure clause refers to the sale of contract where a party due to force majeure is unable to perform all or any part of the contract, exempt from responsibility for the performance of all or part of its, the other party shall not to claim damages.

   China's law stipulates in the application of irresistible: first, whether the contract agreement is not force majeure clause, do not affect directly invoked legal provisions; secondly, without force majeure clause is a statutory exemption clause, the agreement is not force majeure such as less than the statutory scope, the parties still can invoke the law claim exemption such as greater than the scope of the statutory; excess should be considered, in addition to set up provisions; third, irresistible force as the exemption clause is mandatory, the parties shall agree to irresistible force out of the exemptions outside.

   Therefore, the requirements of the guests travel agencies in the travel contract must be marked "all the losses caused by the force majeure and other factors, bear" by travel agency terms, the law does not support. In other words, is the travel agency should not bear the legal provisions of exemption of liability. In fact, China's travel service limited liability company, according to the "enterprise law" provisions, unable to bear the unlimited liability.

   2, the travel agency to deal with "irresistible" losses?

The general principles of the civil law 107th stipulation: "due to force majeure is unable to perform the contract or causes any harm to another person, he shall not bear civil liability, unless the law provides otherwise."

   The unavoidable consequence has two kinds: one kind is to terminate the contract, is an extension of the contract. Do not force majeure accident, travel agency should be dealt with according to the principle of the contract, reason, should be considered the nature of the accident, and to perform the actual scale of the impact of the contract, timely treatment.

   The laws and regulations of our country, when not force majeure occurs, a party can not according to the prescribed performance to obtain the exemption rights, shall promptly notify the other party, and provide the necessary supporting documents within a reasonable time, so as to reduce the possible losses inflicted on the other party. If a party concerned fails to notify the damages caused to the other party, still liable for. If the parties have fulfilled its obligations, then because of the losses caused by force majeure, should assume their respective. This is also a lot of travel agency marked "for irresistible costs incurred by the guests themselves" reason in the tourism contract.

   "Liaoning provincial tourism regulations" provisions of the second paragraph of thirty-fifth: "the travel agency for irresistible reasons for the decrease of tourism service project or reduce the tourism service standard has not yet occurred, shall return service.

   Therefore, the travel agency with irresistible force, only to retreat without the occurrence of travel costs can be, and should not bear the loss of other tourists.

   3, learn to distinguish between "irresistible" and "accident"

   In real life, many travel agencies will"The accident "attributable to" irresistible "requirements for their exemption. Such as: because of traffic jam, the travel agency has not the guests to the airport on time and the machine error loss, does not belong to the "no resistance" factors, and belongs to the "accident". The losses caused by the guest cannot share. Because, "not the legal consequences of resistance" and "accident" of different.

   Specified in the first paragraph of article 117th: "the contract cannot be fulfilled due to force majeure contract, according to the influence of irresistible , part or all of exemption from liability. Except as otherwise stipulated by law. Do not force after the party's delay in performance, not exempt". "The accident" refers to the non - because the parties intent or negligence and fortuitous accident.

   Visible, "irresistible force" in order to avoid the responsibility, the irresistible reason unable to perform the contract damage, on the implementation of the principle of exemption principle; and "accident" is to avoid the fair share for. The travel agency to learn the difference between "irresistible" and "accident", to improve the quality of tourism services, has the vital significance.

   4, if the guest requests that the clause in the contract, the travel agency to deal with it?

In real life, like Ms. Li ask travel agencies must indicate in the tourism contract signed,: "all the losses caused by the force majeure and other factors, many borne by the travel agency" in terms of the situation.

If the travel agency did not specify the terms in the tourism contract, the guests do not do it; if the clause is increased in the travel contract, the travel agency can not bear the responsibility, how to do?

    Suggestions:The travel agency in the case of the travel contract, can indicate:"Caused by the force majeure and other factors of the loss, the travel agency according to the provisions of the State shall be the responsibility of the bear",I believe customers can understand.