Travel: Cancellations or postponements from the perspective of consumer protection regulations.
As a consequence of the entry into force of Supreme Decree No. 44-2020-PCM – which declared the State of National Emergency and provided for compulsory social isolation (quarantine) due to the outbreak of the COVID-19 – , the total closure of the borders was ordered and national and international passenger transport service was suspended, by land, air, sea and river.
In accordance with article 104 of the Consumer Protection and Defense Code “The supplier is exonerated from administrative responsibility if he can prove the existence of an objective, justified and unforeseeable cause that constitutes a rupture of the causal link due to unforeseeable circumstances or force majeure, in fact decisive of a third party or the recklessness of the affected consumer himself”.
The declaration of a State of Emergency, in principle, must qualify as an event of force majeure, so it could be faced with an event of rupture of the causal link that would exonerate transport companies from responsibility for not providing the contracted service. Consequently, the impediment of the provision of the transport service would not qualify as an assumption of lack of suitability on the part of the provider since the failure to provide the service would be due to an event outside the scope of its control and, therefore, he would not be obliged to make itinerary changes or returns. However, since the transport service would not be provided (although it had been contracted and paid for), transport companies must consider the possibility of offering alternatives, such as flexibility for the change, return and rescheduling of their trips, even when this is not established in the purchase conditions of their ticket.
Taking the aforementioned as a reference, it is possible to infer that the hosting services would suffer the same fate. This is because we are facing an exceptional situation, such as the declaration of a health emergency.
Notwithstanding the foregoing, and despite the fact that transport and accommodation companies would be protected in the event of force majeure referred to above, this does not prevent consumers from requesting certain measures or alternatives in order not to be disappointed with their expectations regarding the services contracted and which in many cases have already been paid for. Accordingly, it is essential that consumers contact providers prior to the date of service provision (for example, prior to travel or the date of hosting) in order to know the alternatives that each of the providers is offering. Likewise, consumers must take into account that the alternatives offered, however voluntary they may be, once offered are mandatory and, within the framework of a sanctioning procedure at INDECOPI, shall be used to establish whether or not consumer expectations have been disappointed. Given the particularities that each case may present, if you have any questions about how to proceed regarding a change, cancellation or return of an air ticket or a hotel reservation, you can contact us to discuss how to proceed and what measures can be taken for the specific case.
