Traveller Vulnerability in the Context of Travel and Tourism Contracts : A Comparison of Brazilian and EU Law

The book highlights the link between consumers and travellers, identifying the meaning of vulnerability in Brazil and the EU. It also covers different types of contracts for tourism and travel services, including online booking processes. Only after 2015, as a result of the directive on package travel and linked travel arrangements, did the EU begin viewing travellers as consumers in the sense of Union Consumer Law; conversely, in Brazil, the traveller has no legal status whatsoever and is considered solely a consumer. As the traveller is implicitly a consumer he/she is subject to vulnerability. However, the definition of vulnerability differs considerably between Brazil and the EU: while in Brazil it is a principle stemming from the Consumer Defence Code, covering all consumers, in the EU vulnerability is not an established principle. In the EU, although the average consumer is assumed to be reasonably well informed, observant and circumspect, they are also recognised as the weaker party in the contract. That recognition does not fit with the notion of "confident consumer". Vulnerable consumers in the EU are those whose individual characteristics, such as their age, physical or mental infirmity, or credulity, make them particularly susceptible to unfair commercial practices. Conversely, in Brazil these consumers are seen as being hyper-vulnerable, rather than solely vulnerable. In this context, travellers are in a weaker position than regular consumers buying goods or services, because they are outside of their domicile or jurisdiction for a brief or extended period of time. This book examines two types of traveller vulnerability that make travellers, particularly international ones, a special type of consumers: 1. External and 2. Legal (jurisdiction). Travellers' vulnerability mainly stems from consumers travelling to different markets and different cultures. As such, they are subject to different laws that require special global attention. While both the EU and Brazilian system have their respective advantages and disadvantages, the goal of both must be to further increase protection for travellers, including business travellers. In consumer societies, the traveller is indeed a consumer by logical causation and hence a "special consumer"-- Provided by publisher Foreword 6 Preface 9 Contents 12 Acronyms, Abbreviations and Notes 14 Chapter 1: Introduction: Is the Traveller a Consumer? 17 References 24 Chapter 2: Brazil Consumer and Tourism Laws 25 2.1 Consumer Law 25 2.1.1 Consumer Law Evolution 25 2.1.2 Consumer Law as a Field of Law 28 2.1.2.1 The Consumer Defence Code 31 2.1.2.1.1 Exclusion of Liability 34 2.1.2.1.2 The Supplier 34 2.1.2.1.3 Goods and Services 35 2.1.3 Consumer 38 2.1.3.1 Consumer Vulnerability 40 2.1.3.2 Vulnerable Person and Hypervulnerable Person 44 2.1.3.3 Consumer ́s Rights, Traveller ́s Rights 50 2.1.4 Traveller 52 2.2 The Role of the Travel and Tourism Sector 55 2.3 Tourism Law 62 2.3.1 The Tourism National Statute 64 2.3.1.1 Legal Definitions 65 2.3.2 Decree 7.381/10 68 2.4 Travel and Tourism Contracts and Other Service Contracts 70 2.4.1 Contract of Carriage of Passenger 74 2.4.2 Contract of Car Rental 77 2.4.3 Contract of Accommodation 77 2.4.4 Timeshare Contract 81 2.4.5 Contract of Tourism 85 2.4.6 Contract of Adhesion 90 2.5 Jurisdiction 92 2.5.1 Enforcement of Foreign Judgments 95 2.5.2 The Small Claims Courts in Airports 96 References 97 Chapter 3: Europe Consumer and Travel Laws 101 3.1 Consumer Law 101 3.1.1 Consumer Law Evolution 101 3.1.2 Consumer Law as a Field of Law 105 3.1.3 Consumer 106 3.1.3.1 Consumer Traveller Vulnerability 108 3.1.3.2 The Average Consumer and Vulnerability 109 3.1.3.3 Vulnerability, Detriment and the Disadvantaged Consumer 113 3.1.3.4 Vulnerability and the Vulnerable Consumer 114 3.1.4 Traveller and Business Traveller 115 3.2 The Role of the Travel and Tourism Sector 119 3.3 Travel Law 120 3.3.1 Further Developments 124 3.3.2 The Package Travel and Linked Travel Arrangements Directive 125 3.4 Service Contracts and Ancillary Contracts. Single Service and Combined Services 128 3.4.1 Contract of Carriage of Passenger 130 3.4.2 Contract of Car Rental 143 3.4.3 Contract of Accommodation 143 3.4.4 Timeshare Contract 146 3.4.5 Travel Contract 152 3.4.6 Standard Contract 155 3.5 Jurisdiction 157 3.5.1 Enforcement of Foreign Judgments 158 3.5.2 The Small Claims Procedure 160 References 162 Chapter 4: Analysis: Consumer, Traveller and Vulnerability 165 4.1 Balance Between Businesses ́ Interests and Travellers ́ Interests 165 4.2 Consumer and Traveller 167 4.3 Vulnerability 171 4.3.1 External Vulnerability 174 4.3.1.1 Language and Cultural Differences 174 4.3.1.2 Racism, Xenophobia and Ethnocentrism 179 4.3.1.3 Foreign Currency 184 4.3.2 Legal Vulnerability 187 4.4 Travel and Tourism Contracts and Other Service Contracts 189 4.4.1 Combined Service Contracts and Single Service Contracts 191 4.4.2 Liability 193 4.4.3 Right of Withdrawal 197 4.4.4 Contract of Adhesion or Standard Contract 198 4.4.5 Carriage of Passenger by Air: Delay, Cancellation and Denied Boarding 200 4.4.6 Carriage of Passenger by Air: Baggage Destruction, Loss, Damage or Delay 205 4.5 International Law 206 4.5.1 Tourist or Visitor, Traveller and Consumer 208 References 211 Chapter 5: Conclusion: Travellers ́ Protection 214 References 220 Annexes: Brazilian Statutes and Flowcharts of EU Package Travel Directive 221 Brazilian Consumer Defence Code (Part) 221 Brazilian Tourism National Statute (Part) 233 Flowcharts: Directive 2015/2302/EU 238 Table A1: Neither Package nor Linked Travel Arrangement 240 Front Matter ....Pages i-xix Introduction: Is the Traveller a Consumer? (Maria Goretti Sanches Lima)....Pages 1-8 Brazil Consumer and Tourism Laws (Maria Goretti Sanches Lima)....Pages 9-84 Europe Consumer and Travel Laws (Maria Goretti Sanches Lima)....Pages 85-148 Analysis: Consumer, Traveller and Vulnerability (Maria Goretti Sanches Lima)....Pages 149-197 Conclusion: Travellers’ Protection (Maria Goretti Sanches Lima)....Pages 199-205 Back Matter ....Pages 207-226