A consumer brought a civil claim for damages against a travel agency for refusing to refund the price paid for two airline tickets that the claimant could not use due to the enactment of Covid-related travel restrictions.
The plaintiff submitted that he had purchased an all-inclusive package holiday for two people and that few days before starting the trip, he was informed by e-mail that the flight had been cancelled and that he would be refunded the price of the hotel within a maximum of 60 days. However, he claims that the company had never proceeded with the refund. To the contrary, the company offered that the tickets would remain valid until the end of the following year instead of refunding the sum paid.
The First Local Police Court of Las Condes upheld the claim. In particular, the Court accepted the client’s arguments that the tourism agency violated his consumer’s rights under Article 12 of Law N° 19.496 and that the refusal to refund was unfair since Covid-19 was an unforeseeable circumstance which the consumer could not bear. Accordingly, it ordered the company to pay a fine, as well as the moral damages caused, which corresponded to the amount paid for the tourist package.
Following the decision, the respondent travel company filed an appeal before the Court of Santiago, submitting that:
- it acted as an intermediary between the consumer and the supplier with respect to the provision of tourist services, which are provided by third parties;
- Covid-19 is a public and notorious fact that forced the closure of borders and the halting of international air traffic, thus preventing the airline company from carrying out the contracted trip;
- the contractual conditions established that no reimburse could be envisioned since the price was an economy fare, a situation known to the complainant, who, in any event, insisted on a refund, which was finally refused by the airline;
- in its capacity, the company had fully complied with its obligations under the contract, so that there was no infringement on its part.
By decision Rol no. 2193-2020 of 4 April 2023, the Court of Santiago upheld the appeal and dismissed the infringement claim brought by the consumer. The Court considered that the airline providing the transport service, in accordance with the agreed contractual terms, refused to refund the sum and offered, instead, to extend the validity of the tickets for almost two years. With regard to the appealing company, the Court found that the non-provision of the tourist services sold was due to the spread of Covid-19, an unforeseeable circumstance that cannot amount to a breach of contract on the side of the intermediary. Indeed, the travel agency offered the consumer to file a request to the airline company according to the contract and the airline company, as previously described, rightfully refused to refund the tickets.
