Izvorni znanstveni članak
Liability for non-proprietary damage resulting from a breach of contract on organized tours
Petar Klarić
Sažetak
On establishing the contractual liability for non-proprietary damage, the new Law on Obligatory Relations of 2005 has rejected the dogma on the exclusively proprietary value of action, accepted the contract as an instrument of mediation as well as man’s non-proprietary goods and needs, and ensured the uniformity of liability for non-proprietary damage. This has affirmed the view that non-proprietary damage can arise from breaking a contractual obligation regardless of the proprietary or non-proprietary character of the action.
The legal basis for the liability of tour organizer for proprietary and non-proprietary damage is constituted by the Articles 346, provision 1 and Article 888 of the Law on Obligatory Relations. The tour organizer is liable for all the damage caused to passengers by non-fulfilment, partial fulfilment or inadequate fulfilment of obligations defined by the contract or the Law on Obligatory Relations. Clauses of the contract excluding or limiting the liability of the tour organizer for damage to the passenger by non compliance with contractual obligations are legally void. It is permissible, however, to determine the highest amount of damages in the contract, provided that the amount determined in this way is not in evident disproportion to the damage, that damage has not been caused deliberately or by extreme negligence and that the damage is not a consequence of corporal injury.
Tour organizer is liable for non-proprietary damage which had to be foreseen at the time when the contract was made as a possible consequence of the breach of contract on organized tour, taking into account the facts which were known or should have been known at the time. If the breach of contract occurs as a result of fraud, deliberately or from extreme negligence, compensation has to be given for the whole of non-proprietary damage.
A just monetary compensation for non-proprietary damage suffered is awarded only in the case when this is justified by the gravity of the breach of personal rights because of non-compliance, partial compliance or inadequate compliance with individual clauses of the contracted tour programme. In determining the amount of just damages, the intensity and duration of physical and mental pain and fear caused by the breach of personal rights will be taken into account.
Pre-contractual liability for non-proprietary damage is also possible.
Ključne riječi
non-proprietary damage; package tour contract; damage liability
Hrčak ID:
6438
URI
Datum izdavanja:
5.12.2006.
Posjeta: 4.614 *