Ask for refund and rescheduling due to COVID 19 but refused?

[CWK]

A deals a deal. Sometimes you win, sometimes you lose.

I live in a country where the Prevention and Control of Infectious Diseases Act has been invoked and travel bans are now in place as a consequence. In effect, it is illegal to travel to another country as well as between states within the country. A contract involving an illegal act is void and unenforceable. Illegal Contract Lawyers | LegalMatch

A deal is sometimes not a deal after all.

 

[Mike Walker]

In your view, does a frustrated contract offer protection in law?

Frustrated contracts

It's an interesting question - and a direction I believe many are going with respect to some airlines.

I would be surprised if the argument holds much water if the contract specifically states there are no refunds.
In that case it would seem the meeting of minds would include the risk of any form of cancellation being assigned to the purchaser.
The contract would not be frustrated as its scope included that course of events.

In the event the issue of refunds was not addressed and it was simply a case of the seller having all the money due to deposits then it would seem to be a reasonable argument to pursue. But any travel business that didn't address this sort of thing in their written agreements wouldn't last very long....

I'm sure there is a lawyer on here who can chime in with some more details?

I live in a country where the Prevention and Control of Infectious Diseases Act has been invoked and travel bans are now in place as a consequence. In effect, it is illegal to travel to another country as well as between states within the country. A contract involving an illegal act is void and unenforceable. Illegal Contract Lawyers | LegalMatch

A deal is sometimes not a deal after all.

I'd suggest reading into this a bit more, and perhaps a lawyer can also comment.
The reasoning above seems overly simplistic.

In particular I think the argument would center around what product/services the contract is for.
If a vendor is only providing lodging and diving in a country where those activities are not restricted then there is no illegal element on which to challenge the validity. The purchaser's failure to be in that country early enough to avoid flight disruptions (or refusal to use other available means to reach the destination) would be their responsibility. The vendor remains ready and willing to perform - the purchaser just didn't show up.
However, if the purchase was a package that included the means of transportation that is no longer legally possible you may very well have a valid argument....

As far as 'a deal is a deal' ('deal' not 'contract'). That is a matter of personal honor.
One can try and wriggle their way out through legal gymnastics but if the terms of no refund were clear at the time of agreement I would question the integrity of anyone who would try.

Since most of these issues cross borders and are for amounts well below the threshold of 'worth the effort' to take to court this really does come down to an ethical/moral argument more than a legal one in my mind.

 

[CWK]

It's an interesting question - and a direction I believe many are going with respect to some airlines.

I would be surprised if the argument holds much water if the contract specifically states there are no refunds.
In that case it would seem the meeting of minds would include the risk of any form of cancellation being assigned to the purchaser.
The contract would not be frustrated as its scope included that course of events.

In the event the issue of refunds was not addressed and it was simply a case of the seller having all the money due to deposits then it would seem to be a reasonable argument to pursue. But any travel business that didn't address this sort of thing in their written agreements wouldn't last very long....

I'm sure there is a lawyer on here who can chime in with some more details?



I'd suggest reading into this a bit more, and perhaps a lawyer can also comment.
The reasoning above seems overly simplistic.

In particular I think the argument would center around what product/services the contract is for.
If a vendor is only providing lodging and diving in a country where those activities are not restricted then there is no illegal element on which to challenge the validity. The purchaser's failure to be in that country early enough to avoid flight disruptions (or refusal to use other available means to reach the destination) would be their responsibility. The vendor remains ready and willing to perform - the purchaser just didn't show up.
However, if the purchase was a package that included the means of transportation that is no longer legally possible you may very well have a valid argument....

As far as 'a deal is a deal' ('deal' not 'contract'). That is a matter of personal honor.
One can try and wriggle their way out through legal gymnastics but if the terms of no refund were clear at the time of agreement I would question the integrity of anyone who would try.

Since most of these issues cross borders and are for amounts well below the threshold of 'worth the effort' to take to court this really does come down to an ethical/moral argument more than a legal one in my mind.

To my mind, a frustrated contract is not a contract that is cancelled by either party. Likewise, a contract that is rendered void by law is also not a contract that is cancelled by either party. Therefore, terms and conditions relating to cancellation by either party do not apply. Furthermore, it does no appear to me that a no refund clause would exclude a dollar for dollar credit towards a future trip.

Ethically, if a LOB is prohibited by the jurisdiction in which it operates from running cruises, then I don't think they have an ethical argument for keeping monies deposited for the performance of services that would be illegal for them to perform. Ethical/moral principals are at times contradictory. Legal principals sometimes offer a clearer path towards resolution.

We are agreed that amounts are too insignificant to pursue in courts of law.

 

[Mike Walker]

To my mind, a frustrated contract is not a contract that is cancelled by either party. Likewise, a contract that is rendered void by law is also not a contract that is cancelled by either party. Therefore, terms and conditions relating to cancellation by either party do not apply. Furthermore, it does no appear to me that a no refund clause would exclude a dollar for dollar credit towards a future trip.

Ethically, if a LOB is prohibited by the jurisdiction in which it operates from running cruises, then I don't think they have an ethical argument for keeping monies deposited for the performance of services that would be illegal for them to perform. Ethical/moral principals are at times contradictory. Legal principals sometimes offer a clearer path towards resolution.

We are agreed that amounts are too insignificant to pursue in courts of law.

Ok, so first google hit has some good practical examples that cover this well:

Frustrated Contracts | Law | tutor2u

And the second hit with much more detail:

Frustration of Contract: Law, Discharge & Consequences | Solicitors London

Some key takeaways for me:
- A force majeure clause, provided it is written properly, is likely to take precedence. So, it would seem a 'no refunds' clause supersedes contract frustration. Or, as I suggested above, makes the cancellation a defined part of the contract.
- "A contract isn’t frustrated just because it’s become more difficult or expensive to perform." So, if the airlines are shut down one could still rent a sailboat.
- "If some sort of pre-payment or deposit has been made, the buyer can get that pre-payment back, minus any expenses incurred by the seller." - a 1 for 1 credit for a later trip would not be appropriate as the vendor would have incurred some costs on the cancelled trip no matter what (they might be only administrative or they might be more).

 

[CWK]

Ok, so first google hit has some good practical examples that cover this well:

Frustrated Contracts | Law | tutor2u

And the second hit with much more detail:

Frustration of Contract: Law, Discharge & Consequences | Solicitors London

Some key takeaways for me:
- A force majeure clause, provided it is written properly, is likely to take precedence. So, it would seem a 'no refunds' clause supersedes contract frustration. Or, as I suggested above, makes the cancellation a defined part of the contract.
- "A contract isn’t frustrated just because it’s become more difficult or expensive to perform." So, if the airlines are shut down one could still rent a sailboat.
- "If some sort of pre-payment or deposit has been made, the buyer can get that pre-payment back, minus any expenses incurred by the seller." - a 1 for 1 credit for a later trip would not be appropriate as the vendor would have incurred some costs on the cancelled trip no matter what (they might be only administrative or they might be more).

Yes. A force majeure clause, if written properly, may take precedence over frustration. But I don't think it would be effective against a contract that is voided in law due to illegality.

 

[Mike Walker]

Ethical/moral principals are at times contradictory. Legal principals sometimes offer a clearer path towards resolution.

On this I would argue the opposite for travel related matters. Legal systems vary so greatly worldwide that it is probably easier to target morals and ethics as a standard for performance. 'Decent behavior' has seemed to be fairly universal in all the locations I've traveled to so far.

 

[Mike Walker]

Yes. A force majeure clause, if written properly, may take precedence over frustration. But I don't think it would be effective against a contract that is voided in law due to illegality.

CanLII Connects
CanLII Connects

Summary: there is no clear answer, but about half way through the first one it is specifically mentioned:

"The change in the law, to qualify as a frustrating event, must be one which was not foreseen by the parties and for which no express or implied provision is made in the contract."

Which would seem to suggest that a 'no refund under any circumstances' clause would take precedence over a contract requirement that becomes illegal due to a change in law.

The courts are going to be very busy starting in about 6 months...

(Of course all the above is Common Law from a mixture of jurisdictions and only applicable to fractions of the planet. I can dig up a completely different legal system without even leaving my country's borders. Never mind a diving trip to the other side of the world.)

 

[CWK]

On this I would argue the opposite for travel related matters. Legal systems vary so greatly worldwide that it is probably easier to target morals and ethics as a standard for performance. 'Decent behavior' has seemed to be fairly universal in all the locations I've traveled to so far.

CanLII Connects
CanLII Connects

Summary: there is no clear answer, but about half way through the first one it is specifically mentioned:

"The change in the law, to qualify as a frustrating event, must be one which was not foreseen by the parties and for which no express or implied provision is made in the contract."

Which would seem to indicate that a 'no refund under any circumstances' clause would take precedence over a contract requirement that becomes illegal due to a change in law.

The courts are going to be very busy starting in about 6 months...

(Of course all the above is Common Law from a mixture of jurisdictions and only applicable to fractions of the planet.
I can dig up a completely different legal system without even leaving my country's borders.
Never mind a diving trip to the other side of the world.)

Things are certainly going to be interesting. I chose my counterparties (travel agents) based on their domicile (applicable laws) as well as terms and conditions.

 

[chillyinCanada]

Certainly not at the level that some of you are dealing with but near the beginning of my diving life, I got stung on the "no refunds" twice. Both times were for blocks of dives cancelled due to weather.

Subsequently, it's been rare for me to pre book my dives unless a liveaboard, unavoidable for other reasons or I'm just willing to take the risk because of price advantage.

I have never found any travel insurance that covered just my dives, as I understood the policies. As long as my flights got me there and I had accommodation, there wasn't going to be reimbursement for individual or blocks of undeliverable dives.

 

[Umuntu]

We are agreed that amounts are too insignificant to pursue in courts of law.

If you have a small claims court where you are, with a reasonably high limit for claims, it may be worth pursuing if you are confident enough to present your own case.

Where I live the small claims court limit is around USD12,000. We also have Ombudsman schemes which make claims against local travel agents inexpensive to pursue.