Collective Commentary about the New Package Travel Directive

286 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE considerable changes, package cancellation), while the second group considers the withdrawal cases for consumers’ legitimate reasons. In Article 36, Paragraph 1, Letter. d) of the Tourism Code, the Italian legislation has required and regulated the case in which the tourist at the time of booking makes a prepayment of a part of the package price, setting the maximum amount to not exceed more than 25% of the total price while clearly qualifying the act as a deposit. Taking into consideration that Article 1385 of the Civil Code cannot be put into effect if the withdrawal depends on reasons not attributable, in other words if this happens because of a serious failure by the counterparty. On the one hand, the execution is important, seeing as regulating the maximum amount of the deposit defines (to protect the tourist) a limit in terms of risks that may arise through the course of time, which normally occurs between the contract conclusion and the departure. On the other hand however, it provides more fuel to the debate (already ongoing), both in theoretical and in legal terms, according to which the payment (also partial) of the price would not allow qualifying the negotiation between the parties as a “reservation” and/or generally known as a “preparatory negotiation” 3 . It is known that the reservation, considered as a legal relationship with a preparatory character, is usually applicable before making any type of contract with tourist relevance 4 . This happens because in the phase of pre-contractual negotiation the parties may have an interest in binding each other, keeping the final contractual structure at a later stage. The conditions that the Italian Legal System usually makes available to contractors are: the preliminary contract (articles 1351 and 2932 of the Civil Code), the option (article 1331 of the Civil Code), the commitment proposal (Article 1329 of the Civil Code), the pre-emptive agreement and the reservation 5 . The latter in particular is basically free and, unlike other cases, occurs each time the targets of the contract are goods or services of small intrinsic value (booking a seat in the theatre, at the restaurant, on the train) 6 . As a consequence, an anticipated deposit payment at the time of booking supports the idea of those who believe that, in this case, it would better to talk about a real sale of the travel package, as the deposit payment becomes the first act of execution of the contract, rather than the reservation. Proof of it is that, unsurprisingly, the Italian law 3 LIZZA, I contratti di viaggio , in LIPARI (edited by), Treaty of European law, IV, Padova, 2003, 2701; GALGANO, Diritto civile e commerciale , II, 1, Padova, 2004, 587. 4 See L. STANGHELLINI, Contratto Turistico e prenotazione , in Giur. It. , 1982, IV, pag. 131. 5 E. TURCO BULGHERINI, La prenotazione dei servizi di trasporto, turistici ed alberghieri , in Studi in memoria di Maria Luisa Corbino , Milan, 1999, 168 6 For this point see F. TORCHIA, Profili di diritto del Turismo (Privato e Pubblico) , Naples, 2011, pag. 220 and so on.