Collective Commentary about the New Package Travel Directive

288 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE same theory is a case of a contract with continuous execution), from the moment that the balance of the amount paid represents a fulfilment of the principal obligation of the tourist, the withdrawal can no longer be put into effect after this time. If this were the case, however, it is obvious that the protection provided by the law in favour of the tourist would be easily neutralized by tour operators by simply establishing a date for the payment of the balance within an extremely short period of time following the booking. Add to this, that even if you want to believe that the contract has not been executed completely, as long as the interest for free time or entertainment (deduced by the tourist in the contract) is unsatisfied, or as long as all of the services purchased are not fulfilled; according to Article 1373, Paragraph 2 of the Italian Civil Code, the withdraw cannot have a retroactive effect and will not give the right to obtain the repetition of the services already performed. Nevertheless, according to the direction of the reported theory Article 36, Paragraph 1, Letter d) of theTourismCode, notwithstanding the regulations of Article 1373, Paragraph 2 of the Italian Civil Code, gives tourists the right to use the withdrawal with retroactive effect and obtain the repetition of the amount paid even after the payment of the entire amount has already been settled. This happens when making a far-reaching interpretation of the law (in order to avoid an easy elusion), like in the case of contract termination by the customer (ex. Article 1671 of the Civil Code) or in the case of termination with retroactive effects, concerning long-term contracts, such as the sale with retention of title (ex. Article 1526 of the Civil Code). In the event of tourist withdrawal happening after the payment of the entire price, the Italian law, among others, tends to also recognize the right to compensation in favour of the organiser or intermediary, at least with reference to the expenses incurred up to that time. Those assumptions are based in reference to Article 1671 of the Civil Code or Article 9 of the CCV 9 . At this point, it remains to be verified whether the Italian law has a deadline within which to use the legal withdrawal for legitimate reasons by the tourist. On the one hand, none of the regulations quoted so far clearly expects any final term to exercise the right. On the other hand, authoritative legal writings and part of the law itself state (both showing agreement) that the withdrawal clauses validity (whether legal or conventional) must always depend on foreseeing a specific term or a definable one, since in its absence, it would end up making the contract effectiveness depend on the will of the right holder 10 . 9 Cfr. App. Genova, September 1, 2004, in Giur. Mer. , 2005, 245. 10 Cfr. F. GALGANO, op. cit. , pag. 428 and on.