HOTEL CANCELLATIONS AND CONSUMER RIGHTS 119 consumer” (Art. 3(1) of the Unfair Contract Terms Directive). Since the cancellation policy is not a core term (“essentialia negotii”), it can be subject to the control of fairness without further requirements. When balancing parties’ rights and obligations, it should be taken into consideration whether cancellation rights are provided equally for both sides. It seems, however, that a term, which places all the risk of force majeure on the consumer, is significantly detrimental to him. Nevertheless, when assessing the balance of the parties’ rights and obligations, all contractual terms that are substantively connected should be taken into consideration8. The CJEU developed other criteria for assessing the fairness of a contractual term in Mohamed Aziz (Case C‑415/11 of 14 March 2013). The Court discussed under what circumstances a “significant imbalance” is “contrary to the requirements of good faith”, and concluded: “the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations”. It is hard to imagine that an average consumer would agree in individual contract negotiations to such a clause, according to which he would have to bear the whole risk of force majeure as in the case of coronavirus. Furthermore, in the same decision, the CJEU held that it should also be taken into consideration what rules of national law would apply in the absence of an agreement by the parties in that regard. Such a comparative analysis would enable the national court to evaluate whether (and, as the case may be, to what extent) the contract places the consumer in a legal situation less favourable than that provided for by the national law in force9. The general contract law in Slovenia gives a party the option to claim the fundamental change of circumstances and to require a judicial dissolution of a contract (in Slovenian law, the court can adapt a contract only if both parties agree to it). There is also a provision of lease contract which enables a tenant to withdraw from a contract if a rented object had been damaged due to force majeure (Art. 617(2) of the Obligations Code). However, this provision could only be used by analogy. It is also worth mentioning that, according to the Slovenian customary law in the field of hospitality (“Posebne uzance v gostinstvu”), there is a special provision which enables a hotel guest to withdraw from a contract anytime, due to force majeure, and to get reimbursed without obligation to pay compensation. Thus, it seems 8 T. Pfeiffer, Richtlinie 93/13/EWG des Rates über mißbrauchliche Klauseln in Verbraucherverträgen, in: E. Grabitz, M. Hilf, Das Recht der Europäischen Union, Kommentar, Book IV, p. 14, para. 59. 9 P. Rott, Unfair Contract Terms in: C. Twigg-Flesner (ed.), Research handbook on EU consumer and contract law, 2016, p. 299.
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