162 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 2. AIR TRANSPORT CONTRACTS AND THE ITALIAN PROVISIONS Given such premises, the scope of this article is to analyse the provisions taken through the adoption of art. 28 of Legislative Decree No. 9, dated 2 March 2020, as amended by virtue of Art. 88bis of Law No. 27, dated 26 April 2020, in order to minimise the impact of the lockdown on the regular performance of air transport contracts. However, before examining the contents of the provision related to termination and/or cancellation of air transport contracts, we have to focus the attention on the Italian legislator’s ratio when the 2 March Decree was issued. It was that of regulating the withdrawal or termination of those touristic contracts concluded by the individuals residing or domiciled in the red zones (which were still a limited portion of the territory), as well as those foreign destinations prohibiting entrance to such individuals were concerned (which were quite few at that time). Currently, the lockdown affects the whole country, and the pandemic is unfortunately globally widespread, with the outcome that no country is currently admitting into their respective territory travellers coming from Italy. We have to refer to Art. 28 “Reimbursement of titles to travel and touristic packages” of the Legislative Decree No. 9, especially paragraphs 1 through 4. Said paragraphs, according to general Italian civil law principles on the frustration of contracts (i.e. Art. 1463 Civil Code5), provide for the applicability of the remedy of termination (the author would rather say “frustration”, given the impossibility to perform due to a cause which cannot be attributable to either party) of touristic contracts, as well as transport contracts due to the supervening impossibility to perform, with the consequent obligation to refund those payments already made. As to carriage contracts by air, rail and sea, stipulated by those individuals indicated in paragraph 1, letters a) until f), who, at the time of the issuance of the Decree, were subject to those measures limiting freedom of movement and travel. It also applied to those contracts for which the final destination was situated in a country prohibiting entrance to people coming from Northern Italian provinces particularly affected by the emergency. 5 Article 1463 of the Italian Civil Code, “Total Impossibility”, can be translated as follows: “In [case of] contracts with reciprocal performances, the party that is freed, due to the supervening impossibility of the owed performance cannot demand counter-performance and must return that which he has already received, in accordance with the rules on undue payment”.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==