ITALIAN LEGISLATIVE PROVISIONS 163 One first consideration is that perhaps the legislator should have clarified not only the impossibility for the organiser or carrier to render the performance, but also – and one could say mainly, at the time of the entry into force of the Decree – the impossibility of the traveller to receive the performance. As a matter of fact, at the time of the entry into force of Art. 28, most carriers were still in the position of performing the contract, whereas it was the travellers who were prevented from flying due to the restrictions imposed on the, thus prevented from receiving the performance6, with the consequence that the contract could not fulfil its original scope. Paragraph 2 of Art. 28 provides that such individuals cited in paragraph 1 must notify the carrier with one of the cited impediments or impossibilities, no later than 30 days from the ceasing of the impediment or from the departure date. According to paragraph 3, “The carrier, no later than 15 days from receipt of the notice shall either reimburse the amounts paid for the carriage or shall issue a voucher of the same amount, to be used no later than 12 months after its emission”. Art. 88bis, which amended Art. 28, modified the time frame according to which the carrier shall reimburse the passenger or issue the voucher, bringing the time limit from 15 days to 30 days from receipt of the notice. Before examining the nature of the voucher and the consequences of the provisions which allowed for its emission, it is necessary to point out that the recent amendments added two paragraphs to Art. 88bis, particularly paragraph 4, which reads as follows: “with reference to the individuals specified in paragraph 1, the carrier as well shall have the right to withdraw from the contract (thus to cancel the contract), upon timely notice to the passenger, whenever its obligation cannot be performed due to provisions adopted by national or international Authorities, or by foreign States as a consequence of COVID-19 epidemiologic emergency. In such cases, the carrier shall timely notify the traveller and, no later than 30 days shall reimburse the price paid or issue a voucher of the same amount, to be used within the next 12 months”. 6 On the supervening impossibility to receive the performance, see Corte di Cassazione, Sez. I civile, 10 July 2018, No. 18047, in www.rivistadirittoeprocesso.eu, which confirms that in those cases where the performance cannot be received by the tourist, the scope of the contract, which is the touristic aim to which the contract must tend, is frustrated and thus the contract is terminated. Cass., sez. III, 20 December 2007, No. 26958, related to the termination of a hotel contract, due to the death of one of the tourists the day before departure in Nuova giur. civ., 2008, 10531, commented by S. NARDI, Contratto di viaggio “tutto compreso” e irrealizzabilità della sua funzione concreta; Corr. Giur., 2008, 921, commented by F. ROLFI, Funzione concreta, interesse del creditore ed inutilità della prestazione: la Cassazione e la rielaborazione del concetto di causa del contratto; in Contratti, 2008, 786, commented by L. BARBIERA, Risoluzione per impossibilità sopravvenuta e causa concreta del contratto a confronto. The decision follows the same reasonings of Cass., sez. III, 24 July 2007, No. 16315, in Dir. turismo, 2007, 375, commented by G. BENELLI, La risoluzione del contratto di viaggio per impossibilità sopravvenuta di utilizzazione della vacanza. The decision relates to the termination of the contract of a package due to the spread of dengue in Cuba.
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