202 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY alternative obligation, for which the choice is the responsibility of the debtor – the tour operator –, who definitively frees himself from his obligation, as foreseen in Art. 1285 CC9. It is only with a similar reading of the Article that one could have thought of an effective balance of interests: the reimbursement to all for the tour operator and other tourism professionals, would, in fact, entail a possible default, which already in these terms is highly probable. Confirmation of this interpretation comes with the amendments to Article 28. Likewise, the new Article 88bis of Law No. 27/2020 is very clear in this sense; and, in addition to the option to choose left to the tour operator, in paragraphs 6 and 7, it also grants further protection to him, that we will analyse shortly. As regards the tour operator, it is provided verbatim that, in the face of the withdrawal of either the traveller10 or the organiser, the latter, as an alternative to the reimbursement provided for in Article 41 paragraphs 4 and 6 of Legislative Decree No. 79/11, may offer an alternative package or can issue a voucher. The explication, through the use of the lexical formula “as an alternative”, clarifies doubts about the type of obligation. Moreover, in order not to leave further doubts, paragraph 12 states that the emission of the vouchers provided for in this article fulfils the related repayment obligations and does not require any form of acceptance by the recipient. Therefore, now it can be said that it is, unequivocally, an alternative obligation in favour of the tour operator, but also of the other service providers such as carriers or hoteliers, taking into account paragraph 12. Accommodation facilities and carriers are also treated equally concerning the choice of the emission of the voucher. In fact, according to what is established in paragraph 3, the hotel, within 30 days of receiving the traveller's communication regarding the termination of the contract as a consequence of the impossibility of the service, proceeds to reimburse the amount paid for the stay or to issue a voucher to be used within one year of issue. Paragraph 3 does not specify whether it is an alternative, as paragraphs 6 and 7 do, but the 9 In Italian law, alternative obligations are governed by Article 1285 and following of the Civil Code. This article states that the debtor of an alternative obligation is released by performing one of the two services deducted in obligation, but cannot compel the creditor to receive part of one and part of the other. Art. 1286 refers “The choice is up to the debtor if it has not been attributed to the creditor or a third party. The choice becomes irrevocable with the execution of one of the two performances, or with the declaration of choice communicated to the other party or to both if the choice is made by a third party”. For an analysis of the alternative obligations see, among the others: E.A. Emiliotti, Alternative obligations, jointly and severally divisible and indivisible (Obbligazioni alternative, in solido, divisibili e indivisibili,), Bologna, 2019. 10 In the norm there is an imprecise use of the institutions of the termination of the contract and of the withdrawal. In paragraph 1, in fact, reference is made to the frustration due to impossibility, ex. Art. 1463 CC, also as regards the packages, when then, in paragraphs 6 and 7, an explicit reference is made to the withdrawal.
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