THE ITALIAN INTERVENTION 203 combination laid down in paragraph 12 should not leave any doubts as to the classification of the obligation as an alternative. Again, regarding the accommodation facilities, the new paragraph 5 specifies that if these are unable to perform the service – as the hotel is closed or the activity suspended –, and without there being a request from the traveller, they can offer him a service replacement of equivalent or superior or inferior quality (on which the considerations made above can be assimilated), with refund of the price difference or refund the price or, otherwise, they can issue a voucher to be used within one year of issue. Thus, the frustration (we suppose, considering that the legislator has not explicitly indicated it, besides generally in paragraph 1) of the contract works for both the traveller and the hotelier. Although the protection afforded to hoteliers seems to be similar to that afforded to tour operators, some considerations deserve inherent, not only as regards the terms within which refunds must be made or vouchers issued (which will be discussed in the next paragraph), but, above all, for all reservations of overnight stays outside the packages. While for packages there is always a monetary payment at the time of the stipulation of the contract as a down payment or deposit, the amount of which increases as the departure date approaches, as established by Article 34 letter d) of the Legislative Decree No. 79/11, it is not the same for hotel contracts. Often hoteliers enter into real free booking contracts for their customers, who are free to cancel up to a few days before the arrival at the hotel, for a slightly higher price per night11. This is a common practice in contracts concluded through online platforms. Therefore, in all these cases, the voucher tool will be completely useless, since the customer has paid nothing to ensure the stipulation of the subsequent hotel contract, and so the hotelier will have a dry loss, not even being able to ensure the presence of customers during the coming year, as they will not have issued any vouchers. 3.2. A further novelty in favour of tour operators An element of novelty, compared to the previous Article 28, is represented by the provisions of paragraphs 6 and 7 of Article 88bis Law No. 27/2020. It is stated that, notwithstanding the provisions of Article 41, paragraph 6, Legislative Decree No. 79/11, the tour operator pays the refund or issues the voucher (at his choice), only after receiving the refunds or vouchers from the 11 Regarding the free booking contract and the differences compared to the hotel contract or other preparatory legal contracts, see (for all) V. Franceschelli, The booking (Il contratto di prenotazione), in (by Franceschelli – Morandi) Tourism law, Turin, 2019, p. 256.
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