TOUR ORGANISERS AND SUPPLIERS 83 The theory, in particular, was applied by the Austrian Supreme Court7 in travel cases, such as: terrorist attacks and threats causing the loss of sufficient safety as a business basis for a family holiday8; the 9/11 attacks eliminating the basis of transaction with regard to a flight to Miami in October 20019; a tsunami making the continuation of a package holiday unreasonable10; or an infectious disease (SARS) making it unreasonable to visit certain destinations within a package tour11. The Supreme Court held that the considerations of the ABGB justify the derivation of a general principle of law according to which a party is not bound by the transaction or can demand its adjustment if a precondition does not apply, which is always the basis of a transaction of the type concluded – in particular, if a journey becomes impossible or unreasonable for the traveller due to events arising after the conclusion of the contract, which are neither the responsibility of the traveller nor of the contracting party and cannot be influenced by either party. 4.2. Germany The Germany Civil Code12 has a particular provision on the discontinuation of the basis of the transaction13 according to which a party which, taking into account all circumstances, cannot reasonably be expected to adhere to an unchanged contract may demand adjustment of the contract if circumstances which have become the basis of the contract have changed seriously after the conclusion of the contract and if the parties would not have concluded the contract or would have concluded it with different content if they had foreseen this change. If an adjustment of the contract is not possible or not reasonable for one part, the disadvantaged part may withdraw from the contract. 7 Oberster Gerichtshof (OGH). 8 OGH 8 Ob 99/99p; 1 Ob 257/01b. 9 OGH 9 Ob 42/04y. 10 OGH 10 Ob 2/07b. 11 OGH 4 Ob 103/05h. 12 Bürgerliches Gesetzbuch (BGB). 13 Sec. 313 BGB.
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