136 TOURISM LAW IN EUROPE by the Danish Sales of Goods Act, since the services in question are not tangible goods46. The legal position of the parties is normally reflected in the interpretation of the concluded contract between the parties. In the absence of a lex specialis or if the contract does not address the conflict in question, it implies that the injured party can rely on the general rules and principles of the law of obligations, as well as more specialised principles developed for certain types of contracts, such as contracts for the sale of goods. Thus, if the issue is not contractually regulated, as a starting point the performance creditor must invoke the remedies resulting from the general part of the law of obligations. 5.2. Retailers – legal concept In accordance with the Package Travel Directive article 3.9, a retailer is defined as a trader other than the organiser who sells or offers for sale packages combined by an organiser. However, whereas a trader must be considered a part of European Union law, the legal implications of a retailer must be settled in accordance with the contracts lex causae. 5.2.1. WHO IS PARTY TO THE CONTRACT? The Danish law of obligations would usually consider retailers as being under the laws covering agency. This stems from the fact that a retailer acts as a commercial link between the performance creditor and the performance debtor in a contractual relationship (by fulfilling such roles as commission agent, commercial agent, retailer, property or insurance broker). The deciding factor is that the intermediary acts on behalf of the principal (organiser) – typically the performance debtor in this case – committing this entity to a third party, the traveller in this context (the performance creditor)47. Yet the retailer does not become a party to the contract and thus undertakes no obligations toward the third party, the traveller48. In Danish legislation pertaining to agency, the retailer is undoubtedly an “agent” according to the general use of the term. This covers a set of rules stating that an intermediary - who is serving a principal - can 46 Cf. Eastern Regional Court case U.2010.332.Ø. 47 LYNGE ANDERSEN, L. and MADSEN P. B., Aftaler og mellemmænd, (7th ed. Karnov Group 2017), pp. 282 et seq. 48 Regarding the law of intermediaries, see for instance LYNGE ANDERSEN, L. and MADSEN P. B., Aftaler og mellemmænd, (7th ed., Karnov Group 2017.), chapter 4, especially pp. 274 et seq.
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