76 TOURISM LAW IN EUROPE 3.3. The Dual Mandate of the Retailer Theory The legal qualification of the retailer and the legal regime applicable to it outside the travel law can be a tricky question. This is an issue that is not unified in Europe, especially since the entry into force of the new Directive. However, in Belgium, it is generally accepted that the retailer, unlike the organiser, should be regarded as a mandatary. He participates in the conclusion of a contract to which he is not a party. Nonetheless, he occupies a special place in Belgian law insofar as he has a dual mandate. He (mainly) acts in the name and on behalf of the traveller, as well as (to a more limited extent) in the name and on behalf of the organiser. When the retailer procures a package travel or an individual service to a traveller, he acts primarily as the consumer’s mandatary. Under the 1994 Law, this followed directly from Article 21, which stipulated that the contract concluded by the travel intermediary with an organiser is deemed to have been concluded by the traveller. Nevertheless, the retailer will also be acting on behalf of the organiser or travel service provider when collecting the price of the trip from the consumer. The consequence of the retailer’s mandate from the organiser to collect the price should not be underestimated in practice, as, for instance, the traveller’s payment of the price into the hands of the retailer is considered to be in full discharge. In other words, this payment is presumed to have been done directly to the organiser. If the retailer remains in default of payment to the organiser or goes bankrupt, the organiser will not be entitled to withhold the travel documents and will have to execute the package travel contract, even without being paid. This so-called “delivery obligation” is the basis for the widespread practice in the market of obliging retailers to pay the price collected from travellers by direct debit. While it is true that the 2017 Law is now silent on the dual mandate held by the retailer and that this theory seems to be questioned by some, in our view, this theory is still applicable. There is nothing in the 2017 Law that objects to it and this has always been the position of the majority of the doctrine under the old Law.
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