BELGIUM | OLIVIER DUGARDYN AND CARLA GHISLAIN 77 3.4. Obligations of the Retailer The legislator is much more discreet about the retailer’s liability in 2017 than he was in 1994. However, the dual mandate system explained above still exists, in our view, and certain obligations that were before explicitly provided for still apply to him, be it under general contract law. In addition, the law still provides for certain specific (but rather limited) obligations which the retailer must meet that can be summarised as follows: 1) Contractual and pre-contractual information obligation (Artt. 5-9); 2) Transmission of a copy or confirmation of the package holiday contract obligation (Art. 10); 3) Contact point for complaints - obligation to forward complaints to the organiser (Art. 41); 4) Become an organiser if he sells a package from an organiser outside the EEA – must respect all the organiser’s obligations (Art. 47); 5) Responsibility for any technical errors in the booking system (Art. 45); 6) Insolvency insurance obligation (Art. 54). Under the 1994 Law, in addition to the duty to inform, the law imposed expressly a general obligation to provide advice and assistance on the retailer. These obligations are no longer included as such in the 2017 Law, but have they really disappeared? If we consider that the dual mandate model identified by case-law and doctrine still applies to the retailer under the 2017 Law the question may arise as to whether, these obligations do not survive through the general rules of the mandate, even if they are not expressly provided for by the law. The general law rules on mandate contracts impose a whole series of obligations on the mandatory. Although the law is not very precise on this aspect, doctrine and case-law have largely filled in the gaps. Among these obligations is the duty to perform the mandate without fault. Three subobligations have been derived from this principle, namely the obligation to comply with the instructions given by the principal, diligence and the duty of loyalty. The points that interest us most in this matter are diligence and the duty of loyalty. From these duties of loyalty and diligence do not flow the duties to advise and assist that were once enshrined in law? We believe that this could be the case. However, this needs to be confirmed by case-law, which has not yet been confronted with such a case.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==