88 TOURISM LAW IN EUROPE 1) Travellers have booked the hotel before the crisis: In this case, it must generally be accepted that there is a force majeure event and the traveller will be able to cancel his trip without additional costs. Indeed, when travellers had no knowledge of the Coronavirus and booked their accommodation before its spread, the conditions of the force majeure seem fulfilled. Indeed, there is an impossibility of performance (because there is a travel ban), absence of fault on the part of the debtor, occurrence after the conclusion of the contract and unpredictability. 2) Travellers have booked the hotel after the crisis has occurred: When travellers booked their trip in full knowledge of this pandemic (for example, in June 2020 for August 2020) which is disrupting the travel industry (and social and economic life) in a considerable way, it is hardly acceptable to consider that the event – a border closure – was unforeseeable at the time of booking. Thus, generally speaking, when the traveller has booked his trip in the midst of the pandemic, he will rarely be able to rely on force majeure to cancel his trip without charge. However, this too must be qualified, a case-by-case analysis will always be necessary. Indeed, although the pandemic as such is no longer unpredictable/exceptional at a certain point, certain events linked to it may still be so. For example, if, at the time of booking (for instance, 15 days before departure), the destination area was green and free of any cases of COVID-19 and suddenly becomes red, tor subject to new official sanitary measures, this sudden worsening could be considered unforeseeable. As can be seen, the question of force majeure and the Coronavirus is a thorny one and must always be assessed on a case-by-case basis. The introduction of force majeure clauses in contracts is a way of ending the uncertainties surrounding this circumstance as will be discussed below. 6.3. Temporary or Definitive Force Majeure? The question of the temporary or definitive nature of force majeure is also very much in question. Indeed, exercising a force majeure right can either temporarily delay a party’s performance until such circumstance ceases or performance becomes possible, or permanently excuse a party’s performance obligation under a contract. Many hoteliers consider that the services are only temporarily impossible due to a travel ban, for example, and that as soon as the ban is lifted, the traveller will be able to make use of his reservation.
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