Is it a breach of contract for the travel agency to cancel the tour because there are not enough people?

The travel agency violated the contract.

Let me introduce you to a case.

Mr. Wang's family planned to spend their holidays in Beijing, so they signed a travel contract with a domestic travel agency. Both parties agree that the performance period of this contract is 15 days after the contract is signed. After the contract was signed, Mr. Wang's wife also asked the company for annual leave. Just as Mr. Wang's family was actively preparing, the travel agency called to inform Mr. Wang that due to the shortage of staff, the travel agency decided to cancel the trip and the travel agency refunded the group money in full. Mr. Wang negotiated with the travel agency and asked the travel agency to bear the liability for breach of contract. The travel agency thinks Mr. Wang is unreasonable. Because the travel contract has given the travel agency the right to terminate the contract.

The travel contract signed by Mr. Wang and the travel agency stipulates that the tour group must have more than 10 people to form a group. If the number of people does not arrive, Party B (referring to the travel agency) may notify Party A (referring to the tourists) to terminate the contract five days before the agreed departure date. After the termination of the contract, Party B will refund all the fees paid by Party A, and Party B will not be liable for breach of contract with Party A, or sign another contract with Party A.. ..

The travel agency explained that this time the travel agency only organized five guests, which did not reach the scheduled 10. The travel agency has the premise to terminate the contract relationship with Mr. Wang and others. The travel agency informed the tourists seven days before leaving the group that it did not violate the above contract terms. Travel agencies strictly abide by the contract. Therefore, according to the contract, as long as the travel agency returns the group money in full to Mr. Wang, it does not need to bear the liability for breach of contract. It is difficult for Mr. Wang to accept the explanation of the travel agency, but he is helpless.

So, can the travel agency's explanation be established? In other words, is the travel agency really not liable for breach of contract?

China's Contract Law stipulates that the parties may attach conditions to the validity of the contract. A contract with effective conditions shall take effect when the conditions are met. A contract with termination conditions is invalid when the conditions are met. This kind of contract is what people usually call a conditional contract. The main feature of a conditional contract is that before the conditions are met, the effectiveness of the contract is in a state of temporary stagnation, which can neither be said to be absolutely effective nor absolutely invalid. Whether the contract comes into effect depends on whether the attached conditions are "reached". Travel contracts are no exception. On the premise of consensus between travel agencies and tourists, the entry into force or termination of travel contracts is subject to certain conditions. As long as the additional conditions are met, the travel contract can be effective or terminated.

Compared with the above contract terms, it is not difficult to see that this clause is included in the contract signed by Mr. Wang, which makes the travel contract a conditional contract. Specifically, the realization of Mr. Wang's travel plan depends on whether the number of travel agencies is not less than 10 or whether the number of tour groups is more than 10, which is the key to the trip. When the number of the tour group meets the requirements of the travel agency, the contract comes into effect, and Mr. Wang Can travels with the group. If the number of tour groups does not reach the agreed number, the travel agency may exercise the right to unilaterally terminate the travel contract without being liable for breach of contract. In isolation, it is legal and reasonable for the travel agency to terminate the travel contract signed with Mr. Wang by virtue of this agreement, and Mr. Wang should not raise any objection to this. At the same time, according to the principle of freedom of contract, as long as both parties reach an agreement through consultation, they can agree on anything, including attaching certain conditions to the contract to limit the effectiveness of the contract, which is not improper in itself. Judging from the current tourism practice, it is obvious that there are serious defects in concluding conditional tourism contracts.

First of all, such a travel contract is not conducive to performance.

We say that the purpose of signing travel contracts between travel agencies and tourists is to stabilize and encourage trading behavior, successfully perform the contracts, realize their respective rights and assume corresponding obligations. The characteristics of tourism service products determine that it is impossible to use spot transactions in tourism contract transactions. After signing the travel contract, both travel agencies and tourists have a preparation stage. In order to go to the tourist destination according to the contract and enjoy the services provided by the travel agency, tourists may have to ask for leave and make overall arrangements for their work. If the above additional conditions exist in the travel contract, it means that the validity of the travel contract is in an unstable state, and the tour group may or may not make a trip. Moreover, judging from the contents of the first half of the above clause, it is a mandatory agreement, which can be understood as that the travel agency must unconditionally terminate the travel contract with tourists within a certain period of time if it does not reach a certain number of people. The latter part is an arbitrary agreement, which can be understood as that the travel agency can terminate the travel contract or not, which is inconsistent. However, the agreement is very clear. No matter whether the contract is terminated or not, the travel agency will not be liable for breach of contract. The initiative is entirely in the hands of the travel agency, and everything depends on the reception situation of the travel agency. Therefore, while making all kinds of preparations, tourists should also worry about whether the tour group can make it. In order to confirm whether the team can finally make it, visitors must keep abreast of the reception progress of the travel agency. Because the terms of the travel contract are clear, once the number of tour groups fails to reach the agreement, the travel agency will exercise the right to terminate. It is no exaggeration to say that as long as there are the above-mentioned conditional clauses in the travel contract, even if the tourist has signed the travel contract, the tourist's heart is still hanging, and only when he embarks on the journey can the tourist really rest assured. The harm of this clause can be seen. Therefore, in order to eliminate tourists' worries, stabilize tourism trading behavior and facilitate the performance of tourism contracts, similar clauses should not be attached to the performance of tourism contracts, otherwise it will create artificial obstacles to the performance of tourism contracts, and in the long run, it will not be conducive to mutual trust and cooperation between travel agencies and tourists.

Secondly, this kind of travel contract lacks equality.

Whether tourists or travel agencies, their legal status is completely equal in the process of signing and fulfilling tourism contracts. This means that the right distribution and obligation sharing between travel agencies and tourists are balanced. To ensure the equality of rights and obligations between travel agencies and tourists, the most important thing is that both travel agencies and tourists should have equality consciousness, integrate equality consciousness into the terms of travel contracts, and make an agreement on the terms involving equality of rights and obligations of both parties. Specific to the contract signed between Mr. Wang and the travel agency, if it is stipulated in the travel contract that the travel agency has the right to terminate the contract because of the "shortage of people" in the group, and the travel agency will not bear the liability for breach of contract, then, according to the principle of equality, tourists should also enjoy similar rights to terminate the contract, and tourists certainly do not have to bear the liability for breach of contract. But in fact, the tourism contract does not give tourists equal rights to terminate the contract. On the contrary, the travel contract strictly stipulates the tourists' right to terminate the contract: as long as the tourists propose to terminate the contract, they will bear the responsibility for whatever reason, which is in sharp contrast with the right to terminate the contract owned by the travel agency. Generally speaking, the travel agency has the right to terminate the contract, but it does not need to bear the liability for breach of contract. On the contrary, tourists have no right to terminate the travel contract. If they want to cancel the contract, they will be liable for breach of contract. This clause obviously expands the rights of travel agencies, increases the obligations of tourists, runs counter to the spirit of equality in civil law, causes obvious unfairness and damages the legitimate rights and interests of tourists.

Third, such a travel contract violates the negotiation.

No matter what kind of contract, it is the product of equal consultation. Both parties to the contract should reach an agreement on the premise of consensus whether they acquire rights or perform obligations. At present, travel agencies provide tourists with contracts in the form of standard terms. The so-called format clause is a clause drawn up by the parties in advance for reuse, which was not negotiated by both parties when concluding the contract. Obviously, the negotiation of format contract has been affected to some extent and there are limitations. To some extent, the format contract partially deprives one party of the right to negotiate.

Although the contract law recognizes the format contract, in order to limit the rights of the provider of the format contract and provide necessary protection for the receiver of the format contract, the contract law clearly stipulates the conclusion of the format contract. The Contract Law stipulates that if a contract is concluded by standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to draw the attention of the other party to the terms exempting or limiting its liability, and explain the terms according to the requirements of the other party. Therefore, as far as the exemption clause of the above travel agency is concerned, since the travel agency has formulated such a clause, it should take measures to remind tourists of the understanding of the clause, state the true meaning of the clause, and make a detailed explanation of the possible consequences of the clause. Only in this way can the travel agency embody the signing negotiation and ensure the travel agency to operate in good faith. If the travel agency has fully fulfilled the obligation of informing, the tourists still accept this clause happily, which reflects the spirit of consensus between the two sides and should not be judged as harming the rights and interests of tourists.

Fourth, the clause should be deemed invalid.

In order to embody the spirit of fairness and prevent one party from abusing its rights and causing obvious unfairness to the other party, the Contract Law restricts the legitimacy of standard clauses. As long as the provided standard clauses have the characteristics that one party exempts its responsibilities, aggravates the other party's responsibilities and excludes the other party's main rights, the clauses are invalid. The crux of the above clause lies in that while the travel agency exempts itself from its own responsibilities, it aggravates the tourists' liability for breach of contract, excludes the tourists' exemption rights, and the distribution of rights and obligations has been seriously tilted. Such a clause is an unequal clause, and of course it is invalid.

However, if tourists want to claim that the terms of the contract are invalid, they must question the people's court. Because the legal effect of the contract terms can only be finally confirmed by the people's court, tourists have no right to claim whether the contract terms are valid or not. Once the above clause is confirmed to be invalid, it means that the clause cannot be binding on tourists from the date of signing.

Fifth, it is difficult for tourists to defend their rights.

From the above analysis, it is not difficult to see that if tourists sign similar travel contracts with travel agencies, their rights and interests will be obviously damaged. Due to the above-mentioned clauses in the travel contract, the travel agency terminated the travel contract as agreed, and the tourists did not receive any compensation or compensation. Some tourists felt unlucky. Some genuine tourists, in order to protect their own rights and interests and demand compensation from travel agencies, must first bring a lawsuit to the people's court on the legal effect of this clause, confirm that the clause is invalid, and then make a claim for compensation. Therefore, after this kind of travel contract dispute, tourists are often in a dilemma: either accept the terms of the contract and give up the responsibility of the travel agency for breach of contract; Or protect their rights and interests through litigation. The former directly damages its own rights and interests, while the latter increases the cost of safeguarding rights. Whether tourists choose the former or the latter, it is not the best choice for tourists. Defending rights is like chicken ribs-tasteless to eat, but a pity to abandon it.

In addition, it should be pointed out that another important reason why Mr. Wang chose to defend his rights was that when signing the travel contract, Mr. Wang did not seriously exercise his rights and did not pay attention to the signing of the contract. Maybe he didn't read the terms of the contract carefully at all, let alone study the travel contract properly. Therefore, Mr. Wang's rights and interests are damaged, and he himself should bear part of the responsibility. Therefore, this dispute once again proves that how to sign a suitable travel contract is the key, and signing a travel contract is by no means a simple procedure.