Situation:
The travel agent entered into an agreement with clients for the provision of travel services: holidays in Dubai with a flight from Minsk by Flydubai in March 2022. But she could not send tourists on a trip – after the outbreak of hostilities in Ukraine, Flydubai canceled the flight program to Minsk.
Tourists first agreed to pick up another tour for the money paid, but did not choose anything and after 2 months they asked for a refund. The travel agent returned the amount under the contract – gradually over the next 2 months.
Actions of the customer under the contract (tourist):
At the beginning of June 2022, a tourist filed a consumer protection lawsuit with a demand to terminate the contract for the provision of tourist services and recover from the travel agent (my client) the balance of the unpaid amount under the contract.
On June 6, not yet aware of the case in court, the travel agent returned the money to the tourists and signed an agreement with them to terminate the contract. Some time later, the plaintiff wrote a statement waiving the claims on the grounds that they were allegedly voluntarily satisfied by a travel agent. At the same time, he asked to recover his expenses for a lawyer (according to the law, the plaintiff has such a right if he refuses the claim on the basis of voluntary satisfaction of his requirements).
Respondent/travel agent position:
The defendant objected to the acceptance of the withdrawal of the claim and the termination of the proceedings, as this violated her rights. First of all is the right to protection from an unfounded claim. The travel agent wanted to sew up her business reputation and prove that she had not violated consumer rights – the travel agent’s obligation to send tourists on a trip was terminated on the grounds of “impossibility of performance” (there is such a basis in the Civil Code). And the plaintiff assured that his consumer rights were violated and that is why the contract was terminated.
In addition, the travel agent also incurred the costs of paying for the services of a lawyer and claimed to recover them from the plaintiff, and this was possible only when considering the case on the merits.
What have happened next:
The district court, despite the objections of the travel agent, has accepted the waiver of the claim, terminated the proceedings and recovered from the travel agent the expenses of the tourist for the services of an attorney.
But we didn’t give up. Wrote a complaint to the Judicial Collegium for Civil Cases of the Regional Court. They pointed out the errors of the court in the application of substantive law: the money was returned and the contract was terminated not on the basis of the law “On the Protection of Consumer Rights”, which is not a voluntary satisfaction of the claims of the plaintiff as a consumer. The regional court agreed with us, canceled the illegal judicial decisions of the district court and sent the case for a new trial to the district court to another judge.
The decision of the court of 1st instance during the retrial of the case:
The District Court took our side. The plaintiff did not accept the refusal of the claim, but considered the case according to all the stated requirements. He issued a decision by which he refused the tourist to satisfy the claim. And he recovered from him in favor of the client the costs of paying for the services of a lawyer in full
Conclusion:
The travel agent not only defended her good name and fought off the recovery of money, but also compensated her expenses in a lawsuit at the expense of a tourist who was wrong. It’s nice that the client didn’t give up after the first loss and decided to fight on.