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Concluding a package travel contract online is an increasingly common practice, facilitating consumers in choosing and booking trips. Despite the convenience, a number of legal and practical questions arise regarding the procedure for concluding the contract. The main problem is related to the validity of the electronic contract and is it necessary to confirm it by signature or in another way ensuring the consent of the parties? What are the consequences if the contract is not scanned and sent to the other party or signed manually? At what point and how should the tour operator provide the preliminary information about the trip and when is the contract considered concluded?

I argue that for a valid conclusion of an electronic package travel contract, it is necessary to achieve consent in electronic form. . The user expresses a desire to conclude the contract by making an online reservation for the selected tourist package, and the tour operator must confirm on a durable medium the user's statement, which finalizes the conclusion of the tourist package contract.

Conclusion of an electronic contract according to the rules of the Electronic Document and Electronic Certification Services Act

An electronic contract is a contract concluded in the form of an electronic document. The Electronic Document and Electronic Certification Services Act (EDCSA) and Regulation 910/2014 provide a definition of an electronic document. According to Art. 3, item 36 of the Regulation, an electronic document is any content in electronic form. And when it contains an electronic statement (as is the case of the electronic contract) it is equated to a written form – Art. 3, para. 2 of the EDCA.

Therefore, the electronic contract has the necessary written form, and in order to be concluded, there must be a coincidence of two counter-statements of will – an offer and acceptance. These declarations of will are also made in electronic format and are considered received from the moment they are entered into the addressee's information system, without the need to confirm receipt.

A contract concluded in electronic form is often confused with the exchange of scanned copies of signed paper documents. Declarations of will made on paper are ordinary written statements signed with a traditional handwritten signature. An electronic copy is subsequently created by scanning, which is sent to the other party. The latter prints it, signs it and sends the scanned copy again. This process of exchange, although of an already created electronic copy of a paper document, does not constitute a process of concluding an electronic contract.

If the contract is concluded under general conditions, then their acceptance by the consumer must be in writing, regardless of whether it is an electronic contract or not - Art. 16 of the Obligations and Contracts Act (OCA) and Art. 298, para. 1, item 1 of the Commercial Act (CA). As we have clarified, the written form can also be achieved in an electronic environment. The law also sets another requirement for contracts under general terms and conditions, namely that they should be provided in advance if the transaction requires a written form for its validity, according to Art. 298, para. 2 of the CA.

The need for a signature

The signature, including the electronic one, can serve as an indication of the authorship of the statement in the document - for example, the formal evidentiary force of the handwritten signature under Art. 180 of the Code of Civil Procedure (CPC), which also has the effect of the qualified electronic signature (QES) - Art. 25, para. 1 of Regulation 910/2014. The absence of such signatures does not automatically lead to the invalidity of the document, since authorship can be proven by other means of evidence [1].

However, the other function of the signature is an expression of the parties' desire to end the negotiations and agree with the contents of the document. In this sense, the absence of a signature can be perceived as a lack of consent and lead to the invalidity of the contract, according to Art. 26, para. 2 of the Contracts and Arbitration Act. But in this case, it is not necessary for the signature to be handwritten, respectively - QES. A simple electronic signature is sufficient, the function of which, according to Art. 3, item 10 of the Regulation, is for its holder to sign. That is, to also perform the function of expressing consent. Thus, the button with the text “I agree”, “I accept” or something similar can be considered an electronic signature, as long as it is clear from the context of the statement who its author is.

Concluding a package travel contract electronically

Before the reform of the Tourism Act in May 2018, the package travel contract (previously called a contract for organized tourist travel) was necessarily concluded in writing, and a copy of it was handed over to the traveler, according to Art. 82, para. 2 of the Tourism Act. At that time, “electronic exchange of papers” was allowed - exchange of signed scanned copies, as well as concluding a contract with an electronic signature, as provided for in Art. 82, para. 4 of the Tourism Act.

With the new version of the Tourism Act, the electronic conclusion of a package travel contract is explicitly allowed. Before the conclusion itself, the tour operator is obliged to provide preliminary information on each package and service offered. There is no problem with the preliminary information, including the Standard Form, being provided electronically. After the preliminary information, the parties make their statements - the consumer usually fills out an online form, where he provides basic travel-related data and indicates his choice, and the tour operator reviews and confirms the reservation. One of the important elements of concluding a package travel contract online is providing the tourist with confirmation of the concluded contract on a durable medium, pursuant to Art. 84, para. 3 of the Travel and Tourism Act. This also applies to all annexes to the contract, including the preliminary information. In item 68d of the Supplementary Provisions to the Travel and Tourism Act, it is specified that a “durable medium” is any information medium that allows the consumer to store the information for future use and unchanged reproduction - for example, paper, USB devices, CD-ROMs, DVDs, memory cards, as well as e-mail.

The confirmation together with the annexes must contain all the details of the contract, pursuant to Art. 84, para. 1 of the Travel Act. Alternatively, when concluding the contract in person at the commercial establishment or outside it, a signed copy on paper is required (Art. 84, para. 3, clause 2 and para. 4). However, this requirement does not apply to electronic distance contracts or if the tourist agrees to receive the contract on another durable medium when concluding it outside the commercial establishment.

Since the package travel contract is concluded under the general terms and conditions of the tour operator, they contain important provisions such as when the contract is considered concluded. Often this is the moment when the tourist pays a deposit for the trip. The method of payment is described in detail - terms, amount. In addition, the general terms and conditions pay attention to the user profile as a form of communication between the tour operator and the tourist with the possibility of consent to receive messages in the profile.

In conclusion, an essential element in concluding an electronic contract for a tourist package is the categorically established consent, which can be confirmed both by electronic signature and by other modern means. The main obligation of tour operators is to provide all information, including the contract, on a durable medium, which allows for storage and reproduction of the information. It is important that all parties are informed and comply with the relevant legal requirements in order to avoid ambiguities and legal disputes.

If you need help in the field of electronic contracts in tourism and their lawful conclusion, we advise you to contact a specialist.

[1] P. Venedikov, “Written Evidence and Testimony in Civil Proceedings”, p. 22