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Planned from the new year
The baptism of a daughter E.I., who began planning in early January. (name and surname known to the editorial board) could not suspect that the situation would change in a few months, so the holidays would have to be carried over to next year. For nine years, a woman living in Dubai, United Arab Emirates (UAE), said that they and her husband traditionally wanted to baptize their daughter in Lithuania and celebrate it with friends and family.
“As it should be, we started all the vacation planning in advance, we looked at the service providers and a little bit everything reserved. One of them was TonyResort. We made a contract with them to celebrate about 30 people in their restaurant, we agreed a menu and we transferred a deposit of 500 euros. The girl we interacted with was very friendly and helpful, “said the woman.
We decided to cancel the plans and notify all service providers and apologize.
However, the global pandemic and quarantine of COVID-19 resulted in many restrictions: “We hope and hope that everything will happen soon and we can return to Lithuania to visit our relatives and happily celebrate our daughter’s baptism without interruption. However, looking at the situation, we found that it is not improving, flights are not resumed, 14 days quarantine (both in UAE and Lithuania) is still valid, it is not possible to book tickets, no It is possible to travel with children, etc. We decided to cancel the plans and inform all service providers about it and apologize to them. “
According to EI, everyone was understanding and flexible: “We canceled the car rental without any problem, we moved the decoration services to the following year (since all the plans were moved to the following year), there were no problems with the photographers, the advance”.
TonyResort was disappointed
As E.I. notes, TonyResort was disappointed. “We were not disappointed that we did not agree to return the advance we paid (500 euros), but we lost flexibility towards the customer.” They assured us that they had suffered losses, but what losses are involved when we announced not the last day before the holiday, but well in advance. Absurd: After requesting to transfer our reservation for next year and not demanding a refund of the advance paid, we learned that they will not return the money, but they can reserve one day for next year. It was logical that we did all this, because they would have demanded a new advance for next year’s reservation. “
TonyResort photo / Rest area at TonyResort restaurant
According to the woman, the company did not offer any alternative that suited the family. The manager stated in the letter: “Unfortunately, you can save the advance only if the holidays take place this year, there is no possibility to transfer the advance. However, we will be happy to reserve the date. “
The family did not hear any explanation for such a decision, according to which TonyResort representatives continued to state that in order to save the advance payment, people should celebrate a christening later this year, and that the conditions are there and the celebration could take place. .
Disappointed not because we did not agree to return the advance we paid (500 euros), but we lacked flexibility towards the client.
“And you were interested in the UAE requirements and quarantines? Interested in booking tickets for travel with young children? The Treaty expressly stipulates that the parties must be released from their obligations if their performance is impossible due to force majeure.Force Majeure), in this case COVID-19.
Too bad, but you won’t get far with that customer focus. We lost a client, we would have spent around 2,000 euros with them, it doesn’t matter next year, because we really enjoyed the place. In this case, we will ignore them and tell our friends to avoid them, “said the frustrated woman.
You decided to defend your rights
The family decided to apply to the State Consumer Rights Protection Service and wrote a complaint to it, the essence of which was to help agree with the company that they were supposed to provide the services at the end of the contract and to refund the money already paid. .
Describing the rape, they wrote that plans to cancel baptisms were forced due to the COVID-19 pandemic: “In this situation, we contacted the service provider to inform and apologize that we will not be able to come to Lithuania due to causes of force majeure and not at our will. We asked the service provider to reimburse the € 500 prepaid by mail, but the service provider refused to do so, arguing that they could still perform the services and that it was not their fault that we refused their services.
In accordance with the signed contract, clause “5.8 – The parties are exempt from their obligations under this contract if its fulfillment is impossible due to force majeure”, we try to request to postpone our vacation for the next (2021) year, in in which case the advance would not be refunded, but the service provider refused to do so for internal reasons. In the absence of a diplomatic solution, we decided to contact the Consumer Rights Service for help in recovering the advance paid and terminating the service contract. “
Baptism
So far, the response from the E.I. He said he had not received, only notification that the request had been registered.
TonyResort: the event can take place
However, TonyResort sees no reason why the celebration could not take place. According to a comment submitted by Neringa Narkevičė, director of the UAB Anupriškių Parkas, which manages the TonyResort amusement and recreation park, the client indicated by email that he refused services under the “UAE” clause. These are circumstances of force majeure “, but it is the latter that has not yet been tested.
According to the director, “a party must demonstrate in its defense of force majeure that:
- such circumstances did not exist at the time of the conclusion of the contract and its occurrence could not have been reasonably foreseen;
- Due to the circumstances, the contract cannot be objectively executed;
- the party that did not fulfill the contract could not control or prevent these circumstances;
- the party has not assumed the risk of such circumstances or their consequences occurring. “
If it is possible to overcome the obstacle, only with a higher price or alternative offers, these are necessary Force Majeure the conditions will not. In this case, the contract could and could be done in other ways, changing the date, volume, price, etc., said N. Narkevičė.
“In formulating the jurisprudence, the Supreme Court of Lithuania has established that neither the crisis nor the actions of the state are considered in themselves Force Majeure, especially since force majeure must be the sole cause of non-compliance with obligations. Furthermore, both national and international law (jurisprudence), when interpreting the concept of “single cause”, establishes that such an obstacle is inevitable in the sense that a party that cannot fulfill an obligation cannot fulfill its obligations in any way.
For example, if it is possible to overcome an obstacle only with a higher price or alternative offers, these are necessary Force Majeure the conditions will not. In this case, the contract could and could be done in other ways: changing the date, volume, price, etc. “N. Narkevičė said in the comment sent.
According to her, the planned baptisms “are not included in the list of restrictions based on government decisions regarding restrictions in the quarantine period, therefore the event can be carried out in its entirety.” The flights are said to be already being renewed, so the customer really has a chance to attend your event.
Also, according to the director of the company that manages TonyResort, the client was slow to notify the company about it. Force Majeure circumstances, as he was obliged to do immediately, as soon as such circumstances arose. If not properly notified, the right to rely on these circumstances is lost.
The client can reject the requested services at any time, but is obliged to fulfill the contract, and stipulates that the advance is not refundable when “the client terminates the contract without the fault of the contractor”. It is said that in this case the advance “also performs a penalty function”.
N.Narkevičė states that due to the global pandemic and the announced quarantine in Lithuania, “Anupriškių parkas” is trying to reach commitments with its clients: the dates of the events are postponed, coupons of the amount of the advance paid can be issued, which can be used for services, etc.
“These measures apply to those clients who objectively face unavoidable circumstances,” said the director, noting that the company’s position is determined by various circumstances. They are such that the quarantine in Lithuania and the global pandemic affected the operation of hotels and restaurants, and therefore had a negative impact on customers, their entertainment and celebration needs.
In the current difficult business situation, Anupriškių Parkas is ready to cooperate and cooperate with clients who are experiencing real and objectively justified difficulties.
“There is a necessary balance between the interests of the client and the UAB Anupriškių parkas, avoiding any abuse of the clients and achieving possible compromise solutions. In the current difficult business situation, UAB Anupriškių Parkas is ready to cooperate and cooperate with clients experiencing real, objectively justified difficulties, due to which their planned events cannot take place, and offers these clients various alternatives for events: change the date, issue paid coupons, etc. .
For all other clients whose wish to cancel or change the event date is not objectively justified by the pandemic situation (i.e. when the event can take place without restrictions), UAB Anupriškių Parkas is ready to offer the company other solutions. accessible and possible alternatives, “says N. Narkevičė.
Look what was agreed
When asked for comment on the situation, the State Consumer Rights Protection Service (SCRPA) stated that it often receives requests from consumers for reimbursements for services paid in advance for services.
“Please note that each dispute related to the repayment of an advance is examined and evaluated individually, taking into account the circumstances established during the dispute, the legal provisions and established jurisprudence.
It is important to note that the merchant has an obligation to provide complete, correct and complete information about the services provided, the conditions for providing and ending the service, the terms of the service, the possible consequences and other information that affects the consumer’s decision. to enter into a contract. An entrepreneur who has not or has incorrectly fulfilled the obligation to provide information to the consumer must compensate for the losses suffered as a result of that consumer, “said the service.
Given the difficult situation of the COVID-19 pandemic and the limitations associated with it, SCRPA advises users and service providers to understand and seek a mutually satisfactory compromise.
It is also emphasized that it is evaluated case by case what terms of service have been agreed and what reasonable expectations the consumer may have had.
“Given the difficult situation of the COVID-19 pandemic and the limitations associated with it, SCRPA advises consumers and service providers in all cases to understand and seek a mutually satisfactory compromise, such as evaluating the possibility of changing the terms of the contract, use the service at a later date, etc. ” such service specialists.
Furthermore, SCRPA informs that the consumer has the right to terminate the service contract at any time in accordance with Article 6.721 (1) of the Civil Code: “The customer has the right to unilaterally terminate the contract, despite the fact that the provider of the service has already begun to execute it. In that case, the client must pay the service provider a proportion of the price in proportion to the services provided and reimburse any other reasonable cost incurred by the service provider in executing the contract before receiving the customer termination notice. ”
SCRPA also notes that the service provider is not entitled to charge a fee for termination of the contract, but may require reimbursement of reasonable costs associated with providing the service, which the service provider must justify and prove.
Those who believe that their legitimate rights and interests have been violated should first contact the service provider in writing. If the response received is not satisfactory within 14 days, as required by the Consumer Rights Protection Act, then SCRPA can be contacted for alternative (non-judicial) resolution of disputes.
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