Term and Legal Basis of Substitute Travel
A substitute trip refers in travel law to the possibility of using another, equivalent trip instead of an originally booked package tour. The term becomes particularly relevant in connection with cancellations, withdrawal, non-contractual performance, or other impairments of the tour operator’s service. The legal structure of the substitute trip is primarily regulated in the German Civil Code (BGB) and the Act for Implementation of the Package Travel Directive (BGB §§ 651a ff.).
Legal Definition and Scope of Application
Substitute Travel in Connection with Withdrawal and Cancellation
According to § 651e BGB (Transfer of the Travel Contract), the traveler can, instead of withdrawing, request that another person designated by him enters into the rights and obligations arising from the travel contract (so-called contract transfer). Additionally, the Package Travel Directive allows operators to offer a substitute trip in certain cases.
Die substitute trip arises particularly in the following situations:
- Traveler’s withdrawal due to significant defects
- Travel defects that significantly impede or make the continuation of the trip impossible
- Cancellation of the trip by the operator due to not reaching the minimum number of participants or other unavoidable events (e.g. natural disasters, political unrest)
- Unreasonableness of the trip for the traveler (e.g. for health reasons due to risks at the destination that have become known at short notice)
Substitute Trip as a Contract Offer
If the tour operator has canceled an originally booked package tour before the trip began, he is obliged under § 651g BGB to make immediate refunds. Alternatively, he can offer the traveler a substitute trip, which the traveler can accept or decline. If the offered substitute trip does not at least correspond in value and scope to the originally booked trip, the traveler is free to decline the offer and demand a refund.
Requirements for the Right to a Substitute Trip
Equivalence of the Substitute Trip
A central requirement is the equivalence of the offered substitute trip. It must be objectively comparable to the original trip in terms of price, itinerary, accommodation, catering, means of transport, services, and duration. In certain circumstances, an adjustment of the travel price is required if the substitute trip is of higher or lower value.
Timely Offer and Acceptability
The offer of a substitute trip must be made immediately as soon as the original travel date cannot be met. The traveler must not be disadvantaged by a delayed offer that makes a reasonable decision difficult. It is also essential that the substitute trip is actually acceptable (e.g. taking personal needs into account, such as the time of travel or destination).
Rights and Obligations of the Contracting Parties
Claims in Case of Refusal or Defects of the Substitute Trip
If the traveler does not accept the offer of a substitute trip or if it does not meet the legal requirements, he is entitled to refund of the travel price and, if applicable, to compensation for damages. If there are defects in the substitute trip, he is also entitled to the rights under §§ 651i ff. BGB (rights in case of travel defects), i.e. in particular:
- Request for remediation
- Self-remedy and reimbursement of necessary expenses
- Reduction of the travel price
- Termination of the travel contract in the event of significant impairments
- Compensation for non-performance
Notification Duties and Deadlines
According to § 651h para. 4 BGB, the tour operator must transparently inform about all relevant circumstances of the substitute trip. The traveler must also be granted reasonable deadlines to accept or decline the offer.
Special Situations Concerning Substitute Trips
Natural Disasters, Crises, and Exceptional Circumstances
If unavoidable, extraordinary circumstances arise (e.g. epidemics, political unrest, force majeure), both the operator and the traveler can withdraw from the contract for good cause. The possibility to offer a substitute trip also exists in such cases, but the ultimate decision always lies with the traveler.
Substitute Trip for Partial Services and Combinations of Individual and Package Travel
For trips that are agreed as linked travel arrangements or consist of a combination of various individual modules, the offer of a substitute trip becomes more complex. Here, the legal classification of the specific travel contract determines the application of the substitute travel regulations.
Procedural Aspects and Consumer Rights
In the event of disputes about the content, value, or acceptability of a substitute trip, it is possible to assert claims for refunds or compensation. Important aspects include:
- Burden of proof for equivalence and offer of the substitute trip
- Compliance with statutory deadlines, in particular the duty to notify within the exclusion period of § 651o BGB
- Right to reimbursement within 14 days after withdrawal or cancellation
Conclusion and Outlook
The substitute trip is a central instrument in modern travel law to protect the interests of travelers in the event of cancellations or significant changes to the trip arrangement. It provides flexibility but also entails legal pitfalls, making it essential to carefully observe statutory requirements and contractual conditions. The particularities of the substitute trip enable an effective balance of interests between tour operators and travelers, strengthen consumer protection, and ensure fair resolution in the event of disputes.
Frequently Asked Questions
When does a legal claim to a substitute trip exist?
A claim to a substitute trip generally exists when there is a significant defect in the originally booked package tour and the tour operator does not remedy it within a reasonable period. According to § 651m BGB, the traveler may demand, as one of several possible remedies, that the operator offers a substitute trip of equivalent or higher value, provided this is possible and reasonable. The prerequisite is that the defect considerably affects the conduct of the trip or individual services. However, it should be noted that the substitute trip must at least correspond in quality and scope to the originally agreed travel contract and must not incur additional costs for the traveler. The operator may only refuse a substitute trip if its provision is objectively unreasonable.
What rights do I have if the substitute trip does not meet my expectations?
Basically, the substitute trip must correspond to the originally booked trip in terms of standard, location, facilities, and other key features. If the substitute trip falls short of these criteria, the traveler is entitled to a reduction of the travel price under § 651m para. 2 BGB. If the defect of the substitute trip is substantial, the traveler may also terminate the travel contract and, if applicable, claim compensation for wasted holiday time under § 651n BGB. It is recommended to document all deviations and defects in detail and set a deadline for rectification. The assertion of these rights should always be immediate to avoid the loss of claims.
Do I always have to accept a substitute trip proposed by the operator?
The traveler is not obliged to accept every substitute trip proposed by the operator. What matters is whether the substitute trip is at least equivalent to the contractually guaranteed services. If the offer deviates significantly from the original trip—for example in terms of destination, accommodation standard, or catering—or if the substitute trip is unreasonable for the traveler due to compelling personal reasons, acceptance may be refused. In this case, the traveler may either insist on a remedy within the original trip, remedy the defect himself and claim reimbursement of the necessary additional costs incurred, or terminate the contract in accordance with § 651l BGB.
How does the acceptance of a substitute trip affect my other claims?
By accepting a substitute trip, claims for reduction or compensation are generally not excluded. If the substitute trip, despite remedying the original defect, itself has defects, the traveler reserves the right to assert warranty rights such as reduction, compensation, or contract termination due to these defects. In addition, claims for compensation for delays, extra costs, or wasted holiday time remain if further disadvantages arise from circumstances in connection with the substitute trip.
Who bears the additional costs of a substitute trip and do I receive a discount in return?
With regard to the costs of a substitute trip, the traveler must not incur any additional costs if the substitute trip is more expensive than the originally owed travel service. If, on the other hand, the substitute trip is of lesser value or scope, the tour operator is obliged to reimburse the traveler the difference (§ 651m para. 2 BGB). Additional costs caused by the substitute trip, such as surcharges, transfer fees, or extra catering, are not charged to the traveler if they arise on the operator’s side because the original service cannot be fulfilled.
What deadlines and formal requirements must be observed when requesting a substitute trip?
The traveler should notify the operator immediately and verifiably of the request for a substitute trip as soon as the defect is discovered and it is clear that immediate remedy (e.g. defect removal) is not possible. Notification can be informal, but for evidentiary reasons should be in writing or at least by email. The operator is then obliged to respond within a reasonable period. If he does not comply with this period or unjustly refuses the substitute trip, the traveler may assert further rights, for example withdraw from the contract or arrange replacement himself and claim reimbursement of costs. The general deadlines for notifying travel defects under § 651o BGB also apply.
What is the legal situation if the tour operator cannot provide an adequate substitute trip?
If the tour operator cannot offer a reasonable and equivalent substitute trip, the traveler has the right to withdraw from the contract without notice (§ 651l BGB). In this case, the traveler receives a full refund of the travel price. In addition, claims for compensation may also be asserted if the traveler suffers additional financial losses or loss of travel enjoyment due to termination of the contract and the resulting missed holiday. The requirement for this is usually that there were no unavoidable, extraordinary circumstances (‘force majeure’) within the meaning of § 651h para. 3 BGB that made performance impossible for the operator.
