Danish holiday home agencies and the Covid-19 pandemic situation
The lung disease COVID-19, classified as a pandemic by the World Health Organization, affects human health, social life as well as economic and working conditions. The Covid-19 pandemic led to border closings within Europe in March 2020. The Danish government decided to close the border with Germany to those entering Denmark for tourist holidays. Many German holidaymakers who had booked a holiday home in Denmark for holiday stays, e.g. for Easter or Pentecost through Danish holiday home agencies, were no longer able to cross the border to Denmark and could not use the booked holiday home as intended.
Most holidaymakers had already booked the holiday homes in 2019 and paid the rental price before the start of the planned trip.
Our law firm has now asked the Danish holiday home agencies to reimburse the rent paid in advance for a considerable number of clients who have been affected in this way, as the holiday home agencies do not do this voluntarily with reference to their general terms and conditions. In several cases, we have already been able to successfully reimburse the rent paid for our clients.
However, some large holiday home agencies still refuse to refund and interpret both Danish law and their own terms and conditions to the detriment of the tenants. In most cases there are good reasons not to accept this practice.
After all, the holiday home agencies themselves mostly submit that the border closings represent a case of force majeure. We share this view. However, the holiday home agencies continue to assume that customers can cancel their booking solely in accordance with the cancellation regulations of the General Terms and Conditions.
However, this approach led to the fact that the customers lost a large proportion or even the entire rent paid in advance due to high cancellation fees. The risk of the pandemic situation at the time is almost completely passed on to the individual customers. In our opinion, this is mostly wrong.
In these cases, the question must be asked whether and, if so, which terms and conditions apply at all and whether the content of the cancellation regulations in these terms and conditions also apply to the cases of force majeure that are usually regulated elsewhere in the terms and conditions. There is, among other things, a Danish holiday home agency that changed its terms and conditions in March 2020 to the detriment of tenants and no longer makes the terms and conditions from 2019 publicly available. However, if the holiday property was already booked in 2019, the terms and conditions from 2019 will apply and probably not the terms and conditions that were only published in 2020.
So there are good reasons to have a lawyer check the terms and conditions of vacation rental agencies. It is very possible that some of the terms and conditions contain ineffective clauses or even do not apply in their entirety.
In any case, it must be clarified whether the customers can not rely on force majeure and whether – regardless of the border closings – the corona virus itself or its consequences (such as quarantine measures) are to be viewed as force majeure and so affect the possibility of compliance with contractual obligations.
In Danish law, clauses regulating cases of force majeure can be found in several laws, including the Danish Sales Act, the Maritime Act and the Law on Mortgage Letters. In the Danish legal literature, the general legal principles are assumed here, which also apply to other areas of law, such as tenancy law. Under certain circumstances, tenants will also be able to invoke force majeure as a reason for not being able to fulfill the contract.
The cancellation of contracts in the event of force majeure is regulated in the international sales law in the Vienna Sales Convention (CISG) in Art. 79. Art. 81 CISG then stipulates that advance payments for services are to be reimbursed in such cases.
According to Art. 79 Para. 1 CISG:
A party is not responsible for the non-fulfillment of one of its obligations if it proves that the non-fulfillment is due to an impediment outside its sphere of influence and that it could not reasonably be expected to consider the impediment or the impediment or his or her when concluding the contract Avoid or overcome consequences.
And Art. 81 CISG therefore regulates:
(1) The cancellation of the contract releases both parties from their contractual obligations, with the exception of any liability for damages. The cancellation does not affect the provisions of the contract on the settlement of disputes or other provisions of the contract that regulate the rights and obligations of the parties after the contract is canceled.
(2) If one party has fulfilled the contract in whole or in part, it can reclaim its performance from the other party. If both parties are obliged to return, the services must be returned step by step.
Although there is no international purchase between business people when renting a holiday home in Denmark, the provisions in Articles 79 and 81 CISG correspond to the general principles of Danish law.
In individual cases, you will therefore have to ask yourself whether a consumer who has rented a holiday home but cannot use it because of closed borders or other consequences of the pandemic can invoke force majeure on his part. It must be carefully examined whether the right to do so has actually been effectively excluded in the terms and conditions of the holiday home agency and only a reference to the – unfavorable – cancellation regulations there is legally permissible.
ARTICLE ABOUT THE TOPIC in “Der Nordschleswiger”:
CORONAVIRUS – Enttäuschte Mieter gehen gegen Ferienhausanbieter vor
September 9th lawyer Hans-Oluf Meyer in collaboration with the Ministry of Foreign Affairs’ Trade Council and the Trade Department at the Danish Embassy in Berlin participated in a Masterclass Workshop at Food Nation at Axelborg in Copenhagen with a presentation on the legal challenges of export and establishment in Germany. Participants were Danish companies that market their food products in Germany and that want to increase their activities in the German market.
advokatfirma | meyer and Novasol tenants are confirmed by the Danish consumer ombudsman in Corona cases: Novasol cannot retroactively change terms of business. The newspaper The Nordschleswiger reports:
“If force majeure applies to Novasol, this must also apply to the consumer.” Attorney Meyer has complained about Novasol’s unilateral change of business terms in the midst of the pandemic. The newspaper Lübecker Nachrichten reports:
advokatfirma | meyer wins in third instance a decisive process for German road accident victims at the Danish Supreme Court, Højesteret. The case concerned the fundamental question of which law is applicable if a German car causes an accident on a business trip in Denmark and the employees want to bring claims against their employer.
Dänische Ferienhausvermittlungen und die Covid-19-Pandemielage
Artikel in “Der Nordschleswiger”: Enttäuschte Mieter gehen gegen Ferienhausanbieter vor
Ausgewählte Informationen zu aktuellen Entwicklungen im Recht der Kurzarbeit, im Arbeitsrecht, im Insolvenzrecht, im Mietrecht und im Zivilrecht zu Zeiten der Sars-Cov-2-Pandemie
The Danish founder and partner of the lawfirm Hans-Oluf Meyer has successfully transferred the Scandinavian way of team-work into our German law firm and we are therefore very glad to present a high standard concerning both our reachability towards our clients as well as our legal advice, as our cases are regularly surveyed by more than one lawyer.
TVS – Newscast:
15. juli 2012 19.30
Following the main news on July 15, 2012, Danish television showed a report with and about attorney Hans-Oluf Meyer and his law firm in Berlin (the program is in Danish):
Lawyer Hans-Oluf Meyer
Hans-Oluf Meyer (1969) is both Danish and German lawyer. He provides advice predominantly in German/Danish legal matters in areas of international contract law, international private law and litigation. In Danish law he basically focuses on contract law, company/commercial law and the tort law.