BGHZ 93, 271 VII. Civil Senate (VII ZR 63/84) Charterflug -decision = NJW 1985, 1457
17 January 1985
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Irene Snook
Professor B.S. Markesinis

The defendant, an airline company, chartered seats to company T. for a return flight from Frankfurt/Main to Santa Lucia (Antilles, Caribbean) planned for 9 and 16 December, 1980. Company T. passed on a number of these seats to company O., Fernreisen GmbH, a travel agent, for air package tours. On 15 December 1980, company T. stopped payments.

On 16 December 1980 employees of the defendant refused to let a Mrs. H. take the return flight to Frankfurt, although she had booked with company O. air tickets for the trip to Santa Lucia between 9 and 16 December 1980 for herself and her companion. As the reason for their refusal the employees stated that company T. had not paid for the flight. Mrs. H. and her companion then flew back with another airline. The resulting costs of US$1,783.60 plus interest were successfully claimed by Mrs. H. against company O.

The plaintiff, an insurance company structured as a public limited company, indemnified company O. for the claim of the court action plus interest amounting to DM 44,575,64 in addition to the legal fees and court costs amounting to DM 1,397,32. Plaintiff now claims the entire amount of DM 5,972,96 plus interest from the defendant. Both Landgericht and the Oberlandesgericht have granted the claim for DM 4,575,69 plus interest. The further appeal, though admissible, was unsuccessful for the following:


The court of appeal (Berufungsgericht) is of the opinion that the charter contract between company T. and the defendant constituted a true contract in favour of a third party as set out in para. 328 BGB, by which Mrs. H. had obtained against the defendant a right to transport. By refusing to transport Mrs. H., the defendant became liable to pay Mrs. H. damages under para. 325 BGB. In divergence from the provisions of para. 334 BGB, the defendant could not raise against Mrs. H. the possible defence of breach of contract for outstanding payments, which he has against company T. As far as the relationship between the chartered company and the benefiting traveller goes, one must assume that the plea of unpaid charter fees was tacitly excluded since the traveller relies on having acquired a claim of transportation against the airline free from any pleas.

As against Mrs. H., the defendant and company O. were joint debtors. As company O. has satisfied Mrs. H.'s claim for damages, this claim transferred to company O. under para. 426 (2) BGB. Although both joint debtors are principle liable in equal proportions, in this case para. 254 BGB comes into play mutatis mutandis. The defendant must therefore solely bear the loss, since he has caused the client H. further transport costs by refusing transportation. Company O. thus has a claim against the defendant amounting to the payments made to Mrs. H. and this claim has passed on to the claimant.

The further appeal is unsuccessful.

1. As a result of the travel contract concluded between Mrs. H. and company O. as tour operator, Mrs. H. had a claim for transportation from Frankfurt/Main to Santa Lucia and back against company O. (para. 651(a)(1) BGB). As the court of appeal rightly held, this claim for transport also existed as against the defendant. it is true that there existed no direct contractual links between Mrs. H. and the defendant and, in particular, company O. as tour operator did not act as the defendant's agent. But when concluding the travel contract for herself and her companion, Mrs. H. had at the same time booked two of the tickets chartered to company T. by the defendant. The charter contract concluded between the defendant company T. constitutes a contract for transport in favour of Mrs. H. (see BGHZ 52, 194, 201/202; LG Frankfurt/Main [1983] NJW 52; Ballhaus in BGB-RGRK, 12. ed. 328, note 50; MünchKomm/Gottwald, para. 328, note 39; Schwenk [1970] BB 282, 284).

a) Contrary to the opinion of the further appeal, such a contract in favour of Mrs. H. cannot be denied for the reasons that 1) the charter contract does not contain an agency clause; 2) the air tickets had been issued by company T. and not by the defendant and 3) the defendant did not know the persons to be transported. It is true that the decision in BGHZ 52, 194, 202 and the legal literature following this ruling (see Ballhaus, op. cit; Schwenk, op. cit.) are of the opinion that when a contract in favour of third persons is to be assumed, special significance is to be attached to such an "agency" clause, whereby the charter contract is concluded in the name of the charterer as well as for the benefit of various air passengers to be transported. However, such a clause is not the determining factor in the classification of the charter contract as contract in favour of third parties. Likewise, the place where the air tickets were issued is not decisive.

A charter contract obliges the chartered party to make available to the corridor seats on the flight organised by him. He knows that the persons to be transported are normally only named after the charter contract has been concluded, by the charterer or by a third person empowered to act for him, once package travel contracts have been signed. Thus under para. 328 (2) BGB it is the main purpose of a charter contract to transport air passengers who are identified to the chartered party only when the charterer or the third person insert their names on the air ticket. The contractual partners had intended that the contract had this particular aim. It is thus appropriate to assume that the air passengers who, at the time the charter contract was concluded would normally not be known, and in whose interests the charter contract was concluded, have direct contractual claim for transportation against the chartered party even where the charter contract does not contain an agency clause and their air tickets are not issued by the chartered party himself.

b) Contrary to the opinion of the further appeal the provisions of para. 651 (a) BGB also contain nothing against the assumption that a contract in favour of a third party was concluded. It is true that under para. 651 )a) BGB the traveller who has concluded a tour contract in principle only has the tour operator as his contractual partner; but when executing specific tour services that tour operator can make use of other persons or bodies providing services to carry out his obligations. This arrangement, merely concerning the relationship between the tour operator and the passenger, does not rule out that the passenger, as a result of the specific form of the contract, in addition to his claim against the tour operator also has a claim against these third persons so employed. The opinion held by most legal writers contractually holds that it is possible to construct the contract between the tour operator and the person providing the service as a contract in favour of a third party which provides the passenger with direct claims against the provider of the service (see Beuthien in Studienkommentar zum BGB, 2. ed., para. 651 (a) Note 3; Brox [1979] JA 493, 494; Erman/Seiler BGB, 7. ed., para. 651 (a), note 11; MünchKomm/Lowe, before para. 651 (a), note 15; Palandt/Schwerdtner, BGB, 12. ed., para. 651 (a), note 27 et seq., see also Bartl Reiserecht, 2. ed., note 269).

c) Finally, the various interests of the parties are best served if the charter contract is seen as a contract in favour of the passenger. Especially in the case of air package tours, the passenger depends to a large degree on the services of the chartered party as the case before the court shows. His interest in a journey which is as trouble-free as possible therefore demands that he is able to direct his claim for transportation not only against the tour operator but also against the airline. The interests of the chartered party in only being liable to the tour operator for the provision of the services are comparatively slight.

2. The appeal court's opinion is also to be upheld where it finds that in respect of the relationship between Mrs. H. and the defendant the charter contract excludes the application of para. 334 BGB. It correctly assumes that the defendant could not counter Mrs. H.'s claim for transportation by the plea that company T. had not fulfilled the contract.

a) The rule contained in s. 334 BGB according to which the promisor can use pleas arising from the main contract against demands from the third party can - even tacitly - be excluded (see Gottwald, op. cit., para. 334, note 2). In particular, the very nature the main contract can mean that the debtor cannot use all pleas from this contract against the third party (see BGH [1980] NJW 450; LG Frankfurt/Main [1983] NJW 52, 53; Palandt/Heinrichs, op. cit., para. 334 Note 1; Staudinger/Kaduk, op. cit., para. 334 Note 8).

This is the case here. The defendant concluded the charter contract with company T. - a tour operator - which then transferred the chartered airline seats to company O. - against a tour operator. For this reason the defendant had to assume that the seats were used as part of travel contracts concluded by the tour operators with travellers and that these travellers would already have paid the costs of the flight, included in the overall price for the journey, before the start of the journey irrespective of whether or not they had been obliged to do so. The defendant had also agreed that company T. issued air tickets for the seats which he had chartered out. Under these circumstances the defendant must have known - as the appeal court rightly assumes - that passengers booking an air package tour and who are not aware of the specific legal form of the transport contract, expected and could expect that their claim for transportation against the defendant was free from pleas. As chartered party, the defendant could not oppose Mrs. H.'s claim by pleading that the charter contract had not been fulfilled. Rather, it is part of his area of risks to ensure that payments which passengers made for the flight are received by him in time.

b) The argument raised by the further appeal cannot be followed, according to which it was up to company O. to fulfil the customer's expectations and to make appropriate arrangements with the defendant. The charter contract concluded between the defendant and company T. is a contract in favour of air passengers. The air passengers' interests were thus adequately protected as set out above; there was no need for any further agreements between company O. and the defendant. Mrs. H., customer of company O. could also rely on the fact that the defendant would provide her with transportation, once she had paid the fare for the journey.

c) The defendant also had no other reasons for refusing to transport Mrs. H. The appeal court correctly assumes that the defendant, as against Mrs. H. could not plead an overbooking allegedly made by company T. Even where the defendant's claim is correct that: firstly, company T. had regularly overbooked flights and secondly, that on 16 December 1980 the defendant had accepted a number of company T.'s passengers in Santa Lucia, this provides no explanation as to why Mrs. H. in particular could not have been given transport for reasons of overbooking. In this respect the appeal court rightly points out that Mrs. H. had not been refused transport for that reason but rather because company T. had allegedly not paid for the air ticket.

3. As a result of the defendant's unjust refusal to provide return transport, Mrs. H. had a claim for damages against company O. under para. 651 (f) BGB, since company O. as tour operator was vicariously liable for the defendant's fault. On the basis of the charter contract concluded in her favour and broken by the defendant, Mrs. H. had an additional claim for damages against the defendant, arising out of para. 352 BGB. Since in respect of this claim, as the appeal court rightly assumes, the defendant and company O. are liable as joint debtors and company O. has in the meantime settled Mrs. H.'s claim, under para. 426 (2) BGB her claim against the defendant has passed onto company O.

The appeal court's reasoning can also not be faulted according to which, as far as the relationship between the defendant and company O. was concerned, the defendant in analogous application of para. 254 BGB, was not merely liable for his portion of the performance of the contract but was rather liable in full. By unjustly refusing to provide return transport, the defendant has caused the additional transport costs incurred by Mrs. H. There is no reason to assume that company O. caused this damage, since company O. fulfilled its duty to provide Mrs. H. with return passage by booking the chartered flight seats. Furthermore, company O. had no way of putting pressure on the defendant to fulfil his duty to transportation. It is thus appropriate that the defendant, according to the degree of his own fault, is liable in full for the entire damage (see decision of the Senate in BGHZ 59, 97, 103 with references).

4. The claimant indemnified company O. their insured, for the damage stemming from Mrs. H.'s claim. According to para. 67 (1)(1) of the Insurance Contracts Act (WG) Mrs. H.'s claim against the defendant has thus passed to the claimant.

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