Plaintiff took a package tour to Mauritius. Upon return on Aug. 18, 2005 he immedaitely complained with the tour operator about malperfomance of the package tour contract. About one year later, on Aug. 11, 2006 he filed a law suit claiming for (partly) repayment of the package tour price and compensation for loss of holiday enjoyment. Due to a wrong address of the defendant given in the law suit, same was delivered in Dec. 2006 only.Both, first instance court (AG Bad Homburg) and appelate court (LG Frankfurt/Main) dismissed the claim: general conditions of contract of the tour operator provided for a one year limitation period for any claims of the package tourist. Both courts held that this limitation period had been missed due to the wrong address given in the law suit.Plaintiff’s further appeal to BGH was successful: in decision Xa ZR 141/07 of Feb. 26, 2009 the German Supreme Court held thata brochure of the tour operator available in the travel agency where the contract was concluded did not constitute reasonable opportunity to take note of the general conditions of contract printed therein if same were not handed out to the customer,the clause providing for a reduction of the two years limitation period as provided by law was void because of not differentiating between claims based on personal injury and other claims.Source: BGH press release 42/2009, available in German here>>.
