II. BURDEN OF PROOF AND STRICT LIABILITY The core legal issue is the liability “de plein droit” of the travel agency (strict liability) and the allocation of the burden of proof2 regarding whether the activity in which the damage occurred was included in the contract. The consorts relied on Article 23 of Law no. 92‑645 of 13 July 1992, later Article L. 211‑17 of the Code du tourisme, under which the organiser is strictly liable to the buyer for the proper performance of contractual obligations, including those carried out by other service providers, and may be exonerated only if it proves that the non‑performance or improper performance is attributable to the traveller, to an unforeseeable and insurmountable act of a third party foreign to the contractual services, or to force majeure. Consequently, where damage occurs during the purchased stay, it is for the organiser, if it seeks to escape liability, to prove that the damage arose in connection with an activity not included in the travel contract, rather than requiring the traveller to prove this exclusion. The Paris Court of Appeal had nevertheless rejected Selectour’s liability based on a restrictive reading of the contractual package. It found that the package concluded by the mother covered only a stay at Le Mauricia, whereas a stay at Le Paradis was part of a distinct Rev’Vacances programme, “Le Paradis et Golf Club”, with a higher package price (an additional 13,400 French francs for eight days/five nights in the relevant period, 28 July to 20 August 1996). It further noted that neither the special nor the general conditions of the booking form, nor the Rev’Vacances brochure, provided for a change of hotel or “interchangeability of hotels” during the stay, even between hotels belonging to the same group, and stressed that Le Mauricia was a three‑star hotel while Le Paradis was described as a “luxury” hotel, underlining their different categories. The Court of Appeal also referred to the “Beachcomber Tours” brochure of January 1996, which set out summer 1996 prices, confirmed the price difference between the hotels Le Mauricia and Le Paradis, and provided for “interchangeability of hotels” for holders of the “Beachcomber card”. However, this brochure was not mentioned in the booking form signed by C and the Selectour representative, did not emanate from Rev’Vacances (the organiser of 2 From the content of Article 8 of the New Package Travel Directive and its systematic insertion, it follows that the burden of proof rests solely with the operator with respect to the “information requirements laid down in this chapter”. More precisely, this encompasses the body of pre-contractual information that must be made available to the traveller (Article 5), its binding character, its incorporation into the travel contract (Article 6), and the content of the travel contract as well as the documents to be provided before the start of the package (Article 7). 47 BURDEN OF PROOF IN A CASE OF STRICT LIABILITY FOR THE ORGANISER
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