the package at issue), and it was not established that Selectour had handed it to C; thus, it could not be invoked against the agency to define the contractual services. On that basis, the Court of Appeal held that the conditions of the hotel change by C and her children at the end of their stay in Mauritius were not established; there was no proof of any request by C for such a change, nor proof that she held a “Beachcomber card” entitling her to two nights in another hotel without a price supplement. It was therefore concluded that the package sold by Selectour and organised by Rev’Vacances covered only the hotel “Le Mauricia”, whereas the possibility of a two‑night stay in another hotel was a purely optional arrangement offered by Beachcomber at the travellers’ request. As a result, C and D stay at “Le Paradis” and their participation in the canoeing activity offered exclusively by that hotel—during which they disappeared—did not constitute services provided by Selectour and fell “outside the package tour”; their disappearance could thus not engage the agency’s strict liability. The Cour de cassation’s reasoning focuses on the interaction between the strict liability regime for travel organisers and the general rule on the burden of proof in Article 1315 of the Civil Code3, combined with Article 23 of Law no. 92‑645 (Article L. 211‑17 of the Code du tourisme, in its pre‑2009 version). It recalls that under the latter provision, the travel agency is strictly liable to the buyer for the proper performance of contractual obligations and can only be exonerated, in whole or in part, by proving that the non‑performance or improper performance is due to the buyer, to the unforeseeable and insurmountable act of a third party foreign to the contractually provided services, or to force majeure. From this, the Court draws an explicit principle: when a traveller suffers damage during performance of the contract concluded with the travel agency, it is for the agency to prove that the damage occurred in connection with a service not included in the contract if it wishes to avoid liability. In light of this, the Cour de cassation assesses the Court of Appeal’s approach, which had excluded the agency’s liability on the ground that the conditions of the hotel change were not established, that no request by C for such a change was proven, and that it was not shown she held a “Beachcomber card”. 3 “The joint and several debtor sued by the creditor may raise defences common to all the co-debtors, such as nullity or resolution, and those which are personal to him. He may not raise defences that are personal to other co-debtors, such as the granting of a term. However, where an exception that is personal to another co-debtor extinguishes the latter’s divided share, in particular in the case of set-off or remission of a debt, he may rely on it to have it deducted from the total debt.”. 48 CARLOS TORRES
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