RETHINKING THE LIABILITY OF PACKAGE TOUR OPERATORS IN SPAIN Indeed, the repealed provision stated that “[t]he organisers and retailers of package travel shall be liable to the consumer, according to the obligations that correspond to them by their respective scope of management of the package, for the proper fulfilment of the obligations arising from the contract, regardless of whether these are to be performed by themselves or by other service providers (...)”. But it also went on to say that “[t]he liability shall be joint and several when different organisers or retailers concur jointly in the contract, whatever their type and the relations existing between them”. This ambiguous wording led the doctrine and the courts to wonder what kind of liability was actually contained in the rule. Was it joint and several, i.e. would each party be liable exclusively for its own area of management, or was it joint and several, so that both parties, irrespective of their area of management, would be liable to the consumer for lack of conformity or breach of contract? In my opinion, the wording of article 11 of the LVC, contrary to the majority of the jurisprudence of those years, allowed the defence that the liability of the various operators (travel agencies at that time) involved in the package was joint9, each one being liable to the consumer in its own area of management, allowing joint liability only when several organisers or retailers were party to the same contract10. This assertion is supported, on the one hand, by the consistent interpretation of the two paragraphs and, on the other hand, by the fact that it was made clear during the parliamentary procedure, since the bill in principle established the joint and several liability of the organiser and the retailer vis-à-vis the consumer in both Articles 9 and 11; however, the Senate modified the rule of joint and several liability, distributing the liability of both bodies according to the scope of their management and establishing joint and several liability as an exception in 9 Gómez Calle, 2011, p. 518, clarifies that in this field, although the concept of joint liability is accepted without problem, even in the judgment of 20 January 2010, it is strictly speaking “that in which the duty of performance must be fulfilled jointly by a plurality of debtors”, whereas the thesis defended in the aforementioned judgment and that supported by a large part of the doctrine actually defends “the delimitation of liability between organiser and retailer according to a certain criterion”. 10 We defended this in Cárdenas Negro, and González Cabrera, 2000, pp. 185 ff; González Cabrera, and Cárdenas Negro, 2006 and 2009, pp. 79 and 81 f., respectively; as well as in González Cabrera, 2012, p. 119. This position was defended by the majority of the doctrine at that time. In this respect, see Algaba Ros, 2006 b, p. 58; Boldó Roda, 2000, pp. 225 ff; García Rubio, 1999, pp. 157 ff; Gómez Calle, 1998, pp. 225 ff; González Fernández, 2008, p. 1072; Martínez Espín, 1999, p. 1072; Martínez Espín, 1999, p. 1072. 1072; Martínez Espín, 1999, pp. 198 ff; Morillas Jarillo, 2006, pp. 473 ff; Navarro Belda, 2003, pp. 65 ff; Soler Valdés-Bango, 2005, pp. 369 ff; and, Vicent Chuliá, 1999, pp. 283 ff.
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