Q: On itineraries that we email to clients, we, like many other agencies, write, "Please notify us within 24 hours of any discrepancy in your itinerary." If we make a mistake, such as booking on a day that is different from what the traveler wanted, or booking a hotel stay that begins the day before the passenger arrives, does the quoted statement absolve us from liability, if the client doesn't contact us within 24 hours? What if we were more emphatic, such as stating, "By accepting this itinerary, you agree that ABC Travel has no liability for booking errors not reported to us within 24 hours after you receive this itinerary"? Would that stand up in court?
A: The quote beginning "Please" would have no legal effect because it is not clear that you intend to bind the client to a 24-hour deadline. The words are merely "precatory," which is a term that lawyers use to mean that which merely expresses a wish, rather than a legal obligation.
The notice beginning "By accepting this itinerary" could well bind the client if the client received the notice before paying, or after paying but while he could still get a full refund.
On the other hand, if the client received the notice only after he made a nonrefundable payment, then the client would probably not be bound.
As with lengthier disclaimers (also known as terms and conditions), you must meet two requirements in order to bind the client: You must give the client actual notice of the terms, and you must give the client an opportunity to read the terms before the client is bound.
If you provide the notice and opportunity, and if you can prove that you have done so, you do not need the client's signature to bind the client.
For example, if you send the itinerary as an option that the client can accept or reject before paying anything, then your notice will bind the client by the time he buys.
Similarly, if you send it after issuing a ticket or charging the client's credit card, your notice can be effective if the ticket is fully refundable, so that the client can reject the notice without penalty.
On the other hand, if you send the itinerary only after the client has paid in full and you have issued a nonrefundable airline ticket, it will be too late to bind the client for this particular sale, as the client is not free to reject the notice without penalty.
However, if the client is a repeat customer, the notice contained in the first sale can bind the client to all later sales, as the client will have received the notice even before buying the future trips.
I realize that a notice that refers to the possibility of your errors is a potential deterrent to sales, but the wording must be clear and specific in order to bind the client.
I also realize that you will probably often waive the 24-hour deadline and reimburse the client if your error caused the client to spend extra money.
However, in cases where you think that there was no error but the client claims otherwise in order to get out of a sale, the notice can prevent the client from taking advantage of you.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].