Q: As we all know, airlines claim
that we have to pay debit memos arising from credit card
chargebacks whenever there is no signature or imprint on a charge
form. I understand the risks involved with airlines, but what about
tour operators and cruise lines? Once in a while, clients have a
bad time, return home and try to dispute the charge. Can we
successfully dispute a chargeback if we have a faxed authorization
to charge the card? What if we can prove that when the client
clicked I agree on our Web page, that it included an authorization
to charge the card?
A:
If the tour operator is the credit card merchant (meaning that it
deals directly with American Express and the bank cards), the
credit card companies dictate what they will accept.
The credit card
companies agreements are totally one-sided -- they leave the
merchant vulnerable to chargebacks for sales not conducted in
person.
For example, the
standard Visa and MasterCard agreement says:
Since you will not
have an imprinted or magnetically swiped transaction and you will
not have the cardholders signature on the sales draft as you would
in a face-to-face transaction, you will assume all risks associated
with accepting a telephone/Internet order transaction.
Even worse, the
standard American Express agreement for Internet sales of services
stipulates:
We shall exercise
our right of full recourse for the full amount of the charge
immediately, without us first contacting you or sending you an
inquiry. You will not have the opportunity to present any written
response to disputed charges.
Fortunately, these
draconian rules do not directly apply to travel agencies, which are
not parties to the merchant agreements. Instead, agencies
obligations, if any, depend on the terms of any agreement between
the operator and the agency.
Under some
agreements between tour operators and travel agencies, the agencys
only duty is to obtain the cardholders signature on a reservation
form authorizing the charge.
Whether the
signature can be on a fax, or whether a click on I agree is a
signature depends on the terms of the agreement.
If the agreement is
silent on what constitutes a signature, then the Electronic
Signatures in Global and National Commerce Act (E-Sign) allows you
to argue that any electronically transmitted evidence of the
clients agreement to the operators terms and conditions constitutes
a valid signature. This is because the E-Sign law defines a
signature to be an electronic sound, symbol or process attached to
or logically associated with a contract or other record ... with
the intent to sign the record.
Therefore, an
authentic faxed signature and a provable click on I agree are valid
signatures under E-Sign. By all means, make that argument. The same
would hold true where there is no agreement in place, and the
operator simply accepts your sales ad hoc.
On the other hand,
if the agreement with the operator specifically says that you must
obtain an original, handwritten signature, then you are out of
luck, as E-Sign states that the parties to a private contract can
always agree (in the contract) on exactly what constitutes a valid
signature.
Mark Pestronk
is a Washington-based attorney specializing in travel law. He
answers your questions in the TravelWeekly.com Legal Ease forum. To contact Pestronk
directly, e-mail him at [email protected].