airberlin topbonus - HELP!!! AB wants to charge for an unpaid booking

Hi all!

Being part of our family trip, my brother booked a VIE-CDG flight and the payment was not authorized by his credit card provider. AB sent an e-mail with the phone contacts, but it was a german speaking number only - we tried the Portugal number at AB website without success. In the end, he made a new booking with other credit card, which was approved and the ticket was finally issued. Them, he replied the AB e-mail with the new booking, but they insist that the unpaid booking can't be cancelled without paying.

Anyone has been at the same situation? any thoughts?

Thanks in advance... (and sorry for english error,:D)

If they won't let you cancel without paying first, simply state that you're fine with not cancelling the unpaid booking and are happy to follow their preferred process of just letting it expire unpaid.

If they won't let you cancel without paying first, simply state that you're fine with not cancelling the unpaid booking and are happy to follow their preferred process of just letting it expire unpaid.

Not a good idea. If there are duplicate bookings, they may cancel one or both. OP's brother needs to get this straiughtened out. Not the sort of unpleasant surprise one wants to confront at the airport on departure.

Not a good idea. If there are duplicate bookings, they may cancel one or both. OP's brother needs to get this straiughtened out. Not the sort of unpleasant surprise one wants to confront at the airport on departure.

I don't understand this position. If a reservation/booking has not been paid for, it cannot have been ticketed, so what is there to pay a cancellation fee for? No ticket issued = no contract between airline and passenger. Normally unpaid-for bookings just expire after a set period of time. If AB is actually trying to get payment for a non-contract, is this legal under EU law?

This is certainly legal all over the place. The OP bought an ticket and did not pay for it. He is in breach of contract, so do not blame the airline. The OP made a mistake at the very beginning by making a duplicate booking and he needs to sort this out.

This is certainly legal all over the place. The OP bought an ticket and did not pay for it. He is in breach of contract, so do not blame the airline. The OP made a mistake at the very beginning by making a duplicate booking and he needs to sort this out.

What is legal all over the place?

The "unpaid booking" did not have a ticket issued, so no ticket was bought when the earlier booking was made.

There is no general breach of contract when material consideration has not been provided for during that earlier (unpaid/non-ticketed) booking.

A non-ticketed booking is not a general contract of carriage that requires payment for cancellation. Non-ticketed bookings will eventually see the booked flights disappear and no money will be due for that to occur.

The OP should not volunteer an alternative means of payment for the non-ticketed booking. If the OP is even made to be obliged by AB pursuing the matter in a court of law in some jurisdictions, then that would be a stroke of bad luck as in most jurisdictions a retail interaction for a travel booking that is not ticketed is not a contract of carriage.

The OP made two bookings, and purchased (i.e., paid for) one ticket. There is no good reason for a retail consumer at this stage to volunteer to pay for cancellation of a non-ticketed booking.

Contrary to the false claim in the second sentence in the above quoted post, the OP bought a ticket and paid for it.

The previous post is long, but it lacks not only some understanding. Probably you need to understand that there is a huge world outside the US that acknowledges the right and a claim of specific performance and not only damages for breach of contract.

The OP bought a ticket on ABs website. He pressed the button "book", entered into the relevant contract and then he failed to pay because his agent (the CC company) for what reason whatsoever did not transfer the funds. Instead of speaking to the airline, he bought (and paid for) a second ticket.

The airline is certainly in my and the airline's jurisdiction fully within their legal right to reequest payment for the first ticket purchased (but not paid) and will - if the OP decides to cancel - refund whatever is refundable.

AB is to my experience customer friendly but you need to talk to them and not follow erratic legal ideas.

I'm still having a hard time believing this is legal under EU law. I guess it hinges around the question of WHEN does one enter an actual contract: when booking, which shows intent, or when the transaction is completed (with payment).

Sorry FlyingLawyer, nothing personal, but I've learned never to trust just one person's word on anything. So please, any others of you with knowledge of these sort of matters, chime in. For those of us not used to operating our daily affairs under EU law, it is of interest for future possible bookings with EU-based airlines. Not a deterrent per se, just an understanding of what rules are different. And to FL again: I don't think this happens "all over the place" as you purport. In North America and the (very large) part of Asia I'm familiar with, a booking made but transaction not completed (payment!) within a certain specified period of time gets automatically dumped and voided, no obligation on either side. It's not just a US phenomenon, so please don't try to lay that one on the forum.

If you consider the PRC part of Asia: it is no different under Chinese contract law.

You need to understand the difference between a reservation eg a travel agent makes and purchasing a ticket on a website. The reservation a travel agent makes is nothing but a reservation and is intended to be nothing but a reservation. It is removed from the system if not ticketed within a certain period and none of the parties is under any obligation.

if you buy your ticket on an airline's website it is different. You purchase a ticket (and you are under the obligation to pay for it). If you don't pay, the carrier has (a) every right to cancel the contract and claim damages or (b) to demand specific performance and make you pay for the ticket.

To deal with this eg LH introduced a new feature allowing you to simply make a reservation via the website. It you do not decide the buy the ticket it will cost you (to my recollection) 30 Euro, if you buy it, fine. On AB's website there is not any doubt that you purchase a ticket and you need to pay. Not paying (like the OP did) does not release you from your obligations towards the carrier.

The fact of the matter is a major difference between in particular the US legal concepts and the legal concepts in civil law jurisdictions like Germany and China. The US follows to my knowledge the concept that a contract only becomes binding if both parties have met their obligation (payment made vs. ticket issued). The civil law follows the concept that a contract is binding as soon as both parties have agreed upon the essentialia negotii of the deal (obligation to issue ticket vs. obligation to make payment).

Further: there is no EU law on contract. Contacts are governed by the law of the relevant jurisdiction. If it comes to AB this is most likely Germany. And if I am certain for one jurisdiction, then I am certain about Germany....

I don't understand this position. If a reservation/booking has not been paid for, it cannot have been ticketed, so what is there to pay a cancellation fee for? No ticket issued = no contract between airline and passenger. Normally unpaid-for bookings just expire after a set period of time. If AB is actually trying to get payment for a non-contract, is this legal under EU law?

You misunderstand. OP didn't make a reservation, he actually bought a ticket and agreed to pay for it by CC. His CC issuer declined to make the payment and it was OP's obligation to make good on his commitment to pay.

OP needs to in a cool & collected manner contact AB, not in writing, but either in person or via phone, explain what he did, and ask for AB to correct the situation.

OP needs to in a cool & collected manner contact AB, not in writing, but either in person or via phone, explain what he did, and ask for AB to correct the situation.

+1


I can only confirm Flying Lawyer’s excellent posts. Not that his expertise actually needs any backing up, but I am also a lawyer and sometimes flying, so why not pitch in.

To OP:

Even if you are legally required to “pay what you bought”, I am sure you can talk to AB about this. Especially if your second booking is exactly as the first one, I can’t see how they would not correct this situation. In this case it seems obvious that you made a mistake. If you made any changes in the second booking however, it might be more difficult to convince them.

Good luck!

You misunderstand. OP didn't make a reservation, he actually bought a ticket and agreed to pay for it by CC. His CC issuer declined to make the payment and it was OP's obligation to make good on his commitment to pay.

OP needs to in a cool & collected manner contact AB, not in writing, but either in person or via phone, explain what he did, and ask for AB to correct the situation.

You are peddling a misunderstanding and perhaps have misunderstood.

A non-completed "purchase" for a product/service is generally not considered a purchase until payment is considered accepted by the retail consumer's counterparty. Since the first reservation was not ticketed and payment was not considered accepted there is no general obligation for the OP to contact the airline about that reservation and pay any fee to cancel a purchase that did not take place.

And I ran this whole thing by EU-based attorneys for around a dozen airlines. I am in the EU too. :rolleyes:

The OP needs not do anything except watch the ticketed reservation which has been paid for in full. Non-purchased, courtesy hold airline ticket reservations create no general specific performance requirements to purchase a held reservation. A non-purchased reservation being held is a mere courtesy hold until payment is accepted, beyond any counterparty representations about the hold terms applicable to the product/service supplier.

You are peddling a misunderstanding and perhaps have misunderstood.

A non-completed "purchase" for a product/service is generally not considered a purchase until payment is considered accepted by the retail consumer's counterparty. Since the first reservation was not ticketed and payment was not considered accepted there is no general obligation for the OP to contact the airline about that reservation and pay any fee to cancel a purchase that did not take place.

And I ran this whole thing by EU-based attorneys for around a dozen airlines. I am in the EU too. :rolleyes:

The OP needs not do anything except watch the ticketed reservation which has been paid for in full. Non-purchased, courtesy hold airline ticket reservations create no general specific performance requirements to purchase a held reservation. A non-purchased reservation being held is a mere courtesy hold until payment is accepted, beyond any counterparty representations about the hold terms applicable to the product/service supplier.

We can agree to disagree, however remarks like "generally not comsidered" show that you did not make yourself familiar with the case. I booked an AB ticket on their website a minute ago and the website leaves no doubt on the moment the contract is entered into.

And your assumption that a contract is no contract until payment has been accepted is nothing but utterly wrong for the jurisdiction AB operates in. Great that you find EU based attorneys who hold differently. I personally question their qualification in particular because the contracts are not governed by any EU law but by the lw of the memberstates.

And if the two if us wish to enter I to a contract this contract is binding on execution (or oral agreement) and certainly not only on performance of the contractual obligations. I do not see any reason why this should be different in the case of an airline selling a ticket (and not only accepting a non ticketed reservation).

We can agree to disagree, however remarks like "generally not comsidered" show that you did not make yourself familiar with the case. I booked an AB ticket on their website a minute ago and the website leaves no doubt on the moment the contract is entered into.

And your assumption that a contract is no contract until payment has been accepted is nothing but utterly wrong for the jurisdiction AB operates in. Great that you find EU based attorneys who hold differently. I personally question their qualification in particular because the contracts are not governed by any EU law but by the lw of the memberstates.

And if the two if us wish to enter I to a contract this contract is binding on execution (or oral agreement) and certainly not only on performance of the contractual obligations. I do not see any reason why this should be different in the case of an airline selling a ticket (and not only accepting a non ticketed reservation).

AB operates in multiple jurisdictions which is why my use of "generally" is accurate. Germany doesn't have absolute domination in the EU or even beyond it in various other markets where AB has chosen to sell tickets.

The airline does not generally accept non-ticketed reservations for travel. Ticketed reservations are distinct from non-purchased, non-ticketed reservations that are held until purchase or the reservation cancellation timed by the airline.

AB operates in multiple jurisdictions which is why my use of "generally" is accurate. Germany doesn't have absolute domination in the EU or even beyond it in various other markets where AB has chosen to sell tickets.

The airline does not generally accept non-ticketed reservations for travel. Ticketed reservations are distinct from non-purchased, non-ticketed reservations that are held until purchase or the reservation cancellation timed by the airline.

AB is a German airline, so it is not an issue of Germany domintating the EU. Without carrying this to far (different from others I need to do some work) their conditions of booking are pretty clear:

"For all offers for flight bookings bookable on the Internet at www.airberlin.com or at other authorised Internet booking sites, the Contract of Carriage between the Airline and the booking party comes into existence upon clicking on the "Book Now" button and the subsequent appearance of a summary of the booking data on the screen (online booking confirmation)."

Nothing - other than your own pleadings - speak for you opinion.

AB is a German airline, so it is not an issue of Germany domintating the EU. Without carrying this to far (different from others I need to do some work) their conditions of booking are pretty clear:

"For all offers for flight bookings bookable on the Internet at www.airberlin.com or at other authorised Internet booking sites, the Contract of Carriage between the Airline and the booking party comes into existence upon clicking on the "Book Now" button and the subsequent appearance of a summary of the booking data on the screen (online booking confirmation)."

Nothing - other than your own pleadings - speak for you opinion.

Nothing -- other than your own pleadings -- speak for your opinion.

Fact: AB is subject to the rule of law also in jurisdictions beside Germany; and even within the EU, AB is subject to the rule of law in ways that don't necessarily entirely mirror what may be the situation in Germany -- this will remain the case as long as Germany doesn't have absolute legal domination even within the EU on consumer matters.

[I am not sure if the lack of English being the native language for some other(s) here is part of the issue or not, but any lawyer of competence in the law who is a native speaker of English and takes a non-emotional approach to the matter ought to be able to figure out why I stated this:

"A non-purchased reservation being held is a mere courtesy hold until payment is accepted, beyond any counterparty representations about the hold terms applicable to the product/service supplier."]

Fact: Representations by the airline on a website are not necessarily all enforceable in all (or even most) jurisdictions of relevance when it comes to application of such terms to retail consumer market participants. Such representations are generally far more binding upon the product/service supplier than a consumer in the market who is a non-purchaser.

Fact: Many companies (and even governments) make representations on websites that are not generally binding upon retail consumer market participants (and/or general public), even as such website content providers plead their opinion as if their representations are unequivocal fact and binding even upon customers who have been denied purchase/use of a product/service when utilizing such websites.

Fact: Generally -- even within most of the EU despite the above contributor's legal opinion to the contrary -- with regard to bookings that are neither ticketed nor which have been acknowledged as paid, these do not generally allow for an ordinary consumer to fly. Thus, cancellation/failure to use ticket provisions in a published form do not result in a general obligation that requires payment by such consumer as the OP. [The airline itself -- as AB has done before -- routinely argue that a booking that is not ticketed is not a contract of carriage; so reference to a contract of carriage by an airline in such situation as the OP's becomes rather disingenuine and a sleazy play if nothing else.]

Fact: Airlines and their apologists try to "reserve" a lot of "rights" for the airlines (so as to attempt to further stack things against the weak-minded consumers), but all those claimed "rights" by the industry firms and hirelings are not generally enforceable across all/most jurisdictions; and even where some such "rights" may be, airlines don't necessarily have it in their material interest to even try to make a legal matter of it in a court of law.

The OP is best off just watching the ticketed booking and not contacting AB about the non-ticketed, never-purchased booking. AB is in the habit of cancelling non-ticketed bookings after some time, all without generally demanding payment that is not generally due from non-purchasers. The OP gains little to nothing by presenting the non-ticketed, never-purchased booking to AB and appearing to be in a position of willingness to pay additional money for a non-purchased, non-ticketed booking and/or inviting scrutiny of purchased, ticketed booking that is subject to the contract of carriage, except where the provisions are not deemed enforceable under the rule of law in the jurisdiction(s) of relevance to the consumer.

This does not come a surprise at all: You are obviously not a lawyer. You do not econounter arguments with facts the facts of the case but refer to alleged general principals. And the very same moment, my opinion (which is based on German, Austrian, Swiss, Chinese and the law in quite a few other jurisdictions) is even backed up by the contract to "sign" when buying a ticket (which is again made clear during to booking process) you start with the argument that T&Cs might not be enforcable.

Fact: Generally -- even within most of the EU despite the above contributor's legal opinion to the contrary -- with regard to bookings that are neither ticketed nor which have been acknowledged as paid, these do not generally allow for an ordinary consumer to fly.

This is most amusing and shows that you do not have a clue of legal concepts, you are not a lawyer but feel qualified to argue for "most of the EU" (26 independant jurisdictions). It is as wasys as this: If the ticket is not paid, the airline as a right of retention. However, this does not suspend the customers obligation to pay. May I propose you visit law school before you rant about law?

The website cleary asks you, whether you want to buy a ticket and you confirm. This constitutes a contract. And this contract obliges you to pay. It is as easy as this.

As a side remark: My law school professor at Havard Law School tought me: Counsel requiring long pleadings normally don't have any valid argument. And this concept appears to be true once again.

Having said this, I personally close my file and will not reopen it. I stated my - correct - opinion, stated the facts, the T&C's and that should help the OP. I am not getting paid for educating someboday who feels to clever even to accept any argument. If the OP feels to start a lawsuit over this, he might appoint you as counsel. ;)

- rip -

The website cleary asks you, whether you want to buy a ticket and you confirm. This constitutes a contract. And this contract obliges you to pay. It is as easy as this.

so true.

Wow... have been reading along. FlyingLawyer gave best explanations and most correct advise.

The OP shd talk to the airline, as they will refund at least fuel surcharges and taxes if one person is flying on two seats. Availability of Engish speaking hotline is pretty good: from US 866 266 5588.

This does not come a surprise at all: You are obviously not a lawyer. ..

Admitted to the bar as an advocate in more than one jurisdiction and yet claiming to not be a lawyer would be an interesting fiction. ;)

You are entitled to your opinion and your imagination, even about me.

Too bad the above post has degenerated into unnecessary personalization based upon nothing more than fanciful supposition.

You do not econounter arguments with facts the facts of the case but refer to alleged general principals. And the very same moment, my opinion (which is based on German, Austrian, Swiss, Chinese and the law in quite a few other jurisdictions) is even backed up by the contract to "sign" when buying a ticket (which is again made clear during to booking process) you start with the argument that T&Cs might not be enforcable.

False. Even AB concludes with that, which is why their contract of carriage has a provision about the contract of carriage's validity even when some terms and conditions are not enforceable.



This is most amusing and shows that you do not have a clue of legal concepts, you are not a lawyer but feel qualified to argue for "most of the EU" (26 independant jurisdictions). It is as wasys as this: If the ticket is not paid, the airline as a right of retention. However, this does not suspend the customers obligation to pay. May I propose you visit law school before you rant about law?

Attempt at an ad hominem attack isn't impressive, nor is name-dropping universally impressive for those not impressed by it.


As a side remark: My law school professor at Havard Law School tought me: Counsel requiring long pleadings normally don't have any valid argument. And this concept appears to be true once again.

"Pot. Kettle. Black."? Would seem so given the above post as yet another example of that which it would attempt to admonish all the same.

If the OP feels to start a lawsuit over this, he might appoint you as counsel.

Not something I would take, as the OP gains nothing at this point from a lawsuit against AB. There is no more material advantage for the OP in doing as you suggest than there is in contacting AB about whether or .not to pay up for a non-purchase. There is no general obligation for persons in the OP's situation to pay up for non-purchases. .If AB wants to litigate about such matter against the OP and all others in the same situation, it would be amusing and not a universal success.

Well, I'm not a lawyer, don't live in the EU, so I'll have to let others continue that discussion while I watch from the cheap seats.

But I do know this, beyond a shadow of a doubt:

Regardless of whatever parallels you want to make between German and Chinese civil law, as F-L intimated upthread somewhere, if this situation unfolded on a Chinese airline with a booking taken but not paid for, there would be no enforceable transaction assumed to have taken place. Likely the airline would be the first to cut this reservation and move on. I can't imagine them trying to impose a fee for a cancellation, mainly since they know that they'd get exactly zilch, and efforts to try to collect would be a waste of time. In this case, culture triumphs over whatever legal mumbo jumbo is written on a piece of paper somewhere. Putting an airline seat back on the shelf for sale to someone else is not viewed much differently than putting a rejected, unsold dress back on the racks.

Other Asian countries/airlines I've dealt with, would simply dump the unpaid booking similar to what would be done in the USA. Maybe there are some I haven't dealt with, that take the Air Berlin approach.

if this situation unfolded on a Chinese airline with a booking taken but not paid for, there would be no enforceable transaction assumed to have taken place.

I all fairness, the Chinese concept is no different: We are not talking about "a booking" or "a reservation" but about pressing a button which reads "Purchase ticket". As soon as you press that button, you enter into a contract. According to eg Article 13 oft he Chinese Contract law as adopted and promulgated by the Second Session of the Ninth National People's Congress on March 15, 1999, a contract is concluded by the exchange of an offer and an acceptance - not by performance of one or the other party.

Whether under the specific circumstances the airline enforces the contract if the customer fails to pay or not is a different issue. Whether they allow the customer to fly or not is a different issue. Whether they simply cancel the ticket to avoid any discussion is a different issue, too. Different from what others say, the validity of a contract with obligations for both parties does not depend on the question, whether one or the other party fulfills its obligaition.

Surely a contract dependent on settlement by credit card is frustrated if the credit card company declines?

Surely a contract dependent on settlement by credit card is frustrated if the credit card company declines?

Some may wish to pretend or otherwise mislead others as if the above is never the case. To answer your question, the airline's agents have claimed that non-acceptance of payment and/or payment reversal frustrated contract formation and thus delivery of the product/service is not required of them. Some just want to pretend as if they can have their cake and eat it too, even as they cannot both eat all of it and have it too.

With regard to your arriving at the above question, it could be revised so as to include the situation where the airline's credit card processor may decline a credit card even if the credit card-issuer is not originally responsible for declining the purchase attempt using the supplied credit card.

References to Chinese government inclusion of key elements of UNCITRAL model law isn't impressing me.

I think the root of the confusion here is based on the type of transaction. If you enter into a contract for a product or service with the promise to pay at a later time and then do not pay, you have a legal problem. If you attempt to enter into a contract which requires immediate payment, and the payment is rejected and the service was never provided then the contract was never entered. For example, if you buy an airline ticket for an immediate flight and take the flight and then the payment is rejected you are responsible for payment. But if it is for a future flight and the flight has not happened yet, then no contract was entered and either side may back out without penalty.

Same issue in play at a department store... you approach checkout with a purchase but your credit card is denied. You are not obligated to make the purchase just because you said you were going to when you arrived at the register.

The same happened to me a ~6 months ago... I had problems with my credit card and booked again the same flights with another card... Besides sending a bill once by post&cancelling unpaid reservation, AB didn't do anything... So doing nothing is the best thing to do!

Guys,

Thanks everyone for the feedback! My brother decided to do nothing... we'll see what happens at the airport...