Interesting Court Decision In Germany - Passenger does not need to fly last leg
Feb 16, 2019, 2:34 am
#286
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No, the analogy is wrong. A much more apt analog is: The buyer pays the vendor for four apples and walks out with three apples. The consumer's consumption is an included subset of what was contracted; that's the weakness of the vendor's tort and loss claim: the vendors costs are demonstrably *lower* because of the (theoretical) breach and the consumer didn't consume anything to which their ticket (and CoC) did not say they were entitled.
The airlines only defence at law is essentially that the consumer didn't really want the burden of eating the fourth apple and therefore that the airline should be required by contract be entitled to tort loss if the consumer to fails to consume the (Negative Utility) fourth apple.
To revert to microeconomics 301: the hypothetical "loss" is entirely based in the Negative Utility of the consumer not the Marginal Cost of the Producer, which is the ultimate hallmark of Molopoly pricing. Common Law generally abhors enforcing this kind of contract (hence BA don't have the balls to try to include it in the CoC), and public policy often prohibits it.
The airlines only defence at law is essentially that the consumer didn't really want the burden of eating the fourth apple and therefore that the airline should be required by contract be entitled to tort loss if the consumer to fails to consume the (Negative Utility) fourth apple.
To revert to microeconomics 301: the hypothetical "loss" is entirely based in the Negative Utility of the consumer not the Marginal Cost of the Producer, which is the ultimate hallmark of Molopoly pricing. Common Law generally abhors enforcing this kind of contract (hence BA don't have the balls to try to include it in the CoC), and public policy often prohibits it.
Feb 16, 2019, 2:37 am
#287
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Doesn't have to be goods anyway. You can say TfL will price 15 Tube ride weekly travelcard at £9 but 10 Tube ride weekly travelcard at £15; however TfL will hold £6 deposit if you fail to complete 15 trips in that week.
Last edited by percysmith; Feb 16, 2019 at 2:45 am
Feb 16, 2019, 2:40 am
#288
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I don't (my circumstances have little tolerance for hidden city routings or MR). So I'm against price differentiation and for competitive pricing.
Last edited by percysmith; Feb 16, 2019 at 2:46 am
Feb 16, 2019, 3:20 am
#289
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Note: I'm not lawyer (just married to one) and the following is purely based on my layperson understanding.
Surely the problem is quantifying and proving the loss which occurred?
The airline is happy to provide jouney A-B-C-B-A for ££ (they priced and sold the ticket).
It hasn't cost more to fly the person A-B-C-B (almost certainly less).
So to only quantifiable loss is that the airline has lost the opportunity to sell B-C-B for £££ and through the person taking the ££ ticket and breaching the CoC (contract) they have lost the opportunity to make the extra £
It would surely be impossible for an airline to prove that an individual would have purchased the more expensive B-C-B ticket (it is a decision in someone's head and without the cheaper routing they may not have flown at all) so it would be unlikely that a specific value loss occued there.
So the airline would have to prove that they lost the opportunity to sell the more expensive B-C-B ticket to someone else (which means that the flights would need to be fully booked, since with available seats they still had that opportunity) and also that they would have had a realistic chance to actually sell it to someone else.
I struggle to see how an airline would categorically prove that they would have sold the higher fare to someone else and surely any suggestion of this would be undermined by their own willingness to sell the lower fare (if they categorically believed that they would sell the last available slot B-C-B for £££ then why would they agree to sell A-B-C-B-A for ££ - making them essentially the engineers of their own loss).
I'd certainly be fascinated to see this play out in court.
Surely the problem is quantifying and proving the loss which occurred?
The airline is happy to provide jouney A-B-C-B-A for ££ (they priced and sold the ticket).
It hasn't cost more to fly the person A-B-C-B (almost certainly less).
So to only quantifiable loss is that the airline has lost the opportunity to sell B-C-B for £££ and through the person taking the ££ ticket and breaching the CoC (contract) they have lost the opportunity to make the extra £
It would surely be impossible for an airline to prove that an individual would have purchased the more expensive B-C-B ticket (it is a decision in someone's head and without the cheaper routing they may not have flown at all) so it would be unlikely that a specific value loss occued there.
So the airline would have to prove that they lost the opportunity to sell the more expensive B-C-B ticket to someone else (which means that the flights would need to be fully booked, since with available seats they still had that opportunity) and also that they would have had a realistic chance to actually sell it to someone else.
I struggle to see how an airline would categorically prove that they would have sold the higher fare to someone else and surely any suggestion of this would be undermined by their own willingness to sell the lower fare (if they categorically believed that they would sell the last available slot B-C-B for £££ then why would they agree to sell A-B-C-B-A for ££ - making them essentially the engineers of their own loss).
I'd certainly be fascinated to see this play out in court.
Feb 16, 2019, 3:39 am
#290
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@Jon Baker: It's not a tort. It's contract law. So your missed selling opportunity argument doesn't apply.
It's more like: as a condition for travel, Airline is allowed to charge You according to Your individual ability to pay. If You fooled Airline as to Your ability to pay (I don't want to get into contractual misrepresentation here), Airline is allowed to pursue You for the difference. This is probably enforceable from a contractual point of law, barring any statutory override from any applicable competition law.
Other service providers can also put in equally antisocial terms - e.g. my HK telco does not officially but virtually always prices fixed line telephone differently by neighbourhood wealth.
I can try to extend one deal from a colleague in an average suburb for my parents only to be told "oh. Your parents' installation address is mid-levels. They belongs to the Premium Group (meaning premium pricing for the same product) - we can't touch that".
But at least my HK telco doesn't try to differentiate by ability to fly more.
It's more like: as a condition for travel, Airline is allowed to charge You according to Your individual ability to pay. If You fooled Airline as to Your ability to pay (I don't want to get into contractual misrepresentation here), Airline is allowed to pursue You for the difference. This is probably enforceable from a contractual point of law, barring any statutory override from any applicable competition law.
Other service providers can also put in equally antisocial terms - e.g. my HK telco does not officially but virtually always prices fixed line telephone differently by neighbourhood wealth.
I can try to extend one deal from a colleague in an average suburb for my parents only to be told "oh. Your parents' installation address is mid-levels. They belongs to the Premium Group (meaning premium pricing for the same product) - we can't touch that".
But at least my HK telco doesn't try to differentiate by ability to fly more.
Feb 16, 2019, 5:34 am
#292
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It's more like: as a condition for travel, Airline is allowed to charge You according to Your individual ability to pay. If You fooled Airline as to Your ability to pay (I don't want to get into contractual misrepresentation here), Airline is allowed to pursue You for the difference.
Originally Posted by BA Conditions of Carriage 3c2
Where you change yourtravel without our agreement and the price for the resulting transportation you intend to undertake is greater than the price originally paid, you will be requested to pay the difference in price. Failure to pay the price applicable to your revised transportation will result in refusal of carriage.
So their recourse is that they can request the additional fare but if you fail to pay it, their stated action is that they can only refuse to carry you. Which (in respect of skipping the last leg) would seem to be shutting the preverbal stable door after the horse has bolted.
Not that I'm in any way advocating skipping legs - there may always be other actions which might be taken (closure of accounts etc).
Feb 16, 2019, 5:52 am
#293
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Except the CoC do not say this, rather:
So their recourse is that they can request the additional fare but if you fail to pay it, their stated action is that they can only refuse to carry you. Which (in respect of skipping the last leg) would seem to be shutting the preverbal stable door after the horse has bolted.
Not that I'm in any way advocating skipping legs - there may always be other actions which might be taken (closure of accounts etc).
So their recourse is that they can request the additional fare but if you fail to pay it, their stated action is that they can only refuse to carry you. Which (in respect of skipping the last leg) would seem to be shutting the preverbal stable door after the horse has bolted.
Not that I'm in any way advocating skipping legs - there may always be other actions which might be taken (closure of accounts etc).
Talking about a thread going in circles!
Feb 16, 2019, 6:08 am
#294
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Nope.
1. Airlines are not selling a bundle of specific flights, and (despite the disingenuous denials in this thread) consumers know this when they purchase transportation services from A to B. So any analogy along the lines of multiple apples is inapt.
2. Pricing is not based on the cost to the provider, so that is irrelevant. It is based on what the market will bear. People are willing to pay more for direct itineraries (if they weren't this thread wouldn't exist), so the airlines legitimately charge accordingly, and gaming the system costs them the opportunity to sell direct capacity at the higher prices - those are the damages.
To those arguing to the contrary and are so sure you are legally correct, I really wish one of you would put your money where your mouth is by skipping the first segment of an ex-EU itinerary, try to board in LHR and then take legal action against the airline after it cancels your other segments.
Finally, as others have mentioned, be careful what you wish for. If you get your way, ex-EU fares will increase to being the same as LHR-direct fares, rather than the other way round. In which case I will say congratulations on your "victory."
That said, although I don't have time in my life to play the repositioning game, if the opportunity ever presented itself I would skip the last segment in a heartbeat too if it were convenient and would save me a few hundred or thousand quid. After all, it's just business.
1. Airlines are not selling a bundle of specific flights, and (despite the disingenuous denials in this thread) consumers know this when they purchase transportation services from A to B. So any analogy along the lines of multiple apples is inapt.
2. Pricing is not based on the cost to the provider, so that is irrelevant. It is based on what the market will bear. People are willing to pay more for direct itineraries (if they weren't this thread wouldn't exist), so the airlines legitimately charge accordingly, and gaming the system costs them the opportunity to sell direct capacity at the higher prices - those are the damages.
To those arguing to the contrary and are so sure you are legally correct, I really wish one of you would put your money where your mouth is by skipping the first segment of an ex-EU itinerary, try to board in LHR and then take legal action against the airline after it cancels your other segments.
Finally, as others have mentioned, be careful what you wish for. If you get your way, ex-EU fares will increase to being the same as LHR-direct fares, rather than the other way round. In which case I will say congratulations on your "victory."
That said, although I don't have time in my life to play the repositioning game, if the opportunity ever presented itself I would skip the last segment in a heartbeat too if it were convenient and would save me a few hundred or thousand quid. After all, it's just business.
Feb 16, 2019, 7:48 am
#295
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So their recourse is that they can request the additional fare but if you fail to pay it, their stated action is that they can only refuse to carry you. Which (in respect of skipping the last leg) would seem to be shutting the preverbal stable door after the horse has bolted.
Feb 16, 2019, 7:52 am
#296
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When you purchase a good (apples, Happy Meal, coed of wood) you take ownership when you complete the purchase. You can then do with these goods you own whatever you choose. They are yours. Air travel is not a good. It is a service. You own nothing, not the seat, not the overhead bin, not the space around you, You have simply contracted to be transported from first to final ticketed destination.
Feb 16, 2019, 8:53 am
#298
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Nope.
1. Airlines are not selling a bundle of specific flights, and (despite the disingenuous denials in this thread) consumers know this when they purchase transportation services from A to B. So any analogy along the lines of multiple apples is inapt.
2. Pricing is not based on the cost to the provider, so that is irrelevant. It is based on what the market will bear. People are willing to pay more for direct itineraries (if they weren't this thread wouldn't exist), so the airlines legitimately charge accordingly, and gaming the system costs them the opportunity to sell direct capacity at the higher prices - those are the damages.
To those arguing to the contrary and are so sure you are legally correct, I really wish one of you would put your money where your mouth is by skipping the first segment of an ex-EU itinerary, try to board in LHR and then take legal action against the airline after it cancels your other segments.
1. Airlines are not selling a bundle of specific flights, and (despite the disingenuous denials in this thread) consumers know this when they purchase transportation services from A to B. So any analogy along the lines of multiple apples is inapt.
2. Pricing is not based on the cost to the provider, so that is irrelevant. It is based on what the market will bear. People are willing to pay more for direct itineraries (if they weren't this thread wouldn't exist), so the airlines legitimately charge accordingly, and gaming the system costs them the opportunity to sell direct capacity at the higher prices - those are the damages.
To those arguing to the contrary and are so sure you are legally correct, I really wish one of you would put your money where your mouth is by skipping the first segment of an ex-EU itinerary, try to board in LHR and then take legal action against the airline after it cancels your other segments.
Finally, as others have mentioned, be careful what you wish for. If you get your way, ex-EU fares will increase to being the same as LHR-direct fares, rather than the other way round. In which case I will say congratulations on your "victory."
Feb 16, 2019, 9:30 am
#300
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When you purchase a good (apples, Happy Meal, coed of wood) you take ownership when you complete the purchase. You can then do with these goods you own whatever you choose. They are yours. Air travel is not a good. It is a service. You own nothing, not the seat, not the overhead bin, not the space around you, You have simply contracted to be transported from first to final ticketed destination.
Your obligation is to pay. It is not to travel. This is accepted in BA’s COC, which are not framed in terms of compelling a passenger not to drop a sector, but rather in terms of compelling the passenger to inform BA of a change of his or her travel plans if that occurs.
The obligation that the passenger fails to perform is key, because that is key to working out what position BA is entitled to put in if there is such a failure.