Legal Impact of Holiday Brochure: Analysis of Thomas Cook's South African Paradise (Winter)

This report analyses the legal impact of holiday brochure of Thomas Cook's South African Paradise (Winter) based on Australian Contract Law and Consumer Law. It identifies key information, analyses terms and conditions, and identifies legal issues and exclusion clauses.

Running head: BUSINESS AND LAW 0
Business and Law

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Executive Summary
The aim of this report is to provide appropriate advice to the management of an
advertisement corporation regarding the legal impact of holiday brochure before it is printed.
The brochure of Thomas Cook is analysed in the report for identifying the key information
provided in the brochure. Different terms and conditions included in the brochure are
identified and analysed in the report thoroughly. The content of the brochure is determined
based on the principles of Australian Contract Law to identify any misstatement, false
advertising, unconscionable and bait advertisements. The Consumer Protection Law is also
analysed in the report for identifying issues in the brochure. There are many issues found in
the brochure which are necessary to be fixed by the enterprise in order to avoid legal
consequences. Further, law related to exclusion and inclusion of clauses is discussed based on
the principles of contract law.

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Table of Contents
Introduction................................................................................................................................3
Identification of Key Information in the Brochure....................................................................4
Analysis of the Brochure based on Principles of Contract Law................................................4
Analysis of the Brochure for Identifying Any Legal Issues......................................................6
Identification of any exclusion or limited clauses......................................................................7
Conclusion..................................................................................................................................9
References................................................................................................................................10

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Introduction
A holiday package includes arrangements of transportation and accommodation
which is advertised, sold and promoted by a tour operator or travelling agent. The travelling
agent provides other services as well such as rental car, organised activities, food facilities
and others. In recent years, the culture of holiday packages has grown, and people pre-book
their holiday arrangements in order to make their holidays more convenient and comfortable
(Wang & Davidson, 2010). The tour operators present a number of information and terms and
conditions regarding the holiday package in their brochure. It is necessary that the
information included in the brochure comply with Australian legislation regarding contract
law and consumer law. This report will focus on analysing a holiday package of Thomas
Cook “South African Paradise (winter)”. This report will analyse the representation
warranties, terms and conditions provided in the brochure of Thomas Cook in respect of
Australian law. This report will focus on identifying any material in the brochure which can
potentially be considered as misleading, false representation, bait advertising, or deceptive.
Further, any exclusion or limitation clauses in the brochure will be discussed in the report
using the principles of contract law.

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Identification of Key Information in the Brochure
The Australian Consumer Law (ACL) is a nationwide law in Australia which governs
fair trading and consumer protection policies in Australia (Corones, 2011). Primarily, the law
focuses on protecting the interest of customers against unfair trading practices and providing
them remedies when a corporation breaches the regulations of Australian Consumer Law.
The secondary functions of ACL are providing standards for safety and establishing
manufactures liability and product liability (Nottage, 2009). In order to evaluate the legal
relevance of the holiday brochure of Thomas Cook, the analysis will focus on five key tests
which include misleading, unconscionable, bait advertisement, false representation and offers
and prices. Thomas Cook Group PLC was founded in 2007, and it operates in hospitality and
tourism industry. It is a British global travel corporation, and it offers its services across the
globe (Thomas Cook, 2018). The name of its brochure is “South African Paradise”, and it
will only be available during the winter season. The time period for the brochure is nine
nights and ten days. During this period, customers will stay three nights in Cape Town, two
night in Kwantu Private Reserve, two nights in Knysna, one night in Johannesburg and one
night in Sun City.
Further, the brochure includes information regarding planned route and places or
monuments where guests will be visiting and information about time to stay in each place.
The itinerary details included in the brochure contains complete details regarding first to the
tenth day of the vacation and information regarding the daily schedule of the guest. In terms
of hotel details, the brochure includes every minute detail regarding the check-in and check-
out time of guests and the name of hotels in which guests will be staying during the vacation.
A price will also be given to one lucky customer who purchases this package within the given
time limit. Further, information regarding the transportation of guests is also included in the
brochure such as flights timing, check-in and departure times. Moreover, information
regarding services of a guide, entrance fees in each monument, price of the package, various
terms and conditions, cancellation policy, medical and insurance claim, visa policy and
various other policies are given in the brochure.

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Analysis of the Brochure based on Principles of Contract Law
Based on the principles of Contract law, the agreement between two or more parties
for performing or not performing any particular task under specific terms and conditions is
mandatory to be followed by each party (McKendrick, 2014). Customers who have booked
the holiday package from a travel agent has signed a bilateral contract in which the agent
assures the customers that services provided in the brochure will be given to them on a
mutually agreed amount based on specific terms and conditions. Following are a number of
terms and conditions which are necessary to be followed by both travel agent and customers.
Price exclusions: The price exclusions are referred to expenditures of personal nature
such as tips, telephone charges, Wi-Fi facility in hotels, and other services which are
excluded from the package, and they are not included in the price of the package.
Price inclusions: These are referred to things which are included in the holiday
package such as hotels, train fees, entrance fees, transportation, guide services, airfares, meals
and others.
Validity: The validity of the package is referred to duration or time limit of the
contract. It provided that in the given period, there will be no changes in services or price of
the holiday package and customers can book the package for the same price in the given time
period.
Insurance package: When customers are travelling abroad, then they are required an
insurance policy that covers full risks during their trip. It provides policies regarding if any
mishap happened during the trip then the insurance policy will pay its charges.
Policies regarding medical claims: If any customer suffers from any illness during
the vacation then medical charges are not included in the holiday package. These charges are
hidden, and they are disclosed to customers while at the time of booking.
Flight taxes: The taxes which are paid by customers at the airport are not included in
the holiday package. Generally, these taxes are hidden, and they are disclosed after booking
of the package.
Visa charges: Generally, the visa fee is not included in the price of holiday package
and customers have to pay extra charges for visa fees.

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Alternate arrangements: This clause provides details regarding extra charges that
are paid by the customers in case hotels are waitlisted or rooms are booked other than base
rooms.
Analysis of the Brochure for Identifying Any Legal Issues
After a thorough analysis of the brochure, it can be seen that there are a number of
disadvantage in terms of false representation, deceptive or misleading, unconscionable, bait
advertisement and offers, prices and gifts in the holiday package of Thomas Cook. Firstly, the
brochure did not contain a proper schedule of destinations or place where customers will be
visiting during the vacation. The overview given by the company did not contained detailed
information which can confuse customers. The lack of information regarding time and
detailed description of the hotels and places where customers will be visiting is not available
then they cannot get a proper picture of the entire trip. Another issue with the brochure is that
it includes many hidden charges which should be displayed clearly by the enterprise so that
customers are able to estimate how much the trip would cost them. Most companies write the
lowest prices on their brochure, whereas, in reality, they put additional changes on customers
in terms of hidden prices or taxes.
As provided in the Ellul and Ellul v Oakes (1972) 3 SASR 377, the parties must have
intended the terms of a contract in order to make it promissory in nature (Barker, Grantham
& Swain, 2015). In this case, Ellul purchased the property from Oakes, and in the listing
form, it was written that the land is severed. The property was not severed an Ellul claimed
for damages. The court held that Ellul could claim for damages because parties must have
intended the term of a contract in order to make it promissory in nature (Thorpe, 2011). In
case of Thomas Cook holiday brochure, the terms specified in the brochure are necessary to
be correct or else customers could claim for damages. Therefore, companies should maintain
transparency in terms of prices and taxes charged to the customers because it will assist them
in arranging the capital which is required for them to enjoy their vacations properly.
Furthermore, the brochure did not include any details regarding company’s USPs (unique
selling proposition) and discounts.
The customers have to spend a lot of time in order to read the brochure and
understand its terms. Moreover, it has seen in many cases that travelling agents or companies
cheat their customers by giving them less costly accommodations than demanded. For

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example, the customer demand and paid for 4-star hotel accommodations. However, the
company provides them 3-star hotel facilities while charging the rate of 4-star hotels
(Karcher, 2013). Therefore, the company must ensure that details provided in the brochure
are correct and customers receive same facilities as provided in the brochure. Thomas Cook
has edited the pictures in its holiday brochure to make them more appealing which can be
considered as false advertising. Further, the company is required to add a disclaimer in the
brochure that customers will be responsible for their own safety; therefore, they should take
precautionary measure to avoid any injury and safety of their belongings.
Identification of any exclusion or limited clauses
After the thorough analysis of the brochure, it can be seen that the information relating to
the prices of tickets is ambiguous and it can confuse customers. It is provided in the brochure
that tickets’ prices will be changed at the time of travelling, however, in reality, the rate of
tickets entirely different from the ones which are specified in the brochure. Additionally,
customers believe that they will be charged as per the same rate specified in the brochure. It
is known as an ambiguous representation which is used by the company to mislead
customers. In this situation, the principles of contract law are violated by the corporation, and
the customer can claim for damages (Smythe, 2013). The contract law protects customers
when they are being manipulated by the travel company. Many times companies offer extra
services to customers in order to attract them, however, in reality, they did not provide such
services to them. In such case, customers can claim for extra services from the company if
they are not provided to them as per the contract law. There are no false facts in the brochure
of Thomas Cook; however, there are many misleading statements in the brochure.
 The pictures are edited to make them more appealing to the customers that are
considered as false advertising.
 The company is also offering a prize to one lucky customer that is considered as bait
advertising because it is used for attracting customers.
 Information regarding taxes and charges are neither concealed not properly mentioned
by the company, and it is revealed after customers booked the package.
As per section 7 of Unfair Contract Terms law, the company is required to clearly provide
which expenses will be included and excluded in the brochure (Paterson, 2009). Thomas
Cook has clearly provided what will be included and excluded in the price of a holiday

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package. The Baltic Shipping Company v Dillon (1993) 176 CLR 344 case provided
provisions regarding misrepresentation of information in a brochure (Butler, 2018). In this
case, Mrs Dillon faces critical injuries due to missing information in the brochure of MS
Mikhail Lermontov Company. The court held that company is liable to pay for the damage
because of its misleading brochure. It shows the concerns of Australian Law regarding the
presentation of right information in the brochure (Wilson, 2010). Therefore, Thomas Cook
should exclude misleading or missing information from the brochure which can negatively
affect its customers, and the company can be held legally liable for damages occurred due to
such misrepresentation.

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Conclusion
In conclusion, the holiday package brochure developed by Thomas Cook contains all
the necessary information regarding terms and conditions of the package. However, there are
some elements in the brochure which can be considered as misleading, false advertisement
and deceptive. The information included in the brochure should provide as per Australian
Contract Law and Consumer Law. Different elements which are excluded and included in the
contract as per Unfair Contract Terms law are provided in the report. The company should
remove ambiguous charges information from the brochure and include a disclaimer regarding
the responsibility of customers. These factors assist Thomas Cook in improving its reputation
and avoiding any legal consequences that can occur due to misleading or false information
provided in the brochure.

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References
Barker, K., Grantham, R., & Swain, W. (Eds.). (2015). Law of Misstatements: 50 Years on
from Hedley Byrne v Heller. London: Bloomsbury Publishing.
Butler, D. (2018). Employer liability for workplace Trauma. Abingdon-on-Thames:
Routledge.
Corones, S. G. (2011). The Australian consumer law. Melbourne: Thomson Reuters Lawbook
Co.
Karcher, K. (2013). Reinventing the Package Holiday Business: New information and
communication technologies. New York: Springer-Verlag.
McKendrick, E. (2014). Contract law: text, cases, and materials. England: Oxford University
Press (UK).
Nottage, L. (2009). Consumer law reform in Australia: Contemporary and comparative
constructive criticism. Queensland U. Tech. L. & Just. J., 9, 111.
Paterson, J. (2009). The Australian Unfair Contract Terms Law: The Rise of Substantive
Unfairness as a Ground for Review of Standard Form Consumer Contracts. Melb. UL
Rev., 33, 934.
Smythe, D. J. (2013). Consideration for a Price: Using the Contract Price to Interpret
Ambiguous Contract Terms. N. Ill. UL Rev., 34, 109.
Thomas Cook. (2018). Thomas Cook History. Retrieved from
https://www.thomascook.com/thomas-cook-history/
Thorpe, D. (2011). CEOs and domestic tribunals—The rights and risks of penalising athletes
for off-field misconduct. Sport Management Review, 14(3), 269-286.
Wang, Y., & Davidson, M. C. (2010). Pre-and post-trip perceptions: An insight into Chinese
package holiday market to Australia. Journal of Vacation Marketing, 16(2), 111-123.
Wilson, J. (2010). Employment Law Matters General Damages in Discrimination
Matters. Ethos: Official Publication of the Law Society of the Australian Capital
Territory, (218), 8.

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