The hosting contract

In this article, I will discuss the lodging contract, which is one of the so-called atypical contracts, that is, its content is not defined in the Spanish Civil Code, but has come to be defined over time by the different jurisprudence emanating from the Supreme Court, (Supreme Court Judgment dated June 20, 1995) as a successive contract combining the lease of things (for the room or room), the leasing of services (for personal services), construction (for food and drinks) and storage, for the purposes or goods they leave in custody, such as in safe deposit boxes, in exchange for a single, global price.

Thus, we can indicate that the establishment's main obligations are to accommodate, provide and keep the guest in the exclusive use and peaceful enjoyment of the room for the time established in the contract.

On the other hand, the owner of the establishment, regarding the complementary services that the establishment may provide, some classes must be distinguished, such as catering, car parking, dry cleaning, deposits in safe deposit boxes, use of swimming pools, etc...

Finally, with regard to luggage, we can indicate that the owner is responsible for the duty of custody.

The main obligation that the guest must fulfill as a result of the perfection of the accommodation contract is to meet the price of the room, and, of course, that of each of the complementary services that he would have contracted with the establishment either before their enjoyment, or during the execution of the same. (food, room service, telephone expenses, Wi-Fi, cleaning and ironing clothes, parking the vehicle, etc.).

In the same way, the guest must observe the different safety or hygiene regulations imposed by the hotel establishments themselves. The violation of them may result in the termination of the contract in favor of the hotelier. Hence the importance that the Internal Regime Regulations can have, for which they must have been published in the establishment itself for the good behavior of the guest at all times, and thus have the corresponding instruments to demand that good behavior that is required at all times, such as keeping adequate silence, respect for workers and other guests, forms of clothing, use of facilities such as the pool, bar hours, etc.

Another obligation of the customer is to show their identity or identification document, and to sign the file where their personal data are declared, constituting, in turn, an obligation for hospitality establishments to keep a traveler record book.

It is also a contract of limited duration in time by its very nature, since the lodging is not a lease subject to forced extension, nor is its use unlimited in time in favor of the guest.

Notwithstanding all of the above, what does exist in the Civil Code are references to Responsibility of the hotelier, and The hotelier's privilege.

Thus, we can indicate, with regard to the responsibility of the hotelier, with respect to the things deposited in the establishments by customers, - if these have been communicated to the hotelier, and observed the established controls - they only exclude from the liability of the hotelier in cases of robbery with force in things, or force majeure, the hotelier being responsible for the rest of the situations that arise in the normal exercise of the industry.

This exclusion of liability makes no distinction between whether the traveler delivered his effects at the establishment, or he himself kept them for his custody, observing the precautions that have been indicated. In any case, it involves a necessary deposit, which does not require acceptance by the guest or the express conclusion of a deposit contract.

The Supreme Court Judgment of February 1, 1994, condemns the hotel company in question to pay compensation corresponding to the client who was the subject of the theft of a motor vehicle he enjoyed, for lack of sufficient vigilance attributable to the employees of the security company hired by the hotel, given the obligations of custody of vehicles specific to the said establishment, depending on its category, in accordance with the administrative regulations on the matter.

To ensure compliance with their obligations and the possible compensation claimed by clients, companies should take out insurance for corporate civil liability and for professionals (directors, administrators...) of professional liability insurance.

However, the liability of the hotelier for stealing a vehicle outside the hotel is excluded (S.AP of Tarragona of May 5, 1994), even if it is the same property of the hotel, since it can only be conceptualized as a place intended for lodging for the purposes of articles 1783 and 1784 of the Civil Code the property for this purpose intended for garages in closed areas, covered or not, for parking vehicles whose accesses are in any way controlled, but not in the case of free and open access parking spaces.

As for the Privilege of the hotelier (article 1922.5 of the Civil Code), the Civil Code establishes a preference for collection over the debtor's movable property existing in the establishment for the payment of the credit arising from the lodging.

In this way, there are two parties to the contract. On the one hand, the establishment and on the other hand the guest, who is the one who stays at the establishment regardless of the purpose of the accommodation, be it business, tourist, etc... Thus, if there is a debt, the establishment has priority to collect the things left there by the delinquent guest.

That is, the contract is finalized, as a general rule, upon knowledge of the acceptance by the provider of the accommodation.

At present, the most used means for the perfection of the contract is through the telephone, and electronic media (emails, web pages, virtual platforms), which is why the current consumer regulations establish that they are means of remote communication, therefore, a contract concluded between absentees.

The lodging contract lacks the right of withdrawal from consumer regulations, since the right of withdrawal will not apply to contracts that refer to “the supply of accommodation services for purposes other than serving housing, transportation of goods, rental of vehicles, food or services related to leisure activities, if the contracts provide for a specific date or period of execution”.

Another thing would be the so-called Conventional Withdrawal, in which it is common for the hotel establishment to establish in its own contractual offer a right of withdrawal, even if partial, or with certain costs, such as charging the first night of all those contracted in the event of the withdrawal of the contract by the guest, which must be included in the previous contracting conditions.

On the other hand, the guest's obligations are: paying the price, returning the room at the time agreed by the parties in the same state that received it, and respect the rules for the use of services imposed by the hotelier.

Because it is a private establishment open to the public, access to a hotel is in principle free, reserved for the contractual characteristics, the right of admission, under the circumstances already indicated in another article already published to which we refer.

José Luis Valencia (T&L Attorney)

Article published in the September edition From the monthly newspaper CEHAT