The actions of the Hotelier in cases of Force Majeure

Recently, and in response to a Judgment issued by the Supreme Court in relation to the independence process of Catalonia, there have been a series of disturbances and mobilizations in the streets of various Spanish cities that, although they did not affect, in principle and directly, the different actors in the tourism sector, their activity has been clearly disturbed because, since we live in a world with fully interconnected commercial relations, the actions of some affect the rest.

Thus, first of all, the various consequences and incidents due to the High Court's ruling have directly caused delays and cancellations that have mainly affected flights.

The actors we were referring to in the first paragraph were, fundamentally, two: airlines and, secondly, hotel establishments. On the one hand, we have the airlines that have not been able to operate some of the flights that were scheduled due to causes such as, for example, the impediments suffered by their crew to show up for their job in a timely manner and, on the other hand, we have those hotel entrepreneurs who have encountered important “no-show” situations due to the impossibility of some of their customers to show up at their establishment since they were trapped inside an airport or were not even in the destination city on the day on which check-in was due. These “no-show” scenarios have come to cause significant discomfort among hotel entrepreneurs who did not know what the right steps should be taken under the circumstances described above.

Although it is true that in situations such as those faced by clients and hoteliers these days, the responsibility or cause of the harmful event is not attributable to the customer, that all he wants is to continue with his initial itinerary, it is no less true that these are not the responsibility of the hotel entrepreneur who, due to a circumstance that is alien to him and having fulfilled his contractual obligations, he wonders what he should do with the collection of that service that the customer will not be able to enjoy as a result of events that are alien and unattributable to both parties.

The answer to the question of how it would be adjusted to the law for decision makers in hotel establishments to act in the face of circumstances such as those described above can be found, in principle, in article 1.105 of the Civil Code because, although without explicitly mentioning it, it refers to cases of force majeure and establishes that “no one will answer for those events that could not have been foreseen, or that, foreseen, were inevitable”.

However, under this wording, it could be understood that “no one” can refer to any of the obligated parties. The answer is yes, but no. In this specific case, the precept of the Civil Code, as understood by the one who writes these lines, limits a possible request for compensation for damages possibly due to a breach of contract and, in this case, the breach is being carried out by the customer because he cannot (be able) to show up to enjoy the contracted service. Only those who, in the performance of their obligations, commit fraud, negligence or delinquency will be subject to the payment of compensation for damages. Therefore, the drafting of Article 1.105 of the Civil Code cannot be understood under any circumstances, and in my opinion, as a way of exempting the parties who have signed a contract from fulfilling the obligations that are contractually and legally enforceable to each of them.

Thus, similarly to the fact that it is the obligation of the hotel entrepreneur to keep reserved places available to customers, they must comply with the payment obligation for the provision of a service even if they have not been able to enjoy it. Always depending on the contractual conditions, the fact that customers finally enjoy the reserved service or not is independent of the entrepreneur's right to collect the service he should have provided in circumstances in which there was no cause of force majeure, since article 1,091 of the Civil Code states that “the obligations arising from contracts have the force of law between the contracting parties and must be fulfilled in accordance with them”. In support of this thesis, we can refer to the so-called “Risk Theory”, inferred from articles 1,096 and 1,182 in conjunction with article 1,452, by which a majority sector of our doctrine and jurisprudence has interpreted that the damage or benefit suffered or received by the thing will be the responsibility of the buyer (traveler), creditor of the same, since the obligation to deliver it was born. In this way, you must bear the loss or deterioration when it is due to a fortuitous event or force majeure, and in this case, you must pay the price to the seller. However, if it is a package trip, the person responsible, the buyer of the accommodation would be the organizer of the package, and not the consumer, all taking into account that the application of the right is not exhaustive and will have to be addressed to the specific case

In any case, despite the fact that the hotel entrepreneur does not have to assume any responsibility or expense for the above, always based on the contractual clauses signed between the parties, due to the situations that have occurred, we recommend, from Tourism & Law Abogados, constant cooperation, assistance and collaboration with the client.

Inés Aguinaliu (T&L Attorney)

Article published in the November edition From the monthly newspaper CEHAT