The hosting contract

In this article, I will deal with the lodging contract, which is one of the so-called atypical contracts, that is to say, its content is not defined in the Spanish Civil Code, but has come to be defined over the course of time by the different jurisprudence emanating from the Supreme Court, (Sentence of the Supreme Court dated June 20, 1995) as a contract of successive tract in which there is a combination of leasing of things (for the room or room), leasing of services (for personal services), of work (for food and beverages) and deposit, for the effects or goods left in custody, as for example in the safe deposit boxes, in exchange for a single and global price.

Thus, we can indicate that the main obligations of the establishment are to lodge, provide and maintain the guest in the exclusive use and peaceful enjoyment of the room during the time established in the contract.

On the other hand, the owner of the establishment on the complementary services that the establishment may provide must distinguish some classes, such as catering, car parking, dry cleaning, deposits in safety deposit boxes, use of swimming pool, etc. .....

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

The main obligation that the guest must fulfill as a consequence of the perfection of the lodging contract is to pay the price of the room and, of course, the price of each of the complementary services that he/she has contracted with the establishment before or during the execution of the same (meals, room service, telephone charges, wi-fi, cleaning and ironing of clothes, parking of the vehicle, etc.).

Likewise, the guest must observe the different safety or hygiene regulations imposed by the hotel establishments themselves. Infringement of these rules may lead to the termination of the contract in favor of the hotelier. Hence the importance that the Internal Regulations may have, for which 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 required at all times, such as keeping proper silence, respect for employees and other guests, forms in clothing, use of facilities such as the pool, bar hours, etc..

Another obligation of the client is to show his/her identity card or identification document, and to sign the file where his/her personal data is declared, constituting, in turn, an obligation of the hotel and catering establishments to keep a travelers' 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 the foregoing, what the Civil Code does contain are references to the hotelier's liability and the hotelier's privilege.

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

This exclusion of liability does not distinguish whether the traveler delivered his effects to the establishment, or whether he himself kept them for safekeeping, observing the precautions that have been indicated. In any case, it is a necessary deposit, which does not require the acceptance of the guest or the express conclusion of a deposit contract.

The judgment of the Supreme Court of February 1, 1994, sentenced the hotel company in question to pay the corresponding compensation to the client who was the object of the theft of a motor vehicle he was enjoying, due to lack of sufficient vigilance attributable to the employees of the security company hired by the hotel, given the obligations of custody of vehicles proper to said establishment according to its category, in accordance with the administrative regulations on the matter.

To ensure compliance with their obligations and possible indemnities claimed by clients, companies should take out business liability insurance and professional liability insurance for professionals (directors, administrators, etc.).

However, the liability of the hotelier for the theft of a vehicle in a parking lot outside the hotel is excluded (S. AP of Tarragona of May 5, 1994), even if the vehicle is owned by the hotel, since the only premises to be considered as premises used for lodging for the purposes of articles 1783 and 1784 of the Civil Code is the property itself used as garages in closed enclosures, covered or not, for parking vehicles whose access is controlled in some way, but not in the case of parking places with free and open access.

With regard to the hotelier's privilege (article 1922.5 of the Civil Code), the Civil Code establishes a preference of collection over the debtor's personal property existing in the establishment for the payment of the credit arising from the lodging.

Thus, in the contract there are two parties. On the one hand the establishment and on the other hand the guest who is the one who stays in the establishment regardless of the purpose of the accommodation, whether for business, tourism, etc... Thus, if there is a debt, the establishment has priority for collection with the things left there by the defaulting guest.

That is to say, the contract is perfected, as a general rule, at the moment of knowledge of the acceptance by the offeror of the accommodation.

At present, the most used means for the perfection of the contract is through the telephone and electronic means (e-mails, web pages, virtual platforms), which is why the current consumer regulations establish that they are means of distance communication, therefore, a contract entered into between absent persons.

The accommodation contract lacks the consumer law right of withdrawal, since the right of withdrawal will not be applicable to contracts relating to "the supply of accommodation services for purposes other than serving as a dwelling, transportation of goods, car rental, food or services related to leisure activities, if the contracts provide for a specific date or period of performance".

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, albeit partial, or with certain costs, such as charging the first night of all the contracted nights in case of withdrawal from the contract by the guest, which must be stated in the previous contracting conditions.

On the other hand, the obligations of the guest are: to pay the price, to return the room at the time agreed upon by the parties in the same condition as it was received, and to respect the rules of use of the services imposed by the hotelier.

Since it is a private establishment open to the public, access to a hotel is in principle free, but the hotel reserves the right of admission under the circumstances already indicated in another published article to which we refer.

José Luis Valencia (Lawyer T&L)

Article published in the September edition of the monthly newspaper CEHAT