The Hotelier's actions in cases of Force Majeure

Recently, and as a response to a ruling issued by the Supreme Court in relation to the independence process in Catalonia, there have been a series of riots and demonstrations in the streets of various Spanish cities which, although they did not affect, in principle and directly, the various players in the tourism sector, their activity has been clearly disrupted because, since we live in a world with totally interconnected commercial relations, the actions of some affect the rest.

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

The actors we were referring to in the first paragraph were basically two: the airlines and, secondly, the hotel establishments. On the one hand, we have 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 report to work in due time and form and, on the other hand, we have those hotel businessmen who have encountered important "no-show" situations due to the impossibility of some of their customers to report to their establishment since they were trapped inside an airport or were not even in the destination city on the day when the check-in was due to take place. These "no-show" scenarios have come to produce an important discomfort in the hotel businessman who did not know what should be the correct steps to follow under the circumstances described above.

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

The answer to the question of how it would be in accordance with 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, which, although not expressly mentioned, refers to cases of force majeure and establishes that "no one shall be liable for those events that could not have been foreseen, or which, if foreseen, were unavoidable".

Now, 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 provision of the Civil Code, in the understanding of the writer of these lines, limits a possible claim for damages possibly payable for a breach of contract and, in this case, the breach is being made by the customer by not (being able to) show up to enjoy the contracted service. Only those who, in the performance of their obligations, are guilty of wilful misconduct, negligence or default shall be liable to pay damages. The wording of article 1.105 of the Civil Code cannot be understood in any case, and in my opinion, as a way of exempting the parties that have signed a contract from the fulfillment of the obligations that are contractually and legally required of each one of them.

Thus, just as it is the obligation of the hotel operator to keep the reserved places available to the customers, the latter must proceed to fulfill the obligation to pay 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 the clients finally enjoy or not the reserved service is independent of the right to the payment of the employer of the service that should have been provided in circumstances in which there was no cause of force majeure, since article 1.091 of the Civil Code establishes that "the obligations that arise from the contracts have force of law between the contracting parties and must be fulfilled according to the tenor of the same". In support of this thesis we can allude to the so-called "Theory of the risk", 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 for the account of the buyer (traveler), creditor of the same, since the obligation of delivery is born. In this way, he must bear the loss or deterioration when it is due to a fortuitous event or force majeure, having to pay, in this case, the price to the seller. However, in the case of a package tour, the responsible party, the buyer of the accommodation, would be the organizer of the package, and not the consumer, taking into account that the application of the law is not exhaustive and will have to attend to the specific case.

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

Inés Aguinaliu (Lawyer T&L)

Article published in the November edition of the monthly newspaper CEHAT