General Terms and Conditions
Non-utilisation or cancelation of reserved hotel room
Hospitality, trust and personal care are part of the basic mission of the hotel business. The guest expects not only a return service that corresponds with the price, but also additional courtesy, service and atmosphere. The hotel business has always made an effort to comply with this demand for additional, usually immaterial service.
However, despite this special relationship between the hotelier and his/her guests, the same legal principles and rules apply as in any other legal relationship or contractual relationship. In order to do justice to this issue of the existing need for information and eliminate possible misunderstandings, a brief, non-binding overview on the issue of non-utilisation or cancelation of a reserved hotel room is provided in the following section.
The accommodation contract
The accommodation contract is a mixed-type contract with basic elements from the laws of tenancy and at least one other type of contract such as the sales or service contract. The contract agreed to through two concurring - oral or written - declarations of intention, through the offer and acceptance. At the same time, the declaration of wanting to reserve a room is not to be understood as a request for the hotelier to make an offer on his/her own.
Instead, the declaration on your part is already an offer for the conclusion of an accommodation contract. As soon as the room reservation has been accepted by the accommodation facility, a binding accommodation contract exists. This applies even in the case that the parties did not immediately come to an agreement about all of the essential contracts elements of an agreement. With the discernible will for a contractual commitment, the contractual agreement does not fail because the parties determine the individual contracts points or allow the contractual partner to determine them at a later time. The essential contents of the accommodation contract is determined according to § 535 BGB (German Civil Code). In accordance with this, the hotel must make the agreed-upon hotel room available during the rental period. On the other hand, the guest is obligated to pay the agreed-upon price of the room. The accommodation contract must not be treated differently than any other contract according to the civil law. Conditional upon agreements to the contrary in the contract or General Terms and Conditions, the accommodation contract cannot be dissolved solely by one party to the contract. Completely independent of the point in time or reasons for the reversal, there is no right to cancelation of a booking. The ordered hotel room that is reserved by the hotel must be paid in compliance with § 535 paragraph 2 of the BGB (German Civil Code).
This applies even when the hotel room is not made use of due to reasons from the sphere of the guest. The payment to be made by the guest despite the non-utilisation is frequently listed under the designation of cancelation fee. Unless otherwise stipulated by the contract or General Terms and Conditions, this cancelation fee is not a sanction for the cancelation of a hotel room. Instead, the cancelation fee estimates the contractually owed return service (price of the room) minus the expenses saved on the part of the hotel. According to § 537 section 2 of the BGB (German Civil Code), the hotelier must give claim-reducing credit for non-incurred operating costs - such as for catering or making bed linens available. The amount of these savings that must be credited is oriented upon the concrete circumstances of the individual case. The judiciary routinely considers the value of the saved expenses as appropriate as follows:
- per night/breakfast with a flat rate of 20%
- per night/half-board with a flat rate of 30%
- per night/full board with a flat rate 40%
of the nightly price. However, the parties to the accommodation contract are at liberty to prove higher or lower savings. Furthermore, the hotelier must allow for crediting the advantages that he/she attained by subsequently renting the room. However, there is no fundamental obligation to search for a replacement renter when the hotel room is not utilised. But the hotelier must not act in bad faith by refusing to accept other guests.
The Allocation Contract
The situation is judged in a similar way in the case of the so-called hotel-allocation contracts. This type of contract, which also does not have a standardised legal form, has been developed from the practice, primarily to do justice to the needs of travel and conference organisers. This is because the agreements ensuring the travel or conference must already be arranged before knowing the number of participants and the resulting number of beds required. The allocation contract routinely allows the organiser a fixed period of time within which he/she can cancel the reserved rooms without a charge. After expiration of this fixed period of time, the previously allocated rooms - in compliance with the preceding agreement will either be considered firmly booked or earmarked for the conclusion in compliance with the number of accommodation contracts.
A cancelation of the firmly booked reservation or a return of the bindingly earmarked room allocations occurs in accordance with the agreements determined by the allocation contract. Tables based on a percentage of the nightly price and upon the document date are usually designated. Should the allocation contract not contain an express cancelation agreement or if the agreed-upon date is exceeded without a charged cancelation, the legal concept of the right to rescind by virtue of the commercial practice is often quoted as the ultima ratio. However, it has not been previously possible to determine an indisputable commercial practice that permits the withdrawal from an accommodation contract at a determined point in time before arrival without sanctions.