A stay in a hotel, whether for business or pleasure, is based on a fundamental agreement: the hotel contract. Often concluded quickly, sometimes even without a formal written document for a simple overnight stay, this contract is nonetheless the cornerstone of the the relationship between the operator and its customer. It gives rise to specific rights and obligations for everyone. Understanding its sometimes debated legal nature, the stages in its formation - particularly in the age of online bookings - and the essential duties it imposes is essential to preventing misunderstandings and disputes.
What is the legal nature of this contract?
The legal classification of hotel contracts is not as straightforward as it might seem. Is it a standard type of contract or a category in its own right? The law itself provides some clues, but it is also open to interpretation.
It is not a deposit contract in the strict sense. Admittedly, Article 1952 of the Civil Code states that the deposit of belongings by the traveller at the hotel "is not a contract of deposit in the strict sense of the term. must be regarded as a necessary deposit ". However, this assimilation is primarily intended to facilitate proof in the event of a problem (theft or damage, a subject we will deal with in our next article). In practice, the hotelier does not generally have physical and legal custody of all the goods that the guest brings into his room; the traveller retains control and use of them. The hotelier's duty of supervision exists, but it does not transform the relationship into a pure and simple deposit for each object present.
Nor is it simply a furnished rental. The fundamental difference lies in the package of services that go hand in hand with the accommodation: cleaning, linen, reception, and sometimes other services such as breakfast. It is this package of services that makes the hotel industry unique, and sets it apart from the simple lease of furnished accommodation.
So how should it be classified? Legal doctrine hesitates. Some authors liken it to a contract of enterprise (a contract for the provision of services), where the hotelier undertakes to provide a set of services in return for a price. Others consider it to be a contract sui generisIn other words, a unique contract with its own rules that does not fit neatly into any pre-existing category. In practice, this dispute over classification has little direct impact on the hotelier or the customer. The most important thing is to be aware of the specific legal regime that applies, particularly in terms of liability and obligations.
The scheme also applies to more than just "traditional" hotels. It can apply to other establishments offering short-term accommodation with similar services, such as bed and breakfasts or certain holiday clubs. However, it does not apply to establishments that do not provide accommodation as their main service (a simple restaurant, a campsite where you rent a bare pitch).
It is also important to remember that the hotel contract most often links a professional (the operator) to a consumer (the customer). As a result, the protective rules of the Consumer Code are likely to apply, adding another layer of obligations for the hotelier. For a full analysis of the legal and regulatory framework for running a hotelBut there are other aspects to consider too.
Contract formation: from online booking to arrival
A hotel contract is a consensual contract: it is formed as soon as the hotelier and the customer agree on the service (the room, the dates) and the price. This agreement can be made in various ways: in person at reception, by telephone, by email or, increasingly frequently, via a website (the hotel's own website or a booking platform).
Remote booking, particularly online, raises a number of specific issues. When a customer pays a sum of money to guarantee a booking, how is this sum qualified? Is it a deposit (an initial partial payment binding both parties definitively) or a down payment (a sum allowing either party to withdraw from the contract, the customer losing it and the hotelier returning twice as much)? Article L. 214-1 of the French Consumer Code states that, unless the contract explicitly states otherwise, sums paid in advance are considered to be "deposits". deposit. This offers a degree of flexibility, but the conditions must be clear to the customer at the time of booking.
Another point that is often overlooked concerns the right of withdrawal. Normally, for contracts concluded at a distance (via the internet, for example), consumers have 14 days to change their mind without incurring any costs or giving any reason. However, under article L. 221-28, 12° of the French Consumer Code, the right to withdraw from a contract is subject to the following conditions important exception for the provision of accommodation services [...] scheduled for a specific date or period ". In practical terms, this means that for hotel bookings for specific dates, the customer does not benefit from this 14-day right of withdrawal. Once the booking has been confirmed, it is binding (subject to the cancellation conditions specific to the booking, in particular those relating to the deposit).
The rise of online booking platforms (Online Travel Agencies or OTAs such as Booking.com, Expedia, etc.) has also changed contractual relations. In legal terms, the contract between the hotelier and the OTA is generally referred to as a contract of mandate (article L. 311-5-1 of the French Tourism Code): the OTA acts in the name and on behalf of the hotelier to take the reservation.
These platforms have long imposed "parity clauses" in their contracts with hotels. A distinction must be made between:
- Rate parity This clause obliged the hotel not to offer a lower price on its own channels (website, telephone, reception) or via other competing platforms than that offered on the OTA. The French law (known as the "Macron Law" of 2015) has prohibited these clauses. Article L. 311-5-1 of the French Tourism Code guarantees that hoteliers are free to grant customers any discount or price advantage of any kind whatsoever, directly. They can therefore offer a better rate on their official website. However, the Court of Justice of the European Union (judgment of 19 September 2024, case C-264/23) recently ruled that such price parity clauses (even if restricted) could potentially infringe EU competition rules (Article 101 TFEU) if they restrict competition on the market. The analysis is therefore becoming more complex at European level, even if the French ban remains in force.
- Parity of availability and conditions These clauses commit the hotel to offering on the OTA conditions (cancellation, breakfast included, etc.) and a number of rooms available that are at least as favourable as on other channels. These types of clause are not explicitly prohibited by French law and can therefore still be included in contracts between hotels and OTAs.
The obligations of the traveller (customer)
If the hotelier has duties, so do the guests. The traveller's main obligation is, of course, to pay the agreed price for the room and any services consumed (breakfast, meals, telephone, etc.).
Beyond payment, guests must make reasonable use of the hotel's rooms and facilities, and act as "good fathers of the family", as the classic legal parlance puts it. This means respecting the house rules, not damaging the equipment and not causing a nuisance to other guests (excessive noise, for example).
Hoteliers may also ask guests to provide proof of their identity, and foreign nationals are required by law to fill in an "individual police form" (article R. 611-42 of the Code de l'Entrée et du Séjour des Etrangers et du Droit d'Asile).
What happens if the customer doesn't pay? The hotelier has the usual means of recovery: formal notice to pay, then possibly legal proceedings (for example, an injunction to pay). It is important to note that the hotelier's action to obtain payment is time-barred by two years from the end of the stay, in accordance with article L. 218-2 of the French Consumer Code.
In very specific cases, intentional non-payment can be punishable under criminal law. Article 313-5 of the Criminal Code punishes "skulduggery" (or "grivèlerie"), which refers in particular to having services provided (such as occupying a hotel room for a maximum of 10 days) knowing that it is absolutely impossible to pay or being determined not to pay. However, the conditions of application are strict (fraudulent intent, limited duration).
An important development is that hoteliers have lost a specific tool they previously had to protect themselves against unpaid bills. The "hotelier's lien" and the associated right of retention on the customer's luggage have been repealed by the ordinance reforming the law on securities in 2021. The hotelier can therefore no longer legally retain the belongings of a customer who does not pay; he must use ordinary collection procedures.
The hotelier's basic obligations (excluding liability for damage)
In return for the payment of the price, the hotelier is bound by a number of essential obligations towards the guest, which go beyond simply providing a room, and a breach of which may render the hotelier liable (Questions of liability for personal injury or damage to property will be dealt with specifically in another article.).
One of the most visible is theobligation to provide price information. It is very closely regulated by article R. 311-12 of the Tourism Code and an implementing decree (that of 18 December 2015 being the most recent applicable). Hoteliers must display in a clear, legible and up-to-date manner:
- Outside the establishment: the price of renting a room for one night (or at least the minimum/maximum prices), as well as the prices of the main services (breakfast, board, etc.).
- At the customer reception area: the same information as is displayed outside.
- In every room the price per night for the room in question, as well as the price of all ancillary services (telephone, minibar, room service, wifi if paying, etc.).
All prices displayed must be inclusive of all taxes. The aim is simple: to enable customers to know the exact cost of their stay and services before making a commitment or making a purchase.
Hoteliers must also guarantee their guests peaceful enjoyment of the rented room. This is an obligation of result: the hotelier must take the necessary measures to ensure that the guest's stay is not disturbed to an abnormal degree. This means protecting the guest against excessive noise from other rooms or communal areas (as far as possible), but also against unjustified intrusions. The hotel room is considered to be a private space during the guest's stay. Entering without a legitimate reason (cleaning at the appointed time, emergency, request from the guest) could constitute an invasion of privacy, punishable under article 226-4 of the French Criminal Code.
Finally, as a professional dealing with consumers, the hotelier must comply with the rules of the Consumer Code. This includes in particular the ban on refusal to sell or provide a service without a legitimate reason (article L. 121-11). A hotelier may not refuse to let an available room to a guest without a valid reason (the hotel is full, the guest's previous behaviour has been unacceptable, there is a safety risk, etc.). Discriminatory reasons are obviously prohibited. Similarly, the hotelier may not practise tyingThis means making the rental of the room conditional on the compulsory purchase of another service that could be sold separately (for example, imposing half-board or breakfast). Customers must remain free to choose the ancillary services they wish to use.
Do you have questions about the clauses of a hotel reservation contract or about your rights as a customer? Our firm can help. For hotel professionals, expertise in commercial law is essential to secure their contractual practices.
Sources
- Civil Code (in particular Art. 1590, 1952)
- Tourism Code (in particular Art. D. 311-4, L. 311-5-1, R. 311-12)
- Consumer Code (in particular Art. L. 121-11, L. 214-1, L. 218-2, L. 221-28)
- Criminal Code (in particular Art. 226-4, 313-5)
- Code governing the entry and residence of foreign nationals and the right of asylum (Art. R. 611-42)
- Treaty on the Functioning of the European Union (TFEU - Art. 101)
- Law no. 2015-990 of 6 August 2015 (known as the Macron Law)
- Order of 18 December 2015 on the advertising of tourist accommodation prices
- Order no. 2021-1192 of 15 September 2021 reforming the law on securities
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