The non-utilization or cancellation of reserved hotel rooms

There are good reasons to expect a special relationship of hospitality between the guest and the host in the hospitality industry. After all, hospitality is a decisive component of any gastronomic service. But time and again this relationship is clouded by legal disputes. It is often forgotten that the rules that apply in all areas of business life also apply without restriction to the hospitality industry. Probably for this reason, there is a widespread view that the reservation of a hotel room is a kind of “non-binding advance request”, which obligates the hotelier but can be cancelled by the guest at any time without sanction. In order to take into account the need for information on this issue and to clear up any misunderstandings, the following is a brief, non-binding overview of the issue of non-utilization or cancellation of reserved hotel rooms.

The accommodation contract

The accommodation contract is a mixed-type contract with basic elements from tenancy law and at least one other type of contract, such as a sales or service contract. The contract is concluded by two concordant – oral or written – declarations of intent, by offer or acceptance. In this context, the declaration of wanting to reserve a room is not to be understood as an invitation to the hotelier to submit an offer on his own initiative. Rather, the declaration is itself already an offer to conclude an accommodation contract. As soon as the room reservation is accepted by the accommodation provider, a binding accommodation contract exists. This applies even in the event that the parties have not yet reached an immediate agreement on all essential elements of the contract. This is because the contractual agreement does not fail due to the fact that the parties, with a recognizable intention to contractually bind, determine individual contractual points later or leave the determination to the contractual partner.
The essential content of the accommodation contract is determined by § 535 BGB.The essential content of the accommodation contract is determined by § 535 BGB. Thereafter, the hotel shall provide the agreed hotel room during the rental period. The guest, on the other hand, is obliged to pay the agreed room rate.
The accommodation contract shall be treated no differently than any other contract under civil law. Unless otherwise agreed in the contract or the General Terms and Conditions (GTC), the accommodation contract cannot be unilaterally terminated by either party. Completely independent of the time or reasons for the cancellation, there is no right to “cancel” a booking. The hotel room ordered and provided by the hotel is to be paid according to §535 sentence BGB. This applies even if the hotel room is not used for reasons within the sphere of the guest.
The payment to be made by the guest despite non-use is often referred to as a “cancellation fee”. Unless otherwise provided by contract or general terms and conditions, the “cancellation fee” is not a penalty for cancelling a hotel room. The “cancellation fee” rather quantifies the contractually owed consideration (room rate) minus the saved hotel expenses. Operating costs not incurred – e.g. for hospitality or provision of bed linen – must be deducted by the hotelier in accordance with § 552 sentence 2 BGB. The amount of these savings to be credited depends on the specific circumstances of the individual case. In case law, the value of the expenses saved is determined by the

• for overnight stay (FeWo) with a flat rate of 10
• for overnight stay (FeWo) with a flat rate of 10
• for overnight stay/half board with a flat rate of 30
• for overnight stay/full board with a flat rate of 40

of the overnight rate is regularly considered reasonable. However, the parties to the accommodation contract are free to prove higher or lower savings.
In addition, the hotelier must take into account the advantages gained from renting the room to another party.
However, there is no basic obligation to look for a substitute tenant if the hotel room is not used. However, the hotelier must not be disloyal in refusing to accept other guests. The exclusive place of jurisdiction is the place of operation.

Source: German Hotel and Restaurant Association (DEHOGA), Bonn