Sustainable Tourism Law

388 SUSTAINABLE TOURISM LAW IV. POSITIONING OF THE INTERMEDIARIES Intermediaries are all of those who, through an online platform, connect the service providers with the final users and facilitate the transactions between them. There are no possible doubts that the relation between the intermediaries and the service providers is contractual. For a service provider to appear in a platform of collaborative accommodation, it is mandatory that a contract has been completed. But which contract? The closest one seems to be the agency contract… An agent is a natural or legal person that, as an independent intermediary, takes the initiative to conclude contracts on behalf of the business owner, receiving a compensation and not taking the risk of such deals. In an “ordinary” agency contract, the agent does not define the model of business, just submits himself to the business model drawn by the business owner without interfering with it. The agency contract was born to help traders reduce the barriers imposed by the distance between the production and the clients, in the words of Haical. 6 Here, on the contrary, the agent completely determines the business model, imposing to all contractors its proper rules without assuming any risk. This small fact, that translates into a huge difference, has to be addressed and new conceptual terms have to be found. In fact, if the intermediary is not an agent 7 , we have to discuss its juridical nature and be able to create new shelves to accommodate these new ways of making business. The issue is pretty much the same on the user side. When a user/tourist rents a sharing accommodation, does he concludes a contract with the owner of the online platform? Or with the service provider? Certainly with the first, probably with the second… V. THE BRIGHTON ACCIDENT The intermediaries are well aware of this, as Airbnb states in its contracts with the service provider (host) that there is no liability from the intermediary for the damages suffered by the user in the host’s house. Anyway, Airbnb created two secure instruments, presented as marketing arguments: 6 Haical, Gustavo, O contrato de Agência. Seus elementos tipificadores e efeitos jurídicos. 7 At least within the classical scope.