Tourism Law in Europe

14 This liability may arise both in the contractual sphere, when between both parties (in our case host and guest) there is an obligatory relationship that is either defectively fulfilled or not fulfilled by the debtor (contractual liability regulated in articles 1101 et seq . CC) 35 ; and in the non-contractual sphere, when one person causes damage to another without there being a prior contractual relationship between them (non-contractual liability provided for in articles 1902 et seq . CC) 36 . Certainly, when there is defective performance, that is, when the different services contracted are not provided in accordance with the agreement (for example, when the guest is accommodated in a room other than the type or place requested, when the employer refuses to provide the customer with the room previously agreed or confirmed, due to overbooking), we speak of a breach of performance that may give rise to liability. It is true that in many of these cases, and due to the amount involved, such issues hardly go beyond the internal sphere of the hotel companies. Moreover, perhaps the most significant issue is precisely the refusal of the already contracted room on the grounds of overbooking. Precisely for this reason, those Autonomous Communities that are most dependent on tourism have tried to minimise its impact by establishing certain obligations for the hotel businessman, to avoid or reduce the occasions in which such situations arise. This is the case of the Autonomous Communities of the Canary Islands (art. 37 LOTCa); of Andalusia (art. 25 LTA); and of the Balearic Islands [art. 20 of the LTIB), among others, which recognise the following solutions in the aforementioned regulations: 1st) the hotel operator will be liable for these situations both before the user and before the Administration (unless the accommodation is part of a package travel contract, since 35 Indeed, a contract is not always required but, in any case, a legal relationship fromwhich a specific means of compensation can originate, because in this case and according to the STS of 26 January 1984, the general rule is the preferential application of the precepts of contractual liability as opposed to Article 1902 CC. 36 It is interesting to note the distinction of concepts made by YZQUIERDO TOLSADA, M. Responsabilidad Civil Contractual y extracontractual , Vol. I, Ed. Reus, Madrid, 1993, pp. 80 et seq ., when he states that the obligation to repair the damage caused to the victim can arise as a consequence of acts of a very diverse nature. However, all of them can be placed in two different categories: A) Sometimes it is a matter of cases in which, being several persons linked by an obligatory relationship, one of the parties fails to comply with that to which it was committed. We speak of contractual civil liability: the harmful event is produced precisely as a result of the breach of an agreement, and it undermines the creditor's assets, which were already determined beforehand. B) In other cases, the obligation to compensate arises between persons who were not bound by a prior relationship. In a deliberately non-technical way, the parties become acquainted with each other through the tort/delict. This is called tort liability.