Tourism Law in Europe

15 despite what the regional regulations state, this issue is regulated in articles 161 and 162 TRLGDCU), regardless of whether it is the hotel operator or a third party who causes such a situation 37 , against whom the expenses generated in attending to the guest and the penalties, if applicable, can be reimbursed; 2nd) in accordance with the aforementioned regulations, they must accommodate the client who is refused a room in other accommodation of the same or higher category, in the same area in which the contracted establishment is located, also covering the expenses arising from the transfer of the travelers; 3rd) failing this, they could offer them accommodation of a lower category, paying the difference in price between the two; and, 4th) finally, they will also be liable for any possible damages that may be caused to users, among which the Canary Islands regulation expressly includes the loss of holidays. The situation of over-contracting is not explicitly recognised in the sphere of Private Law, given the atypical nature of the contract, so that its general treatment, beyond the solutions provided by those Autonomous Communities that deal with its regulation, is redirected to the liability for breach of contract contained in Articles 1101 et seq . CC, or, where appropriate, for defective performance of the contract 38 . However, it is a liability of a patrimonial and purely compensatory nature. Of a patrimonial nature because the breach of the obligation is based on the accommodation contract, in which the client suffers damage that is objectively attributable to the non-fulfilment of the aforementioned agreement and this breach is also attributable to the host 39 ; indemnity, because it is a matter of financially compensating the repair of the damage caused. 37 It is not always easy to know, from the outset, whether it is the hotelier who is causing the conflict with a resale of confirmed places or the intermediary, with whom a contract has been signed for the reservation of places on a quota basis, sending a higher number of clients to the establishment than confirmed, on the basis that on previous occasions he had been allowed to do so. For more information on the latter contract vid . MARTÍNEZ NADAL, A. El contrato de reserva de plazas de alojamiento en régimen de contingente , J. M. Bosch ed., Barcelona, 1995, pp. 17 et seq . 38 REGLERO CAMPOS, L. F. “Conceptos generales y elementos de delimitación”, op . cit ., p. 66. In turn, FERNÁNDEZ ÁLVAREZ, J. “Incumplimiento del contrato de hospedaje”, Estudios Turísticos, 91, 1986, p. 55, qualifies overbooking of accommodation as a breach which gives rise to extremely serious conduct on the part of the hotelier, especially if it involves the breach of reservations initially contracted at a low price, in order to meet later bookings or occupancies at a better price. 39 PANTALEÓN, F. “El sistema de responsabilidad contractual (materiales para un debate)”, Anuario de Derecho Civil , Vol. XLIV, 1991, p. 1043.