Tourism Law in Europe

22 form an accessory deposit contract to the accommodation contract, as such effects are delivered to the employer or his employees to be kept and guarded, and must be returned in the same conditions when required by their owners 49 (the objects of special value that are entrusted to the employer for deposit in the central safety deposit box of the hotel establishment). This dual situation is also included in the DCFR, Article IV.C.- 5:110 of which declares the liability of the operator for the goods carried by the guest (necessary deposit), while Article IV.C.-5-101,c) in connection with the aforementioned IV.C.-5:110.7 of the DCFR requires the necessary constitution of a deposit (or storage) contract for the assumption of liability of the operator for the damage caused for these purposes. The latter will be dealt with in the following section. By article 1783 CC, the hotelier is liable for the damage that may be caused to the former, provided that such goods were brought into the establishment with the knowledge of the hotelier, and the instructions given by the latter regarding their care and supervision were followed 50 (in similar terms, article 534-12.3 PCM states: “ Como consecuencia de su obligación de custodia, el titular del establecimiento de alojamiento responderá de los efectos introducidos por los viajeros en su establecimiento con su conocimiento ” 51 ). For the hotelier to assume this responsibility, an express agreement is not required, this of the minimum security systems that allow access to the room by a third party are the responsibility of the hotel businessman himself. Vid. PÉREZ MARTELL R. & GONZÁLEZ CABRERA, I. El alojamiento turístico: Problemática y soluciones en la ejecución del contrato de hospedaje, La Ley, 2008, pp. 129 et seq . 49 The thing must be handed over and transferred to a third party for safekeeping and custody and must be returned when the guest demands it. For the safe keeping of these goods, it is not enough, therefore, to simply bring them into the hotel, but rather the effective delivery of them to the hotelier or his employees, transferring their possession to the hotel businessman for as long as this guardianship is required. See, in this line, the STS of 10 June 1987. The elements included in the aforementioned judgement are, according to the doctrine, those that configure the deposit as a contract. ALBALADEJO GARCÍA, M. Derecho Civil , Vol. II . Derecho de obligaciones , 12 th ed., Ed. Edisofer S.L., Madrid, 2004, p. 810, defines the deposit contract as that by which two persons, called depositor (or depositor) and depositary, agree that the latter is obliged in favour of the former to keep a movable thing and return it to him when he asks for it; or by LACRUZ BERDEJO, J. L., et al. Contratos y cuasicontratos. Delito y cuasidelito , Dykinson, Madrid, 1999, p. 247, as the contract whose main object is the custody of a movable thing that one contracting party (deponent or depositor) delivers, for that purpose, to the other (depositary), who undertakes to keep and conserve it. GARRIGUES Y DÍAZ-CAÑABATE, J. “El depósito irregular y su aplicación en Derecho Mercantil”, Revista Crítica de Derecho Inmobiliario , no. 86, February 1932, p. 85, considers that in the deposit the obligation of custody, which in other contracts is accessory to that of restitution (as in the sale and purchase or lease) becomes the specific and characteristic obligation of the said contract. Hence the importance of the custody of the guest's goods with respect to the liability that the host assumes for his fault. 50 Judgment of the Supreme Court of 15 March 1990. 51 As a consequence of his duty of care, the operator of the accommodation establishment shall be liable for the effects brought by travellers into his establishment with his knowledge (author’s translation).