Tourism Law in Europe

26 this is not always the case, because if the customer's infringement is of such a nature that it does not allow the employer to make use of the measures at his disposal to provide security for the customer's belongings (for example, if doors and windows are left open and easily accessible to the room or if strangers are invited into the room 56 ), the strict liability provided for in the aforementioned precepts would not be enforceable. On the contrary, in these cases, one would have to argue for exoneration given the improper breach by the complaining customer 57 . It is true that in these cases our case law, in some situations, has understood that there is a concurrence of fault and allows the hotelier to reduce his liability 58 . Consequently, the difference in their treatment does not refer to the liability of the employer, who is liable whether or not he had kept the object in question in the individual box in the room, but to his possible exoneration and limitation. V.3.2. Liability for valuables delivered to him or left in his custody Earlier we pointed out that some objects are usually treated differently, i.e. money, jewellery and goods of special value, which must be handed over to the employer for safekeeping and custody. This delivery generates a deposit contract 59 that cannot be on him. The authors point out that, in this sense, the Malaga Provincial Court in its ruling of 5 June 1997 states that in order for liability for compensation to arise, the two conditions of Article 1783 CC must be met, i.e., that the travellers inform the hotelkeepers of the effects brought into their house and that they observe the warnings that the hotelkeepers have given them regarding the care and vigilance of the effects, “so it is manifestly clear that the exoneration of liability of hotelkeepers, innkeepers or innkeepers is not limited solely and exclusively to the cases of force majeure or armed robbery contemplated in art. 1784 CC, but also to those other cases in which the travellers do not comply with the obligation imposed on them by the aforementioned rule”. 56 Judgment of the Malaga Provincial Court of 22 September 1998. 57 Among others, the judgments of the Provincial Courts of Malaga, 22 September 1998; of Almeria, 3 December 1999; of Salamanca, 27 November 2001; and of Madrid, 9 July 2002, appear to be in line with this thesis. 58 Judgment of the Provincial Court of Madrid of 18 March 2014. 59 JORDANO FRAGA, F. “Comentario a la STS de 27 de enero de 1994”, op . cit ., p. 369; and, although less forcefully, REPRESA POLO, Mª. P. Responsabilidad de los establecimientos hoteleros por los efectos introducidos por los clientes , Ed. Editoriales de Derecho Reunidas, Madrid, 2004, pp. 192 et seq ., have pronounced on the question, understanding that the deposit contract is generated, when he states: "It is convenient to bear in mind that the hotelier is obliged to receive in custody the traveller's valuables, by application of article 78 O.M., whose custody he cannot refuse unless there is a justified cause so that in a certain way, the contractual freedom of the hotelier is coerced, imposing on him the obligation to contract as he cannot refuse to conclude the deposit if the traveller decides to hand over his goods, except in the aforementioned cases. In this sense, this deposit represents a limitation of the autonomy of will: the hotelier is obliged to accept custody of the valuables; he is therefore obliged to contract, which corresponds to the customer's right to conclude the contract. A legal obligation to contract arises for the hotelier from the accommodation contract. The author goes on to add that if we understand that in this case the freedom of action of the parties is reduced, as they are obliged to conclude the contract, in the