Tourism Law in Europe

27 described as voluntary, but as an accessory to the accommodation contract and, ultimately, necessary for the employer to assume liability for damage caused to such goods. This statement, however, requires appropriate clarification, because regardless of the legal obligation of custody deriving from the aforementioned article 1783 CC, it is usual, as we anticipated, that based on the Ministerial Order of 1968, employers warn their clients of the necessary deposit of certain goods in the central safe deposit box, exonerating their liability if this is not the case. The question arises here as to whether such delivery, which is still a deposit contract, can be understood as an ordinary deposit in the form of delivery of the thing closed and sealed, or because it is delivered on- demand with a declaration of value. If it is considered as such, the applicable legal regime is that contained in the CC for the voluntary deposit contract, according to which, if the thing is delivered in a closed and sealed envelope, the hotelier must return the said envelope in the same conditions, being liable for damages if the same is broken or forced by his fault (art. 1.769 CC). On the other hand, if the effects were delivered in a different form to the above, the employer will be liable when the damage is due to wilful, culpable or negligent conduct or omission on his part or that of his employees, exempting his liability when such damage is due to events that could not have been foreseen, or which, if foreseen, were inevitable (arts. 1101, 1104 and 1105 CC). In our opinion, the delivery of the effects, as we have pointed out, gives rise to a deposit contract, as there is a transfer of possession of the objects for a single purpose, their safekeeping and custody by a third party and their return when required by the client, but certainly it cannot be described as voluntary, given the lack of discretion of the client case of the depositary as a consequence of the legal imperative to contract and in the case of the depositor due to the need to observe the precautions of the hotelier, we can conclude that the hotel deposit is a necessary deposit". Although our high court does not end up expressing itself clearly, we understand that the SC Judgement of 27 January 1994 is clear on this point in recognising that the delivery of jewellery to the employer for safekeeping constitutes a deposit contract, even if its disappearance is qualified as a deficient fulfilment of the obligation of safekeeping that derives from the accommodation contract. The truth is that, in our opinion, what seems to be clear to the High Court, as we defend, is the substitution of the legal regime contained in the CC for the necessary deposit for that resulting from Articles 1783 and 1784 for the necessary deposit, since there is not total freedom for the guest to opt for the conclusion or not of this deposit contract if he does not wish to run the risk of the employer not being fully liable for the possible loss of the object of value that he is carrying with him. Along the same lines, among others, the STS of 11 July 1989 and 15 March 1990, as well as much lesser case law.