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Withdrawal from the accommodation contract (cancellation)

Status: v2_January 2022

Publisher:
Fachgruppe Hotellerie
Sparte Tourismus und Freizeitwirtschaft der Wirtschaftskammer Kärnten
Europaplatz 1, 9021 Klagenfurt

Despite careful editing, no guarantee can be given for the correctness of all information. Furthermore, no legal claims can be derived from the info sheet.

1. General information about the accommodation contract

The accommodation contract is a bilaterally binding and remunerated legal transaction between the guest and the guest and the accommodation provider (hereinafter referred to as “hotelier”), which is not expressly regulated by law. According to According to case law, the accommodation contract is a so-called mixed contract, which contains elements of a rental contract, a service contract, a contract for work and services, and a contract for the provision of services, the service contract, the contract for work and services and the sales contract. The uniform performance of the guest (remuneration) is opposed by several counter-performances of the hotelier, whereby the main element is the (remunerated) provision of a room for use by the guest.

2. Withdrawal from the accommodation contract

A contract comes through the concurring declaration of intent of the contracting parties (guest and Hotelier) on the content of the contract (performance and consideration). A unilateral departure from the legally binding contract is generally not possible. The withdrawal from the accommodation contract must be agreed between the contracting parties. Such a agreement can be made, for example, in the General Terms and Conditions (GTC) on which the respective and thus became part of the contract.

In the case of consumer transactions at a distance (i.e. conclusion of a contract with a consumer via e-mail or telephone or in the case of online bookings), it should be noted that the 14-day right of withdrawal according to § 11 para 1 Distance and Foreign Transactions Act (FAGG) does not apply. The consumer therefore has no legal right of withdrawal from the accommodation contract. Within the scope of the pre-contractual information obligations of the hotelier (cf. Section 4 FAGG)2 , the guest as a consumer on the non-existence of the right of withdrawal in accordance with § 18 para. 1 Z 10 FAGG. be pointed out.

Furthermore, it must be taken into account in the consumer business that the right of withdrawal only within the framework of the Consumer Protection Act (KSchG) legally effective agreed. can be. The hotelier as an entrepreneur isd KSchG can thus in principle only in the presence of objectively justified reasons, withdraw. An objectively justified reason is if the hotelier can no longer continue to adhere to the contract – for objective reasons or reasons in the person of the guest. the person of the guest – can no longer be expected to continue the contract. According to the judicature, among other things the insolvency or a worsening or endangerment of the financial circumstances of the guest represent objectively justified reasons.

2.1 On the cancellation fee

The respective contractual formulation of the right of withdrawal is subject to the civil law Contractual autonomy. In practice, the exercise of the right of withdrawal by the guest is usually linked to the payment of a cancellation fee. Payment of a cancellation fee coupled.

It should be noted that the amount of the cancellation fee in the consumer business to the judicial moderation right (§ 7 KSchG); in case of dispute, the cancellation fees can be reduced by the court. thus be reduced.

In addition, the hotelier’s statutory duty to mitigate damages or the offsetting requirement of § 1107 ABGB must be taken into account when determining the amount of the cancellation fees: The hotelier has itself accordingly around the other letting of the hotel room to strive and must with successful further letting the remuneration obtained thereby from the cancellation fee deduct.

2.2 On the right of withdrawal according to the AGBH 2006

The General Terms and Conditions of the Hotel Industry 2006 (AGBH 2006) regulate the guest-hotelier relationship in Austria and are provided as a non-binding model for general terms and conditions in the hotel industry. In accordance with the contractual autonomy under civil law, the right of withdrawal can, however, be regulated differently in individual contracts, i.e. in the respective accommodation contract, or the AGBH 2006 can be adapted and “own” GTCs can be created.

In order for the AGBH 2006 or other (adapted) general terms and conditions of the hotelier to apply, these must be agreed upon in a legally effective manner; for this purpose, the general terms and conditions must form the basis of the contract, i.e. become part of the contract. The hotelier must therefore already indicate in the offer that the accommodation contract is only concluded on the basis of his GTC and the guest must have at least the possibility of becoming aware of the content of the GTC. Section 5 of the AGBH 2006 contains a sample formulation for a cancellation agreement.

Accordingly, the following withdrawal options exist:

Withdrawal by the hotelier

According to AGBH 2006, the hotelier can withdraw from the accommodation contract in two cases:

1) DiThe contractually agreed down payment is not made by the guest in due time. In this case, the hotelier can withdraw from the contract without setting a grace period (cf. § 5 point 5.1 of the AGBH 2006)

2) If there are factually justified reasons, a withdrawal can be declared at the latest three months before the agreed date of arrival (cf. § 5 point 5.4 of the AGBH 2006).

Attention:

Overbooking of the hotel does not grant the hotelier a right of withdrawal. According to §6 of the AGBH 2006, however, the hotelier has the option to provide the guest with adequate substitute accommodation (of the same quality) without becoming liable to pay damages himself. The replacement accommodation must be reasonable for the guest, however.

Withdrawal by the guest

According to AGBH 2006, the guest can withdraw from the contract in the following cases:

1) Up to three months before the agreed date of arrival at the latest, the accommodation contract can be terminated without cancellation fee by unilateral declaration of the guest (see § 5. Point 5.5 of the AGBH 2006).

2) Outside of this period a cancellation by unilateral declaration of the guest is only possible with payment of a cancellation fee (see § 5 point 5.6 of the AGBH 2006): up to one month before the arrival date: 40 percent up to one week before the arrival date: 70 percent in the last week before the arrival date: 90 percent of the total arrangement price.

3. No Show – Failure to appear on the agreed day of arrival

If the guest does not appear on the agreed day of arrival, it is called a “no show”. This is not a case of cancellation, because the guest does not declare his withdrawal from the contract. Therefore, in the case of no show, the hotelier has a claim against the guest for payment of the entire the entire amount of the contractually agreed accommodation fee. Due to the legal duty to mitigate damages as well as the requirement of § 1107 ABGB (Austrian Civil Code), the hotelier must to rent out the vacated room and deduct from the agreed fee those expenses which he has expenses that he has saved as a result of not providing the accommodation (e.g. drinks, catering). Drinks, catering).

4. prevention of arrival in cases of force majeure

Force majeure” is understood by the judicature to mean an external event affecting the business event which does not occur with a certain frequency and regularity and which cannot be and which cannot be averted or rendered harmless by the exercise of the utmost reasonable care. can be rendered harmless. Examples of cases of force majeure are Europe-wide air traffic obstructions to air traffic or road closures in the event of snow chaos.

4.1 The regulation of cases of force majeure in the AGBH 2006

If the application of the AGBH 2006 has been agreed upon in a legally effective manner, § 5 point 5.7 shall apply. If the guest is not able to arrive due to extraordinary and unforeseeable circumstances, he/she shall not be obliged to pay the he is not obliged to pay the agreed accommodation fee. The the guest is prevented from arriving in cases of force majeure does not constitute a case of cancellation. represents and consequently no cancellation fees can be charged.

In point 5.8 of § 5 of the AGBH 2006, however, the following provision is still made: lst the Arrival during the booking period within three days possible again, so lives the Payment obligation of the guest again, i.e. he is basically obliged to pay the fee. to pay the fee.

4.2 Regulation for cases of force majeure according to general civil law

If the ABGH 2006 are not used or have not been legally agreed, in case of Prevention of the arrival by the guest in case of force majeure the rent exemption due to extraordinary coincidences, which the tenant (tenant) is not responsible, according to § 1104 ABGB analogously. According to case law, this provision does not only apply if the leased property (the hotel room) is unusable per se, but also if the unusability of the leased also applies if the unusability of the rented object results from circumstances outside the rented object (e.g. road blockage), (e.g. road closures due to snow chaos and avalanches). In such cases the hotelier is generally not entitled to payment of the agreed fee.