Tourism contracts and liability

An accommodation contract may be formed by a booking, a reservation confirmation or conduct showing agreement. The relevant question is which accommodation and additional services were agreed. These may include breakfast, parking, a shuttle, a wellness area, lift passes, guided activities or particular equipment.

A public description of a service must be compared with the service actually delivered. A promotional statement does not answer every legal question. The booking, disclosed limitations, promised features and pre-contract communications are decisive.

If several travel services are combined, package travel law may apply. A separate overview of package travel and organisers explains that distinction. A pure accommodation contract must be assessed separately.

For accommodation at a specific time, § 18(1)(10) FAGG generally excludes a consumer withdrawal right in a distance contract. This does not mean that every cancellation automatically creates a charge. The relevant factors include the rate booked, the agreed terms, any goodwill arrangement and the costs actually saved.

Cancellation clauses should clearly state the consequences of cancelling at different times. If a fixed charge is disputed, it is necessary to check whether the clause was effectively agreed and whether the requested payment fits the contract. Calling a rate non-refundable does not remove that examination.

The business also cannot simply depart from a confirmed booking without further assessment. If the accommodation is unavailable, replacement accommodation, additional costs, repayment and further losses must be assessed in light of the agreement and the actual events.

A deviation from the booked service is not automatically a damages claim. First establish what was agreed and how significant the deviation is. Missing equipment, an unusable room, serious noise or the failure of an expressly promised extra service can have different consequences.

Guests should report a defect promptly and specifically. The business should have an opportunity to inspect the cause and offer a reasonable remedy. Leaving without records or rejecting an offered solution can make later assessment more difficult. This does not mean that every replacement must be accepted. Its reasonableness depends on the defect and the remaining purpose of the contract.

The terms loss mitigation and remedy of a defect should be kept separate. Mitigation concerns how to deal with an existing disadvantage. It does not replace the question whether the original service complied with the agreement.

For personal injury, contractual protective duties and possible tort liability must be assessed separately. Under § 1295 ABGB, damages may arise from unlawful and culpable conduct. Where a contractual duty is involved, § 1298 ABGB can be relevant to the burden of proof. Whether a duty was breached nevertheless depends on the specific hazard and on reasonable safety measures.

The duty of care does not require absolute safety in every situation. It concerns foreseeable and avoidable hazards that a business or organiser can control within reason. Lighting, cleaning, inspections, signs, barriers and information may matter depending on the location and activity.

For items brought into the establishment, the special rules in §§ 970 ff ABGB may also apply. Section 970 addresses brought-in property and refers to custody and damage caused by the innkeeper, staff or people entering and leaving the premises. Section 1316 ABGB addresses damage to brought-in or accepted property caused by staff.

The innkeepers’ liability under § 970 ABGB does not cover every item left anywhere on the premises. Items are treated as brought in especially where they were handed to the innkeeper or staff, or placed at a designated or assigned location. Section 970(2) contains a specific rule for animals and vehicles kept in stables or storage areas operated for that purpose.

Under § 970a ABGB, a general notice excluding all liability has no legal effect. For valuables, money and securities, the innkeeper is generally liable only up to 550 euros. The limit does not apply where the innkeeper accepted the item for custody knowing its nature or where the damage was caused by the innkeeper or staff.

The assessment therefore turns on handover, custody, condition, value and cause. A room safe, reception desk, luggage storage or an expressly accepted transport can create different facts. Statements that a business is always liable or never liable are too broad.

Under § 1304 ABGB, the injured person’s contribution to the loss must be taken into account. This may concern an obvious hazard, an ignored instruction or careless handling of an item. It does not automatically eliminate a claim. The weight and causal effect of each contribution are decisive.

The loss mitigation duty also requires a fact-specific assessment. After an accident, reasonable immediate steps, medical assessment and preservation of important evidence may be necessary. A business, in turn, must respond appropriately, remove hazards and limit further loss.

The records should show not only the initial cause but also what happened afterwards. The guest incident documentation checklist helps organise reports, photographs, witnesses and receipts.

Many disputes are decided by the chronological and factual consistency of several records rather than by one statement. Relevant material can include the booking, messages, photographs, receipts, incident reports, witness details and medical records. Technical or organisational causes may also make maintenance, cleaning and inspection records important.

A report should distinguish personal observations from information supplied by other people and later assumptions. This makes the account easier to assess. Details such as the room number, the location of a mat, lighting or the time of a report can be important for responsibility.

Businesses should record complaints and incidents factually without prematurely admitting or rejecting liability. Guests should describe the sequence clearly and keep all communications with the business.