The nature of the liability of the hotelkeeper for the property of the guest in Malta and other European states

Abstract

The liability of the hotelkeeper is recognised and regulated in a number of States. The 1962 Council of Europe Convention on the Liability of Hotel-keepers concerning the Property of their Guests introduced a more harmonised approach, such that more uniform rules were introduced in a number of States. This notwithstanding, it is interesting to note that different legislators have adopted distinct approaches to codifying the hotelkeeper's liability. For instance, while in Italy this liability is governed by rules found under the section of the Civil Code dealing with the contract of deposit, in Malta the hotelkeeper’s liability is regulated in article 1039 of the Civil Code, found under the part of the Code dealing with torts and quasi-torts. The Maltese hotelier's liability thus derives ex lege and is regulated by special rules. However it remains important to determine the nature of the hotelier’s liability as prescription periods, the onus of proof and damages vary significantly between contractbased and tort-based actions. The conclusion of a contract between the hotelkeeper and the guest is not disputed. This contract is essential for the liability of the hotelkeeper for the property of the guest to arise, as in its absence the individual would not acquire the status of a guest. Hence the section of the Civil Code dealing with contracts appears as a more appropriate textual location for the rules in question. In practice, however, the liability of the hotelkeeper for the property of the guest has different facets and this analysis of the regulation of the different forms of the hotelier’s liability explores the possibility of linking the guest’s action for damages either to tort or to contract or to both. A logical corollary of this is that in certain cases the guest could also have a choice to institute against the hotelkeeper either an action based on a breach of the contractual duty of care, or an action based on the principles of tort law.