Civil Law Code
The general rule is "pacta sunt servanda", meaning if you conclude a contract you have to stick to it. Usually, you do not have the right to withdraw from a contract for free. There are some exceptions to this rule (e.g. some kind of distance-selling contracts) but none of them applies to the booking of a hotel room.
§ 1168 of the Austrian Civil Law Code (ABGB) regulates contracts for work and services. These rules apply for hotel room bookings as well. § 1168 ABGB says that a trader (here the hotel) shall neither take any advantage out of a cancellation nor suffer any loss.
Since the hotel did nothing wrong and could believe that the consumers show up it would not be fair if the trader has any cost risk.
A consumer cannot expect to pay nothing or just a little fee.
The cancellation was not caused by the trader and it is the consumer’s risk if anything happens that prevents him from staying in the hotel. As there is no right to withdraw from the booking for free the hotel can demand a payment, eventhough no one is using the room.
However, according to the rules mentioned above, a hotel cannot demand 100% either as they do not have to clean the appartment, provide meals etc.
The trader has to deduct the costs he will not have due to the cancellation.
How much a hotel can charge in such a case is not generally regulated. It depends on details of the contract such as: did the consumer book B&B, half-board or full-board? Usually 20-30% have to be deducted, so the cancellation fee then is 70-80%.
A down payment of a lower amount cannot automatically be seen as a cancellation fee. This would only be the case if stated like that in the trader’s conditions.
Room rented to someone else
This only changes if the trader finds someone else who is renting the room at the same time for the same price. Then he has no damage and is not allowed to demand any payment from the consumer who cancelled.
Terms & Conditions
In general there is to say that a hotel is not obliged to have terms & conditions or special cancellation rules. If no cancellation rules have been agreed on, the rules of the Austrian Civil Law explained above apply.
Terms & conditions could be
- that only the demanded down payment will not be reimbursed in case of a cancellation or
- that the amount of a cancellation fee is depending on the time of the cancellation and can therefore be more or less than the down payment or
- that the "Österreichische Hotelvertragsbedingungen" apply.
Österreichische Hotelvertragsbedingungen
The so called Österreichische Hotelvertragsbedingungen are generalised terms & conditions for hotels, as common in the field of package travel. They do not apply automatically, only if a trader refers to them in the contract/the terms & conditions.
More or less, the Österreichische Hotelvertragsbedingungen confirm the general legal opinion and court decisions on § 1168 ABGB:
A cancellation more than three months in advance is for free, a cancellation three to one months in advance costs 40%, one month-one week in advance costs 70% and a cancellation within seven days in advance 90%.
