La nuova ospitalità

Abstract

In an open, globalised world where exchanges between people have become safer and faster, in an era of great changes to transport and communication (thanks also to internet), tourism has an important role to play. It is a complex event (from a cultural, social, economic and juridical point of view) which responds to people’s need for movement, for cultural exchange, for knowledge of others and of the universe and it is, therefore, a new prospect for the juridical world too. There is a tight link between tourism and hospitality, between travel and welcoming as is stated in the definition of tourist package, “an established combination of at least two of the following elements”: transport, accommodation, and services not considered accessories, included in art. 86 of the Consumer Code, and the duration of the trip must include at least one night. Thus, an organised holiday must include accommodation for overnight stay as a pre requisite. Hospitality qualifies the holiday and is the basis of any kind of tourist contract. Reference is made to it in the national law for the reform of tourism (l. n. 13572001) which includes, among the tourist professions, the management of hosting structures. Some of these are managed by the local host community thus valuing local heritage and traditions with the aim of developing sustainable tourism. From the side of the community, instead, the Council of Europe has supported the tourism phenomenon, promoting Cultural Routes and founding the European Institute of cultural itineraries. In this way various routes are identified that rediscover the influences of various cultures and revitalise interest in the historical and naturalistic heritage of Europe. Travel, a manifestation of the freedom of the individual, and the interpersonal relations that hospitality favours become the soul of civilization, permitting the study of diverse cultures and changes within them. The relationship of hospitality, which emerged as a show of courtesy, still survives today both in the pre4judicial and social world and in the legal world. Now it is necessary to verify whether, in the latter world, there is a unit category of contracts for tourism purposes to which the shops already analysed refer, not only for systematic purposes but also for methodology to extend the same discipline to everybody. In this way a single contractual typology will emerge to include all the different already existing or emerging examples, in order to identify common tutelage for tourist travellers, the weakest element in the market of national and international tourism with a need for greater protection. Furthermore, the grouping together of diverse manifestations of the same phenomenon in a single genus is also a useful operation for legal interpretation and the total comprehension of the real situation and its problem areas. It is, therefore, to be investigated whether it is possible to extend the same rules to all contracts, in the presence of a single common denominator that everyone refers to and that establishes everything. This is not an easy operation because it has to deal with a reality, tourism in general and hospitality in particular, which is complex and multi4faceted, where new needs are constantly emerging and are increasingly more sophisticated and difficult to satisfy. This work could be undertaken only by investigating the motive for the tourist contract or other hospitality contracts and all its various typologies, the identifying element that connects the various species to the genus whose prototype is the travel contract and the specific differences that distinguish the various contracts in this category. The motive for the tourist contract or other hospitality contracts, understood as “the function of paid hospitality” has a limit to its elasticity so that whenever we are in the presence of special services that go beyond those normally offered and which, for their cost, have a prevailing importance, the limit is exceeded and other contracts come into practice. This is the case of the hotelier who offers accommodation and conference organisation in relation to which the law has established two separate and connected contracts, one is the hotel contract and the other is mixed with elements of leasing and tendered services. The accommodation, the most important and prevailing element in hospitality contracts, can become a parallel or accessory component, in any case not the qualifying component, of a different contract (mixed or typical), even though it is supplied by the same subject in the same structure. In order to achieve a correct frame for the case in point in one or the other type of contract it is necessary to investigate the order of the interests agreed on by the parties involved, establishing the motive for the contract, on the basis of recent knowledge, understood as having an economic4individual function, a synthesis of what the parties intend to undertake, with the aim of attributing pre4eminence to one or another of the obligations. The hospitality contract can be the object of a distinct or autonomous stipulation or it can be one element of a “tourist package” subject to a travel contract. In this case the accommodation, in a hotel or in another structure assimilated to it, together with transport and any other services, is one element of the package, a unitary element and not the sum of elements that, combined with one another, become part of a whole. In this case the contracting parties are the organization or the seller of the package and the traveller: for any breach of promise by the hotelier, the consumer must refer to the seller of the package, except in the case where the latter has the right to make good his expenses at the cost of the hotelier. Having analyzed in detail the travel contract and the discipline of the sale of tourist packages, in light of the legal decree 111/95, having examined the various atypical cases, a study will follow of the possibility of extending the identified discipline of “New Hospitality” to all types of contract after having restored them to such a general contract. [edited by author]