BGH on the Corona accommodation ban: Hotel guests can claim their money back even if the rate cannot be canceled

In its ruling of March 6, 2024 (case no. VIII ZR 363/21), the Federal Court of Justice (BGH) decided that hotel guests are entitled to a refund of their accommodation fee if they are unable to use their booked rooms due to an official ban on accommodation. This applies even if the selected rate was originally considered non-cancellable.

The case concerned a woman who had booked several rooms in a hotel in Lüneburg for May 2020. After the state of Lower Saxony issued a ban on accommodation due to the COVID-19 pandemic, the hotel was no longer able to provide the booked rooms. The woman then sent an email a week before her planned stay demanding a refund of the room price she had already paid, but the hotel refused.

The woman then brought an action and obtained a judgment in favor of repayment before the Charlottenburg District Court and the Berlin Regional Court. The BGH confirmed this decision and awarded the woman a claim for reimbursement in accordance with Section 346 (1) BGB. The BGH argued that the woman was legally unable to make use of the hotel's services due to the ban on accommodation, as described in Section 275 (1) BGB.

The BGH also found that the woman could not reasonably be expected to wait for the ban to be lifted, as the time for this was not foreseeable due to the uncertain infection situation. Likewise, the woman's right to withdraw from the contract was not excluded pursuant to Section 326 (5) and Section 323 (6) BGB, as the inability to stay overnight was due to extensive government measures and not to circumstances relating to the woman herself.

Finally, the BGH also rejected the objection of frustration of contract pursuant to Section 313 (1) BGB, as the statutory provisions on the impossibility of performance are to be regarded as conclusive and therefore there is no room for the application of frustration of contract.