1. The problem
The five provisions of the 15th title of Book II, section 8, of the Bürgerliches Gesetzbuch (BGB) concern bringing property into inns. The central issue dealt with in these provisions is the establishment of an independent regime of liability for the loss or destruction of property brought into an inn, or for damage done to such property (§§ 701–704 BGB). This type of liability regime can also be found in most other continental European codifications (Art 1952 ff Code civil; §§ 970–970c Allgemeines Bürgerliches Gesetzbuch (ABGB) as well as the Innkeepers’ Liability Statute of 16 April 1921; Art 487 ff Swiss Code of Obligations (OR); Art 834 ff Astikos Kodikas; Art 1783 ff Codice civile; Art 1783 f Spanish Código civil; Art 7:609 Burgerlijk Wetboek (BW); there are no such special rules concerning innkeepers’ liability in the Portuguese Código civil). Its tradition stretches back to the receptum liability of Roman law, which was subsequently received into the European ius commune.
The concern motivating these rules can, at an abstract level, be easily stated. The guest usually has no insight into the operation of the business into which he brings his property, much less can he control it. If he had to bear ‘the burden of proving the breach of a contractual obligation by the innkeeper in the normal manner’ (Motive to the BGB) in order to obtain compensation, he would very often be without any legal protection. The liability regime is thus intended, in the first place, to deal with a specific difficulty on the level of the burden of proof with which the guest is faced. This is a convincing idea, in Rome as much as in early modern Europe or today. At the same time, however, a number of consequential problems arise, among them, in particular, the need to establish reasonable limits for the innkeeper’s exposure to liability. For the latter also faces a dilemma insofar as he often does not know, and cannot assess, the value of the property brought onto his premises by his guests. If that property gets lost, it is difficult for him to defend himself against whatever his guests may choose to assert.
2. The receptum nautarum cauponum stabulariorum
In view of the fact that innkeepers appear to have given a special guarantee for the safety of the property brought to the inn by their guests when concluding the contract with them (recipere res salvas fore), the praetor began, in the first or second century BC, to grant an action against the innkeeper on the basis of such a guarantee (Ulp. D. 4,9,1 pr.). The same applied to stable keepers (stabularii) and sea carriers (nautae). The members of these professions, therefore, were liable regardless of fault. Originally this liability was unlimited. Labeo recommended, however, that a defence should be granted to the shipowner on grounds of equity if he had lost the goods entrusted to him through shipwreck or attack by pirates. This defence was soon expanded to cover other cases of vis major and also extended to the liability of innkeepers and stable keepers. The so-called receptum nautarum cauponum stabulariorum thus essentially corresponded with the standard of liability, for which the term custodia has been adopted in the literature on Roman law (Gai. D. 4,9,5 pr.). In the course of time the aforementioned guarantee increasingly became incorporated as a matter of course, until finally it was simply read into the contract, unless the innkeeper, stable keeper, or sea carrier had expressly excluded his liability (which remained possible: Ulp. D. 4,9,7 f.). What had once been merely an accidentale negotii became, for all intents and purposes, one of the naturalia of contracts for accommodation, stabling, or sea carriage.
At two points in the relevant title of the Digest (Corpus Juris Civilis), Ulpian discusses the grounds which induced the praetor to grant an action de recepto against nautae, caupones, and stabularii. This edictal promise of an action was ‘of the greatest benefit’, since it was often necessary ‘to rely on the trustworthiness of these persons and to entrust property into their custody’. Without the strict liability, it would have been easy for them ‘to make common cause with thieves’ (Ulp. D. 4,9,1,1). In another passage, Ulpian cites Pomponius who thought that the praetor wanted to make it clear to ‘people of this sort’ that he was taking care to repress their dishonesty (Ulp. D. 4,9,3,1). Both texts confirm the low social standing of the affected professions. Moreover, their members were in positions which could easily be abused.
Justinian preserved this legal situation essentially unaltered. He also transmitted to posterity a number of disputes enveloping the receptum liability. These disputes focused primarily on the sea transport variant which was obviously the most important one.
3. Usus modernus
Unlike in Rome, the profession of the innkeeper in early modern Europe was no longer suspect and socially inferior; keepers of the leading establishments could belong to the gentry in their town and hold public office. In the light of this development, the continuing application of the strict receptum liability was no longer self-evident, although it remained recognized by the vast majority of contemporary authors. Since it spared the guest the burden of proving fault on the part of the innkeeper, the praetorian edict was etiam hodie … utilissimum (Samuel Stryk). Indeed, under the usus modernus it was often even applied to postmasters and (public) coachmen, and sometimes also to carriage by land in general. The standard of liability was not infrequently described as culpa levissima. That term had been coined by the glossators as a means of describing by way of fault-based terminology what had effectively been risk rules in Roman law, among them in particular the custodia liability. This was facilitated by the far-reaching, subjective standards (exactissima diligentia, diligentissimus pater familias) imported already by Justinian into the Roman sources in order to define the classical custodia liability. The glossators thus laid the foundations for the tripartite division of fault which characterized the system of liability under the ius commune (culpa lata, culpa levis, culpa levissima). As a result, inter alia, the definition of vis major, ie the criterion that had been used to limit liability, became shrouded in uncertainty.
4. Receptum liability in Germany and in the common law
As was stated by the famous commercial lawyer Levin Goldschmidt in 1860, the ‘Roman theory of receptum has, without doubt, passed into the practice and the codes of western Europe, and, in particular, it has become an integral part of our German common law’. There has also, incidentally, always been, since Navenby v Lassels  YB 42 Lib Ass f 260 pl 17, a special liability regime for innkeepers in England (common law), which was (and is) more stringent than the normal standard of liability. Courts and legal doctrine in England, in a process of development stretching over several centuries, had to deal with the same problems as their continental counterparts, and usually solved them in a very similar manner. It is not always easy to say whether the correspondence in result and argument is due to the very similar cultural, social and economic circumstances, or whether ideas from the ius commune were received into English law (as indeed they were in Coggs v Barnard  92 ER 107 and in Sir William Jones’ well-known treatise on ‘The Law of Bailments’ (1781)). At the very least, however, it can be stated that the English development did not take place in complete isolation from continental European law.
In Germany, the innkeepers’ receptum liability continued to be applied until the BGB entered into force, where it survived in statutory form (§§ 701 ff BGB). For the various forms of transport, a uniform legislative treatment following the model of receptum liability had been achieved in the General German Commercial Code (ADHGB, 1861); a specific liability regime concerning stable keepers does not seem to have been regarded as necessary any longer. Towards the end of the 19th century the innkeepers’ liability became the main battlefield concerning the concept of vis major in Germany, with Levin Goldschmidt (who argued that the concept of vis major included events that could not have been avoided even by the most diligent care to be expected in the circumstances: subjective theory) and Adolf Exner (who defined vis major as events that (i) by virtue of their character and impact are clearly beyond the hazards to be expected in the normal course of life and (ii) whose cause is outside the ‘sphere of control’ of the person running the respective business: objective theory) as protagonists before, in the course of the 20th century, the courts eventually decided to take a middle line. Cases concerning innkeepers also played a central role in the development of the Abschlusskontrolle of standard contract terms (how do such terms become part of the contract concluded between the innkeeper and his guest?; the problem arose, for example, in cases where the terms had been posted in the guest’s room). The draftsmen of the BGB eventually decided to deny ‘any legal effect’ to such notices. Innkeepers therefore sought to find other standardized ways to limit their liability, in particular by means of Hotelrevers (an indemnity form to be signed by the guest when checking into the hotel). A reform statute of 1966, which forbade exclusion of the innkeepers’ liability, marked a turning point in this respect.
5. The 1962 Council of Europe Convention
That reform statute can be traced back to the Council of Europe Convention on the Liability of Hotel-keepers concerning the Property of their Guests of 17 December 1962. In addition to West Germany, it was signed and ratified by the United Kingdom, France, Ireland, Italy, Luxembourg, Belgium, Malta, Cyprus, Poland, and Lithuania, and it is also applicable in the successor states of the former Yugoslavia. We are dealing here with the first successful effort of European legal harmonization in a central area of private law. A draft had previously (in 1935) been presented by UNIDROIT in Rome, but it was not followed up because of World War II. The British Hotel Proprietors Act 1956 was the first national reform initiative after the war and its main features corresponded with those of the Rome draft. (The traditional term ‘innkeeper’ had by now been replaced by the more modern ‘hotel-keeper’.) In the following year a committee of experts appointed by the Council of Europe began to work on a model statute which was ultimately attached to the Convention as an annex; naturally the Rome draft and the new British statute played an important role in this process. The Convention did not establish a uniform European law; instead, it had the character of a ‘minimum convention’: the contracting states remained free to impose a more extensive liability on hotel-keepers. Also, in a range of precisely determined questions of detail the contracting states were allowed to depart from the provisions of the model law. The German legislature has done so in two instances. However, in central respects, the rules concerning hotel-keepers’ liability in the majority of the ‘old’ EU Member States are in conformity with each other: they impose a liability which is not based on fault and which, in principle, cannot be excluded. The downside of this very convenient regime (for the guest) is that there is normally a ceiling for the sum total that can be claimed on account of the innkeepers’ liability rules. Liability is unlimited if the loss, destruction, or damage was due to the fault of the hotel-keeper or one of his staff, or if it affects an item handed over to the hotel-keeper for safekeeping, or an item which he has refused to accept for safekeeping in spite of being obliged to do so. The hotel-keeper is usually obliged to accept custody of securities, money and valuables; this does not apply if these items are dangerous or if, in view of the size and standing of the hotel, they are of excessive value or cumbersome. The guest loses his claim if he does not, without undue delay, give notice of the loss to the hotel-keeper promptly after having discovered the damage, destruction, or loss. The hotel-keeper is not liable insofar as the damage, destruction, or loss is caused by the guest, or by any person accompanying him or in his employment or visiting him, by vis major, or by the nature of the property itself.
6. Problems of interpretation
The Council of Europe and the states which have ratified the Convention regard unified, pan-European rules on liability as desirable, at least in principle; the main motivation is to guarantee minimum standards on which the guest can rely. There were and are good grounds for legal unification in this area of the law. International holiday and business travel are economically very important; and it is doubtless comforting for every traveller to know that during his stay abroad he has adequate protection irrespective of national borders. However, the unification sought by the Convention is threatened if the contracting states continue to apply their national laws in isolation from one another. Unfortunately, that largely appears to be the case. Although the Convention itself sometimes specifies the terms it uses (eg the property that has to be regarded as having been brought into the hotel) the definition of many other terms is left to national courts; and these national courts do not normally adopt a comparative approach. So, for example, the German concept of a Gastwirt is not identical with its English equivalents (innkeeper or hotel-keeper). The Council of Europe’s expert committee had already stated in its deliberations that views across Europe differed widely as to the meaning of the concept of an innkeeper; nevertheless the committee avoided a definition because it believed that no agreement could be reached on that point. A further example of general significance is the concept of vis major. The term used in the German version of the Convention as well as in the BGB (höhere Gewalt) is taken to mean that the liability of the innkeeper is excluded if the damage has been caused by an event external to the hotel, which could not have been foreseen and avoided. Armed robbery, arson, and rioting all belong to this class of events. The English version, on the other hand, speaks of an unforeseeable and irresistible act of nature, or an act of war. It is obvious that this formulation is simply a linguistic modification of the classic grounds for excluding liability (act of God, and act of the King’s enemies). Likewise, it is clear that the English concept is narrower than the German one of höhere Gewalt.
The innkeeper’s liability offers an interesting testimony to European legal unity—a unity that is historically grounded and that has, at least partially, been recovered by modern efforts at legal harmonization. Apart from that, the idea underlying the receptum liability appears to be particularly topical at a time when no-fault liability is, once again, being accorded considerable significance for the fair distribution of loss, both between contracting parties and in extra-contractual relations (strict liability).
Wolfgang Adam Lauterbach, Tractatio synoptica de nautis, cauponibus et stabulariis, Dissertatio in Academia Tubingensi, respondendo Johannes Peilicke (1676), edition Halle/ Magdeburg (1740); Christian Friedrich Glück, Ausführliche Erläuterung der Pandecten nach Hellfeld, vol 6 (1800) 106–144; Levin Goldschmidt, ‘Das receptum nautarum, cauponum, stabulariorum: Eine geschichtlich-dogmatische Abhandlung’ (1860) 3 ZHR 58–118, 331–385; Adolf Exner, Der Begriff der höheren Gewalt (vis major) im römischen und heutigen Verkehrsrecht (1883); J Chaubert, La responsabilité civile de l’hôtelier à raison des effets apportés par le voyageur: Droit français, allemand et suisse (1915); Ernst von Caemmerer, ‘Höhere Gewalt’ in F Schlegelberger (ed), Rechtsvergleichendes Handwörterbuch für das Zivil- und Handelsrecht des In- und Auslandes, vol IV (1933), 239–267; Hans-Joachim Hoffmann, Die Abstufung der Fahrlässigkeit in der Rechtsgeschichte (1968); Jürgen Detig, Die Konvention des Europarats über die Gastwirtshaftung und die deutsche Novelle zu den §§ 701 ff BGB (1969); Reinhard Zimmermann, ‘Die Geschichte der Gastwirtshaftung in Deutschland’ in Hans-Peter Haferkamp and Tilman Repgen (eds), Usus modernus pandectarum: Römisches Recht, Deutsches Recht und Naturrecht in der Frühen Neuzeit (2007) 271–339; Reinhard Zimmermann, ‘Innkeepers’ liability—Die Entwicklung der Gastwirtshaftung in England’ in Festschrift Claus-Wilhelm Canaris (2007) 1435.