No room at the Inn

A Blog by Dr Sam Woods-Peel

The donkey stopped outside a large dimly lit building in the centre of Bethlehem. Joseph sighed and knocked on the door – they were here at last. After what seemed like an eternity, a man appeared at the door.

“We have a room booked”, said Joseph.

“What!” spluttered the innkeeper, “You can’t have – all the rooms are taken!”.

“But here is my confirmation from you. I booked and paid in full two weeks ago!” said Joseph, exasperated that his careful planning had not gone to plan. He waved the paper under the innkeeper’s nose, as Mary shifted uncomfortably on the donkey. 

“Ah”, said the innkeeper, “Then you have a problem. The terms and conditions of your booking were that you were to arrive before nightfall, or you would forfeit your room and booking fee.”

“What!!”, said a panicked Joseph, “I never read such a condition!”. 

The innkeeper smiled. “My terms are very clear. The booking process directed you to read my terms and conditions registered with the Bethlehem Tourist Board before you booked. If you had, you would have found this term at clause 127. Paragraph 12.”

“That’s not fair! I wasn’t in Bethlehem then, nobody would ever read that many clauses, and that is a very unusual clause. It is unfair and therefore not binding.” Joseph stood his ground. He may have been a carpenter, but he knew his exclusion clauses.

The innkeeper was getting worried – he didn’t like people who knew the law. “Look, it doesn’t matter what the contract says because we are still full. There is no room in the inn. However, in view of your situation”, the innkeeper nodded his head at Mary, still on the donkey, “I will let you stay in my stable for free”.

Mary could see Joseph was getting very angry. She slid off the donkey and said quietly, “Joseph, the baby is coming. We need to get settled”.

“OK”, said Joseph. “We’ll take it. But you haven’t heard the last of this!”.

The innkeeper smiled as he shut the door. Joseph and Mary would soon be very busy and forget all about it he thought….

            *********************************************************************************

Contracts are everywhere, from buying a ticket on a train, to booking a room online. It is wise to retain a little contract law in mind after graduation. However, just because ‘the law’ is on your side doesn’t mean you will get your full legal entitlement in the end. 

This point is illustrated by the case of Joseph and Mary. They had booked and paid for their room in an inn in Bethlehem in advance but were told the inn was full when they arrived. On the face of it, this would usually be a breach of contract – failure to provide a room contracted for. However, the innkeeper is seeking to rely on an exclusion clause – if the traveller does not arrive by nightfall, the room and fee was forfeit. This story is an ancient one, but had it been modern and in the UK, Joseph and Mary would seek to rely on the Consumer Rights Act 2015 (CRA).

Amongst other things, the CRA seeks to protect consumers from unfair contract terms. It does this by making an unfair terms not binding on the consumer (s. 62(1)). Whether or not a term is unfair is determined by s. 62(4) which states a term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations under the contract to the detriment of the consumer. Unfairness is to be determined under s. 62(5)(a) and in particular (b) by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract. 

Relying on s. 62(5)(b) Joseph will argue that such an important and unusual term should not be hidden at the end of a long document physically located at a Tourist Board office in a town where he was not. In addition, Schedule 2 contains a list of indicative terms which may be regarded as unfair, including in paragraph 10, any term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of reading before the conclusion of the contract. Given that the innkeeper’s terms and conditions were not available to Joseph when he made his booking, Joseph would have a good argument that the condition to arrive before nightfall was unfair and therefore not binding on him.

The conclusion that Joseph would have a good claim against the innkeeper for breach of contract is not the end of the story though. A good legal claim doesn’t help Mary give birth somewhere appropriate, hence Joseph’s decision to take the offer of a stable to stay in for free. Damages for a breach of contract are designed to put the claimant in the same financial position as if the contract had not been breached (Robinson v Harman (1848) 1 Ex 850, Ex Ct), so he could expect to receive the cost of his original room back. 

Joseph is also under an obligation to mitigate his losses. He could have got a room in another similar inn and claimed the cost of that as damages instead, but he would not have been able to check into the Bethlehem Ritz unless it really was the last room left in town. 

In general, damages for non-pecuniary losses, such as the inconvenience of sleeping in a stable as opposed to a proper room, are not awarded. Joseph’s only hope would be to argue his contract was for the purpose of enjoyment or relaxation, like in a holiday case, such as Jarvis v Swan Tours [1978] QB 233, CA. Joseph may not be able to argue this though, as his purpose for travelling to Bethlehem was not a holiday but to comply with a Roman decree requiring him to register at the city of his ancestor, David.

In short, Joseph probably has a claim for breach of contract by the innkeeper, who would not be able to rely on his exclusion clause under CRA 2015. Joseph would be entitled to damages, probably limited to the value of his original room. But taking legal action requires time, effort and usually money. Joseph may well have been too busy to commence this action with a new baby to look after and protect from Herod’s men. Legal actions require an arguable case, but also a will to pursue it. The lack of either would mean no action is taken. 

Dr Sam Woods-Peel is a Lecturer and Student Experience Manager at The Open University Law School.

Image: 'No Room at The Inn' by Margaret W Tarrant