240 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY Certainly, and according to this body of law, an entrepreneur or professional36 is a natural or legal person who, by himself or through a third party, carries out a professional or business activity, in his name, thus assuming the rights and obligations arising from that activity. To be considered as an entrepreneur or professional, and under Article 1 of the Commercial Code, it will be required legal capacity (being of legal age and having free disposal of his assets) and the habitual or professional performance of the activity in question. In addition, the commercial doctrine requires that the person acts in his own name37. This consideration of the owner or operator of the tourist or holiday homes as an entrepreneur attributes the condition of user and consumer to the other party to the contract, since such condition is obtained when the natural person (who will enjoy the accommodation, in our case) demands a good or service for his personal use, as the final recipient of the same, without integrating it into any professional or business activity Art. 3 of the revised text of the General Law for the Defence of Consumers and Users and other complementary laws (TRLGDCU). This implies, in any case, the application to the legal relationship that is substantiated, be it regulated by the Civil Code, based on the principle of freedom of agreement contained in Article 1255 of the aforementioned legal body, be it by Law 29/1994, of 24 November, of Urban Rentals (LAU) or as accommodation, with its limitations, in the case that this is considered to be the contract that underlies the sectorial regulation, the attribution of the consumer protection rules. Therefore, the relevance of this distinction lies in the legal regime that applies to the contractual relationship, since, although there will be no distinction in the rules to which the parties to the contract are subject, both in the case of a lease contract (LAU) and a lodging contract (CC), the guiding rules will be overridden when the lease or lodging relationship is concluded between pairs38. electrónica, p. 18, that such habituality is recognised by the Courts, as soon as the apartments are advertised or the accommodation is provided on two or more occasions within the same year, for a period exceeding one month, which will also make it possible to distinguish the accommodation contract from the holiday season rental contract. 36 Unification that perfectly assumes the Royal Legislative Decree 1/2007, of 16 November, which approves the Revised Text of the General Law for the Defence of Consumers and Users and other complementary laws. 37 About the concept of the entrepreneur, see a ROJO, A., “El empresario (I)”, en Lecciones de Derecho Mercantil, Menéndez, Aurelio y Rojo, Ángel (dir.), 17th ed., Aranzadi, Cizur Menor, 2019, pp. 45 et seq. 38 See, GONZÁLEZ CABRERA, I. & FONTICIELLA HERNÁNDEZ, B., “La doble condición del turista que utiliza las viviendas vacacionales en Canarias”, Diario La Ley, no. 9261, 18 September 2018, electronic ed.; and GONZÁLEZ CABRERA, I. & RODRÍGUEZ GONZÁLEZ, Mª. P., “El futuro de las viviendas vacacionales en Canarias y la necesaria modificación de su actual regulación jurídica”, in La regulación del alojamiento colaborativo. Viviendas de uso turístico y alquiler de corta estancia en el Derecho Español, Ana María de la Encarnación (dir.), Aranzadi, Cizur Menor, 2018, pp. 407-426.
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