Gastronomy Law

Special number of International Journal of Travel Tourism and Hospitality Law (IJTTHL). ISBN 978-989-9066-31-1 ISSN 2184-8793 ISSNe 2975-9056 All Rights Reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher. A written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. This work is published for general guidance only and is not intended as a substitute for professional advice. While every precaution has been taken in the preparation of the text, the publishers and authors can accept no responsibility for the consequences of any errors, however caused. This edition was published in 2025 by ESHTE, alongside other universities and institutions. South American Chapter number of International Journal of Travel Tourism and Hospitality Law (IJTTHL). N 978-989-9066-16-8 N 2184-8793 Ne 2975-9056 Rights Reserved. No part of this book may be reproduced or utilized in any form ny means, electronic or mechanical, including photocopying, recording, or by any tion storage and retrieval system, without permission in writing from the publisher. n permission must also be obtained before any part of this publication is stored in a system of any nature. work is published for general guidance only and is not intended as a substitute for onal advice. While every precaution has been taken in the preparation of the text, lishers and authors can accept no responsibility for the consequences of any errors, caused. edition was published in 2024 by ESHTE, alongside other universities and ons. South American Chapter

Contents Part I – Foundations and General Framework Alejandro Corral Sastre Administrative control in the “high quality” gastronomic offer 1 Chiara Tincani Restaurant contracts and gastronomy 21 Vincenzo Franceschelli, Sara d´Urso, Alessandra Corrado Italy, Food, Contracts 33 Apostolos Tassikas The (restaurant) catering contract in tourism 61 Tatjana Josipović No-show clause in restaurant service contracts 115 Valérie Augros Legal protection of gastronomy in France: How to protect and promote gastronomy? 133 Part II – Food Safety, Liability and Labour Relations Ana Branca Soeiro de Carvalho, Susana MSR Fonseca, Ana Guia, Carlos Lopes The importance of the general objectives of the Food and Feed Law 141 Filippo Moreschi The restaurateur and the customer’s health: food preservation, restaurant safety, liability: the Italian point of view 155 Katja Štemberger Brizani Responsibility for Vegan Dishes in Gastronomy 167

João Almeida Vidal The civil liability of bars and restaurants for the excessive supply of alcohol to their clients 179 Michael Wukoschitz Liability Issues in the Gastronomy Sector 189 Enrico Gragnoli Hospitality businesses, gastronomy and labour relations 201 Part III – Intellectual Property and Creative Protection in Gastronomy Paola Gelato, Stefano Vergano Protection of recipes and taste under Italian law 209 Maria Victória Rocha How to protect Food Presentation by Intellectual Property 217 Cesare Galli The protection of food creations: food design, food lighting and food patenting as the new frontier for gastronomy and food process industry 265 Matija Damjan Trademark and copyright protection for scent and flavour of food products 273 Giorgi Amiranashvili Intellectual Property Rights and Gastronomic Tourism in Georgia 293 Sheila Sánchez Bergara, Alan Quaglieri Domínguez Exploring the Interplay of Intellectual Property, Gastronomy, and Territorial Revitalization: Insights from the Corippo Albergo Diffuso Case Study 303 Part IV – Quality, Origin and Tradition Mauro Rosati Turismo DOP: Authenticity, Education, and Sustainability as Levers for Territorial Development 315

Ermenegildo Mario Appiano Foodstuff Tradition protection: EU law on Traditional specialities guaranteed and UNESCO Intangible Cultural Heritage 329 Christine Lebel Law and Gastronomy in light of Regulation (EU) 2024/1143 of the European Parliament and of the Council of 11 April 2024 on geographical indications for wine, spirit drinks and agricultural products, as well as on traditional specialities guaranteed and optional quality terms for agricultural products 365 Francesco Torchia Protection of Traditional Specialty Guaranteed (TSG) in the EU: What novelties result from Regulation (EU) 2024/1143? 377 Stefania Pedrabissi Quality food production: between protection needs and the safeguarding of the free market 395 Stefania Vasta Territory and Gastronomic Products of Excellence: an Indissoluble Union 407 Part V – Sustainability, Tourism, Fiscal Policy and Ethical Practices Mohamed Kayal Sustainable Food Practices and Legal Regulations in Tourism/Sustainable Tourism 417 Francesco Gaspari, Luigi Cameriero Water Governance and Right to Food 429 Nada Dollani Sustainable Gastronomy in Albania — The Need for Coherent Legal Integration of Agriculture, Food Quality Schemes, Tourism, and Intangible Cultural Heritage 467 Dimitrios Mylonopoulos, Polyxeni Moira The Integration of the Greek Gastronomic Identity and Philosophy into the Modern Tourism-Cultural Product 487

Paola Costanza Domenica De Pascalis The fiscal dimension of starred restaurants: aligning tourism, sustainability, and governance 513 Paola Milioto The tax regime of gastronomy, between tourism, cultural heritage and excellent agri-food products 523 Part VI – Consumer Protection and Fair Commercial Practices Karolina Pruchniewicz The Regulation of Restaurant Services Consumed On-Site in EU Consumer Law 541 Angelo Venchiarutti Fake and paid-for online reviews and protection of hotels, restaurants and tourists 555 Pedro Dias Venâncio Fair competition in the ranking of commercial establishments on digital platforms 569 Rui Aurélio De Lacerda Badaró Freedom of Access to Restaurants 585 Afonso Ribeiro Café Restaurant Classification in Tourism: Regulation, Technical Standards and European Harmonization 603 Freddy A. Hung Gil, Anabel González Fernández Greenwashing, labelling and consumer protection 615 Part VII – National and Regional Perspectives Duilio Cortassa Gastronomy Law in Italy Legal Framework, Regulations, and Impact on Culinary Practices 627 Klára Dvořáková, Johan Remeš Legal minimum requirements for operating a restaurant in the Czech Republic and further gastronomy related practical legal issues 645

Jolanta Vilkevičiūtė Gastronomy Law in Lithuania – current issues of legal regulation today 657 Ilie Dumitru Legal and economic realities regarding the establishment and functioning of local gastronomic points – Romania 2024 675 Gonzalo A. Casanova Ferro Legal Framework of Gastronomy in Argentina 683 Adriana Romero Gastronomic Legislation in Argentina: Regulations, Case Studies, and Perspectives 703 Oscar Cruz Barney Gastronomic Law in Mexico: Protection of tradition and culinary culture 713 Carlos Eduardo Armas Morales Legality and gastronomic regulation of Traditional Specialties Guaranteed: The case of Peru 729

General Introduction In 2021, we published Wine Law1; in 2024, Wine Tourism Law2; and the trilogy was completed in 2025 with the current publication, Gastronomy Law. Gastronomy has always been more than just nourishment: it is a manifestation of culture, identity, creativity, and economy. Yet, for decades, the law remained a silent observer of this domain, regulating food production and safety but seldom addressing the broader aspects of culinary expression, tradition, and innovation. Therefore, one of the pioneers of Droit de la Gastronomie, Jean-Paul Branlard, ironically notes: “Literature has been very busy with cooking. As a jurist, we’ll add a little… Cooking is still the victim of base and deplorable prejudices. Academic jurists are hardly interested in this “feminine” art. Writing about a culinary subject is already a mistake... in taste. At most, it’s something that piques curiosity and then suffers a serious depreciation in the stock market of intellectual values. Chance and destiny, always linked, have decided that I should write about table talk, placing gastronomy in the spotlight of law. One could certainly have made a worse choice. It’s better to be unclassifiable than poorly classified. In law schools, we find researchers; we look for “finders” (we’re obviously simplifying). The gods of cooking have not yet leaned over their cradles. Yet, it doesn’t take a particularly observant mind to notice that in France, restaurants regularly attract a larger clientele than churches and university conferences.3 In a 1997 interview (La vie judiciaire), this French author, awarded by the International Academy of Gastronomy, was asked about the existence of Gastronomy Law. He stated that it could be said so, even though there was still no national and binding codification of the laws governing gastronomy, this law had its roots, more or less directly, in all branches of the country’s legal system, starting with civil law, which, for example, regulates ad gustum sales4. 1 https://publications.eshte.pt/dir/wl/wl/ 2 https://tourismlaw.pt/wine-tourism-law-was-launched/ 3 La Gastonomie, Une aproche juridique, Paris 2010, p. 5. In the author’s work on gastronomy law, the following books stand out: - Droit et gastronomie. Aspect juridique de l’alimentation et des produits gourmands. - La table & le droit, LexisNexis, 2014. - Petit lexique des grandes inventions de la gastronomie, LexisNexis, 2015. - La marmite du juriste, LexisNexis, 2017. 4 Article 1587 of the French Civil Code states: “With regard to wine, oil, and other things that are customarily tasted

He added that commercial law also plays an important role, as its texts regulate sales and, above all, fair and consistent practices recognised by the courts, especially concerning culinary recipes. He also noted that administrative, rural, and tax law are similarly decisive. The challenge was mastering all these rules, scattered across different levels — global, community, and national — and synthesising them for application in France to various products. He explained that this was how it had been demonstrated that there were laws governing shrimp, cod, wine, and candy. He pointed out that the Consumer Code, which has existed in France since 1993, incorporates the 1905 law on fraud and falsification, representing a significant contribution, although many other laws still apply, such as the Penal Code and the Public Health Code. Branlard highlighted that gastronomy law was both written and largely based on custom and case law, including numerous para-regulatory texts such as ministerial circulars and decisions of the Direction générale de la concurrence, de la consommation et de la répression des fraudes. He noted that the Fraud Service “made” food law in the sense that its opinions were closely followed by manufacturers and often applied by the courts. before being purchased, there is no sale until the buyer has tasted and approved them.” Vente à degustation (emptio add gustum) or by approval, often referred to rather unhappily as “by approval,” is analysed as a unilateral promise of sale. Any ambiguity regarding the tasting must first be resolved. This is in no way a tasting prior to the sale, which is ultimately only a part of the negotiations. The specificity of the sale by tasting is that the principle of the contract is established, but without the contract being formed, the buyer reserves the right to assess the item and see if it is to their liking. The buyer’s subjective decision is entirely free. The French Supreme Court (Cour de Cassation) ruled that Article 1587 applies automatically, at least for the commodities covered (wine and oil): provided that no explicit or implicit stipulation in the contract excludes it, and that there is no contrary usage, approval of the thing is automatic (obviously for wholesale sales); mere silence regarding it cannot constitute a waiver. The consequence of a refusal is that the sales contract becomes null and void, and any deposits must be refunded. The statement in the contract that the goods must be of “fair and merchantable” quality in principle excludes approval, because this quality is assessed objectively and not subjectively (Dalloz, 3112, Contrat et période précontractuelle, page 1242, 3112.176). As Norbert Olszak notes, it is uncommon to find case law on Article 1587 of the Civil Code concerning sales by tasting, and even rarer to encounter a case where a refusal of approval after tasting is the main issue. Indeed, Article 1587 is frequently invoked even when nothing has been tasted, for example, to determine who bears the loss of goods, to justify a failure to deliver or even to contest the territorial jurisdiction of a court in cases of fraud (Recueil Dalloz 2001, 729). Since, according to the plain text, there is no sale before tasting and approval for wine, oil, and “other things that one is accustomed to tasting before purchasing,” it becomes possible to identify the owner who bears the risk. This is how the application of the principle was claimed for oats or butter, not to actually taste these products, which had moreover perished, but to exclude their property. Article 1453 of the Spanish Civil Code also states that the sale made as a trial or test of the thing sold, and the sale of things that are customarily tasted or tested before receiving them, will always be presumed to be made under a suspensive condition. XIV

He concluded by noting that this body of law was difficult to study because there were no large-scale works on the subject, but he reminded that its origins date back to Antiquity, with texts concerning fraud and falsification. It was, however, at the beginning of the 20th century, with the significant 1905 law, that modern food law truly emerged, initially aimed at protecting producers and traders, with consumer protection coming later. In recent years, however, the intersection between law and gastronomy has become a fertile ground for academic research, policymaking, and industry transformation. The rise of Gastronomy Law as an autonomous discipline reflects this development, incorporating elements of food law, cultural heritage, intellectual property, labour relations, tourism, and sustainability. How the book was organized This collective volume, titled Gastronomy Law, gathers scholars and practitioners from various jurisdictions — notably across Europe and Latin America — to chart the boundaries of this emerging legal field. By examining how law influences, safeguards, and fosters gastronomy, the book aims to develop a coherent framework that links public regulation, private governance, and cultural policy. I. From Food Law to Gastronomy Law While food law traditionally focuses on health, safety, and consumer protection, gastronomy law encompasses a broader spectrum: it deals with the legal treatment of restaurants, chefs, recipes, food design, and culinary creativity. It also examines how the law preserves and promotes traditional food knowledge, geographical indications, and the intangible heritage associated with culinary practices. Thus, Gastronomy Law is both an extension and a transformation of food law — incorporating the aesthetic, cultural, and economic dimensions of gastronomy into a legal discourse. II. A Multidisciplinary and International Perspective The structure of this volume mirrors the diversity of approaches required to understand gastronomy as a legal object. The first parts address foundational questions of governance, administrative control, and contractual relations within the hospitality sector. Subsequent sections explore liability, labour, and XV

consumer protection, before turning to the intricate domain of intellectual property and creativity in cuisine — including the protection of taste, recipes, and design. Equally significant is the comparative perspective offered by the contributors. European scholars analyse how the European Union’s regulatory framework, including the recent Regulation (EU) 2024/1143, reshapes the protection of geographical indications and traditional specialities. At the same time, authors from Argentina, Mexico, and Peru offer insights into the development of gastronomic law in Latin America, highlighting the intersection between culinary identity, economic development, and cultural diplomacy. III. Sustainability, Tourism, and Cultural Identity Another key theme of Gastronomy Law is the integration of gastronomy into broader policies of sustainability and tourism. Gastronomy plays a crucial role in promoting sustainable food systems, local economies, and responsible tourism. The legal framework governing restaurants, labelling, and consumer information now increasingly incorporates environmental and ethical dimensions. The chapters addressing greenwashing, sustainable tourism, and the protection of traditional food practices illustrate the necessity of coherent, cross-sectoral regulation. Gastronomy also constitutes a bridge between tangible and intangible cultural heritage. Legal mechanisms such as UNESCO listings and EU quality schemes reveal how gastronomy can serve as both a cultural resource and a regulatory challenge. Balancing authenticity, innovation, and market freedom remains one of the central questions explored in this book. IV. Building a Coherent Field As the chapters demonstrate, Gastronomy Law is not yet a codified body of rules but a dynamic and evolving field of study. It requires dialogue between jurists, economists, chefs, policymakers, and cultural theorists. This volume aims to provide that dialogue, offering both theoretical reflection and practical analysis. Ultimately, Gastronomy Law seeks to answer a simple but profound question: how can law contribute to preserving culinary heritage, encouraging creativity, XVI

and ensuring that gastronomy — as art, industry, and culture — develops in a fair, sustainable, and inclusive manner? Editor’s Note: This book is the result of a multidisciplinary and international collaboration, uniting legal scholars and professionals committed to the development of Tourism, Travel and Hospitality Law. Gastronomy Law: The Legal Architecture of Culinary Practices In recent decades, the development of the food and restaurant sector has created a complex network of contractual relationships that are largely unregulated by traditional legal frameworks. From catering and banqueting to franchising and restaurant vouchers, these arrangements—though common and economically important—often are classified as atypical contracts. That is, they do not match the standard contract types codified in civil law but have instead originated and developed through commercial custom and business practice. This phenomenon illustrates a broader legal principle fundamental to modern contract law: the freedom of contract. Parties in the hospitality sector—especially entrepreneurs—are given considerable latitude to create, modify, and innovate contractual arrangements tailored to their specific operational and commercial needs. Consequently, the legal landscape of gastronomy has largely evolved from the ground up, driven by market forces rather than legislative intervention. The restaurant contract, in particular, exemplifies these emerging forms. It is a mixed contract, often combining elements of service provision, sales, supply, and occasionally even real estate or employment law. Its legal nature defies simple categorisation, yet it plays a central role in defining the obligations, responsibilities, and protections inherent in modern gastronomic transactions. Despite its economic relevance, the restaurant contract remains unregulated in the French, German or Italian Civil Code and most other civil law systems, occupying a legal grey area where interpretation often depends on judicial discretion and analogy with typical contracts. Legal scholars have focused less on formal classification and more on the concrete effects of such contracts, especially regarding consumer protection, entrepreneurial obligations, and the balance of interests in the food services sector. Historically, the legal challenge of addressing atypical contracts is not new. In Roman law, only a limited number of contracts were recognized and enforceable. However, as commercial life grew more complex, jurists began to recognize XVII

«nova negotia”—new business transactions that, though not formally codified, were deserving of legal recognition and protection. This same dynamic can be observed in today’s gastronomic contracts: legal forms emerge from practice, are validated by usage, and only later—if at all—receive formal legislative attention. The aim of this book, Gastronomy Law, is to explore and clarify the legal underpinnings of the modern food and restaurant industry, with particular attention to how contract law has adapted—or failed to adapt—to the needs of contemporary culinary businesses. By examining the contractual forms most commonly used in gastronomy, analyzing the principles that govern them, and considering their evolution through both doctrine and case law, this work seeks to offer a comprehensive framework for understanding how law interacts with one of the most culturally and economically vibrant sectors of our time. In doing so, it acknowledges the tension between legal tradition and commercial innovation, and calls for a more responsive legal system—one capable of recognizing and regulating the complex contractual realities that underpin the world of gastronomy. The restaurant contract is considered a mixed or hybrid contract, combining features of a contract for work, a service contract, and, in some respects, sales or supply contracts. Its central purpose is the provision of meals and beverages, together with table service and any ancillary amenities, in exchange for monetary payment. The restaurateur, acting as an entrepreneur, undertakes to organize the necessary resources, manage staff and materials at their own risk, and deliver a result that satisfies the customer’s personal or economic needs. In legal doctrine, this type of agreement is often assimilated to a contract for work since it involves the execution of a service or work by the contractor in return for a fee. However, the restaurant contract differs from a pure sales contract because its essence lies not merely in transferring goods (food and drinks) but in providing a complex service that integrates preparation, presentation, and consumption. The entrepreneur’s skill, organization, and gastronomic knowledge are the predominant elements, distinguishing it from the mere supply of goods. A restaurant contract can therefore be defined as an agreement whereby one party—the restaurant owner—commits to another—the customer—to provide food and beverages, usually in the same premises where they are prepared, in exchange for payment. The contract’s essential legal components are the agreement, cause, object, and form. XVIII

Agreement (Consent): The contract arises from the mutual consent of the restaurateur and the customer. The restaurateur’s offer (e.g., a menu or display of dishes) and the customer’s acceptance (the order) constitute the formation of the contract. The law requires correspondence between the parties’ declarations of intent for the agreement to be valid. A menu or price list is generally viewed as an invitation to offer rather than a binding proposal, since the restaurateur remains free to accept or refuse service. Acceptance must correspond to the offer and occur within a reasonable time. The customer’s order, once accepted, becomes binding, though minor errors or changes may be tolerated according to good faith. Cause (Purpose): The cause of the restaurant contract lies in the reciprocal exchange between the restaurateur’s provision of a service and the customer’s payment. It is a contract for consideration, where both parties incur obligations: the restaurateur must deliver the meal and associated services; the customer must pay the agreed price. The cause must be lawful and justifiable; otherwise, the contract is void. The subjective reasons motivating the customer (such as celebrating an event or tasting a speciality) have no legal relevance as long as the contractual cause itself remains legitimate. Object (Content): The object of the contract includes the service provided—preparation and serving of food and beverages—and the price to be paid. The object must be lawful, possible, determined, or at least determinable. The restaurateur’s obligation is one of result, meaning that the service must be properly executed to fulfill the contract. Prices must be displayed clearly, as required by public safety and consumer protection regulations, and payment may be made by cash, card, or other means accepted by the establishment. Form: The restaurant contract does not require any special formality. It is usually oral or implied through conduct (e.g., ordering a dish, self-service). Written documentation is not essential for validity. In self-service or vending contexts, the contract is perfected through conclusive conduct, meaning that the customer’s actions (selecting and paying for food) suffice to establish the agreement. Under the European Consumer Codes, the customer is legally recognised as the weaker party and enjoys rights to information, withdrawal, and compensation XIX

for damages resulting from poor or incomplete performance. The Consumer Codes emphasise transparency and fairness in commercial relations between the restaurateur and consumer, forming the foundation of modern consumer law in the catering industry. The restaurant entrepreneur is anyone who professionally conducts an organized economic activity aimed at producing or exchanging goods or services. The restaurateur’s activity meets these criteria: it involves professional organisation, continuous production, and commercial risk-taking. A restaurant business may operate as a sole proprietorship, family enterprise, partnership, or company, depending on its size, resources, and scope. Entrepreneurial status arises from the organization of the business, not merely from its public opening. Restaurateurs must comply with obligations such as registration in the business register, accounting, use of trademarks, and adherence to bankruptcy laws if insolvency occurs. Certain legal limitations apply: minors or incapacitated persons may continue but not start a restaurant business, unless authorised by a court. In practice, this allows the continuation of family-run enterprises under judicial supervision. In conclusion, the restaurant contract represents a reciprocal, service-based legal relationship combining various contractual elements to regulate the exchange between a professional entrepreneur and a consumer. Its hybrid nature reflects the dual character of restaurant activity—simultaneously productive (preparing food) and service-oriented (serving customers)—making it a central model in the law governing hospitality and consumer transactions. XX

An overview of German case law I. Legal nature of the accommodation contract. Important reason for immediate termination The legal relationship between a guest, on the one hand, and the restaurateur or hotelkeeper, on the other, known as a guest accommodation contract, constitutes a mixed contract of a special kind. It essentially combines elements of a contract for services, possibly a contract for work, and a contract of sale. Defective service by the serving staff to a guest can, in principle, justify immediate termination of the accommodation contract without notice. However, the determination of what constitutes defective service must always be judged in relation to the nature and reputation of the specific restaurant or hotel. In the present case (Garmisch-Partenkirchen District Court, Judgment of October 23, 1968 - 3 C 127/68), the plaintiff was the owner of the Hotel M. in G., one of the leading establishments in the area. On 11 February 1968, at around 10 p.m., the defendant entered the hotel restaurant with his wife and ordered a three-quarter-litre bottle of 1966 Erbacher Markobrunn Riesling Spätlese priced at 18.50 DM. The waiter retrieved the bottle from the wine cellar, where the temperature was about 15 degrees Celsius, and placed it in an ice bucket with water and ice pieces before serving the wine to the defendant. After tasting, the defendant complained that the wine was too warm. The waiter called the head waiter, to whom the defendant repeated his complaint. During the discussion, the head waiter commented, “Do you believe our wine is kept in an icebox?” Following this exchange, the defendant and his wife left the premises. The plaintiff then brought an action to recover the cost of the bottle of wine. The court dismissed the case. It found that the contractual relationship between the parties was a guest accommodation contract, a type not explicitly regulated in the German Civil Code (BGB) but recognised by both jurisprudence and doctrine as a mixed contract sui generis. Such a contract, formed between a guest and a restaurant or hotel for the provision of food and beverages, includes

the essential elements of a service, work, and sales contract. Unlike the lodging contract, which involves the transfer of room use, this type of accommodation contract is not governed by tenancy law principles. The court determined that the defendant had entered into a contract of sale with the plaintiff for the supply of the specified bottle of wine pursuant to §§ 433 et seq. BGB. The defendant’s contention that the transaction constituted a sale on approval was rejected. The small tasting offered by the waiter served only to allow the guest to ascertain whether the wine had an off-flavour, such as cork taint, and, contrary to the expert opinion, also to assess the serving temperature. A sale on approval arises only when the parties agree that the sale shall take effect subject to the buyer’s approval, which may be given or withheld at his discretion under § 4951 BGB. No such intention existed here; a restaurateur does not serve prepared dishes or ordered beverages on the condition that the guest may arbitrarily reject them without payment. Accordingly, the transaction was a general sale: the defendant ordered a wine of a certain type from the list, not a specific bottle. The seller’s obligation was thus to provide a bottle of average quality and kind from her stock. Since the wine served matched the usual qualities of the designated vintage and variety, and no defect of substance was proven, the plaintiff fulfilled her obligations under the contract of sale. The alleged excessive temperature did not constitute a defect in quality but rather a defect in service, which, in law, does not affect the validity of the sale. The court further held that the guest accommodation contract, in addition to its sales element, contains the independent and equivalent element of a service contract. The guest, particularly in a high-status establishment, places special value on the quality of service. The defendant’s complaints related not to the product itself but to the manner of service—the use of an ice bucket, the insufficient pre-cooling of the wine, and the impolite response to his complaint. Under § 2782 BGB, the hotelkeeper is responsible for the conduct of his serving staff as his own. A service relationship may be terminated immediately by either party for an important reason under 1 “Right of revocation 1. In the case of a consumer loan contract, the borrower has a right of revocation under section 355. 2. Subsection (1) does not apply to the consumer loan contracts referred to in section 493 (1) sentence 1 if, under the contract, the borrower may repay the loan at any time without complying with a notice period and without additional charges.”. 2 “Responsibility of the obligor for third parties The obligor is responsible for fault on the part of his legal representative, and of persons whom he uses to perform his obligation, to the same extent as for fault on his own part. The provision of section 276 (3) does not apply.”. XXII

§ 6263 BGB, such reason being present where contractual duties have been violated so seriously that continuation of the relationship cannot reasonably be expected. Whether a service defect in a restaurant or hotel constitutes such an important reason depends not only on general principles of service law but also on the specific circumstances of the establishment; what might be acceptable in a modest inn may be intolerable in a five-star hotel. Given that the plaintiff’s hotel was of a high standard, the guest could justifiably expect top-quality service, including courtesy and proper serving techniques. The court accepted the defendant’s assertion that the wine had been served too warm and that the remark made by the head waiter was inappropriate. The latter incident constituted an additional service failure. In an establishment of this calibre, politeness towards guests forms an essential part of the contractual obligation. Even if a guest’s complaint appears doubtful, it is customary, in both German and international hospitality practice, for the hotel staff to respond with courtesy and, where appropriate, an apology. Taken together, these repeated shortcomings in service—serving the wine too warm, the inadequate cooling method, and the head waiter’s discourteous response—constituted a significant reason under § 626 BGB justifying the defendant’s immediate termination of the service component of the accommodation contract. While the sales contract itself could not be terminated without legal cause, the principle of good faith in § 2424 BGB prevents requiring a guest, who has rightfully ended the service aspect of the contract, to pay for the wine. Therefore, the plaintiff could not claim payment or any partial remuneration for services provided, as these had become of no interest to the defendant within the meaning of § 6285 BGB. 3 “Termination without notice for a compelling reason 1. The service relationship may be terminated by either party to the contract for a compelling reason without complying with a notice period if facts are present on the basis of which the party giving notice cannot reasonably be expected to continue the service relationship to the end of the notice period or to the agreed end of the service relationship, taking all circumstances of the individual case into account and weighing the interests of both parties to the contract. 2. Notice of termination may only be given within two weeks. The notice period commences with the date on which the person entitled to give notice obtains knowledge of facts conclusive for the notice of termination. The party giving notice must notify the other party, on demand, of the reason for notice of termination without undue delay in writing.”. 4 “Performance in good faith An obligor has a duty to perform according to the requirements of good faith, taking customary practice into consideration.”. 5 “Partial remuneration and damages in case of termination without notice 1. If after commencement of performance of the service, the service relationship is terminated on the ground of section 626 or 627, then the person obliged to perform services may demand a part of XXIII

II. Table reservation observed by the client followed by non-acceptance of the menus offered The decision of the District Court of Siegburg (Amtsgericht Siegburg, 30 November 1990, Case No. 6 C 464/90) offers an instructive clarification of the legal nature and consequences of a restaurant table reservation under German civil law. The court held that a reservation, while creating reciprocal obligations between the customer and the restaurateur, does not impose a binding duty on the customer to order or consume a meal. Accordingly, a restaurant owner cannot claim compensation for loss of profit merely because a guest, having arrived as agreed, decides not to order food. The case concerned a regular patron who had reserved a table for four at a small, higher-end restaurant called “Z-Mühle” for lunch on Mother’s Day, 13 May 1990. Upon arrival, the party discovered that the restaurant was offering only a fixed “Mother’s Day Menu,” consisting of two appetizers and three main courses. None of the dishes appealed to the group, and they decided not to order food, paying only for their beverages. The restaurant owner then demanded a “compensation fee” of 15 Deutsche Marks per person—an amount the plaintiff paid under protest before later filing a claim for reimbursement. The court ultimately ruled in his favor, finding that the demand had no legal basis. In its reasoning, the court examined the contractual meaning of a table reservation in light of the interpretive principles set out in §§ 1336 and 1577 of BGB. These provisions require that declarations of intent be interpreted in his remuneration corresponding to his services performed thus far. If he gives notice without being prompted to do so by action of the other party in breach of contract, or if he should prompt termination by the other party by his own action in breach of contract, then he has no claim to the remuneration to the extent that his previous services are of no interest to the other party as a result of the notice of termination. If remuneration is paid in advance for a later period of time, then the person obliged must reimburse it under the provisions of section 346 or, if notice of termination is given by reason of a circumstance for which he is not responsible, under the provisions on the return of unjust enrichment. 2. If notice of termination is prompted by the conduct of the other party in breach of contract, then the other party is obliged to compensate the damage arising from the dissolution of the service relationship.”. 6 “Interpretation of a declaration of intent When a declaration of intent is interpreted, it is necessary to ascertain the true intention rather than adhering to the literal meaning of the declaration.”. 7 “Interpretation of contracts Contracts are to be interpreted as required by good faith, taking customary practice into consideration.”. XXIV

accordance with the parties’ reasonable expectations and the principle of good faith (Treu und Glauben). Applying this framework, the court concluded that a reservation creates mutual obligations: the customer must appear at the agreed time with a general intention to dine, and the restaurant owner must keep the table available. However, the obligation to attend does not automatically entail an obligation to consume. A reservation merely secures the customer’s opportunity to dine; it does not bind the customer to accept an offer that proves unsatisfactory. The notion that a diner would be required to order regardless of the menu’s content was therefore deemed to exceed the ordinary scope of a reservation agreement. The judgment also addressed the issue of business risk and its proper allocation. The court emphasised that when a restaurateur voluntarily restricts the menu—for example, by offering a fixed selection on a special occasion such as Mother’s Day—the risk that the menu may not appeal to certain customers lies entirely with the restaurateur. This is an inherent aspect of entrepreneurial risk (unternehmerisches Risiko). It would be unreasonable, the court noted, to transfer this risk to a customer who made a reservation without detailed prior knowledge of the specific dishes available. It was considered irrelevant whether the customer had been informed in advance about the existence of a special menu, since such notice would not create a binding agreement to order specific meals. From the customer’s perspective, the main purpose of a reservation is to secure a place in the restaurant, not to commit to ordering a dish that might be unappealing. Having established that no contractual duty of consumption existed, the court turned to the question of restitution. The payment of the “compensation fee” was deemed to constitute unjust enrichment on the part of the restaurant owner, falling within § 812 8 (1) BGB, which provides for restitution of payments made without legal cause. The restaurateur’s claim lacked any valid contractual or statutory foundation. The court further rejected the applicability of § 8149 BGB, which prevents recovery of payments made with knowledge 8 “Claim for restitution (1) A person who obtains something as a result of the performance of another person or otherwise at his expense without legal grounds for doing so is under a duty to make restitution to him. This duty also exists if the legal grounds later lapse or if the result intended to be achieved by those efforts in accordance with the contents of the legal transaction does not occur. (2) Performance also includes the acknowledgement of the existence or non-existence of an obligation.”. 9 “Knowledge that debt is not owed Restitution of performance rendered for the purpose of performing an obligation may not be demanded if the person who rendered the performance knew that he was not obliged to do so or if the performance complied with a moral duty or consideration of decency.”. XXV

that no obligation exists. It was clear, the judgment stated, that the customer had paid only under protest and with the implicit reservation of a later claim for reimbursement. In such circumstances, the payment cannot be considered voluntary in the sense contemplated by § 814 BGB. The Siegburg decision has broader implications for the interpretation of contractual obligations in the hospitality sector. It clarifies that the simple act of reserving a table does not transform a social arrangement into a binding contract of consumption. The obligation to attend and the right to dine are distinct from any obligation to order, and the customer retains full freedom to decline service if the menu offered is unsatisfactory. The judgment also reinforces a key economic and legal principle: that the risk inherent in business decisions, such as offering a limited or specialised menu, rests with the entrepreneur who makes those choices. Attempts to shift that risk to consumers through “nonconsumption fees” or similar charges lack a legal foundation under German civil law. Moreover, the case illustrates the coherence of the German system of contractual interpretation, which seeks to balance the objective expectations of the parties with the requirements of good faith and fairness. By grounding its reasoning in §§ 133 and 157 BGB, the court reaffirmed that contractual intent cannot be inferred from formal arrangements alone but must be evaluated within the broader context of commercial practice and reasonable reliance. The decision also highlights the function of the law of unjust enrichment as a corrective mechanism for unjustified financial transfers in borderline contractual situations. In conclusion, the judgment of the Siegburg District Court delineates the limits of contractual liability in restaurant reservations and affirms the autonomy of the consumer within service-oriented transactions. The ruling establishes that a reservation entails reciprocal but limited obligations, that the customer is free to decline an unsatisfactory offer, and that any payment demanded for nonconsumption lacks legal justification. It further confirms that restitution under § 812 BGB is available for amounts paid under protest when no legal cause exists. The decision thus contributes both to the doctrinal clarity of German contract law and to the broader principle that business risk in the hospitality sector cannot be displaced onto the consumer. XXVI

III. Table reservation not used during Hanover Fair The Kiel Regional Court ruling of January 22, 1998, addressed whether a restaurant could claim damages after a customer failed to honor a table reservation. The court concluded that a reservation does not constitute a binding hospitality contract but merely marks the initiation of pre-contractual negotiations, governed by the principle of culpa in contrahendo. This means that the act of reserving a table represents a stage of negotiation rather than a final agreement obligating the parties to perform. However, the court also recognized that a customer who fails to appear without timely cancellation may, in principle, be liable for damages arising from a breach of good faith during this pre-contractual phase. The case involved a restaurant owner in Hannover and a defendant who had made a reservation for five to six people for every evening between March 14 and 20, 1996, during the CeBIT trade fair. The restaurant confirmed the booking via fax on February 23, 1996, including a menu card, and the defendant signed and returned it. When the defendant’s party failed to appear on the first evenings, the restaurant sent a reminder by fax on March 17, stating its intention to charge for the no-show and asking whether the reservation should remain in effect. The defendant subsequently canceled the remaining reservations as of March 18. The restaurant then sued for damages corresponding to four evenings, claiming 2,848.44 Deutsche Marks, which represented its estimated lost profit after deducting 30 percent for saved expenses. The plaintiff argued that a binding contract had been concluded through the signed confirmation, obliging the defendant to compensate for lost profit. The defendant, on the other hand, maintained that the reservation was a non-binding courtesy, creating no enforceable duty to appear or to order anything. The lower court dismissed the claim, reasoning that the reservation did not require any special preparations and therefore could not form the basis of a damages claim. On appeal, the Kiel Regional Court upheld the dismissal but clarified the legal reasoning. It held that while a table reservation does not create a binding contract, it does establish a pre-contractual relationship governed by good faith. Failing to honor a reservation without proper notice may amount to a breach of that duty, giving rise to liability for reliance damages. The court distinguished between two categories of potential damages. Expectation damages, representing lost profit (Erfüllungsinteresse), were rejected because no contractual duty to dine existed. Reliance damages (Vertrauensschaden), however, could in principle XXVII

be claimed if the restaurant had suffered actual losses through reliance on the reservation, such as wasted expenses or the loss of other paying customers. The plaintiff, however, failed to substantiate any such reliance damages. The court noted two potential forms of loss that could have justified compensation: first, the loss of business opportunities if other guests were turned away due to the reservation, and second, wasted expenditures such as the purchase of special food, decorations, or the hiring of additional staff. The plaintiff could not prove either type of loss. In fact, it admitted that having some tables remain empty was not unusual even during the trade fair period. Furthermore, the court emphasized the restaurant’s duty to mitigate damages. It held that the restaurant should have re-booked the table after about an hour if the party did not appear, and that after the first no-shows, it could have disregarded the remaining reservations entirely. Ultimately, the court ruled that while a customer’s unjustified failure to honor a reservation may, in principle, result in liability for reliance damages, no such damages were proven in this case. The ruling thereby limited recoverable losses to specific, demonstrable reliance costs rather than expected profit. The court further observed that restaurants are not without means of protection: they can require a cancellation penalty (Vertragsstrafe) or charge a reservation fee (mietähnliches Entgelt) to safeguard against such situations. The decision established a clear legal framework for restaurant no-shows under German law. A reservation is a step in pre-contractual negotiation rather than a binding hospitality contract. Liability can arise only when the restaurant can prove concrete losses suffered in reliance on the customer’s promise to appear. In practice, restaurants wishing to pursue such claims must maintain detailed documentation of any lost opportunities or non-recoverable costs. The ruling underscores the importance of distinguishing between moral obligations of courtesy and legally enforceable commitments in everyday business transactions. IV. Two-hour delay at a fine dining (up scale) restaurant The Amtsgericht of Hamburg in the case C 275/73, which established a customer’s right to a price reduction for significant service delays in a restaurant. The court affirmed that a two-hour delay in serving the main course, despite a fixed reservation, constitutes a defect in service, entitling the guest to reduce the final bill. XXVIII

The court characterized the restaurant hospitality agreement as an “atypical contract” that obligates the establishment to provide not only food and drink but also a level of service appropriate to its category. In an upscale restaurant, this includes a swift and pleasant dining experience. A substantial delay, even on a busy holiday, breaches this contractual duty. The court found a price reduction of approximately 20% to be appropriate and dismissed the restaurant’s lawsuit to recover the withheld amount. This ruling underscores that the “service” component of dining is a core, legally enforceable element of the contract between a restaurant and its patrons. The case arose from a dispute between a restaurant (the plaintiff) and a customer (the defendant) following a lunch service on a major holiday. • Occasion: The defendant and several family members attended the plaintiff’s restaurant for lunch on December 25, 1972, the first day of Christmas. • Reservation: A table had been reserved several days in advance for 2:00 PM. • Service Delays: Despite the reservation and the guests’ punctual arrival, the service was severely delayed. The timeline of the service was as follows: • 2:00 PM: Guests arrived for their reservation. • ~2:30 PM: Waiters took the party’s orders. • ~2:45-3:00 PM: Drinks were delivered. • 4:00 PM: The main courses were finally served, two hours after the scheduled reservation time and what the court described as “coffee time” (Kaffeezeit). Nature of the Hospitality Contract The court defined the agreement between the parties as an “atypical contract”. It is not a simple sales, rental, work, or service contract but rather a unique agreement that incorporates elements from all these types. The act of making a table reservation was found to constitute a preliminary contract (Vorvertrag) that leads to the main hospitality contract. Contractual Obligations Beyond Food and Drink A central point of the ruling is that a restaurant’s contractual duty extends beyond the mere delivery of food and beverages. The guest pays for a comprehensive experience, which includes a level of service appropriate to the “style” (Zuschnitt) of the establishment. XXIX

tourismlaw.pt

Made with FlippingBook

RkJQdWJsaXNoZXIy MTE4NzM5Nw==