and moral damage. Nevertheless, liability of the supplier of services differentiates substantially from the liability of the producer for defective products215: A contractual relationship between the consumer and the supplier of services is not required216, while the conscious inclusion of the element of fault means that the liability of the supplier of services is based upon and reasoned by the existence of fault217. However, the liability of the supplier of services is quasi objective/strict, as the main burden of proof lies with the claimant to prove the supply of services, the damage they suffered and the causal link between supply and damage, while the supplier of services may defend themselves by proving the lack of any fault on their part218. 8.6. Irregularities in Contract Performance by the Customer 8.6.1. The Customer Does Not Appear to Receive their Order If the customer does not appear to receive their order (following for example a telephone agreement with the restaurateur), creditor`s default occurs regarding the monetary obligation219. In the case the customer did not alert the restauranteur to this220, the restaurateur can seek full compensation for the damage they incur 215 The EU legislator of the early `90s aimed at establishing a harmonized European regulation on the liability of service providers, which would supplement the liability of manufacturers of defective products. The Draft Proposal for a Directive on the liability of service providers [see COM (90) 482 final - SYN 308, EE C 12, 18.01.1991] established, far beyond the model of the regulation on the liability of producers of defective products, genuine objective liability for defective services, i.e. services that did not provide the “reasonably expected safety”. 216 Anyone is entitled to compensation who has suffered damage as a result of the unlawful and culpable act of the service provider (provided that all the conditions of the provision are met) and not only the service provider’s counterparty. 217 The conditions laid down by the special provision for attributing liability to the service provider are as follows: i) provision of services; ii) unlawfulness; iii) fault; iv) damage, v) causal link between the defective provision of the service and the damage. 218 The list of specific criteria for assessing the contributory negligence and illegality of the service provider is similar to the criteria for common tort liability under Art. 914 GCC (act or omission, illegality, fault, damage, causal link between the illegal and culpable conduct and the damage). Compare § 823 BGB, Art. 41 I OR, Art. 1294-1295 ABGB, Art. 1240 (ex-Art. 1382) cc, Art. 2043 et seq. CC. 219 The unclaimed reservation is creditor default within the meaning of Art. 349 et seq. GCC, §§ 292-304 BGB, Art. 91-95 OR, §§ 1419 et seq. ABGB, Art. 1345 et seq. cc, Art. 1206-1217 CC. Supra n. 131. See Christodoulou, supra n. 53, § 5 I E 3 (a) and (b). 220 A further justification for the obligation to pay damages – always subject to the condition that the catering contract has already been concluded by the reservation – is that the guest did not cancel the reservation and thus committed a positive breach of contract. See Huguenin & Rusch, supra n. 19, Rz. 14. More and more restaurants are requiring their guests to pay a fee if they do not cancel their reservation in time, which, if it is in the form of general terms and conditions (GTC), raises the question of discrimination or of a significant imbalance of the parties’ rights and obligations” in a unreasonable way and contrary to good faith and tranparency principles, Johann Seidel, AGB-rechtliche Zulässigkeit von Stornierungsgebühren bei Restaurantreservierungen, Neue Juristische Wochenschrift (NJW) 2024, 2798 et seq., 2800-2801. 105 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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