because of this withdrawal without legal reasoning, as ‘cancellation fees’221. If the customer warns in time222, the seller is entitled to seek compensation only for the money they spent for materials or supplies or provisions they cannot use for another customer or reuse them223. At the same time, should they be able to sell it to another customer or reuse it, these costs are often compensated by the sum they claim as consideration against the new customer, and the same applies should they deliberately avoid selling or reusing it (in this case these costs are offset with the consideration they avoided to claim)224. However, the provisions regarding creditor`s default simply provide for limitation of the debtor`s liability for preservation of the goods, a fact that does not offer some special protection to the debtor in this case225. Since the contract is bilateral and the customer owes monetary performance, no issue of impossibility of performance arises226, but the customer also incurs a debtor`s default for their own owed (monetary) performance. 8.6.2. The Customer Does Not Consume their Order The customer may take the food with them in a package, after having paid for it, of course, and for any possible expenses the restaurateur eventually had to 221 The restaurateur can therefore adhere to the contract and claim damages for delay or compensation for the damage resulting from non-performance (positive interest) or withdraw from the contract and claim interest (compare Art. 107 II, 109 II OR, supra n. 109, 136, 143, 170, 174). It is not necessary to set a grace period, as table reservations are made precisely for the purpose of exchanging services at a precisely defined point in time (so-called fixed-date transaction; supra n. 110, 129, 134, 136, 145), compare Art. 108 III 3 OR. 222 See supra n. 220. The time is according to the good faith as soon as possible in case the parties haven’t agreed neither exactly nor implied and eventually the General Terms do not have a provision. 223 Because the customer is in creditor`s default, see above, chapters 8.6.1., 8.6.2., supra n. 131 and infra n. 228. Therefore, the restaurant owner is entitled to claim the agreed price if he/she adheres to the contract, or, if the dishes have not yet been selected, the price of the cheapest meal minus the saved expenses or other possibilities for further use and utilisation (positive interest). See Huguenin & Rusch, supra n. 19, Rz. 14. 224 So, they are motivated by the law not to refuse reusing these supplies or investing the results of preparation for another customer, see Art. 381 I 2 GCC (according to which from the counter-performance which continues to be owed, the benefits which the debtor has derived from the impossibility or which he has intentionally omitted to derive are subtracted). 225 Greater protection is offered by the general provisions of Art. 343 et seq. and Art. 383 et seq. GCC for specific performance or the defence of unperformed consideration. See Stathopoulos & Karampatzos, supra n. 10, Nos. 270, 286 et seq., 288 et seq. 226 Despite severe economic consequences, further performance may not be legally excused unless the direct cause of the difficulty could never have been foreseen. However, even in Anglo-American common law, absent extraordinary circumstances, losing money is not a legal defense to a breach of contract action. In agreements between merchants under the UCC different criteria may be applied. Compare for the so-called ‘commercial impossibility’ in the Uniform Commercial Code (UCC) Bd. of Supervisors v. McMahon, 219 Cal. App. 3d 286, 300, 268 Cal. Rptr. 219, 226 (Ct. App. 1990); Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1294 (Fed. Cir. 2002) 106 APOSTOLOS TASSIKAS
RkJQdWJsaXNoZXIy MTE4NzM5Nw==