tolerate consumption of these products and may terminate the contract with the specific customers, exercising their right to withdraw claiming at the same time compensation according to general provisions. 8.7.3. Safekeeping of Customers’ Movables (Cloakroom-Parking) The restaurateur has no obligation to safeguard customers` clothing, nor does obligation for compensation arise in the case of their loss or damage, except when such a facility is being offered, or such services are advertised238. However, the restaurateur’s liability may arise if something like this is agreed within the framework of the contract239. Such case law constitutes the restaurant contract as part of the hospitality contract240, which includes obligation to safeguard customers and their movables. Additionally, it may be agreed tacitly, should it be inferred from the general behaviour of the contracting parties, that, for example, if the restaurateur receives the garment and places it in a space not controlled by the customer, or if monetary consideration is given for its safekeeping, usually in a special cloakroom241. In this case, the corresponding application of special provisions concerning objective liability of hoteliers for customers’ movables242 could be discussed or forming an example for special contractual provisions of the same or an altered subject243. This concerns objective liability by law established for the hotelier, simply from the transaction and delivery of the customer’s objects244. ZGB, Art. 1133, 1104 cc, Art. 1322, 1418, 1374 CC, Art. 13 NBW. 238 A pub or restaurant owner is regularly not liable for the cloakroom left by guests, see the German Federal Supreme Court (BGH) of 13.02.1980 - VIII ZR 33/79, in Neue Juristische Wochenschrift (NJW) 1980, 1096. 239 A safekeeping contract does not come into existence simply because a waiter offers to hang a guest’s jacket on the coat rack in the entrance area of the restaurant, see the District Court of Miesbach (Germany), of. 21.11.2002 (Nr. 2 C 920/02), in Versicherungsrecht (VersR) 2003, 1400. 240 This type of liability regime can also be found in most other continental European codifications, Art. 834 et seq. GCC, §§ 701 et seq. BGB, §§ 970-970c ABGB, Art. 487 et seq. OR, Art. 1952 et seq. cc, Art 1783 CC, Art 7:609 NBW, Art 1783 Spanish Código civil. 241 See Fachverband Gastronomie (WKO), “Verwahrung und Gastwirtenhaftung” [from 08.02.2013, available at https://www.wko.at/oe/tourismus-freizeitwirtschaft/gastronomie/positionspapier-verwahrung.pdf, accessed 15 July 2025]. 242 Cf. supra n. 240. See Reinhard Zimmermann, Innkeepers liability (available at https://max-eup2012.mpipriv. de/index.php/Innkeepers%E2%80%99_Liability, accessed 15 July 2025); Reinhard Zimmermann, “Innkeepers’ liability. Die Entwicklung der Gastwirtshaftung in England“, in Andreas Heldrich, Jürgen Prölss & Ingo Koller (eds.), Festschrift Claus-Wilhelm Canaris zum 70. Geburtstag II (2007), Beck: München, p. 1435, 1437. 243 Something which would be a prerequisite for the capacity to conclude legal acts, whereas the liability of the hotelier is established also for persons lacking this capacity. 244 Under the above provision, liability of the hotelier and the persons they use in their business is established for things brought into it by their customers, irrespective of any form of fault by themselves or their personnel. According 109 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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