guarding or special conditions that agree with the spirit of application of the provisions. The deposit contract presupposes delivery of the object to a space controlled by the depositary, and not simply a space owned by them. 8.7.4. Safekeeping of Customer’s Health The restauranteur has a duty to ensure the personal safety of guests. This is known as the duty to maintain safety251. The restaurateur is not permitted to serve alcohol to persons obviously drunk and who are incapable of legal acts252. This behaviour establishes obligation for compensation according to the provisions for torts253 and may also entail criminal sanctions254, as established also in cases where the establishment owner allows drunk customers to drive255. In these cases, it is considered that the establishment owner creates a source of danger and therefore must take the necessary measures to avoid damage256. In any case, liability is also justified by the principle of risk257: The danger can come from the premises258, the restaurant owner, their assistants, the food, or the other 251 See Huguenin & Rusch, supra n. 19, Rz. 38; see for the innkeeper or the hotelier supra 245, 246. 252 See Art. 131 para 1 GCC, §§ 104 II, 105 II BGB, Art. 16, 17 ZGB, § 865 III ABGB. Supra n. 39. 253 See also the denial of liability of a German restaurant owner for the guest`s death as a result of a drinking contest, Regional Appeal Court of Saarbrücken, decision of 18.02.1994, Nr. 4 U 381/93-71, in Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 1995, 986 et seq. 254 Cf. § 28 I Nr. 9 Gaststättengesetz (in Germal legal order). 255 Huguenin & Rusch, supra n. 19, Rz. 33 („Verkehrssicherungsplichten“). The German doctrine and the courts judgements accept a so called ‘guarantor position’ of an innkeeper vis-à-vis a fully intoxicated and therefore no longer responsible person. In this respect, the (protector) guarantor position is linked to the exclusion of the responsibility of a person at risk, German Federal Justice Court (BGH), judgment form 05.12.1974 (Nr. 4 StR 529/74), in Neue Juristische Wochenschrift (NJW) 1975, 1175 et seq.; Georg Freund & Frauke Rostalski, in Volker Erb & Jürgen Schäfer (ed.), Münchener Kommentar zum StGB I, 5. Aufl., 2024, § 13 Rn. 151; Nikolaus Bosch, in Jörg Eisele (ed.), Tübinger Kommentar zum StGB, 31. Aufl., 2025, § 13 Rn. 40-41. Specifically on the position of guarantor see the German Federal Court of Justice (BGH), decision of 13.11.1962, Nr. 4 StR 267/63, in Neue Juristische Wochenschrift (NJW) 1964, 412 et seq. (innkeeper does not have to prevent drunk driving of the guest as long as the guest is not so drunk ‘that he can no longer act on his own responsibility’); see also OLG Oldenburg, 23.07.2021, Nr. 1 Ws 190/21, in Gesundheitsrecht 2021, 650-658 (under II 2 b, cc); Eric Hilgendorf in Gunther Arzt, Ulrich Weber, Bernd Heinrich & Eric Hilgendorf (ed.), Strafrecht Besonderer Teil, 4. Aufl. 2021, § 4 Fahrlässige Tötung, § 222 Rn. 7. 256 The serving of alcohol by the restaurant owner creates a risk that can no longer be considered the sole responsibility of the guest when the guest is heavily intoxicated. There is an increased duty of consideration towards recognisably drunk persons. However, the innkeeper may persuade such persons to leave by means of physical, but not violent ‘coaxing’, see the German Federal Court of Justice`s decision (BGH) of 04.11.1980 - VI ZR 231/79, in Versicherungsrecht (VersR) 1981, 192, 193. 257 As a tortious duty, it even exists towards passers-by who are only passing by and do not wish to visit the restaurant, see German Federal Court (BGH) of 27.01.1987 - VI ZR 114/86, in Neue Juristische Wochenschrift (NJW) 1987, 2671, 2672; and also irrespective of whether they enter the restaurant and wish to consume something or not, Bacher, Supra n. 248, Rn. 263-266. 258 An innkeeper was held liable because a guest was injured by a dangerous rootstock in the immediate vicinity of the bowling alley; see Huguenin & Rusch, supra n. 19, Rz. 38 and their references to a decision of 1983 of Aargau Regional Appeal Court (Switzerland). However, the innkeeper was not held liable when a guest injured himself in heavy rain on slippery slabs, which were regularly sprinkled with sawdust, on his way to the toilet at a restaurant 111 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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