However, the Italian Civil Code, in Article 1322, provides that the parties may create contracts even outside the models specifically regulated by the Code2. The Italian Supreme Court3 had to deal with the case of a restaurateur who received a claim for damages from the parents of a little girl who, while dining at a restaurant, was burned because a waiter, passing between tables, inadvertently spilled a pizza on her. The restaurateurs defended themselves by making several arguments. First, they argued that the catering contract, stipulated between the customer and the restaurateur, has, as only object, the provision of food and drink. Therefore, the injury sustained by a customer while staying at the restaurant falls under the kind of liability that, in legal systems of Romanistic origin, is termed non-contractual (“ex delictu”). In the Italian legal system, the regime of non-contractual liability (“ex delictu”) is different from the contractual liablity (“ex contractu”): who complains about the damage “ex delictu” has shorter time limits to bring the claim for damages (5 years instead of 10 years) and has the burden and obligation to provide proof of fault or malice of the person who caused the damage. Instead, if the restaurateur’s liability is considered contractual, the customer only has to prove the existence of the catering relationship between the customer and the restaurateur, prove the restaurateur’s breach, and prove the causal link between the breach and the damage suffered. On the other hand, it will be up to the restaurateur to prove “unforeseeable circmustances”, a fortuitous event, which releases him from the indemnity obligation4. In the case addressed, if we decide that the catering contract concerns only the supply and of food and beverages, the contractual relationship does not extend to all those facts that happen to the customer we spoke about. So, in our case, the injury suffered by the little customer can be compensated only if the parents prove the fault or malice of the waiter: this is what the Italian Civil Code provides in Article 2043. In fact, it is a general principle that the liability of the 2 Article 1322 of the Italian Civil Code provides that “the parties may freely determine the content of the contract within the limits imposed by law”. This allows the parties to conclude contracts even outside the models provided for by the Code, provided they are not null and void. The nullity of the contract, which occurs in the cases provided for in Article 1419 of the Civil Code, arises from the lack or illegality of the cause, the illegality of the motives, the absence of the parties’ agreement, the subject matter, or the absence of the form, when it is provided for as an essential element of the contract. 3 Corte di Cassazione, Civil Section VI, Ruling n. 9997/2020. 4 Corte di Cassazione, United Civil Sections, Ruling n. 13533/2001. 156 FILIPPO MORESCHI
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