employee or collaborator automatically extends to the owner. In the Italian Civil Code, this principle is expressed in Art. 2049. In addition, the restaurateur stated that he was not liable for another reason: the waiter had in fact spilled the pizza because he had been bumped by another customer who was agitating in the room. So, according to the owner it was an unfortunate episode, an “unforeseeable circumstace” (a “fortuitous event”) that excludes the liability of the restaurateur, because the conduct that originated the damage was the behavior of a person not part of the restaurant team. In Italian law, the “unforeseeable circumstace” (or “fortuitous event”, in Italian called “caso fortuito”) is any event that has exclusive causal effect in producing the damage. The behavior of the third party, therefore, can be an example of an “unforeseeable circumstance”. Jurisprudence, over time, has affirmed that the third party’s behavior must be unforeseeable and unavoidable in order to exonerate from liability those who had duties of protection or custody5. In the ruling that settled the case, the Supreme Court addressed and discussed all these points. The first point concerns the nature of the catering contract. The second point concerns the nature of the “unforeseeable circumstance” (“fortuitous event”). The Supreme Court affirmed that the catering contract is an atypical contract that is part of the set of italians “contratti d’opera” (that we can call “contracts for the provision of work/services”) and pointed out that, in its usual structure, the catering contract also includes the obligation of the restaurateur to give accommodation and hospitality to the patron. The “contratto di opera” is characterized by its emphasis on the “opus” that is, in Latin, the product of the worker’s labors6. The “opus” is the product of the worker’s autonomy, no kind of subordination to the other party to the contract. The “opus” values the contribution of inventiveness, novelty, specificity, or even simple organization that the work produced, in opposition to the simple execution of a task ordered by others. In the Romanist tradition, the “opus” is the product of the “artifex”, that is the ability of the worker to transform raw material into goods or to provide utility services for the client. 5 Corte di Cassazione, Ruling n. 24755/2008 in CIAN – TRABUCCHI, Commentario Breve al Codice Civile, Ed. CEDAM, 2012, sub article 2051. 6 The italian “contratto d’opera” comes from the Romanistic “locatio operis”. For the difference between “locatio operis” and sales contract L. BARASSI, Il Contratto di lavoro nel diritto positivo italiano, by M.Napoli, Ed. Vita e Pensiero, 2003, pp. 164 etc. 157 THE RESTAURATEUR AND THE CUSTOMER’S HEALTH
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