Placing the catering contract in the set of “contracts for the prevision of works/services” emphasizes the autonomy of the restaurateur towards the customer, enhances the work of the restaurateur and his or her ability to transform products into something new and different, not simply selling or marketing them. Moreover, it emphasizes the restaurateur’s freedom to organize the enterprise and to best achieve the purpose set out in the contract. But there is one more element. The Italian Supreme Court has said that, just as in the hotel contract or in passenger transport contract7, the restaurant customer entrusts his or her person to the contracting party. The first important consequence of the relationship created between the customer and the restaurateur is the increased protection of the customer, especially the customer’s health. According to the Supreme Court, the obligation of the restaurateur to ensure the physical safety of the client, just as is the case in the passenger transport contract, is a natural effect of the contract8. According to the Supreme Court, this element distinguishes the catering contract from the simple contract of buying and selling food, prepared or to be prepared9. By saying that in the catering contract the customer entrusts his or her person to the caterer, the Supreme Court derives obligations on the caterer directly from Article 32 of the Italian Constitution. This norm protects health “as a fundamental right of the individual and interest of the community”. According to Italian jurisprudence, this principle is also immediately applicable in contracts between private individuals10, and operates “in all contracts in which one of the 7 Unlike its predecessors, the passenger transport contract, under Italian law, is a typical contract and is governed by Articles 1678 et ss. of the Italian Civil Code. 8 According to Art. 1374 of the Italian Civil Code: “a contract binds the parties not only to what is expressed therein, but also to all the consequences arising therefrom according to law or, failing that, according to usage and equity”. 9 In Ruling n. 13562/2020 by Cassazione, Section Civil VI, the judges, while starting from the concept of a catering contract “as the administration of foodstuffs”, and differentiating it from that of a hotel, nevertheless came to the conclusion that secondary obligations to protect the health of the customer and diligent custody of the premises where the activity is carried out, so as not to create health hazards, also derive from the catering contract. The case dealt with was that of a customer who fell on the restaurant premises. 10 The Corte di Cassazione speaks of “Drittwirkung”, i.e. that doctrine, which originated mainly in the German area, that holds that the judge of the concrete case can decide disputes not only by applying the ordinary law applicable to the specific case, but also by drawing on constitutional principles, which are suitable as rules for the concrete case. The application of this theory has practical implications especially in contractual relationships not typified by law, such as the catering contract, which are left to the freedom of the contracting parties to choose whether to enter into the contract and determine its content. Affirming that the relationship between the parties is subject to the limits 158 FILIPPO MORESCHI
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