parties entrusts his or her person to another: and therefore not only in contracts of dispatch or transportation of persons, but also in those - for example - of hotel, entertainment, contracting (when the opus to be carried out takes place in the presence of the principal), teaching of a sporting practice” and, indeed, catering contract. In the case addressed by the Supreme Court, the implications of this broader protection of physical health are manifested when accidents occur while the dishes are being served, involving customers and causing them injury. For example, this occurs when the waiter, bumped by a third party, spills the contents of the hot dish onto the customer, causing him or her to suffer burns. THE RESTAURATEUR LIABILITY AND THE “UNFORESEEABLE CIRCUMSTANCE” (“FORTUITOUS EVENT”) By expanding the concept of catering to include special attention to the customer’s health, entrusted to the care of the restaurateur, Italian practice has given greater protection to the customer by obliging the restaurant owner to the difficult proof of release from his liability. The liberating proof can be given only by proving “unforeseeable circumstance” (“fortuitous event”). The Supreme Court, after recalling that the origins of the “fortuitous event” are very old and date back to Roman law, explains that the “fortuitous event,” in order to exclude liability must be “unforeseen” and, literally, “unforeseeable”. In fact, a “fortuitous event” that is unforeseen but foreseeable or avoidable does not release the tortfeasor from liability, whether contractual (ex contractu) or non-contractual (ex delictu) liability11. Specifically, even where there is a contractual relationship, “fortuitous event” exempts from liability because it makes the obligation contract impossible due to a cause not attributable to the contractor12, as stipulated in Article 1218 of the Italian Civil Code. According to the Supreme Court, the event is foreseeable or avoidable using the standard of average diligence of that particular type of professional13. that are also established by certain constitutional principles means conditioning them to respect limits that, if not observed, could lead to the invalidity of the contract entered into, as if it had never arisen https://www.treccani.it/ magazine/chiasmo/diritto_e_societa/liberta/liberta_umberto_ricciardelli.html 11 Corte di Cassazione, Civil Section III, Ruling n. 25837/2017. 12 CIAN – TRABUCCHI, Commentario Breve al Codice Civile, Ed. CEDAM, 2012, sub Article 1218. 13 Article 1176(2) of the Italian Civil Code, which states: “in the performance of obligations inherent in the exercise of a professional activity, diligence must be assessed with regard to the nature of the activity exercised”. 159 THE RESTAURATEUR AND THE CUSTOMER’S HEALTH
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