replaced by the partial initiative of the customer. In this case, too, the shop can be brought back either to the “contratto di prestazione di opera” or to an “appalto di servizi”. The scheme changes radically if, having purchased the food and drink at the place of refreshment, it is consumed elsewhere; this is the case with take - away catering. According to some6, a sale and purchase would take place, because one would obtain a packaged meal, intended to be enjoyed in another context. The solution is not convincing, since, in any case, there is a prevalent performance of doing; in essence, the business makes the good, but, unlike in a restaurant, packages it so that it can be taken elsewhere. The characterising element is not the giving, but the doing. So, it is not an “appalto di servizi”, but a “contratto di prestazione di opera”. With what is known as banqueting, the company undertakes to organise an event at festivals, anniversaries, conferences or shows and takes care of all aspects, from finding the premises to organizing the necessary equipment and furnishings, to preparing the meals, in this case using its own staff. Therefore, banqueting is an “appalto di servizi”. If there are performances that can be attributed to typical contracts, such as, for example, transport, banqueting becomes a mixed agreement, in which the prevailing component can be attributed to the “appalto di servizi”, while the other activities are governed by the relevant disciplines. II. THE CONTRACTUAL LIABILITY OF RESTAURATEURS The majority of cases about restaurants concerns liability for storage; almost always the theft or damage of goods, usually entrusted to the waiter, is discussed. In a sporadic manner, one decision is about a case where the restaurant owner has provided a playground, with the presence of facilities; think of swings, slides or other devices placed in spaces belonging to the restaurant. If the goods are constructed “in a workmanlike manner”, liability is excluded7. In fact, the restaurateur must ensure the safety of the equipment and regular maintenance, but there is no obligation on him to supervise and, therefore, he is not liable for any accident if, while using the structure, the child falls and injures himself. In fact, if there is no offer of the service, not even by conclusive conduct, the 6 Cf. Benelli, I contratti di ristorazione, in Aa. Vv., Manuale di diritto del turismo, edited by V. Franceschelli - Morandi, Turin, 2010, ed. IV, 257 ff.. 7 See Cass. 21 May 2013, no. 12401, in Giur. it. rep., 2013. 23 RESTAURANT CONTRACTS AND GASTRONOMY
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