This is the typical case in which a food service is offered that includes on-site cooking and meal preparation, and the client is required to provide premises and equipment for the storage, preparation, and subsequent serving of the food. The well-reasoned conclusion reached by the prevailing legal scholarship originates from a distinction drawn by certain authors21 by observing the factual circumstances, focused on the principal service provided through this contract. Although the term “catering” today includes a wide array of services and supplies, when attention is placed on the core service, i.e., the meal itself, legal scholars have rightly distinguished between two specific types of activity within catering that do not alter its functional nature: (i) when the caterer prepares meals on site, and (ii) when meals are delivered but already prepared elsewhere. In terms of legal classification, this would therefore be considered a mixed contract, governed by the principle of prevalence, in line with unanimous jurisprudence22. Accordingly, where the predominant activity is one of doing, such as preparing meals on site (including cooking, assembling, and distribution), even if only partially, the applicable legal regime is that of the procurement contract, pursuant to Article 1655 of the Italian Civil Code. Conversely, where the predominant obligation consists in giving the supply of pre-prepared meals, the rules on contracts for the supply of goods, under Article 1559 of the Civil Code, will apply23. 21 See Addante, cit., p. 652, of the same opinion: G. Benelli, i contratti di ristorazione e catering, in (edited by) F. Delfini- V. Franceschelli – F. Morandi, i contratti del turismo, dello sport e della cultura, Torino, 2010. 22 Trib. Venezia, 12 aprile, 1994 in Dir. trasp., 1996, p. 241, with comment of Fogliani, defines catering as a mixed contract of supply and procurement, in a case in which the supplier’s obligation towards the shipowner consisted in providing food to the crew and in providing the necessary supplies for the entire duration of the voyage. In a recent order, the Court of Cassation declared that In the case of mixed contracts, the relevant legal discipline must be identified in that resulting from the rules of the typical contract in whose scheme the prevailing elements can be traced back (so-called theory of absorption or prevalence), without excluding any legal relevance of the other elements, which are desired by the parties and contribute to establishing the content and scope of the contractual bond, to which the rules of the contract they belong apply, insofar as they are compatible with those of the prevailing contract. (In this case, the Supreme Court confirmed the judgment on the merits which, in relation to a so-called “banqueting” contract for the organization of a wedding banquet, in which it identified the prevalence of the elements of the service contract, had accepted the exception of forfeiture of the guarantee for defects in application of art. 1667, paragraph 2, of the Civil Code), Cass. Civ., Sez. II order no. 26485 of 17 October 2019. 23 Of this opinion: M. Pittalis, cit, p. 276 e ss. On the other hand, G. Santini, I servizi. Nuovo saggio di economia del diritto, Bologna, 1987, p. 91-93, argues that catering falls within the contractual figure of the service contract. In fact, the author states that from the simple contract concluded at the restaurant, based on exchanges and services, where the analogy with a service contract or a contract for work is acceptable, even though its effects are limited due to the immediate nature of the services, one can thus arrive at catering for companies in which the service contract is the most appropriate model. 40 VINCENZO FRANCESCHELLI | SARA D´URSO | ALESSANDRA CORRADO
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