IX. THE RESTAURANT CONTRACT The oldest contract within the food service sector is the restaurant contract, which refers to the agreement by which a party—known as the restaurateur— undertakes to provide another party with meals, beverages, and ancillary services in return for payment. The restaurant contract is also classified as an innominate contract, for which reference must be made to other contractual types in order to determine the applicable legal framework. According to authoritative legal scholarship, this contract should be regarded as a mixed contract, as its structure results from the combination of elements belonging to various nominated contracts, such as: supply contracts, where the service is provided on a recurring basis; contracts for work or services, or service procurement contracts35. The organization of means is not considered an essential requirement in all cases. In fact, where such organization is present, the food service contract may be classified as a procurement contract36, and the party performing the service may be regarded as a commercial entrepreneur. Conversely, where the activity is primarily carried out through the personal work of the service provider and their family members, the contract may instead be classified as a contract for work pursuant to Article 2222 of the Italian Civil Code. The meal to be consumed, considered as the product of the restaurateur’s work and of all related services offered to the customer (such as table setting, table service, beverage pouring, and other arrangements) has, according to some scholars, raised doubts as to its proper legal classification: whether it constitutes a good to be sold (under Article 1470 of the Italian Civil Code) or the result of a service procurement contract. However, since case law has identified the production process, in which the activity performed predominates, as the defining element of a procurement techniques and gastronomic knowledge, should be considered the prevalent element with regard to the offer of food or semi-finished products that make up the dishes”. 35 See G. Benelli, I contratti di ristorazione e catering, cit. p. 198. For the prevalence of one type over another see Santagata, Diritto del turismo, Turin, 2009, p. 200 et seq. A. Luminoso, Contracts for the exchange or distribution of goods, in V. Buonocoro (edited by) Istituzioni di diritto commerciale, Turin, 2004, p.535. 36 Of this opinion: G. Luminoso, Contracts for the execution of works or services, in Istituzioni di diritto commerciale, p.535, where the Author classifies the contractual types deriving from the procurement contract and among these includes the catering contract among those mixed with procurement. See also A. Graziani – G. Minervini – U. Belviso, Manuale di diritto commerciale, Naples, 1994, p. 308 et seq., he gives importance to the contractual will of the parties, for which reason every time the performance of the work prevails over the supply of the material, the contract must be classified as a procurement contract. 44 VINCENZO FRANCESCHELLI | SARA D´URSO | ALESSANDRA CORRADO
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