Takeaway food, which must not be confused with catering services, where food is prepared upon a specific order and in predetermined quantities, has traditionally occupied a niche market, historically limited to businesses such as pizzerias, street food vendors, and fast-food establishments. From a legal standpoint, this operational model has consistently been classified under the rules of the contract of sale, as it constitutes a straightforward supply of movable goods, namely packaged meals intended for pick-up or delivery49. In recent times and particularly following the spread of the COVID-19 pandemic, there has been a significant expansion in the practice of ordering meals for home delivery. Despite the growing number of economic operators involved in the sector, operational models can essentially be reduced to two main types. The first model is characterized by the restaurateur’s direct management of the entire process of ordering, preparing, and delivering the meal. In this case, the operator retains control over both the logistics and commercial aspects of the service, and bears full responsibility towards the end customer, with the application of ordinary civil law rules governing sales contracts and contractual liability50. Under this model, the entire contractual relationship is established directly between the restaurateur and the final consumer. The legal nature of the contract is that of a sale of non-durable movable goods (Articles 1470 et seq. of the Italian Civil Code), possibly accompanied by an ancillary transport service, where delivery is also carried out by the restaurateur. The restaurateur is liable for: the conformity of the product, pursuant to Article 129 of the Consumer Code (Legislative Decree No. 206/2005); compliance with the information obligations for distance contracts, as set out in Articles 49 et seq. of the Consumer Code51; food safety, in accordance with Regulation (EC) No. 178/2002, Regulation (EC) No. 852/2004, and Legislative Decree No. 193/2007. There is no third-party involvement in the contractual relationship, and the restaurateur remains solely liable in the event of non-performance or product defects. The second model involves the intermediation of digital platforms (marketplaces), which, through apps or websites, connect consumers with one 49 See G. Ciurnelli, Contratti per la somministrazione di alimenti e bevande, in Cendon (edited by) I nuovi contratti nella prassi civile e commerciale, VII, Torino, p. 355 e ss.; Santagata, cit., p. 201. 50 On the subject see: G. Ciurnelli, Contratti per la somministrazione di alimenti e bevande, cit., p. 356; Santagata, cit., p. 201. 51 D.lgs. 6 September 2005, n. 206. 48 VINCENZO FRANCESCHELLI | SARA D´URSO | ALESSANDRA CORRADO
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