At the same time, the condition about service in the process of ‘catering service’ (as an execution of food supply by quality, types, in place and at a certain time and in a certain way) has elements of both work and services60. Service of banquets, events by waiters and other service personnel has signs of legal relations for providing services and therefore should be regulated by the type of contract for providing services61. Therefore, there is a multiplicity of conditions and a multiplicity of subjects, which determine the application to the relevant conditions of provisions of the relevant types of contracts. In this regard, jurisprudence in theory and practice has determined that in similar cases it concerns a mixed contract, evidenced by the multiplicity of its subjects. 7.2.3. Mixed Contracts The restaurant contract is concluded between the customer (consumer) and the restaurant establishment (provider) and constitutes a mixed-type contract (innominate contract mixti iuris)62, or, according to some, a sui generis contract63. Mixed contracts are characterized by the diversity of their the food and beverages to be prepared by themselves. Since the restaurateur assumes the delivery obligation in this regard, the rules of the contract for work and materials apply more precisely. See Huguenin & Rusch, supra n. 19, Rz 3, 6 (on the so called ‘Werklieferungsvertrag’). Compare Stathopoulos & Karampatzos, supra n. 10, Nos. 344-345, 364; Christodoulou, supra n. 53, § 5 II F. 60 In case of doubt, the obligation of a restaurant operator to cater for guests at a private party in his restaurant constitutes a contract for work and services for catering services, with the consequence that advance payments must be returned if no work has been performed, Regional Court of Berlin (KG), decision of 06.08.2021, Nr. 21 U 19/21, in Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 2022, 64 et seq. 61 See for service contract supra n. 52, 55 and infra n. 62, 63. 62 According to the prevailing German legal order doctrine, the catering contract contains elements of various contracts: the service contract (§§ 611 et seq. BGB) with regard to service; the rental contract (§§ 535 et seq. BGB) with regard to seat use; the sale contract (§§ 433 et seq. BGB) with regard to food; and the contract for work and services (§§ 631 et seq. BGB) with regard to the preparation of food. The legal treatment is based on the predominant type of contract (so-called “absorption theory”). The catering contract is therefore regularly assessed according to the rules of sales law. See Ulrich Ramrath, Vertragsbeendigung bei mangelhaften Restaurantleistungen, Archiv für die civilistische Praxis (AcP), vol. 189, 1989(6), 559-578, 561 et seq. (available at http://www.jstor.org/stable/40995424, accessed 15 July 2025); Claus-Wilhelm Canaris, Rücktritt vom Gastaufnahmevertrag bei Servicemangel, Juristische Schulung (JuS) 1970, 219 et seq., 220. 63 Under the current doctrine in the Swiss legal order, the catering contract, as an innominate contract, consists of elements of a purchase contract, a contract for work and services, a rental (lease) contract and a contract for services. While the serving of ready-made beverages or cold dishes is likely to fall under the purchase contract, the preparation (cutting, seasoning, cooking, etc.) of food or the mixing of beverages is to be subsumed under the contract for work and services. Services provided by waiters fall under mandate contract, while the use of the premises (restaurant, dining room, hall, WC) and furnishings (tables, chairs, cutlery, plates) is covered by lease contract. Such a combination of different types of contracts is classified in legal doctrine as a mixed contract (contracts mixti iuris), and more specifically as a combination contract. See Huguenin & Rusch, supra n. 19, Rz 6. On the other hand, according to different opinions in the doctrine, the catering contract is specified either as a special type of contract with elements of lease contract [Peter Higi, in Peter Higi, Anton Bühlmann, & Christoph Wildisen 74 APOSTOLOS TASSIKAS
RkJQdWJsaXNoZXIy MTE4NzM5Nw==