contract does not have the corresponding duration observed in a lease, while the counter-performance is a paid lump sum and not one paid periodically. The consumable element of the main performance contributes more to the view that the restaurant contract refers less to the lease, since in most restaurants the price reflects more the cost of preparing the meal and less to the use of the room75. Regarding the work contract76, its characteristic is the great economic value of the performance77, without this constituting a deterrent factor for the analogous application of its provisions to the restaurant contract as well78. Regarding commodatum79, the provisions thereof could be applied analogously if it is considered that the main performance is the meal and ancillary performance constitutes the provision of use of table seats, service and others. For this performance no consideration is given since in most restaurants the price reflects the cost of preparing the meal and not the wear and tear from the use of the thing for as long as the contract lasts and the lessee to pay the agreed rent. A characteristic point of the lease is duration since the granting of use of the leased property is continuous and the counter-payment of the price is usually periodic. Compare the German Federal Court of Justice (BGH), decision of 18.01.2024 - VII ZR 142/22, in Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 2024, 660 et seq. (recitals 24-29), in which it was apparent from the contractual structure that a catering agreement was to “stand and fall” together with the rental agreement, and a supplementary interpretation of the contract resulted in a right of termination of the catering agreement in the event that the rental agreement was effectively terminated. 75 Although in most restaurants the economic models for setting the prices reflect the cost not only for the meal preparation and the supplies but also expenses include employee payroll, lease payments inventory stocking, equipment, tables, chairs, utilities, insurance, and technology etc., and, of course, the profit factor; one therefore couldn’t claim that the price in the restaurant is legally a consideration for the use of the room. The most common way (among others) to price menu items is the cost-plus method, whereby the restaurant determines the actual cost of producing each item, factoring in ingredients and overheads, and then adding a predetermined profit margin figure. See Rebeca Bichachi, “Restaurant Menu Pricing Strategies”, dated of 17 Jan 2025 [available at https://www.netsuite.com/portal/resource/articles/accounting/restaurant-menu-pricing.shtml#:~:text=The%20 most%20common%20way%20to,a%20predetermined%20profit%20margin%20figure, accessed 15 July 2025]. Food costs consist of the cost of a restaurant’s ingredients (food inventory) and the revenue those ingredients generate when menu items are sold (food sales). Food costs are almost always expressed as a percentage, known as the ‘food cost percentage’. To determine the cost of preparing a dish, some restaurants use the food cost for a restaurant, while others prefer to use the ‘cost of goods sold’ (COGS), which measures the total value of the inventory used to prepare a dish. See https://en.wikipedia.org/wiki/Cost_of_goods_sold 76 Supra n. 4, 53 in chapter 7.2.2. 77 Supra n. 59. 78 However, the lack of significant economic value of the service does not act as a deterrent to applying the provisions of the works contract analogously to the catering contract, as, in the context of consuming a meal or a drink in a catering establishment, general instructions and guidelines are given by the customer, as common experience shows. Moreover, depending on the degree of the error in performance, it may be considered insignificant, such as the addition of a garnish to an order, or substantial, such as the use of ingredients in the preparation of a meal that were requested not to be used due to an allergy. In such cases, the dish will not be defective, but the serious deviation from the instructions given may justify the proportional application of work contract provisions, see Art. 689-690 GCC, §§ 633 et seq. BGB, Art. 368 OR, § 1167, 922-933b ABGB, Art. 1792 et seq. cc, Art. 1667 et seq. CC. 79 Supra n. 7, 53. 77 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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