gravity and proportionality among these elements determine how the relevant conditions inherent to other contractual types apply in the relevant contractual constructions. VIII. LEGAL FRAMEWORK ANALYSIS OF THE RESTAURANT CATERING CONTRACT 8.1. Pre-contractual Stage and Conclusion of the Contract 8.1.1. Freedom of Contracts The seller/provider decides which persons they will conclude the contract with, according to the principles of freedom of contract and private autonomy86. However, refusal to conclude a contract must be done in a manner that is not offensive to the customer and violating in this way their right of personality87. An obligation to conclude the contract is also established in cases of mandatory contracts imposed according to the theory of “forced contract” (in German: “Kontrahierungszwang”)88, when for example the restaurateur operates the only restaurant in a very remote area, or when an issue of life and death arises89. 86 For the principles of ‘private autonomy’ and of ‘freedom of contract’, see Stathopoulos & Karampatzos, supra n. 10, Nos. 3, 10, 23, 27, 29, 31, 33, 61, 140, 148, 151, 161, 167, 168, 192, 194, 203, 208, 220, 237, 243, 292, 332, 378, 381, 389, 392, 409; Christodoulou, supra n. 53, § 5.I.C. Supra n. 18. 87 See Eugenia Dacoronia, Tort Law in Greece, 2nd ed., 2023, Kluwer Law International B.V.: The Netherlands, Nos. 10, 43, 96, 259. The right of the personality (see Art. 57 et seq., 914 et seq. GCC, Art. 28 et seq. ZGB and Art. 49, 41 et seq. OR; compare §§ 823, 824 BGB and §185 German Criminal Code) finds its expression in the Constitution [i.e. human being`s dignity, see Art. 2 para 1 of the Greek Constitution, Art. 1 para 1 of the German Constitution - Grundgesetz], and the right to a general and personal freedom (considered as the ‘main general fundamental right’) [see Art. 5 para 1 of the Geek Constitution, Art. 2 para 1 of the German Constitution - Grundgesetz]. The protection of personality encompasses all goods that are related to the human being such as health (public and personal), honour, private life and the sphere of secrecy, name, image, the physical and emotional integrity. The civil codifications in Europe grant in general an action for the protection of one’s personality against any ‘unlawful’ intrusion, invasion or infringement. Compensation for moral harm is recognized, for example, in cases of the infringement of personality and in cases of tort, especially for the person who suffered an attack of his health, honour or chastity or who was deprived of his liberty. 88 Alias ‘compulsory contract’. Compare Huguenin & Rusch, supra n. 19, Rz. 9, on the so-called ‘Zutrittsrecht und Bedienungszwang’ or ‘Bewirtungspflicht’ (right of access and obligation to serve). 89 See in Greek legal order, Art. 281 GCC (abuse of rights) [compare §§ 288, 226 BGB, Art. 2 I-II Swiss Civil Code (ZGB), Art. 1295 II ABGB, Art. 13 of New Dutch Civil Code (NBW)], Art. 914 GCC (general clause of tortious liability) [compare § 823 BGB, Art. 41 I OR, Art. 1294-1295 ABGB, Art. 1240 (ex-Art. 1382) cc, Art. 2043 et seq. CC] and Art. 919 GCC (intentional damage offending common decency) [compare § 826 BGB, Art. 41 II OR, § 1295 II ABGB, Art. 1241 (ex-Art. 1383) cc], as a legal frame for the “forced contract” (“Kontrahierungszwang”). Compare the case R v Higgins [1947] 2 All ER 619, [1948] 1 KB 165, CA, in which was held, that as a rule, an innkeeper has a duty to provide travelers with the refreshment. However, an innkeeper may lawfully refuse to discharge this duty if he has a reasonable excuse. What amounts to a reasonable excuse depends on the facts of the case. Here, the shortage of supply was legitimate excuse. See also Browne v. Brandt [1902] 1 K.B. 696, 698, supra n. 44; in generally Alfred Avins, What is a Place of “Public” Accommodation?, 52 Marquette Law Review (1968), 1 et seq., 5. 80 APOSTOLOS TASSIKAS
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