In the case that the genuine counterparty visits the restaurant together with other consumers and pays, may be interpreted that the other ‘customers’ (merely consumers) are standing in no legal link with the restaurant and are only beneficed by their legal link (i.e. gratuitous contracts donandi causa) or by the factual connection (i.e. gratuitous performance out of liberality, moral duty or duty of propriety etc.) with the genuine ‘customer’ and only counterparty92. At the same time in the latter case the restaurant continues to be liable (in terms of tortious liability) vis-à-vis the rest of the ‘customers’ (and merely consumers)93 who visited the restaurant together with the genuine counterparty94. Otherwise, they are protected in terms of contractual liability based on the institution of ‘contracts with protective effects towards third (non-contracting) parties’95. Excluding the interpretation above, in cases where more consumers arrive (including the genuine counterparty of the restaurant), it may be considered during contract conclusion that we have one restaurant contract, but it may be eventually preferable to interpret the situation as having many individual contracts, according to the number of persons paying – each one for their part – the counter-performance of the restauranteur. Should this not be the case, the payment by third parties (not contractually linked with the creditor) however leads to the payoff on behalf of the debtor customer (performance by third parties)96. In that case, the genuine counterparty (debtor) is released from their debts by the other ‘customers’ who visit the 92 See Stathopoulos & Karampatzos, supra n. 10, Nos. 32, 140, 204-205, 234. 93 Under Greek law, unlawful behaviour in the meaning of Art. 914 GCC exists in case of violation of a right (or, better expressed, of the good which is the object of the right). As a principle, the right must be an absolute one, such as the right to the personality as health, body integrity (also reputation, honour, etc., in parallel to the protection given by Art. 57-59 GCC). When such a right is violated, then a claim in tort for damages is born. Dacoronia, supra n. 87 (passim). Compare Art. 28 et seq. ZGB and Art. 49, 41 et seq. OR, Art. 1 para 1, Art. 2 para 1 of the German Constitution (Grundgesetz) and §§ 823 et seq. BGB. 94 See for the special legal framework of consumer protection, infra chapter 8.5.4. 95 See on the German doctrine the so called ‘Vertrag mit Schutzwirkung zugunsten Dritter’ theory (‘contracts with protective effects for third parties’ or ‘contratti con effetti protettivi a favore dei terzi’), according to which the duties of protection and care arising from the contract are also extended to third parties standing in special relationships to the counterparty. Although these parties do not have to be directly entitled under the contract, they must be closely related to the contractually owed performance. The theory is based upon a supplementary interpretation of the relevant contracts, according to which, for instance, the landlord of a leased property may be held contractually liable towards relatives of the tenant for damages suffered by them within the leased property, see Basil Markesinis, Hannes Unberath & Angus Johnston, The German law of contract: a comparative treatise, 2nd ed., 2006, Hart Publishing: Oxford, UK & New York, pp. 204 et seq. 96 See Art. 317-319 GCC, §§ 267 I-II, 268 and 412 BGB, Art. 68 et seq., 110 OR, §§ 1422, 1423 ABGB, Art. 1342-1, 1346 (ex-Art. 1236 , 1237, 1251-1252) cc, Art. 1180, 1201 CC. See Christodoulou, supra n. 53, § 5 Ι Β 2; Stathopoulos & Karampatzos, supra n. 10, No. 234. 82 APOSTOLOS TASSIKAS
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