8.1.3.2. Pre-contractual Liability In some cases, the only liability during the negotiation stage which could oblige the restauranteur and customer is the so called pre-contractual liability103 where negative interest (confidence interest) would be owed104: This happens as a rule when: i) the reservation elements are incomplete to such a degree that the pre-contractual connection cannot even be considered as a preliminary agreement or ii) the prerequisites of culpa in contrahendo are fulfilled (independently of a latter conclusion of the contract or not), such as conduct which against the good faith and the common usages causes damages to the negotiating party105. 8.1.3.3. Preliminary Agreement According to another view, the reservation of tables in a restaurant constitutes a type of preliminary agreement that is at first fulfilled with the fulfilment of the restaurant contract106. However, it constitutes a concluded preliminary agreement only when it contains (again) at least definitively the essential elements (essentialia negotii) of a contract107, without this excluding the pre-determination of withdrawal demands a special justification, i.e. lack of products or dishes which would be considered logical by any guest and expected as performance by the restauranter etc. 103 See Art. 197-198 GCC, §§ 311 II, 241 II BGB, §§ 878, 874, 875, 932 I ABGB, Art. 1112 cc, Art. 1337-1338 CC, Art. 227 Portuguese Civil Code, Art. 5.17 Belgian Civil Code (BBW). For the legal ground for compensation at the stage of negotiations (especially in the Greek legal order with a quasi-contractual liability), see Stathopoulos & Karampatzos, supra n. 10, Nos. 89-93; Symeon C. Symeonides, in Konstantinos D. Kerameus & Phaedon J. Kozyris (ed.), Introduction to Greek Law, 2nd ed., 1993, Kluwer Deventer, § 4 V E. 104 The restaurateur (or the guest) should be set in the same (economic) position as if they had not relied on the reservation being honoured by the other party (although they relied on it and suffered damages, caused by the other party`s conduct in bad faith). 105 In that way, and under the above circumstances, liability for culpa in contrahendo (‘negative interest’) could be conceivable in the case that the reservation precludes the immediate conclusion of another catering contract which another guest, because the table was kept free on the assumption that the first reservation that a catering contract would be concluded in site. See in German court`s case law the decision of Regional Appeal Court of Kiel, from 22.01.1998, Nr. 8 S 160/97, in Neue Juristische Wochenschrift (NJW) 1998, 2539 et seq., which ruled liability from negotiations in the case where the defendant made a reservation for 7 days at a restaurant, confirmed it by fax and did not appear. After certain days, the plaintiff sent a fax to the defendant who responded with cancellation of the reservation. However, no compensation was awarded to the plaintiff since they did not claim that due to the reservation they had to reject other customers for certain days or that they had special expenses due to the reservation. Additionally, the court pointed out the obligation to mitigate damages that the plaintiff incurred. 106 See Art. 166 GCC, Art. 22 OR, § 311 I BGB, Art. 1589 cc. The Regional Court of Kiel, supra n. 105, rejected in an appeal process a preliminary contract and the conclusion of a contract due to lack of specificity (length of stay, food and beverages are still undetermined); the decision of District Court of Hamburg from 10.07.1973, Nr. 20 a C 275/73, in Neue Juristische Wochenschrift (NJW) 1973, 2253 et seq., had already affirmed a preliminary contract but without providing detailed reasons. 107 The conclusion of the catering restaurant (or the preliminary contract of a catering contract) cannot depend on whether the guest selects or specifies the individual dishes and drinks already at the time of reservation. On the 84 APOSTOLOS TASSIKAS
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