of further elements of the main catering contract which should be concluded once the preliminary one has been concluded108. If the performance of the preliminary agreement, i.e. the conclusion of the main restaurant contract is not possible, the general provisions for debtor’s liability for impossibility of performance apply109. Furthermore, if the customer does not appear (or appears delayed) to conclude the contract or the restauranteur refuses or delays concluding the contract, it follows that there is a violation (fault delay) of such a type of contract (preliminary agreement), and compensation could be sought due to breach of contractual obligation110. contrary, in the catering contract the specification of the performance (i.e. the dishes and the drinks etc.) is expected to take place firstly on site. This does not contradict the purpose of determining the essentialia negotii, which is precisely to avoid excessive binding of the debtor through an overly extensive right of choice on the part of the creditor. For that reason, a contract could be concluded even in the case the performance (i.e. the dishes and the drinks etc.) is not exactly determined, so it is presumed that the determination is to be made in an equitable manner either the court or by a third party and not at the absolute discretion of one of the contracting parties (see Art. 371, 372, 373 GCC, §§ 315, 317, 318, 319 BGB, Art. 1349 CC; compare §§ 1056 ABGB, Art. 1592 cc). In any case, if the characteristic performance (i.e. the dishes and the drinks etc.) is described only by class (genus), i.e. we have a so-called generic obligation, then, the choice belongs, in case of doubt, to the debtor (restauranter) (see Art. 289 para 1 GCC, Art. 71 OR, § 243 BGB, § 905a ABGB, Art. 1178 CC; compare Art. 1166 cc). The latter is neither bound to furnish foods, dishes and drinks etc. among the best of the class nor is entitled to furnish these products among the worst of the class (see Art. 289 para 2 GCC, Art. 71 para. 2 OR). Compare Christodoulou, supra n. 53, § 5 Ι Α 2 (a) and § 5 I C 2; Stathopoulos & Karampatzos, supra n. 10, Nos. 144, 267, 351. It is sufficient if the individual pieces of the performance (i.e. foods, dishes, drinks etc.) are determined from a range at the time of delivery of it, whereby in the most usual case the guest of the restaurant determines the actual dishes to be prepared at the time of the visit to the restaurant on the basis of the menu. However, it is part of the usual service offered by a restaurant to prepare several dishes from a menu without prior reservation. In addition, the style of the restaurant also gives an idea of the range of dishes on offer. See in the German court’ s case law the decision of District Court of Siegburg, supra n. 102, pp. 1305-1306; the decision of Regional Appeal Court of Kiel, supra n. 105, pp. 2539-2540. If the generic obligation is meant only to the degree that the foods and the drinks reach the customer (while supplies last) then we have a not genuine generic obligation and, analogously, the provisions of specific goods are applied, i.e. in case of impossibility of performance, basically, if the object of the performance would have been specified, the guest would be entitled to subsequently determine the initially partially undefined content of the goods and/or the service to be delivered and/or performed. 108 Supra n. 106, 107. 109 Art. 335-336, 380-382 et seq. GCC, § 280 I, § 283, 325, 326 I 1 BGB, Art. 107-108 OR, §§ 918 et seq. ABGB, Art. 1184 cc, Art. 1453 CC. 110 See Art. 340 et seq., 342, 343 et seq. GCC, §§ 271, 276, 281 I, 323 I BGB. Mainly claims for damages (plus the delayed performance) because of lateness in performance – unless the lateness is attributable to circumstances which the debtor is not responsible for – and mostly without need of protest, as the catering contract has a fixed date and hour of the performance in situ). Otherwise, the creditor may refuse the delayed performance and demand reparations for non-performance. See for two-sided contracts Art. 383, 385, 387, and also Art. 401 GCC, §§ §§ 323, 326, 346, 281, and also §§ 281 II, 323 II BGB, in case of which the creditor may rescind the contract or claim damages of non-performance only if he fixes a period during which the defaulting debtor must complete performance, and he states he will refuse to accept after expiry of that period. Neither protest nor a fixed period is required if it was agreed that the performance was to be made exclusively at a fixed time or exclusively within a fixed period, so the creditor is entitled to rescind the contract by mere reason of delay, Christodoulou, supra n. 53, § 5 Ι E 3. 85 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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