The preliminary agreement can be dissolved, except in the case of rescission (contractual111, on mutual obligation, or legal, provided for by law in cases of non-performance or failure in performance112), only with bilateral consent via actus contrarius (similarly to the main contract), i.e. in the case the customer no longer wishes the reservation or if the restaurateur wants to cancel it. 8.1.3.4. Reservation Contract It is also conceivable that the reservation itself could constitute an autonomous contract (with consideration), which is fulfilled not with the conclusion of the restaurant contract113 but with the appearance of the customer and the paying for the reserved table. The reservation contract is followed by the conclusion of the catering contract in situ114. Therefore, in that case, if the customer does not appear to receive the performance (the reserved table) and pay for it, which the restauranteur has to provide, or if the latter has no reserved table (or no food and drinks) to provide, it is a violation of such a type of contract (reservation contract), and compensation could be sought due to breach of contractual obligation. In both cases above of the breach of the autonomous contract115, the liability arising from breach of reservation is similarly intra-contractual. Therefore, it will include positive interest (performance interest)116. 8.1.3.5. Conclusion The contracting parties may agree expressly on the binding character of the reservation, or this may be inferred from the use of confirmatory means (such as telephone call, e-mail etc.). 111 See Art. 389 GCC, §§ 346 et seq. BGB, compare Art. 107 et seq. OR, Art. 1224 cc. 112 Stathopoulos & Karampatzos, supra n. 10, Nos. 240 et seq., 270 et seq., 281 et seq., 283 et seq., 300, 312, 348, 352-353; Christodoulou, supra n. 53, § 5 I E and F. 113 See for the preliminary agreement, supra n.106 et seq., chapter 8.1.3.3. 114 In the decision of District Court of Siegburg, supra n. 102, pp. 1305-1306, it was refused that telephone reservation equals conclusion of restaurant contract but that it only establishes the obligation of customer to appear at the agreed time and ordering from the price list. However, this does not apply if the special menu for the day does not correspond to the customer’s personal preferences. Taking into account that the restaurant had a special menu due to that day (Mother’s Day), the outcome might have been different if the offered menu was the usual one and was known to visitors during reservation. See Huguenin & Rusch, supra n. 19, Rz. 22. 115 Compare also the violation of the preliminary agreement, which is fulfilled with the conclusion of the restaurant contract, supra n. 106, chapter 8.1.3.3. 116 Compare supra n. 104-105 (for the negative interest). The agreement on a table reservation in the restaurant serves to initiate catering contracts that are still to be negotiated and possibly concluded; if the reservation is not used, this can lead also to a claim for damages from culpa in contrahendo in the amount of the loss of confidence, Regional Court of Kiel, judgement of 22.01.1998 - 8 S 160-97, in Neue Juristische Wochenschrift (NJW) 1998, 2539-2540. 86 APOSTOLOS TASSIKAS
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