8.5. Irregularities in Contract Performance by the Restauranteur 8.5.1. Long Waiting Duration If the customer does not receive at all (even partially) what he ordered within a reasonable time-period, the consequences of the debtor’s default occur for the latter either in the form of culpable impossibility or culpable delay of the performance142. 8.5.1.1. Impossibility of Performance Since the restaurant contract is performed immediately, the creditor will rarely maintain interest in its performance after a reasonable time has elapsed. Therefore, it would be more appropriate to apply the provisions for culpable impossibility of performance143. However, for the application of the provisions one has to take into consideration the fact that impossibility of performance is conceivable in obligations of species and not genus, because it is very difficult for an entire genus to disappear, especially in performances of such nature144. 8.5.1.2. Delay in Relative Fixed Contracts If no deadline has been set but the waiting period was so long that the probability of performance is now minimal, the customer can act according to their rights under the provisions concerning culpable impossibility of performance145. Therefore, they are entitled to rescind for the mere reason of delay, no matter whether the restaurateur is as a debtor at fault146. The relevant compensation is given due to non-performance and concerns the damage generated due to delay147. 7Ob631/95; decisions of the Federal Supreme Court of Switzerland (BGer), BGE Nr. 4A.235/2007 of 01.10.2007; BGE 130 III 193 Nr. 4C.224/2003 of 23.12.2003; BGE 121 III 358 of 03.10.1995; BGE115 IV 189, of 08.11.1989. 142 Christodoulou, supra n. 53, § 5 I E 2 and 3; Stathopoulos & Karampatzos, supra n. 10, Nos. 270, 272-278 (default of debtor) and Nos. 33, 67, 84, 264 et seq. (impossibility of performance). 143 Applied law are provisions concerning culpable impossibility of performance (see Art. 382 GCC) according to which to the creditor is also offered the choice of non-culpable non-performance of the contract (see Art. 380 GCC) or of setting a deadline for performance (see Art. 339 GCC) among other possibilities, like full compensation or withdrawal. Additionally, the debtor must pay compensation(see Art. 335 GCC, 382, or Art. 387 GCC). Compare §§ 325-326 BGB, Art. 107-108 OR, §§ 918 et seq. ABGB, Art. 1184 cc, Art. 1453 CC. Supra n. 136. 144 Supra n. 107; Christodoulou, supra n. 53, § 5 I E 1 (claim to performance in kind). Even in the adverse case of obligation of species the same consequences could occur analogously to the seller/restauranteur because the impossibility of performance is due to the inadequacy of the business organisation. 145 The conclusion is that non-performance at the exactly agreed time (absolute fixed performance) or within reasonable time (relative fixed performance) equals definitive impossibility of performance (as also imposed by the requirements of good faith). See Art. 401 GCC, §§ 281 II, 323 II BGB, § 919 ABGB, Art. 108 OR; compare Statho�- poulos & Karampatzos, supra n. 10, Nos. 269, 272, 283, 303. Supra n. 110. 146 Christodoulou, supra n. 53, § 5 I E 1 (claim to performance in kind). 147 Impossibility of performance concerns only the still (even partially) non-performed obligations. 93 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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