8.5.1.3. Customer`s Counter-Performance On the other hand, the customer has an obligation to pay for what they consumed (even when they did not order the specific meal), even if the food or the drinks and all kinds of products came late, because their consumption constitutes acceptance. 8.5.2. Defect Performance in Delivery the Order Defects in delivery148 of the order are classified legally under sales contract or the contract for work law149. 8.5.2.1. Introduction The start of consuming a meal is not considered unreserved acceptance of it in the condition that it has been served150, i.e. with defects in quality or with lack of agreed qualities151 (both cases of lack of conformity with the contract152) because the immediate use and starting to consume the food in this case results from its very nature as consumable153. However, the complaint about any defects must be made immediately once they become apparent, as required by good faith154. 8.5.2.2. Remedies Subsequently, the seller/contractor must “eliminate” or “repair” the defect (for example, cook the not well cooked and served raw steak)155. Then, if correction 148 According to Article 9 of the Directive 2019/771/EU (supra n. 128), it is ruled that the provisions on defectiveness (i.e., lack of conformity of the goods) extend also to the legal defects, more particularly to ‘restrictions in the use of the goods’ which result from the infringement of rights of third parties. 149 Supra n. 4, 56. 150 Even if the customer has consumed part of the meal, the possibility to seek improvement of the situation is maintained. 151 So, equivalent to a defect is the lack of agreed quality when for example the customer orders food without an ingredient due to allergy and his dish is delivered with that material. 152 See indicatively for the conformity the recitals 6, 10, 19, 29 in the Preamble and Articles 1, 6, 7, 8, 9, 10,13, 14, 15, 16 of the Directive 2019/771 EU, supra n. 128. 153 See Art. 951 GCC, §§ 1084, 92 BGB, Art. 772, 760 OR, § 301 ABGB. Compare Yianna Karibali-Tsiptsiou, Property and Trust Law in Greece, Kluwer Law International, 2003, chapter 2, § 3 V, p. 97 No. 68. 154 Cf. decision of District Court of Giessen, from 20.08.1987, Nr. 46 C 1003/87, Neue Juristische WochenschriftRechtsprechungsreport (NJW-RR) 1988, 442 et seq. (the court imposed payment because the customers consumed the dish and complained afterwards about its size). 155 See the decision of District Court of Hagen, from 09.09.1996, Nr. 14 C 149/96, in Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 1997, 727, in which restaurant liability for an actual defect because the plain�- tiff’s soup was hot and caused him burns was refused: The court did not accept that the restaurant had the obligation to first cool the soup or warn the plaintiff, since it is expected according to commercial customs that served soup be sufficiently hot. 94 APOSTOLOS TASSIKAS
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