of the defect is not feasible, the restaurateur may replace the defective product156. In both cases because of the nature of the contract and according to good faith, it may be required that the restaurateur has to take and perform a completely new order157. The successful replacing of a defective product with a more improved one, does not give the restaurateur the right to seek from the customer the extra costs of preparing the second improved meal158, unless they have agreed that, i.e. in a new contract with the restaurateur after having bilaterally dissolved the contract (actus contrarius) or after having bilaterally abolished old obligations and created new ones (novatio)159. If the restaurateur`s efforts fail, the customer has the right to send back the meal and not pay the consideration by withdrawing from the contract (rescission), after they seek a price reduction proportional to the quality of the meal received160. A defect in one dish does not justify withdrawal from the entire contract and non-payment of the price for dishes that were already consumed completely and had no defect161. Should the greater part of a menu have been consumed and subsequently a defect appears that makes continuation of the restaurant contract not being any 156 A restaurateur`s liability has been established, in customer injury from pellets of shotgun found in meat that was cooked. The court however recognized contributory negligence and reduced liability by 25% since the customer should have been more careful when consuming meat that came from hunting. See District Court of Waldkirch, from 27.01.2000, Nr. 1 C 397/99. An innkeeper is not liable if a guest damages a dental bridge when eating a piece of neckbone because he bites on a piece of bone, because such an incident is part of the general life risk, District Court of Munich, decision of 12.02.2015, Nr. 213 C 26442/14. The Regional Court of Kleve (Germany), decision from 06.07.2011 - 5 S 47/11 in Neue Juristische Wochenschrift - Rechtsprechungsreport (NJW-RR) 2011, 1473 et seq. has ruled in a judgement that there is no entitlement to compensation for small pieces of bone in minced meat, even if there was damage to the chewing surface. The court reasoned that the plaintiff was partly responsible for the damage caused and that the manufacturer was not liable under the guarantee for the product. Compare als decisions of Regional Court of Lübeck, from 30.06.2025, Nr. 24 C 883/24, and Nr. 14 S 97/24; German Federal Court of Justice (BGH), from 17.03.2009 - VI ZR 176/08, in Neue Juristische Wochenschrift (NJW) 2009, 1669 et seq. 157 See for sale and work contract supra n. 1, 4, 56, 57. 158 Normally the seller has to to repair or replace the non-conforming good within a reasonable time, or without significant inconvenience for the consumer, compare recitals 50, 55 and Art. 13 (4) d) of the Directive 2019/771 (supra n. 128); compare for the travel package contract the Directive (EU) 2015/2302, supra n. 22, Art. 13 II-VI, Art. 14. 159 Art. 436 GCC (novation), see Art. 116 OR, §§ 1376-1379 ABGB, Art. 1329-1335cc, Art. 1230-1235 CC. 160 Both are altering or formative rights, see Art. 15, 16 of the Directive 2019/771/EU (supra n. 128). 161 See for the cases of error in performance as delivery of slightly different goods (aliud) or as delivery of a slightly diverging quantity (minus), Stefan Grundmann, European Sales Law - Reform and Adoption of International Models in German Sales Law, European Review of Private Law, Vol. 9, 2001(2/3), 239-258 (https://doi.org/10.54648/359019); cf. infra n. 178-183, chapter, 8.5.3. 95 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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