longer of the customer`s best interest, as the latter must pay the consideration for the dishes and drinks already consumed162. However, total withdrawal may also take place if the defect is essential or if it concerns a ‘serious reason’ that could extend to all dishes, such as for example poor hygiene of the restaurant163. Moreover and above all, the law provides for the accumulation of all these rights (even of rescission) and compensation, which is a just solution, because it corresponds to the will of the party (even when rescinding the contract), but also because, objectively, it satisfies practical needs and legitimate interests: the customer should be placed in the same (economic) position as if they had received the performance without defects and agreed qualities, so, if the restaurateur had delivered goods in conformity with the contract (positive interest)164. The liability of the seller for defects of the goods and lack of agreed qualities was and remains strict (i.e., it does not presuppose fault on the part of the seller) where the rights of repair or replacement or reduction of the purchase price or rescission are to be exercised165. 8.5.2.3. A Hierarchy of Remedies The customer`s rights166 are to be exercised not in order of preference, so they are not able to choose among repair or replacement, price reduction or rescission: Firstly, it is not automatically permitted for a consumer to reject goods with a defect and to treat the contract as repudiated or ask for immediate replacement, and definitely not within a specific short period of time after the delivery of the goods: thus, the customer has not the right to choose arbitrarily a specific 162 See the decision of District Court of Burgwedel, from 10.04.1986, Nr. 22 C 669/85, in Neue Juristische Wochenschrift 1986, 2647; cf. Peter Breitschmid, Vertragsbeendigung bei mangelhaften Restaurantleistungen, Schweizerische Juristen-Zeitung 1990, 112 et seq. (112); Ramrath, supra n. 58, p. 559 et seq. 163 Compare chapter 8.4., for the duty of care, chapter 8.7. for the ancillary obligations and chapter 8.5.6 on consumer protection. Also, in cases of mistake or fraudulent deception of the customer caused by the establishment owner. 164 In addition, as to the right to compensation, if there is lack of an agreed quality, the liability to compensation is objective (see Art. 543 GCC). On the other hand, in a case of defect of the thing, the liability to compensation is subjective, that is, fault is required (see Art. 547 GCC) and the latter is presumed, as is the case in principle in contractual liability]. Compare for the travel package contract the Directive (EU) 2015/2302, supra n. 22, Art. 13-14. 165 In a corresponding case with false sparkling wines, the court refused even payment of consideration due to unjust enrichment from a voidable / annullable contract, because the restaurateur maliciously deceived the customer (fraud), Regional Appeal Court of Saarbrücken, from 23.031989, Nr. 7 U 29/88, in Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR) 1989, 1211 et seq. 166 As resulting from Art. 13 [title: “Remedies for lack of conformity”], according to which “(1) In the event of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity or to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article”, of the Directive 2019/771/ EU (supra n. 128). 96 APOSTOLOS TASSIKAS
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