remedy for the lack of conformity of the goods167. In particular, for exercising the right of rescission, but not for the other rights of the purchaser, the prerequisite of the existence of an essential material (not ‘minor’) defect of the thing is stipulated168. The explanation is clear: rescission is the most drastic of the rights of the purchaser, since by its exercise the contract is quashed. Secondly, the choice between repair and replacement should only be limited where the option chosen would be legally or factually impossible or would impose costs on the restaurateur that would be disproportionate, compared to the other option available169. For instance, it might be disproportionate to request the replacement of goods because of a ‘minor’ (non-essential) defect, where such replacement would create significant costs and the defect could easily be ‘repaired’. If, however, finally, the prerequisites for this altering of the legal relationship’s right of withdrawal are fulfilled, the customer/consumer cannot then choose correction or replacement since the legal relationship from which they arise has already been altered. The opposite however is feasible. That is, the buyer can seek some form of correction (repair or replacement), but if these measures fail and the time of reaction or the results are not satisfying or the food has again an essential defect or otherwise lacks the agreed qualities, then they can choose to withdraw (under the prerequisite of an essential defect). 8.5.2.4. Withdrawal according to General Provisions as a Locus Communis in Onerous Bilateral Contracts In case of excessive waiting (see under 8.5.1.), if the customer wishes to withdraw, they must give a short deadline for performance170, which is expected to be reasonable, according to case law, from five to twenty minutes171. Once this deadline has elapsed, the customer can withdraw and seek compensation and has no obligation to receive the product172. In a better formulation, the customer has the right to seek full compensation instead of performance or minor 167 That cannot be provided even by autonomous and non-harmonized national provisions according to recitals 6, 19 of the Preamble of the Directive 2019/771/EU (supra n. 128). 168 See Art. 13 para 5 (“The burden of proof with regard to whether the lack of conformity is minor shall be on the seller”) and compare Art. 11 para 1 of the Directive 2019/771/EU (supra n. 128). 169 See recital 48 of the Preamble and Art. 13(1) and (2) of the Directive 2019/771 EU (supra n. 128). 170 Compare Art. 339 GCC, § 326 BGB, Art. 107-108 OR, §§ 918 et seq. ABGB, Art. 1184 cc, Art. 1453 CC. 171 See for the considerations regarding the ‘terminability’ of the catering contract, Ramrath, supra n. 58, p. 565 et seq.; Canaris, supra n. 58, 220. 172 Compare according to Art. 389 et seq. CC, § 346 et seq. BGB, Art. 107 et seq. OR. 97 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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