the essential elements of a service, work, and sales contract. Unlike the lodging contract, which involves the transfer of room use, this type of accommodation contract is not governed by tenancy law principles. The court determined that the defendant had entered into a contract of sale with the plaintiff for the supply of the specified bottle of wine pursuant to §§ 433 et seq. BGB. The defendant’s contention that the transaction constituted a sale on approval was rejected. The small tasting offered by the waiter served only to allow the guest to ascertain whether the wine had an off-flavour, such as cork taint, and, contrary to the expert opinion, also to assess the serving temperature. A sale on approval arises only when the parties agree that the sale shall take effect subject to the buyer’s approval, which may be given or withheld at his discretion under § 4951 BGB. No such intention existed here; a restaurateur does not serve prepared dishes or ordered beverages on the condition that the guest may arbitrarily reject them without payment. Accordingly, the transaction was a general sale: the defendant ordered a wine of a certain type from the list, not a specific bottle. The seller’s obligation was thus to provide a bottle of average quality and kind from her stock. Since the wine served matched the usual qualities of the designated vintage and variety, and no defect of substance was proven, the plaintiff fulfilled her obligations under the contract of sale. The alleged excessive temperature did not constitute a defect in quality but rather a defect in service, which, in law, does not affect the validity of the sale. The court further held that the guest accommodation contract, in addition to its sales element, contains the independent and equivalent element of a service contract. The guest, particularly in a high-status establishment, places special value on the quality of service. The defendant’s complaints related not to the product itself but to the manner of service—the use of an ice bucket, the insufficient pre-cooling of the wine, and the impolite response to his complaint. Under § 2782 BGB, the hotelkeeper is responsible for the conduct of his serving staff as his own. A service relationship may be terminated immediately by either party for an important reason under 1 “Right of revocation 1. In the case of a consumer loan contract, the borrower has a right of revocation under section 355. 2. Subsection (1) does not apply to the consumer loan contracts referred to in section 493 (1) sentence 1 if, under the contract, the borrower may repay the loan at any time without complying with a notice period and without additional charges.”. 2 “Responsibility of the obligor for third parties The obligor is responsible for fault on the part of his legal representative, and of persons whom he uses to perform his obligation, to the same extent as for fault on his own part. The provision of section 276 (3) does not apply.”. XXII
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