accordance with the parties’ reasonable expectations and the principle of good faith (Treu und Glauben). Applying this framework, the court concluded that a reservation creates mutual obligations: the customer must appear at the agreed time with a general intention to dine, and the restaurant owner must keep the table available. However, the obligation to attend does not automatically entail an obligation to consume. A reservation merely secures the customer’s opportunity to dine; it does not bind the customer to accept an offer that proves unsatisfactory. The notion that a diner would be required to order regardless of the menu’s content was therefore deemed to exceed the ordinary scope of a reservation agreement. The judgment also addressed the issue of business risk and its proper allocation. The court emphasised that when a restaurateur voluntarily restricts the menu—for example, by offering a fixed selection on a special occasion such as Mother’s Day—the risk that the menu may not appeal to certain customers lies entirely with the restaurateur. This is an inherent aspect of entrepreneurial risk (unternehmerisches Risiko). It would be unreasonable, the court noted, to transfer this risk to a customer who made a reservation without detailed prior knowledge of the specific dishes available. It was considered irrelevant whether the customer had been informed in advance about the existence of a special menu, since such notice would not create a binding agreement to order specific meals. From the customer’s perspective, the main purpose of a reservation is to secure a place in the restaurant, not to commit to ordering a dish that might be unappealing. Having established that no contractual duty of consumption existed, the court turned to the question of restitution. The payment of the “compensation fee” was deemed to constitute unjust enrichment on the part of the restaurant owner, falling within § 812 8 (1) BGB, which provides for restitution of payments made without legal cause. The restaurateur’s claim lacked any valid contractual or statutory foundation. The court further rejected the applicability of § 8149 BGB, which prevents recovery of payments made with knowledge 8 “Claim for restitution (1) A person who obtains something as a result of the performance of another person or otherwise at his expense without legal grounds for doing so is under a duty to make restitution to him. This duty also exists if the legal grounds later lapse or if the result intended to be achieved by those efforts in accordance with the contents of the legal transaction does not occur. (2) Performance also includes the acknowledgement of the existence or non-existence of an obligation.”. 9 “Knowledge that debt is not owed Restitution of performance rendered for the purpose of performing an obligation may not be demanded if the person who rendered the performance knew that he was not obliged to do so or if the performance complied with a moral duty or consideration of decency.”. XXV
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