Gavin Howe
In Germany, a person can sue a restaurant for a variety of reasons, such as finding a cockroach in their food or suffering from food poisoning. In the case of finding a cockroach in the food, the customer may be sued for defamation if the restaurant can prove that the customer was lying with malicious intent. On the other hand, if a customer suffers from food poisoning, they may be able to file a personal injury lawsuit against the restaurant, but they must prove that they became sick through contaminated food. In Germany, there are also specific requirements and procedures for opening a restaurant, including obtaining a trade license and developing an effective marketing strategy.
| Characteristics | Values |
|---|---|
| Country | Germany |
| Plaintiff | Customer |
| Defendant | German restaurant |
| Grounds for lawsuit | Negative review, food allergy, negligence, defamation, etc. |
| German civil procedure buzzwords | falscher Beklagter, fehlende Passivlegitimation |
| German criminal law terms | Verleumdung, üble Nachrede |
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What You'll Learn
Suing for a food allergy
In Germany, there are no federal food allergy laws for restaurants. However, this does not mean that a restaurant cannot be held liable for negligence in the event of a customer suffering an allergic reaction.
In general, a food allergy lawsuit may be filed if a person suffers injuries due to an allergic reaction to food that was prepared or served negligently. For example, if a customer informs staff about their allergies, and the staff assure the customer that their meal will be allergen-free, but the customer still suffers an allergic reaction, the restaurant may be liable for personal injury or wrongful death.
In such cases, the plaintiff must prove that the restaurant breached its duty of care by ignoring the customer's allergen information or failing to train food service staff properly. The plaintiff must also prove that the restaurant's breach of duty directly caused the injury, resulting in exposure to the allergen, and subsequent anaphylaxis and/or death. The plaintiff may also have to prove that the restaurant had prior notice of the customer's food allergy.
If you or a loved one has suffered an allergic reaction from a restaurant's negligence, it is recommended to consult a personal injury attorney for legal advice and to understand your options and rights.
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Suing for negligence
Defamation and Negative Reviews
In Germany, freedom of expression is protected by law. However, this right has limits, particularly when it comes to defamatory statements. If someone posts negative reviews containing false statements of fact that damage the reputation of a business, the business may have grounds for a defamation claim. It is important to distinguish between assertions of fact and expressions of opinion, as opinions are generally protected, while false factual assertions are not.
Food Allergy Negligence
If you suffer an allergic reaction due to a restaurant's negligence in Germany, you may be able to sue for personal injury. Restaurants can be held liable if a customer can prove that the restaurant's negligence caused their injury. It is important to note that the customer must provide proof that the restaurant was made aware of their food allergy. In such cases, the restaurant may be found to have breached its duty of care by ignoring the customer's allergen information or failing to train their staff properly.
Medical Malpractice
Suing for medical negligence in Germany can be challenging due to the involvement of insurance companies and the lengthy litigation process. It is recommended to stay calm and collect as much factual information as possible before initiating legal action. The burden of proof lies with the plaintiff, and it is crucial to meticulously document every mistake, omission, or unclear documentation by the medical staff. Additionally, German courts may award significantly lower compensation amounts for damage claims compared to other countries.
Tort Claims
The general legal requirements for suing someone in Germany based on tort are outlined in the German Civil Code. It is important to note that tort claims in Germany usually have a limitation period of three years, but determining when this period starts can be complex. Additionally, contributory negligence on the part of the injured person may reduce the tort claim or, in extreme cases, nullify it entirely.
Jurisdiction
When suing for negligence in Germany, it is important to determine which court has jurisdiction. In cross-border healthcare situations within the EU, claims are typically asserted in the healthcare provider's state of residence. However, there may be specific circumstances where claims can also be asserted in a different EU member state, such as the state in which the treatment was carried out.
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Defamation claims
German law protects freedom of expression and freedom of opinion. However, this right has limits, particularly when it comes to defamatory statements. German defamation law recognises defences against defamation claims, such as truth (Wahrheit), privilege (Schutzgesetz), and fair comment (zulässige Meinungsäußerung).
German law distinguishes between Tatsachenbehauptung (assertion of fact) and Meinungsäußerung (expression of opinion). While opinions are broadly protected, false factual assertions are not. If a review contains false statements of fact and these statements damage your business's reputation, you may have grounds for a defamation claim.
In the case of a restaurant owner in Germany dealing with a negative review, it is essential to understand the legal framework around online reviews and freedom of speech, as well as potential defamation claims. A common initial step in addressing issues with a negative review is to send a cease and desist letter. This letter should be clear and concise and should outline your complaint, specifically stating the alleged defamatory statements and explaining why they are false or misleading.
In Germany, the burden of proof for the untruth lies with the applicant in the case of injunctive relief, rectification, or claims for damages. However, the falsehood of the violating statement does not have to be proven or substantiated. The limitation period for injunction proceedings is generally up to 5 weeks after publication or knowledge of the infringing publication. The limitation period for main proceedings is generally three years after the end of the calendar year in which the claim arose.
German criminal law also provides fundamental formulas for defamation offences, with personal honour being enshrined in § 185 StGB. This provision stipulates that anyone who unlawfully insults another person's personal honour through spoken, written, or otherwise communicated statements can be subject to criminal liability.
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Negative reviews
In Germany, negative reviews of restaurants are protected by freedom of expression according to Article 5 of the German Constitution. However, negative reviews that infringe the guidelines of the portal or the right of personality (Article 2(1) in conjunction with Article 1(1)) may be removed. Reviews that are untrue, insulting, or exceed the limits of permissible expression of opinion may be considered for deletion and can be enforced by a law firm.
German law firms offer services to protect businesses against unjustified reviews, with procedures such as notice-and-take-down letters, warnings, and legal action if the review is not deleted. These firms assess the likelihood of successfully removing the negative review and then take action, if requested by the business.
While there is no specific mention of suing a German restaurant under German law, there are some insights into the dining culture and expectations of service in Germany that may contribute to negative reviews. For example, it is noted that German waiters do not typically banter with guests, and asking questions about the food or their opinions on different dishes may annoy them. Additionally, it is uncommon for waiters to greet customers warmly or ask how they can be of help. Instead, they may simply ask how many people need to be seated.
Some expats have expressed frustration with the service in German restaurants, noting that it is rare to find one where the service isn't bad. However, it is important to distinguish between the cultural norms of service in Germany and other countries. Germans tend to be less fussy about the way people are addressed, the language used, and the use of "please" and "thank you".
In conclusion, while there is no explicit mention of suing a German restaurant, negative reviews are protected by freedom of expression in Germany, and there are legal avenues to address unjustified or insulting reviews. Additionally, cultural differences in service expectations may contribute to negative reviews from expats or foreigners.
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Naming the defendant
When suing a German company or corporation, it is crucial to be precise and accurate when designating the defendant. German civil procedure rules require that the name of the defendant company, corporation, or partnership be absolutely precise, complete, and up to date. Any inaccuracies or mistakes in naming the defendant can result in losing the lawsuit, a situation referred to as "falscher Beklagter" or "fehlende Passivlegitimation".
To avoid this pitfall, it is essential to conduct thorough research to ascertain the official legal name of the entity you intend to sue. This involves more than simply relying on the company's website or stationary, as many companies only provide a shortened version of their name in these sources. Instead, it is recommended to utilize the German company register (Handelsregister) to verify the correct and full legal name. For example, a company website might refer to the company as "airstage," but upon further investigation using the company's address or company number, it could be discovered that the official name is "Effekt-Technik GmbH."
Particularly when dealing with large corporations, it is important to be vigilant about naming the correct defendant. These corporations often have numerous subsidiaries and project companies with very similar names, sometimes differing by just one letter, figure, or the addition of a town name. Therefore, it is crucial to verify the precise name of the specific entity within the group structure that you intend to sue.
In addition to the name, it is also important to verify the business address of the defendant. Any carelessness or inaccuracy in stating the defendant's business address can have negative consequences for the lawsuit. German company registers, such as the official company register website Unternehmensregister, can be invaluable tools for obtaining accurate and up-to-date information about the defendant's name and address.
By taking the time to conduct this due diligence and ensuring the defendant's name and business address are correct, you can avoid costly and embarrassing mistakes and increase the likelihood of a successful outcome in your lawsuit against a German company or corporation.
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Frequently asked questions
No, but the restaurant can sue you for defamation if your review contains false statements of fact that damage their business's reputation. German law distinguishes between Tatsachenbehauptung (assertion of fact) and Meinungsäußerung (expression of opinion). While opinions are broadly protected, false factual assertions are not.
You can sue the restaurant for negligence. Take photos of the insect in your food, and report the restaurant to the local Gesundheitsamt.
You can sue the restaurant for damages if you can prove that the restaurant breached its duty of care, and that this breach caused your injuries. Most fatal allergic reactions occur outside the home, so it is important to make your food server aware of your allergies before ordering.
You must be precise and up to date with all factual information about the parties involved. The name of each company, corporation, or partnership must be correct, or you may lose the lawsuit.
Consult a local attorney familiar with the laws in that jurisdiction. They can help you gather evidence and navigate the legal process.
