Dodging
As bilking is designated when in a restaurant business , the payment deprives a guest, so the innkeeper bounce to the bill. Whether and under what circumstances dodging is a criminal offense is regulated differently depending on the country.
etymology
The word collusion has been used since the 19th century. It is made up of colliery and bouncing . Colliery in the meaning of inn bill has been documented since the 15th century. It developed from the late Middle High German meaning "contribution to the common feast of a society". The same word has also been used in the meaning of mine, pit since the 13th century . The connection between the two meanings is that the second originally meant the mining cooperative, i.e. the joint participation.
Bouncing originally means bumping, hitting, throwing up . The additional meaning of cheating is derived from a hunting custom of the 17th and 18th centuries, in which a fox was repeatedly thrown up on a tightly stretched cloth and thus cheated of its freedom ( fox bouncing ). According to Duden-online of December 22, 2011, the bouncing of foxes was practiced to "amuse hunting parties". This, in turn, is derived from the bouncing of people (as a punishment or as a joke) who are thrown up “on a tightly stretched cloth”. Presumably the cloth was then left loose so that it hit the floor. This could even be carried out up to the death of the delinquent. In Vaduz Castle (Liechtenstein) there are paintings in a castle hall where rabbits revolt against people. They also throw people on cloths into the air (to bounce) until they are dead.
Legal situation in Germany
In Germany, dodging is not a legal term . From a legal point of view, dodging is to be viewed as such under civil and criminal law aspects.
Under civil law there is a breach of duty on the part of the guest who has not performed his main service within the framework of the (mixed-type) hospitality contract. In addition to the still existing performance claim, this justifies a claim for damages by the landlord from Section 280 (1) BGB . As long as the overdue bill remains unpaid and the guest has not yet left the rooms of the inn, the innkeeper is for security reasons a landlord lien by § 704 BGB on the property brought by the guest stuff to.
In criminal law, dodging is initially not a criminal offense; it only becomes a criminal offense when the conditions for fraud are met and a criminal offense has been committed. Contrary to popular belief, the German Criminal Code does not contain any specific criminal offense of dodging; however, it is possibly a case of fraudulent entry and thus an offense under Section 263 (1) of the Criminal Code . This is the case if the dodger initially deceived facts that caused a waiter to make a mistake , whereupon the waiter made an asset disposal that caused financial damage (here with the innkeeper ). The dodger must have acted intentionally , illegally and culpably with regard to these circumstances .
In this context, the problem is regularly whether the perpetrator even committed an act of deception. Only a deception about internal facts comes into consideration , namely his ability to pay or willingness to pay - he implicitly declares the existence of these two components when placing his order . If the guest believes he is both willing and able to pay at the time of the order, there cannot be any fraud - even if the guest does not pay later for whatever reason. Fraud only exists if the guest did not intend to pay from the outset.
If there is suspicion of buffeting, the host can call the police or detain the guest if he does not identify himself; If necessary also with force: In the event of a criminal offense, this allows everyone's right of arrest from § 127 Paragraph 1, 3 StPO, otherwise self-help , § 229 BGB intervenes to determine the identity.
Legal situation in Austria
In Austria, bill cheating is considered fraud in accordance with Section 146 of the Criminal Code . The perpetrator sets a deception about facts, whereby the deception takes place about the inner facts that the bill dodger is deceiving the innkeeper about his existing intention that he can or wants to pay for the ordered food and drinks. The deception itself is the overall behavior that is misleading through a suitable coherent action, that is, whoever orders food as a guest clearly declares that they are ready to pay immediately. From a police point of view, if the perpetrator does not have any means of payment, it is assumed that he intends to commit fraud.
Legal situation in Switzerland
In Switzerland, dodging is a separate criminal offense ( Art. 149 StGB ) and is threatened with imprisonment of up to 3 years or a fine.
The reason that the dodging is regulated in a separate article is that fraud only exists if the intention to damage already existed when the asset shift was initiated (in this case when the order was placed). In practice, this would regularly lead to insurmountable difficulties in providing evidence. The current regulation now means that the hospitality relationship is privileged over other contractual relationships, because the mere breach of contract (i.e. the mere subsequent non-payment of a service received) is punishable under criminal law, which is actually alien to the system. That has been criticized, but the legislature has stuck to the existing regulation.
The case law regards dodging as a catch-all , which only applies if there is no fraud (or evidence), and not as a lex specialis that takes precedence over fraud. If, for example, a penniless person is entertained in a noble inn, knowing that he will never be able to pay the bill in the first place, then he is not cheating, but fraud.
Legal situation in France
In France, cheating is punishable by six months imprisonment and a fine of 7500 euros under Article 313-5 of the Code pénal . The prerequisite for criminal liability is fraudulent intent, i.e. This means that the guest already knew when placing the order that he would not be able to or would not pay.
Individual evidence
- ↑ a b Duden, Volume 7, 1989
- ↑ Page no longer available , search in web archives: einsfestival.de: Liechtensteins princely legacy , film by Wilfried Rogasch - Wed 21.12. at 4.15 p.m. - first broadcast by FSO: May 20, 2002
- ^ Karl Heinz Hänssler, Management in the Hotel Industry and Gastronomy , 2011, p. 386
- ↑ Stratenwerth 1995, BT 1, 16 N. 45
- ↑ BGE 72 IV 120, BGE 75 IV 17
