risks and losses caused by the customers’ missed appointments and thus by not providing the service which would have been supplied had the customer arrived. By charging no-show fee, it is easier for restaurants to consolidate their losses because of the customers’ no-shows and the service not being provided. When charging no-show fee, the providers of restaurant services do not have to prove their actual losses or damages because of missed appointments or any other unfulfilled preconditions normally required for the compensation of damage. As a rule, the providers of restaurant services are allowed to charge no-show fee even if not having suffered any damage or loss by not having supplied their service. All these functions and characteristics of the obligation to pay no-show fee lead to the conclusion that it functions as a specific remedy for non-performance of the obligation which, for the customer, arises from a reservation contract. Indeed, a restaurant reservation contract is actually a mutual obligation service contract between the provider of restaurant services and the customer.5 Under this contract, the provider’s obligation is to provide a table and the restaurant service for the customer in due time and the customer is obliged to arrive at the restaurant in due time to use the service supplied by the restaurant. The contract is concluded at the moment when the restaurant, i.e. the provider of restaurant services, has accepted the customer’s reservation to arrive in due time and be provided the service. The reservation contract can be concluded separately from the contract on the gastronomic service which is made only upon the arrival at the restaurant when the customer chooses any of the offered restaurant services. It is also possible that a reservation contract is a part of the contract on the gastronomic service if its provision is agreed upon together with the reservation (e.g. specifying a particular number of persons, it being a specific event, or the like). If the customer does not arrive at the restaurant in due time, it is held that he or she has not fulfilled the obligation from the restaurant reservation contract. As the result, the restaurant’s obligation to provide a table has also ceased to exist.6 Therefore, a restaurant reservation contract can also be considered as a fixed contract which is terminated as soon as the customer fails to arrive at the restaurant in due time. The realisation of the customer’s contractual obligation to arrive at the restaurant in due time is considered to be the essential element of this contract. 5 In that regard also Seidel, J.: AGB-rechtliche Zulässigkeit von Stornierungsgebühren bei Restaurantreservierungen, Neue, Jurististische Wochenschrift 2024, p. 2800. 6 See Seidel, J.: o.c., p. 2800. 118 TATJANA JOSIPOVIĆ
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