All the functions of the obligation to pay a no-show fee specified in the restaurant reservation contract suggest that the no-show clause, in its nature, is a penalty clause for non-performance of contractual obligations.7 Stipulation of a penalty clause is allowed in many national legal orders and it is governed by the rules of general law of contract.8 It exists as a specific remedy for non-performance of obligations governed by various principles of contract law and model rules of contract law.9 It is a contract term the contractual parties must expressly stipulate (the so-called accidentalia negotii) in order to determine in advance the obligation of payment of a pecuniary indemnity against non-performance of obligation. The penalty clause lays down a specific amount of money the debtor is bound to pay in the case of non-performance and, as a rule, regardless of whether the creditor had any actual loss or damage due to non-performance. In that sense, stipulation of a penalty clause has a particularly important role to ensure the fulfilment of non-pecuniary obligations where by other remedies, only the fulfilment of non-pecuniary obligation or compensation of damage may be claimed.10 Penalty clause has precisely the goals achieved by the no-show clause in restaurant service contracts. It puts pressure on the debtor to fulfil his obligation under the contract and it thus has a preventive role by demotivating the debtor to act in the way resulting in nonfulfillment of his obligation. At the same time, it is easier for the creditor to collect the stipulated penalty more quickly, particularly when the debtor has given some security deposit in advance 7 See Seidel, J.: o.c., p. 2800. 8 As a rule, national legal orders prescribe that the payment of the penalty clause replaces damages or that the creditor, having collected the penalty fee, is entitled to only the part of the damages which exceeds the amount of the contractual penalty. There is often also the possibility of the reduction of the excessive amount of the penalty. On the legal regulation of the penalty clause in individual European countries see the notes in Art. III-3.712: Stipulated payment for non-performance in Principles, Definitions and Model Rules of European Private Law - Draft Common Frame of Reference (DCFR), Edited by Christian von Bar, Eric Clive and Hans Schulte-Nölke and Hugh Beale, Johnny Herre, Jérôme Huet, Matthias Storme, Stephen Swann, Paul Varul, Anna Veneziano and Fryderyk Zoll, pp. 978-981, published at http://storme.be/european-private-law_en.pdf, accessed: 5/10/2025; Baum,M.: Vertragsstrafe in Handwörter der Europäischen Privatrechts, Band II, Basedow, J., Hopt, K.J., Zimmermann, R (Hrsg), Tübingen, 2009, pp. 1702-1704. 9 For example, see Principles of Contract Law/PECL, Art. 9:509: Agreed Payment for Non-performance, https:// www.trans-lex.org/400200#head_153 (accessed: 5/10/2025); Draft Common Frame of Reference (DCFR), Art. III.- 3.712: Stipulated payment for non-performance, http://storme.be/european-private-law_en.pdf (accessed: 5/10/2025); UNIDROIT Principles of International Commercial Contracts 2016, Art. 7.4.13: Agreed payment for non-performance, www.unidroit.org/wp-content/uploads/2021/06/Unidroit-Principles-2016-English-bl.pdf (accessed: 5/10/2025). For more see Baum, M.: o.c., p. 1704. 10 In some legal orders, it is expressly stated that the contractual penalty may be stipulated only for non-performance or overdue performance of non-pecuniary obligations. For example, see Arts 351-356. Croatian Obligations Act (Official Gazette NN, No. 35/05, 41/08, 125/11, 78/15, 29/18, 126/21, 114/22, 156/22, 145/23, 155/23). For more see Nikšić, S.: Contract Law in Introduction to the Law of Croatia, T. Josipović (ed.), Alphen aan den Rijn, 2014, pp. 156, 157. 119 NO-SHOW CLAUSE IN RESTAURANT SERVICE CONTRACTS
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