service of the restaurant. In Annex to UCT Directive, the importance of all these circumstances is emphasized when assessing any significant imbalance when a no-show clause is incorporated in reservation contracts. The Annex brings an indicative and non-exhaustive list of the terms which may be regarded as unfair (the so-called ‘gray list’ of unfair contract terms). In it, among other provisions, the provision of “requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation” is highlighted as the one potentially being unfair.38 A disproportionately high no-show fee compared to real or potential loss the service provider has suffered because of the customer’s not arriving would thus signal that there is imbalance between the parties to the contract and that the no-show clause is unfair. However, when assessing the unfairness of a no-show clause, there are also some other elements that must be taken into account. If we want to establish whether a no-show clause causes significant imbalance between the parties, we must take into consideration all the rights and obligations of the contractual parties to determine their overall legal position.39 Particular significance must be ascribed to the provisions on the reservation cancellation policy, on the methods of cancelling reservations, on the time frame for their cancellation, on the period during which a reservation is still valid upon the expiry of the time specified in the contract, on the justified reasons for freeing the customer from the obligation of paying the no-show fee, as well as the provisions under which a deposit must be paid already at the time of making the reservation. In addition, when assessing whether, in connection with the no-show clause, there is a significant imbalance between the rights and obligations of the parties, it may be relevant to establish whether the contract contains a separate penalty clause against non-performance of the service provider’s obligation laid down in the reservation contract, i.e. if the service provider has not, in due time, provided a table for the consumer. Namely, it may then be important whether the consumer has any other remedy at his or her disposal so as to ensure a speedy and effective protection of his or her rights under the reservation contract. If no such remedies are stipulated in the reservation contract, general provisions of the applicable law of contract on remedies for non-performance apply which, in the case of the violation of the obligation under reservation contract by provider of restaurant service , cannot 38 Point 1/e, Annex UCT Directive. 39 In that regard see Art. 4/1, UCT Directive where it is laid down that “the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.“ 127 NO-SHOW CLAUSE IN RESTAURANT SERVICE CONTRACTS
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