III. THE RESERVATION In the tourism sector, recourse to so - called reservations is frequent. Generally speaking, a reservation is qualified as a transaction that “intervenes in the prodromal phase of the conclusion of a contract and performs the function of ‘stopping’ a bargain while postponing the final arrangement to a later time”12. The mere reservation, i. e. without a demand for the payment of a sum of money, is not the sole responsibility of the entrepreneur, because the customer is not free to decide whether to show up. In fact, the reservation is a bilateral preliminary agreement. If, for social convenience, the company does not demand compensation in the event of the non - performance, the restaurateur is nevertheless bound. In fact, both parties are obliged; the restaurateur undertakes to perform the service and the customer to turn up on the agreed day and at the agreed time. Rather, a relationship with bilateral obligations arises from the preliminary contract. The proposed reconstruction is consistent with what is increasingly happening in many restaurants of a certain level, where the reservation is made by means of the site, with the request to pay a sum of money. The service has not yet been identified and the agreement is at a stage prior to the conclusion of the final one. Therefore, the amount is a down payment, entirely consistent with the preliminary agreement13. It is an alternative remedy to termination of the contract for non - performance and it is a power of the performing party to withdraw and retain the deposit14. With this request, the restaurateur wants to exert pressure on the customer and, at the same time, to protect himself in the event that the latter decides not to turn up, for whatever reason. In fact, both Italian and foreign restaurants emphasise the obligation to go to the venue and provide that the deposit be retained precisely in relation to any non - fulfilment. Thus, the qualification of the agreement as a bilateral preliminary is confirmed. 12 See V. Franceschelli, Reservation, in Aa. Vv., Manuale di diritto del turismo, edited by V. Franceschelli - Morandi, Turin, 2017, 155 ff.. 13 See Cass. 3 November 2017, no. 26206, in Nuova giur. civ. comm., 2018, 538; Cass. 30 September 2016, no. 19403, in Giur. it., 2017, 315; Cass. 30 November 2015, no. 24337, in Giur. it. rep., 2015; Cass. 20 May 2015, no. 10306, in Foro it., 2015, 3904; Trib. Nocera Inferiore 24 June 2014, in Giur. it. rep., 2014. 14 See Trib. Salerno 2 October 2012, in Giur. it. rep., 2012. 25 RESTAURANT CONTRACTS AND GASTRONOMY
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