restaurant (to take away if not to have the meal for themselves97) and pay for the counter-performance of the restauranteur. However, if one person (the customer who concluded the contract as the counterparty of the restaurant) pays the consideration as a treat for the ‘customers’, it is considered a genuine ‘contract for the benefit of third parties’98: the third parties (the ‘customers’) may derive rights from this contract visà-vis the provider/seller, as in that case, even if it is not agreed between the counterparties, the restauranteur and his counterparty, the result is to conclude according to the nature and the purpose of the contract99. 8.1.3. Reservations (réservé) as a Form of Conclusion of the Contract Regarding the legal nature of reservation in the restaurant100, especially whether it is an already concluded contract or not, an issue is raised when the contract does not include all the necessary elements (essentialia negotii)101. 8.1.3.1. Duty of Propriety Even in this case, however, it could not be argued, in general, that the contract is not legally binding, and that it constitutes only a duty of propriety that binds the restaurateur only from a social-moral perspective102. 97 Although in the latter case the interpretation would lead more to the above results, that the ‘customer’ stands as the legal representative of the consumers and genuine counterparties. 98 For the so-called ‘genuine contract in favour of a third party’ (Art. 411 CC, Art. 112 Abs II OR, § 328 II BGB, § 881 II ABGB, Art. 1410 II CC), see Stathopoulos & Karampatzos, supra n. 10, 200 et seq.; Christodoulou, supra n. 53, § 5 I H. 99 In order for the third party to have a direct right against the debtor, it must be possible to conclude this from the will of the parties (e.g., the parties have agreed that the third party should have a direct right) or from the nature and aim of the contract (e.g., the aim of the juridical act may be fulfilled only by a recognition of a direct right of the third party). If such a conclusion cannot be drawn, the ‘contract in favour of a third party’ is not genuine (see Art. 410 GCC, Art. 112 Abs I OR, § 328 I BGB, § 881 I ABGB). See Stefan Vogenauer, ‘Contract in Favour of a Third Party’, in Max Planck Encyclopedia of European Private Law, 2012 (available at https://max-eup2012.mpipriv.de/index.php/ Contract_in_Favour_of_a_Third_Party, accessed 15 July 2025). 100 See Huguenin & Rusch, supra n. 19, Rz. 10-13 with further references. 101 However, no problem arises for reservation that has all the necessary elements such as name, telephone number, day and time and number of persons. In this case the contract, including all essentialia negotii (and moreover the accidentalia negotii, when even specific dishes etc. are ordered) is considered as a concluded one. 102 Only for reservations without identification (name, telephone number etc), would be correct to accept a pure courtesy with no concluded and legally binding contract. As a result, the guest must expect that the restaurateur will give the seat to someone else, and the restaurateur, for their part, must expect the guest not to show up. Compare from the German jurisprudence, the decision of the District Court of Siegburg, from 30.11.1990, Nr. 6 C 464/90, in Neue Juristische Wochenschrift 1991, 1305-1306, according to which by reserving a table in a restaurant, the guest undertakes the obligation to arrive at the agreed time and, in principle, to order a meal. However, the above court qualified this obligation by stating that no claim for damages arises if the guest does not find any dishes on the menu that appeal to them and wishes to leave the restaurant, although in our opinion that kind 83 THE (RESTAURANT) CATERING CONTRACT IN TOURISM
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