Repayment of contributions and unilateral contract extension

The Corona lockdown hit the gyms hard. The industry had to shut down for a long time, much to the annoyance of the members. However, we observe that fitness center operators nationwide are trying to pass on the corona-related failures to consumers through unilateral contract extensions – despite extensive financial support.

A unilateral contract extension of the gym contract usually happens with one fixed rate “Disruption of the business basis” according to § 313 para. 1 PGI to the detriment of the consumer. However, there is not (yet) a Supreme Court ruling on the legality of such an approach.

* Update *: Preliminary conclusions can also be drawn from a recent decision of the Federal Court of Justice of 12 January 2022 (Az .: XII ZR 8/21) adjusting a rent payment for months after the Corona-related closure of the company. BGH decided that a fixed rate Regulation due to the contracts’ § 313 para. 1 PGI is not possible, but a case-by-case decision / overall assessment must be made, so that, among other things, all compensation payments (financial support and company closure insurance) must be included. (see our article). This supports our arguments in all lawsuits and our argument that such fixed contract adjustments, which are made by most gyms, are not legal, and also compensation payments that have just been paid for loss of membership fees (November and December support) should be taken in consideration. After all, in most cases it will not be justified on the one hand to receive financial support and at the same time charge additional membership fees by extending the contract. In such a case, there would be a risk that the gym would feel better than before it was closed due to corona. This is not intended, in particular not with regard to an individual case assessment within the framework of § 313 para. 1 BGB.

Is my gym eligible for the corona lockdown period contributions or in the event of a 2G restriction?

Many courts, including the District Court of Hamburg, ruled on 11 June 2021 (Az. 9 C 95/21) that a fitness center is not entitled to the payment of contributions from the consumer / his member during the period of Corona-related closure.

Due to the officially ordered closure of the gym from November 2020, it became impossible for the gym to provide its contractual service, namely the provision of fitness equipment, in accordance with § 275 (1) BGB. To the extent that the members submit “compensation offers”, eg through vouchers, these – according to the court – are basically not suitable for execution, ie they can not replace the originally contractually agreed benefit.

If the fitness center is unable to provide the due service due to impossibility, the members’ obligation to pay compensation will also lapse, ie the obligation to pay pursuant to section 326 (1). 1, HS. 1 BGB.

According to the court, the member does not have to pay contributions during the corona lockdown. Nevertheless, it is up to everyone to support their gym as there is also a time after a corona lockdown where the studio is taken into use.

Here you can draw attention to the fact that due to the study operator’s impossibility of the service, you are exempt from the obligation to pay pursuant to section 326 (1) HS. 1 BGB is exempt.

The same applies if the member is not vaccinated and access to the gym is denied due to the current 2-G regulation. Even in such a case, the fitness center will not be able to provide the contractually agreed service, so there is no corresponding payment obligation.

Many members claim back paid contributions as soon as the gym operator wishes to enforce an unauthorized unilateral extension of the contract upon termination of the member (see paragraph 3).

2. What happens if I still paid during the Corona lockdown?

Due to the exemption from the obligation to pay pursuant to section 326, subsection 1 Hs.1 BGB, recovery of the paid contributions is also possible with retroactive effect and is even a proven means of defending against payment claims from unilaterally extended periods.

the “voucher solution” introduced with the amendment of 20. May 2020, art. 240 EGBGB, § 5, is already running 31/12/2021 out of. Until now, the consumer has had to accept a voucher in accordance with the introduced Article 240 EGBGB, § 5. However, this only applies to contracts entered into before 8 March 2020. This regulation expires soon, so no voucher must be accepted by on January 1, 2022.

Can my gym unilaterally extend my contract after I give notice?

The question of whether the fitness studio can unilaterally extend the contract period – eg after termination – to the time when the studio was closed due to the pandemic, is not finally clarified by the Supreme Court.

Following termination by the member, the fitness centers refer to an interruption of the business basis pursuant to section 313 (1) of the BGB and extend / postpone the contract period upon closure. The operator of the fitness center then claims that the circumstances on which the contract was based have changed significantly after the conclusion of the contract (corona lockdown) and the parties would not have entered into the contract or would have entered into it with a different content if they had foreseen this change .

* Update *: With the recent judgment of the District Court of Ludwigsburg dated March 28, 2022 Az. 10 C 1877/21, the court ruled that § 313 (1) BGB due to the right to interrupt performance under specialty. with §§ 275 (1) ff. BGB (impossibility) is not applicable at all.

By the same judgment (not yet final), the Regional Court of Osnabrück ruled on 9 July 2021 (Az. 2 S 35/21) that a unilateral / permanent extension of the contract is not possible without the consent of the consumer. There are also other judgments at first instance, such as the judgment of the District Court of Papenburg (Az. 3 C 337/20) of 18 December 2020 or the District Court of Schöneberg of 6 May 2021 (Az. 13 C 99) / 20) .

New judgments against the actions of the gyms: Frankenthal District Court judgment of 9 July 2021 (Az. 3c C 4/21) and Augsburg District Court judgment of 12 August 2021 (Az. 25 C 2237/21), judgment of Würzburg Regional Court of 24 August 2021 (Az. 11 O 684/21 UWG)

Judgment of the City Court of Würzburg of 24 August 2021 (Az. 11 O 684/21 UWG) confirms our legal view:

“That Announcement from the fitness studio to consumers that a contract will be extended by the months of the closure due to the official closing time misleading consumers The temporary closure of the studios could not to a contract adaptation in the form of a contract extension. On the contrary, both parties are exempted from their obligation to act during this period. In the court’s view, an extension of the contract was also unreasonable. ”

Reason: Many gym operators mention judgments in their letters that have no relation to the member’s contract / situation. Fitness studies thus justify the presumed appearance that the courts have ruled on a comparable situation. This wrongfully misleads consumers.

A reference to this case law can be made to the study operator in the event of a unilateral / permanent contract extension.

If requirements such as If membership fees from unilaterally extended periods are claimed by the gym, it is advisable to object to such an inquiry and claim a refund of fees paid during the Corona-related closure. We combine repayment of contributions with defense of a claim from the gyms for a unilateral contract extension. We note that the gyms, especially in such cases, refrain from recovering a claim.

Typical example: The member terminates the contract in accordance with the contract and in good time per. 31 December 2021. The operator of the fitness center confirms the termination and sets the end date of the termination as 31 May 2022 or 31 July 2022. This is due to the Corona-related closure and the “disruption of the business basis under § 313 BGB. The operator of the fitness center then continues to demand (unjustified) payment of the membership fee for the extended period.

4. Is it worth taking legal action against the gym?

Often, an out-of-court lawsuit is enough to persuade the gyms to give in.

A lawsuit always carries risks, as the respective high court can also decide differently. There is no Supreme Court ruling that guarantees some legal certainty. It can be observed here that the courts decide at their own discretion when instituting legal proceedings under § 495 a ZPO, as the amount at issue does not normally exceed € 600. Experience has shown that there is no oral hearing. As a rule, the lawyer and the parties must not travel to the meeting place.

Many members directly revoke the debit authorization for the extended period. In such a case, the operators of the fitness center try to collect the contributions for the extended period from the members by force through reminders or legal reminder procedures. Here it is left to defend oneself legally against unjustified claims.

We represent customers across the country when enforcing their rights or defending ourselves against unwarranted claims from gym operators. Some gym chains refrain from unilateral contract extensions even though they seek legal help, as legal clarification also poses a cost risk to the gym.

In addition to legal representation, we also offer our clients a sample letter for the recovery of contributions and for defense against a unilateral contract extension. If you are interested, this can be delivered – at a low price – Inquiries by e-mail: [email protected]

Lawyer Felix Kushnir works nationwide and specializes in civil and commercial law. Further information and contact information: www.fk-kanzlei.de

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