Fitness subsidy: BGH agrees with the plaintiff – finances

The fitness centers have long since reopened. But a dispute from the time of the Corona-related closures still awaited binding clarification: Can customers claim their money back? Now the Federal Court of Justice (BGH), the final instance in such questions, has given an answer – a clear yes.

A plaintiff from the Papenburg area had entered into a two-year contract with a gym for 29.90 euros a month, which, so to speak, was to start in December 2019 on the eve of the pandemic. After only three months, the studio had to close by official order from March 16 to June 4. The customer canceled and demanded his money back or at least a “voucher”, while the studio only offered a “credit for training time”, which the plaintiff refused. In short: they met in court.

As in the city court and the high court, BGH now also awarded the man a claim for compensation of almost 90 euros. (Az. XII ZR 64/21). The tricky legal question was: Can’t you just add the lost time to the end instead of giving the customer a claim for a refund? Legally, this would be possible if one sees the pandemic and the official orders as “disruption of the business foundation”. Then the contract could simply be adapted accordingly.

However, the Federal Court ruled against this route. A unilateral extension of the contract period with the study is therefore excluded. It would be necessary for both sides to agree to make up for the lost time.

This is because, according to BGH, the purpose of such a contract is not to go into the studio later – fitness can not be made up for. The operator owes the customer the opportunity to “continuously enter the studio and use the training equipment,” writes BGH. Because the purpose is “regular physical activity” and thus serves fitness or maintenance of health. “Because of this, the regular and year-round opening and usability of the study is of crucial importance to the contract partner,” the decision reads. The legal consequence of this is that if the studio is closed, it will be “impossible” for the operator to provide its contractual service because it can not be postponed – which means that the customer is no longer entitled to payment.

The question of the voucher is left. From May 2020, there was a voucher scheme for unusual “sporting and other leisure events”, a measure to ensure that the culture and leisure industry survived the pandemic. However, according to BGH, this means a real voucher that can be redeemed for cash if necessary. The mere “credit for training time” is not sufficient. In addition, even a voucher would not have exempted the studio from its repayment obligation – because if you look closely, it is nothing more than a deferral. The law gives a deadline of the end of 2021. If the voucher has not been redeemed for additional fitness hours before then, the customer can still claim the money back.

Membership fees for sports clubs are non-refundable

It is unclear whether many such disputes are still open. In most cases, both sides have probably reached a pragmatic agreement anyway. In any case, the judgment corresponds to the line that has been represented, for example, by the Federal Association of Consumer Organizations (VZBV), with reference to judgments of the courts of the lower instances. The consumer lawyers also point to another section of the Voucher Act. Thereafter, redemption can also be refused if the reference to the voucher is unreasonable due to personal circumstances – ie in case of acute lack of money. Of course, after the voucher period has expired, it should no longer play a decisive role.

With regard to the other rights and obligations in connection with fitness, yoga or dance studies, VZBV points out that the customers were only entitled to terminate the contract after the periods specified in the contract – but not for termination without notice. For the opportunity to use the studio was not permanently lost with the temporary closure, but only in a manageable phase.

And one more thing to keep in mind: what applies to studies can not be easily transferred to clubs – for example, to sports clubs. Because the membership fee is not a payment for a specific benefit, but promotes the association’s purpose. And a repayment obligation would not be compatible with that.

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