Gymnastics fees after corona-related closure | Right

Fitness studios must refund contributions charged by direct debit from their members after the gym closes due to corona. BGH clarified this in a basic decision.

Subject of the case settled by BGH was the claim for reimbursement from a member of a gym. The plaintiff was of the view that he was not obliged to pay the monthly dues during periods when the gym was closed due to corona. The Supreme Court has now confirmed this view.

Membership fee is charged even during the closing of the study

The plaintiff had entered into a 24-month fitness contract with the operator of the gym. As a result of the government’s measures to combat the COVID-19 pandemic, the gym had to close during the contract period from mid-March to early June 2020. Also during this period, the gym operator charged the agreed monthly contingent from the applicant’s account. by direct debit. At the end of the agreed contract period, the applicant terminated the membership contract.

Member sued for refund

After the operator of the gym was not willing to meet the plaintiff’s claim for repayment of the fees charged for the period of the corona-related closure of the gym, the plaintiff sued for reimbursement of the fees.

Closure of the company resulted in legal impossibility to perform

According to the current decision of the Federal Court, the plaintiff is appearing Right to a refund of the membership fee during the closing period in accordance with §§ 275 para. 1, 326 pcs. 1 point 1 and para. 4, 346 pcs. 1 BGB. According to § 275, paragraph 1 of the German Civil Code, claims for compensation are excluded if the debtor (or anyone else) is unable to perform the service. This legal impossibility happened, according to BGH’s assessment, because defendant had to temporarily close its gym due to sovereign measures to combat the COVID-19 pandemic. During this time, she was prevented from fulfilling her most important contractual obligation.

Impossibility not only temporary

According to BGH’s judgment, this impossibility of performance was also not only of a temporary nature. Due to the fitness contract entered into, the defendant was obliged to give the plaintiff the opportunity to train continuously in his studio. Regular physical activity is the purpose of an exercise contract and therefore can not be settled at a later date. When the studio was closed, it had finally become impossible to achieve the purpose of the contract, and the claim for remuneration had thus ceased.

Fitness center required adjustment of the fitness contract

The defendant had argued that the sovereign closure measure following the corona pandemic the business basis of the fitness contract under § 313 BGB permanently disturbed. This disorder requires one adjustment of the contract that the contract period is extended at the time of termination, so that the debt due can be repaid after the end of the ordinary contract period.

No case of disruption of the business basis

BGH rejected this legal opinion from the defendants. A regulation of contractual obligations is generally excluded if according to rules of impossibility of the benefit, the law excludes the right to remuneration. If § 275, para. 1, BGB applies, the application of the rules on termination of the contract basis is excluded.

Coupon solution for insolvency protection

In BGH’s view, the contractual adjustment requested by the defendant under Paragraph 313 of the BGB is also precluded here because the legislature with Paragraph 240 § 5 (1) is created by the corona pandemic. With this provision, the legislature wanted to protect the organizers and operators of leisure facilities from insolvency by allowing them to reconcile the authorized user instead of reimbursing paid entrance fees coupon to the value of the loss of use incurred.

Coupon solution replaces business fundamentals

The Federal Court considers this voucher regulation in connection with the cancellation of leisure events as a result of government measures to combat the corona pandemic to be a lex specialis in relation to the general regulation on interruption of the business basis in § 313 BGB. Pursuant to Article 240 (5) 5 EGBGB, the holder of a voucher may also demand payment of the value of the voucher after 31 December 2021. There is no room left for the application of § 313 BGB.

Complaint on three cases succeeded

As a result, the action for reimbursement of the fees charged for the time the gym was closed became a full success.

(Federal Court of Justice, Judgment of 4 May 2022, XII ZR 64/21)

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