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“Credit for training time” instead of a voucher
On 13 May 2019, the parties entered into a contract for membership of the defendant’s fitness center with a term of 24 months starting on 8 December 2019. The monthly membership fee, which was charged by direct debit, was EUR 29.90 plus a half-yearly service fee. Due to the measures taken to combat the COVID-19 pandemic, the defendant had to close the gym from 16 March 2020 to 4 June 2020. She continued to collect the monthly contributions for this period from the plaintiff’s account. A termination of his membership per. December 8, 2021 declared by the plaintiff in a letter of May 7, 2020 was accepted by the defendant. By letter of 15 June 2020, the applicant requested the defendant to repay the quotas collected for the period from 16 March 2020 to 4 June 2020. In the absence of a refund, the applicant requested the defendant to issue a receipt for the amount collected. for the closing period. Defendant did not provide the plaintiff with a voucher, but offered him a “credit for training time” for the closing period. The applicant did not accept this offer.
AG: Monthly contributions must be repaid
The district court ordered the defendant to repay the monthly contributions for the closing period of 86.75 euros plus interest and out-of-court attorney fees. The High Court dismissed her appeal. The appeal approved by LG, with which the defendant still wanted to have the case rejected, was unsuccessful.
BGH: Performance legally impossible
The Federal Court of Justice ruled that the plaintiff is entitled to a refund of the monthly contributions paid for the closing period, in accordance with §§ 275 (1), 326 (1) sentence 1 and § 4, 346 (1) BGB. Under § 275, paragraph 1 of the German Civil Code, the right to performance is precluded if this is impossible for the debtor or anyone else. Legal impossibility exists if a guilty plea cannot or must be obtained for legal reasons. This is how it is. During the period in which the defendant had to close its fitness center due to sovereign measures to combat the COVID-19 pandemic, it was legally impossible for the defendant to allow the plaintiff to use the gym under the contract and thus fulfill his contractually due principal obligation. to fulfill the fulfillment.
Opportunity to participate in regular physical activity
Although the defendant was only allowed to close the gym temporarily due to the time constraint of the corona protection measures, it was not a temporary impossibility which would not be covered by § 275 (1) BGB. A temporary impediment to performance is equated with a permanent one if the impediment calls into question the fulfillment of the purpose of the contract and one or the other party can no longer be expected to demand or provide the service after a reasonable assessment of both parties’ interests. If – as in the present case – a fixed contract period of several months is agreed for a fitness studio contract against payment of a monthly fee, the gym operator owes its contract partner the opportunity to enter the studio and use the training equipment. continuously. The purpose of an exercise contract is regular physical activity and thus either the achievement of certain fitness goals or at least the maintenance of fitness and physical health. Because of this, the regular and year-round opening and usefulness of the study is crucial for the contractual partner.
Performance can no longer be made up due to the passage of time
If the operator of the gym is temporarily unable to give the contract partner the opportunity to use the gym during the agreed contract period, eg because he – as here – has to close the gym due to official measures to combat covid- 19 pandemic , this contractual purpose can be extended as long as the closure can not be achieved. The service owed by the operator can therefore no longer be repaid due to the passage of time.
No contract adjustment due to disruption of business basis
The Court of Appeal further rightly held that the defendant could not meet the plaintiff’s claim for repayment that the contract should be rectified due to disruption of the business basis pursuant to section 313 (1). had to be extended. Such a contractual adjustment is partly represented in the case law of the lower courts. However, this view does not recognize the competitive relationship between § 275, para. 1, BGB and § 313, BGB. An adaptation of contractual obligations to the facts is generally precluded if the law determines the consequence of the breach in the provisions on the impossibility of fulfillment. An application of § 313 BGB is therefore precluded to the extent – as in the present case – the facts in § 275, para. 1 BGB, is met. A claim from the defendant for the desired contract adjustment is also excluded because EGBGB § 240 § 5, para. .
Special legal regulation created
A contractual adjustment due to interruption of the business basis pursuant to § 313 BGB is in principle not possible if the legislator has recognized the risk of interruption of the business basis and has established a special statutory provision to solve the problem. With the provision introduced by the nature of the law. 1 to mitigate the consequences of the COVID-19 pandemic in the event law and in the law of the European Company and the European Cooperative Society of 15 March 2020 with effect from 20 May 2020 (Federal Law Gazette I p. 948). Article 240 § 5 of the EGBGB provides for such special legislation which takes precedence over § 313 BGB within its scope.
Lawmakers feared for the existence of companies in the events sector
At the time this regulation was created, a large number of events had to be canceled and leisure facilities temporarily closed due to the extensive measures taken to combat the COVID-19 pandemic and the associated bans on events and contact restrictions. As a result, many tickets already purchased could not have been redeemed. Likewise, holders of a temporary use permit for a leisure offer would not have been able to use it for a certain period. Legislators feared that the legal obligation of organizers or operators to reimburse entrance fees or usage fees already received would lead to a significant outflow of liquidity for them, which could result in a situation that threatened the existence of many companies in the event sector. He also saw the danger that the insolvency of event companies could also have negative consequences for the overall economy and cultural offerings in Germany.
Coupon solution to mitigate the corona-related declines
In order to prevent as far as possible these undesirable consequences, the legislator wanted to create a regulation with Article 240 § 5 EGBGB for event contracts concluded before 8 March 2020, which temporarily gives the organizers of leisure events the right to charge the holders of entrance tickets instead to issue a voucher for the entrance fee upon refund of the entrance fee (Article 240 § 5 (1) EGBGB) if the event could not take place due to the measures taken to combat the COVID-19 pandemic. Article 240 § 5, para. 2 The EGBGB also entitles the operator of a leisure facility to issue a voucher to the person entitled to use it which corresponds to the value of the part of the authorization which cannot be used.
the regulation is final
With this “voucher solution”, the legislator has made a final regulation that takes into account both the interests of entrepreneurs in the event and leisure sector and the interests of customers to mitigate the effects of the measures to combat the COVID-19 pandemic in the event and leisure sector. BGH emphasized that there was no adjustment of the contract based on the principles of disrupting the contractual basis.
Editing beck-current, 4 May 2022.