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Anyone who was unable to use their gym during the Corona lockdown will receive a refund of the membership fees paid for this time. The term of the contract cannot be extended backwards. That was decided by the Supreme Court.
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Operators of fitness studios are obliged to repay membership fees that they collected from customers by direct debit during the period of corona-related closures. The XII. Civil Senate of the Federal Court of Justice (BGH) decided (ruling of May 4th, 2022, Az. XII ZR 64/21).
Due to the measures taken to combat the COVID-19 pandemic, one operator had to close her fitness studio for around three months. She continued to collect the monthly payments for this period from the customer’s account. A customer had declared the termination in writing, which was also accepted by the operator. After the requested repayment had not been made, the customer asked the operator to give him a voucher. However, she had only offered him a “credit for training time” for the period of closure. The customer did not accept this offer and went to court.
The first instance, AG Gelsenkirchen, ordered the operator to repay the monthly fees for the period of closure. The appeal against the judgment was unsuccessful at LG Essen.
The BGH confirmed the views of the lower courts and affirmed the customer’s claim for repayment in accordance with §§ 275 Paragraph 1, § 326 Paragraph 1 Clause 1 and Paragraph 4, § 346 Paragraph 1 of the German Civil Code (BGB). The operator could not counter the claim that the contract had to be adjusted due to the disruption of the business basis.
Legal impossibility excludes contract adjustment
In this case, there is legal impossibility, according to the BGH. Due to the Corona measures, it was legally impossible for the operator to grant the customer use of the fitness studio and thus to fulfill its contractually owed main service obligation. A temporary impossibility is not to be assumed, because the performance can no longer be made up for. The purpose of a gym contract is regular physical activity. Therefore, the regular and year-round opening of the studio is of crucial importance. If the operator of the fitness studio is temporarily unable to grant use of the studio during the contract period, for example – as here – due to sovereign measures, the purpose of the contract cannot be achieved for the period of closure.
The BGH also rejects a contract extension. The operator could not counter the claim for repayment by saying that the contract had to be adjusted due to disruption of the business basis, with the result that the contract period was extended. This view ignores the competitive relationship between § 275 Para. 1 BGB and § 313 BGB. An adaptation of the contract to the actual circumstances is out of the question if the provisions on impossibility apply.
cp/LTO editorial team
With material from the dpa
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