Judgment on the Topic of Extraordinary Termination During Corona, Fitness Studio:
With its judgment of 17.06.2021, Case No. 29 C 3243/20 (97), the Frankfurt am Main Local Court concluded that a fitness studio contract cannot be extraordinarily terminated due to the lockdown within the framework of a “satisfaction guarantee”.
Facts of the Case, Fitness Studio Contract:
The parties are disputing the existence of a fitness studio contract.
In March 2020, the plaintiff visited a studio of the defendant in Cologne together with her sisters, witness T and C. There they spoke with an employee of the defendant, witness E, about the contract terms. The plaintiff and her sisters emphasized during the conversations that they wanted to test the studio before concluding the annual contract. Still in March 2020, the plaintiff then signed a one-year fitness studio contract with a start date in April 2021 and a monthly fee of €94.00. The contract contained a “satisfaction guarantee” which stipulates a special right of termination within four weeks after the start of membership, provided that the member completes eight training sessions in the defendant’s studio during this time.
The plaintiff did not train eight times within the first month after termination.
On 09.04.2020, the plaintiff terminated the contract. An employee of the defendant then confirmed the termination effective 09.04.2021. Upon the plaintiff’s complaint that she could not train due to the lockdown, an employee of the defendant informed her that the eight training days required for the special right of termination within the first training month would only need to be completed after the reopening of the fitness studio.
On 13.08.2020, the plaintiff’s lawyer requested the defendant to confirm the non-existence of the contractual relationship and to refund the amounts paid.
The plaintiff claims that at the time of concluding the contract, it was stipulated that the studio could be tested for one month and within this month, i.e., until 09.04.2020, an immediate termination would be possible without further conditions if dissatisfied. The consequence of such a termination, according to the agreement, would have been that the annual contract would not come into effect. The plaintiff claims that she was fraudulently deceived at the time of concluding the contract, as she was informed that the contract could be terminated within one month without any further prerequisites.
Reasons for the Decision:
The lawsuit is admissible but not well-founded.
In this case, the plaintiff has an interest in determining the invalidity to counter possible payment claims by the defendant from the contract. Although the plaintiff has not yet paid any contributions to the defendant, it cannot be ruled out that the contributions may still be demanded.However, the lawsuit is not well-founded. The fitness studio contract has not expired ex tunc through contestation, nor has it been effectively terminated extraordinarily.
The lawsuit is not well-founded. The fitness studio contract has not expired ex tunc through contestation, nor has it been effectively terminated extraordinarily.
The fitness studio contract has not been terminated prematurely.
Premature Termination, Fitness Studio Contract:
The fitness studio contract has not expired ex tunc due to contestation for fraudulent misrepresentation by the defendant’s employee, witness E, § 123 Para. 1 BGB. It can be left undecided whether witness E is to be considered a third party in the sense of § 123 Para. 2 BGB. There was already no fraudulent misrepresentation of the plaintiff.
Definition of Fraudulent Misrepresentation:
Fraudulent Misrepresentation Occurs when there is a Conscious, I.E., Intentional, Desire to Create or Maintain an Error by Pretending False or Suppressing True Facts (Cf. Jauernig, BGB, § 123, Marginal No. 3, 7).
Based on the result of the taking of evidence, the recognizing court is convinced that no fraudulent misrepresentation of the plaintiff occurred. The plaintiff therefore also has no right of contestation. The court is convinced that the plaintiff was informed about the conditions under which the special right of termination could be exercised at the time of concluding the contract.
In the present case, the plaintiff claims that witness E did not inform her that the special right of termination was tied to eight training sessions. This constitutes an allegation of fraudulent concealment, where the burden lies on the opponent of the contestation to present the time and form of disclosure, and then on the contesting party to refute these claims ( cf. Munich Commentary on the German Civil Code, § 123 marginal no. 94). The plaintiff has not succeeded in refuting the disclosure presented by the defendant at the time of contract conclusion. The defendant, through witness E, has explained how the disclosure about the so-called “satisfaction guarantee” took place. Considering that contract conclusions with customers are routine business for him, witness E reported the negotiations with an appropriate level of detail, and he also admitted to memory gaps regarding the handing over of a leaflet about the satisfaction guarantee.
The attempt to refute this statement through the examination of witness T has not been successful. Witness T stated that she had already been informed at the time of contract conclusion about the necessity to complete training sessions in order to have a special right of termination. She described that this condition did not bother her and her sisters because they wanted to train anyway. Witness T vividly and in detail recounted the search for a gym that she could visit with her sisters. She included subjective perceptions and peripheral details that were less relevant to the evidence question, which testify to her own experience. Furthermore, she is credible insofar as she is also conducting a similar case before the Frankfurt District Court, and yet refutes the plaintiff’s claims in a manner disadvantageous to both the plaintiff and herself. Moreover, witness T reported as a direct witness, as she attended the contract negotiations between witness E and the plaintiff as another potential customer.
Extraordinary Termination, Gym Contract:
The gym contract has also not been prematurely terminated by extraordinary termination.
The examination of the immediate termination of the contractual relationship through cancellation is carried out due to an interpretation of the plaintiff’s request according to the presumed intention of the parties. Although the request made by the plaintiff is clear insofar as she explicitly seeks the determination of the invalidity of the contract ex tunc and thus the determination of successful contestation, when interpreting the requests, not only the literal wording but also the circumstances presented by the plaintiff must be included (cf. MusielakNoit, § 308 ZPO, marginal no. 3). In this respect, it corresponds to the plaintiff’s will, as evident from the statement of claim and the submissions in the oral hearing, to have the termination of the contractual relationship examined in its entirety at the present time. The examination of the termination of the contractual relationship through cancellation does not exceed the quantitative limits set by the claim. A termination with its ex nunc effect is thus the “milder means” of contract termination compared to the ex tunc effect of contestation.
A gym contract, when courses are also offered as in the present case, is a mixed-type contract with elements of rental and service contracts. As a continuing obligation, termination of the contractual relationship requires a notice, § 620 BGB. In this case, the contract was concluded with a minimum term of 12 months, so that termination could only occur after that, unless the termination was based on the special right of termination. However, termination based on the special right of termination was not possible according to the results of the evidence gathering, as the agreed conditions for this were not met. In this respect, it is quite compatible with consumer protection to make the termination dependent on a cooperative action by the plaintiff. The offer to be able to terminate after one month is in this respect a concession by the defendant that goes beyond the legal requirements.
The contractual relationship has also not been terminated by an extraordinary termination. It does correspond to the general principle developed by case law and doctrine that the parties to a continuing obligation have a right to extraordinary termination for good cause ( cf. Judgment of the Federal Court of Justice dated 04.05.2016, Case No. XII ZR 62/15 ). A good cause for terminating a continuing obligation exists if, considering all circumstances of the individual case and weighing the interests of both parties, the continuation of the contractual relationship until the agreed termination cannot be reasonably expected of the terminating party, cf. § 314 Para. 1 BGB.
Such an important reason within the meaning of § 314 para. 1 sentence 2 BGB was not present in this case. The continuation of the gym contract until the termination date on 09.04.2021 was reasonable for the plaintiff, as she was not burdened by the closure of the gym. The defendant had to close the gym in question due to the regulations dealing with Covid-19, so that the provision of services was excluded according to § 275 para. 1 BGB. This impossibility applies to the defendant as well as to all other providers of gym services in the regulatory area of the Covid-19 ordinances. The defendant could not make up for the promised services for the period of closure at a later date. A gym serves the purpose of regular physical exercise ( cf. LG Freiburg, judgment of 27.04.2021, case no. 9 S 41/20 ). The plaintiff was thus also released from performance for the period of the official closure, § 326 para. 1 BGB .
Although the impossibility of performance can, in principle, justify extraordinary termination according to the evaluation of § 326 para. 5 BGB , this is particularly the case when the impossibility was caused by a circumstance from the risk sphere of the debtor of the impossible performance.
The situation is different with a global pandemic like Covid-19. The pandemic situation cannot be attributed more to either party, and there is also no overriding interest of the plaintiff in terminating the gym contract. The plaintiff does not have to pay any fees during the service outage, and the contract has already been terminated with due notice on 19.04.2019. Thus, the plaintiff incurred no risk by adhering to the contract. She could either use the studio’s services after reopening for the remaining contract period as originally planned, or, in case of continued closure, incur no costs. The plaintiff could not have received the expected services from any other contractual partner, as all gyms were equally affected. Therefore, she had no interest in termination in order to conclude a new contract accordingly. The defendant, on the other hand, had an interest in adhering to the contract, because for them, continuing existing contracts while deferring contributions is the only way to maintain the member base during the undeserved closure. Otherwise, the defendant would have to recruit new members again after permission to reopen (cf. in this result also LG Freiburg, judgment of 27.04.2021, case no. 9 S 41/20 , AG Torgau, judgment of 20.08.2020, case no. 2 C 382/19 ).
The contractual relationship has also not been terminated according to the principles of frustration of contract pursuant to § 313 BGB. The provisions of § 313 BGB are subsidiary ( cf. MüKo on BGB, § 313 para. 52). Furthermore, the examination of § 313 BGB would not lead to a different assessment of reasonableness.
The ancillary claim follows the main claim. The plaintiff is therefore not entitled to reimbursement of out-of-court legal costs.
–
You can find more articles on this topic here.
You can find an article on rent reduction during Corona here.
Do you have more specific questions about this or a similar case? Then contact us here!
Comments are closed.