Judgment on the special right of termination in the gym

No special right to cancel a gym contract if a chronic illness was known to the contractor before the contract was concluded

07/09/2012

A gym contract can not be terminated due to a chronic illness, at least not if the illness was already known before the contract was signed and the customer did not enter into a separate agreement with the operator. The judgment of the district court Munich with the file number 213 C 22567/11. An extraordinary cancellation of a gym due to a chronic illness is not possible if the contractor was already informed prior to the conclusion of the contract of the disease.

In this specific case, the defendant terminated his contract with a gym. His reason was that he was suffering from a chronic illness that made further training impossible. The gym did not accept the special termination and continued to ask for membership fees until the end of the contract. After all, the customer would have known about his illness before the contract, according to the company's argument. Because the man refused to make payments of 1000 euros for the 24-month contract, the fitness center sued the customer.

During the trial, the defendant said he could no longer practice the sport because chronic joint disease made it impossible to practice on the equipment. Previously he had assumed that his complaints would improve through the training sessions. But because he did not get the desired effect, he had wanted to terminate the contract.

The Munich district court, however, followed the position of the fitness center. The defendant was informed at the conclusion of the contract about his illness, so that there is no right to a special termination. „It is quite possible to claim a special right of termination“, explained the presiding judge. However, the right can only be claimed if both contracting parties agree on a pertinent clause before concluding the contract. Because this had not happened, the man must pay the plaintiff the unpaid contributions totaling 1029 euros.

Basically special termination right for diseases that prevent training
Attorney Jens Ferner from Aachen draws attention in this connection to the fact that the Federal High Court (Az: XII ZR 42/10) judged recently that in principle a illness, which makes the visit of a fitness studio impossible, is a weighty reason, the contract relationship prematurely cancel. To §314 BGB can be the customer „terminate only within a reasonable period of time after becoming aware of the reason for termination“. But because in this case the reason for termination was already known before the conclusion of the contract, take action §314 of the Civil Code, so that a notice was not possible after completion in this particular case.

Attorney Ferner advises therefore, in special constellations urgently before the conclusion of a gym contract to have a special right of termination fixed in writing. Ideally, this should be enshrined in the contract, which will then be signed by both sides. (Sb)