European e-Justice Portal - Case Law
Close

BETA VERSION OF THE PORTAL IS NOW AVAILABLE!

Visit the BETA version of the European e-Justice Portal and give us feedback of your experience!

 
 

Navigation path


menu starting dummy link

Page navigation

menu starting dummy link

Case Details

Case Details
National ID HD 200.052.668
Member State Netherlands
Common Name Health & Racquet Club Tilburg BV v. X
Decision type Other
Decision date 01/03/2011
Court Gerechtshof (Appellate court, Hertogenbosch)
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 3, 3.

Subscription for a gym that is longer than a year without a possibility to terminate it in the meantime should be considered unfair. The test is not influenced by the fact that the consumer had a choice to conclude a contract (slightly more expensive one) for one year instead.
On the 22nd of July 2008 a consumer concluded a contract with a sports centre for a two-year membership, beginning on 1st of August 2008 until 31st of July 2010. Standard contract terms of the contract determine that contracts are concluded for a fixed period of 12 or 24 months and then are automatically prolonged for another 12 months. The prolongation of the contract may be avoided if the consumer terminates the contract in writing 2 months before its ending date. A termination of the contract during the duration of the contract is not possible. In case a member of the sports centre is behind with his monthly payments, the payment of fees for the whole period of subscription may be demanded of him. The consumer did not pay his fees from the first month. The sports centre addressed consumer to demand payment in August, September and October, finally letting him know that he will need to pay the whole amount of subscription. In an email of 29th of October 2008 the consumer notified the sports centre that he has injured his knees and wrists and is not allowed to sport. He asked the employees of the sports centre what kind of doctor statement is needed to confirm his injury and asked whether termination of the contract was possible. He declared payment of fees for past months. The sports centre sent an email on the 5th of November 2008 that just on the basis of the email they will not cancel the subscription and that they need an independent statement by the doctor that for the rest of the subscription period the consumer will not be able to practice sport. The consumer claims he had never received this letter.
The consumer claims that he had terminated the contract on the 29th of October by email due to medical reasons. The sports centre indicates that termination of the contract during its duration is not allowed, however, they would accept it, exceptionally, if the consumer had delivered a medical statement that he would not have been able to practice sport for the remaining time of the subscription. The court acknowledges that the consumer had not proven that he would not have been able to sport for all the remaining months of the subscription. The court states that the sports centre did not have to accept the termination of the contract due to medical reasons. However, the court considers that pursuant to art. 6:237k bW certain contracts concluded for more than a year, without an option given to a consumer to terminate it after one year, could be considered unfair. Subscription to the gym belongs to these contracts. The sports centre claims that the consumer consciously chose a subscription of two years since there was a possibility to conclude a contract for one year, as well, for only a slightly higher price. Pursuant to the court, conscious choice of a contract for two years, does not take away unfairness of a contractual provision prohibiting termination of the contract after one year, and could not be balanced by a slight price reduction. Therefore, the standard contract term is unfair and may not be applied, which means that the consumer could have terminated a contract after one year of subscription, and owns only fees for one year to the sports centre.
Full Text: Full Text

No results available

No results available