cancel gym - contradictory terms & conditions regarding price increases

deanwalluk

Hello,

I wonder if you can help me please. I need some advice.

I have seen similar posts regarding getting out of gym memberships but owing to the circumstances I don't see a post that reflects this...

I am a member of Roko gym - they recently emailed me to tell me they were putting their prices up.

I check my contract/ membership agreement and it says 2.7 "Membership subscriptions will remain at your contracted rate for the minimum membership period shown overleaf".

My joining date was 31st October and minimum period 12 months.

They put my price up on the 1st October so therefore this is breach of the agreement and I told them I wanted to cancel the contract as a result.

I emailed them on 2 Oct but the new higher price was already coming out of my bank on 3rd Oct. In my email I told them I wasn't happy with the change as they breaches the contract and that I believe they should refund my charge (or at least the extra they were now charging).

Today I finally got a reply. The manager said to me that condition 2.9 says "Membership subscriptions are fixed by the company and may be changed at any time with 10 working days notice."

I am concerned regarding this for two reasons.

1) they are trying to say I can't cancel even though they have breached condition 2.7

and 2) I am concerned that having two such contradictory conditions is extremely unfair to consumers.

Can you give me some advice about how to take this further with them. They claim to have written these terms in conjunction with trading standards!

I look forward to hearing from any one who can advise.

Thanks.

arcon5

I would take this to mean within the initial period they cannot change their price, however after this initial period whereby your contract is likely to be monthly rolling they can with 10 days notice increase the price of the membership. If for example you joined on 31st October 2010, they can raise the price on 31st October (or 1st Nov.) 2011 so long as the notice was given atleast 10 days prior (so before the 21st).

Are the dates right above? If so, why can't you cancel now the 12 months have passed.

If the dates are wrong above and your still in the contracted period you should (in writing) give them the opportunity to rectify the situation. Failing this make a formal complain -- if they still refuse to budge you should have grounds to terminate the agreement.

If they are taking the higher amount out of your bank and your still in the min.period, i'd be inclined to fax a copy of the contract to the bank and claw the difference back as per the direct debit guarantee scheme.

halibut2209

condition 2.9 is balderdash. By that "logic", as soon as you sign up, they could triple the price after ten days and you're stuck paying the new amount for a year.

You signed a contract agreeing to pay a certain amount. Simple as.

deanwalluk

arcon5 wrote: »

I would take this to mean within the initial period they cannot change their price, however after this initial period whereby your contract is likely to be monthly rolling they can with 10 days notice increase the price of the membership. If for example you joined on 31st October 2010, they can raise the price on 31st October (or 1st Nov.) 2011 so long as the notice was given atleast 10 days prior (so before the 21st).

Are the dates right above? If so, why can't you cancel now the 12 months have passed.

If the dates are wrong above and your still in the contracted period you should (in writing) give them the opportunity to rectify the situation. Failing this make a formal complain -- if they still refuse to budge you should have grounds to terminate the agreement.

If they are taking the higher amount out of your bank and your still in the min.period, i'd be inclined to fax a copy of the contract to the bank and claw the difference back as per the direct debit guarantee scheme.

Yes the dates are correct. I said I wanted out on the 2nd Oct as they breaches the agreement. I also said they should refund this charge as it wasn't what I agreed to pay for the 12th month.

I have to give three months notice, so if I accept the additional charge I would still need to pay it for 2 more months (if they accept my first letter as a cancellation notice from that date).

I don't think I should have to pay the higher price, in fact any price seen as though they breached contract - I always thought that if either party modify's a contract then the other party has a choice to get out. However they claim not to be breaching the contract.

I have cancelled the direct debit anyway so they can't take Novembers payment, I doubt they'll start credit reference agency dealings immediately but I'm already in an IVA so its not really like they can damage my history anyway.

I really just want out now, so no further payments, but the manager doesn't seem to see the contract is contradictory.

arcon5

If you have to give 3 months notice to exit and they can increase the price with 10 days notice -- surely this would be covered by the Unfair Terms Act as it puts you at a significant disadvantage?

You could cancel your DD, follow their cancellation policy exactly, pay the contracted rate by BACS or something (less the value of the overpayments) then forget the rest........ they would no doubt send it to debt collectors, but that doesn't mean they have a valid case in court (if it got that far). Risky though

F_T_Buyer

BT did this with their line rental, only by 50p per month, and they hoped most people didn't notice or could do anything about it. If you did, and you complained you got that 50p back. However at first the BT chap tried to fob me off, and the above is probably the same case, complain again and they will probably give you the difference back (do it in writing).

The question is do you want to continue with ROKO? You could try to use this as a reason to get out of the contract, however they will realise their 'mistake' give you the credit for the difference and hold you to that 3month notice period.

esuhl

I'm no lawyer (so this ain't legal advice), but... The legal rule of contra proferentum holds that any ambiguity or contradiction in a legal contract is found against the person seeking to rely on it (i.e. whoever drafted the contract). So if terms in the contract contradict each other, then (I think) this will be found in your favour.

In which case, by charging you the higher amount they are in breach of contract.

The way I would try to resolve this is to send them a letter by recorded delivery, quoting section 2.9 of their contract, referring to contra proferendum and saying that unless you hear from them with confirmation that the terms of your contract will be honoured and they will refund the overpayment and bill you at the correct rate until the minimum contract expires that you will sue them in the County Court for breach of contract.

Hopefully that will mysteriously produce the desired result. If not, I would wait until the end of the contract (so the overpayment is a fixed amount that you have already paid), then write another letter (again by recorded delivery) headed "Final letter before action" stating again that unless you hear from them within a reasonable time (14 days?) that you will take legal action against them to reclaim the sum of £x that were taken in breach of the contract you had with them.

If necessary, you can initiate a small claim via the courts' Money Claim Online website.

And to re-iterate, I'm not an expert and have no legal training! But I hope this helps point you in the right direction anyway...

esuhl

Ooh - hang on. I've just read some more about contra proferendum and it seems that it might relate specifically to the person who wrote the contract, as opposed to someone else in the company who is trying to enforce it.

In which case, the Unfair Terms in Consumer Contracts Regulations 1999 might be more relevant. Section 7 states that:

(1) A seller or supplier shall ensure that any written term of a contract is expressed in plain, intelligible language.

(2) If there is doubt about the meaning of a written term, the interpretation which is most favourable to the consumer shall prevail but this rule shall not apply in proceedings brought under regulation 12.

:beer:

deanwalluk

Yea thanks for that, I had a look through the Unfair Terms thing and I have a reply from Consumer Direct....

"When you have entered into a contract with Roko Healthclub, this would be subject to the stated terms and conditions and price increases can be made in line with these.

If the terms and conditions specify that you monthly payment would remain the same during the initial 12 months of membership you should be able to expect that this is honoured.
If the trader alters this and does increase the price you may be able to hold them in breach of contract.

If there is another term in the contract that alters or affects another, and this would be in favour of the trader, it may be classed as an unfair contract term. It is however only a court that can ultimately decide what is unfair.

Although I can see that you have been in touch with Roko Healthclub, I would advise that you consider a final written complaint requesting that the 12 months fixed price is honoured or the contract cancelled with no penalty.
I would advise that this is sent by recorded delivery so you have proof of posting and delivery and that you retain a copy for your records.

If the issue does remain unresolved, it could ultimately need to be pursued via the court and it would be for them to decide what was reasonable in your individual circumstance.

I will also make the details available to trading standards for information purposes – your contact details will be made available to trading standards and they could contact you directly if they required any further information in
relation to this matter."

So... I think I will send this as my reply to Roko...

I am extremely concerned that you do not seem to appreciate that you
have breached your own membership agreement point 2.7 which I quoted
for you previously.

"Membership subscriptions will remain at your contracted rate for the
minimum membership period shown overleaf".

The inclusion of point 2.9 in your response, “Membership subscriptions
are fixed by the company and may be changed at any time with 10
working days notice.” would only apply once the minimum period is
over; otherwise point 2.7 is a pointless inclusion into the agreement!

I have contacted Consumer Direct (who have copied the matter to
Portsmouth City Council Trading Standards) whose response to this
matter was the following:

· That you have breached point 2.7.

· If point 2.9 was to be “invoked” during the minimum period
then this would be extremely unfair to consumers.

· Points 2.7 and 2.9 are contradictory and therefore put
consumers at a disadvantage.

To this end I would draw your attention to “The Unfair Terms in
Consumer Contracts Regulations 1999 (as amended 2001, 2003).

They suggested to me that I contact you once more regarding this
matter to confirm whether you understand that you breached point 2.7
and you therefore agree to cancel my membership with immediate effect
and without penalty.

I have cancelled the direct debit for the club as I no longer feel I
can trust the club given the breach of the agreement, the length of
time to respond and the poor response I have been given.

I look forward to a prompt response.



Basically I want out now - I haven't used the club since the email about the price going up and would rather go elsewhere. Hence I would rather leave than have the old price honoured.

esuhl

deanwalluk wrote: »

I have cancelled the direct debit for the club as I no longer feel I
can trust the club given the breach of the agreement, the length of
time to respond and the poor response I have been given.

I'd be careful with that - I think you'll need to make sure you keep up your monthly payments to the club until the end of the contracted term otherwise you may be found in breach of contract too.

I also think you legally need to give them the opportunity to honour the original contract - you can't insist that they cancel the contract because they are currently in breach. So rather than saying "please cancel the contract", I would say "please either honour the contract or, if you prefer, cancel it"...

Anyway, best of luck with all of this.

arcon5

Setup a standing order for the original amount at the very least.