Gym cancellation misrepresented - my rights?

squrky

Hi,

My wife and I recently signed up for gym memberships with a minimum 6 month term. Before we signed we told the sales representative that there was a chance that we would be selling out house and moving, and that in this case we would want to cancel our contracts early.

He told us that we could cancel early if:

1) We notified them that we wanted to cancel due to moving home,
2) We provided some proof that we had sold our house, and
3) We agreed to pay a £25 cancellation fee per membership.

Some time later we did indeed sell our house, and so yesterday we went back to the club to cancel, at which point we discover that there is a minimum distance clause in the fine print that prevent us from doing so.

Before we joined we knew there was a possibility that we would move before the 6 months were up, and we signed up because the sales representative made it clear that we could cancel at any time if the above 3 conditions were met. We would not have joined otherwise.

Did the sales person misrepresent our contract, and if so what can we do about it?

Thanks for your time.

Gavin83

What does your contract say?

squrky

In addition to what the sales representative said to us, the paper contract says that you can cancel in the event of moving if you move farther than 10 miles away from the nearest club.

As it turns out we won't be moving this far away, but far enough that it will no longer be convenient to visit the gym.

wealdroam

squrky wrote: »

In addition to what the sales representative said to us, the paper contract says that you can cancel in the event of moving if you move farther than 10 miles away from the nearest club.

As it turns out we won't be moving this far away, but far enough that it will no longer be convenient to visit the gym.

So all you have to do now is convince the gym that the salesman told you that it didn't matter how far you moved.
Do you think you can do that?

Realistically, I think you are stuck with the terms on your written contract.

squrky

I do not think that the company will accept that their sales person omitted the key clause about distance when he sold us the contract, so it is our word against theirs.

Where does the burden of proof lie in this case?

powerful_Rogue

squrky wrote: »

I do not think that the company will accept that their sales person omitted the key clause about distance when he sold us the contract, so it is our word against theirs.

Where does the burden of proof lie in this case?

Balance of probabilities is the standard proof required in civil cases.

ThumbRemote

squrky wrote: »

I do not think that the company will accept that their sales person omitted the key clause about distance when he sold us the contract, so it is our word against theirs.

Where does the burden of proof lie in this case?

Unfortunately, you are the one wanting to prove something, so the burden of proof lies with you.

As wealdroam says, you're unlikely to get anywhere with this.

Gavin83

squrky wrote: »

In addition to what the sales representative said to us, the paper contract says that you can cancel in the event of moving if you move farther than 10 miles away from the nearest club.

As it turns out we won't be moving this far away, but far enough that it will no longer be convenient to visit the gym.

Then in that case those are the terms you need to follow and therefore the contract will stand.

Less than 10 miles from the gym really doesn't seem that far to cause an inconvenience, I'm actually surprised it's that low.

Unfortunately you can't prove what the salesperson said, he's unlikely to admit this and he'll simply say he pointed you to the terms in the contract, which legally you should have read before signing anyway. Your stuck with this one.

squrky

Thanks very much for the (disapointing!) replies so far.

For final clarification, the following is an except from the Citizen's Advice website:

Your contract doesn’t reflect what the salesperson said:

If your written contract does not match the terms you agreed with the sales staff when you bought the service, you may have been mis-sold the contract.

You should make a formal complaint to your service provider. You can ask that the terms of your contract be changed to match what the sales person said. If they do not resolve your complaint satisfactorily, you can report them to the Office of Fair Trading.

If your service provider has a term in your contract which says they disown statements made by sales staff, that would be un unfair contract term.

If the statement made by the sales person is false and it influenced your decision to buy the service, this is called misrepresentation. If this is the case, you can cancel your contract without charges and may be able to take legal action for compensation. A false statement which influenced your decision to enter into a contract is also an example of an unfair commercial practice. This is a criminal offence.

If this has happened, you should report the company to Trading Standards.

The does appear to imply that I have some rights in this situation, and makes no mention of it being up to me the consumer to prove anything, or that the written contract takes precedence in cases where the representative says something different (thus the part about a disownment clause being unfair).

Could anyone provide further clarification? What law is the above quoted text referring to?

Thanks again for your help.

powerful_Rogue

squrky wrote: »

Thanks very much for the (disapointing!) replies so far.

For final clarification, the following is an except from the Citizen's Advice website:



The does appear to imply that I have some rights in this situation, and makes no mention of it being up to me the consumer to prove anything, or that the written contract takes precedence in cases where the representative says something different (thus the part about a disownment clause being unfair).

Could anyone provide further clarification? What law is the above quoted text referring to?

Thanks again for your help.

Its based on the balance of probabilities.

You said the salesman said you can cancel.
The salesman denies saying this.
You signed a contract saying you can cancel if you move over 10 miles away.

On the balance of probabilities without any further evidence to prove your claim, I personally would side with the gym.

You will have to take this to the small claims court and let them decide.

pmduk

Your quote conveniently fails to address the matter of proof.