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David Lloyd’s membership freeze question
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I essentially am taking the same stance. I had a membership that started in May 2019. Before lockdown I notified the gym that I was providing notice that I'd like to cancel my membership. The gym notified me that my membership had been set to expire for the end of the minimum term, May 2020. Due to the closure of the gym I haven't paid membership fee's since March.
I'm expecting that the gym will contact me trying to get payment for August, September to recoup the 2 months they haven't had payment for. Very interested to understand what the legal position is. As it stands though I've cancelled the debit.
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unholyangel said:OP's consumer rights are not affected by corona.
The gym were in breach as they did not provide services as agreed. The fact this was outside of their control only affects their liability for damages (ie OP getting another membership or buying home equipment). It does not mean that the gym get to unilaterally vary the terms of the agreement (fixed contract length) to their benefit/consumers detriment and effectively make the consumer their insurer.
I suspect some think the OP is "benefitting" from it as they were not required to pay for the months the gym was closed. However, not being required to pay the contractual fee because the services weren't being provided is not benefitting (or betterment as the law would call it). Betterment would be receiving the services and not having to pay the money.
As per the contract, I signed up for an initial 12 month period which is due to end in August. I don't understand why others think I am trying to take advantage of the situation. I simply want the gyms to also own their side of the initial 12 month contract, and not modify it to their advantage.
Also, how is this resiling from the contract? The end period of the initial contract was the first 12 months which ends in August and the gyms have changed this to their advantage.
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dnicu26 said:unholyangel said:OP's consumer rights are not affected by corona.
The gym were in breach as they did not provide services as agreed. The fact this was outside of their control only affects their liability for damages (ie OP getting another membership or buying home equipment). It does not mean that the gym get to unilaterally vary the terms of the agreement (fixed contract length) to their benefit/consumers detriment and effectively make the consumer their insurer.
I suspect some think the OP is "benefitting" from it as they were not required to pay for the months the gym was closed. However, not being required to pay the contractual fee because the services weren't being provided is not benefitting (or betterment as the law would call it). Betterment would be receiving the services and not having to pay the money.
As per the contract, I signed up for an initial 12 month period which is due to end in August. I don't understand why others think I am trying to take advantage of the situation. I simply want the gyms to also own their side of the initial 12 month contract, and not modify it to their advantage.
Also, how is this resiling from the contract? The end period of the initial contract was the first 12 months which ends in August and the gyms have changed this to their advantage.1 -
Jeremy535897 said:Not every breach of contract by one party automatically entitles the other party to resile from it.You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride0
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unholyangel said:Jeremy535897 said:Not every breach of contract by one party automatically entitles the other party to resile from it.1
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Jeremy535897 said:unholyangel said:Jeremy535897 said:Not every breach of contract by one party automatically entitles the other party to resile from it.
ETA: The fact the gym aren't providing consideration by way of money does not make it any less important than the OP's. It is the consideration they agreed to provide - the reason for the contracts existence. Each party agreed to suffer a detriment in exchange for a benefit. With the benefit of one being the detriment of the other. Failure to provide it would indeed be a fundamental breach.
You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride0 -
We must agree to differ. There is a difference between delaying performance and never performing. If I order a 2021 diary for delivery guaranteed on 1 November 2020, and it arrives on 1 December 2020, I think that is a breach,but if it arrives on 1 July 2021, that is a fundamental breach, because half of it is useless.
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Jeremy535897 said:We must agree to differ. There is a difference between delaying performance and never performing. If I order a 2021 diary for delivery guaranteed on 1 November 2020, and it arrives on 1 December 2020, I think that is a breach,but if it arrives on 1 July 2021, that is a fundamental breach, because half of it is useless.
But not in these circumstances. According to the CMA:5.9.1 The law requires that goods should be delivered, and services carried out on time. Where the business has set a time in stating its terms to the consumer, it is bound to meet that deadline – where no date was set, any goods ordered generally have to be delivered within the standard 30-day period generally applicable for delivery of goods (see the table of statutory rights in part 4 above), and services must be performed within a reasonable time. A term which allows the trader to fail to meet this fundamental requirement of timeliness is liable to be considered unfair.
5.9.6 Where there is a risk of substantial delay, a right for the consumer to cancel without penalty may additionally help achieve fairness in relation to an exclusion of liability for delay caused by circumstances beyond the trader’s control. It will not make acceptable a term which allows the trader to delay at will. (and this is talking about where there is no time for performance set by the contract btw)
5.15.7. The High Court recognised the potential for unfairness of unduly long minimum tie-in clauses in a case brought by the OFT concerning gym contracts. The court held that tie-ins of over 12 months were unfair, on the basis of findings as to, in particular:
the vulnerability of consumers, arising from their limited ability to plan ahead and assess what their circumstances would be in more than a year’s time; and
the level of advantage conferred on the gym operators, taking into account, in particular, that they were rarely in practice unable to take on new members.
5.21.1 A right for one party to alter the terms of the contract after it has been agreed, regardless of the consent of the other party, is under strong suspicion of unfairness and may well, in any case, be blacklisted for the purposes of Part 1 of the Act. A contract can be considered balanced only if both parties are bound by their obligations as agreed. (blacklisted means it's prohibited/illegal in all circumstances)
5.21.4 The CMA’s concerns apply particularly to variation clauses in contracts for a fixed or minimum contractual period. Where a consumer enters a contract for a defined period (especially if it is short) the natural expectation will be that the terms of the contract are fixed for that period. A term which, contrary to such an expectation, allows the business to provide something that is not in all significant respects what the consumer agreed to buy, or to charge a higher price than was agreed, is clearly under particular suspicion of unfairness and may well be blacklisted for the purposes of Part 1 of the Act.
Part 1 of Schedule 2 states that the following may be unfair: (12) A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it. (13) A term which has the object or effect of enabling the trader to alter unilaterally without a valid reason any characteristics of the goods, digital content or services to be provided.
5.22.3 The use of terms that allow the trader to change what is supplied conflicts with the consumer’s legal right to receive something that is in all significant respects what the trader stated would be supplied, not merely something similar or equivalent. Consumers are legally entitled to expect satisfactory quality in goods and digital content which they have paid for, and that services will be provided with reasonable skill and care, but this does not mean it is fair to reserve a right to supply something that is merely of equivalent standard or value.
5.22.8 Rights to cancel. Where circumstances could prevent the supply of the goods, digital content or services agreed (or a version of them that the consumer has indicated is acceptable) then fairness is likely to require that the consumer should have a genuine right to cancel the contract, and receive a refund of any prepayments. Fairness requires that the consumer should be given appropriate information, before the contract is concluded, as to what these circumstances are.
5.27.1 A term binding customers to go on paying when goods, digital content or services are not provided as agreed is clearly open to even stronger objection than the exemption clauses which exclude the business’s liability when it fails to perform its obligations (under the heading 2(g) at paragraph 5.10.1), or terms allowing the trader to cancel at will – see the discussion of paragraph 7 of the Grey List above. Those terms exclude the trader’s liability to provide a remedy for breach of contract, but do not require the consumer to continue to perform his or her side of the bargain.
5.27.3 Similar objections are likely if consumers are tied in to a continuing contract for services despite the trader exercising a power to suspend provision of some benefits under the contract, unless the circumstances in which suspension can take place are strictly limited and certain other conditions are met. (and this is talking about suspending some benefit under the contract, not all - as in OP's case).
You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride0 -
Thanks for that. It looks as if these frozen periods cannot be enforced, then, and everyone holding a membership that cannot be fulfilled can cancel and pay no further instalments?0
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dnicu26 said:Jeremy535897 said:I assumed that the issue was that you could cancel in the initial period, but not afterwards (until the membership runs out), so if the initial period expires during the frozen period, and you can't contact them to cancel, you have to pay the rest of the membership year once it is unfrozen. I would have expected that while the membership is frozen, the initial period is frozen too, but the original terms and conditions presumably didn't foresee this situation, and the amendments made to create the frozen period presumably didn't address the issue?
Gyms open in a fortnight, so I suggest OP raises the issue as soon as he can. It may well be that the original initial period hasn't expired yet.
you can't have it both ways - on one hand you'd have kicked up a fuss if they'd carried on charging you during lockdown and now you're kicking up a fuss because they are saying rightly imo that those months didn't count as they froze your membership1
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