We're aware that some users are experiencing technical issues which the team are working to resolve. See the Community Noticeboard for more info. Thank you for your patience.
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!

David Lloyd’s membership freeze question

Options
24

Comments

  • 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.
  • dnicu26
    dnicu26 Posts: 14 Forumite
    Tenth Anniversary First Post Combo Breaker
    edited 11 July 2020 at 8:27PM
    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. 
    Thank you for a sensible reply - that's what I was after really. I have emailed them and waiting to see what their reply is.
    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.
  • Jeremy535897
    Jeremy535897 Posts: 10,732 Forumite
    10,000 Posts Fifth Anniversary Photogenic Name Dropper
    dnicu26 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. 
    Thank you for a sensible reply - that's what I was after really. I have emailed them and waiting to see what their reply is.
    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.
    It's a fine balance. The gym would say you are attempting to change the contract to your advantage, by paying only 8 months instead of the 12. Your response is that you paid for specific months and you couldn't go to the gym in 4 of those months. My comment was that it is not always as simple as saying that if  one party has breached a term of the contract, the other can discontinue their future obligations. There are several different remedies for this sort of thing, and a court might decide that the gym's freezing approach is a reasonable one. But as unholyangel pointed out, if you simply cancel the payment mechanism, it is for the gym to take you to court for non-payment, and they may well not want to do that.
  • unholyangel
    unholyangel Posts: 16,866 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    Not every breach of contract by one party automatically entitles the other party to resile from it.
    It does when it goes to the heart of the contract. 
    You keep using that word. I do not think it means what you think it means - Inigo Montoya, The Princess Bride
  • Jeremy535897
    Jeremy535897 Posts: 10,732 Forumite
    10,000 Posts Fifth Anniversary Photogenic Name Dropper
    Not every breach of contract by one party automatically entitles the other party to resile from it.
    It does when it goes to the heart of the contract. 
    Yes, but you then have to agree what the heart of the contract is. I don't know whether a 4 month delay is important enough. I once bought some farm entitlements via a firm of land agents. There was a specific term in the contract that said they could not guarantee that the entitlements were owned by the vendor. A couple of years later, it turned out that they weren't, and the grants I secured through the purchase were withdrawn. As a result I had paid out a sum of money and got nothing in return. When they tried to rely on the term, I pointed out that this was a fundamental breach of contract. I paid for something, and I did not get anything at all, and so they refunded the purchase price. Here we have a situation where the service is available, just that part of it is delivered a bit later than originally envisaged. I am not convinced that is in the same category.
  • unholyangel
    unholyangel Posts: 16,866 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    edited 11 July 2020 at 11:21PM
    Not every breach of contract by one party automatically entitles the other party to resile from it.
    It does when it goes to the heart of the contract. 
    Yes, but you then have to agree what the heart of the contract is. I don't know whether a 4 month delay is important enough. I once bought some farm entitlements via a firm of land agents. There was a specific term in the contract that said they could not guarantee that the entitlements were owned by the vendor. A couple of years later, it turned out that they weren't, and the grants I secured through the purchase were withdrawn. As a result I had paid out a sum of money and got nothing in return. When they tried to rely on the term, I pointed out that this was a fundamental breach of contract. I paid for something, and I did not get anything at all, and so they refunded the purchase price. Here we have a situation where the service is available, just that part of it is delivered a bit later than originally envisaged. I am not convinced that is in the same category.
    If you don't think that performance of the main obligations of the contract go to the heart of the contract, then I don't know what to tell you. Or are you saying that OP not paying for services that were provided would not be a breach of the contract at it's heart? 

    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 Bride
  • Jeremy535897
    Jeremy535897 Posts: 10,732 Forumite
    10,000 Posts Fifth Anniversary Photogenic Name Dropper
    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.
  • unholyangel
    unholyangel Posts: 16,866 Forumite
    Part of the Furniture 10,000 Posts Name Dropper
    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.
    It may be possible to delay performance if the contract doesn't set a period for performance and it's a situation where you're carrying out a one off service. 

    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 Bride
  • Jeremy535897
    Jeremy535897 Posts: 10,732 Forumite
    10,000 Posts Fifth Anniversary Photogenic Name Dropper
    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?
  • dnicu26 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.
    Hi, What I meant by initial period is the initial 12 month contract that I signed up for. I am free to cancel after that but not in the first 12 months which end in August. But since the memberships have been frozen they are now not counting the frozen months which does not seem right to me. I signed up for the first 12 consecutive months. That’s what I wanted to clarify. Anyways, I have emailed them but I wanted to see if others are in the same boat, so wanting to cancel but the gyms making their own rules on reopening. 
    I'm with Bradders on this one.

    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 membership 
Meet your Ambassadors

🚀 Getting Started

Hi new member!

Our Getting Started Guide will help you get the most out of the Forum

Categories

  • All Categories
  • 350.8K Banking & Borrowing
  • 253K Reduce Debt & Boost Income
  • 453.5K Spending & Discounts
  • 243.8K Work, Benefits & Business
  • 598.6K Mortgages, Homes & Bills
  • 176.8K Life & Family
  • 257.1K Travel & Transport
  • 1.5M Hobbies & Leisure
  • 16.1K Discuss & Feedback
  • 37.6K Read-Only Boards

Is this how you want to be seen?

We see you are using a default avatar. It takes only a few seconds to pick a picture.