Advice on frustrated contract with gym

BillyBleach

Hi, was hoping some of the learned members here would be able to help me understand my position better with respects to a gym contract I have and the Law Reform (Frustrated Contracts) Act 1943.

In November 2020 as the second national lockdown measures were announced, I was unwilling to continue to pay membership for a service I was unable to receive. The gym notice period was three months. I tried to speak to the owners regarding the fact that throughout November no services were being provided but they would not budge and held me to the three month notice to exit the contract. 

I subsequently learned of the Law Reform (Frustrated Contracts) Act 1943 and the CMA guidance (as detailed on gov uk Statement on coronavirus (COVID-19), consumer contracts, cancellation and refunds). As I read the guidance, when lockdown measures were introduced in November the contract became frustrated and ended. I also understand that no payment should have been taken and any upfront payments should be refunded (The gym takes payment for the month in lieu).

I only learned of this legislation late December. Since then the gym have taken all three payments from me, despite again entering lockdown restrictions in January. FWIW since the moment I informed them I intended to exit the contract (first week of November 2020), I have not set foot in the gym. 

Am I right in thinking as the contract I had with the gym became 'frustrated' due to lockdown restrictions imposed in November, the contract ended. As such the gym shoudl not have taken any payments, and should now refund me all three payments taken from November 2020 - January 2021?

Thanks in advance for any input you might have  

bris

You need to read your contract, if a "Force majeure" clause is in it then this negates a frustration of contract as it deals with unforeseen circumstances.  

es5595

How did they take the money from you? If by direct debit, contact your bank explaining it wasn’t authorised and you’ll get the money back. 

Then they’ll either need to admit the contract is frustrated, or try and take you to small claims to enforce it. 

unholyangel

It's not you who claims frustration. You claim breach of contract, because they didn't provide the services as agreed. You also claim unfair terms, that required you to pay for services not performed. You were not claiming you can't perform your contractual obligations (payment) due to covid. You were claiming you shouldn't have to pay because they were in breach, by not being able to perform their obligations due to covid. 

It being outwith their control (force majeure) doesn't mean they can charge you while closed. It just means that they can potentially escape liability for additional losses (such as a parking permit at a nearby carpark or obtaining replacement services). 

Amyea

Hi Billy,

Did you manage to sort this as we're currently having the same issue.  We're owed 2 months membership due to Covid.  I've cancelled my DD as I don't want them owing me yet more money.  Why they haven't frozen everyone's account I've no idea!

Aylesbury_Duck

Amyea said:

Hi Billy,

Did you manage to sort this as we're currently having the same issue.  We're owed 2 months membership due to Covid.  I've cancelled my DD as I don't want them owing me yet more money.  Why they haven't frozen everyone's account I've no idea!

Be careful.  It's never a good idea to cancel a DD before a contract is properly cancelled.  Although you're in the right (if your situation is the same as OP's), cancelling a DD could incur some extra costs and hassle that could unnecessarily complicate the situation.