On 4 May 2022, the German Federal Court of Justice (Bundesgerichtshof) held that a gym operator had to reimburse the monthly fees paid by a member during the period when the facilities were closed due to government decisions (case reference: XII ZR 64/21).

The court held that the gym operator could not simply extend the gym membership to make up for the time lost – instead it needs to reimburse its members. The court relied on Section 275(1) of the German Civil Code (BGB) to justify its decision, explaining that the claim to performance is excluded if it is impossible for the debtor or for anyone else – which was the case here because the gym had to close due to a government decision.

According to the court, “a merely temporary impediment to performance is to be equated with a permanent one if, as a result of the impediment, the achievement of the purpose of the contract is called into question and one or other parties could no longer reasonably be expected to demand or provide the performance at that time, having reasonably weighed up the interests of both parties.” Here, the member’s expectation at the time of signing the contract was to be able to use the gym facilities continuously for maintenance of fitness and physical health. As that possibility disappeared during the gym’s closing, the performance owed by the operator can thus no longer be made up for due to the passage of time. Finally, the court explained that the government had tried to mitigate the effect of such situations by allowing businesses to offer vouchers in such situations, thereby making a final regulation for those situations. Thus, the court held that other contract adjustments, such as membership extension, was not allowed.

Full text of the decision available at de