I was thinking about § 312d Widerrufs- und Rückgaberecht bei Fernabsatzverträgen.
Used mainly in online transactions.
Correct, brain not working yet.
Thanks for your question but the case here is a bit different from the "right to change your mind" that is very strong in the USA, and less strong in Europe.
What happened was a bit different and in my opinion under other legislations might be considered something of a scam.
Once a year Silhouette offers (at the condition that you are "godfathered" by an existing member) the possibility of getting a one year membership at over 40% discount, which is a good deal ("total" yearly prices of Silhouette - which I do not know how many people really pay are a scary 1300 francs per year).
To profit from the offer you need to sign a paper in which you oblige yourself to automatically renew the membership (at full price) unless you communicate them in writing that you do not want to do so.
This is written in small print, but of course the lady of Silhouette tells you about it.
The catch is that you need to communicate it 30 days before the end of the contract. What happened to me is that I remembered that I needed to write them a letter saying that I did not want to renew the membership, but I forgot the 30 year clause, so I sent it 15 days before.
When I called them two and three months before (because of course they send you written warnings telling you that your membership will be renewed automatically unless you communicate your different decision in writing) they did not remind me of the key clause (the 30 days thing).
Speaking to Silhouette, they candidly tell you that "they reason as an insurance business". Pity that they are not, and that the legal justifications of the automatic and forceful renewal of an insurance, banking or rental deal do not apply to gym memberships.
Pity that some people don't know what they talk about. There's no "legal justification of an "automatic and forceful" renewal an insurance, banking or rental deal.
Now if you're lazy and do not bother checking what you sign, that is something else. Caveat emptor I believe it is called.
True, I am no lawyer.
And I never said nor thought that insurance contracts by law have automatic renewal
All I am saying is that when you approach a legal, insurance, or a lease (or wedding ) contract you assume that there is a "strong" renewal mechanism (even if it is not automatic, it exists in 99.9% of contracts). So you would "manage" the relationship with a lot more attention to its legal side.
When you inscribe yourself in a gym you (or at least I) assume to enter in a different kind of relationship. So I look into fine print with much less attention.
My point here, however, is not that I did not know. It is that I forgot. And that they did not remind me. And that the 30 day fine print thing IMO does not serve any legal purpose, while the automatic renewal clause in a lease contract that asked you to notify your desire not to renew 6 months before has a perfect legal (and therefore business justification).
I might be wrong, but my personal opinion is that this clause serves the main purpose of catching mindless idiots like myself.
When you sign something it doesn't matter who the counterparty is - unless someone had a gun to your head, you're bound by whatever conditions you have agreed to when signing.
You mean they didn't remind you other than the two letters they've sent you, and you try to blame them for your forgetfulness?
So what is the "perfectly legal justification" of the notice period in a lease contract that does not apply to other contracts?
1) Yes and no. Of course legally you are bound, but there is tons of jurisprudence dealing about fine print, non correct clauses (that you need to sign separately eccetera. My point is only that these clauses do not "fit" the business nor the purpose with which you inscribe in a gym club.
2) Yes I mean that they did not remind me that I had to write to them 30 days before. Which I had forgot. One year later forgetting that (against all logic) you have to tell them on month before might not be right, but it is human
3) I do not know if you are a lawyer, but - at least in the Italian - there is a principle that says that laws (and by extension contracts) must aim at some logical object and not be uselessly painful for one of the parts if the other part does not get some rightful advantage from that clause. If you rent my place, you cannot go away at one minute notice for the simple reason that I need to find another person. On the other hand, and my friend here is the whole point, if I write on the contract (in fine print) AND YOU SIGN IT that you need to tell me that you are going away with ten years of advance (with inflicts pain on you but given not advantage to me, that clause can be considered null.
I am not a lawyer, so I do not know if this applies to the 30 day thing (that certainly servers no purpose to Silhouette), but there certainly are plenty of cases in which signed clauses have been considered null, even if they were signed separately.
cheers
fabio
Hi all,
I have been living in Switzerland the last two years and now I have to return to my country due to the termination of my work here. I have been a member of Silhouette fitness club since April of 2010 and I have been paying monthly fee. I took this option over the single annual payment because at that time I was not certain how long I would be here in Switzerland.. And the gentleman at the club suggested me the monthly option because I could pull out anytime. In 2011 again I asked them if I can swap to an annual membership but a different gentleman told me that it would still be ok to continue as such. And now when it is time for me to actually leave the country, I am being told by them that it is not possible to terminate a membership even if there are only two more months left I NEED to pay for those two months (CHF 178) even though I will not be in the country from next week!! This is ridiculous and I feel cheated!! If I had known this earlier I see no reason why I should not have switched to an annual membership when I renewed last year! It would have costed me only 700CHF. Now I need to pay a penalty of 178CHF over and above the 890CHF I have already paid them! Is there any way out of this? What if I dont make the payment?
Please help me!
Just tell them you're leaving the country for good. What are they going to do about it?
Is the membership transferrable? Could you "sell" the membership to someone else? This way its not a total loss?
you could get a knock on your door late one night demanding payment.
I'm going to go out on a limb here...
What are the chances you were handed a contract when you changed to the annual membership and signed it without reading/understanding it?
This is Switzerland and there are rules, but they are rarely secret. I'm willing to bet, either when you initially opened your membership or when you changed to an annual membership, you were made aware of the conditions under which you could terminate a contract and the penalties for doing so.
Congratulations, this short lesson in contract law has only cost you CHF178. The take-away? Always read the fine print before signing anything.
For a contract to be binding doesn't the person signing have to understand what it says?
Either this, or a month-to-month arrangement might require several months' notice to terminate. IME, Swiss companies very much like ample notice for terminating just about everything- employment, rental, or anything else.
Lol... Your sense of humour makes me feel a lot better already :-)
True that I signed up not going through the terms and conditions written in German because at that time I went by the salesperson's word.. And during the renewal there was definitely no paperwork handed out to me... Expensive lesson indeed!!
When I was in Basel I was member of a gym. When I signed the contract I told them we may leave the country in the year so they wrote a note on my contract that mentioned if I was leaving the country, my contract was going to end without notice nor penalties. When it actually happened, I only had to show them my deregistered letter from the city and they gave me back my money for the months left.
I was told something similar when I first joined... but I guess my fate is to be tormented by these folks... I mean its amazing how all the beautiful smiles and warm greeting turns almost into a devlish snarl the moment you tell them u wont part with your money... reminds of the dwarfs at Gringotts!!
Lol.
Did they write it on your contract?
I actually dont even remember because that contract was signed 2 years ago.. at that time I was vulnerable and new nothing about Europe, leave alone Switzerland!
A tough lesson learnt by many - NEVER EVER SIGN A CONTRACT WITHOUT UNDERSTANDING IT PROPERLY - at a gym, for a flat, car lease, whatever.
Ask them to see the contract you signed and take a friend who speaks German with you to check it out and try and sort out an agreement. Bonne chance.