OGH Rules on More Gym Clauses

Oct 20, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has once again had to rule on clauses contained in the general terms and conditions of contracts concluded by fitness studios.

The defendant operates several fitness studios and regularly concludes membership agreements with consumers. A number of clauses in the defendant’s general terms and conditions were declared inadmissible by the Austrian Federal Chamber of Labour (Bundesarbeitskammer, the plaintiff).

The plaintiff therefore sought an order restraining the defendant from using or relying on the above terms in its general terms and conditions of business with consumers. As the lower courts had partially dismissed the claim, the plaintiff appealed to the OGH, which concluded as follows:

The contract for the fitness studio had a minimum term of 12 months and could be terminated at the end of the term every six months by giving one month’s notice. The following clause was also included in the contract:

‘In the event of important personal or health reasons preventing the member from using the studio for at least one month or longer, membership may be suspended for an appropriate period on presentation of an official or specialist medical certificate.’

Decision 3 Ob 1/23b was referred to by the OGH. According to the most unfavourable interpretation, even in the case of important reasons, membership can only be suspended, but not terminated for extraordinary reasons. Taking into account the exclusion of the extraordinary right of termination, this clause violates Section 6(1)(1)(2) of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG) due to the substantial minimum contractual term of twelve months.

The OGH also assessed the following liability clause:

‘[The gym] ... shall be liable for the loss of items left in the locker only in the event of gross negligence.’

This clause is objectively justified and thus permitted. The OGH reasoned that storing customers' belongings in a locker does not constitute contractual liability. Only the loss of items left in the locker is excluded from liability. A limitation of liability to intent and gross negligence is therefore generally possible in general terms and conditions.

3 Ob 79/23y (19 July 2023)