Termination with medical certificate - sickkdue to illness?
Frankfurt/Main Regional Court rules after referral back by BGH
Termination with a medical certificate: How should studio operators proceed if they have doubts about the accuracy of the medical certificate? The Frankfurt/Main Regional Court has now issued a clear ruling following a referral back by the Federal Supreme Court. Unfortunately, things are not getting any easier for operators, but the rules are now clear.
In rare cases, disputes between fitness studio and member reach the Federal Supreme Court (BGH). So the BGH has also spoken on 08.02.2012 (Az.: XII ZR 42/10) a much-noticed judgment, in which it was about a so-called certificate termination.
Dispute over termination with a medical certificate
The starting point was a legal dispute between a fitness studio and a customer concerning seven monthly fees of 44.90 euros each. The dispute was based on a contract with a term of 24 months, which was to be extended by 12 months unless it was terminated in writing three months before expiry.
The customer had terminated this contract without notice, enclosing a medical certificate due to alleged health problems. The studio operator did not accept the termination without notice. The customer stopped making payments, which is why the legal dispute then came before the Frankfurt District Court.
Item 7 of the fitness studio's contract conditions contained the following provision:
"The user may terminate the contract with effect from receipt by the B...-Center if he is unable to use the center's facilities for the remainder of the contract term due to illness. In order for the termination to be effective, it must be made without delay, at the latest within two weeks of knowledge of the circumstance justifying the termination, and a medical certificate must be attached to the notice of termination, which comprehensibly states the illness/health impairment that is supposed to prevent use."
The Frankfurt/Main Local Court had essentially rejected the studio operator's claim. The studio operator appealed to the Regional Court and was successful. The customer was sentenced. The customer appealed to the Federal Court of Justice.
Was the termination lawful?
In its reasons for the ruling, the Federal Court of Justice first clarified that the 24-month term was lawful in the present case.
According to the content of the contract concluded between the parties, the customer was only entitled to use the equipment and the premises. There were no further obligations on the part of the studio operator, such as to provide teaching or other services. The essential content of the contract was the provision of the fitness equipment and the use of the fitness studio premises.
The appeal of the defendant customer was nevertheless successful (for the time being) because the court of appeal (Frankfurt Regional Court) had not examined whether the termination declared by the customer - as extraordinary termination for cause - led to a termination of the contract.
Attest clause not permissible
The BGH considered the (attest) clause used by the studio operator in its membership contracts to be inadmissible because this clause unreasonably restricts the customer's right to extraordinary termination. This assessment by the BGH was made using the most anti-customer interpretation that is decisive for the content review.
It is not permissible to use a clause in the out-of-court area that makes termination dependent on the submission of a medical certificate from which the nature and extent of the illness are to be derived. The studio operator has no right (out of court) to demand information from the customer about the specific nature of the illness.
In case of doubt, however, the studio operator is at liberty to question the justification of the extraordinary termination and to have the validity of the extraordinary termination examined in court proceedings. In the court proceedings, the customer would bear the burden of presentation and proof for the existence of an important reason.
The Federal Court of Justice referred the matter back to the Frankfurt/Main Regional Court to examine whether the customer was entitled to terminate the contract for cause on the basis of the illness he claimed.
Expert opinion refutes medical certificate
The Frankfurt/Main Regional Court therefore had to rule again on whether the studio operator was entitled to the premiums awarded.
In its ruling of October 31, 2013, the Regional Court again ordered the customer to pay in full. The termination without notice had not terminated the contractual relationship, as there was no good cause.
The Regional Court had previously taken evidence and had the internist's certificate, which had already been submitted out of court, and its findings reviewed. The customer's doctor had claimed that the customer was not allowed to exercise for health reasons. In order to verify this information, the court commissioned an expert to carry out an assessment. After an extensive clinical-orthopedic functional examination, the expert came to the conclusion that the customer was in good training condition and was not impaired by any significant illness in the orthopedic field.
The court-appointed expert was also unable to determine the signs of disease in the lumbar spine due to a degenerative disc change, as claimed by the customer's physician. After reviewing x-rays of the cervical spine, the court-appointed expert clearly concluded that there was no medical reason to avoid exercise.
Rather, the expert recommended "adapted fitness training on equipment, combined with exercises to strengthen the back muscles, as a preventive measure against back pain."
Conclusion
The BGH ruling has caused a lot of unrest in the fitness industry because numerous journalists and media misrepresented it. For example, it was claimed - in abbreviated form - that customers do not have to present a medical certificate out of court. From this, many readers drew the conclusion that studio operators would always have to accept terminations due to illness.
However, the BGH merely ruled that the customer cannot be forced out of court to provide a medical certificate and explain the reasons for the alleged illness. If the studio operator has doubts, however, he can take legal action.
Within the court proceedings, the customer must explain and prove that he has such a serious illness that further training is not possible for him. This leads - unfortunately - to the fact that customers, who have to check whether there is actually an extraordinary reason for termination or not, have to be sued.
So-called "attestation clauses" are not necessary. The studio operator should dispense with such clauses.
The author's law firm has handled thousands of court cases involving attest terminations. Where court-appointed expert testimony has been obtained, in nearly 100% of the cases the court-appointed experts have concluded that exercise is correct and reasonable, even for the claimed symptoms of illness, and even results in avoiding the complaints. <<
Dr. Hans Geisler,
Attorney at Law and
specialist attorney for industrial property law
Specialist attorney for construction and architectural law
Dr. Geisler, Dr. Franke und Kollegen The law firm of Dr. Geisler, Dr. Franke und Kollegen stands for competent, goal-oriented and effective advice. The firm currently has 12 attorneys and over 30 employees. The main focus is the nationwide consulting of medium-sized and large companies in almost all legal matters. All lawyers have specialized in various fields, often to the point of obtaining the title of a specialist lawyer. The firm has unique expertise in all conceivable legal issues in the fitness and leisure industry. www.rae-geisler-franke.de
Source: F&G
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Published on: 26 August 2014