Fitness First Contract: Payment (1 Viewer)

[MichaelJackson2]

Hi all,

The story is this: a friend of a friend of mine signed up to Fitness First at the beginning of the year but later thought "stuff it" and never bothered further with it. Only yesterday she received a letter saying that she has an outstanding amount of $271.6 and they'll take legal action if she does not respond to the letter in 7 days! Pretty funny actually.

So I went to http://www.fitnessfirst.com.au/terms and had a skim through it but wasn't too sure which clause(s) imply that one had to make a payment despite never using the facilities - sounded a little odd - always thought that a party is only ever entitlted to payment once it had 'accrued' in the sense that they've 'earned it' otherwise there would be a total failure of consideration in which case no payment is required, unless of course the contract defined the consideration as the opportunity to use the facilities as opposed to its actual use. If the latter, then surely no payment is required (unless of course it clearly says so in the contract)?

Any thoughts? Cheers.

 

[Gavvvvvin]

Your friends an idiot and should pay up.

 

[jb_nc]

i seriously doubt they would pursue costs for $300 unless they are insane but the contract is basically watertight. fitness first is really really terrible though

 

[hYperTrOphY]

How would there be a failure of consideration?

I haven't seen the contract, but I'd assume that FF promised to provide entry to use their equipment/premises, and your friend's friend promised to pay X.

Edit: I understand your argument, but I think it is incorrect. I highly doubt it would matter that the person did not use their equipment.

 

[Newbie]

hyper is correct.

another analogy is signing up for a monthly phone plan. regardless of your actual usage, you still have to pay the monthly bill.

your friend should pay up.

 

[melsc]

How would there be a failure of consideration?

I haven't seen the contract, but I'd assume that FF promised to provide entry to use their equipment/premises, and your friend's friend promised to pay X.

Edit: I understand your argument, but I think it is incorrect. I highly doubt it would matter that the person did not use their equipment.

I agree, it doesn't matter if you used it or not, if you sign a contract agreeing to pay for a membership you cant claim the money back if you dont use it.

Looks like their was valid consideration, a promise to pay later can be valid consideration your friend should ensure they understand what they are signing because understand it or not they signed it with reading/understanding it, they should have asked questions. The law takes a signed contract as a valid one regardless of if you read it or not.



PART A

Membership Terms

1. CONTRACT FORMATION - A contract arises between us once the Contract has been signed and we accept the Contract . This Contract will be governed by the laws of the state in which your Home Club is located.

4. MEMBERSHIP ENTITLEMENT - As soon as a Contract is formed in accordance with Paragraph 1 (Contract Formation), acceptance of this Contract by us which we are not obliged to do, please refer to Paragraph 7 (Right of Admission), and subject to your rights in relation to the 'Comfort Guarantee' period, you will be bound by these Membership Terms not dependent on the amount of times you utilise the Club. As a member you are entitled to use the facilities of the Club only during the specified times and in the club locations as set out in your membership type description and only for the term of this membership subject to meeting these Membership Terms and the rules applicable. Memberships are non-assignable, non-transferable and non-refundable except as permitted in these Membership Terms.
11. COMFORT GUARANTEE - You have a 'comfort guarantee' period of 15 days commencing on the date a Contract is formed, or in the case of a new club, the grand opening date. NOTE: The legal requirement is 7 days. If you wish to utilise this period to cancel your membership, you are required to tell us in writing (on the form supplied by us) that you want to cancel your membership during your Comfort Guarantee Period. We will cancel your Contract and refund to you your initial payment less the administration fee. After the Comfort Guarantee Period ends, if you wish to terminate/cancel the Contract, you must pay certain fees to us. The particular amount of fees payable varies depending upon the reason that you are terminating the Contract. Please refer to the following cancellation provisions outlined for full details in relation to your right to cancel your membership and the fees payable in those circumstances.


16. REFUNDS - You have a 'Comfort Guarantee' period which commences on the date the contract is formed, or in the case of a new Club, the Grand Opening date, and will end 15 full days after this period where you will be refunded your initial payment less the administration fee - if you decide you do not wish to proceed with your membership application. This request must be made in writing within this period on a form supplied by us. After this period you are not eligible for any refund of money which you have paid to us for any reason. Should you pre-pay for a programme, a refund will not be granted for any reason.

The bold is why ur friend would be unsuccessful!

 

[MichaelJackson2]

Well it appears that the "outstanding balance" is purely a MEMBERSHIP fee.

Fees/costs etc referred to in the contract doesn't expressly cover the initial MEMBERSHIP payment but appear to imply, when read in light of all the surrounding clauses, to only cover periodic payments obliged to be made AFTER the initial membership fee payment, i.e. periodic payments after the initial membership fee which have a SUFFICIENT and CORRESPONDING connection with the service provided (or available to be used). Or, monies which were PAID but the situation here is that nothing was ever paid and so the whole thing about the refund wouldn't apply.

So can you argue that the INITIAL MEMBERSHIP fee itself isn't entailed by "fees"/"costs" etc (or any words/phrases to this effect) because it doesn't expressly say so? After all, isn't it obvious that both parties would intend that, notwithstanding the conclusion of the contract, payment is only ever obliged where the initial membership fee had been paid? Otherwise, wouldn't it be saying that one would have to make a payment even though they were effectively NOT a member (since the membership fee was never paid)? Wouldn't a term along these lines be IMPLIED into the contract as per the "officious bystander test" (or in layman terms the "oh of course!" test) in that old Shirlaw v Southern Foundries case?

Yay? Nay?

 

[jb_nc]

is yuor friend declaring bankruptcy not an option??

 

[hYperTrOphY]

Well it appears that the "outstanding balance" is purely a MEMBERSHIP fee.

Fees/costs etc referred to in the contract doesn't expressly cover the initial MEMBERSHIP payment but appear to imply, when read in light of all the surrounding clauses, to only cover periodic payments obliged to be made AFTER the initial membership fee payment, i.e. periodic payments after the initial membership fee which have a SUFFICIENT and CORRESPONDING connection with the service provided (or available to be used). Or, monies which were PAID but the situation here is that nothing was ever paid and so the whole thing about the refund wouldn't apply.

So can you argue that the INITIAL MEMBERSHIP fee itself isn't entailed by "fees"/"costs" etc (or any words/phrases to this effect) because it doesn't expressly say so? After all, isn't it obvious that both parties would intend that, notwithstanding the conclusion of the contract, payment is only ever obliged where the initial membership fee had been paid? Otherwise, wouldn't it be saying that one would have to make a payment even though they were effectively NOT a member (since the membership fee was never paid)? Wouldn't a term along these lines be IMPLIED into the contract as per the "officious bystander test" (or in layman terms the "oh of course!" test) in that old Shirlaw v Southern Foundries case?

Yay? Nay?

Whether he is a member seems irrelevant to the question as to whether he entered into a contract. Once again, I have not read the terms though. Tell him to pay. It will teach him not to be such a lazy bastard.