Direct debit clauses in gym contracts can be invalid

The plaintiff is a consumer association registered in the list of qualified institutions pursuant to § 3 para. 1 sentence 1 no. 1, § 4 UKlaG. The defendant operates a gym. Its pre-formulated membership contracts contain the following clause:

"The member authorises Studio C. K., unless a bank transfer has been agreed, to debit the fee by direct debit on a monthly basis until revoked."

The plaintiff considers this provision to be invalid pursuant to section 307 (1), (2) no. 1 of the German Civil Code (BGB) because the use of the term "abzubuchen" (to debit) implies, from the relevant perspective of the customers, the obligation and consent to participate in the debit order procedure.

The lower courts considered the clause to be unobjectionable and dismissed the action. The Third Civil Senate of the Federal Court of Justice considered this legal opinion to be correct and rejected the plaintiff's appeal.

(1) It is in line with the case law of the Federal Court of Justice that the form-based obligation of a consumer to grant a direct debit mandate is in principle permissible. In any case, it cannot be assumed that the contractual partners of the user are unreasonably disadvantaged if it is a matter of the debiting of small amounts or if it is a matter of larger amounts which - as in the present case - are regularly collected in a constant amount which is fixed from the outset. In this context, it must be taken into account that the direct debit authorisation procedure brings considerable rationalisation effects for the user and the payee, especially organisational and accounting advantages, and is noticeably more cost-effective. For the consumer, this form of cashless payment is also advantageous because he is released from monitoring due dates and can be passive. Moreover, the direct debit mandate is risk-free for him because he can counteract the debiting of his account by revoking it.

In contrast, the direct debit procedure (direct debit order procedure) regularly puts the customer at an unreasonable disadvantage. This is because with this second type of direct debit procedure, the customer gives his bank (the paying agent) an order in advance in the sense of a (general) instruction to honour direct debits from the creditor specified therein. The bank accordingly debits the account with the account holder's consent. Therefore, once the direct debit has been honoured, he can no longer reverse the debit from the account, so that the direct debit procedure entails quite considerable dangers for the drawee and can therefore in principle not be effectively agreed in general terms and conditions.

2 In the opinion of the Federal Supreme Court, the clause used by the defendant, even taking into account the principle of the most anti-customer interpretation applicable in association proceedings, is to be understood to mean only the direct debit authorisation procedure, i.e. the clause does not contain any unreasonable disadvantage within the meaning of section 307 (1), (2) no. 1 BGB. In this context, it was decisive for the senate that the word "direct debit", which is familiar to the customer in connection with the direct debit authorisation procedure, is used and that all circumstances only point to this type of direct debit procedure, which is widespread and better known in practice. In this context, it continued to be of decisive importance that, from the consumer's point of view, only a corresponding - in this respect conclusive - declaration of intent is to be made vis-à-vis the user, whereas the direct debit procedure requires a declaration of intent expressly vis-à-vis the customer's bank.

Judgment of the Federal Supreme Court (BGH) of 29 May 2008 - III ZR 330/07

Previous instances:
Karlsruhe Regional Court (LG Karlsruhe) - Judgment of May 23, 2005 - 10 O 274/05
Karlsruhe Higher Regional Court (OLG Karlsruhe) - Judgment of June 20, 2007 - 15 U 66/05

Source: Press release no. 100/2008 of the Press Office of the Federal Court of Justice of 29 May 2008, Herrenstraße 45 a, 76133 Karlsruhe, telephone 07 21 - 159-5013,fax 07 21 - 159-5501, e-mail:

Goldberg Attorneys at Law, Wuppertal-Solingen 2008
Attorney at Law Michael Ullrich, LL.M.(Information Law)