A gym contract in COVID-19 time

A gym contract in COVID-19 time

 "I signed up for a gym class for 2019-2020 and in September I signed a contract for a monthly fee of CHF 250. However, because of COVID-19, the classes have not been given since mid-March and the person in charge is asking me to pay for May and June even though there will be no classes. Am I obliged to do this? " J, Geneva

Swiss law deals with a large number of contracts, some of which have a special place in the Code of Obligations (CO). These are the so-called "named" contracts, such as employment contracts and agency agreements. Others, on the other hand, are known as "innominate" contracts, as they contain the characteristics of several named contracts.

First of all, you need to qualify the contract by examining what has been agreed between the parties. In your case, it appears to be a teaching contract. Such a contract is not defined by law and consists of an undertaking to pass on, in return for remuneration, the knowledge and skills described in the contract.

The Federal Court ruled that the rules governing contracts of employment apply to teaching contracts, namely article 404 of the Swiss Code of Obligations (CO), which states that a contract may be terminated at any time, but that the party who terminates the contract at an inopportune time must compensate the other party for any damage caused. Untimeliness is accepted if the agent did not initiate the termination and it causes him damage because of the timing of the termination. For example, termination during a teaching semester is considered to be inopportune.

However, when the courses can no longer be provided, for example because of measures put in place by the Confederation to combat Covid-19, the question arises of the application of article 119 of the Swiss Code of Obligations. This legal provision stipulates that a debtor who is unable to perform is released from his obligation and is required to return, in accordance with the rules of unjust enrichment, what he has already received without being able to claim what is still owed to him.

This is the theory of subsequent objective impossibility, which could be applied in the present case, where the two parties are released from the contract and must return the promised benefits to each other. However, the application of this theory is debated in the doctrine.

So, despite the fact that the Federal Court has not yet had to rule on a case of this kind in relation to Covid-19, it is necessary to interpret the contract between the parties, which could mean that, in your case, the price is not due, since the obligation is extinguished when performance becomes impossible, unless of course the contract between you and your gym teacher excludes the application of article 119 CO, which is legally possible.