Can I get a refund foran over billing and cancel a gym membership without paying the early cancellation fee on the contract?

My gym charged me twice in one month and continued to bill me once a month thereafter. Can I get a refund for the over billing and cancel membership without paying the cancellation fee on my contract? I’m not sure of this would be considered a breach of contract on their end. This is an issue the gym is aware of since this has happened to many of the gym members. They never made any attempt to reach out to me. I had to seek them out with a problem they knew about and all they did was turn a blind eye on the situation until I confronted them about my situation.

Asked on December 6, 2011 under General Practice, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

You would be entitled to a return of the overbilled amount (or its crediting vs. future bills or invoices), since the gym is not entitled to more money than you agreed to pay in the contract or service agreement. However, you most likely cannot cancel the contract without incurring the early cancellation fee; that is because a single over- or double-billing, while a breach of the contract (which is why you can recover for it), would almost certainly not be considered a "material," or critical or important breach. Any breach allows you to seek the appropriate monetary compensation; but only a material breach, or one going to the heat of the agreement (such as not receiving the services you are paying for) justifies termination of the contract.


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