Does an unlawful contract duration invalidate termination deadlines even after lawful extensions?

Question

The following question is relevant for Germany. The contract of interest is with a gym, which might be relevant because contracts with them sometimes have special rules.

In Germany, a contract with companies may not extend a duration of 2 years (BgB §309 9b). In a case (Aachen, 6 S 199/07) a contract was deemed invalid because it was signed in March 2005 but the 2 year usage of the gym was set to start in April. This was deemed to exceed the 2 year duration (2 years + one month without usage, but a signed contract), so the customer was able to terminate the contract earlier than expected.

In my case, I signed a contract on date X, the 2 years started on "X + 2 weeks". Then, at "X + 2 weeks + 2 years" the contract was automatically extended by one year. This extension was announced in the original contract.

My question is, whether the contract can still be canceled immediately. I can se an argument for both sides:

• Yes, it can be canceled: The first contract period was invalid, it became an unlimited contract, cancelable at any time. Therefore, there was no need for an extension. It's still the same contract, so it can be canceled now.
• No, it cannot be canceled: While the contract could have been canceled during the first 2 years, the extension made this a new contract. Now, this contract is for 1 year only, so that's within the limits and is valid.

Which one applies in this situation?

Answer 1

My question is, whether the contract can still be canceled immediately.

No. Your second bullet point is the correct conclusion. Once the automatic extension becomes effective, a claim of violation of the initial term of 2 years is moot. Paragraph 8 of the ruling reflects the relevance of identifying the period underlying the claim.

A client waives the protected interest mentioned in paragraph 10 by allowing the 2-year term to elapse. Accordingly, a belated claim of violation of BgB §309.9a for the purpose of voiding a subsequent term is inapposite.