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ScottyMacEsq
ScottyMacEsq, Attorney
Category: Legal
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Experience:  Licensed Texas General Practice Attorney
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In the state of MN, does the 72 hour cool off apply

Resolved Question:

In the state of MN, does the 72 hour cool off period apply for a contract with a health club?
Submitted: 11 months ago.
Category: Legal
Expert:  ScottyMacEsq replied 11 months ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

Technically, no. It's not 72 hours (which apply to purchases in homes or in certain other situations) but rather 3 business days following the date of sale:

ScottyMacEsq :

325G.23 DEFINITIONS.
Subdivision 1.Scope. As used in sections 325G.23 to 325G.28, the terms defined in this section have the meanings given them.
Subd. 2.Club. "Club" means any health club, social referral club or buying club.
Subd. 3.Contract. "Contract" means any agreement by which one becomes a member of a club.
Subd. 4.Health club. "Health club" means any corporation, partnership, unincorporated association, or other business enterprise having the primary purpose of offering one or more facilities for instruction, training, encouragement, or assistance in physical fitness, in return for the payment of a fee entitling the member to the use of the facilities. The term does not include any nonprofit organizations, any private club owned and operated by its members, or any facility operated by the state or any of its political subdivisions.
Subd. 5.Social referral club. "Social referral club" means any corporation, partnership, unincorporated association or other business enterprise organized for profit with the primary purpose of matching members of the opposite sex, by the use of computer or any other means, to facilitate dating or general social contact.
Subd. 6.Buying club. "Buying club" means any corporation, partnership, unincorporated association or other business enterprise organized for profit with the primary purpose of providing benefits to members from the cooperative purchase of services or merchandise.
Subd. 7.Member. "Member" means a status by which any natural person is entitled to any of the benefits of a club.
Subd. 8.Prepayment. "Prepayment" means any payment over $50 for service or merchandise made before the service is rendered or the merchandise is received. The term "prepayment" includes, but is not limited to, the payment of any service fee, initiation fee, application fee, administrative fee, deposit fee, processing fee, enrollment fee, maintenance fee, or similar fee no matter how the fee is denominated. It is not a prepayment if a payment for service is made on the same day the service is rendered. Money received by a club from a financial institution upon assignment of a contract shall be considered prepayment when and to the extent the member is required to make prepayments to the financial institution pursuant to the contract.
Subd. 9.Business day. "Business day" means any day other than a Saturday, Sunday, or holiday as defined in section 645.44.
Subd. 10.Outstanding liabilities. "Outstanding liabilities" means the amount of prepayment actually received from club members less the amount of the prepayment as prorated over the duration of any contract for services rendered by the club.


325G.24 RIGHT OF CANCELLATION.
Any person who has elected to become a member of a club may cancel such membership by giving written notice of cancellation any time before midnight of the third business day following the date on which membership was attained. Notice of cancellation may be given personally or by mail. If given by mail, the notice is effective upon deposit in a mailbox, properly addressed and postage prepaid. Notice of cancellation need not take a particular form and is sufficient if it indicates, by any form of written expression, the intention of the member not to be bound by the contract. Cancellation shall be without liability on the part of the member and the member shall be entitled to a refund, within ten days after notice of cancellation is given, of the entire consideration paid for the contract. Rights of cancellation may not be waived or otherwise surrendered.

ScottyMacEsq :

The main provision is that you would need to give a notice of cancellation in writing even though that does not have to take any particular form.

ScottyMacEsq :

You should still reference MN statute 325G.24, saying that "pursuant to MN statute 325G.24" you hereby elect your right to cancel said contract by the end of the third business day following the date on which the membership was attained.

ScottyMacEsq :

It's not necessarily 72 hours (unless it was sold at exactly midnight before a business day, in which the 3 business days would equal 72 hours), but otherwise, it would actually be longer than 72. If the membership was sold on a Friday morning, for instance, the purchaser would still have until midnight Wednesday to cancel.

ScottyMacEsq :

Here's a link to an official MN website with that statute: https://www.revisor.mn.gov/statutes/?id=325G.24

ScottyMacEsq :

Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!

Customer:

I gave a written notice the day after signing contract for person trainer. It was the Friday before the Labor day weekend. It was not their cancelation form . Just my type written letter. He told me Tues after labor day that the company says I have to honor contract. Theres nothing they can do.

ScottyMacEsq :

This right only pertains to membership interests.

ScottyMacEsq :

There's no "cool off" provision for services that do not pertain to membership interests.

ScottyMacEsq :

So if this was outside of a contract for a membership in the club, then no Federal or MN law would apply to give you a right to rescind.

ScottyMacEsq :

The 72 hour cooling off provision in MN and Federal law applies to a contract for goods, sold at a place other than the ordinary place of business.

ScottyMacEsq :

(not services)

Customer:

Even if they didn't explain this before I signed?

ScottyMacEsq :

Do you mean even if they didn't explain that you couldn't cancel?

Customer:

Yes

ScottyMacEsq :

There's no obligation to inform anyone of a nonexistent right. If there is a right to cancel, sometimes the law requires they inform you of that right. But I've never seen any statute that requires a business give notice that a right does not exist.

ScottyMacEsq :

(even if it's generally assumed that the right does, such as a 72 hour right of rescission in car sales, which does not exist in any state or Federal law)

ScottyMacEsq :

So long as there's no misrepresentation as to the nature of a right of rescission, then it will still be enforceable.

ScottyMacEsq :

Only if they said that there is a right, when there is not, would that be a misrepresentaiton.

ScottyMacEsq :

*misrepresentation

Customer:

The person did tell me before I signed that to cancel I would have to give 30 day notice in writing. No other explanation. But I guess that'shis word against mine. So that's what I did thenext day. Is that misreprensentation.?

ScottyMacEsq :

An example of a notice that has to be given when there IS a right of cancellation can be found here (for the home sales solicitation right to cancel): https://www.revisor.mn.gov/statutes/?id=325G.08

ScottyMacEsq :

That's certainly deceptive, if they told you verbally that you would have a 30 day cancellation period.

ScottyMacEsq :

I would tell them that they need to honor that statement, otherwise you will file a complaint for deceptive trade practices with the MN Attorney General.

ScottyMacEsq :

Contractually speaking, if the written contract does not have such a provision, they could still hold you to such a statement, because written clauses will trump conflicting oral assertions.

ScottyMacEsq :

But there could still be a countersuit for deceptive trade practices if they intentionally made a statement about being able to cancel within 30 days. It would be your word against theirs, but it's possible that a jury would believe you more than them,.

ScottyMacEsq :

A consumer protection complaint through the MN attorney general can be found here: http://www.ag.state.mn.us/consumer/complaint.asp

Customer:

So unfair. !! So my best bet is to 1st try to cancel with the statement that they told me I was able to cancel with a 30 day notice. If that doesn't work, legal action?

ScottyMacEsq :

Yes, that's what I would suggest. Again, threaten filing a complaint with the AG, as well as the Better Business Bureau.

Customer:

OK I'll give it a whirl!! Pray it works!! Thanks for your time and info. So much appreciated!!

ScottyMacEsq :

My pleasure.If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX good luck to you!

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