Penalty clauses

[Solar]

Recently I was asked to sign what I would consider a penalty clause at a school where I am adding to my woes by taking helicopter instruction.
This was that I would pay a certain percentage of the lesson cost if for some reason I did not turn up without giving some notice. I forget the percentage but just wondered if this is practised elsewhere.
I don't know how legal it is and how could it be enforced anyway unless you have paid up front and nobody does that nowadays I hope.
Bit pointless as I would like to think that I would have the courtesy to let them know anyway if I had to cancel.

[Tall_guy_in_a_152]

Bit pointless as I would like to think that I would have the courtesy to let them know anyway if I had to cancel

I imagine the clause is aimed at those with less courtesy than yourself - of which there are plenty out there.

It sounds fair enough to me, if administered sensibly.

[Tall_guy_in_a_152]

Forgot to answer the question. Yes - I have seen this clause before at schools / clubs in the UK, US, Australia and New Zealand.

I suppose if you have paid nothing up front and do intend to fly with them again, it would be difficult to enforce!

[Gertrude the Wombat]

Perfectly normal.

It's aimed at people who book and then can't be arsed to show up - no sane club charges people who phone up and cancel because they are ill or because they don't like the weather.

[dsandson]

I dont know what airfield you fly from, but the UFC have something similar, but never signed anything specific. Never seen it put into action, but like yourself, I've never failed to turn up.

Shouldnt be a problem unless they get funny about you deciding that the weather isnt good enough.

dsandson

[BackPacker]

My club has similar rules. Also on minimum aircraft usage during the time you book - you are supposed to fly at least half the time of the slot you booked and if you book an aircraft a full day you're supposed to fly something like 2.5 to 3.5 hours a day minimum (weekday/weekend rules).

But these rules are applied with a fair bit of common sense and consideration for the purpose of the flight. Weather and everything on the I'M SAFE list is not questioned whatsoever, except possibly by the people hanging around the bar. Also, for example, if you take our aerobatic aircraft for an aerobatics contest, and you arrange things in advance, it is understood that you won't be flying for 3.5 hours per day at least.

And it's also a matter of who you are and who you know. If you fly regularly and on the ground behave as a nice, caring person with an understanding on how a club works, and you want to take an aircraft to a foreign country for five consecutive weekdays, knowing (and making clear) in advance that you won't be reaching the minimums, and there is plenty capacity that week, then nobody is going to have a problem with that. Whereas if you don't fly regularly, are an unknown face at the club/bar, and only tend to book an aircraft for a full (glorious weather) weekend and return Sunday night having flown a whopping two hours in total, you've got a problem.

In the end, it all comes down to managing aircraft/instructor utilization. Without rules you have anarchy, but with too many rules and too strict an application of those rules the people who pay for all of this will simply run away.

[mixture]

Recently I was asked to sign what I would consider a penalty clause at a school where I am adding to my woes by taking helicopter instruction.

When you sign things in the UK and you are entering the contract as yourself (i.e. not acting in capacity of employee/director of a company) ... there is a lot of protection under UK law !

UCTA and UTCCR are two big names ...

Unfair Contract Terms Act and Unfair Terms in Consumer Contracts Regulations

The OFT provide a few examples of unfair terms ....
http://www.oft.gov.uk/shared_oft/reports/unfair_contract_terms/oft311annexea.pdf

To put it in a simplistic fashion, if a term is unfair, then it is not enforceable, even if you signed a piece of paper agreeing to it.

Companies trying to incorrectly exclude death, injury is quite a common occurence....

Unfortunatley PPRuNe is no place for legal advice, suggest you talk to a lawyer about your concerns.

[effortless]

I should ask for a percentage off if the cancel for some reason.

[Julian]

I have been on the recieving end of a 'penalty' for cancelling due to weather, I felt it was unsuitable for the planned flight. I argued the point but they would not back down. Needless to say they didnt get my money again.

If only flying schools would recipricate if they cancelled or moved your slot which has happened to me before with a couple of hours notice or when I have turned up!!!!!

J.

[Canadapilot]

very good point Julian! the number of times i've turned up to find the plane has gone tech or is being used for a flight test...with no phone call to let me know!

[mixture]

I should ask for a percentage off if the cancel for some reason.

Without going into detail because it's not attempt to give legal advice ...

Yes, you are thinking along the right lines.

Liquidated damages / "Penalty" clauses can be ok, but the amount you have to pay should reflect a genuine pre-estimate of the supplier's commitments to subcontractors, other suppliers etc. They should not be allowed to make up for loss of profit.

A clause that seeks to operate in terrorem is likely to be viewed as a penalty by the courts.

[bigfoot01]

...and you take your choice. I have to say, I believe that as long as clubs and schools are clear up front with the rules, you then have the choice to decide whether you accept them, or go and spend your flying pound elsewhere. I have to say, while hanging around in schools and clubs, it is shocking the things these guys have to put up with, so they are probably doing it for a reason... We are blessed in this country with loadsa choice and with the economy going the way it is going, if you can still aford to do it, you will find even more flexibility and choice, well that's my suspicion.

[18greens]

Its a good will thing on both sides.

Some students call up (or don't call at all) at the last minute to say they won't be coming today because they have to go shopping (always on a CAVOK day). That leaves the instructor with a gap he can't fill and if its the only trip he turned up for a wasted day. If the penalty is enough to cover the instructors pay then good. I've never seen this enforced though.

We had one chap who did this regularly and he very soon found it hard to find any instructor that would take him.

On the other side of the coin if the school can't do the trip they should call the day before. However if the ac has just gone tech then theres little either side can do.

[mixture]

That leaves the instructor with a gap he can't fill and if its the only trip he turned up for a wasted day. If the penalty is enough to cover the instructors pay then good.

If we assume the cost of a lesson to be broken down to aircraft hourly rate +instructor hourly rate.

I think it would be reasonable to charge a penalty the portion of salary for the instructor, however it would be unreasonable to charge a penalty for the aircraft, because in terms of instruction, an aircraft only costs money when being used (fuel, engine wear ...) ....

Just my 2p worth.

[smarthawke]

Totally agree that the instructor should be reimbursed for their loss of earnings but remember a very small part of the hourly rate also generates money for the club - no fly and no 'profit' (and I use the term very loosely for UK GA clubs...!). There are other fixed aircraft costs that have to be paid regardless of if it flies or not like insurance, CofA fees etc.

At a busy club it also stops other people flying who may have wanted a slot but they were all taken.

At our club their is 'penalty charge' for no-shows or late cancellations but every case is treated individually and it is very rare that it is charged. There isn't anything to sign, just a polite notice in reception.

I personally think that some people think that as it is a leisure activity to them, then it is a leisure activity to all, including the club and the staff, so if they get drunk the night before or have to go shopping it doesn't really matter if they don't turn up or cancel at a hour's notice.

[B2N2]

Yes, reasonable.
We call it a NO-SHOW fee if we receive no cancellation, nothing, nada...nobody shows at scheduled time...we reserve the right to charge a fee.

[mixture]

There are other fixed aircraft costs that have to be paid regardless of if it flies or not like insurance, CofA fees etc.

Sure, I wasn't saying there weren't other costs, but the club commited to these costs on an aircraft basis ... whether or not Student X decides to have a boozy lunch and not turn up will have no effect on the cost of insurance, hangerage etc, as the club will be paying that irrespective for as long as they are the owners of the aircraft.

I do agree however, that cancelling a lesson on short notice without good reason will do nothing good for the student's reputation, particularly if he/she does it regularly. Just like staff chucking sickies ....but that's another story ..:cool:

[Duchess_Driver]

Sorry Mix

"Sure, I wasn't saying there weren't other costs, but the club commited to these costs on an aircraft basis ... whether or not Student X decides to have a boozy lunch and not turn up will have no effect on the cost of insurance, hangerage etc, as the club will be paying that irrespective for as long as they are the owners of the aircraft."

Okay, I'll book all your aircraft then naff off for a boozy lunch somewhere.....meanwhile, there are many other customers who would have flown the aeroplane had you not said 'I'll book that'. The more hours the aeroplane works, the less per hour the insurance/hangarage/parking etc costs (simple economics)...if it's on the ground when it could have been flying then it's losing money. Simple as.

Especially at weekends, you can find it difficult to get a slot/instructor/airplane so why should others suffer, just cos you've broken your promise to use the aeroplane.

Meanwhile, back in the real world.....usually we only enforce this rule for persistant offenders!

[IO540]

Meanwhile, back in the real world.....usually we only enforce this rule for persistant offenders!

I am sure this is what happens normally.

However there is the other side of the argument, and that is the occassional (sometimes more than occassional) case where the instructor or the school insists on flying despite the conditions being too poor to enable the very low hour student (fighting with the controls) to learn anything. I had quite a few lessons like that. It's debatable both ways whether this represents value for money to the student.

[mixture]

Duchess,

I am not going to be drawn into any argument here, particularly as I've already pointed out that CofA etc. will be payable irrespective of whether or not the student turns up. Any half busy club will soon make back the lost money on the aircraft from that couple of student hours flying, even if not on that day, certainly by the end of their financial year. For a start, they could do a block hour building deal with a newly qualified PPL ....

I think you are missing the whole point of this thread, Solar stated as part of his question:
I don't know how legal it is and how could it be enforced anyway

What I am saying is that from a legal point of view, if Solar didn't pay the penalty fee and was taken to court, there may be scope for a half decent lawyer to put forward an argument and potentially have the penalty reduced or declared unenforceable depending on circumstances.

[Solar]

Seems that this thread has grown wings "pun intended" the beauty of PPRUNE.
I appreciate all the comments but the only reason I asked was to find out if it was a common practise I had never came across it before and as most people here seem to agree it is more of a goodwill thing than anything else.
I suppose considering the cost of helicopter flying it stands to reason the school would need some recompense if it had a few regular no shows.
I suppose it was the fact that I was asked to sign something that rankled me slightly but then that is modern society I suppose.

[Legalapproach]

This was that I would pay a certain percentage of the lesson cost if for some reason I did not turn up without giving some notice.

Providing the percentage is not excessive and reflects the amortised costs of the use of the aircraft/instructor then it is unlikely that such a clause would be held to be unreasonable. The key here is the lack of notice regarding the cancellation as it prevents the flying school trying to re-offer the aircraft (for example to a student who is available at short notice).

The unfair contract terms legislation deals with clauses that attempt to remove or limit a consumers ordinary rights (for example excluding liability for negligence etc). Here the term of the contract simply requires you to give some notice if you decide not to honour your booking. It's not dissimilar to hotels or restaurants asking for a deposit/credit card number with a room booking/reservation and requiring any cancellation to be made by a certain time.

[Downwind2Land]

Me dentist and me optician both charges us if i don't show! Why should me flying school be different?