Coaching
is not
distant learning.
Coaching
is not
distant learning.
from
A coaching participant must pay the agreed remuneration. After the action for payment was dismissed in the first instance due to the invalidity of the contract, the Higher Regional Court of Naumburg ordered the participant to pay in the appeal instance.
Are coaching contracts null and void?
Like several higher regional courts before it, the OLG Naumburg also dealt with the applicability of the FernUSG to coaching contracts. As in comparable cases, the parties were in dispute about the remuneration for a coaching session that the participant had already attended. Nevertheless, he refused payment on the grounds that the contract was null and void because the coaching provider did not have the supposedly required approval under the FernUSG.
The nullity of a coaching contract requires, in addition to the lack of authorization, that distance learning is the subject of the contract. This is the case if the contract fulfills the following characteristics:
- For a fee Transfer of knowledge and skills
- Spatial separation of the teacher and the learner
- Monitoring the learning success
At first instance, the court assumed that the requirements for distance learning were met and dismissed the coaching provider’s claim for payment. The provider appealed against this – with success.
No distance learning
In its ruling of 26.11.2024(AZ 1 U 41/24), the OLG Naumburg ruled that the coaching contract in the specific case did not relate to distance learning. The participant must therefore pay the contractually agreed remuneration.
To the extent that the Higher Regional Court of Celle considered the opportunity given to the participant to ask questions to be sufficient to check learning success, this is not convincing.
The court assumed that the applicability of the FernUSG does not fail due to the characteristic of imparting knowledge and skills, even if the contract contains advisory elements. In addition, the OLG also assumed a physical separation on the grounds that the participants acquire the knowledge themselves using the materials provided in a separate location from the teachers.
However, the court denied the characteristic of learning success control. The mere possibility of asking individual questions about the content of the coaching does not constitute a learning success check. The court criticized the frequently cited decision of the OLG Celle with reference to the wording of the FernUSG as unconvincing.
KPW wins ahead of LG Ellwangen
The Ellwangen (Jagst) Regional Court dismissed an entrepreneur’s claim for reimbursement of remuneration as inadmissible in a ruling dated March 5, 2025 (case reference: 1 O 58/24) after the marketing service provider represented by us had objected to jurisdiction. Being aware of the subscriber-friendly case law of the Higher Regional Court of Stuttgart, the Regional Court of Ellwangen nevertheless agreed with the case law of the Higher Regional Court of Munich and the Higher Regional Court of Nuremberg and confirmed that the FernUSG does not apply in the B2B area and therefore the exclusive place of jurisdiction at the subscriber’s place of residence was not justified.
Conclusion
Whether coaching meets the requirements for distance learning is a question of the individual case.
There is currently no consensus in case law as to whether the FernUSG applies to coaching contracts or not. The content of the respective contractual agreement is decisive. In some cases, distance learning is denied because the coaching takes place via video conference and a physical separation is already excluded. The applicability of the FernUSG in the B2B sector and the requirements for monitoring learning success are also disputed.
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