Legal nature of the individual employment contract

• Author: Ada Hurbean
• Position: Ph.D Lecturer, Law and Social Sciences Faculty, '1 Decembrie 1918' University of Alba Iulia
• Pages: 41-48

Ada Hurbean

41

LESIJ NO. XVII, VOL. 2/2010

LEGAL NATURE OF THE INDIVIDUAL EMPLOYMENT CONTRACT

Ada HURBEAN∗

Abstract

Obviously, the juridical act based on which a person works for and under the authority of

another person in exchange of a salary can be only an individual employment contract, as the

Labour Code specifies. So, in this case we are talking about a contract which should be governed

by the rules of this matter as the common civil law stipulates, including the freedom of negotiation

and concluding of this legal act. Unfortunately, on the present Romanian labour market the labour

contract is transformed into a contract of adhesion, imposed by the law. This reality, which can’t

be ignored, distorts the legal nature of the labour contract and the free will principle which must

be respected during the negotiation and conclusion of the individual employment contract.

Keywords: individ ual employment contract, negotiation, free will, equal positions before

the law of parties, subordination relationship

The individual employment contract is actually considered, inclusively by its legislator, the

main institution of the labour right, of the individual labour right, because the Labour Code

establishes it about a third of its regulations (from Article 10 to Article 107 of the total 298 items).

Consequently, as it is defined by Article 10 of the Labour Code and by the professional legal

literature, the individual employment contract is “the contract (agreement)103 under which a natural

person, named employee, undertakes to perform work for and under the authority of an employer,

natural or legal person, in exchange for a remuneration called wages” and with ensuring the

appropriate conditions for carrying out and maintaining work safety and health. It is obvious that

we find ourselves in the presence of a contract with all the specifications of this bilateral legal act,

ruled by the principle of free will. Even more, the individual employment contract is a contract

named, synallagmatical (the parties’ obligations are mutual, meaning that each parties’ obligation

represents the legal cause of the co-contractor’s obligation), for valuable consideration,

commutative, consensual (the form demanded by Article 16 of the Labour Code is only ad

probationem), intuitu personae (it is concluded in the view of employee’s training, skills and

qualities, but also in the view of employer’s specific activity) and with successive fulfilment (both

parties provisions are done in time and not all at once).

Generally, the individual employment contract may have just two parts: the employer,

natural or legal person and the employee, always a natural person. By exception, there are certain

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∗ Ph.D Lecturer, Law and Social Sciences Faculty, “1 Decembrie 1918” University of Alba Iulia.

103 It is considered that the legal definition of the individual employment contract has a deficient character,

because, in the Romanian law, the labour terms and those of convention are synonymous. So that more appropriate

wording would be “the contract... ... is the convention” instead of “the contract ... is the contract”, in order to avoid

the idem per idem character of the definition - in this sense Al. Xiclea, Acte normative noi - Codul muncii, in Revista

Român< de dreptul muncii no. 1/2003, p.8.

We consider that the definition’s need of legal rectification is not an imperative one, given the fact that the

deficiency is not a fund one, but strictly a form one. But on the other hand, it should be supplemented by the

employer’s obligation to provide the necessary conditions to conduct in good condition the work, and not only the

obligation to pay wages.