The Parties' Consent- A Distinct Reason for the Termination of the Individual Employment Contract. A Theoretical Study

• Author: Ion Paducel, PhD
• Position: Senior Lecturer. University "Titu Maiorescu" Bucharest
• Pages: 1-4

Page 1

One of the most distinct labor forms¹ is the one provided for in Article 55 b) of the Labor Code, namely "the one resulting from the parties' consent, on the date set by the parties".

The individual employment contract is regarded by the labor legislation as the main source for the legal labor relationship based on which a natural entity becomes an employee. Nonetheless, the employment contract also constitutes a legal instrument which generates at the same time a labor relationship by means of the termination of the individual employment contract, and concretizes the parties' rights and obligations, provided for in the Constitution, such as the right to labor, the right to association, the right to strike, etc.

According to the Labor Code, the general rule presupposes the conclusion of the individual employment contract for an undetermined period, unless the contract in question is concluded for a determined period in the cases provided for in Article 81 a) -e), a period which may not exceed 24 months.

The individual employment contract is concluded solely based on the parties' consent, on the agreement thereof, as per Article 16 (1) of the Labor Code, and the materialization of this agreement is exclusively incumbent upon the employer.

Taking into account that the legal labor relationship comes into existence by means of the two parties' mutual agreement, consent, assent - mutuus consensum - it is normal that the legal relationship in question be terminated by means of the parties' agreement, consent as well - mutuus dissensus.

Therefore, since the conclusion of the individual employment contract is the result of the parties' agreement - employee and employer - correlatively, the consent expressed by such parties may lead to its termination, according to a general law principle provided for in Article 969 of the Civil Code "Legally concluded agreements are binding for the contractingPage 2parties, but may be revoked by means of the mutual consent or due to legal reasons". The principle is known as pacta sunt servanda.

However, the termination of the individual employment contract, as a result of the parties' consent on the date set by the parties, is a distinct reason for the termination of the legal labour relationship, strictly governed by Article 55 b) of the Legal Code and Article 74 (1) b) of the Sole Collective Labor Agreement at a national level for the years 2007 - 2010, no. 289/2006², which expressly stipulates "the parties' consent".

Naturally, a distinction has to be made between the initiative of the termination of the employment contract by means of the parties' consent, which belongs both to the employee and the employer, and the fulfillment of the parties' agreement.

Irrespective of the initiative of the party requesting the termination, the parties' consent must be clear, unequivocal and expressly referring to the termination of the individual employment contract. The legal document by means of which the parties end the legal labour relationship must meet the general rules provided for in the legislation for the validity of any legal document and chiefly, so that the parties may materialize their agreement by means of a consent that meets the requirements of Article 948 of the Civil Code.³

With respect to this consent, we must mention the fact that, in order for it to be valid, it must meet certain requirements such as: it must come from a legally competent person⁴; it must be given with the special intention to produce legal effects⁵; it must be expressly manifested or it must be...