LESIJ NO. XVII, VOL. 2/2010
LEGAL NATURE OF THE INDIVIDUAL EMPLOYMENT CONTRACT
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
∗ 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.