Distinction Between Unilateral Promise of Employment and Employment Contract Offer in Labor Law

Extract

[...] It therefore makes a distinction between two notions, the unilateral promise of employment, the breach of which, within the time left to the beneficiary to opt, does not prevent the conclusion of the contract and will therefore be worth an employment contract, and the simple offer of employment contract which, in the event of breach, prevents the conclusion of the contract, but will allow the extra-contractual liability of its author to be engaged. The Social Chamber therefore takes a position regarding proposals for contracts in light of the reform of the law of obligations by proposing a solution regarding proposals for employment contracts inspired by civil law (II). [...]

[...] Court of Cassation, Social Chamber September 2017 - Does a proposal containing remuneration as well as the intended position trigger the qualification of this as a unilateral promise of hiring worth a labor contract? Professor Mousseron explained that contractual relationships could arise from a 'stroke of lightning', with a simultaneous offer and acceptance, but most of the time this is not the case. In fact, in complex or high-stakes contracts, preliminary acts are performed by the parties to prepare for the conclusion of the final act. [...]

[...] But when the case came before the Court of Cassation in 2017, after the reform of the law of obligations, it invited to clearly distinguish between the offer and the unilateral promise of contract. The Court of Cassation draws inspiration from the reform, which is why it uses the formula 'evolution of the law of obligations resulting from the ordinance'. This is not the first time it has used this formula, it had already used it in a judgment rendered in a mixed chamber on February regarding the non-observance of the formal rules of the real estate agent's mandate. [...]

[...] In this case, the Court considers that if it is not demonstrated that the proposal made to the rugby player had the necessary qualities to be qualified as a unilateral promise of employment contract, it could only be an offer of contract. If it is only an offer of employment contract, this offer will obviously not be worth employment contract and only the extra-contractual liability of the club can be engaged in order to obtain compensation for the damage. On the other hand, if finally the qualities necessary for the qualification of unilateral promise of employment contract are present, the solution is different. [...]

[...] In light of these considerations, it is simple to observe that the difference between the offer to contract and the unilateral promise of contract is minimal, residing only in 'the intention to contract' of its author. In the offer, the author will only be bound by the acceptance, while in the promise, he is bound by the promise, therefore immediately, that is to say without waiting for the lifting of the option. This difference will necessarily have repercussions in terms of the consequences of the retraction. [...]