The Court of Cassation's Judgment on Unilateral Promise of Employment Contract

Extract

[...] In other words, for the Supreme Court, the non-execution of the obligation to do can only be resolved in damages in accordance with the former article 1142 of the Civil Code. This article stipulates that 'Any obligation to do or not to do is resolved in damages in the event of non-execution by the debtor' (Civil Code, 1142). As a result, the retraction retains all its effectiveness. The Court of Cassation considers that there is no meeting of the wills between the beneficiary and the promisor, the latter having, on the contrary to the beneficiary, manifested his intention not to contract. [...]

[...] In fact, once the promisor has expressed his consent to the promise, he has already definitively manifested his will to contract with the beneficiary. He has irrevocably engaged to conclude the future contract. Only the beneficiary benefits from an option that he can or cannot exercise. In a judgment of September (3rd civ), the High Court seems to have evolved since it explicitly states that the promisor has irrevocably expressed his consent regarding the conclusion of the definitive contract. However, by a new judgment dated May (3rd civ), the High Court persists in maintaining the position it had adopted in the CRUZ judgment. [...]

[...] In any case, the judgment of 21 September 2017 explicitly refers to the ordinance of 10 February 2016, which reforms the regime of obligations, among other things. However, it is not for the High Jurisdiction to apply a legislation retroactively that did not exist at the time of the facts of the case that interests us, but rather to make its new jurisprudence retroactive, influenced by the legislator. B. - THE CONTRIBUTION OF THE LEGISLATOR The law of obligations has been profoundly reformed by the ordinance number 2016-131 of 10 February 2016. [...]

[...] This article indeed states 'That the revocation of the promise during the time left to the beneficiary to opt does not prevent the formation of the promised contract' (Civil Code, 1124). As a result, if the promisor retracts during the option period, the beneficiary may demand the forced execution of the aforementioned promise. The promisor's retraction will no longer have any effect since the will of the parties is now definitively settled. The contract can no longer be modified except by a common will of the parties. [...]

[...] Nevertheless, as in the case of an offer, it can be assumed that the promisor will still have to maintain their commitment for a reasonable period. The interest of this distinction lies in the transmission of the commitment, but also and above all, in the nature of the responsibility in case of violation of the obligations. The offer to contract by its nature is attached to the offeror. As a result, it is not transmissible, nor assignable. Article 1117 of the Civil Code provides that 'The offer to contract becomes void in the event of incapacity or death of its author' (Civil Code, 1117). [...]