Before, it was crystal clear. A writing evoking a job and a date of entry into service, was a pre-contract. More now.
can A company withdraw, after having made an offer of employment in good and due form? Prior to the September 21, 2017, the rule being developed by the social chamber of the Cour de cassation, at the option of the settled case law was clear: a written document alluding to a job and a date of entry into service constituted a promise of employment. And, therefore, was contract. In the context of two landmark judgements, the judges have put an end to this principle, to adopt a position that is in phase with that of their colleagues of the public chamber. And fitting with the reform of the law of obligations in 2016.
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The two cases involved a rugby club Carcassonne having proposed to two players of the recruit. The club was retracted but the players had not heard of this ear, considering that they had made a promise of employment. The writing has been transmitted contained data on their gross monthly salary, housing and the vehicle to which they would be allocated. On the day of the taking of office was also fixed. The Court of cassation considered that these elements do not engage necessarily the employer.
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“contract Offer” versus “unilateral promise” hiring
It should be, has developed the Court, distinguish between mere “contract offer” of the “unilateral promise” hiring constituting a pre-contract. In the first case, the employer “offers a commitment stating the employment, the remuneration and the date of entry into function and expresses the willingness of the offeror to be bound in case of acceptance.” It can be “freely retracted as long as it is not reached its addressee” (understand, as long as it was not accepted). Note that if the employer retracts during the time limit for the recipient to answer, or in the context of a “reasonable” time, he may not be sentenced to dismissal without cause real and serious. But only having to possibly, through damages, and repair the damage caused (liability “in tort”).
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The promise of employment, on the other hand, is for the employer to grant the recipient the right to opt for the conclusion of a contract of work, including employment, the compensation and the date of entry into service are determined, and for the training which only lacks the consent of the beneficiary”. The employer has no way of retracting.
“Do not use terms that are too binding”
The new distinction between the supply of contract and unilateral promise of hiring is perplexing, as it is subtle. “It will have to wait for future judgments to verify this, but according to me, the difference between offer and promise is in the intensity of the commitment of the employer, takes the risk of Patrick Thiébart, a lawyer in social law firm Jeantet.
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Promise of employment
“asked not to badger, and he is criticized for not doing hours” Promise of employment: a good before-work contract of Promise of employment : before you sign…
This defender of the employer to advising customers wanting to play the card of caution, leaving voluntarily a bit of fog in their offers, to use the conditional, to talk about a range of compensation, a possible date of assuming the post, in short, do not use terms that are too binding. “It is not necessary that one can say that everything was set and that it lacked the signature of the recipient for this to become a contract,” says-t it. Of course, the simple fact of calling his proposal “offer of contract” does not constitute a guarantee that it should not be considered as a promise…
