Synallagmatic and personal nature of the individual employment agreement

DREPTUL MUNCII ŞI DREPTUL SECURITĂȚII SOCIALE

Abstract

According to art. 10 of the Labour Code, as republished, “an individual labour contract is a contract based on which a natural person, called employee, undertakes to perform work for and under the authority of an employer, who is a natural or legal entity, in return for a remuneration, called wages”. The legal definition allows the ascertainment of the synallagmatic nature of the individual employment agreement, in the sense in which the legal ground for the obligation of either party is legally based on the performance of the contractual obligations by the other party: the work performed by the employee shall give rise to the employer’s obligation to pay the employee. This necessarily means the existence of two parties being in a contractual relationship, and the parties’ agreement is given in consideration of the capacities of either party. From this point of view, the personal nature is of the essence of the individual employment agreement. However, if this intuitu personae nature is obvious from the employer’s perspective, which has the freedom to choose the employee, according to the conditions imposed upon employment and during the performance of the agreement (as an assignment of the obligation to perform the work to any third parties through the agency of an attorney-in-fact could not be foreseen), the same personal nature must be acknowledged as well, from the employee’s perspective who expresses his or her consent to perform work in favour and under the authority of a single employer, in consideration of certain items deemed to be important (reputation in the market, creditworthiness, wages paid, advancement etc. ).