THE PRE-EMPLOYMENT CONTRACT OR THE PRECONTRACT FOR EMPLOYMENT

The articles 1,254 and 1,258 of the Spanish Civil Code establish that the contract exists as long as two or more people agree to be bound by another or others, to give or do something, as well as that mere consent is enough to perfect the contract, binding from that moment to the covenants. However, according to the jurisprudence of the Supreme Court, the figure of the pre-contract is given, when there is an agreement, in which the parties leave the final contract for the future, but having indicated the elements and circumstances of the contract, taking into account to show a determined will to enter into a true contractual relationship.

Thus, on the one hand, the offer of incorporation to a certain company to work in it, made by whoever has the powers to represent, constitutes a valid agreement, which requires compliance in accordance with article 1,254 and concordant of the Civil Code, liable to be classified as a pre-contract, with non-compliance with it when the employer deviates from what was agreed upon, refusing to ratify the contract for reasons not attributable to the worker; There is also a causal relationship between said breach and the damages caused to the worker in the event that, for example, she/he has moved to another location with her/his family and belongings, in which case the corresponding Social/Labour Court may quantify such damages that has supposed for the worker the consequences arising from such fact.

We must always bear in mind that the damages derived from the employment relationship have a specific legal body, that is, the Workers' Statute in Spain, as it results from an interpretation of the content of articles 1 and 3 of the aforementioned legal text, being only applicable the Civil Code as a supplementary law when there is no specific rule that regulates the situation in question, so that the breach of the pre-employment contract, may occur according to art. 1101 of the Civil Code, effects that are much more onerous than the breach of the contract once it has been initiated, since by not granting the projected contract, the worker is left in a situation of lack of protection with potentially unforeseeable consequences for her/him.

We must never forget that the pre-contract must contain "the essential data of the contract" and the necessary bases or clauses to determine all the elements of the future agreement, without this meaning that its breach by the rebellious employer implies a performance obligation of a future consent, but its unenforceability must be translated into compensation for damages.