The question that arises is that of distinguishing between what a mere offer of contract and a pre-contract is, and the Galician Supreme Court explains the difference between pre-contract and offer of contract.
The pre-contract contains the basic lines and all the requirements for the validity of the future contract and is therefore the result of the offers and proposals of the parties and their reciprocal acceptances. However, the contract offer is a unilateral declaration of intention to conclude a certain contract.
The Galician Supreme Court differentiates between a pre-contract and a contract offer. The pre-contract contains the basic lines and all the requirements for the validity of the future contract and is therefore the result of the offers and proposals of the parties and their reciprocal acceptances. However, the contract offer is a unilateral declaration of intention to conclude a certain contract.
Specific case: The employee passes a selection process for a position in the kitchen department of the nursing home. He requests by e-mail that a pre-contract be sent to him to be able to apply for a leave of absence from his current employer. The new company sent him a document stating that it intended to enter a temporary, full-time contract with the worker, indicating the exact date of incorporation and that the employment relationship would be governed by the 4th Collective Agreement for private homes for the elderly in Galicia. However, when the contract was not concluded, the worker filed a claim for payment.
The question that arises is to distinguish between a mere offer of a contract and a pre-contract.
The SCJ recalls that a pre-contract is the formal commitment of the parties to enter a specific employment contract. In order to assess whether or not a pre-contract exists, the concurrence of the offer and acceptance of certain working conditions is sufficient. It is a contract whose object is the conclusion of a future contract which, for the time being, is not wanted or cannot be concluded. It is therefore necessary to distinguish between the preliminary acts of the contract, the pre-contract and the contract itself.
The offer of contract is a unilateral and receptive declaration of a specific will: the firm intention to conclude a certain contract. The offer generates the legal duty to maintain it for the time foreseen in it or, failing that, the time determined by usage or by the tacit term deriving from the circumstances surrounding the offer.
Both precede the contract of employment in time, but the offer must be complete, i.e., contain the essential elements of the contract, a feature that does not apply to the pre-contract. What is essential is that the offer has a unilateral formation as opposed to the pre-contract, which requires for its existence the will of both parties, so that the offer cannot be qualified as a contract. Consequently, the pre-contract is more than an offer, it is the result of the offers and proposals of the parties and their reciprocal acceptances.
In the case in question, the email sent by the company shows that both parties have the will to formalize this future employment contract. The essential conditions, working hours, salaries, type of contract, applicable collective agreement, date of incorporation and work center were already defined weeks before the email, and were even being perfected in the days that followed. The SCJ concludes that the existence of a pre-contract is clear, which determines the contractual liability of the company, as the breach gives rise to compensation for damages. The cause of the breach is not proven, so that it cannot be analyzed whether there really existed an impossibility that could exonerate it.
Accordingly, the action is upheld, and the company is ordered to pay the wages lost for four months plus the salary settlement, amounting to €6.408,01 in total. No interest is payable, as it was not specified in the claim and is not explicitly requested in the appeal.
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