A candidate’s request to enter a preliminary employment contract raises questions regarding its mandatory nature and legal effects, which we analyze below in accordance with current labor regulations.
A request by a selected candidate to formalize a preliminary employment contract, in the context of an employment hiring process, raises questions of practical relevance regarding its legal enforceability, binding nature, and the civil liabilities arising from its acceptance or breach.
Below is a detailed analysis of this legal instrument, its validity requirements, and recommended strategies for its implementation to protect business interests.
Legal Nature and Voluntary Character of the Preliminary Employment Contract
The preliminary employment contract constitutes a consensual preliminary agreement through which the parties—the employer and the prospective employee—commit to formalizing an employment contract on a specified date under specifically agreed-upon conditions (compensation, work hours, job classification, start date, etc.).
There is no legal obligation requiring the employer to formalize such a document; rather, it constitutes a discretionary power, the exercise of which is based on strategic criteria determined by management. However, its signing creates binding effects in civil law, which may give rise to legal claims for breach of contract.
The absence of a preliminary contract does not give rise to any liability for refusing to formalize it, thereby preserving the employer’s full freedom to negotiate.
Compensatory consequences arising from breach
The signing of the preliminary contract creates reciprocal obligations of contractual good faith, in accordance with Articles 1254 et seq. of the Civil Code:
- Breach by the prospective employee: If the candidate withdraws from the position without just cause, the company may claim compensation for proven damages, such as the costs of the selection process, temporary loss of productivity, or specific training expenses.
- Breach by the employer: A unilateral modification of the terms agreed upon in the preliminary contract (compensation, work hours, etc.) entitles the candidate to demand compensation for lost wages from the scheduled start date until the date of the court ruling recognizing such compensation.
Such claims shall be processed exclusively through civil proceedings, given that the employment relationship itself has not yet come into existence.
The amount of compensation payable by the employer must be expressly agreed upon in the preliminary contract, and it is recommended that it be set at an amount equivalent to the cost of the recruitment process or one to two months’ gross salary.
Recommended Clauses for Business Protection
In cases where it is deemed strategic to formalize a preliminary agreement, it is advisable to include the following provisions:
- A precise description of the agreed-upon employment terms (job classification, compensation, work schedule, effective date).
- A specific deadline for formalizing the final contract.
- A reciprocal penalty clause for breach, quantified in favor of the company to cover recruitment costs.
- A termination clause for material breach by either party.
- Express waiver of the right to pursue labor dispute proceedings, with submission to civil jurisdiction.
Consequences of Modifying Agreed Terms
Any discrepancy between the terms of the preliminary contract and those of the final contract entitles the candidate to reject the finalization of the contract and demand the corresponding compensation. However, if the prospective employee accepts different terms, it will be understood that they have consented to the novation of the prior agreement, waving any potential claims.
Any modification of terms must be formalized in writing and obtain the candidate’s express consent to avoid conflicting interpretations.
Strategic Recommendations
Entering a preliminary contract is particularly advisable for specialized positions where the recruitment process has entailed significant costs, as it serves as an effective risk mitigation tool. However, its implementation must be accompanied by the required legal review to ensure its soundness in the event of any challenges.
We are at your disposal to draft customized preliminary contract templates tailored to the specific details of each recruitment process, as well as to provide advice on their strategic implementation.
For more information, please contact our Labor Consulting.
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