The pre-contract contains the basic lines and all the requirements for the validity of the future contract, so it is the result of the offers and proposals of the parties and the reciprocal acceptances. However, the offer of contract is a unilateral declaration of the intention to enter into a certain contract.


The worker passes a selective process to occupy a position in the kitchen department of the nursing home. He requests by email that a pre-contract be sent to him in order to request a leave of absence from his current employer. The new company sends you a document stating that it has intention to enter into a contract temporary and full-time with the worker, indicating the exact date of incorporation and that the employment relationship will be governed by the IV CCol. of private residences for the elderly in Galicia. However, when the day arrives, the contract is not concluded, so the worker files a claim for the amount.

The question that arises is to distinguish between what is a mere contract offer and a pre-contract.

The TSJ, in its judgment of May 20, 2022, recalls that it is known by pre-contract the formal commitment of the parties to conclude a certain employment contract. To assess whether or not there is a pre-contract, the concurrence of the offer and acceptance of working conditions is sufficient. It is a contract whose object is the conclusion of a future contract that, for the moment, is not wanted, or cannot be concluded. So it is necessary to distinguish between the preliminary acts of the contract, pre-contract and contract itself.

The contract offer it 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 provided in it or, failing that, the time determined by the use or by the tacit term that derives from the circumstances surrounding the offer.

Both precede the employment contract in time, however, the offer must be complete, that is, contain the essential elements of the contract, a feature that is not predicated of the pre-contract. The essential thing is that the offer has a one-sided formation against the pre-contract that it needs for its existence of the will of both parties, so that the offer cannot be classified as a contract. Consequently, the pre-contract is more than just an offer, it is the result of the offers and proposals of the parties and the reciprocal acceptances.

In the prosecuted case, The email sent by the company shows that both parties are willing to formalize this future employment contract. The essential conditions, working hours, salaries, contractual modality, applicable collective agreement, date of incorporation and work center were already defined weeks before the email, and were even perfected in the days that followed. The TSJ concludes that the existence of a pre-contract is clear, which determines the contractual liability of the company, since non-compliance gives rise to compensation for damages. It is not proven what was the cause of the breach, so it cannot be analyzed if there really was an impossibility that could exonerate it.

For all this, it estimate the resource and the company is sentenced to pay the wages not received for four months plus the liquidation of salaries, which represents a total of €6,408.01. No interest accrues, since it was not specified in the lawsuit nor is it explicitly requested in the appeal.

Source: Social DNA