Key Principles of Employment Contracts: Legal Aspects & Theories

Core Principles of Employment Contracts

Employee Characteristics

Employees should generally be over 16 years of age. Individuals under 16 may only be employed as apprentices under specific conditions.

Purpose of Employment Contracts

The primary purposes of an employment contract are to:

• Protect the health and life of the employee.
• Demonstrate that the employee can maintain a lifestyle consistent with their salary.
• Ensure a standard of living compatible with human dignity.

Contract Validity and Effects

Invalidity (Article 9)

An employment contract is considered invalid if there is evidence of fraud, distortion of its terms, or hidden objectives that could ultimately lead to the contract's termination.

Legal Effects of Invalidity

• Erga Omnes: The invalidity applies universally ("towards all"), affecting not just the parties directly involved.
• Ex Tunc: The effects of the invalidity are retroactive ("from the beginning"), meaning the fraudulent contract is canceled as if it never existed.

Illicit vs. Prohibited Employment

It is important to differentiate between illicit work and prohibited work:

• Illicit Work: Refers to activities that are inherently illegal, such as the sale of drugs or weapons. The object of the work itself is unlawful.
• Prohibited Work: Refers to employment that violates specific regulations, such as the hiring of minors for certain jobs. The work itself might be legal, but the conditions or the person performing it are not legally permitted.

Theories of the Employment Relationship

Contractual Theory

This theory views the employment relationship as a standard contract, emphasizing the agreement of intent and the formal link between the employee and employer.

Anti-Contractual Theory

This theory denies the purely contractual nature of the relationship. It argues that the bond is formed simply by the employee's integration into the company, without the need for a formal written or verbal agreement.

The Modern Employment Contract

The current employment contract is often an adhesion contract (or membership contract), where one party sets the terms. It is typically tacit, verbal, and for an indefinite period.

The Hybrid Nature in Brazilian Law

In Brazilian law, the labor contract is considered a hybrid, mixing elements from both contractual and anti-contractual theories:

• Contractualist Element: It is based on an agreement between the employee and employer.
• Anti-Contractualist Element: It corresponds to the broader employment relationship and the employee's integration into the business.

Key Characteristics of Employment Contracts

• Intuitu Personae (Personal): The contract is personal to the employee; only that specific individual may perform the duties.
• Private Law Contract: It governs a relationship between private individuals (employee and employer).
• Consensual: It results from a mutual agreement of wills between the parties.
• Bilateral (or Synallagmatic): It depends on the willingness of both parties, generating rights and obligations for both.
• Successive (or Continuous): The work typically has no fixed expiration date and is expected to be ongoing.
• Onerous: It requires remuneration; work is performed in exchange for payment.
• Principal Contract: It is a main agreement that can be accompanied by ancillary agreements, such as terms for overtime or a probationary period.

Formation of an Employment Contract

For a valid contract to be formed, the following elements are required:

• Capacity of Contractors: The individuals entering the contract must have the legal capacity to do so.
• Manifestation of Will: There must be a free and clear expression of will from both parties.
• Lawful Object: The purpose and duties of the contract must be legal.
• Form Prescribed by Law: While generally flexible (verbal or written), the contract must adhere to any legally required form. An exception is a fixed-term contract, which must be pre-established in writing.