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In detail...

THE †HISTORY †OF †THE †DEVELOPMENT †AND †THE †LEGAL †NATURE††

OF †THE †CONTRACT †OF †EMPLOYMENT

The Institute of personal hiring being the new legal institute to the civil law of the Pridnestrovskaia Moldavskaia Respublika was organized after acceptance of the Part Two of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika which entered into force on July 22, 2002. Personal hiring was not known to the Soviet law and order. It also has not been discovered in the present civil legislation of the Russian Federation.

With putting the institute of personal hiring into the system of civil law there appeared a lot of questions connected as with the concept of essence and the legal nature of the contract of employment, with the order of its signing and the mechanism of its application and also with target necessity of fixing the norms of the above mentioned contract in the system of the civil legislation. The high aspiration of that institute gets a special urgency in connection with acceptance of the Code of Labour of the Pridnestrovskaia Moldavskaia Respublika which has perfected the norms of the institute of the labour contract including the regulation of such kinds of labour relations as hired labour.

For the detailed study of the sphere† of the above mentioned contract, precise and correct understanding of the essence of the personal hiring regulated by the present legislation it is important to retrace its development since ancient times till the present moment.

The roots of the institute of the personal hiring are closely connected with the history of the Roman private law which alongside with hiring of things provided also the hiring of services representing the contract according to which one side (locator) assumed liability to execute for the benefit of the other side (conductor) the certain services. And the employer assumed liability to pay for these services the caused remuneration. (Novitskiy I.B. The Roman Law. -M., “The Humanitarian Knowledge”, 1994. Page 189). The above mentioned contract had to perform the separate services carrying out the employer’s instructions. It is necessary to emphasize that the contract of hiring of personal services in the slave-owning system could not have the great value as for the fulfilment of any sort of services because a slave-holder had a great number of slaves.

For the first time in the sources of the Russian law in the “Russian Truth” it was mentioned about regulation of relations which could be characterized as the relation of personal hiring. So O.I.Chistyakov notes, that “... hired labour is not peculiar to feudalism. Nevertheless, “The Russian Truth” mentions one case of the contract of employment: hiring in servants or house-keepers”. (The History of the Native State and Law. Edited by O.I.Chistyakov. -M., “ŃŇ ”, 1996. Page 44.) If a person entered such job without any special contract, he automatically became a bondman. Some researchers identify hiring with purchase. “The Russian Truth” notes that “a purchase is a free person who has received a loan and who is obliged to repay a loan on his work. The purchase has been obliged to compensate the caused damage”. (The History of the state and law in Russia. Editor-in-Chief Ju.P.Titov. -M., “Bylina”, 1997. Page 34.)

In the later sources about the Law it is spoken about such version of obligatory relations as personal hiring (XII-XV centuries). At that time the contract was usually concluded orally, but sometimes it was signed. “The law puts both sides in equal position giving them the right to assert their interests. Though actually various categories of hirelings had the various status”. (The History of the Native State and Law. Edited by O.I.Chistyakov. †-M., “ŃŇ ”, 1996. Page 69.)

In the period of the development of the Russian feudal law (XV-XVI centuries) the legislator made an† effort to examine the contract of personal hiring for a long time being the source of a personal dependence for the hirelings. Therefore the Code of Laws 1496 foresaw that the hireling who hadn’t worked the whole term or who had not executed the task lost his payment but did not get in personal dependence of the employed.

Personal hiring was widely spread in days of formation and development of absolute monarchy in Russia and it demanded simplification of the way of concluding a contract. “Before the times of Ekaterina the Second this contract had to be concluded by the most difficult serf order. The contract was formulated and was verified by the certain state bodies complying with formalities and collecting huge duties. Subsequently such contracts began to be made by more simple ways - without preliminary permission and domestic. When the contract was formulated by the sides without preliminary permission† and then it was registered in the state bodies. At a domestic way no registration was required at all”. (The History of the Native State and Law. Edited by O.I.Chistyakov. †-M., “ŃŇ ”, 1996. Page 232.)

The contract of personal hiring was formed for performing the works about the house, on the ground, in trade shops, on factories and trade enterprises. Free will was provisional: minor children and women concluded the contract only with the consent of a husband or father; serfs concluded the contract only with the consent of a landowner who determined in writing the term of such obligation. The circle of persons who entered the contract of personal hiring was wide enough but included mainly serfs, handicraftsmen (apprentices) and a rather small group of civilian workers. The greater part of peasants worked in the industry on other legal grounds.

The relations of personal hiring received the most full legislative regulation in XIX-the beginning of XX centuries. So G.F.Shershenevich writes: “The personal hiring is the contract by virtue of which one person for compensation gets the right of time using services of another person”. (Shershenevich G.F. The Course of the Civil Law. -Tula, “Avtograph”, 2001. Page 473.) General provisions on personal hiring †in the Russian legislation of the above mentioned period of time are extremely poor. On the contrary, special decisions are rather numerous.

The basis of appearance of relations of personal hiring was ,as a rule, the contract. “It assumes the free agreement of the sides on using and granting of services. Thanks to this feature personal hiring differs from those forms of using another’s services which have other basis. So using another’s work could be based on the authority of parents, on the basis of the law obliging some group of people to work for the benefit of other group of people (serfs). The contract of personal hiring assumed the freedom of the order of labour force. Therefore the slaves could not be the subjects of personal hiring but only the objects of personal hiring even then when† the work of them was directed not for the benefit of their master but for the benefit of other persons”. (Shershenevich G.F. The Course of the Civil Law. -Tula, “Avtograph”, 2001. Page 473.)

The contract of personal hiring of the pre-revolutionary period of time may have the following legal character.

1. The essence of the obligation† was the using of another’s services. That’s why the personal hiring differed from property hiring and the loan† essence of which was the using of another’s thing.

2.†Using another’s services had temporary character. The termless using of the labour forces of a person was considered to be an establishment of slavery. By virtue of it the legislation established a deadline of this contract - 5 years. Therefore the contract according to which a person who had borrowed money was under an obligation to serve to the creditor all his life would be null and void.

The contract was not considered to be free of charge so if the sides missed this circumstance in the contract nevertheless the right for compensation was supposed if only the assumption was not excluded by special laws.

The obligatory capacity of contractors and the agreement of their will was required to achieve the desirable legal consequences as a result of the conclusion of the contract.

Except for the specified general provisions the legislation established the numerous special rules for various kinds of personal hiring. There were the following kinds of contract, relations on which were adjusted by the norms of special legal enactments in the sphere of hiring of labour force:

- employment of salesmen and sailors - The Charter Trading:

- employment of factory workers and handicraftsmen - The Charter† Industrial;

- employment of rural workers - Regulations about hiring for rural workers of 1886;

- employment of workers on gold crafts - The Charter mountain.

During this period of time the Labour Legislation began to develop, “new laws on factory workers, for regulation of factory orders are issued”. (The History of the state and law in Russia. Editor-in-Chief Ju.P.Titov. -M., “Bylina”, 1997. Page 203.)

Completely other situation concerning personal hiring develops during the formation of the Soviet law. The Institute of personal hiring was unknown to the Soviet legislation. All relations in the sphere of hiring of a labour force or hiring of work of workers and employees were adjusted by norms in the period of formation of the Soviet labour legislation. The first Code of laws on work of RSFSR (Labour Code) was adopted in December, 1918. The first Labour Code was elaborated by the National commissariat of work and by the All-Union Central Council of Trade Unions. The action of the Labour Code was distributed on all persons working on hiring in all sectors of economy (state, cooperative, private). The Labour Code fixed the norms of work (the duration of the working day for different categories of workers) and rest (holiday, the days off), the privileges for teenagers and women. The great role in the sanction of questions on labour was allocated to trade unions and inspections of People’s Commissariat of Labour.

Such situation has remained nowadays. However with the transition from command to market system of managing regulation of relations on performance of works should proceed to qualitatively other level adequate to conditions of market economy. The specified relations get the increasing urgency especially during the period of migration of the population with the purpose of employment abroad. Thus the citizens do not think about those legal consequences which can arise valid their legal vulnerability† at employment as in distant, and near abroad.

Taking into account these and other circumstances, the legislator of the Pridnestrovskaia Moldavskaia Respublika in the norms of the civil legislation (Chapter 37 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika) has provided such legal form of regulation of relations on fulfilment of the works as the contract of personal hiring. Thus the relations in the sphere of labour continue to be adjusted by the norms of labour legislation.

In accordance with Part 1 of the Article 724 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika the contract of the personal hiring is the contract according to which one physical person, a worker undertakes for the limited term to execute the provisions of a contract for the remuneration under the control of the other person, the employer (Physical or legal person). (The Civil Code of the Pridnestrovskaia Moldavskaia Respublika. -Tiraspol, GU “Juridical Literature”. Page 294.)

The definition of the contract of the personal hiring fixed in the Article 724 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika does not correspond absolutely to the stylistic unity of the definitions of the decisions stipulated by the Civil Code. Such formulations as “one physical person, the worker undertakes ...to execute the work in accordance with the directions and under the control of the other person” are not peculiar to our civil legislation. As a rule, instead of the formulation “one physical person, a worker” is used by the home civil law a combination “one side (a worker)” and accordingly instead of “in accordance with the directions and under the control of the other person, the employer” is used “under the task and under the direction of the other side (employer)”. In other words, defining as the contract, the civil legislation names the sides of that contractual obligation which those or other subjects - physical persons, legal persons or public - legal formations enter, specifying thus, that the given subjects are the sides of the contract, instead of its participants.

Besides proceeding from the sense and the maintenance of the civil law as a whole and a liability law in particular, at the definition of the legal nature of the contract the great value has the correct fastening in the legislation of the concept of the contract from which it is possible to deduce all its basic attributes. Therefore the expression “a worker undertakes ... to execute the work” is not characteristic at a formulation of the concept of the civil-law contract. Basically such word-combinations as “one side ...undertakes to execute” are applied, “undertakes to transfer”, “undertakes to render” or “one side ... carries out, transfers, renders”. From the specified word-combinations the subject of the contract, as a rule, is determined: to transfer - property (things), to execute the work - the result of the work, to render service - fulfilment of actual or legal actions. Besides, it is possible to determine, whether the contract is consensual or real as when the sides “undertake” to execute something†it usually specifies that the contract is consensual. And, on the contrary, if the sides have not come to the certain agreement under essential treaty provisions, and accompany with the arrangement of fulfilment of certain actions, it specifies that the contract has the real character. For example, “under the contract of the rent one side ... transfers ... in the ownership property”.

Taking into account the aforesaid it appears that proceeding from stylistics and maintenance of norms of a liability law, the following definition of the contract of personal hiring will be more correct: “Under the contract of the personal hiring one side (worker) undertakes to execute temporarily work under the task and under the direction of other side (employer), and the employer undertakes to accept the executed work and to pay it”.

According to the definition of the contract of the personal hiring fixed in the Civil Code of the Pridnestrovskaia Moldavskaia Respublika it is possible to deduce its following attributes.

1. The contract will be considered to be consensual as “one person undertakes to execute work” that is undertakes to perform the certain work. And at that moment when the sides have achieved the agreement concerning the certain work that will be executed by the worker, the contract can be considered to be final.

2. The contract is mutual or bilateral as both the worker and the employer have either the rights or the duties. So, for example, the worker is obliged to execute the certain work and he has the right to demand remuneration for its execution, but the employer is obliged to pay accordingly to the work and has the right to demand the fulfilment of the work stipulated by the contract.

3. The contract does not carry the gratuitous character as property granting of one side (worker) in the form of execution of the certain works is accompanied by property granting of other side (employer) in the form of remuneration.

4.†The contract has the continuing character as the moment of the conclusion and the moment of execution of the contract do not coincide in time.

5. The contract can carry and the fiduciaring character that is it can be based on personal - confidential relations of the sides. The employer can employ the person who is well-known to him, whom he trusts and that is practically excluded at the conclusion of the labour contract. However this attribute is not obligatory.

6.†Such attribute as the publicity is impossible as it means that the employer is obliged to conclude the contract with any person who by virtue of his professional qualities corresponds to the requirements of the employer to persons wishing to conclude the contract of personal hiring. The employer except for usual claims (education, a specialty, an operational experience) can raise and other claims (sex, age, growth, weight, etc.)

The specific feature of the contract of personal hiring is the certain connection between it and the labour contract. It is so significant that it is the question whether there is a necessity of legislative fastening of these two contracts, in different branches of† legislation as in each of them† it is spoken about execution of the work in each of these contracts.

Nevertheless, these contracts essentially differ one from another. The contract of personal hiring is the institute of the civil law and that is its basic difference. Hence, all those norms which are stipulated by general provisions of the civil legislation are applied to it. These norms are the norms concerning the form of the transaction and the bases of recognition of transactions null and void, the norms regulating general provisions on obligations (the order of the conclusion, change and a discharge), the norms of the responsibility of the sides for default or inadequate execution of obligations.

The thing is that the businessman is interested in the execution by the worker of the certain labour function characterized by a specialty, qualification and post. According to the labour contract the worker should submit to the rules of the internal labour schedule or other ordering of his activity on the part of the employer. The measures of social protection of the worker’s interests are stipulated by the labour contract: working conditions and their protection; health services; social insurance; a mode of work and rest; a work-record card and the seniority admitting the right on the extra charges to the salary and finally on reception of pension. The interests of the worker can also be represented by the trade unions.

All the above mentioned can be guaranteed by the contract of personal hiring however all these and other moments should be specially stipulated in the contract by the sides otherwise† the worker will have no rights to demand the execution of the specified by the employer conditions. But it shall discipline the parties and it shall force them to be extremely attentive at the conclusion of the contract of personal hiring in order to protect the interests of the both sides.

†The contract of personal hiring in contrast to the labour contract allows in conditions of market to protect the property interests of the sides. The various forms of responsibility can be stipulated by the contract of personal hiring. The responsibility can be represented in the form of indemnification, payment of penalty (as a fine in case of unpaid amount for the executed works). Thus the indemnification can be stipulated both as compensation of really caused damage and as the missed benefit. In case of causing moral and physical sufferings the sides can demand indemnification of moral harm when it is not stipulated by the contract.

Distinctions are available and in ways of registration of contracts. The labour contract should be made in writing. This duty is assigned to the employer (Article 67 of the Labour Code of the Pridnestrovskaia Moldavskaia Respublika). The legislator does not show any special requirements to the wording of a contract and that’s why it is possible to draw a conclusion that the contract can be oral or can be made in writing. So, if the employer is a physical person and the price of the contract does not exceed 10 minimal sizes of a payment, the contract can be made orally. But if it is a long-term obligation it is difficult to assume that the relations will be so short that the work executed in this period of time can be estimated at 10 minimal sizes of a payment. Though it is possible. Besides, at the conclusion of the oral contract it is hard to determine the conditions which the sides have provided at the conclusion of the contract. By virtue of the above mentioned it is meaningful to fix legislatively the simple written form of the contract of personal hiring and it will protect the interests of the worker and the employer.

But there is the question concerning the consequences of non-observance of the contract of personal hiring in the written form. Article 178 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika underlines that non-observance of the simple written form of the contract deprive the sides of a right to refer to a testimony in case of dispute and also recognition of the contract to be null and void.

It seems that the application of the first of the specified consequences is meaningless. It is practically impossible to establish the contents of the contract of the personal hiring as there have not yet generated the customs at execution of works by servants, secretaries, governesses, etc. Deprivation of the right to refer to a testimony will have a negative effect on the interests of the worker. It is necessary to take into account the fact that at legal illiteracy of the majority of the population the similar consequence will be hardly clear before occurrence of the dispute.

It is preferable to establish invalidity of the contract of personal hiring. Application of so unprofitable consequence for the sides would stimulate them to the observance of the established form. Besides non-observance of the written form of the contract can be regarded as the absence of intention to establish legal relations of personal hiring.

The next point which is considered to be in favour of the contract of personal hiring is the fact that the civil law gives a great opportunity for recognition of the contract of personal hiring null and void by virtue of distribution† of common bases of invalidity of contracts and on the contract of personal hiring. First of all these are one-sided agreements, imaginary and feigned transactions and also the transactions accomplished with the purpose of opposite bases of law, order and moral. The last is especially actual in conditions of wide circulation of the various agencies suggesting sexual services, a striptease, services on employment of girls abroad as models, dancers, housewives. Hence, recognition of transactions of such kind to be insignificant according to Article 185 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika as accomplished with the purpose of opposite bases of law, order and moral †would stop the conclusion of the contracts.

Summing up, it is possible to note that the character of the specified relations arising not on the basis if the labour contract has reached the other level. The fact is that the labour law being the civil-law discipline has the imperative character. But the relations adjustable by the norms of the contract of personal hiring have the dispositive character, hence, the parties are given freedom at definition of conditions, contents of the contract, at definition of the character and volume of their responsibility. Besides, the relations which specially have not been settled by the Article of Chapter 37 of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika can be regulated by the general provisions of the civil law and it certainly protects the interests of the sides if they have not provided all points at the conclusion of the contract and in case of occurrence of dispute between them.

Thus, there are good reasons to confirm such norms in the civil legislation. But it is meaningful to take into account the proposals which have been pointed out by the author in purpose to support the stylistic unity of the contents of norms of the Part II of the Civil Code of the Pridnestrovskaia Moldavskaia Respublika and the civil legislation on the whole.

M.T. Gamazova, the chief expert of the Department of Law

of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

Magazine “Law and Society”, No. 1, 2003




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