Pact of Proof

PACT OF PROOF. - The employment contract presupposes in the worker the existence of the technical capacity necessary for the duties he must perform. In order to ascertain beforehand that such capacity exists, and, more generally, to ensure the mutual satisfaction of the parties, a trial period agreement (p. di p.) may be stipulated (drawn up in writing, unless collective rules provide otherwise), whose legal nature is among the most disputed in doctrine (preliminary contract, condition subsequent of an employment contract or, on the contrary, suspensive [si placuerit] or improper potestative condition, or added pact, or special experimental relationship, or emptio rei speratae). Employer and worker are respectively bound to allow the trial to be made, and to make the trial that forms the object of the agreement.

In so providing, the new civil code (art. 2006) resolved a previously disputed question, in the sense that it appeared more logical in relation to the effectiveness of the contractual bond, and more equitable in relation to the purpose of the trial period; since the parties have agreed to proceed with the trial, it is right that they be bound to carry it out, on pain otherwise of having to answer for damages (specific performance is in fact not possible in matters of employment). During the trial period each of the parties may withdraw from the contract, without obligation of notice or indemnity; if, however, the trial period is established for a minimum necessary time, the faculty of withdrawal cannot be exercised before the expiry of the term. Once the trial period is completed, the hiring becomes definitive and the service performed is counted in the seniority of the worker. The duration of the trial period is not established in the code, a duration that does not seem able to go beyond a certain maximum limit, consonant with the practical purpose of the trial period itself; one could also accede to the thesis of a trial period of indefinite duration, but only in the sense of an initial indeterminacy, which does not exclude subsequent determinability to be fixed equitably by the judge case by case. Otherwise the trial period agreement would lend itself to easy evasions of the legislation protecting labor, especially with regard to termination and its effects. For white-collar employees, the maximum terms of the specific law of 1924 are always to be considered in force. Other rules that derogate from the law only in a sense more favorable to the worker may be found in collective contracts and in usages, in particular, for example, for the so-called "clausola di protesta" of entertainment workers.

Ferruccio Pergolesi