PROVA, PATTO di. — The employment contract presupposes in the worker the existence of the technical capacity necessary for the duties he is to perform. In order to ascertain this existence in advance and, more generally, to ensure reciprocal satisfaction between the parties, a probationary agreement may be concluded (drawn up in writing, unless otherwise provided by collective regulations), the legal nature of which is among the most controversial issues in legal scholarship (preliminary contract, resolutory condition of an employment contract or, conversely, suspensive [*si placuerit] or improperly potestative condition, or an ancillary pact, or a special experimental relationship, or emptio rei speratae*). The employer and the worker are respectively required to consent to the trial being carried out and to perform the trial that constitutes the subject matter of the agreement.
By so providing, the new Civil Code (art. 2006) resolved a previously controversial question in the manner that appeared more logical in relation to the effectiveness of the contractual bond, and more equitable in relation to the purpose of the probationary agreement; since the parties have agreed to proceed with the trial, it is just that they be required to carry it out, subject, in the event of non-compliance, to liability for damages (specific performance is in fact impossible in employment matters). During the probationary period either party may withdraw from the contract without any obligation of notice or compensation; if, however, the probationary period is established for a necessary minimum duration, the right of withdrawal may not be exercised before the expiry of that term. Once the probationary period has been completed, the hiring becomes definitive and the service rendered is counted toward the worker’s seniority. The Code does not establish the duration of the probationary period, a duration that does not seem capable of extending beyond a certain maximum limit consistent with the practical purpose of the probation itself; one might also accept the thesis of a probationary agreement for an indefinite period, but only in the sense of an initial indeterminacy that does not exclude subsequent determinability, to be fixed equitably by the judge on a case-by-case basis. Otherwise, the probationary agreement would lend itself to easy circumvention of protective labour legislation, especially with regard to termination and its effects. For salaried employees, the maximum periods established by the relevant law of 1924 must be regarded as remaining in force. Other rules derogating from the law only in a manner more favourable to the worker may be found in collective agreements and customary practices, in particular, for example, in the so-called “protest clause” for entertainment workers.