In the current talent market, negotiations for the incorporation of new professionals are becoming more and more dynamic. However, this process is not without legal risks. Therefore, Balma Fernández Latorre, lawyer of the legal-labor department of Afianza, analyzes in this article the importance of distinguishing between preliminary negotiations and formal engagement, detailing what happens when one of the parties breaks a promise of hiring.
In the phase precontractual (preliminary treatment and selection), there is usually no binding commitment: there is no formalism and letters of intent or non-binding offers are often considered unilateral declarations, so the company can desist without non-compliance if there is no real “pre-agreement of wills” (e.g. STSJ Basque Country 14/02/2001). duty in good faith: to negotiate does not oblige to contract, but does to act with loyalty; if the negotiation is broken in a justified way, in principle there is no liability for compensation.
The pre-contract of workInstead, it's a firm and bilateral commitment: accepted offer of employment and defined essential conditions, even if it may be subject to requirements (certification, etc.). If the conditions are met and a party does not formalise, there may be non-compliance with damages (emerging damage and loss of profits) 1 year in the social sphere; forced execution is often of little use. In addition, case law admits that the pre-contract is attested by WhatsApp if conditions are agreed and only incorporation is missing (STSJ Murcia 10/07/2025), and the amount of compensation is fixed on the basis of wages lost, analogy with unfair dismissal, material/moral damage and personal circumstances; to avoid risks, it is necessary to make clear when it is “selection process” and, if there is a pre-contract, document conditions, clauses and objective causes of withdrawal.
You can read the full article in The Economist
