Generic or Sui-generis Law of Employment Contracts?

Abstract

The article questions the common assumption according to which the law of contracts must be applied differently to employment contracts. Although employment contracts are different from commercial contracts, the body of law designated as ‘labour law’ provides a plethora of legal instruments to accommodate these differences. However, the law of contracts is only one component of labour law. The fact that employment contracts are paradigmatic relational contracts as well as contracts in which there is an assumed asymmetry among the bargaining parties, can be addressed by the law of contracts while adhering to its generic premises. At the descriptive level, the article draws on Israeli law to demonstrate that the law of contracts is generally applied uniformly in both the employment and commercial contexts, despite judicial rhetoric to the contrary. At the normative level, it is argued that courts should avoid a sui-generis development of contract law. Deviating from the general law of contract should therefore be done by relying on the other components of labour law, namely statutory standards and collective bargaining.