Non-Performance of the Contract of Employment and the General Law of Contract

In those areas of employment law that are closely connected to the general law of contract, there are a variety of legal opinions and thus legal uncertainty. This is true in particular for the law concerning non-performance of an employment contract that lacks a solid and reliable doctrinal basis. Therefore, in deciding cases in the field, doctrine and courts refer to diverse doctrines and principles. Due to the insufficiency of the doctrinal basis there also is a lack of well-founded and conceivable rationales and criteria upon which the decisions of complex cases can be based. The aim of the project is to bring together the legal scholarship in general contract law and employment law and to build a scientific basis for the law of non-performance in employment law. The analysis shall provide a thorough analysis of the legal consequences of non-performance according to general contract law and the modifications that ensue from the structure of the contract of employment as a continuing obligation. In addition, in the project I will investigate if and which social values of the Austrian legal system entail divergent legal consequences of non- performance in the law of employment. On the basis of this assessment of the position of these legal questions within the system of contract law, the case law and literature in the field shall be examined in order to develop principles, rationale and criteria for the solution of cases. Only the knowledge of the underlying rationale and their function within the system of civil law makes it possible to judge cases concerning modern forms of employment with flexible working hours and/or flexible wages in a predictable, consistent and appropriate way. Preparatory works to the project have shown that an in-depth analysis of the described legal problems promotes clarity on these controversial questions in individual labour law which are of great practical importance. Furthermore, the project will also shed light on fundamental questions of contract law because the issues concerned are often not solved in an unambiguous way in general contract law. Confronting the two fields of law will thus provide new perspectives and insights for both branches of private law.