This is a presumption iuris et de iure, and does not admit proof to the contrary. Once the fraud of law is confirmed, the contract will be indefinite.
Fraud of law consists of using a legal norm to fail to apply another. A gambling data brazil law is used fraudulently. A conduct is carried out that seems lawful, in accordance with the law, but a benefit is sought that is not the one intended by that legal norm.
There are two ways to commit fraud under the law:
At the outset, the temporary contract is fraudulent from the start.
Subsequently, the contract is correct but irregularities later arise.
In our country, one of the most fraudulent contracts is the contract for work or services.
The work contract has been eliminated through the labor reform of Royal Decree-Law 32/2021 . All those carried out prior to December 31, 2021 are maintained, as explained in this article.
A contract for a specific work or service will be valid when its cause is clearly identified. When this type of contract for a specific period is formalized, the activity that is the object of the contract must be sufficiently identified, otherwise it will be presumed that it has been entered into in fraud of the law.
There is abundant jurisprudence from the Supreme Court indicating that it is required that the service be sufficiently identified when formalizing the employment contract (SSTS 30 April 2014; 12 November 2014)
In addition to the object of the contract, the specific work or service must have its own autonomy and substance . If this is not fulfilled, it will be another cause of legal fraud and the contract will be indefinite.
We must point out that a contract for a specific work or service can be signed for the performance of a regular activity of the company as long as the requirement of autonomy and its own substance is respected.
Lack of temporary character
The contract for a specific work or service is of uncertain duration but its execution is limited in time. The temporality of the work or service must be deduced.
For example, the High Court of Justice of Madrid on 28 November 2014 considered that there was fraud in the contracts signed by a music teacher since the duration of the contracts was linked to the courses scheduled each year. The Court understood that there was no temporary activity simply because the courses could change from one year to the next.