c o n t i n u i t y a n d c o n t r ac t 143 interests have to be subordinate to the collective institutional will.The leaders execute their power in the interest of the institution and have acquired their positions due to the institution’s “nature”. As an analogy to the power of the state, the institutional doctrine divides the employer’s general power of direction into three levels: (i) the right of direction in a strict sense, pouvoir de direction au sens strict, (ii) the right of prescribing rules concerning the place of work, pouvoir réglementaire, and (iii) the disciplinary right, pouvoir disciplinaire. This trisecting represents an ancient, vigorous French legal tradition that, in spite of its considerable dogmatic complications, is still commonly recognised in French law.286 Today, the notion that the place of work should be considered as an “institution à forme patronale” is founded on the individualistic contractual theory. Fundamental contractual principles are applied to the contract of employment, which thus is considered as a branch of private law, not public law, which the institutional doctrine indicates. In other words, a relationship of obligations is at hand, which becomes “concretised” through the debtor/ employee performing what the creditor/employer commands. This legal subordination, subordination juridique, is still the essential prerequisite for, and the consequence of, the contract of employment. Thus, the two theories’ common starting - and terminal - point is that the employer within a broad framework can modify the terms of the employee’s duty of performance.The institutional doctrine places the worker in a relationship of obedience, which, according to the “nature of things”, makes him obliged to accept new terms concerning how, when and where he shall work.The classical individualistic doctrine limits the power of the employer, but has not abolished his right to change the terms of performance. 286 Durand &Vitu 1950, no 119, p. 209; Supiot 1994, pp. 25-26; Mialon 1996, pp. 7-12, 36-37; Hintermeier 1984, pp. 3-11.
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