c o n t i n u i t y a n d c o n t r ac t 137 From a 19th century individualistic perspective, freedom of competition was the best means to satisfy society’s common interests. Labour was placed in the same category as merchandise, the price of which was fixed according to the principle of supply and demand. Through the “free” contract of service, the purchaser; the employer, had acquired the right to make use of the work force and its products.The seller, the worker, had through the same contract relinquished the risk to take part in possible economic losses and thus also the option to influence the direction of the enterprise and share possible profits. Consequently, the contract of work or employment could be considered as a kind of analogy to the contract of sale.As in other types of sale be-tween individuals, the state should intervene as little as posssible in the parties’ dealings. Legal scholars in most of the West European continental and the Nordic countries tried to use Roman law sources to support the idea that it was the parties’ own business to regulate the terms of a labour agreement. In the first place a parallel was drawn to Roman law’s locatio conductio, which was a contract of hiring. This was the starting point for the regulation in the great civil codes such as the French (Code Civil 1804), the Dutch (1838), the DanishTyndeloven (1854), the Italian (1865) and even in the German Bürgerliches Gesetzbuch (BGB, 1900).The codes emphasised a distinction that had already been made between locatio conductio operarum, which concerned the work force as such and locatio conductio operis, which concerned a specified result. A parallel development, though without explicit references to the Roman law tradition, was obvious in common law’s elaboration of a distinction between dependent “servants” and “independent contractors”. In total, however the civil codes as well 5. 4 fre edom of contract in que st ion
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