legislation on social insurance and the collective solutions, illustrated the re-orientation towards a law of professional community.312 In Gierke’s legal analysis of modern labour relations the keyword above all others was Treue - “loyalty”.This duty to loyalty and fidelity was founded on general principles of law and applied to every contract of employment, irrespective of what the legislature or the parties might have decided.The terms in question were pre-contractual, due to the special nature of the contract of employment. For the worker this meant a duty of obedience and loyalty; for the employer a duty to give protection (Fürsorge). Otto von Gierke’s aversion to what he considered to be Romanistic influences as well as his doctrine about the Gemeinschaft as the living source of labour law were to play significant roles in German legal thinking well into the 1960s.313 Some of his contemporaries, it is true, defended a Romanistic, contractual attitude. Philipp Lotmar questioned in 1908 the “extremely vague duty of loyalty” and insisted that it could not be founded on the BGB’s general clause in section242about Treu und Glauben. Moreover, Lotmar strongly rejected that the worker in a contract of service (Dienstvertrag) in contrast to a worker in a specified work agreement (Werksvertrag) must regularly be subject to personal subordination, loyalty and acting predominantly in the interest of the employer. Lotmar meant that in reality there were more dependent workers to find within the category of Werksvertrag, than within the Diensvertrag.314 However, this part of Lotmar’s opinions was not representative of the mainstream in German law. In1915 the German Supreme p a r t i v, c h a p t e r 6 154 6. 3. 3 Das Tatbestand. the state of things as a dete rmining legal source 312 Gierke 1914, pp. 37 ff; Gierke 1917, pp. 593-620. See also Gierke 1868, p. 1037. 313 Klatt 1990, pp. 32, 351-354; Hueck & Nipperdey 1970, section 14; Münchener Handbuch zum Arbeitsrecht 1992, pp. 7, 813-814; Hanau & Adomeit 1978, pp. 126-131. 314 Lotmar 1908, pp. 858-860.
RkJQdWJsaXNoZXIy MjYyNDk=