c o n t i n u i t y a n d c o n t r ac t 155 Court expressed the same ideas as Gierke by declaring that the worker’s duty of fidelity was an “outflow” (Ausfluss) of the relationship of loyalty between employer and employee.315 Likewise, many legal scholars used the terms “Treue” and “Fürsorge” as instruments for adapting the legal norms to a new society and labour life.316 In particular Hugo Sinzheimer made an important contribution by developing a uniform concept of the “employee” which included both workers and salaried employees and which implied that the working party was legally subordinate to the paying party. According to Sinzheimer the working party must be considered a member of a community (“als Glied einer Gemeinschaft”). The labour relationship could be divided into two parts, namely an individual relationship and a solidarity relationship. The first one was partly regulated by legislation, while the second one was not. Private law regulated only relations between the individual worker and the employer, but the contract could fill in the gaps. Lacking both legislative and contractual norms, the employer decided by virtue of his own will the terms of the solidarity relationship. What he laid down in one day, he could change the next morning, since everything rested solely upon his good intention.According to the principle of Alleinbestimmung the worker had accepted to be subordinated by concluding the contract. The individual relationship, again, covered three dimensions, concerning an adequate indemnification, subordination and the substantial protection of the individual worker. In the first dimension the parties were considered to be equals.The second one, however, was characterised by supremacy and subordination. 315 RGZ86, no 315 in Münchener Handbuch zum Arbeitsrecht 1992, p. 814. 316 Otto Kahn-Freund claimed that the concept of Fürsorge had functioned in favour of the employees concerning the judge-made protection of employment, industrial safety and paid vacations. Kahn-Freund “Das soziale Ideal des RAG”1966, pp. 194 ff; Hanau & Adomeit 1978, pp. 127-128; Siebert 1935; Nikisch 1955, pp. 270, 445-446.
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