c o n t i n u i t y a n d c o n t r ac t 159 Alfred Hueck declared in 1927 that the employment relationship primarily concerned personal law (“ein personrechtliches Verhalten”), to which parallels should not be drawn from sale, rent, tenancy, etc., but rather from a “social contract”.All the same its content and extension was dependent on the BGB’s principle about “Treu und Glauben und mit Rücksicht auf derVerkehrssitte”.324 Together with Hans Carl Nipperdey, Hueck elaborated an analysis of the worker’s duty of fidelity. In 1931 they wrote that according to the German legal opinion (“nach deutch-rechtlicher Auffassung”), the contract of service originally did not mean only an exchange of property contributions but also established personal duties between the parties, which were governed by the aspect of the parties’ mutual loyalty (Treue). This aspect of loyalty still determined the content and scope of the employee’s duty to work as well as his life outside the workplace. Due to the personal bonds between the parties, the employer was obliged to take care of his employees and they in turn were obliged to satisfy the employer’s interests and “to refrain from anything that inflicts damages to these interests”.325 These statements by Hueck and Nipperdey are of special interest when studying the formation of Swedish labour law, since they can easily be followed along a path that goes from Folke Schmidt’s textbooks in the 1950s right up to, at least, the Swedish Labour Court’s decisions of our own time.326 The common, post-war ambivalence concerning the legal character of the contract of employment was also reflected in German case law. In 1928 the Reichsarbeitsgericht rejected the individualistic standpoint in favour of the idea of a “social and professional community”. As “an organic member of the enterprise” the worker had got not only extended rights but also extended 324 “Gemeinschaftsverhältnis im Gegensatz zum vermögensrechtlichen Schuldverhältnis” in Müller 1980, p. 571. 325 “das Interesse des Arbeitsgebers in jederWeise wahrzunehmen …und alles zu unterlassen, was diese Interessen schädigt”, Hueck & Nipperdey 1931, p. 179 and Hueck & Nipperdey 1955-59, pp. 220-221. 326 See below part V.
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