NEGOTIORUM GESTORUM ACTIO
NEGOTIORUM GESTORUM ACTIO
Negotiorum gestio is the intentional management
of another person's affairs or business without instructions (
mandatum) or any official obligation to do so, and
was first recognised as ground for an action (
quasi ex
contractu, lust. 3.27, 1. and, in character,
bonae fidei) between the principal and the would-be
agent by the praetorian. edict
utilitatis causa
(
Dig. 3,
5,
1,
3).
The intention of the
negotiorum gestor must be
to act on behalf of
another person, even though. his
motive may also be self-seeking (
Dig. 3,
5,
20): his duties
practically coincide with those of a duly commissioned agent [
MANDATUM]; the chief of them
being to bestow the care and attention of a “bonus
paterfamilias” [
CULPA] on
the business he has taken in hand, so that he was responsible for
exacta diligentia, and in some cases he was liable
even for
casus or accident (
Dig. 3,
5,
3,
9; ib. 10). Naturally, too, he was bound to
deliver up to his principal all property or profit which came to him from
the transactions he undertook (Dig. ib. 2). These duties were enforced by
actio negotiorum gestorum directa.
The gestor may have a converse remedy (
actio negotiorum
gestorum contraria) against his principal for all reasonable
costs and expenses incurred on the latter's behalf, with interest, and for
indemnity against all liabilities under-taken in his interest (Dig. ib. 10),
provided (1) the principal had not prohibited his interference (Cod. 2, 19,
24); (2) his intention was to lay the principal under a legal obligation
(
Dig. 10,
3,
14,
1), and not one of
Liberalitas or Pietas: if his object was his own sole advantage, he could
sue the principal only so far as the latter had derived material benefit
from his action (
Dig. 3,
5,
6,
3); (3) the state of
the principal's affairs was such that, except for the gestor's intervention,
he would be seriously prejudiced (
Dig. 44,
7,
5, pr.). If this was the
case, the gestor could recover, even though the anticipated benefit was as a
fact not realised; or, as it is sometimes put, the negotia need not have
been “utiliter gesta,” it is enough if they were
“utiliter coepta” (
Dig. 15,
3,
10,
1; ib. 12, 2); e. g. if he paid for medical attendance on a sick
slave, who died notwithstanding all his care. Where the interference was not
warranted by genuine necessity, but the gestor's object
[p. 2.227]was merely to secure a great advantage for the principal, he
could recover only so far as the advantage actually went (
Dig. 15,
3,
11;
ib. 43). To the rule as to prohibition by the principal there was an
exception in the case of burying a dead body, if the gestor had good reasons
for disregarding the injunction (
Dig. 11,
7,
14,
3).
It seems to have been a question among the classical jurists whether
ratification of the gestor's proceedings by the principal converted the
relation from
negotiorum gestio into
mandatum or not: Ulpian (
Dig.
42,
1,
60) decides
it in the affirmative, while Scaevola (
Dig. 3,
5,
9) maintains the opposite.
Perhaps the solution of this conflict in the authorities is that after
ratification the gestor could treat his principal as mandator, though the
latter, ratification being merely a unilateral act, was not entitled to
treat the former as mandatarius: though it is maintained by some writers, on
the authority of Cod. 5, 16, 25; 4, 28, 7, pr., that Justinian confirmed the
view of Ulpian.
See the article on Negotiorum Gestio in Holtzendorff's
Rechtslexicon, where monographs on this topic by Chambon,
Dankwart, Köllner, and others are referred to.
[
J.B.M]
