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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.


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