negotiorum gestio
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''Negotiorum gestio'' (,
Latin Latin (, or , ) is a classical language belonging to the Italic branch of the Indo-European languages. Latin was originally a dialect spoken in the lower Tiber area (then known as Latium) around present-day Rome, but through the power of the ...
for "management of business") is a form of spontaneous voluntary
agency Agency may refer to: Organizations * Institution, governmental or others ** Advertising agency or marketing agency, a service business dedicated to creating, planning and handling advertising for its clients ** Employment agency, a business that ...
in which an intervenor or intermeddler, the ''gestor'', acts on behalf and for the benefit of a principal (''dominus negotii''), but without the latter's prior consent. The gestor is only entitled to reimbursement for expenses and not to remuneration, the underlying principle being that ''negotiorum gestio'' is intended as an act of generosity and friendship and not to allow the gestor to profit from his intermeddling. This form of intervention is classified as a
quasi-contract A quasi-contract (or implied-in-law contract or constructive contract) is a fictional contract recognised by a court. The notion of a quasi-contract can be traced to Roman law and is still a concept used in some modern legal systems. Quasi Contra ...
and found in civil-law jurisdictions and in mixed systems (e.g.
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, Scots, South African, and Philippine laws). For example, while you are traveling abroad, a typhoon hits your home town and the roofing of your house is in danger. To avoid the catastrophic situation, your neighbour does something urgently necessary. You are the 'principal' and your neighbour here is the 'gestor', the act of which saved your house is the ''negotiorum gestio''. It originated as a Roman
legal Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
institution in which an individual acted on behalf of another, without his asking and without
remuneration Remuneration is the pay or other financial compensation provided in exchange for an employee's ''services performed'' (not to be confused with giving (away), or donating, or the act of providing to). A number of complementary benefits in additio ...
. It was considered a part of ''officium'' (
duty A duty (from "due" meaning "that which is owing"; fro, deu, did, past participle of ''devoir''; la, debere, debitum, whence "debt") is a commitment or expectation to perform some action in general or if certain circumstances arise. A duty may ...
), for instance, to defend a friend's or neighbour's interests while the friend or neighbour was away. The principal, or ''dominus negotii'' (or rarely ''dominus negotiorum dominus rei gestae''), is bound to indemnify the gestor for the expenses and liabilities incurred. If the principal fails to do so, there is
unjust enrichment In laws of equity, unjust enrichment occurs when one person is enriched at the expense of another in circumstances that the law sees as unjust. Where an individual is unjustly enriched, the law imposes an obligation upon the recipient to make res ...
, and the gestor then has a claim to bring an action for
restitution The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court o ...
. In Napoleonic civilian jurisdictions, including
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, the action takes the form of the ''actio de in rem verso''. In South Africa, on the other hand, multiple restitutionary actions lie for ''negotiorum gestio'', namely: # '' condictio indebiti''; # ''
condictio causa data causa non secuta The ''condictio causa data causa non secuta'' under Roman law was an action ("condictio") for recovery of a transfer of property, where the purpose for the transfer had failed (''causa non secuta''). During the recognition of innominate contracts, ...
''; # ''condictio ob turpem vel iniustam causam''; # ''condictio sine causa specialis'' ''Negotiorum gestio'' is not recognised at
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, despite certain English salvage cases, as well as some cases in
equity Equity may refer to: Finance, accounting and ownership * Equity (finance), ownership of assets that have liabilities attached to them ** Stock, equity based on original contributions of cash or other value to a business ** Home equity, the dif ...
where trustees were on occasion remunerated for services voluntarily rendered. Nevertheless, the concept is known in English legal theory as ‘necessitous intervention’. It is variously known as follows: * Belgium: "agency of necessity" in Dutch and "management of affairs" in French ( nl, zaakwaarneming or french: gestion d'affaires) under the
Belgian Civil Code Belgian may refer to: * Something of, or related to, Belgium * Belgians, people from Belgium or of Belgian descent * Languages of Belgium, languages spoken in Belgium, such as Dutch, French, and German *Ancient Belgian language, an extinct language ...
* Czech Republic: "uncommanded agency" ( cs, nepřikázané jednatelství) under the Czech Civil Code * France: "management of affairs" (french: gestion d'affaires) under the French Civil Code * Germany: "agency without specific authorisation" (german: Geschäftsführung ohne Auftrag) under the
German Civil Code German(s) may refer to: * Germany (of or related to) **Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ger ...
* Italy: "management of another's affairs" ( it, gestione di affare altrui) under the
Italian Civil Code The Italian Civil Code ( it, Codice civile) is the civil code of Italy, a collection of norms regulating private law. It was enacted under Fascist rule, by Royal decree no. 262 of 16 March 1942. It predates the current Constitution of Italy, and it ...
* Japan: "management of business" ( ja, 事務管理, ''jimu kanri'') under the Japanese Civil Code * Louisiana: "management of affairs" under the
Louisiana Civil Code The ''Louisiana Civil Code'' (LCC) constitutes the core of private law in the State of Louisiana. The Louisiana Civil Code is based on a more diverse set of sources than the laws of the other 49 states of the United States: substantive law between ...
* Netherlands: "agency of necessity" ( nl, zaakwaarneming) under the Dutch Civil Code * Scotland: ''Negotiorum gestio'' (sometimes rendered 'benevolent intervention', though generally the phrase ''negotiorum gestio'' is used even in modern statutes). * South Africa: ''negotiorum gestio'' (sometimes "management of affairs") under
South African law South Africa has a 'hybrid' or 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law system inherited from the Dutch, a common law system inherited from the British, and a customary law syste ...
* Switzerland: "business management without authority" in German and "management of affairs" in French (german: Geschäftsführung ohne Auftrag or french: gestion d'affaires) under the
Swiss Civil Code The Swiss Civil Code (SR/RS 210, german: Schweizerisches Zivilgesetzbuch (ZGB); french: Code civil suisse (CC); it, Codice civile svizzero (CC); rm, Cudesch civil svizzer) is a portion of the second part (SR/RS 2) of the internal Swiss law ("Pr ...
* Poland: "management of another's business without an order" ( pl, Prowadzenie cudzych spraw bez zlecenia) under the Polish Civil Code *Portugal: "management of business" (
Portuguese Portuguese may refer to: * anything of, from, or related to the country and nation of Portugal ** Portuguese cuisine, traditional foods ** Portuguese language, a Romance language *** Portuguese dialects, variants of the Portuguese language ** Portu ...
: ''gestão de negócios'') under the
Portuguese Civil Code The current Portuguese Civil Code ( pt, Código Civil) was approved on 26 November 1966 and entered into force on 1 June 1967. It replaced the previous Portuguese Civil Code of 1868. Its text was prepared by a Commission of Professors of Law which ...
(Articles 464 to 472) * Russia: "action in the interest of another (without instruction)" (russian: действия в чужом интересе (без поручения)) under the Russian Federation Civil Code * Taiwan: "management of affairs without mandate" () under the
Taiwanese Civil Code Taiwanese may refer to: * Taiwanese language, another name for Taiwanese Hokkien * Something from or related to Taiwan (Formosa) * Taiwanese aborigines, the indigenous people of Taiwan * Han Taiwanese, the Han people of Taiwan * Taiwanese people, r ...
* Thailand: "management of affairs without mandate" ( th, จัดการงานนอกสั่ง; ) under the Civil and Commercial Code *Turkey: "management of affairs without mandate ( tr, Vekaletsiz işgörme) under the Turkish Code of Obligations (Articles 526-531)


See also

*
Roman Law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
*
Law of agency The law of agency is an area of commercial law dealing with a set of contractual, quasi-contractual and non-contractual fiduciary relationships that involve a person, called the agent, that is authorized to act on behalf of another (called the ...


References


Further reading

* * Niall R. Whitty & Deon van Zyl. ‘Unauthorized Management of Affairs (Negotiorum Gestio)’, in ''Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa''. Eds. Reinhard Zimmermann, Kenneth Reid, & Daniel Visser. Oxford: Oxford UP, 2005. {{Authority control Roman law Law of obligations