Negotiorum gestio
   HOME

TheInfoList



OR:

''Negotiorum gestio'' (,
Latin Latin (, or , ) is a classical language belonging to the Italic languages, 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 ...
for "management of business") is a form of spontaneous voluntary agency 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 Legal fiction, 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 ...
and found in civil-law jurisdictions and in mixed systems (e.g.
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a U.S. state, state in the Deep South and South Central United States, South Central regions of the United States. It is the List of U.S. states and territories by area, 20th-smal ...
, 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 law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
institution in which an individual acted on behalf of another, without his asking and without
remuneration Remuneration is the pay or other financial compensation Financial compensation refers to the act of providing a person with money or other things of economic value in exchange for their goods, Work (human activity), labor, or to provide for the c ...
. 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 Debt is an obligation that requires one party, the debtor, to pay money or other agreed-upon value to ano ...
), 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 Equity (law), 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 recipien ...
, 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 A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties ...
. In Napoleonic civilian jurisdictions, including
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a U.S. state, state in the Deep South and South Central United States, South Central regions of the United States. It is the List of U.S. states and territories by area, 20th-smal ...
, 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''; # ''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 omnipres ...
, despite certain English salvage cases, as well as some cases in equity 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 * 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 Italy (1922–1943), Fascist rule, by Royal decree no. 262 of 16 March 1942. It predates the current C ...
* 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 legal pluralism, 'mixed' legal system, formed by the interweaving of a number of distinct legal traditions: a civil law (legal system), civil law system inherited from Dutch Empire, the Dutch, a common law system ...
* 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 * 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: ''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 * 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 pr ...


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