Negotiorum Gestio

In our discussion of the contract of mandate it was noted that this contract involved an agreement whereby a person gave another a commission to do something without reward.

The relationship known as negotiorum gestio^{^[860]} was somewhat similar to mandate, but differed in the aspect that there was no agreement between the parties. This relationship emerged when one person (negotiorum gestor) voluntarily and without instruction to do so managed the affairs of or performed some service for another (dominus negotii). In everyday life this usually arose when a person spontaneously, out of friendship or helpfulness, acted in the interests of another. Provided the gestor complied with the requirements of bona fides, the service performed might be of any kind: a factual act, a legal act, a single act (e.g. the repair of a building) or a general administration of another's affairs (e.g. becoming a surety). Notwithstanding the absence of agreement, a praetorian edict introduced remedies aimed at compensation for expenses incurred or loss suffered by the parties in the course of the negotiorum gestio.

In time and under the influence of the jurists, a number of basic requirements were introduced for a valid and legally binding negotiorum gestio. First, the gestor had to have the intention to act in the interest of another person (animus aliena negotia gerenda) rather than in his own interest.^{^[861]} Therefore no negotiorum gestio could be established if he acted in order to fulfil a contractual duty of his own, discharged a moral obligation or made a donation.^{^[862]} Moreover, the gestor had to refrain from acting if the dominus had previously forbidden him from acting on his behalf.^{^[863]}

It was required, further, that the gestor should act in the best interests of the dominus and that his act should in fact be reasonable in the circumstances in which it was rendered. The question of reasonableness was determined by reference to the interests of the dominus and not by reference to what the gestor himself believed to be reasonable.

However, it was not necessary that the outcome of the gestor's action be successful or useful for the dominus; if such action was reasonable when undertaken (utiliter coeptum), the fact the dominus derived no benefit from it was irrelevant.^{^[864]}

Finally, later law required the gestor to have acted on the expectation that he would have a legal claim to an indemnity for his expenses (animus recipiendi).^{^[865]}Thus, the relevant action would not be available to him if he intended to provide a gratuitous service.

Negotiorum gestio was an imperfectly synallagmatic or bilateral legal act that originated from the ius honorarium and was therefore based on bona fides ^{^[866]} The dominus could institute the actio negotiorum gestorum directa against the gestor to claim recovery of the proceeds derived from the negotiorum gestio and damages caused by the latter's fault. In this regard the gestor was liable for dolus and culpa levis in abstracto, but if he acted in an emergency he was liable for only dolus.^{^[867]}On the other hand, the gestor had recourse to the actio negotiorum gestorum contraria whereby he could claim compensation for necessary expenses he incurred or loss or damage he suffered in the execution of the task.^{^[868]}

4.8.2

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Negotiorum Gestio

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