Negotiorum gestio and mandatum

(a) Similarities

Negotiorum gestio, in the German Civil Code, follows immediately upon mandate.¹ Both institutions, indeed, have much in common.² In both cases one person (the mandatarius/the gestor) manages somebody else's (the mandator's/principal's) affairs.

As in mandate, the scope of matters which the gestor can take care of for the principal is very broad; they may be of a factual or of a legal nature.³ As in mandate, the (negotiorum) gestor must, however, not have acted solely in his own interest. The negotium has to be alienum, or alterius; it may be alienum et suum, but it may not be suum tantum.⁴ Like mandate, negotiorum gestio gives rise to an imperfectly bilateral relationship. There is, first of all, an actio directa, by means of which the principal may sue the gestor for damages in case of mismanagement and for the restoration of whatever the latter might have acquired in the course of executing the gestio.⁵ The gestor, on the other hand, may avail himself of the actio negotiorum gestorum contraria, if and when he has incurred any expenses or suffered damages.⁶ So close are the parallels between the mutual claims of gestor/principal and mandatarius/mandator that the BGB, in fact, refers the reader in its title dealing with negotiorum gestio to what has been laid down with regard to mandatum.⁷ As a consequence, the same problems have to be solved in both areas, particularly those arising from the narrow formulation of § 670 BGB.

(b) Difference

The main difference between mandatum and negotiorum gestio is that

‘ Book II, Section VII, Title X: Mandate; Title XI: Negotiorum gestio.

² Cf. generally on the relationship between negotiorum gestio with contract and mandate S.J. Stoljar, "Negotiorum gestio", in: International Encyclopedia of Comparative Law, vol.

X, 17 (1984). nn. 6 sqq.

" For Roman law cf. Seller, Negotiorum gestio, pp. 10 sqq.; for modern German law: Hans Hermann Seiler, in: Münchener Kommentar zum BGB, vol. Ill, 2 (2nd ed., 1986), § 677, n. 2; for Roman-Dutch law: D.H. van Zyl, Negotiorum gestio in South African Law (1985) PP- 11 sqq.

For Roman law cf. Seller, Negotiorum gestio, pp. 16 sqq.; for modern German law: Seiler, in: Münchener Kommentar, op. cit., note 3, § 677, nn. 3 sqq.

⁵ For Roman law, see Kaser, RPr I, pp. 589; for modern German law: Christian Wollschlager, Die Gescliajisft'ihrittig oime Aitftrag (1976), pp. 262 sqq. and § 681 BGB; for Roman-Dutch and South African law: Van Zyl. Negotiorum gestio, pp. 49 sqq.; generally: Stoljar, op. cit., note 2, nn. 258 sqq.

For Roman law: Kaser, RPr I, p. 590; for modern German law c{. § 683 BGB and Seiler, in: Münchener Kommentar, op. cit., note 3, § 683, nn. 1 sqq.; for Roman-Dutch and South African law: Van Zyl, Negotiorum gestio, pp. 67 sqq.; generally: Stoljar, op. cit., nn. 66 sqq.

⁷ Cf. § 681 referring to §§ 666-668 and § 683 referring to § 670 BGB.

433 the one is a contract, the other an obligational relationship ex lege. The right-duty connection between gestor and principal, in other words, is not based on any kind of agreement but arises from the mere fact of the negotiorum (alterius) gestio.^[2203] ^{^[2204] As in the case of enrichment, we are dealing here with autonomous obligations which are neither contractual nor delictual, but fall somewhere in between these main categories? Justinian therefore accommodated both of them in a special title dealing with obligationes quasi ex contractu;^[2205]" quasi ex contractu, because even though they are not contractual, they derive from a lawful activity and give rise to claims which are more closely related to contract than delict. We have already seen that later centuries did not always look with much kindness on the quasi-contracts as a separate systematic entity, and that there was a tendency to amalgamate them with the contractual obligations.^[2206] Thus, one had to find (or construe) a consensual element, a consensus fictivus or praesumptus. In the case of negotiorum gestio the animus negotia aliena gerendi of the gestor (of which we find traces in the Roman sources) was emphasized as a special and indispensable requirement,^[2207] and likewise the actual or presumed will of the principal that the gestor should act for him. Thus, negotiorum gestio could conveniently be based on the corresponding intentions of the two parties. This (mis-Conception, incidentally, still lingers on in modern German doctrine, which tends to assign undue importance to these subjective elements.^[2208]}

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Source: Zimmermann R.. The Law of Obligations. Roman Foundations of the Civilian Tradition. Juta & Co, Ltd,1992. — 1241 p.. 1992

Negotiorum gestio and mandatum

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