Negotiorum gestio in modern law

(a) Evaluation of negotiorum gestio in German law

Over the centuries, the claims arising from negotiorum gestio have been called upon to deal with many totally different types of activity in another person's interest: payment of somebody else's debt, the supply of support for those in need of it, the preservation of property belonging to another, the rescue of life and limb.^[2280] Some of the traditional areas of application have been absorbed by more specialized remedies that have come to be developed;^[2281] on the other hand, new types of situations have had to be accommodated.^[2282] The institution of negotiorum gestio has been flexible enough to cope with such changes and has retained its importance as one of the tools ensuring a fair and reasonable allocation of risks.

Not surprisingly, its retention in a revised German law of obligations has recently been advocated.^[2283] ^{^[2284] (b) The individualistic approach of the common law
While both courts and legal writers in Germany are therefore happy to encourage useful activities in the interest of others, Anglo-American law continues to be concerned about officious interloping. Often quoted are the words of Bowen LJ in Falcke v. Scottish Imperial Insurance Co.:
"The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure."^[2285]
And the American Restatement of Restitution states equally clearly: "A person who officiously confers a benefit upon another is not entitled to restitution therefor." Or, in the words of John P. Dawson, the great majority of common-law jurisdictions appear to "have done their best to discourage good Samaritans".^[2286] But the contrast between the "individualistic" common law and the humanitas-oriented civil law is (as usual) not really as dramatic as these general statements make it sound.
True: the common law does not recognize a doctrine of negotiorum gestio. Nevertheless, in a variety of situations it has developed solutions completely comparable to those evolved by the civilian systems;¹¹⁵ usually, incidentally, on the basis of a bit of civilian infusion.^[2287] Thus, for instance, it is generally accepted that a stranger who has buried a deceased may recover his reasonable expenses from the person primarily responsible for the burial.^[2288] This rule appears to be based on the Roman actio funeraria,^[2289] and it came to England via the jurisdiction of the medieval ecclesiastical courts.^[2290] ^{^[2291] ^[2292] ^[2293] ^[2294] ^[2295] From the Italian Law Merchant the Courts of Admiralty have adopted the principle that those who rescue persons or property from the perils of the sea should be rewarded.^[2296] Most importantly, however, there is the doctrine of "agency of necessity", according to which, in certain emergency situations, one person may render useful services to another without having been requested to do so, and receive compensation for those services.^[2297] This doctrine, too, is historically based on maritime usages, for it finds its origin in the power available to the master of a ship in an emergency to deal with the ship or her cargo outside the ordinary scope of his authority.^[2298] From there it has been extended to other cases where one party, by intervening on the other's behalf in an emergency, has gone beyond an existing authority. The agent, under these circumstances, is usually said to have had the implied authority of the dominus negotii to act as he has done.^[2299] But contract is not really a satisfactory basis for the doctrine of agency of necessity.^[2300] That becomes abundantly clear, for instance, in cases where necessaries are supplied to persons unable to provide for themselves and where the supplier has in fact been granted a restitutionary claim.^[2301] What we are dealing with is not a kind of "agency" but a nascent doctrine of necessitous intervention.^[2302] (c) Rescue cases
Even in rescue cases, the Good Samaritan under the common law is not as unprotected as might appear at first blush.
For if the act of rescue can be construed as the supply of necessaries, the rescuer falls under the doctrine just mentioned. More importantly, however, the law of delict has been used to alleviate the rescuer's position. Here, too, the Anglo- American courts have moved away from the highly individualistic idea of rescue as constituting an infringement of a person's private autonomy to decide about his own fate; they are now quite prepared to grant a claim in damages if the rescuer is injured while trying to remove a danger caused, either intentionally or negligently, by the person to be rescued. "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong also to his rescuer. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."¹²
These are the words of Cardozo and they show that neither the defence of volenti non fit iniuria nor the plea of novus actus interveniens is able any longer to defeat the rescuer's claim for the damages sustained. Civil-law jurisdictions such as Germany or South Africa grant relief to the rescuer by way of negotiorum gestio.^[2303] ^{^[2304] The actio negotiorum gestorum contraria, obviously, goes further than the claim in delict, in that it is applicable irrespective of whether the rescuee may be blamed for the danger in which he finds himself or whether this was due to vis maior, There is, however, at least one type of situation where negotiorum gestio does not always provide a satisfactory and suitable solution: the rescue of a person attempting to commit suicide. Where such an attempt is not just a cry for help, but is based on a serious desire to end one's own life,^[2305]'⁹ the rescuer can hardly be said to have acted "in accordance with the... actual or presumptive wishes of the principal",^[2306] Here the civil law can in turn draw on the experiences gathered in the common law with rescue claims in delict.^[2307]}}}

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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 in modern law

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