Requirements of the actio negotiorum gestorum

(a) "Taking care" of a "wgotium" "for another"

We now have to turn our attention to further details relating to the actiones negotiorum gestorum directa and contraria.

Basically, there had to be a gestio and a negotium which was being taken care of. The concept of negotium was understood in a most liberal sense and comprised factual and legal acts, but predominantly the latter. Most importantly, however, it had to be the principal's affair, negotium alterius. This meant, as we have already seen, that it could not be negotium suum of the gestor; a transaction in the nature of a negotium commune, however, did not exclude negotiorum gestio.⁵⁶ Was it necessary, apart from that, for the gestor to have acted with the intention of managing somebody else's affair? The question of how to determine when the gestor acted "for another" (these the words of the German Code)⁵⁷ is not even clear in modern law. Of the two most recent monographs on the topic the one proceeds from an objective,⁵⁸ the other one from a subjective point of view.⁵⁹ What matters, according to Wollschlager, is to whom the law attributes the benefits and expenses of this particular type of activity, into whose "sphere of attribution" they fall. Wittmann, on the other hand, insists on the gestor's intention as the relevant criterion.⁶⁰ Both these approaches have also been read into the Roman sources. Whereas Josef Partsch⁶¹ argued that classical Roman law stuck to an objective concept of negotiorum gestio and that the Byzantine lawyers were the first to introduce the requirement of an animus negotia aliena gerendi on the part of the gestor, Salvatore Riccobono has tried to show that it was

^A For a detailed discussion on tutela/pro tutela and negotiorum gestio, sec Seiler, Negotiomm gestio, pp.

145 sqq., 208 sqq. ¹ Seiler, Negotiorum gestio, pp. 16 sqq. ⁵_⁷ § 677 BGB.

^3H Wollschlager, op. dr., note 5, pp. 52 sqq. ⁵⁴

Wittmann, op. at., note 47, pp. 18 sqq.

® This is the view that dominated during the centuries of the ius commune. Intention to act as a negotiorum gestor has been an essential requirement from the days of the glossators, via the Roman-Dutch authors down to modern South African law: Van Zyl, Negotiorum gestio, pp. 34 sqq.; cf. further Wittmann, op. cit., note 47, pp. 48 sqq. Many of the pandectists, however, do not mention the animus negotia aliena gerendi among the requirements of negotiorum gestio; cf. Cluck, vol. 5, p. 345; Vangerow, Pandekten, § 664; Arndts, Pandekten, §§ 297 sq.; Dernburg, Pandekten, vol. II, § 122.

^a Aus nachgelassenen und kleineren verstreuten Schriften (1931), pp. 88 sqq. just the other way round: the gestor's intention was the basis of classical negotiorum gestio, and it was Justinian who abandoned it/'²

(b) Animus negotia aliena gerendi?

The truth seems to lie somewhere in between these two options.^[2245] The animus negotia aliena gerendi does not appear to have been isolated and conceptualized as a specific requirement by the classical lawyers. That he took care, objectively, of a matter pertaining to another person and the gestor's knowledge of this fact: these two elements were often not conceptually separated. Nevertheless, an awareness that he was not (solely) managing his own affairs was usually present, albeit occasionally in a somewhat attenuated form. Thus, the liber homo bona fide serviens,^[2246] acting for his putative dominus, was both entitled and exposed to the actio negotiorum gestorum, even though he had been unaware of his position as a negotiorum gestor.^[2247] The same applied, for instance, where the gestor had erred about the person of the principal^[2248] or where he believed to be entitled to act on account of a mandate.^[2249] ^{^[2250] ^[2251] ^[2252]} But in the Digest we also find at least one case where the subjective element was completely dispensed with:

"Si rem, quam servus venditus subripuisset a me venditore, emptor vendiderit caquc in rcrum natura esse desicrit, de pretio negotiorum gestorum actio mihi danda sit...,""^s

The purchaser (A) of a slave has sold, in good faith, an object, which the slave had stolen from the vendor (B). The object no longer exists; B therefore claims the price from A.

According to Africanus, he can avail himself of the actio negotiorum gestorum. The fact that A believed he was transacting negotium suum does not matter, for objectively he managed another's affair. It is B's business to sell his (own) things. Their pecuniary value therefore is "assigned" (objectively) to B, the owner, not to the gestor, A. Thus it is perhaps not that wrong, after all, if a distinction is often drawn in modern law between negotia which are objectively somebody else's and those which are objectively neutral and are "alterius" only on account of the intention of the gestor.⁶⁹

Salvatore Riccobono, Scritti di diritto romano, vol. II (1964), pp. 1 sqq., 73 sqq.

⁶³ Ernst Rabel, Studi Bonfante, vol. IV, pp. 279 sqq.; Seiler, Negotiorum gestio, pp. 22 sqq.; Kaser, RPr I, p. 588; idem, RPr II, p. 418; Wittmann, op. cit., note 47, pp. 39 sqq.; but see also Mayer-Maly, (1969) 86 ZSS 426 sqq; Honsell/Maycr-Maly/Sclb, p. 349.

⁶⁴ "A free man who does not know his status as a free man and serves in good faith as

It has been emphasized already that neither the voluntariness of the action on the part of the gestor nor purely altruistic motive or amicitia nor absence of the principal was an essential or a fundamental condition for the actiones negotiorum gestorum to arise.⁷⁰ For the gestor's right of action against the principal (i.e. the so-called actio contraria) there was, however, one further requirement, which is referred to, in the sources, as utilitas gestionis: "... is enim negotiorum gestorum, inquit [CelsusJ, habet actionem, qui utiliter negotia gessit."^[2253] We have seen that the recognition of the institution of negotiorum gestio was one of the anti-individualistic traits of Roman law; it entailed a certain curtailment of the principal's autonomy. The utilitas requirement was the main safeguard designed to limit the extent of such curtailment.

Some jurists took a very narrow view and were prepared to accept only necessary gestiones; Celsus/Ulpianus even define the useful in terms of what is necessary: "... non autem utiliter negotia gerit, qui rem non necessariam vel quae oneratura est patrem familias adgreditur.' '^[2254] Others, however, adopted a more liberal approach and were prepared to grant the claim on the basis of gestiones which had not been strictly necessary.^[2255] It was clear, however, that expenses incurred voluptatis causa (e.g. the ampla aedificia in Mod. D. 3, 5, 26 pr.) could not be recovered. Generally speaking, the Roman lawyers decided the question of utiliter gestum in a casuistic fashion, not according to abstract definitions.^[2256] That could not, of course, satisfy the more conceptually minded scholars of later centuries such as the pandectists, who engaged in a very scholarly and impractical, yet almost relentless debate on the topic. A monograph of 1878 provides an overview of the thirteen (!) most important doctrines.^[2257]

As in the case of mandatum, it did not matter whether the endeavours of the gestor were ultimately crowned with success: "... sufficit, si utiliter gessit, etsi effectum non habuit negotium." Example: "[E]t ideo si insulam fulsit vel servum aegrum curavit, etiamsi insula exusta est vel servus obiit, aget negotiorum gestorum.^1,76

The wishes of the principal, incidentally, do not as a rule seem to have played a role in the assessment of the utilitas of the gestor's action.^[2258] Only in the most extreme case, namely that of negotiorum gestio prohibente domino, was the claim held to be excluded by some of the classical authors.^[2259] ^{^[2260]'^7y}

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

Requirements of the actio negotiorum gestorum

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