The actio negotiorum gestorum contraria

(a) Its importance today

The gestor's claims against the principal (as, for instance, laid down in §§ 683, 670 BGB) are today the very core of negotiorum gestio.^[2261] In Germany, between 70 and 80 per cent of all decided cases^[2262] deal with what the Romans only conceived of as the actio contraria.

For them, the actio directa of the principal against the gestor was the main claim, and in our sources it occurs as often as the actio contraria. This change of emphasis may be due to the fact that our courts have to deal with different types of situations than the Roman lawyers: in the age of aeroplanes and telecommunications, cases of emergency help for an absent friend, particularly the unsolicited intervention as a defensor in legal proceedings, no longer feature prominently in the law reports. Even in classical Roman law, the procurator no longer acted as a negotiorum gestor, and the activities of the modern equivalent to the Roman curator (furiosi, prodigi or minoris) were governed by a set of special rules and not by negotiorum gestio either. But it highlights, more particularly, that the application of the modern actio contraria presents a variety of tricky problems.^[2263] The controversies surrounding the "utiliter gestum" requirement^[2264] are one example. Two further difficulties in the application of § 683 BGB are, in a manner of speaking, home-made. First of all, the narrow formulation of § 670 (to which § 683 refers) has given rise to the same controversy that we have already encountered in our discussion of mandate:^[2265] may the gestor claim only his "outlays" or can he also sue for damages incurred? The prevailing opinion, again, accepts the latter, partly on the basis of an "analogous" application of §§ 683, 670 BGB, and partly on the basis of a general liability for risks, which are related to activities in other peoples' interest.^[2266] One of the most interesting cases where such "outlays" (in reality: damages) were successfully claimed for concerns the selfsacrifice of a motorcar driver: in order to avoid an impending collision with (for instance) a small child who suddenly runs onto the street, he throws around his wheel and steers his car into a tree.

This case raises several problems. Are we dealing with a (negotiorum) "gestio"? After all, the driver's reaction was probably purely in the nature of a reflex. Did he "take care of some matter" for the child? After all, had he not avoided the accident, he might well himself have been exposed to liability: not only (in case of negligence) in delict, but particularly under the strict liability of § 7 of the German Road Traffic Act. And finally: can he recover his damages? The Federal Supreme Court has allowed such a claim—not, however, for the full damages, but limited to "reasonable" compensation.^[2267]

(b) Remuneration of services rendered?

Secondly, it is unclear under the BGB whether the gestor may ask to be remunerated for the services rendered in the principal's interest. Take the following example:^[2268] ^{^[2269] a wine-grower is unable, for some or other reason, to look after his vineyard. His neighbour kindly intervenes and takes charge of the cultivation. Had he employed some workers to do the job (and provided he had acted in accordance with the interest and the actual or presumptive wishes of the principal), he would have been able to recover his expenses, especially the wages that he had had to pay. If, however, he does the work himself, he will, according to the BGB, not be able to recover compensation for his services as such: the gestor may demand reimbursement of his outlays "as a mandatary","⁸ and the mandatary, as we know, acts gratuitously. Equitable? From the point of view of the Roman lawyers, perhaps. For them, it was in any event not the "done" thing to ask for the payment for services rendered. But that perception has changed: so much so that as early as the 19th century, the courts usually allowed the gestor to recover such remuneration.^[2270] ^{^[2271] The fathers of the BGB had no intention, in fact, of changing this and of reverting to classical Roman law in this regard. They did so inadvertently and due to a drafting mistake?“ Mandatum, according to the first draft, was not gratuitous either;^[2272] and when this was subsequently changed, one forgot to consider the consequences that this change was bound to have for norms such as § 683, which simply refer the reader to the provisions on mandatum. The interpretatio moderna has in the meantime corrected this mistake and has returned, by and large, to the position of the later ius commune.^[2273]}}

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

The actio negotiorum gestorum contraria

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