The actio negotiorum gestorum (contraria) as enrichment action

(a) Mala fide administration of another's affairs

The most exciting and, in the long run, significant advances towards a more generalized enrichment liability were made in two closely related areas.

The one was negotiorum gestio.²⁴⁸ Like the condictio indebiti, the unauthorized management of somebody else's affairs was classified as a quasi-contractual obligation.²⁴⁹ We have seen that, under certain circumstances, the principal was granted a claim against the gestor (the so-called actio negotiorum gestorum directa) and the gestor, in turn, an actio contraria against the principal.^[4482] It was this actio negotiorum gestorum contraria that was occasionally used as an enrichment action. Two fragments from the Digest are of particular importance. Digesta 3, 5, 5, 5 is one of them.

"Sed et si quis negotia mea gessit non mei contemplatione, sed sui lucri causa, Labeo scripsit suurn eum potius quarn meum negotium gessisse...: sed nihilo minus, immo magis et is tenebitur negotiorum gestorum actione, ipse tamen si circa res meas aliquid impenderit, non in id quod ei abest, quia improbe ad negotia mea accessit, sed in quod ego locupletior factus sum habet contra me actionem."^[4483]

We are dealing with the mala fide administration of the affairs of another; despite the fact that the gestor has transacted his own business rather than that of the principal—in fact, even more so than if he had—he can be held liable under the actio negotiorum gestorum directa. But can he, on his part, demand reimbursement for his expenses from the principal? Intuitively, one may perhaps be inclined to answer in the negative: after all, he meddled with the affairs of another, not for that other person's sake, but for his own profit. Yet, at the same time it must also be acknowledged that it would hardly be equitable if the principal were allowed to keep what he had gained as a result of the gestor's expenses.

Hence the compromise solution, perhaps already advocated by the classical Roman lawyers:^[4484] the gestor may claim his expenses only in so far as the principal has been enriched thereby. Liability under the actio negotiorum gestio contraria was thus limited to "quanto locupletior factus est". This phrase did not, incidentally, refer to the defendant's actual enrichment at the time of litis contestatio (that is, to the amount by which he was still enriched when he was sued) but to what he had originally received.²⁵³ The position of a malae fidei gestor was obviously not very different from that of a malae fidei possessor who made improvements on somebody else's land. This brought the principle enunciated in D. 12, 6, 33, the famous lex Si in area, into the discussion, and suddenly the medieval interpreters were faced with a serious inconsistency: for according to the lex Si in area not even the bona fide possessor could institute an action on account of the fact that he had improved somebody else's property. It was the glossator Martinus who seized the opportunity to unhinge the troublesome and inconvenient lex Si in area. Boldly he pronounced "quod malae fidei possessor, etiam si suo nomine expensas fecit, habeat non solum retentionem... sed etiam actionem"/⁵⁴ and referred to Pomponius' famous unjust enrichment principle for support. Many of his contemporaries refused to follow suit;²⁵⁵ they regarded his well- known bias in favour of equity²⁵⁶ as somewhat exaggerated. Yet, slowly but surely, his interpretation gained ground. Grotius²⁵⁷ and Voet²⁵⁸ were among its most prominent advocates in Holland, Cuiacius, Molinaeus and Pothier in France.²⁵⁹ Pothier considered the action to be based "stir la settle raison de Vequite naturelle, qui ne permet pas de s'enricher et de profiler aux depens d'autmi'f^M Molinaeus, as usual, had expressed the same idea before him, though less elegantly and not in the vernacular.^2M Even in Germany, where legal writers remained, on the whole, more cautious, the actio negotiorum gestorum utilis of the malae fidei possessor appears to have been widely accepted in practice.²⁶²-²⁶³

(b) Afr. D.

3, 5, 48

The second text of major importance was Afr. D. 3, 5, 48. A slave is sold and takes with him an object that he has stolen from the vendor. The purchaser in good faith sells that object to a third party where it is destroyed. The original owner/vendor can thus no longer make use of his rei vindicatio. Under these circumstances Africanus is prepared to grant the actio negotiorum gestorum to him against the purchaser, in respect of the price received by the latter.^[4485] This is a rather atypical case of a negotiorum gestio, for the gestor has managed somebody else's affairs in the mistaken belief that they are his own.^[4486] Hence the generalizing statement, in the middle of the text, according to which the actio (directa) is applicable "si negotium, quod tuum esse existimares, cum esset meum, gessisses". But where there is a relationship of negotiorum gestio, the gestor must also be able to avail himself of the actio contraria against the principal. This is confirmed in the last part of our fragment: the gestor is allowed to sue the principal for whatever the latter has acquired through the gestio.^[4487] It is likely that the negotiorum gestio in D. 3, 5, 48 was merely used as a device to establish what essentially constituted mutual enrichment actions.^[4488] This is, in any event, how the text was understood by the writers of the ius commune, and they were able, in support of their interpretation to draw attention to Afr. D. 12, 1, 23—a text in which Julian advocated a condictio "quasi ex re tua locupletior factus sim"; again, the defendant (ego) had sold, in good faith, an object belonging to the plaintiff (tu), the object was subsequently destroyed and the question arose whether "tu" could sue "ego" for the purchase price.^[4489] Over the centuries, the designation of the remedy for and against the bonae fidei gestor vacillated somewhat uneasily between actio negotiorum gestorum utilis, condictio certi (generalis) and condictio sine causa; but whatever the name, it was always retained as a specific source of enrichment liability.^[4490] ^{^[4491] ^[4492] ^[4493] ^[4494] ^[4495] ^[4496] ^[4497] Usually it was regarded as another emanation of the precepts of natural equity, as spelt out, for example, in D.}

50, 17, 206, and some writers therefore even spoke of an actio in factum (or utilis) ex aequitate. Again, there was an inclination to extend its scope. Often, for instance, the remedy arising from D. 3, 5, 48 was granted to a bonae fidei possessor and could thus be used as another instrument to dislodge the unpopular rule of D. 12, 6, 33 (lex Si in area). The latter was now bound to appear in an even less favourable light; constituting one of those Roman subtleties arising "de mero iure, et rigore juris civilis vel positivi",²⁷⁰ it was bound, eventually, to give way to the more equitable dispensation: "Mais requite," in the words of Pothier,²⁷¹

"qui ne permet pas qu'on s'enrichisse aux depens d'autrui, m'accorde, en ce cas, contre la subtilite du droit, une action contre vous, pour repeter de vous les frais de ma gestion, jusqua'a concurrance de ce que vous en avez profite."

<< | >>

↑

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) as enrichment action

More on the topic The actio negotiorum gestorum (contraria) as enrichment action: