The history of negotiorum gestio in Roman law
Where, then, lie the roots of the Roman negotiorum gestio? Ulpian in his commentary ad edictum gives the following motivation for the edict de negotiis gestis:
"Hoc edictum necessarium est, quoniam magna utilitas abscntium versatur, ne indefensi rerum possessionem aut venditionem patiantur vcl pignoris distractioncm vel poenac committendae actionem, vel iniitria rein suam amittant."28
This laudatio edicti focuses on one specific type of situation: emergency actions in the interest of an absent friend, designed to avert some imminent danger to his property or to his reputation.
It seems to haveNegotiorum gestio
AV1
been an old and important field of application for negotiorum gestio;[2221] representation in litem features particularly prominently among the cases contained in the Digest, the gestor usually acting as defensor for the absent defendant.[2222] Other groups of cases, too, tie in with the rationale given by Ulpianus: those, for instance, where the gestor discharges the principal's obligation,[2223] or where he stands surety on his behalf.[2224]- But then we also see various gestores collecting debts,[2225] purchasing farms or selling slaves for somebody else:[2226] situations where it would hardly be appropriate to talk of an emergency and where, strictly speaking, a necessity to take care of the principal's affairs cannot normally have existed. Ulpianus D. 3, 5, 1 therefore does not seem to tell us the full story. And, indeed, it is widely accepted today that negotiorum gestio has two further roots: procuratio omnium rerum and cura furiosi.[2227] It has been mentioned already that the procurator in pre-classical times did not act under a contract of mandatum. Nor was the curator in the position of a (private) mandatarius, since he was either called upon to act by law or appointed by the magistrate.
The actio mandati, therefore, not being applicable to their case, both curator and procurator lacked a right of recourse, and could not be held accountable by their charges either. To cover these situations, two formulae became part of the praetorian edict, differing from each other as to who was plaintiff and defendant, but otherwise identical.[2228] Their scope of application was defined by the broad and abstract requirement of negotium alterius gestio, and they contained the "ex bona fide" clause. Historically, however, these bonae fidei iudicia of civilian nature had been preceded by two praetorian claims with formulae in factum conceptae.[2229] They seem to have been less broadly framed; in particular, they probably required management of negotia absentis.[2230] It is likely that these indicia had been designed by the praetors to accommodate the above-mentioned cases of emergency assistance between friends, especially by way of defensio rei alterius (absentis) in litem.[2231] We are not certain whether they continued to exist, side by side with the more modern bonae fidei iudicium; but if they did,[2232] they cannot have been of much practical importance any longer and their requirements were probably assimilated with those of the bonae fidei actions.[2233] The latter, in any event, dominated the scene.4.
More on the topic The history of negotiorum gestio in Roman law:
- Negotiorum gestio in modern law
- The value basis of negotiorum gestio
- The range of application of negotiorum gestio
- Negotiorum gestio and mandatum
- Negotiorum Gestio
- CHAPTER 14 Negotiorum gestio
- It is difficult to provide a comprehensive and finite list of the sources of Roman law, since the Roman jurists never defined the term 'source of law' and different sources were emphasized at certain periods in the history of the Roman legal system to reflect their prominence as instruments of legal reform.
- The History of Roman Law after Justinian
- V. ROMAN LAW AS LEGAL HISTORY
- The Later History of Roman Law in the West