The range of application of negotiorum gestio

"Quod A^s A^s negotia N¹ N¹ gessit": this demonstratio described the scope of negotiorum gestio in very abstract terms. It not only covered specific types of gestiones, but could accommodate a whole lot of entirely heterogeneous situations.

That made negotiorum gestio a very useful tool to provide for restitution where this was deemed equitable, but it also gave it a somewhat un-concrete and un-descriptive character. Negotiorum gestio is (and has remained) "lawyer's law", a concept which does not really inspire the layman's imagination.^[2234] Of course, attempts have not been wanting to analyse negotiorum gestio, less abstractly, in terms of concrete phenomena of social life. Most influential, in modern times, has been Joseph Kohler's endeavour to turn the institution into a legal paradigm of human help.^[2235] Since then, German writers have been stressing the altruistic nature of negotiorum gestio and have based their discussion on cases characterized by the spontaneous benevolence of the gestor. They focus on the brave man hurrying to extinguish a fire in his absent neighbour's flat or on the philanthropist who takes home a crying child, and they rarely forget to mention the philatelist who buys a rare stamp for a friend in the belief that the latter has been wanting it for a long time.⁴⁴ But these are textbook examples, not the standard cases that come before the courts. Those, in turn, are largely characterized by an inextricable intertwining of the principal's and the gestor's own interest.^[2236] Thus, for instance, it often happens that the gestor is not only managing somebody else's affairs but also (and at the same time) discharging a duty imposed on him;^{45 ^[2237] and it is interesting to see the difficulties of a modern doctrine, based on the theory of human help, in dealing with these types of situations.^[2238] This shows that genuine altruism is both an unrealistic and an unhandy criterion to determine the scope of application of negotiorum gestio.^[2239] The Roman lawyers, for instance, were too practical to use it as such. For even though fides and the duties of friendship featured prominently within the value background of this institution,^[2240] neither altruism nor amicitia—nor even voluntariness of the gestor's activity ("sponte")—was required before an action could be granted.
The actio negotiorum gestorum could be brought, according to Ulpian, against someone who "aliqua necessitate urguente vel necessitatis suspicione gessit".^[2241] This was the case, for example, where somebody had taken care of another person's affairs in the (mistaken) belief that he had been requested to do so.^[2242] Even the gestor who defends his absent friend in court can in fact be said to have acted not so much "sponte" but in compliance with his officium amicitiae. Furthermore, a certain type of amicitia, namely the amicitia paterna or pietas, could even have the opposite effect: for the actio negotiorum gestorum contraria was taken to be excluded, if the gestor had incurred expenses in the form of maintenance payments in favour of close relatives.^[2243] All in all, one can therefore say that negotiorum gestio in classical law covered a wide variety of different situations. It began indeed where mandate ended.^[2244] But it was not only excluded by the contractual relationship of mandatum; it was subsidiary in a broader sense.⁵⁴ Tutela, for instance, concerned the management of another's affairs and so did negotiorum gestorum pro tutore. Yet, the indicia negotiorum gestorum were not applicable, for the Roman lawyers had developed special remedies to deal with these relationships.⁵⁵
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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 range of application of negotiorum gestio

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