The standard of liability of the gestor

(a) The position of the gestor

The most interesting aspect concerning the principal's right of action (i.e. the actio negotiorum gestorum contraria)^[2274] is the standard of liability of the gestor.

As in the case of mandatum, the question has been disputed: among both modern Romanists^[2275] and the authors of the ius commune.^[2276] For a generalizing statement we may turn again to Ulp. D. 50, 17, 23: "[Djolum et culpam [recipiunt] mandatum, commodatum, venditum, pignori acceptum, locatum, item dotis datio, tutelae, negotia gesta."⁹⁶ But we must be careful not to take this as a hard-and-fast rule.⁹⁷ Nor must we—ahistorically—read any kind of modern conceptual rigidity into the text. Negotiorum gestio was based on a iudicium bonae fidei; the judge therefore had to determine in each individual case whether the debtor had complied with the precepts of good faith or not. The wording of the formula did not oblige him to evaluate the defendant's behaviour in terms of predetermined standards of liability; on the contrary, it left him a wide discretion to make his decision dependent upon all the circumstances of the case.

There are, however, two observations of a more general nature that may be made. The utility principle,⁴⁹ in many instances, would militate against a particularly strict type of liability. The gestor acts in the interests (at least: also) of the principal, and he usually does so gratuitously, if not out of pure altruism. This should count in his favour when it comes to the question of attribution of loss. On the other hand, however, the institution of negotiorum gestio has a strongly fiduciary flavour." The law allows the gestor to interfere with the affairs of another person, and this other person must at least enjoy some protection against careless meddling.

The law should not normally condone or encourage indifference towards the property of others.¹*¹⁰ In the end, therefore, the extent of the gestor's liability reflects the peculiar position of the institution of negotiorum gestio between amicitia and libertas. A limitation of liability may be used to encourage altruism, an extension of liability can serve to prevent undesirable intrusions into private autonomy.

(b) Pomp. D. 3, 5, 10 and Ulp. D, 3, 5, 3, 9

Thus, we are not surprised to find the Roman lawyers advocating, as a general guideline, an average level of responsibility, but deviating from it quite freely.¹⁰¹ The two most interesting and, in the long run, influential texts are Pomp. D. 3, 5, 10 and Ulp. D. 3, 5, 3, 9. In the one instance, we read of a gestor who engages in a novel type of enterprise, which the absent principal himself was not accustomed to concern himself with. In this type of situation, the gestor is liable not only for dolus and culpa but also for casus (fortuitus). Ulpianus, on the other hand, discusses the case of the benevolent friend who prevents, "affectione coactus", the impending sale of the (absent) principal's property. Under these circumstances, only a minimum of liability is reasonable:.. aequissimum esse dolum dumtaxat [agentem] te

praestare."¹⁰² Pomponius, incidentally, was reporting an opinion of Proculus, Ulpianus drew upon Labeo. Both decisions thus go back to the days of early classical law. They formulated criteria for a graduated approach towards the gestor's liability that have found their way, through the various periods of Roman law¹⁰³ and the ius

^9R Cf. supra, pp. 198 sq.

® Also emphasized by Stoljar. op. cit.. note 2. n. 26.

^1(B The same considerations apply in the case of tutela; the tutor's liability therefore came to be extended, not restricted, by the classical lawyers. The actio tutelae was closely related to the actio negotiorum gestorum and was also based on bona fides.

Cf. Kaser. RPr I. pp 365 sq.

For details, see Seiler, op. cit.. note 94. pp. 197 sqq.

Ulp. D. 3. 5. 3. 9.

^1(B On the position injustinianic law cf. De Robertis. Responsabilitd, pp. 501 sqq.; but see. as to Inst. Ill. 27. 1 ("exactissima diligentia"!. Seiler, op. cit.. note 94. pp. 200 sq. commune,¹⁰⁴ into a modern codification such as the BGB. § 680 BGB¹⁰⁵ generalizes the rationale underlying Ulp. D. 3, 5, 3, 9 when it states that, where the gestio has as its object the averting of an imminent danger which threatens the principal, the gestor's liability is limited to dolus and culpa lata. According to § 678 BGB,^{^[2277]} on the other hand, the gestor is responsible even for casus fortuitus, if the taking care of this specific negotium is opposed to the actual or presumptive wishes of the principal and if the gestor should have recognized that. This is the modern version of Pomp. D. 3, 5, 10; the extrapolation of a more subjectively accentuated criterion ("novum negotium, quod non sit solitus absens facere" as a gestio the undertaking of which is typically against the wishes of the principal) is in line with a similar shift of emphasis concerning the utiliter requirement of the actio negotiorum gestorum contraria.^{^[2278]} As a general rule, however, the gestor's standard of liability lies in between these two extremes: it comprises dolus and (all types of) culpa.^{^[2279]}

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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 standard of liability of the gestor

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