The value basis of negotiorum gestio

The institution of negotiorum gestio is a highly original creation of classical Roman^[2209] law which has been handed down to us, via Justinian^[2210] and the ius commune, without major changes.

The BGB in particular follows Roman law very closely in this respect.^[2211] Unlike, for instance, the contracts of sale or loan, negotiorum gestio cannot be said to form a necessary part of every developed legal culture. According to Grotius,^[2212] it does not find a basis in natural law, and it is therefore not surprising that two of the main codifications of the age of the law of reason, the Prussian and the Austrian codes, contain a prohibition, in principle, of negotiorum alterius gestio.^[2213] English law, to mention another example, does not possess a doctrine of negotiorum gestio either—a highly characteristic trait, for it reflects the traditional individualism and the reserved mentality of the English people.^[2214] Management of another's affairs is regarded, first and foremost, as an undue curtailment of that other person's autonomy, and the unsolicited gestor is often somewhat contemptuously referred to as an officious meddler.^[2215] "Culpa est immiscere se rei ad se non pertinenti": this statement, attributed to Pomponius,^[2216] would neatly sum up such an attitude. For the Romans, however, it was only half the truth. Liberty was one of the basic principles inspiring the Roman jurists,^[2217] and thus their private law showed many essentially individualistic traits. But just as in the Roman conception of liberty certain limitations were inherent,^[2218] so individualism never reigned supreme.^[2219] Fides, amicitia, pietas, humanitas and officium have repeatedly been referred to: they created a value system and a specific kind of social ethics determining the behaviour of the (upper-class) Roman citizen.^{21 * * * ^[2220] Individualism was not his social ideal; on the contrary: he felt obliged to help his friends by lending them money, standing surety or simply giving advice. All this was part of the officium amid,²⁶ and it could matter little whether such help had been specifically solicited or not.
For the Romans, these standards did not pertain to the lofty but non-committal heights of philosophical ideals; and their lawyers, practical and matter-of-fact, did what was necessary to provide favourable conditions for a behaviour along the accepted ethical lines and to protect the position of both parties. Mandatum can be seen in this light, but even more so negotiorum gestio. "It emanated from Roman humanitas. The underlying idea was that a man should help his fellow men in case of emergency. The Romans carried through this idea with their usual common sense without confusing morality and law. Nobody is legally bound to care for the affairs of another; but the law should favour and facilitate such altruistic action by granting the gestor the right to claim reimbursement of his expenses, which, of course, entails a liability of the gestor [himself]. The institution of negotiorum gestio was a happy invention, quite in the bold and original style of the republican jurisprudence."²⁷
It is a prime example of the sober sense of realism with which the Roman lawyers were able to attune law and social ethics to each other and, more specifically, to balance the individualistic interest in not having one's own affairs interfered with and the interests of society in encouraging ethically desirable activities on behalf of others.
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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 value basis of negotiorum gestio

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