!!Экзамен зачет 2023 год / The Law of Obligations

"Exceptione, quac tibi prodesse debebat, usus iniuria iudicis damnatus es: nihil tibi praestabitur iure mandati, quia iniuriam, quac tibi facta est, penes te manerc quam ad alium transferri aequius est."131'

A stood surety for B. The creditor's claim may be countered by an exceptio, of which A, when sued by the creditor, in fact avails himself. The judge, however, nevertheless condemns A. According to Paulus, it is more equitable to let the loss lie where it has fallen than to shift it to the mandator. It is thus the mandatarius who carries the risk of the judge's mistake. If not in line with utility considerations, this decision is certainly in accordance with the principle of "casus a nullo praestantur".137

(c) The ius commune

Since the Middle Ages, jurists and (later) legislators have battled with this problem — and particularly with the confusing state of the sources — and have tried to apply and generalize either Julian's or Paul's

view. Thus, for instance, during the 19th century the latter prevailed: the mandator was to be liable for dolus and culpa but not for casus.138

This was in accordance with the general emphasis of the pandectists on fault. § 670 BGB appears to proceed from the same premise, for it grants the mandatary a claim only for outlays incurred in the course of carrying out the mandate, not for damages suffered.139 This means that damages may be claimed only according to general principles, that is, if there was fault on the part of the debtor.

However, over the centuries many writers took the opposite view. "Nee hie § de curialitate debet servari" says, for instance, the gloss apropos Paul. D. 17, 1, 26, 6,140 which is very similar to what, some centuries later, Groenewegen stated the Roman-Dutch law to be.141 Voet, after pointing out that Roman law required fault on the part of the mandator and did not otherwise allow the mandatarius to recover

nfi Paul. D. 46, 1, 67. Sedes materiac has traditionally been taken to be Paul. D. 17. 1, 26, 6: "Non omnia quac impensurus поп fuit mandatori imputabit, veluti quod spoliatus sit a latronibus aut naufragio res amiserit vel languore suo suorumque apprehensus quaedam crogaverit: nam haec magis casibus quam mandato imputari oportet." For a discussion, see Peter Stein, "Julian and liability for loss suffered in the execution of a contract in Roman law", 1956 Butterworths South African LR 67 sq.; Watson, Mandate, pp. 157 sqq.; Heinrich Honsell, "Die Risikohaftung des Geschaftsherrn", in: De iustitia et hire, Festgabe fur Ulrich von Liibtow (1980), pp. 488 sqq.

137Ulp. D. 50, 17, 23 in fine.

138Cf. Hasse, Culpa, p. 403; Arndts, Pandeklen, § 293; Baron, Pandekten, § 306 II 2; Dernburg, Pandekten, vol. II, § 116, 2 b; but cf. e.g. Donellus, Commentarii dejure Civili, Lib. XIII, Cap. XII, XV; Gliick, vol. 15, pp. 307 sqq.

139But see the comment in "Motive", in: Mugdan, vol. II, p. 302; "Protokolle", in: Mugdan, vol. II, pp. 951 sqq.

Gl. Mandato ad D. 17, 1, 26, 6; contra e. g. Bartolus, Contmentaria, ad lib. XVI Digest.:

"Vult glossa dicere, quod iste § de aequitate non debct servari: quia aequitas rigon praefertur .

. . quod non est verum hie: cum rigor iuris huius § sit scriptus, et ideo tenendus, licet duritiam contineat: non obstantc aequitate, quia non est scripta." 141 Tractatus de legibus abrogatis. Lib. XVII, Tit. I, 1. 26, 6.

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his loss, simply said: "Sed hodie mandatario ex aequitate hie quoque succurendum putant."142 But did this mean that the mandator bore the full risk, including any kind of casus fortuitus? The most interesting and, in the long run, influential criterion for limiting the mandatarius' liability appears to have had its origin in the Rationalia ad Pandectas of Antonius Faber, where he grants the claim only for those damages which the mandatarius suffered ex causa mandati.143 The natural lawyers elaborated this idea more fully and distinguished between loss sustained ex causa mandati or merely ex occasione mandati.

"Idem quoque dicendum videtur", wrote Pufendorf,1-*4 "dc damno in quo quis ex causa rei rnandatae incidit: non tamen dc illo, in quo tantum ex occasione eiusdem prolapsus cst. adeoque ilia dumtaxat damna crunt a mandante sarcienda, quac proprie ex ipsa ncgotio mandate profluxere: non autem, quae vclut transversim intercurrerunt, dum ncgotium istud obitur."

This distinction found its way into the ABGB145 and also, probably via Pothier,146 into the code civil (although, strangely, the wrong way round).147 We also find it in modern German law, where the narrow confines of § 670 BGB were soon left behind by courts and legal writers.]w The principle of a liability (not based on fault) for risks arising from and connected with activities undertaken by another person in the debtor's interest, is widely acknowledged today.144 "Ex occasione mandati" therefore refers to what one could call the general risks of life, which must, as usual, be borne by the gestor himself. He can therefore not claim damages for an accident which is not specifically related to the gestio, even though it may be causally linked to it.

142Cotmnentarius ad Pandectas, Lib. XVII, Tit. I, XIII.

143Lib. XVII, Tic. I, 26, 6 (vol. IV, Gencvae, 1626).

144De jure naturae et gentium, Lib. V, Cap. IV. § 4.

145§ 1014 ABGB. Cf. also Windscheid/Kipp, § 410, 2.

14() Trails du central de mandat, nn. 74 sq.

147 Art. 2000 code civil provides for the recovery of damages which arose a {'occasion de la yestion. Perhaps, this is not based on a mistaken analysis of Pothier, buc on Domat, Les loix \iviles, Liv. I, Tit. XV, Sec. II, VI. Cf. also Going, p. 463.

14H Cf. e.g. Honsell, Festgabe von Liibtow, pp. 495 sqq.

144 Claus-Wilhelm Canaris, "Risikohaftung bei schadensgeneigter Tatigkeit in fremdem Interessc", 1966 Recht der Arbeit 41 sqq.; Klaus Genius, "Risikohaftung des Gcschaftsherrn",

(1973) 173 Archiv fur die civilistische Praxis 481 sqq.

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CHAPTER 14

Negotiorum gestio

1. Negotiorum gestio and mandatum

(a) Similarities

Negotiorum gestio, in the German Civil Code, follows immediately upon mandate.1 Both institutions, indeed, have much in common.2 In both cases one person (the mandatarius/the gestor) manages somebody else's (the mandator's/principal's) affairs. As in mandate, the scope of matters which the gestor can take care of for the principal is very broad; they may be of a factual or of a legal nature.3 As in mandate, the (negotiorum) gestor must, however, not have acted solely in his own interest. The negotium has to be alienum, or alterius; it may be alienum et suum, but it may not be suum tantum.4 Like mandate, negotiorum gestio gives rise to an imperfectly bilateral relationship. There is, first of all, an actio directa, by means of which the principal may sue the gestor for damages in case of mismanagement and for the restoration of whatever the latter might have acquired in the course of executing the gestio.5 The gestor, on the other hand, may avail himself of the actio negotiorum gestorum contraria, if and when he has incurred any expenses or suffered damages.6 So close are the parallels between the mutual claims of gestor/principal and mandatarius/mandator that the BGB, in fact, refers the reader in its title dealing with negotiorum gestio to what has been laid down with regard to mandatum.7 As a consequence, the same problems have to be solved in both areas, particularly those arising from the narrow formulation of § 670 BGB.

(b) Difference

The main difference between mandatum and negotiorum gestio is that

1Book II, Section VII, Title X: Mandate; Title XI: Negotiorum gestio.

2Cf. generally on the relationship between negotiorum gestio with contract and mandate

S.J. Stoljar, "Negotiorum gestio", in: International Encyclopedia of Comparative Law, vol. X,

17(1984). nn. 6 sqq.

"For Roman law cf. Seller, Negotiorum gestio, pp. 10 sqq.; for modern German law: Hans Hermann Seiler, in: Miinchener Kommentar гит BGB, vol. Ill, 2 (2nd ed., 1986), § 677, n. 2; for Roman-Dutch law: D.H. van Zyl, Negotiorum gestio in South African Law (1985) pp. 11 sqq.

For Roman law cf. Seller, Negotiorum gestio, pp. 16 sqq.; for modern German law:

Seiler, in: Miinchener Kommentar, op. cit., note 3, § 677, nn. 3 sqq.

5 For Roman law, see Kaser, RPr I, pp. 589; for modern German law: Christian

Wollschlager, Die Gescliajisft'ihrittig oime Aitftrag (1976), pp. 262 sqq. and § 681 BGB; for Roman-Dutch and South African law: Van Zyl. Negotiorum gestio, pp. 49 sqq.; generally: Stoljar, op. cit., note 2, nn. 258 sqq.

For Roman law: Kaser, RPr I, p. 590; for modern German law c{. § 683 BGB and Seiler, in: Miinchener Kommentar, op. cit., note 3, § 683, nn. 1 sqq.; for Roman-Dutch and South African law: Van Zyl, Negotiorum gestio, pp. 67 sqq.; generally: Stoljar, op. cit., nn. 66 sqq.

7 Cf. § 681 referring to §§ 666-668 and § 683 referring to § 670 BGB.

433

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the one is a contract, the other an obligational relationship ex lege. The right-duty connection between gestor and principal, in other words, is not based on any kind of agreement but arises from the mere fact of the negotiorum (alterius) gestio.8 As in the case of enrichment, we are dealing here with autonomous obligations which are neither contractual nor delictual, but fall somewhere in between these main categories.y Justinian therefore accommodated both of them in a special title dealing with obligationes quasi ex contractu;1" quasi ex contractu, because even though they are not contractual, they derive from a lawful activity and give rise to claims which are more closely related to contract than delict. We have already seen that later centuries did not always look with much kindness on the quasi-contracts as a separate systematic entity, and that there was a tendency to amalgamate them with the contractual obligations.11 Thus, one had to find (or construe) a consensual element, a consensus fictivus or praesumptus. In the case of negotiorum gestio the animus negotia aliena gerendi of the gestor (of which we find traces in the Roman sources) was emphasized as a special and indispensable requirement,12 and likewise the actual or presumed will of the principal that the gestor should act for him. Thus, negotiorum gestio could conveniently be based on the corresponding intentions of the two parties. This (mis-)conception, incidentally, still

H May the dominus ncgotii, by way of ratification (ratihabitio), transform what was originally (or might have been) negotiorum gestio into a contract of mandatum? In postclassical andjustinianic times, it was evidently thought that he could. Cf, most clearly, Ulp. D. 46, 3, 12, 4 (". . . rati enim habitio mandato comparator"); Ulp. D. 50, 17, 60: "Semper qui non prohibet pro se intervenire, mandare creditur. sed et si quis ratum habuent quod gestum est, obstringitur mandati actione" (both texts itp.). Ratihabitio, in other words, provides the basis for a (fictitious) consent. In classical Roman law, however, ratihabitio was not of much significance. More particularly, for the granting of the actio negotiorum gestorum contraria it did not matter whether the principal had subsequently approved the transaction; what mattered was whether the gestio had been "utiliter", Ratihabitio could, however, limit the gestor's liability where negotium had been "male gestum" (Pomp./Scacv. D. 3, 5, 8); in certain other instances it could have the effect of bringing into existence a relationship of negotiorum gestio (esp.: collection of debts owing to the principal; С 2, 18, 9: "Si pecuniam a debitore tuo Iulianus exegit eamque solutionem ratam habuisti, habes adversus eum negotiorum gestorum actioncm" (Ant.)), but never of mandatum (for all details, see Seller, Negotiorum Gestio, pp. 61 sqq.). Confusion in the sources, as usual, created confusion amongst the writers of the ius commune. Some related ratihabitio to mandatum, others to negotiorum gestio, and there were even those who abandoned the mutual exclusivity of both these institutions and maintained elective concurrence of the actions arising from mandatum and negotiorum gestio as a consequence of ratihabitio. Cf. Gluck, vol. 5, pp. 333 sqq.; Van Zyl, Negotiorum gestio, pp. 20 sq.

9On Negotiorum gestio and quasi-contract generally, see Stoljar, op. cit., note 2, nn. 11 sqq.

10 Inst. Ill, 27.

1 Cf. supra, pp. 20 sq. The same tendency is already apparent in post-classical, Byzantine law. Thus, the establishment of a duty, on the part of the principal, to ratify the actions of the gestor is an attempt to assimilate negotiorum gestio and contract. Cf, also Ulp. D. 50, 17, 60 (first sentence).

12 Cf, for example, Ruhstrat, "Beitrage zur Lehre von der Negotiorum Gestio", (1849)

32 Archiv fur die civitistische Praxis 184 sqq.

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lingers on in modern German doctrine, which tends to assign undue importance to these subjective elements.13

2. The value basis of negotiorum gestio

The institution of negotiorum gestio is a highly original creation of classical Roman14 law which has been handed down to us, via Justinian15 and the ius commune, without major changes. The BGB in particular follows Roman law very closely in this respect.16 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,17 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.18 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.19 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.20 "Culpa est immiscere se rei ad se non pertinenti": this statement, attributed to Pomponius,21 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,22 and thus their private law showed many essentially individualistic traits. But just as in the Roman conception of liberty certain limitations were inherent,23 so individualism never reigned supreme.24 Fides, amicitia,

- Cf. the discussion in Wollschlager, op. cit., note 5, pp. 44 sqq. Thus, for instance, the requirement that the gestor must have acted in accordance with the interest and the actual or presumptive wishes of the principal, which § 683 BGB Says down for the actio negotiorum gestorum contraria, has very often been promoted to a general requirement for negotiorum gestio. Critical (apart from Wollschlager) also, for example, Seller, in: MUnchener Kommentar, op. cit., note 3, § 677, n. 43.

14This is also emphasized, for instance, by Schulz, CRL, p. 624; Stoljar, op. cit., note 2, nn. 1 sqq., 24 sqq.

ь Seiler, Negotiorum gestio, pp. 332 sqq.; Kastr, RPr I I , pp. 417 sq.

16 As to Roman-Dutch and South Africa law, cf. Van Zyl, Negotiorum gestio, p. 8 (". . .except to a very limited extent, the South African law of negotiorum gestio is the same as that recognized by the law of Justinian"). On negotiorum gestio in Louisiana, seeJ.M. Solis, "Management of the Affairs of Another", (1961-62) 36 Tulane LR 108 sqq.

ь De jure be lli ac pads, Lib. I I , Cap. X , 9.

18 § 228 I 13 PrALR; § 1035 ABGB. French law. on the other hand, recognizes the negotiorum gestio; cf. artt. 1372 sqq. code civil and Stoljar, op. cit., note 2, nn. 31 sqq.

Cf. e.g. John P. Dawson, Unjust Enrichment (1951), pp. 139 sqq.; Stoljar, op. cit., note 2, n. 17.

20 John P. Dawson, "Negotiorum gestio; The Altruistic Intermeddler", (1961) 74 Harvard LR 817.

21 D. 50, 17, 36. Z2 Schulz, Principles, pp. 140 sqq. 2i Schulz, Principles, p. 140.

~4 Schulz, Principles, p. 238 even maintains that " 'Roman individualism' is nothing but a legend".

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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.25 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.

3. 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 posscssioncm 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 have

2:1 Cf. e.g. Schulz, Principles, pp. 189 sqq., 223 sqq.; Wieacker, Vom romischen Recltt, pp. 14 sqq.; more specifically for negotiorum gestio: Theo Mayer-Maly, "Problcme der negotiorum gestio", (1969) 86 ZSS 420 sqq.

aCf. supra, e.g. pp. 115, 119, 131.

27 Schulz, CRL. p. 624.

2SUlp. D. 3, 5. 1.

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been an old and important field of application for negotiorum gestio;29 representation in litem features particularly prominently among the cases contained in the Digest, the gestor usually acting as defensor for the absent defendant.30 Other groups of cases, too, tie in with the rationale given by Ulpianus: those, for instance, where the gestor discharges the principal's obligation,31 or where he stands surety on his behalf.32 But then we also see various gestores collecting debts,33 purchasing farms or selling slaves for somebody else:34 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.35 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.36 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.37 They seem to have been less broadly framed; in particular,

29 Moritz Wlassak, Zur Geschichte der negotiorum gestio (1879), pp. 39 sqq.; Seller, Negotiorum gestio, pp. 2 sq., 11 sq., 38 sq.; 47 sq.

* Iul. D. 5, 1, 74, 2; Pap. D. 3, 5, 30, 2; Pap. D. 3, 5, 30, 7; Paul. D. 3, 5, 40 ct al. The gestor ■was thus avoiding missio in bona and, as its consequence, infamia.

35 Seller, Negotiorum gestio, e.g. pp. 314 sqq.; Kaser, RPr I, p. 587. On procuratio and negotiorum gestio specifically, see Watson, Obligations, pp. 193 sqq.; Seller, Negotiorum gestio, pp. 104 sqq.

% Cf. Lenel, EP, p. 105.

37 The early history of negotiorum gestio and, particularly, of the formulae is largely a matter of conjecture. Much of what is simply stated in the text has been disputed. Thus, for instance, according to Magdelain, Consensualisme, pp. 181 sqq., there was only the iudicium ex iure civili; the formulae in factum conceptae never existed. Hans Kreller, "Das Edikt de negotiis gestis in der Geschichte der Geschaftsbesorgung", in: Festschrift Paul Koschaker, vol. II (1939), p. 207 sqq. and Vicenzo Arangio-Ruiz, // mandate in diritto romano (1949), pp. 29 sqq. maintain that the civilian iudicium was older than the praetorian one. Josef Partsch, Studien гиг negotiorum gestio (1913), pp. 34 sqq. has argued that the iudicia based on negotiorum gestio were narrowly defined (negotia absentis; sine mandatu); in all other cases actioncs utiles were granted. Against these and other hypotheses, see Seller, Negotiorum gestio, pp. 316 sqq.

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they probably required management of negotia absentis.38 It is likely that these iudicia 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.39 We are not certain whether they continued to exist, side by side with the more modern bonae fidei iudicium; but if they did,40 they cannot have been of much practical importance any longer and their requirements were probably assimilated with those of the bonae fidei actions.41 The latter, in any event, dominated the scene.

4. The range of application of negotiorum gestio

"Quod As As 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.42 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.43 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.45 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

38 Seilcr, Negotiorum gestio, pp. 47 sqq.; 320 sq.

34 Cf. Ulp. D. 3, 5, 3 pr. (containing, possibly, originally the word "absentis" in the place of "alterius").

40Owing to their conservatism?: Mayer-Maly, (1969) 86 ZSS 419.

41Seiler, Negotiorum gestio, pp. 48 sqq., 323 sqq.; Kaser, RPrl, p. 589.

42See, too, Seiler, Negotiorum gestio, pp. 3 sq.

43"Die Mcnschenhulfe im Privatrecht", (1887) 25» 42 sqq. Cf. also Ernst Rabel, "Ausbau oder Verwischung des Systems? Zwei praktische Fragcn", (1919-20) 10 RheinZ 94 sqq.

44 For the se and furthe r e xample s, se e Wollschlage r, op. cit . , note 5, pp. 24 sq.

4э For details Wollschlager, op. cit., note 5, pp. 28 sqq.

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him;46 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.47 This shows that genuine altruism is both an unrealistic and an unhandy criterion to determine the scope of application of negotiorum gestio.48 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,49 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".50 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.51 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.52

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.53 But it was not only excluded by the contractual relationship of mandatum; it was subsidiary in a broader sense.54

46In modern German law, this is true even in many rescue cases, for according to § 323 с StGB, everybody is under a duty to render aid in an accident or common danger or emergency situation where aid is needed and may be expected under the circumstances.

47So called "Auch-gestioti": Seller, in: Milnchener Kommenlar, op. cit., note 3, § 677, nn. 9, 15; Roland Wittmann, Begriffund Funktionen der Geschaftsfiihrung ohne Auftrag (1981), pp. 10 sqq.; Werner Schubert, "Der Tatbestand der Geschaftsffihrung ohne Auftrag", (1978) 178 Arckivjur die civilistische Praxis 425 sqq., 439 sqq.; Karl-Heinz Gursky, "Der Tatbestand der

Geschaftsfuhrung ohne Auftrag", (1985) 185 Archiv jiir die civilistische Praxis 13 sqq.

4R For further criticism of the theory of human help cf. Wollschlager, op. cit., note 5,

pp.28 sqq., 38 sqq.; Stoljar, op. cit., note 2, nn. 19 sqq.; Seiler, in: Miinchener Kommentar, op. cit., note3, Vor §677, n. 1; § 677, n. 12.

49Seiler, Negotiorum gestio, pp. 38 sqq.

50Ulp. D. 3, 5, 3, 10. For all details, see Seiler, Negotiorum gestio, pp. 40 sqq.

51Ulp. D. 3, 5, 5 pr.

32 Cf. e.g. Paul. D. 3, 5, 33; for details see Ernst Rabel, "Negotium alienum und animus", in: Studi in onore di Pietro Bon/ante, vol. IV (1930), pp. 296 sqq.; Seiler, Negotiorum gestio, pp. 42 sqq. The gestor, under these circumstances, was presumed not to have acted with the intention of recovering his expenses. On the animus recipietidi (as opposed to the animus donandi) as a requirement for the actio negotiorum gestorum contraria, see Gluck, vol. 5, pp. 345 sqq., 383 sq.; Windscheid/Kipp, § 430, 2; Van Zyl, Negotiorumgeslio, pp. 33, 37 sqq.; but see also Fritz Pringsheim, "Animus donandi", (1921) 42 ZSS 310 sqq. Today cf. § 685 BGB: "The manager does not have any claim if he did not have the intention to demand compensation from the principal. If parents or grandparents furnish maintenance to their descendants, or the latter to the former, it is to be presumed, in case ot doubt, that there is no intention to demand compensation from the recipient."

53 Stoljar, op. cit., note 2, nn. 6 sqq. S4 Mayer-Maly, (1969) 86 ZSS 418.

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Tutela, for instance, concerned the management of another's affairs and so did negotiorum gestorum pro tutore. Yet, the iudicia negotiorum gestorum were not applicable, for the Roman lawyers had developed special remedies to deal with these relationships.55

5.Requirements of the actio negotiorum gestorum

(a)"Taking care" of a "wgotium" "for another"

We now have to turn our attention to further details relating to the actiones negotiorum gestorum directa and contraria. Basically, there had to be a gestio and a negotium which was being taken care of. The concept of negotium was understood in a most liberal sense and comprised factual and legal acts, but predominantly the latter. Most importantly, however, it had to be the principal's affair, negotium alterius. This meant, as we have already seen, that it could not be negotium suum of the gestor; a transaction in the nature of a negotium commune, however, did not exclude negotiorum gestio.56 Was it necessary, apart from that, for the gestor to have acted with the intention of managing somebody else's affair? The question of how to determine when the gestor acted "for another" (these the words of the German Code)57 is not even clear in modern law. Of the two most recent monographs on the topic the one proceeds from an objective,58 the other one from a subjective point of view.59 What matters, according to Wollschlager, is to whom the law attributes the benefits and expenses of this particular type of activity, into whose "sphere of attribution" they fall. Wittmann, on the other hand, insists on the gestor's intention as the relevant criterion.60 Both these approaches have also been read into the Roman sources. Whereas Josef Partsch61 argued that classical Roman law stuck to an objective concept of negotiorum gestio and that the Byzantine lawyers were the first to introduce the requirement of an animus negotia aliena gerendi on the part of the gestor, Salvatore Riccobono has tried to show that it was

^ For a detailed discussion on tutela/pro tutela and negotiorum gestio, sec Seiler, Negotiomm gestio, pp. 145 sqq., 208 sqq. 1 Seiler, Negotiorum gestio, pp. 16 sqq. 5_7 § 677 BGB.

эН Wollschlager, op. dr., note 5, pp. 52 sqq. 54 Wittmann, op. at., note 47, pp. 18 sqq.

60This is the view that dominated during the centuries of the ius commune. Intention to act as a negotiorum gestor has been an essential requirement from the days of the glossators, via the Roman-Dutch authors down to modern South African law: Van Zyl, Negotiorum gestio, pp. 34 sqq.; cf. further Wittmann, op. cit., note 47, pp. 48 sqq. Many of the pandectists, however, do not mention the animus negotia aliena gerendi among the requirements of negotiorum gestio; cf. Cluck, vol. 5, p. 345; Vangerow, Pandekten, § 664; Arndts, Pandekten, §§ 297 sq.; Dernburg, Pandekten, vol. II, § 122.

61Aus nachgelassenen und kleineren verstreuten Schriften (1931), pp. 88 sqq.

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