!!Экзамен зачет 2023 год / The Law of Obligations

just the other way round: the gestor's intention was the basis of classical negotiorum gestio, and it was Justinian who abandoned it/'2

(b) Animus negotia aliena gerendi?

The truth seems to lie somewhere in between these two options.63 The animus negotia aliena gerendi does not appear to have been isolated and conceptualized as a specific requirement by the classical lawyers. That he took care, objectively, of a matter pertaining to another person and the gestor's knowledge of this fact: these two elements were often not conceptually separated. Nevertheless, an awareness that he was not (solely) managing his own affairs was usually present, albeit occasionally in a somewhat attenuated form. Thus, the liber homo bona fide serviens,64 acting for his putative dominus, was both entitled and exposed to the actio negotiorum gestorum, even though he had been unaware of his position as a negotiorum gestor.65 The same applied, for instance, where the gestor had erred about the person of the principal66 or where he believed to be entitled to act on account of a mandate.67 But in the Digest we also find at least one case where the subjective element was completely dispensed with:

"Si rem, quam servus venditus subripuisset a me venditore, emptor vendiderit caquc

in rcrum natura cssc desicrit, dc pretio negotiorum gestorum actio mihi danda sit. . . .""s

The purchaser (A) of a slave has sold, in good faith, an object, which the slave had stolen from the vendor (B). The object no longer exists; В therefore claims the price from A. According to Africanus, he can avail himself of the actio negotiorum gestorum. The fact that A believed he was transacting negotium suum does not matter, for objectively he managed another's affair. It is B's business to sell his (own) things. Their pecuniary value therefore is "assigned" (objectively) to B, the owner, not to the gestor, A. Thus it is perhaps not that wrong, after all, if a distinction is often drawn in modern law between negotia which are objectively somebody else's and those which are

62Salvatore Riccobono, Scritti di diritto romano, vol. II (1964), pp. 1 sqq., 73 sqq.

63Ernst Rabel, Studi Bonfante, vol. IV, pp. 279 sqq.; Scilcr, Negotiorum gestio, pp. 22 sqq.;

Kase r, R Pr I , p. 588; ide m, R Pr II, p. 418; Wittmann, op. cit ., note 47, pp. 39 sqq.; but see

65Lab./Paul. D. 3, 5, 18, 2; Ulp. D . 3, 5, 5, 7; Paul. D. 3, 5, 35; Seller, Negotiorum gestio,

pp95 sqq.

6fiUlp. D. 3, 5, 5, 1. 67 Ulp. D. 3, 5, 5 pr.

6 Afr. D. 3, 5, 48. The correct interpretation of this text (interpolated?) is a controversial matter. Cf., most recently, Seiler, Negotiorum gestio, pp. 26 sq.; Mayer-Maly (1969) 86 ZSS

417; D.H. van Zyl, Die Saakwaarnerningsaksie as Verrykingsaksie in die Suid-Afrikaanse Reg

(unpublished Dr. iur. thesis, Leiden, 1970), pp. 29 sqq.; Wollschlager, op. cit., note 5, pp. 43 sq.

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objectively neutral and are "alterius" only on account of the intention of the gestor.69

(c) Utilitas gestionis

It has been emphasized already that neither the voluntariness of the action on the part of the gestor nor purely altruistic motive or amicitia nor absence of the principal was an essential or a fundamental condition for the actiones negotiorum gestorum to arise.70 For the gestor's right of action against the principal (i.e. the so-called actio contraria) there was, however, one further requirement, which is referred to, in the sources, as utilitas gestionis: ". . . is enim negotiorum gestorum, inquit [CelsusJ, habet actionem, qui utiliter negotia gessit."71 We have seen that the recognition of the institution of negotiorum gestio was one of the anti-individualistic traits of Roman law; it entailed a certain curtailment of the principal's autonomy. The utilitas requirement was the main safeguard designed to limit the extent of such curtailment. Some jurists took a very narrow view and were prepared to accept only necessary gestiones; Celsus/Ulpianus even define the useful in terms of what is necessary: ". . . non autem utiliter negotia gerit, qui rem non necessariam vel quae oneratura est patrem familias adgreditur.' '72 Others, however, adopted a more liberal approach and were prepared to grant the claim on the basis of gestiones which had not been strictly necessary.73 It was clear, however, that expenses incurred voluptatis causa (e.g. the ampla aedificia in Mod. D. 3, 5, 26 pr.) could not be recovered. Generally speaking, the Roman lawyers decided the question of utiliter gestum in a casuistic fashion, not according to abstract definitions.74 That could not, of course, satisfy the more conceptually minded scholars of later centuries such as the pandectists, who engaged in a very scholarly and impractical, yet almost relentless debate on the topic. A monograph of 1878 provides an overview of the thirteen (!) most important doctrines.75

As in the case of mandatum, it did not matter whether the endeavours of the gestor were ultimately crowned with success: ". . .

sufficit, si utiliter gessit, etsi effectum non habuit negotium." Example:

Seiler, Negotiorum gestio, pp. 47 sqq.; V an Zyl, Negotiorum gestio, pp. 28 sqq., but also Grotius, In le id ing , II I, XX VII , 1; Stoljar, op. cit. , note 2, nn. 71 sqq.

this difference reflects the dual origin of negotiorum gestio in procuratorship/curatorship on the one hand and cases of emergency help on the other; cf. also pp. 109 sq.

Kipp, § 430, 2 b; for the notion of utility in modern law, cf. Stoljar, op. cit., note 2, nn. 83 sqq.

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"[E]t ideo si insulam fulsit vel servum aegrum curavit, etiamsi insula exusta est vel servus obiit, aget negotiorum gestorum."76

The wishes of the principal, incidentally, do not as a rule seem to have played a role in the assessment of the utilitas of the gestor's action.77 Only in the most extreme case, namely that of negotiorum gestio prohibente domino, was the claim held to be excluded by some of the classical authors.78'7y

6.The actio negotiorum gestorum contraria

(a)Its importance today

The gestor's claims against the principal (as, for instance, laid down in §§ 683, 670 BGB) are today the very core of negotiorum gestio.80 In Germany, between 70 and 80 per cent of all decided cases81 deal with what the Romans only conceived of as the actio contraria. For them, the actio directa of the principal against the gestor was the main claim, and in our sources it occurs as often as the actio contraria. This change of emphasis may be due to the fact that our courts have to deal with different types of situations than the Roman lawyers: in the age of aeroplanes and telecommunications, cases of emergency help for an absent friend, particularly the unsolicited intervention as a defensor in legal proceedings, no longer feature prominently in the law reports. Even in classical Roman law, the procurator no longer acted as a negotiorum gestor, and the activities of the modern equivalent to the Roman curator (furiosi, prodigi or minoris) were governed by a set of special rules and not by negotiorum gestio either. But it highlights, more particularly, that the application of the modern actio contraria presents a variety of tricky problems.82 The controversies surrounding the "utiliter gestum" requirement83 are one example. Two further difficulties in the application of § 683 BGB are, in a manner of speaking, home-made. First of all, the narrow formulation of § 670 (to which

76 Ulp. D. 3, 5, 9, 1. T he same applies in mode rn la w; c( . e . g. Seile r, in: Miinc hen e r Ko m m en ta r, op. cit. , note 3, § 683, n. 16. For the ius co mm une , see V an Z yl, Neg otioru m gestio, p. 42.

77 Cf. Ulp. D. 17, 1, 50 pr. and Seiler, Negotiorum gestio, pp. 59 sqq.; Van Zyl, Negotiorum

duty on the part of the principal to ratify the actions of the gestor (if they were utiliter) seems to have bee n re co gnize d: cf. Bas . Lib. X VII , Tit. I, I X ( He im ba ch , vol. II , p. 210)..

gestor for damage s, and it is therefore often not ne ce ssary to resort to the actio ne gotiorum ge storum dire cta.

нз For modern German law cf. e.g. Seiler, in: Miinchener Kommentar, op. cit., note3, §683, nn. 3 sqq.

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§ 683 refers) has given rise to the same controversy that we have already encountered in our discussion of mandate:84 may the gestor claim only his "outlays" or can he also sue for damages incurred? The prevailing opinion, again, accepts the latter, partly on the basis of an "analogous" application of §§ 683, 670 BGB, and partly on the basis of a general liability for risks, which are related to activities in other peoples' interest.85 One of the most interesting cases where such "outlays" (in reality: damages) were successfully claimed for concerns the selfsacrifice of a motorcar driver: in order to avoid an impending collision with (for instance) a small child who suddenly runs onto the street, he throws around his wheel and steers his car into a tree. This case raises several problems. Are we dealing with a (negotiorum) "gestio"? After all, the driver's reaction was probably purely in the nature of a reflex. Did he "take care of some matter" for the child? After all, had he not avoided the accident, he might well himself have been exposed to liability: not only (in case of negligence) in delict, but particularly under the strict liability of § 7 of the German Road Traffic Act. And finally: can he recover his damages? The Federal Supreme Court has allowed such a claim—not, however, for the full damages, but limited to "reasonable" compensation.86

(b) Remuneration of services rendered?

Secondly, it is unclear under the BGB whether the gestor may ask to be remunerated for the services rendered in the principal's interest. Take the following example:87 a wine-grower is unable, for some or other reason, to look after his vineyard. His neighbour kindly intervenes and takes charge of the cultivation. Had he employed some workers to do the job (and provided he had acted in accordance with the interest and the actual or presumptive wishes of the principal), he would have been able to recover his expenses, especially the wages that he had had to pay. If, however, he does the work himself, he will, according to the BGB, not be able to recover compensation for his services as such: the gestor may demand reimbursement of his outlays "as a mandatary",й8 and the mandatary, as we know, acts gratuitously. Equitable? From the point of view of the Roman lawyers, perhaps. For them, it was in any event not the "done" thing to ask for the payment for services rendered. But that perception has changed: so much so that as early as

4 Cf. supra, pp. 431 sq.

85Cf. e.g. Wollschlager, op. cit., note 5, pp. 286 sqq.; Wittmann, op. cit., note 47,

pp.81 sqq.; Seilcr, in: Munchener Kommentar, § 683, nn. 18 sqq.; Stoljar, op. cit., note 2, n. 69.

56BGHZ 38, 270 sqq. For details and criticism, see Wollschlager, op. cit., note 5,

pp.305 sqq.; Rainer Frank, "Die Selbstaufopfcrung des Kraftfahrers im Strassenverkehr", 1982 Juristenzeitung 737 sqq.

57Franz von Ktibel, in: Werner Schubert (ed.), Die Vorentwurfe der Redaktoren zum BGB,

Recht der Schuldverhahnisse 2 (1980), pp. 978 sq. m % 683 BGB.

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the 19th century, the courts usually allowed the gestor to recover such remuneration.89 The fathers of the BGB had no intention, in fact, of changing this and of reverting to classical Roman law in this regard. They did so inadvertently and due to a drafting mistake.yu Mandatum, according to the first draft, was not gratuitous either;91 and when this was subsequently changed, one forgot to consider the consequences that this change was bound to have for norms such as § 683, which simply refer the reader to the provisions on mandatum. The interpretatio moderna has in the meantime corrected this mistake and has returned, by and large, to the position of the later ius commune.92

7.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)93 is the standard of liability of the gestor. As in the case of mandatum, the question has been disputed: among both modern Romanists94 and the authors of the ius commune.95 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.

89 Wollschlager, op. cic., note 5, pp. 313 sq.

911 Hans Hermann Seiler, "Uber die Vergiitung von Dienstleistungen des Geschaftsfiihrers ohne Auftrag", in: Festschrift fur Heinz Hiibner (1984), pp. 239 sqq.

91Cf. supra, p. 420, note 53.

92Wollschlager, op. cit . , note 5, pp. 311 sqq.; Seller, in: MUnchener Kommentar, op. cit., note 3, § 683, nn. 24 sq.

93In general, see Stoljar, op. cit., note 2, nn. 258 sqq.

94Cf. e.g. Schulz, CRL, p. 621 (liability for omnis culpa); Franz Haymann, "Die Haftung des negotiorum gestor wcgen Verschuldens im klassischen und iustinianischen Recht", in:

Atti del congresso internazionale di diritto roimmo, vol. II (1935), pp. 451 sqq. (liability for dolus only); Arangio-Ruiz, Responsabilitd, pp. 205 sqq. (liability at first only for dolus, but towards the end of the classical period also for culpa). Cf. further Erich Sachcrs, "Die Haftung des

auftragslosen Geschaftsfuhrers", (1938) 4 SDH/309 sqq. and, especially, Hans Hermann Scilcr, "Zur Haftung des auftraglosen Geschaftsfuhrers im romischen Recht", in: Studien im romischen Recht (1973), pp. 195 sqq.

9э Cf. e.g. Gluck, vol. 5, pp. 351 sqq.

96Cf also С 2, 18, 20, 1 (Diocl. et. Max.).

97For what follows, see Seiler, op. cit., note 94, pp. 196 sq.

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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 gradu-

ated 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.

99Also emphasized by Stoljar, op. cit., note 2, n. 26.

100The 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.

102Ulp. D . 3, 5, 3, 9.

103On 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.

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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,106 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.107 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.108

8.Negotiorum gestio in modern law

(a)Evaluation of negotiorum gestio in German law

Over the centuries, the claims arising from negotiorum gestio have been called upon to deal with many totally different types of activity in another person's interest: payment of somebody else's debt, the supply of support for those in need of it, the preservation of property belonging to another, the rescue of life and limb.109 Some of the traditional areas of application have been absorbed by more specialized remedies that have come to be developed;110 on the other hand, new types of situations have had to be accommodated.111 The institution of negotiorum gestio has been flexible enough to cope with such changes and has retained its importance as one of the tools ensuring a fair and

104 Cf. e.g. Gliick, vol. 5, pp. 365 sqq.; Pothier, "Traite" du quasi-contrat negotiorum gestio" (appendix to Traite du contrat d( mandai), nn. 208 sqq.; Windscheid/Kipp, § 430, 1. See also Van Zyl, Negotiorum gestio, pp. 60 sqq.

105Cf. also §§ 234,° 237 I 13 PrALR, art. 420 II OR.

106Cf. also § 249 I 13 PrALR, § 1040 ABGB, art. 420 III OR.

107Cf. § 683 BGB and supra.

The authors of the ius commune debated whether the gestor was liable for culpa levis

or also culpa levissima: cf. the discussion and references in Gluck, vol. 5, pp. 352 sqq., and Hoffmann, Fahrliissigkeit, pp. 44 sq., 63, 95 sq., 143 sqq., 213. The BGB does not draw this distinction; it differentiates only between culpa, culpa lata and diligentia quam in suis (cf. Ǥ 276 sq.).

10 Cf. the general types of situation as listed by Stoljar, op. cit., note 2, nn. 92 sqq.; further Wollschlager, op. cit., note 5, pp. 76 sqq.; Johann Georg Helm, "Geschaftsfiihrung ohne Auftrag", in: Gutachten und VorscMage zur Uberarbeitung des Schuldrechts, vol. Ill (1983), pp. 344 sqq.

110For instance, the problem of the right of recourse of a person who has paid somebody else's debt is often solved today by way of cessiones legis (assignment by operation of law) and similar devices; cf. e.g. Helm, op. cit., note 109, pp. 351 sqq.

111Cf., for example, the self-sacrifice of a motorcar driver, supra, p. 444.

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reasonable allocation of risks. Not surprisingly, its retention in a revised German law of obligations has recently been advocated.112

(b) The individualistic approach of the common law

While both courts and legal writers in Germany are therefore happy to encourage useful activities in the interest of others, Anglo-American law continues to be concerned about officious interloping. Often quoted are the words of Bowen LJ in Falcke v. Scottish Imperial Insurance Co.:

"The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure."115

And the American Restatement of Restitution states equally clearly: "A person who officiously confers a benefit upon another is not entitled to restitution therefor." Or, in the words of John P. Dawson, the great majority of common-law jurisdictions appear to "have done their best to discourage good Samaritans".114 But the contrast between the "individualistic" common law and the humanitas-oriented civil law is (as usual) not really as dramatic as these general statements make it sound. True: the common law does not recognize a doctrine of negotiorum gestio. Nevertheless, in a variety of situations it has developed solutions completely comparable to those evolved by the civilian systems;115 usually, incidentally, on the basis of a bit of civilian infusion.116 Thus, for instance, it is generally accepted that a stranger who has buried a deceased may recover his reasonable expenses from the person primarily responsible for the burial.117 This rule appears to be based on the Roman actio funeraria,118 and it came to England via

112 Helm, op. cit., note 109, pp. 385 sqq. "3 (1887) 34 ChD 234 (CA) at 248.

Voluntary Agent Against His Principal in Roman Law and in Anglo-American Law", (1926) 4 Tennessee LR 34 sqq., 76 sqq.: Peter Birks, "Negotiorum gestio and the Common Law", (1971) 24 Current Legal Problems 110 sqq.; idem, "Restitution for Services", (1974) 27 Current Legal Problems 13 sqq.; Van Zyl, Negotiorum gestio, pp. 170 sqq. On the American Restatement of Restitution (where § 2, due to its prominent position, obscures the fact that in reality it contains a body of rules bearing a considerable resemblance to the civil law) cf. Stoljar, op. cit., note 2, nn. 60 sqq.

1!fl This point has, most recently, been elaborated by Lee J.W. Aitken, "Negotiorum gestio and the Common Law: A Junsdictional Approach, (1988) 11 Sydney LR 566 sqq.

117 fenkins v. Tucker (1788) 1 H Bl 90; Ambrose v, Kerrisem (1851) 10 CB 776; Aitken, (1988) 11 Sydney LR 571 sqq.

11 Closely related to negotiorum gestio; the praetor granted an action to a person who arranged a funeral at his own expense without being obliged to do so (Bcrgcr, ED, p. 343); for details cf. e.g. Ulp. D. 11, 7, 12, 2 sqq.; 11, 7, 14, 7 sqq.; Kaser, RPrll, p. 418; Stoljar, op. cit., note 2, n. 160. Why was this situation not absorbed by the institution of negotiorum gestio? There is a strong public interest in a prompt and proper disposal of the body (cf. Ulp. D. 11,7, 12, 3 "пе insepulta corpora iacerent"); thus the claim lies even if the gestor has acted against the heir's wishes: cf. Ulp. D. 11, 7, 14, 13; Seiler, Negotiorum gestio, pp. 89 sq. In later

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the jurisdiction of the medieval ecclesiastical courts.114 From the Italian Law Merchant the Courts of Admiralty have adopted the principle that those who rescue persons or property from the perils of the sea should be rewarded.120 Most importantly, however, there is the doctrine of "agency of necessity", according to which, in certain emergency situations, one person may render useful services to another without having been requested to do so, and receive compensation for those services.121 This doctrine, too, is historically based on maritime usages, for it finds its origin in the power available to the master of a ship in an emergency to deal with the ship or her cargo outside the ordinary scope of his authority.122 From there it has been extended to other cases where one party, by intervening on the other's behalf in an emergency, has gone beyond an existing authority. The agent, under these circumstances, is usually said to have had the implied authority of the dominus negotii to act as he has done.123 But contract is not really a satisfactory basis for the doctrine of agency of necessity.124 That becomes abundantly clear, for instance, in cases where necessaries are supplied to persons unable to provide for themselves and where the supplier has in fact been granted a restitutionary claim.125 What we are dealing with is not a kind of "agency" but a nascent doctrine of necessitous intervention.126

(c) Rescue cases

Even in rescue cases, the Good Samaritan under the common law is not as unprotected as might appear at first blush. For if the act of rescue can be construed as the supply of necessaries, the rescuer falls under the

centuries, actio funeraria and negotiorum gestio merged; today, § 679 BGB takes care of the problem, when it states: "The fact that the management ot the matter is opposed to the wishes of the principal is not taken into consideration if, without the management of the matter, a duty of the principal, the fulfilment of which is of public interest, . . . would not be fulfilled in due time."

119 Stoljar, op. cit., note 2, nn. 58, 161.

'"° Holds worth, vol. VIII, pp. 269 sqq.; for details of the modern law cf. Goff and Jones, Restitution, pp. 280 sqq. On maritime salvage in Roman-Dutch law, see Van Zyl, Negotiorum gestio, pp. 14, 74 sqq.

121Stoljar, op. cit., note 2, n. 58. For details, see, for example, Goff and Jones, Restitution, pp. 264 sqq.; Aitken, (1988) 11 Sydney LR 585 sqq., 591 sqq.

122Goff and Jones, Restitution, p. 264; for the historical background, see Holdsworth, vol. VIII pp. 248 sqq.

]2i Cf. e.g. Buckland/McNair, p. 336.

124Cf. for example, the criticism by Goff and Jones, Restitution, p. 267; Stoljar, op. cit., note 2, n, 136.

125In re Rhodes (1890) 44 ChD 94 (CA); for further details, see Stoljar, op. cit., note 2, nn.

134 sqq.

12f' Goff and Jones, Restitution, pp. 278 sq.; cf also Aitken, (1988) 11 Sydney LR 566 sqq.,

who points out that the historical connection between the—at first blush—rather * heterogeneous instances in which English law permits the recovery of expenses of those who Люе intervened without prior solicitation in the affairs of others is jurisdictional: they were alronnected with either the Court of Admiralty or with the ecclesiastical courts. These coins were controlled by civilian-oriented jurists who therefore had no hesitation to draw upomhe doctrine of negotiorum gestio.

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doctrine just mentioned. More importantly, however, the law of delict has been used to alleviate the rescuer's position. Here, too, the AngloAmerican courts have moved away from the highly individualistic idea of rescue as constituting an infringement of a person's private autonomy to decide about his own fate; they are now quite prepared to grant a claim in damages if the rescuer is injured while trying to remove a danger caused, either intentionally or negligently, by the person to be rescued.

"Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong also to his rescuer. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."127

These are the words of Cardozo and they show that neither the defence of volenti non fit iniuria nor the plea of novus actus interveniens is able any longer to defeat the rescuer's claim for the damages sustained. Civil-law jurisdictions such as Germany or South Africa grant relief to the rescuer by way of negotiorum gestio.128 The actio negotiorum gestorum contraria, obviously, goes further than the claim in delict, in that it is applicable irrespective of whether the rescuee may be blamed for the danger in which he finds himself or whether this was due to vis maior, There is, however, at least one type of situation where negotiorum gestio does not always provide a satisfactory and suitable solution: the rescue of a person attempting to commit suicide. Where

such an attempt is not just a cry for help, but is based on a serious desire to end one's own life,129 the rescuer can hardly be said to have acted "in

accordance with the . . . actual or presumptive wishes of the principal",130 Here the civil law can in turn draw on the experiences gathered in the common law with rescue claims in delict.131

127Wagner v. International Railway Co. 232 NY 176, 133 NE 437 (1921) at 437 sq. Cf. further e.g. Haynes v, Harwood [1935] 1 KB 146 (CA).

128Cf. e.g. Wollschlager, op. cit., note 5, pp. 284 sqq.; Wittmann, op. cit., note 47, pp. 65 sqq.; A.K. Blommaert, "Negotiorum gestio and the Hfe-rescuer", 1981 TSAR 123 sqq., 127 sqq. For a comparative analysis relating to rescue of life or limb cf. Stoljar, op. cit,, note 2, nn. 242 sqq.

139The latter situation is a comparatively rare phenomenon in life, although it dominates in philosophical discussions about suicide (according to Camus, Le Mythe de Sisyphe, p. 15, the only question that really matters), and particularly in theatre, opera and literature. In reality, attempted suicides are the rule, and they cannot simply be regarded as failures to commit suicide. As a rule, it is a very ambivalent will that underlies the suicidal act. For further

information, see Reinhard Zimmermann, "Self-Determination, Paternalism Human Care?", 1979 ТЙЛЙ 183 sqq. On suicide in Roman law, see Andreas Wacke, Selbstmord im romischen Recht und in der Rechtsentwicklung", (1980) 97 ZSS 26 sqq:

130§ 683 BGB.

131Reinhard Zimmermann, "Der Selbstmord als Gefahrdungssachverhalt—Aufwen- dungsodcr Schadensersatz fur den Retter?", 1979 Zeitschrift fur das gesamte Familienrecht>*

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