Negotiorum Gestio
Negotiorumgestio can be translated as ‘management of affairs'. It is concerned with the situation where one person (the gestor) intervenes, without agreement, in the affairs of another (the principal).
This situation gave rise to possible actions on both sides: the principal could pursue the gestor for compensation for any damÂage the gestor had done; the gestor could pursue the principal to recover his or her expenses. This principle has entered modern systems,[2705] including Scots law.[2706] We can consider this also to be a quasi-contractual situation, as the intervener is acting as if under a contract of mandate[2707] even though no such contract exists. Indeed, there was some tendency for the boundary between mandate and negoÂtiorum gestio to become blurred.The gestor was allowed to claim for recovery of expenditure and for relief of any obligations the gestor had entered into in the interest of the principal.[2708] To justify this claim, the gestor had to show three things: first, that the intervention was reasonable; second, that the intervention was beneficial; and, third, that the gestor’s intentions were not inconsistent with a right to recompense.
As to the first of these, it would be difficult to see the intervention as reasonable if the principal could have acted but chose not to do so. Negotiorumgestio has never been intended to be a licence to interfere in another person's business without proper cause. For this reason, negotiorum gestio claims would normally arise where the principal was mentally incapable[2709] or absent, especially if the intervention took place in an emergency.[2710] This was not absolutely required, however, and sevÂeral texts deal with the situation where the gestor was not acting in an emergency.[2711]
As noted, the intervention had to have been beneficial for the gestor to be entitled to be compensated. This wasjudged at the time of the intervention.
Thus, it was not relevant that the benefit was subsequently lost due to events out- with the control of the gestor. Examples include the gestor shoring up a building to prevent collapse, but the building then burning down; and taking care of a sick slave, who then dies anyway.[2712] In neither case would the fact that the benefit was subsequently lost prevent the gestor recovering his or her expenses.The final requirement, as noted, related to the intention with which the gestor acted. A person intending to make a gift would not be entitled to recompense, and nor would someone acting out of a sense of family obligation (unless there was an intention to be compensated).[2713]
In intervening, the gestor had to exercise a degree of care.Justinian tells us that the gestor had to exercise exactissima diligentia, ‘the most exact diligence'. It was not enough just to apply the normal standard of care that the gestor exercised in his or her own affairs.[2714] In fact, though, we find out elsewhere that the position was more complicated than that. The standard of care varied depending on the situation. Thus, where the gestor had, out of friendship, intervened in an emergency situation, the gestor would be liable only for intentional wrongdoing.[2715] By contrast, where the gestor involved the principal in business that he or she did not normally undertake, the gestor would have to bear losses that arose even in the absence of fault.[2716]