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Article

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Negotiorum Gestio in Roman and Modern Civil Law, 13 Cornell Law Quarterly 190 (1928)

Abstract

In Anglo-American law, a person intervening in the affairs of another will be responsible to the other party for any damage done in consequence of such intermeddling, but will derive no rights as a result thereof. Only when the intervention in another's affairs is dutiful, as Woodward calls it, that is, is required by a sense of duty, though not by law, will the intervener by entitled to compensation if he has conferred a benefit for which the recipient ought to pay. Quite a different attitude with reference to the intervention in other's affairs, without mandate, is maintained by the civil law. Its doctrine of negotiorum gestio goes back in origin, it appears, to the praetorian edict in Rome, which regulated the rights of parties who had carried on litigation on behalf of absent friends. In the course of time the rights and duties created by this edict were extended to ' other kinds of intervention in the affairs of others. Justinian says concerning the purpose of negotiorum gestio in Institutes 3, 27, I : "Thus, if one man has managed the business of another during the latter's absence, each can sue the other by the action on uncommissioned agency; the direct action being available to him whose business was managed, the contrary action to him who managed it. It is clear that these actions cannot properly be said to originate in a contract, for their peculiarity is that they lie only where one man has come forward and managed the business of another without having received any commission so to do, and that other is thereby laid under a legal obligation even though he knows nothing of what has taken place. The reason of this is the general convenience; otherwise people. might be summoned away by some sudden event of pressing importance, and without commissioning any one to look after and manage their affairs, the result of which would be that during their absence those affairs would be entirely neglected; and of course no one would be likely to attend to them if he were to have no action for the recovery of any outlay he might have incurred in so doing."

Date of Authorship for this Version

1928

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Civil Law Commons

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