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p794 Negotiorum Gestorum Actio

Article by George Long, M.A., Fellow of Trinity College
on p794 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

NEGOTIO′RUM GESTO′RUM A′CTIO. This was an action which a man might have against another who had managed his affairs for him in his absence, without being commissioned to do so (sine mandato). The action was not founded either on contract or delict, but was allowed for convenience sake (utilitatis causa). The person whose business was transacted by another, and the person who transacted the business, might severally have an action against one another in respect of that which "ex bona fide alterum alteri praestare oportet." The dominus negotii had a negotiorum gestorum actio directa. The action of the self-constituted agent (gestor) was sometimes called Contraria, by analogy to similar actions in other cases. He was bound to make good any loss that was incurred during his administration by dolus or culpa, and in some instances even loss that had been incurred by casus. On the other hand, he had his action for all expenses properly incurred, and in some cases, even if the result was unfortunate to the absent person; as if he paid for medical attendance on a sick slave, and the slave died notwithstanding all his care: but various difficulties might easily be suggested as to such cases as these (Dig. 3 tit. 5 s10), and the rule must be qualified by the condition of the thing undertaken being a thing necessary (to the owner) to be undertaken, though the result might be unprofitable. It was also necessary that the gestor should have undertaken the business not with the view of doing it for nothing, be with the intention of establishing a right against the negotii dominus, though that might not be the immediate motive to undertaking the thing (Savigny, System, &c. III. p6, note 9). There was, however, no negotiorum gestorum actio contraria, if the gestor had done the acts that he did, with the clear intention of doing an act of Liberalitas or Pietas. The edict allowed a man to recover the expenses that he had been put to about another man's interment, though he had no direct authority for looking after it. The reason of the rule was, that persons might not be prevented from attending to so necessary a matter as the interment of a corpse, if there was no person present to whom the duty belonged (Dig. 11 tit. 7 De Relig. et Sumptibus funerum).

It was a much disputed question what was the effect of Ratihabitio on the negotiorum gestio, whether it was thereby turned into a Mandatum (see Vangerow, Pandekten, &c., III. p483). The dominus was not bound by the negotiorum gestio, except when the acts done were such as were necessary to prevent some imminent loss or damage to his property, as already observed. But he might, if he pleased, confirm the negotium, though it was male gestum.

(Inst. 3 tit. 27 s3, &c.; Dig. 44 tit. 7 s5; Dig. 3 tit. 5 De Negotiis Gestis; Cod. 2 tit. 19; Vangerow, Pandekten, &c. III. p479.)


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