Private Law Theory

Abstract:
The field of negotiorum gestio is perplexing. In civil law, its doctrinal, policy, and economic foundations are far from clear. In common law, the concept even seems to be inexistent. Nevertheless, in common-law as under civil-law doctrine, certain situations of intervention in another’s affairs are acknowledged as establishing claims of an intervening party against the other side or vice versa. Whether these cases are formally treated under the rubric of negotiorum gestio or not, the practical relevance of the field cannot be denied, lest the search for a consistent system be neglected. Of the many fundamentals that still await clarification, one of the most pertinent is the question of how to draw the line between contract law and negotiorum gestio (or its equivalents in common law). A comparative look at different jurisdictions and the fields’ structural foundations reveals that there not only exists a wide-reaching similarity in practical outcomes, but that the underlying policy is almost universally founded on a uniform economic basis — even though arguments of this kind are seldom made explicitly.

Dornis, Tim W, The Doctrines of Contract and Negotiorum Gestio in European Private Law: Quest for Structure in a No Man’s Land of Legal Reasoning (2015). Restitution Law Review, Vol. 23, 2015.

First posted 2017-06-22 07:08:18