Benevolent Intervention in Another's Affairs

Transcription

1 Principles of European Law Benevolent Intervention in Another's Affairs Bearbeitet von Christian von Bar 1. Auflage Buch. XXX, 417 S. Hardcover ISBN Format (B x L): 16,5 x 24,5 cm Gewicht: 814 g Recht > Zivilrecht > Internationales Privatrecht > Europäisches Privatrecht Zu Leseprobe schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Principles of European Law on Benevolent Intervention in Another s Affairs (PEL Ben. Int.)

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4 Principles of European Law Study Group on a European Civil Code Benevolent Intervention in Another s Affairs (PEL Ben. Int.) prepared by Professor Christian v. Bar, Osnabrück Chairman of the Working Team on Extra-contractual Obligations with advice from the Advisory Council approved by the Co-ordinating Group Particular advice on the drafting of the Articles from Professor Eric Clive, Edinburgh, and Dr. Stephen Swann, Osnabrück Translation: Dr. Stephen Swann and Dr. Mary-Rose McGuire, Osnabrück Sellier. European Law Publishers Stæmpfli Publishers Ltd. Berne

5 The Osnabrück Working Team Begoña Alfonso de la Riva (Spanish Law, August 1999-August 2003), Dr. Erwin Beysen (Belgian, French and Luxembourgian Law), Dr. Evlalia Eleftheriadou (Greek Law), Silvia Fedrizzi (Italian Law, August 1999-October 2000), Dr. Andreas Fötschl (Austrian Law, August 1999-April 2005), Dr. Caterina Gozzi (Italian Law, since February 2001), Lodewijk Gualthérie van Weezel (Dutch Law, February 2001-August 2002), Annamaria Herpai (Hungarian Law, since October 2003), Dr. Matthias Hünert (German Law), Stefan Kettler (Irish Law, November 1999-August 2001), Ina El Kobbia (Scottish Law; organisation and minutes for the Co-ordinating Group and the Advisory Council), Dr. María Ángeles Martín Vida (Spanish Law, since September 2003), Dr. Mary-Rose McGuire (translation, since May 2004), Franz Nieper (Dutch Law, November 1999-October 2000), Rosalie Koolhoven (Dutch Law, since March 2003), José Carlos de Medeiros Nóbrega (Portuguese Law), Sandra Rohlfing (Working Team rapporteur), Johan Sandstedt (Nordic Laws, since April 2001), Mårten Schultz (Nordic Laws, January 2000-March 2001) and Dr. Stephen Swann (Common Law). The Advisory Council on Unjustified Enrichment Law and the Law on Benevolent Intervention in Another s Affairs Professor Eric Clive (Edinburgh), Professor Júlio Manuel Vieira Gomes (Oporto), Justitierådet Professor Torgny Håstad (Stockholm), Professor Ewan McKendrick (Oxford), Professor Peter Schlechtriem (Freiburg i. Br.) and Dr. Kristina Siig (Aarhus). The Co-ordinating Group Professor Guido Alpa (Genua/Rome), Professor Kaspars Balodis (Riga, since December 2004), Professor Christian v. Bar (Osnabrück), Professor Maurits Barendrecht (Tilburg), Professor Hugh Beale (London), Professor Michael Joachim Bonell (Rome), Professor Mifsud G. Bonnici (Valetta, since December 2004), Professor Carlo Castronovo (Milan), Professor Eric Clive (Edinburgh), Professor Ulrich Drobnig (Hamburg), Professor Bénédicte Fauvarque-Cosson (Paris), Professor Marcel Fontaine (Leuven, until December 2003), Professor Andreas Furrer (Luzern, since December 2003), Professor Jacques Ghestin (Paris), Professor Sir Roy Goode (Oxford, until December 2002), Professor Viggo Hagstrøm (Oslo, since June 2002), Professor Arthur Hartkamp (The Hague), Justitierådet Professor Torgny Håstad (Stockholm), Professor Johnny Herre (Stockholm), Professor Martijn Hesselink (Amsterdam), Professor Ewoud Hondius (Utrecht), Professor Giovanni Iudica (Milan, since June 2004), Professor Konstantinos Kerameus (Athens), Professor Ole Lando (Copenhagen), Professor Kåre Lilleholt (Bergen, since June 2003), Professor Brigitta Lurger (Graz), Professor Hector MacQueen (Edinburgh), Professor Denis Mazeaud (Paris, since June 2005), Professor Ewan McKendrick (Oxford), Professor Valentinas Mikelenas (Vilnius, since December 2004), Dr. Niamh Moloney (Belfast, since December 2003), Professor Eoin O Dell (Dublin), Professor Edgar du Perron (Amsterdam), Professor Denis Philippe (Leuven, since June 2004), Professor Johannes Rainer (Salzburg), Professor Jerzy Rajski (Warsaw), Professor Christina Ramberg (Gothenburg), Professor Philippe Rémy (Poitiers), Judge Professor Encarna Roca y Trias (Madrid/Barcelona), Professor Peter Schlechtriem (Freiburg i. Br.), Professor Martin Schmidt-Kessel (Osnabrück, since December 2004), Professor Jorge Sinde Monteiro (Coimbra), Professor Lena Sisula-Tulokas (Helsinki), Professor Sophie Stijns (Leuven), Professor Matthias Storme (Leuven), Professor Jan Svidron (Trnava, since June 2005), Dr. Stephen Swann (Osnabrück),

6 Professor Luboš Tichý (Prague, since June 2005), Professor Verica Trstenjak (Maribor), Professor Paul Varul (Tartu, since June 2003), Professor Lajos Vékás (Budapest), Professor Anna Veneziano (Rome). Further Members of the Study Group s Advisory Councils Professor John W. Blackie (Strathclyde, Tort Law), Professor Michael G. Bridge (London, Property Law and Securities), Professor Angel Carrasco (Toledo, Securities), Professor Pierre Crocq (Paris, Securities), Dr. Eugenie Dacoronia (Athens, Tort Law and Renting Contracts), Professor Marie Goré (Paris, Structure), Professor Helmut Grothe (Berlin, Renting Contracts), Professor Jérôme Huet (Paris, Sales, Services, Agency, Franchise and Distribution Contracts), Professor Jan Kleineman (Stockholm, Tort Law), Docent Dr. Irene Kull (Tartu, Renting Contracts), Professor Guillermo Palao Moreno (Valencia, Tort Law), Professor Antoni Vaquer Aloy (Lleida, Renting Contracts), Professor Alain Verbeke (Leuven, Renting Contracts), Professor Anders Victorin (Stockholm, Renting Contracts), Professor Sarah Worthington (London, Renting Contracts).

7 Volume 1 To be cited as: PEL/von Bar, Ben Int, Introduction, A, 1 PEL/von Bar, Ben Int, Chapter I, Article 1: 101, Comments, A, 1 PEL/von Bar, Ben Int, Chapter I, Article 1: 101, Notes, I, 1 ISSN ISBN (Staempfli) ISBN (Staempfli) ISBN (Bruylant) ISBN (Bruylant) ISBN (Sellier. European Law Publishers) ISBN (Sellier. European Law Publishers) Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar by Sellier. European Law Publishers, Munich together with Study Group on a European Civil Code. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Das Register wurde erstellt von RA Dr. Martina Schulz, Pohlheim. The Index was prepared by RA Dr. Martina Schulz, Pohlheim. Gestaltung: Sandra Sellier, München. Herstellung: Karina Hack, München. Satz: fidus Publikations- Service GmbH, Augsburg. Druck und Bindung: Friedrich Pustet KG, Regensburg. Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany.

8 Foreword The Study Group on a European Civil Code has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of property in movables which are especially relevant for the functioning of the common market. It was founded in 1999 as a successor body to the Commission on European Contract Law, on whose work the Study Group is building. The two groups pursue identical aims. However, the Study Group has a more farreaching focus in terms of subject-matter and as an ultimate goal it aspires to a consolidated composite text of the material worked out by itself and the Commission on European Contract Law. Both groups have undertaken to ascertain and formulate European standards of patrimonial law for the Member States of the European Union. The Commission on European Contract has already achieved this for the field of general contract law (Lando and Beale [eds.], Principles of European Contract Law, Parts I and II combined and revised, The Hague, 2000; Lando/Clive/Prüm/Zimmermann [eds.], Principles of European Contract Law Part III, The Hague, 2003). These Principles of European Contract Law (PECL) are being adopted by the Study Group on a European Civil Code with adjustments taking account of new developments and input from its research partners. The Study Group is dovetailing its principles with those of the PECL, extending their encapsulation of standards of patrimonial law in three directions: (i) by developing rules for specific types of contracts; (ii) by developing rules for extra-contractual obligations, i. e. the law of tort/delict, the law of unjustified enrichment, and the law of benevolent intervention in another s affairs (negotiorum gestio); and (iii) by developing rules for fundamental questions in the law on mobile assets in particular transfer of ownership and security for credit. Like the Commission on European Contract Law s Principles of European Contract Law, the results of the research conducted by the Study Group on a European Civil Code seek to advance the process of Europeanisation of private law. We have undertaken this endeavour on our own personal initiative and merely present the results of a pan-european research project. It is a study in comparative law in so far as we have always taken care to identify the legal position in the Member States of the European Union and to set out the results of this research in the introductions and notes. That of course does not mean that we have only been concerned with documenting the pool of shared legal values or that we simply adopted the majority position among the legal systems where common ground was missing. Rather we have consistently striven to draw up sound and fitting principles, that is to say, we have also recurrently developed proposals and concepts for the further development of private law in Europe. The working methods of the Commission on European Contract Law and the Study Group on a European Civil Code are or were likewise quite similar. The Study Group, however, has had the benefit of Working (or Research) Teams groups of younger legal scholars under the supervision of a senior member of the Group (a Team Leader) which undertook the basic comparative legal research, developed the drafts for discussion and VII

9 Foreword assembled the extensive material required for the notes. Furthermore, to each Working Team was allocated a consultative body an Advisory Council. These bodies deliberately kept small in the interests of efficiency were formed from leading experts in the relevant field of law who are representative of the major European legal systems. The proposals drafted by the Working Teams and critically scrutinised and improved in a series of meetings by the respective Advisory Council were submitted for discussion on a revolving basis to the actual decision-making body of the Study Group on a European Civil Code, the Co-ordinating Group. Until June 2004 the Co-ordinating Group consisted of representatives from all the jurisdictions belonging to the EU immediately prior to its enlargement in Spring 2004 and in addition legal scholars from Estonia, Hungary, Norway, Poland, Slovenia and Switzerland. Representatives from the Czech Republic, Malta, Latvia, Lithuania and the Slovak Republic joined us after the June meeting 2004 in Warsaw. However, due to reasons of time and capacity, it was only occasionally possible to summarise in the notes the current legal position in the new Member States of the EU. We are keen to fill the outstanding gaps (of which we are only too painfully aware) at a later point in time. Besides its permanent members, other participants in the Co-ordinating Group with voting rights included all the Team Leaders and when the relevant material was up for discussion the members of the Advisory Council concerned. The results of the deliberations during the week-long sitting of the Co-ordinating Group were incorporated into the text of the articles and the commentaries which returned to the agenda for the next meeting of the Co-ordinating Group (or the next but one depending on the work load of the the Group and the Team affected). Each part of the project was the subject of debate on manifold occasions, some stretching over many years. Where a unanimous opinion could not be achieved, majority votes were taken. As far as possible the Articles drafted in English were translated into the other languages either by members of the Team or third parties commissioned for the purpose. The number of languages into which the Articles could be translated admittedly varies considerably from volume to volume. That is in part a consequence of the fact that not all Working Teams were equipped with the same measure of financial support. We also had to resign ourselves to the absence of a perfectly uniform editorial style. Our editing guidelines provided a common basis for scholarly publication, but at the margin had to accommodate preferences of individual teams. However, this should not cause the reader any problems in comprehension. Work on these Principles had begun long before the European Commission published its Communication on European Contract Law (in 2001), its Action Plan for a more coherent European contract law (in 2003), and its follow-up Communication European Contract Law and the revision of the acquis: the way forward (in 2004). (All of these documents concerning European contract law are available on the Commission s website: /europe.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_ pract/cont_law/index_en.htm). These documents for their part were published before we formed the Network of Excellence, together with other European research groups and institutions, which will collaborate in the preparation of an academic Common Frame of Reference with the support of funds from the European Community s Sixth Framework Programme. The texts laid before the public by the Study Group on a European Civil Code are therefore not necessarily identical with those which the Network of Excellence will propose to the European Commission for adoption in the VIII

10 Foreword Common Frame of Reference. Rather they represent for the time being texts which the Study Group considers should serve as the starting point for the comprehensive process of discussion and consultation envisaged for the coming years. Whether that process will require any changes to our texts (and, if so, which changes) is something which will have to be weighed up carefully in a spirit of academic independence after a review of the arguments. The political domain can then determine at a later date which of our proposals, if any, it wishes to take up. In order to leave no room for misunderstanding, it is important to stress that these Principles have been prepared by impartial and independent-minded scholars whose sole interest has been a devotion to the subject-matter. None of us have been rewarded for taking part or mandated to do so. None of us would want to give the impression that we claim any political legitimation for promoting harmonisation of the law. Our legitimation is confined to curiosity and an interest in Europe. In other words, the volumes in this series are to be understood exclusively as the results of scholarly legal research within large international teams. Like every other scholarly legal work, they restate the current law and introduce possible models for its further development; no less, but also no more. We are not a homogenous group whose every member is an advocate of the idea of a European Civil Code. We are, after all, only a Study Group. The question whether a European Civil Code is or is not desirable is a political one to which each member can only express an individual view. Osnabrück, November 2005 Christian v. Bar

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12 Our Sponsors The project of the Study Group on a European Civil Code represents a research endeavour in legal science of extraordinary magnitude. Without the generous financial support of many organisations its realisation would not have been possible. Our thanks go first of all to the Deutsche Forschungsgemeinschaft (DFG), which has supplied the lion s share of the financing including the salaries of the Working Teams based in Germany and the direct travel costs for the meetings of the Coordinating Group and the numerous Advisory Councils. The work of the Dutch Working Teams was financed by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek (NWO) and by the Universiteit van Amsterdam. Further personnel costs were met by the Flemish Fonds voor Wetenschappelijk Onderzoek-Vlaanderen (FWO), the Onassis-Foundation, the Austrian Fonds zur Förderung der wissenschaftlichen Forschung and the Fundação Calouste Gulbenkian. In addition we have consistently been able to fall back on funds made available to the respective organisers of the week long sittings of the Coordinating Group by the relevant university or other sources within the country concerned. It is therefore with the deepest gratitude that I must also mention the Consiglio nazionale forense (Rome) and the Istituto di diritto privato of the Università di Roma La Sapienza, which co-financed the meeting in Rome (June 2000). The session in Salzburg (December 2000) was supported by the Austrian Bundesministerium für Bildung, Wissenschaft und Kultur, the Universität Salzburg and the Institut für Rechtspolitik of the Universität Salzburg. The discussions in Stockholm (June 2001) were assisted by the Department of Law, Stockholm University, the Supreme Court Justice Edward Cassel s Foundation and Stiftelsen Juridisk Fakultetslitteratur (SJF). The meeting in Oxford (December 2001) had the support of Shearman & Sterling, the Hulme Trust, Berwin Leighton Paisner and the Oxford University Press (OUP). The session in Valencia (June 2002) was made possible by the Asociación Nacional de Registradores de la Propiedad, Mercantil y Bienes Muebles, the Universitat de València, the Ministerio Español de Ciencia y Tecnología, the Facultad de Derecho of the Universitat de València, the Departamento de Derecho Internacional, Departamento de Derecho Civil and the Departamento de Derecho Mercantil Manuel Broseta Pont of the Universitat de València, the law firm Cuatrecasas, the Generalitat Valenciana, the Corts Valencianes, the Diputación Provincial de Valencia, the Ayuntamiento de Valencia, the Colegio de Abogados de Valencia and Aranzadi Publishing Company. The subsequent meeting in Oporto (December 2002) was substantially assisted by the Universidade Católica Portuguesa Centro Regional do Porto. For the week long session in Helsinki (June 2003) we were able to rely on funds from Suomen Kultuurirahasto (Finnish Cultural Foundation), the Niilo Helanderin Säätiö (Niilo Helander Foundation), the Suomalainen Lakimeisyhdistys (Finnish Lawyers Association), the Ministry of Justice and the Ministry for Foreign Affairs, the Nordea Bank, Roschier Holmberg Attorneys Ltd., Hannes Snellman Attorneys Ltd., the Department of Private Law and the Institute of International Commercial Law (KATTI) of Helsinki University. The session in Leuven (December 2003) was supported by Katholieke Universiteit Leuven, Faculteit Rechtsgeleerdheid, and the FWO XI

13 Our Sponsors Vlaanderen Fonds voor Wetenschappelijk Onderzoek (Flanders Scientific Research Fund). The meeting of the Group in Warsaw (June 2004) was substantially assisted by the Fundacja Fundusz Wspolpracy (The Cooperation Fund) and the Faculty of Law and Administration of Warsaw University. The meeting in Milan (December 2004) was supported by the Università Bocconi and its Istituto di diritto comparato, by the Milan Camera di Commercio, by the Associazione Civilisti Italiani and by the Comune di Milano. The meeting in Berlin (June 2005) was made possible by PricewaterhouseCoopers Deutschland AG, Frankfurt/Berlin, Sievert AG & Co., Osnabrück, by Deutscher Sparkassen- und Giroverband, Berlin, and by Verband deutscher Hypothekenbanken e. V., Berlin. We thank all of these organisations and institutions for the funds which they made available to us and for the extraordinary warmth of hospitality with which our hosts received us.

14 Preface to this volume The following text on the law of (justified) benevolent intervention in another s affairs, hereby presented to the interested public, has been deliberated by the Co-ordinating Group of the Study Group on a European Civil Code during its week-long meetings in Utrecht (December 1999), Rome (June 2000), Stockholm (June 2001) and finally in Valencia (June 2002). (Whereas the meetings in Salzburg (December 2000) and Oxford (December 2001) were not dedicated to this matter). In preparation of the respective meetings thorough deliberations with the Advisory Council of the Working Team have taken place. This Working Team in turn has under my supervision composed the first draft of these Principles and has integrated the amendments which had been proposed by the different councils and in some instances had been decided by vote. On this basis I have drawn up the comparative introduction, the comments and the notes. The material for this work again had been provided by the Members of the Osnabrück Working Team. They have carried the main burden of this research endeavour; without their contribution this Book could not have been realized. Perhaps it may not appear as the most fortunate choice that one of the first publications of the Study Group on a European Civil Code of all subjects is dedicated to the law of benevolent intervention in another s affairs (negotiorum gestio). For it concerns a subject matter which accounts for a comparatively small area of law and which in addition from a systematic viewpoint is not even recognised as a separate private law concept under the Common Law. However, the work on this project could be concluded earlier than that of others and it did not seem appropriate to artificially hold back the results until all other parts of the project similarly have reached a stage for publication. Legislation, case law and doctrine have been stated as of January Shortly before publication this text was circulated to stakeholders under the CFR net exercise as part of the European Commission s contract law programme. Osnabrück, November 2005 Christian v. Bar

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16 Short Table of Contents Text of Articles 3 Principles of European Law on Benevolent Intervention in Another s Affairs Introduction 53 Chapter 1: Scope of Application Article 1:101: Intervention to Benefit Another 101 Article 1:102: Intervention to Perform Another s Duty 173 Article 1:103: Exclusions 186 Chapter 2: Duties of Intervener Article 2:101: Duties during Intervention 211 Article 2:102: Duties after Intervention 229 Article 2:103: Reparation for Damage Caused by Breach of Duty 242 Chapter 3: Rights and Authority of Intervener Article 3:101: Right to Indemnification or Reimbursement 257 Article 3:102: Right to Remuneration 268 Article 3:103: Right to Reparation 276 Article 3:104: Reduction or Exclusion of Intervener s Rights 284 Article 3:105: Obligation of Third Party to Indemnify or Reimburse the Principal 294 Article 3:106: Authority of Intervener to Act in the Name of the Principal 297 Annexes 309 XV

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18 Table of Contents Foreword Our Sponsors Preface to this volume VII XI XIII Text of Articles English 3 Benevolent Intervention in Another s Affairs Danish 6 Godgørende indgriben i en andens anliggender Dutch 9 Zaakwaarneming Estonian 12 Käsundita Asjaajamine Finnish 15 Asiainhuolto French 18 Gestion d affaires d autrui German 21 Besorgung fremder Angelegenheiten Greek 24 Øïߌçóç ƺºïôæßøí Hungarian 27 Megbízµs nølküli ügyvitel Italian 30 Gestione d Affari Altrui XVII

19 Table of Contents Latvian 33 Neuzdota lietvedība Lithuanian 36 Kito Asmens ReikalŲ Tvarkymas to Asmens Interesais Portuguese 39 Gest¼o de Assuntos Alheios Slovenian 42 Poslovodstvo Tujih Zadev Spanish 45 Gestión De Asuntos Ajenos Swedish 48 Tjänster Utan Uppdrag Principles of European Law on Benevolent Intervention in Another s Affairs Introduction A. General 1. Legal obligations complementary to contract law and tort law Traditional Latin nomenclature An English term for negotiorum gestio Problems of traditional terminology in the other languages of the EU The concept of benevolent intervention in another s affairs The spread of the concept of negotiorum gestio in the continental jurisdictions of the EU Scotland and Scandinavia England and Ireland Negotiorum gestio and the doctrine of quasi-contracts Quasi-contracts and the Common Law 56 B. The Sources of Law on Benevolent Intervention in Another s Affairs (negotiorum gestio) in the Codified Systems of the EU 11. The sources in overview The location of negotiorum gestio within the overall private law system The essential content of the rules Fixing the scope of application (definition) Provisions on the persons brought together in the legal relationship Indirect clarifications Clarification of the intervener s duties 59 XVIII

20 Table of Contents 18. Duty of care Duty to continue the intervention Informing the principal Giving an account and surrender of proceeds Clarification of the intervener s rights Reimbursement of expenditure Further claims which are expressly governed Intervener s power of representation 61 C. Provisions in the Codifications concerning (i) Benevolent, but Officious Intervention and (ii) Management of Another s Affairs for One s Own Benefit 26. Restriction of the law on negotiorum gestio to justified management of another s affairs Inclusion of unjustified management of another s affairs Arrogated management of another s affairs Management of another s affair in the mistaken belief it is one s own 63 D. Applied Negotiorum Gestio 30. General Manifestations Family and inheritance law Property law Right of recourse Contract law Further examples Convention d assistance Emergency medical treatment 68 E. The Range of Activities within the Scope of the Law on negotiorum gestio 39. General Juridical acts and mere conduct Conduct for the protection of a person Acts contrary to law or bonos mores Long-term measures and omissions 70 F. The Position of the Law of Benevolent Intervention within the Legal System 44. The subsidiarity of the law of benevolent intervention: general The relationship to contract law The relationship to tort law The relationship to the law of unjustified enrichment 72 G. The Practical Relevance of the Law of Benevolent Intervention in the Codified Systems of Continental Europe 48. Different starting points Empirical material Social relevance 73 XIX

21 Table of Contents H. Scotland 51. Negotiorum gestio a recognised institution Agency of necessity 74 I. Scandinavia 53. General Specific basis and reasoning by analogy Commercial Code Ch and Scandinavian consumer protection statutes Further examples of rules which may serve as a basis for analogy Power of representation between spouses 77 J. England and Ireland 58. The lack of a discrete concept of a legal relationship arising from benevolent intervention in another s affair Exceptions from the general rule that expenses incurred for the interest of another are not compensable if there is no underlying duty to perform Statute law Trust law The instruments of Common Law Gratuitous agents The duties of an agent Agency by agreement und agency by ratification Agency of necessity Necessity Restriction of the scope of application to specific categories of cases Matters of carriage Excess of authority Bailment The legal position of the bailee Unjustified enrichment Quantum meruit Relation to the law of negotiorum gestio Money paid to the defendant s use 87 K. International law and European law 77. Admiralty law Salvage General average European Community law 89 L. The Basic Tenor of the Following Principles 81. A unitary approach Necessary amendments of contract and unjustified enrichment law Incentive to act out of neighbourly solidarity 90 XX

22 Table of Contents 84. European Community law No resuscitation of the law of quasi-contracts Exclusion of public law Public insurance schemes Right of recourse and reduction of claim Limitation to justified interventions in another s affairs The priority of contract law Relationship to unjustified enrichment law and tort law Contribution between joint debtors; property law Agency rules of PECL and intervener s authority under Article 3: The requisite balance between the interests of the gestor and the protection of the principal from officious intermeddling The structure of these Principles Acts within the purview of negotiorum gestio Required subjective elements Required objective elements The affair of another Duties of the intervener Rights of the intervener Articles 3:104 and 3: Authority of the intervener Burden of proof Applied negotiorum gestio 99 Chapter 1: Scope of Application Article 1:101: Intervention to Benefit Another Comments A. General 1. Terminology Requirements of negotiorum gestio Protection of the principal against officious intermeddling in his affairs Special forms of the law of negotiorum gestio are not within this regime Negotiorum gestio as a defence within the framework of the law of tort Burden of proof Proof 103 B. The Activities Covered 8. Acting for another Acts to protect another s person are included One-off activities and long-term undertakings Omissions Actions contrary to law or public policy 105 XXI

23 Table of Contents 13. Emergency situations Disallowed interventions Acts of a personal nature excluded Conducting litigation as a benevolent intervener 106 C. The Intention Predominantly to Benefit Another (Para (1)) 17. Meaning of benefiting The success of the venture is not essential Benefiting another, not intending to pursue one s own interests No possibility of approval for acts undertaken for own benefit Predominant intention of benefiting another Acting in pursuance of a void contract Similar cases Collateral advancement of a subordinate personal interest can affect the quantum of the intervener s claim Intervener and principal: general observations Multiple interveners PECL Part III, Chapter Identifying the principal The determinability of the principal at the moment of intervention Where the principal is unknown to the intervener Mistake about the person benefited Indirect beneficiaries are not principals within the sense of Article 1: Multiple principals 115 D. A Reasonable Ground (Para (1)(a)) 34. General Defective and deficient performance of the intervention No requirement of pre-existing legal relationship A reasonable ground Some guidance in the following rules 117 E. Want of Respect for the Principal s Wishes (Para (2)) 39. Reasonable ground to act absent Where the wishes of the principal are not binding Overriding public interest Priority of the principal s free determination of their will Para (2) limb (a) The intervener is unable to contact the principal Positive steps required Reasonable opportunity to discover the principal s wishes Contacting the principal can in itself amount to a justified negotiorum gestio Negotiorum gestio or contract? Para (2) limb (b) Actual knowledge of the contrary wishes of the principal Negligent failure to appreciate the principal s wishes 121 XXII

24 Table of Contents 52. Standard of care Acting in ignorance of the principal s wishes, but without negligent failure to heed them 122 F. Approval by the Principal (Para (1)(b)) 54. Significance and consequences of an approval by the principal Legal nature of the approval An important case Approval without such undue delay as would adversely affect the intervener Approval and contract Approval does not, as a rule, create a contract All other requirements of para (1) remain unaffected 124 Notes I. Prevalence and Notion of the Law of Negotiorum Gestio in General 124 II. The Activities Covered 128 III. Act on Another s Behalf and the Intention to Benefit Another 134 IV. The Preponderance of the Intention to Benefit Another; Simultaneous Pursuit of One s Own Interests 139 V. In Particular: Performance on the Basis of a Void Contract for Services 144 VI. The Principal 147 VII. The Concept of Reasonable Ground an its Equivalents 152 VIII. In Particular: the Duty to Ascertain the Principal s Wishes 158 IX. Ratification by the Principal 163 X. Burden of Proof 170 Article 1:102: Intervention to Perform Another s Duty Comments A. General 1. Scope and purpose Duties during intervention Need for a rule within the framework of negotiorum gestio 173 B. Intervention Urgently Required in Overriding Public Interest 4. Overriding public interest Performing another s maintenance obligations Performance must be due Performance must be urgently required 175 C. Third Party to be Regarded as Principal 8. An exception to Article 1:101(1) 176 XXIII

25 Table of Contents D. Article 1:101(2) Inapplicable 9. Public interest overriding the contrary wishes of the principal 176 Notes I. General Requirements of a Lawful Management of Another s Affairs Contrary to the Principal s Wishes 177 II. Specific Cases Subject to Particular Rules (Maintenance, Funeral Costs) 181 Article 1:103: Exclusions Comments A. The Negative Requirements for the Applicability of the Law of negotiorum gestio 1. Fundamentals Priority of special statutory regimes 186 B. Authority and Duty (limb (a)) 3. The principle Precise identification of the duty Acting under a contractual obligation towards the principal Existence of a contract Acting in pursuance of a void contract Acting in breach of contract The priority of contract law rules of a quasi-negotiorum gestio nature Acting under another duty towards the principal Moral duties The duty to render assistance under criminal law 190 C. Acting under another Authority (limb (b)) 13. General Examples in private law Authority to act under public law independently of the principal s consent 192 D. Performing a Duty Towards a Third Party (limb (c)) 17. Significance Scope of application Demarcation Precise analysis of the contractual duty No limitation to contractual duties 194 Notes I. The Precedence of Contract Law 195 II. Contributions Between Joint Debtors 199 III. Statutory Duties to Provide Help 201 XXIV

26 Table of Contents IV. Other Powers of Intervention 204 V. Acts Done to Discharge an Obligation to a Third Party 207 Chapter 2: Duties of Intervener Article 2:101: Duties during Intervention Comments A. The Duties of the Intervener in Overview 1. Contents of the second Chapter Duties during intervention Duties after intervention The second Chapter s scope of application 212 B. The General Duty to Act with Reasonable Care (Para (1) (a)) 5. General Standard of care of professionals Emergency measures 212 C. Compliance with the Principal s Wishes (limb (b)) 8. Specification of the general duty of care Special information available to the intervener The exception in Article 1: D. The Duty to Inform (limb (c)) 11. A continual duty during the intervention An indicator of the intention to act for another Providing the information itself amounts to a negotiorum gestio Content of the information required Consent and contract 215 E. The Duty not to Discontinue an Act after Commencement without Good Reason (Para (2)) 17. General Good reasons to discontinue the intervention Achievement of the desired object The principal can reasonably be expected to take over Actual or presumed contrary wishes of the principal Unreasonableness Uselessness Termination of the benevolent intervention without good reason 217 Notes I. The General Duty to Take Reasonable Care 218 XXV

27 Table of Contents II. The Duty to Orientate the Exercise of Care According to the Principal s Wishes 220 III. The Duty to Inform 223 IV. The Duty to Continue the Intervention 225 Article 2:102: Duties after Intervention Comments A. General 1. Three duties after intervention After intervening Without undue delay Duties and rights 230 B. The Duties to Report and to Account 5. The duty to report The duty to account 230 C. The Duty to Deliver Up 7. The most important economic duty of the intervener Content and extent of the duty to surrender Interest 232 D. Protection of Interveners without Full Legal Capacity 10. Para (2) Lack of full legal capacity 233 Notes I. Duty to Inform and to Render an Account 233 II. The Duty to Surrender 235 III. In Particular: The Duty to Pay Interest on Monies Received 237 IV. Intervener without Full Legal Capacity 240 Article 2:103: Reparation for Damage Caused by Breach of Duty Comments A. Liability to make Reparation for Breach of Duty 1. The duty to make reparation under the law of benevolent intervention in another s affairs Reparation Damage 243 XXVI

28 Table of Contents B. General Limits to Liability for Defective Execution of a Benevolent Intervention (Para (1)) 4. Causation Three situations Liability for the realisation of a risk created by the gestor Liability for the realisation of a risk increased by the gestor The gestor intentionally perpetuated the risk Intention 245 C. Liability for Others; Multiple Gestors 10. No general liability for other gestors No joint liability of multiple interveners as a general rule 245 D. Reduction of Liability (Para (2)) 12. General The fairness test 246 E. Gestors without Full Legal Capacity (Para (3)) 14. General liability under the law of tort also required 246 Notes I. The Basis of the Claim for Damages 247 II. Liability for Others; Multiple Gestors 249 III. Reduction of Liability 251 IV. Intervener without Full Legal Capacity 254 Chapter 3: Rights and Authority of Intervener Article 3:101: Right to Indemnification or Reimbursement Comments A. Two Core Elements of negotiorum gestio 1. Chapter 3 in overview Reimbursement and indemnification 257 B. The Claim for Indemnification 3. Indemnification Mode of indemnification 258 C. The Claim for Reimbursement 5. Reimbursement 258 D. General Requirements Applicable to Both Claims 6. The intervention must be reasonable but need not be successful No restriction to situations of emergency 259 XXVII

29 Table of Contents 8. Reasonable expenditure Interest on expenditure Expenditure, whether of money of other assets Services Loss of income 261 Notes 261 I. The Right to Indemnification 261 II. The Claim for Reimbursement 264 Article 3:102: Right to Remuneration Comments A. Remuneration of Professionals (Para (1)) 1. Should there be a right to remuneration? Underlying policy considerations of the rule Remuneration only for professionals The main policy consideration undertaken in the course of the intervener s profession or trade Non-profit organisations Reasonableness 270 B. Quantum of Remuneration (Para (2)) 8. The usual price so far as reasonable 270 Notes I. The Foundation of the Claim to Remuneration 271 II. Quantum of Remuneration 275 Article 3:103: Right to Reparation Comments A. The Claim to Reparation for Concomitant Damage 1. Policy considerations Need for regulation Consideration of the principal s interests Relationship to tort law 277 B. The Individual Requirements of the Claim 5. A strict liability outside the law of tort Reparable damage Damage suffered by third parties in consequence of the intervener s death 278 XXVIII

30 Table of Contents 8. General limits of the principal s liability Protection against danger Questions of causation Damage suffered in acting Created or significantly increased risk (limb (a)) Reasonable proportion between the danger to the principal and the risk incurred by the gestor (limb (b)) so far as foreseeable Intervener s contributory fault 280 Notes 280 Article 3:104: Reduction or Exclusion of Intervener s Rights Comments A. Acting with animus donandi and Related Cases (Para (1)) 1. Legal certainty No waiver of rights The other rules of the law of benevolent intervention remain applicable The scope of para (1) 285 B. Reduction of Liability on Grounds of Equity (Para (2)) 5. General Scope Reasons to reduce or exclude the principal s liability Joint danger The principal s economic capacity The intervener can reasonably obtain redress from another Rights against an insurer Burden of proof 288 Notes I. Acting with animus donandi 288 II. Reduction of Liability on Grounds of Equity 292 Article 3:105: Obligation of Third Party to Indemnify or Reimburse the Principal Comments 1. Purpose of the rule Rights in negotiorum gestio and in tort law Tortfeasor and gestor 295 Notes 295 XXIX

31 Table of Contents Article 3:106: Authority of Intervener to Act in the Name of the Principal Comments A. Third Party Relations 1. Three different situations Conclusion of a contract in the gestor s own name Engagement of third parties without conclusion of a contract Conclusion of a contract in the principal s name 298 B. The Intervener s Power of Representation 5. Considerations of legal policy Relation to the PECL rules on representative authority Transactions covered in so far as this is reasonable to benefit the principal 299 C. Unilateral Acts (Para (2)) 9. Third party protection 299 Notes 300 Annexes Abbreviations 309 Tables of Codes and Statutes 343 Table of UK and Irish Cases 365 Table of Treaties and Enactments of the European Union 379 Principles of European Contract Law (PECL) 380 Table of Literature Cited in Abbreviated Form 381 Index 393 XXX