Encyclopedia of Private International Law
Show Less

Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
Buy Book in Print
Show Summary Details
Limited access

Chapter N.3: Negotiorum gestio

Peter Mankowski

I. Generalities

Negotiorum gestio is a specific kind of extra-contractual obligation. Accordingly, it is governed by the →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament p. 1302and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40), of which art 11 concerns this topic. The fact that a single article is deemed sufficient, reflects the lack of genuine relevance and importance negotiorum gestio enjoys both in the academic treatment of private international law and in practice. To some extent, negotiorum gestio is a step-child of the Rome II Regulation. Generally, the topic has generated relatively little excitement and academic treatment, and the number of rules devoted to issues of negotiorum gestio in national private international law codifications is limited if not scarce. For instance, the Turkish Private International Law Code (Code on Private International and International Civil Procedure Law of 27 November 2007 (Act No 5718) (Milletlerarası Özel Hukuk ve Usul Hukuku Hakkında Kanun), Resmî Gazete No 26728 of 12 December 2007), although generally borrowing heavily from the Rome II Regulation, contains no rule on negotiorum gestio. Nor do the Swiss Private International Law Act (Bundesgesetz über das Internationale Privatrecht of 18 December 1987, 1988 BBl I 5, as amended) and § 31.850 (5) Or.Rev.Stat. Article 14 new Japanese Private International Law Act (Japanese Act on General Rules for Application of Laws (Hōno Tekiyō ni Kansuru Tsūsokuhō, Law No 10 of 1898, as newly titled and amended by Act No 78 of 21 June 2006)) treats negotiorum gestio and →unjust enrichment alike in a rather brush-stoke rule, without further differentiation and summarizing them under the common heading of ‘non-contractual obligations other than tort’. Article 47 Chinese Statute of Application of Law to Foreign Civil Relations (adopted at the 17th session of the Standing Committee of the 11th National People’s Congress on 28 October 2010, effective 1 April 2011, henceforth Chinese PILA) on its wording also treats negotiorum gestio together with unjust enrichment, although this rule is more elaborate than the Japanese provision. By contrast art 30 Korean Private International Law Act (Law 6465 of 7 April 2001, Amending the Conflict of Laws Act of the Republic of Korea, henceforth Korean PILA) addresses negotiorum gestio in a separate Article devoted entirely to the topic.

The main reason for the relative lack of even modern legislation on negotiorum gestio might be that the topic is not germane to the substantive law of many legal orders. Where the own substantive law of a forum is silent regarding negotiorum gestio, that form state can hardly be expected to deal with negotiorum gestio in its private international law. A second reason might be that negotiorum gestio covers a vast array of possible cases and scenarios which have little in common and which do not lend themselves to a uniform private international law approach, particularly from a comparative law perspective (→Comparative Law and private international law). Negotiorum gestio cannot be conclusively and exhaustively described as benevolent intervention in another’s affairs. In some jurisdictions it might serve as a form of default regulation for void or invalid contracts, while in others it might function as a regulatory instrument for re-allocating and re-distributing by private enforcement.

The lack of intensity and specific care in the treatment which the Rome II Regulation administers to negotiorum gestio might indicate the lack of practical relevance in private international law of negotiorum gestio. There are only very few decided cases and beyond that a dearth of potential factual scenarios.

The principle example which comes to mind, that of assistance rendered by one ship to another on the high seas with consequential →salvage is governed by a special convention, the 1989 Salvage Convention (International Convention of 28 April 1989 on Salvage, 1953 UNTS 165), successor to the 1910 Salvage Convention (International Convention of 23 September 1910 for the Unification of certain Rules of Law related to Assistance and Salvage at Sea, in K Zweigert and J Kropholler, Sources of International Uniform Law, vol 2 (AW Sijthoff 1972) 7; 206 LNTS 220), and accordingly is outside the application of general conflict rules. Further in practice, most salvage cases involve salvors, who simply do not render their services without having obtained a proper contract in advance. Generally, in most instances where assistance of any kind or specific services are required, parties will conclude appropriate contracts, whereupon the case is no longer one of negotiorum gestio.

II. Characterization issues

1. In general

The basic characterization of negotiorum gestio is to be found in art 11(1) principio Rome II Regulation, which covers non-contractual obligations arising out of an act performed without due authority in connection with the affairs of p. 1303another person. This is a rather broad notion, and the Regulation correctly refrains from introducing benevolence as a prerequisite. By contrast, investigating the intervener’s motives and requiring the intervener to act out of altruistic, not egotistic motives as proposed by art V-1:101 DCFR (Study Group on a European Civil Code/Research Group on EC Private Law (Acquis Group) (ed), Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), Outline Edition 2009), would introduce additional limitations and unduly burden the characterization process through looking ex post into a person’s mind. Article 11(1) Rome II Regulation must attempt to cover divergent approaches by on the one hand those Member States whose legal systems, rooted in Roman law, recognize the institution of negotiorum gestio, and other Member States from whose substantive laws the institution is absent. Furthermore, the Regulation must govern both claims by the intervener against the principal and claims by the principal against the intervener, the latter for recovery of damage caused or benefits received. Finally, for the applicability of art 11 Rome II Regulation it is immaterial whether a negotiorum gestio is justified or unjustified, since both categories of negotiorum gestio receive equal treatment. The issue of whether a justification exists is left to the law applicable to the concrete negotiorum gestio. Recital (11) Rome II Regulation calls for an autonomous concept for the term ‘non-contractual obligation’, whereas Recital (29) Rome II Regulation mentions negotiorum gestio only in passing without further exploration or explanation.

2. Specific issues

The specific issues of characterization of negotiorum gestio have been less intensively discussed than →torts in general. This is evidenced by art 15 Rome II Regulation, in that it is formulated in terms specific for torts, eg liability, damage or compensation for damage, whereas negotiorum gestio would require the use of a different terminology. It would have been appropriate to insert a separate characterization rule specifically designed for negotiorum gestio, as generally providing parallel systematic treatment of negotiorum gestio to that of tort through a separate, complete and comprehensive chapter would have put both topics on an equal footing at least with regard to systematic weight.

III. Connecting factors

Article 11 Rome II Regulation would seem as suitable as any rule to regulate the private international law of negotiorum gestio in that it takes the most elaborate approach currently visible in the market of conflict laws. The art 11 provision employs a five step-approach to ascertaining the law applicable to a certain negotiorum gestio.

1. Parties’ choice of law

The first step is covert as regards the Regulation, in that creditor and debtor may chose the applicable law pursuant to art 14 Rome II Regulation and under the ramifications enshrined in that rule. Party autonomy is not expressly granted in art 11 Rome II Regulation, since that would have been an unnecessary reduplication, given the overall structure of the Regulation with its art 14 covering all kinds of non-contractual obligations including negotiorum gestio. Applying art 14 Rome II Regulation includes all restrictions placed by the provision on party autonomy, particularly its severe limitations on B2C relationships. If judged only on its wording, art 47 cl 1 Chinese PILA also grants the parties unrestricted autonomy to choose the law applicable to a negotiorum gestio.

2. Accessory connection to a leading relationship

The second step establishes an accessory connection by virtue of art 11(1) Rome II Regulation:

[i]‌f a non-contractual obligation arising out of act performed without due authority in connection with affairs of another person concerns a relationship between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that non-contractual obligation, it shall be governed by the law that governs that relationship.

Article 30(1) cl 2 Korean PILA provides to the same effect.

However, some cautionary remarks might be appropriate. First, under art 11 the contract must contain no contractual obligation of one party to act on the other’s behalf and in its interest, as otherwise no negotiorum gestio could exist. This is because a negotiorum gestio can only properly be said to exist where a contractual obligation is absent. Second, p. 1304there is some doubt regarding whether the governing relationship must be a pre-existing one, as is of particular importance with regard to torts committed uno actu with the negotiorum gestio.

Contracts and torts expressly listed as potential candidates for constituting a leading relationship are only examples. Relationships stemming from family law are equally feasible if relationships are disregarded arising out of family relations, matrimonial property regimes or →successions as excluded from the scope of the Rome II Regulation pursuant to its art 1(2)(a) and (b). It is irrelevant whether the law applicable to the leading relationship is determined following the parties’ choice of law in turn recognized under the relevant private international law rules, or alternatively ascertained by an objective determination. This means in particular that the greater extent of party autonomy granted in the realm of contracts by arts 3–9 Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)) also gains importance in the field of negotiorum gestio.

3. Parties’ common habitual residence

The third step is to be found in art 11(2) Rome II Regulation: ‘[w]‌here the law applicable cannot be determined on the basis of paragraph 1, and the parties have their habitual residence in the same country when the event giving rise to the damage occurs, the law of that country shall apply’. Hence, the law of the parties’ common habitual residences in the same country, not necessarily the same place, is to be applied. However, if the parties reside in different countries, under art 11(2) Rome II Regulation the required connecting factor is expressly a particularly strong connection, reflecting the same idea as under art 4(2) for tort.

Article 47 cl 2 Chinese PILA seizes on the parties’ common habitual residence on the second tier.

4. Performance of the act

The fourth step contains the most specific and perhaps even the principal rule. Article 11(3) Rome II Regulation reads: ‘[w]‌here the law applicable cannot be determined on the basis of paragraph 1 or 2, it shall be the law of the country in which the act was performed’. This clearly is both a default and a catch-all rule. Article 30(1) cl 1 Korean PILA refers to the place where the management of another’s affairs was done. Article 47 cl 3 Chinese PILA seizes on the place where the negotiorum gestio occurs.

Nevertheless, the connecting factor employed raises a number of notional issues. The first is to decide whether the event as such matters or its consequences. The wording would tentatively lead to emphasizing the act, whereas consistency with art 4(1) Rome II Regulation, the basic conflicts rule for torts, strongly militates in favour of the consequences. Congruency and consistency with the approach taken as to torts may be of the essence in the frequent cases where claims in tort and in negotiorum gestio happen to coincide. In addition, if one emphasizes the activity as the predominant element, the consequential issue of identifying the relevant activity ensues, and in particular whether commencement of the activity is decisive, or each single act of activity, or the culminating activity. Referring to the drafting process, it is at least clear that performance of the act leads to the locus gestionis as promoted by the European Parliament (Legislative Resolution P6_TA(2005)0284 p 14), and that the Commission Proposal in favour of the lex domicilii gestoris (European Commission, ‘Proposal for a Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations (“Rome II”)’ COM(2003) 427 final p 35 et seq) was ultimately rejected.

Article 30(2) Korean PILA opts for the lex causae of the respective obligation if the gestor performs and fulfils another’s obligation.

5. Escape clause

The fifth step consists of an escape clause as laid down in art 11(4) Rome II Regulation:

[w]‌here it is clear from the circumstances of the case that the non-contractual obligation arising out of act performed without due authority in connection with affairs of another person is manifestly more closely connected with a country other than that indicated in paragraphs 1, 2 and 3, the law of that other country shall apply.

As with all escape clauses, this rule has to be employed with extreme caution and must p. 1305not be misunderstood as a backdoor device granting the liberty to deviate at will from the preceding rules.

Literature

  • Saverio de Bellis, ‘La negotiorum gestio nel Regolamento (CE) n. 864/2007’ in Gabriella Venturini and Stefania Bariatti (eds), Liber Fausto Pocar – Volume II – Nuovi strumenti del diritto internazionale private (Giuffré 2009) 245;

  • Gralff-Peter Calliess (ed), Rome Regulations (Kluwer 2011);

  • Andrew Dickinson, The Rome II Regulation (OUP 2008);

  • Tim Q. Dornis, ‘Die Erbensuche im Kollisionsrecht – Von grenzüberschreitender “Menschenhülfe” zu internationaler Marktregulierung’, [2015] ZfPW 376;

  • Tim W. Dornis, ‘Das Kollisionsrecht der auftragslosen Geschäftsführung – Ein Beispiel für Materialisierung und Typisierung im modernen europäischen IPR’, (2016) 80 Rabels Zeitschrift 543;

  • Gerfried Fischer, ‘Ungerechtfertigte Bereicherung und Geschäftsführung ohne Auftrag im europäischen Internationalen Privatrecht’ in Jörn Bernreuther and others (eds), Festschrift für Ulrich Spellenberg zum 70. Geburtstag (Sellier 2010) 151;

  • Felix Hartmann, ‘Von der negotiorum gestio zur Benevolent Intervention in Another’s Affairs’ in Thomas Lobinger (ed), Festschrift für Eduard Picker zum 70. Geburtstag am 3. November 2010 (Mohr Siebeck 2010) 341;

  • Peter Huber, Rome II Regulation (Sellier 2011);

  • Timo Nehne, ‘Die internationale Geschäftsführung ohne Auftrag nach der Rom II-Verordnung – Anknüpfungsgegenstand und Anknüpfungspunkte’ [2012] IPRax 136;

  • Franz Jürgen Säcker and Roland Rixecker (eds), Münchener Kommentar zum BGB, Bd. 10: Rom I-VO; Rom II-VO; Art. 1–24 EGBGB (5th edn, CH Beck 2010);

  • Christian von Bar (ed), Benevolent Intervention in Another’s Affairs (Sellier 2006);

  • Manfred Wandt, Die Geschäftsführung ohne Auftrag im internationalen Privatrecht (Duncker & Humblot 1989);

  • Christoph Wendelstein, ‘Das Statut der Geschäftsführung ohne Auftrag in Nothilfefällen – “Wechselwirkungen” zwischen Kollisionsrecht und Sachrecht’ [2014] GPR 46.