The Doctrines of Contract and Negotiorum Gestio in European Private Law: Quest for Structure in a No Man's Land of Legal Reasoning

Restitution Law Review 2015, 73-91

22 Pages Posted: 23 Jun 2017 Last revised: 29 Jun 2017

See all articles by Tim W. Dornis

Tim W. Dornis

Leuphana University of Lueneburg; New York University School of Law

Date Written: June 22, 2017

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.

Keywords: negotiorum gestio, benevolent intervention in another's affairs, comparative law, contract law

JEL Classification: K12, K15

Suggested Citation

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 (June 22, 2017). Restitution Law Review 2015, 73-91, Available at SSRN: https://ssrn.com/abstract=2991164 or http://dx.doi.org/10.2139/ssrn.2991164

Tim W. Dornis (Contact Author)

Leuphana University of Lueneburg ( email )

Universitätsallee 1
Lüneburg, 21335
Germany

HOME PAGE: http://https://www.leuphana.de/en/institutes/lls/persons/tim-w-dornis.html

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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