Preserving Life and Limb: Whither Negotiorum Gestio, or, Yet Another Thing that the Romans Have Done for Us?
By Jonathan Brown - Posted on 21 June 2022
Picture the scene: following the relaxation of lockdown restrictions, you decide to meet an old friend in the pub. Being the sensible law student/lawyer/person who reads university law blogs for fun that you are, you imbibe no more than a ‘sensible modicum of whisky’ (for the tale behind this terminology, see Kenneth Roy’s The Invisible Spirit: A Life of Post-War Scotland 1945-75). This indulgence places you in a state of slight intoxication which, to use the words of the Institutional writer Erskine, ‘darkens [your] reason’ (Erskine, Institute, III, 1, 16), but no more than this. Your drinking companion, however, has taken things quite a bit further than yourself. They appear to have treated your convivial catch-up as a wholescale bacchanal, rather than the pleasant and civilised affair you had originally envisaged, and they have engaged in a bender that would cause Ian Brennan (of Brennan v HM Advocate 1977 JC 38 infamy) to suggest that a bit of temperance may be in order. Eventually, under the weight of the alcoholic onslaught, they reach a point at which they are ‘wholly deprived of the exercise of reason’ (Erskine, Institute, III, 1, 16). As anyone with a passing knowledge of law should know, this has the effect of rendering them unable to give meaningful consent to any legally significant ‘transaction’ (recall that this word has a broader meaning in law – per s.9 of the Age of Legal Capacity (Scotland) Act 1991 – than it might ordinarily do in everyday parlance). Hence, you become rather worried about how you are going to be able to ensure that your companion makes it safely home.
Deciding that, in your comparatively more sober state, the onus is on you to ensure that your friend is conveyed back to their dwelling unmolested, you determine that the safest option is for you to support your friend and bodily convey them to a taxi. Though you are yourself somewhat tipsy, and may be in a mentally weaker state than is the norm, you are not deprived of your transactional capacity (see Taylor v Provan (1864) 2 M. 1226, at 1234, per Lord Neaves) and so you are capable of contracting, in law, with the taxi driver, who agrees to take you and your indisposed friend home to your respective abodes. On arriving at your friend’s house, you – again bodily – heave them out of the taxi and support them to the door. You reach into their pocket, fumble around for their keys – find them – then open the front door. Once you drag your friend’s carcass to their bed, carefully place a bucket beside their headrest, pour them a pint of water and leave them two paracetamol to afford them some aid in the face of the inevitable hangover. Feeling as though you have done all you can, you leave your friend’s house, lock the door, post the keys through the letterbox and return to the taxi. The meter has been running the whole time. Your good deed has caused you to incur quite a bit of expense – in fact, quite a lot more expense than you would have done had you just got yourself a taxi home and left your friend to their own debauched devices in the pub. That you have incurred this cost might – as indeed any case involving some sum of money (however small) might – have some consequences as a matter of law.
Your friend clearly has not entered into any contract with the taxi driver, nor have they entered into any such agreement with you given their incapable state. How, then, can you seek to reclaim your expenses from them? Generally speaking, the device which allows for a person to reclaim expenses outlaid in the course of a benevolent – yet unauthorised – intervention in the affairs of another arises out of the Institutional concept of negotiorum gestio.
Negotiorum gestio – as the Latin nomenclature might suggest – is a legal concept received into Scots law from Roman jurisprudence. In fact, according to some jurists, the Scottish idea of negotiorum gestio was borrowed from Roman law ‘practically without change’ (Stair Memorial Encyclopaedia, Vol.15, para.87). The idea holds that a person (termed the negotiorum gestor) who usefully and benevolently intervenes in the affairs of another (termed the dominus negotii) who is absent or incapable (for whatever reason) at the time of the intervention will not only escape delictual (i.e., civil) liability for their non-consensual interference with the affairs of the dominus (provided, of course, that the gestor reasonably believed that the dominus would have consented to the interference had they been capable and/or present), but will be entitled to recover any expenses outlaid in the course of the intervention also. In other words, taking the scenario above as an illustrative example, not only would it be the case that your friend would have no claim in delict against you for your (benevolent) interference with their person, nor for your (useful) trespass upon their property, but on the basis of an actio negotiorum gestorum you might in fact be entitled to recover the costs of the taxi fare that you incurred (partially) on your friend’s behalf. To do so, you would need to establish that you demonstrated animus negotia aliena gerendi [literally, ‘intention to manage the affairs of another’, but technically the brocard implies intention to recover expenses] at the time of the taxi-ride, but this should be trite given the general presumption against donation that operates within and across Scots law (see, e.g., See Glenalan Ltd v Armitage 1963 SLT (Sh Ct) 31; Tyne Dock Engineering Co Ltd v Royal Bank of Scotland Ltd 1974 SLT 57).
Yet matters are not as straightforward as they might first appear. Although as a strict matter of logic, it would seem that the law of negotiorum gestio ought to apply in Scotland, as it does in Denmark (which also borrowed the concept from Rome, and which has a law of negotiorum gestio described as ‘similar’ to that of Scotland), as a ‘general ground of justification’ within the law of obligations (of which, see Von Bar, Benevolent Intervention, at 74), ‘Scots law has not, or not yet, extended the doctrine of negotiorum gestio beyond the preservation of the patrimonial interests of the dominus so as to cover the preservation of his health, or the rescue of his person in situations where his life or personal safety is endangered’ (Stair Memorial Encyclopaedia, Vol.15, para.102). This is but one reason amongst many that it can be said ‘that the full potential of negotiorum gestio in Scots law has not, or not yet, been realised’ (Stair Memorial Encyclopaedia, Vol.15, para.88).
The doctrine – and its wider significance within Scots private law – has been neglected as a matter of study and practice for quite some time, with the net effect that few Scots lawyers are likely to immediately identify occasions in which the concept could be fruitfully employed. This is unfortunate: appropriate recognition of the place of negotiorum gestio in the overall schema of Scots common law would, it is thought, have the potential to afford answers to problems which have had to be solved through legislation (or, indeed, remain unsolved) in jurisdictions which do not recognise the concept.
A practical example of this arises within the context of medico-legal practice, a subject which the present author wrote about recently in a piece for the Edinburgh Law Review. It is routine for physicians to act so as to provide medical care to patients who are incapax at the time of their intervention. This, on the face of it, constitutes both a criminal and delictual wrong. The giving of consent is no defence to either civil or criminal ‘assault’ (though such would afford a civil defender the defence of volenti non fit iniuria), but a physician operating with the consent of their patient commits no legal wrong, since their actions are not contra bonos mores – that is, ‘contrary to “good morals”’, or ‘public policy’ (of which, see Brown, When the Exception is the Rule, 33). One who interferes with a patient’s bodily integrity in the absence of ‘informed’ consent, however, does act contrary to the norms of public policy (recall Montgomery v Lanarkshire Health Board  UKSC 11) and so on the face of it should be (at least) delictually liable for their actions. The law of negotiorum gestio may have a role to play here, however, since – as outlined above – the mechanism would allow for a physician who acted in the reasonable belief that the patient, if capable, would have consented to the intervention to escape liability on the grounds that their intervention was benevolent and useful. This would conceptually justify the present practice of the law, which holds (and has long held for unsatisfactory reasons) that the norms of medical practice are somehow ‘exceptional’ and so removed from the ambit of ordinary criminal and private jurisprudence.
This suggestion was, in fact, taken up by the Law Society of Scotland in a recent piece of ‘proactive policy work’ on ‘Advance Choices and Medical Decision-Making’. The report of a working group – which included the present author, as well as a number of much more distinguished lawyers and medical practitioners – found that negotiorum gestio could be employed as a useful ‘descriptive account of how the law [pertaining to adult incapacity and medical decision-making] presently operates’ (at p.22). While, then, ‘it has not yet been [judicially] resolved whether intervention within the scope of negotiorum gestio may only consist of a juridical act for the benefit of a person’s assets, or whether it might also consist of acts to save the health or life of another’ (Von Bar, at 74), it would appear that there are sound reasons for concluding that the doctrine ought to apply to non-patrimonial, as well as purely patrimonial, interests. ‘There are as of yet no reported judicial decisions indicating that an intervention rendering such aid to a person in an emergency is within the scope of the law of benevolent intervention, but equally there seems to be no decision explicitly to the contrary’ (Von Bar, at 74).
Given that in the narrative example given above, as in the Law Society’s policy report and annexes thereto, it appears that the concept of negotiorum gestio can quite comfortably, as well as fruitfully, be invoked in cases concerning so-called ‘personality rights’ as well as in respect of patrimonial affairs, it would seem sensible for Scots jurisprudence to extend the doctrine of negotiorum gestio to cover the preservation of life and health. There may not have been any cases which have expressly done so as yet, but all that this means is that it is incumbent upon Scots lawyers to be aware of the potential utility of the concept, so that the courts can be afforded the benefit of pleadings invoking such should a suitable case ever, in fact, arise. The lawyer’s job – especially in a small jurisdiction such as ours – is about so much more than finding factually-analogous precedents, or aiding in the development of bespoke Acts to tackle particular and specific problems. It is about using the tools which are present in the fundaments of the legal system to flexibly solve the myriad unforeseen, and hitherto unknowable, problems which people face in their everyday life, and which might bring them into dispute with one another or the state.
The story narrated at the start of this blog post may have been entirely hypothetical, and the suggested legal resolution to it clearly carries no precedential value. But it is an example of the sort of thought experiment that Scots jurists – like the Romans who preceded us – should form the habit of engaging in, and for that matter writing about, so that those who need to make use of the law can have available to them all the tools which they might conceivably need to see that justice be done.