Direct representation and Negotiorum Gestio in Scots Law

The Scottish Court of Session recognised, in 1887, that ‘it is a frequent case, if a man is not able to manage his affairs, and has a relative who is willing to take the responsibility, there are many instances in which, without their coming to the court… the management goes on with his assistance’. This being an arguably frequent occurrence has not resulted in it being a commonly litigated occurrence and the topic of law engaged by this state of affairs – negotiorum gestio – is critically under-studied within Scotland (and, arguably, other Civilian and mixed legal systems). Like Louisiana, Scotland is a ‘mixed’ jurisdiction which forms a part of a much larger Common law dominated nation-state polity. Unlike Louisiana, Scotland’s law is uncodified: hence (along with South Africa) it has been described as a system of ‘living Roman law’. Within the Scots system there is a widely held view that the doctrine of negotiorum gestio was received unaltered from the law of Justinian. This article explores the extent to which this view stands up to scrutiny, considering the fact that though Scotland was indeed heavily influenced by Roman law during a crucial time in the legal system’s development, the jurisdiction has also expressly – and from an early stage – recognised concepts which were not merely unknown to, but outright rejected by, the Romans. Noting that in the early Scots case law ‘the lines between trust, mandate and negotiorum gestio are often difficult to draw’, the article suggests that the ability of a gestor to act as the direct representative of the dominus is and always has been immanent in Scottish jurisprudence, although a lack of developed case law, the absence of detailed discussion of negotiorum gestio in the institutional writings, and the relative dominance of the concept of remunerated commercial agency since the 19th century has served to stymie such recognition. Nonetheless, it is contended that the institution of negotiorum gestio is profoundly useful and that further academic discussion of the concept would be to the benefit not only of the Scots legal system, but mixed jurisdictions worldwide also.