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SOME Codifications Have Stated As a General Rule That CHAPTER 48 Extracontractual Obligations OME codifications have stated as a general rule that all obligations arising without contract are governed Sby the law of the place where the act creating the obli­ gation is done.1 This rule is either trite or wrong. Our con­ flicts rule determines whether we recognize a foreign law as the origin of an obligation and the law so recognized decides what elements create the obligation. Nothing better is achieved by general rules placing "quasi contracts" under the law of the place where the obligating act is done.2 Quasi contract is not a useful term. From its range, three topics require a report on the actual state of the doctrine. I. VoLUNTARY AGENcY (NEGOTIORUM GEsrw)3 In the old doctrine of civil law derived from Roman and Byzantine sources, altruistic intervention in the interest of another person is considered as a praiseworthy activity, suitable to Christian readiness to help. English courts have taken the contrary attitude in damning "officious meddling." In the United States, this hostility to voluntary taking care 1 Italy: Disp. Prel. C.C. (1942) art. 25 par. 2. Poland: Int. Priv. Law, art. II par. 1. Rumania: C. C. ( 1940) art. 42. Treaty of Montevideo on Int. Civ. Law (1889) art. 38. Contra, e.g., BEVILAQUA, Dir. Int. Priv. 372. 2 Belgian Congo: C. C. art. II par. 3· Spanish Morocco: Dahir of 1914, art. 21. Tangier: Dahir of 1925, art. 16 par. 2. C6digo Bustamante, art. 222. 3 Comparative municipal law, American and Roman laws: HEILMAN, "Rights of the Voluntary Agent Against His Principal in Roman Law and in Anglo-American Law," 4 Tenn. L. Rev. (1926) 34-54, 76-95. 361 SPECIAL OBLIGATIONS of the business of another has been maintained in principle, but it is riddled with a great many exceptions. Occasion­ ally, American law has been more generous than certain civilian doctrines. Where there is a duty implied by law to preserve human life or property, the work and labor spent to this end may be compensable in American courts, a result not always reached by German courts.4 Due to the contrasts in history and development, it is understandable that the conflicts problems of this subject have been discussed almost exclusively in the Continental literature. 1. Usual Conflicts Theories The traditional doctrine, basically territorial in its origin, has split on a systematic question. Roman law establishes two actions. The actio directa belongs to the person in whose business or sphere the intervention occurred, the dominus negotii, and is directed to recovery of the gain the gestor may have made and of the damage he may have caused by negligence. By the actio contraria, the acting person, if conditions are present, sues for restitution of ex­ penses. Writers regarding the existence of these two actions as the only effect of voluntary intervention concluded that each action had its own law. The direct action would be localized at the place where the act of interference is done, and the counterclaim would be governed by the law of the principal. When, to the contrary, the medieval construction 4 HEILMAN, supra n. 3, at 83 ff.; American Law Institute, SEAVEY and ScOIT, Notes on Certain Important Sections of Restatement of Restitution 171 ff. § 117. Germany: The problem whether more than expenses is recoverable, has been controversial. OLG. Celie (Nov. 10, 1905) 12 ROLG. 272 and OLG. Kiel (Oct. 9, 1906) 18 id. 22 granted physicians' fees, characterizing labor spent by a professional man as expenses. In ENNECCERUS-LEHMANN, 2 Derecho de obligaciones (Recht der Schuldverhiiltnisse, translation by PEREZ GONZALES y ALGUER, 1933) 353, note to § 164, it is noted that in Spain probably all useful expenditures may be recovered. EXTRACONTRACTUAL OBLIGATIONS 363 of the actions as flowing from a phenomenon similar to a contract, a quasi contract, was followed, the entire effects were subjected to a single law.5 With various motivations, the modern theory has preferred the latter result. The ap­ plicable law has been ·found in the place where the agent accomplishes his intervention. 6 In one opinion, however, exceptions are made in case the agent takes care of an entire unity of assets; in the absence of a single place of acting the law of the principal should be stressed. 7 On the other hand, the domicil of the principal has been indicated as the dominating contact because his interest prevails in the institution.8 2. Distinctions Some authors have noticed that the circumstances of the cases must be considered.9 In this view, where a contractual relation connects the principal and agent, the law governing the contract must extend to the effects of acts by the agent that exceed his authority.10 This is the correct point of view and should be enlarged to include any preceding contractual or legal relationship. 5 For the first opinion, REGELSBERGER, Pandekten I75 and n. (g); 2 MElLI 86; WEISS, 4 Traite 4I3; 2 FRANKENSTEIN 395· Contra: PILLET, 2 Traite 3IO f. (nationality of the principal); POULLET 352 f.; PACCHIONI 332 f.; SAUSER­ HALL, 44 Z. Schweiz. R. (N. F.) (I925) 296a. The same result is based on the presumptive intention of the agent by RoLIN, I Principes §§ 358, 362; 3 id. § I059 f.; contra: 2 ARMIN JON § II8, e.g., BusTAMANTE, 2 Der. Int. Priv. 3I2. 6 China: Int. Priv. Law, art. 24. Japan: Int. Priv. Law, art. II par. I. C6digo Bustamante, art. 220. See e.g., FIORE, Clunet I900, 458; Note, RICCI-BUZATTI, I Rivista ( I906) 213; PILLET, 2 Traite 3I0 § 547 bis. 7 PILLET, 2 Traite 3II; 2 ARMINJON § II8. 8 NussBAUM, D. IPR. 295 and n. 3 in fine; Swiss BG. (Nov. 25, I905) 3I BGE. II 662, 665. 9 NEUMEYER, IPR. 32; 2 FRANKENSTEIN 394 n. 44· 10 See in particular, M. WoLFF, Priv. Int. Law 507 § 48I. SPECIAL OBLIGATIONS After the First World War, it was a situation familiar to the mixed arbitral tribunals that a contract involving some kind of custody-sale, agency, bailment, etc.-was deemed retroactively dissolved by the Treaty of Versailles as of the time when the parties became enemies, but the custodian had continued to act during the war. This was done either in his own interest on the basis of the contract or to safe­ guard the interest of the other party. In the latter case, his acting, deprived of its contractual foundation, could be con­ strued as voluntary agency. Acting in self-interest could possibly constitute a so-called quasi negotiorum gestio, that is, intervention of a person in the business of another person in the belief that it is his own.11 The mixed arbitral tribunals were first inclined to deny a German party any excuse for continuing to act, but finally considered the war period of suspension as a sequel to the contract. Hence, the law gov­ erning the contract extended to the additional relationship. The same result obtained ex fortiori when the contract remained in force by exception. Illustration. A Rumanian firm before the war deposited ten oil tank cars with a German firm. This contract was not dissolved by the Treaty. At a time when it seemed reason­ able, the cars were sold in the interest of the owner but with loss. The court justified the application of German law to the contract of deposit and concluded without any question that the German provisions on negotiorum gestio should be applied.12 If the German firm would have had to sell the cars in Belgium, it would be absurd to apply Belgian law. Suppose the contract had been dissolved by the war. The extension 11 Germany: BGB. § 687, applied by Gerrnano-Belgian Mixed Arb. Trib. (May 27, 1924) Pres. Moriaud, Sturbelle v. Netter, 4 Recueil trib. arb. rnixtes 342, 345· 12 Rurnano-Gerrnan Mixed Arb. Trib. (Jan. 11, 1929) Pres. Fazy, 8 Recueil trib. arb. rnixtes 917, 921. EXTRACONTRACTUAL OBLIGATIONS 365 of the law governing the former contract would be equally satisfactory. 3· Maritime Assistance and Salvage When in a famous dictum, Lord Bowen formulated the aversion of common law to voluntary agency, he contrasted the principle, "liabilities are not to be forced upon people behind their backs," with the recognized exceptions of mari­ time law as to salvage, general average, and contribution.13 Despite the universal background of general maritime law, however, national differences in the treatment of assist­ ance and salvage were numerous, and conflicts theories abounded,u while very few laws attempted a solution.15 The multilateral Brussels Convention of September 23, 1910, adopted by the United States and many other countries,16 has eliminated most, though not all, conflicts among the participant powers and is applied in member states even though the other state involved is not a member.17 Some conflicts rules are included in the Convention.18 Remaining problems seem to be considered subject to the lex fori as general maritime law when jurisdiction is taken in an English or American admiralty court. In civil law they are at present prevailingly treated by the law of the flag if it is common to both parties,19 and otherwise by the 13 Falcke v. Scottish Imperial Ins. Co. (I886) 34 Ch. D. 234, 248. 14 For surveys, see 2 Repert. (I929) 69 ff.; 2 ARMINJON (ed. 2) 338 ns. 2-7; 2 STREIT- VALLINDAS 268; 2 FRANKENSTEIN 553 ff. 15 Portugal: C. Com. art. 690 is known as an exception. 16 International Convention for the Unification of Certain Rules Relating to the Salvage of Vessels at Sea, 37 Stat. I658, I667; The Salvage Act, I9I2, 37 Stat. 242, 46 U.
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