Legislation: Articles. 2028, 2029, 2030, 2031, 2032, cc
Bibliography: Trimarchi, Private Law, Giuffrè, Milano, 2007; IZZO, Civil Code and complementary laws, Simone Legal Issues , 2010
Law: Cass. Civ. No 3843/56, Cass. Civ. No 3843/56
Who, without obligation, knowingly assumes the management of a business of others, is bound to continue and to bring it to fruition until the person is in a position to do by himself (art. 2028 cc).
The legislature has placed the negotiorum manage in Title VI of Book IV of the Civil Code. In the first paragraph of the provision in question is highlighted, first, that the operator or the person who puts in place the management of others of the deal, has no statutory obligation to intervene and such behavior is realized in spontaneous and conscious. In fact, in such circumstances there is no contractual relationship. Part of the doctrine considers that this provision is placed in garrison on the one hand, the altruistic conduct of subsidiaries, and other to avoid the company of interfering with private choices of citizens (1).
The negotiorum gesture can also be put in place against the government, however, that in fact there must be recognition of ' utilitas by the same PA (2).
The legislature crystallizing the formula "until that person is able to do so by himself," wanted to understand the domain absentia, which is a temporary impediment material and (3). The aforementioned fact regards the impossibility of putting the dominus be directly in such conduct, as not physically present on site, or when there is legal impossibility (4). The cases are many, think of an injured person is unconscious do admit that a person in a motel, or a motorist whose car was stolen from under their eyes and throw another driver looking to stop the thief of the medium (5). Should the dominus is a legal impossibility should come by the department which should be put in such conduct (6).
The object of negotiorum manage may relate to legal acts, sia atti materiali(7), ad esempio il ripristino di un bene potrà essere realizzato sia dallo stesso gestore, sia da un soggetto preposto professionalmente a tale compito che abbia stipulato un negozio giuridico con il gestore. In generale gli atti giuridici concernono la conservazione e l’amministrazione dei beni anche se, in alcuni casi, possono riguardare anche atti di disposizione(8).
L’obbligo di continuare la gestione sussiste anche se l’interessato muore prima che l’affare sia terminato, finché l’erede possa provvedere direttamente ( art. 2028, comma 2, c.c. ).
Il gestore deve avere la capacità di contrattare ( art. 2029 c.c. ). Consequently, the legal documents in place, by the operator, not provided with legal capacity, shall be considered invalid against the dominus .
The manager is subject to the same obligations that would result from a mandate (art. 2030 cc). If the dominus suffer prejudice, for acts done by the operator incapable, can claim protection under Article damages. 2043 cc, where the situation is illegal, according to some writers, was not made with negligence (9). Conversely, the Court held that the operator, unable or not, should answer, of tort law even when the conduct has come into being following a mild negligence (10).
However, the judge, in light of the circumstances which led the operator to take over the management, may moderate the damages to which they would be required as a result of the fault (art. 2030, paragraph 2, DC).
If the operation is useful to begin, the applicant must fulfill the obligations that the operator has taken in his name, shall indemnify the operator of those recruited from the same in its own name and reimburse all the expenses necessary or useful with interest from the day when the same charges were made (art. 2031 cc). The bond, paid out of the dominus, aims to compensate the economic outlay incurred by the operator, it is a value debt (11). This provision does not apply to acts carried out against the ban on the management of the person concerned, except that this prohibition is against the law, public order or morality (Article 2031, paragraph 2, DC).
Ratification of the person producing, management is concerned, the effects were caused by a warrant, even if management was carried out by people who believe a deal to manage own (art. 2032 cc). The ratification must be brought to the attention of both the third (which came into contact with the operator) is the operator, and shall apply retroactively. Where non vi sia la ratifica da parte del dominus, il negozio giuridico si considera non concluso(12).
Note:
(1) TRIMARCHI, Istituzioni di diritto privato , Giuffrè, Milano, 2007, pg. 331
(2) IZZO, Codice civile e leggi complementari, Legal Issues Simone, 2010
(3) IZZO, Civil Code and complementary laws, Legal Issues Simon, 2010
(4) IZZO, Civil Code and complementary laws, Legal Issues Simon, 2010
(5) Cass. Civ. No 3843/56
(6) IZZO, Civil Code and complementary laws, Legal Issues Simon, 2010
(7) Cass. Civ. No 3843/56
(8) Cass. Civ. No 607/54, in Foro en. 1952, I, 325
(9) Trimarchi, Private Law , Giuffrè, Milano, 2007, pg. 332
(10) IZZO, Civil Code and complementary laws, Legal Issues Simon, 2010
(11 ) IZZO, Civil Code and complementary laws, Legal Issues Simon, 2010
(12) IZZO, Code Civil and complementary laws, Legal Issues Simon, 2010
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