INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW. Vol. X (RES- TITUTION-UNJUST ENRICHMENT AND NEGOTIORUM GESTIO), Ch. 17

Professor Stoljar's lengthy treatment of negotiorum gestio (referred to hereafter as n.g.) presents some unexpected features. In the conventional view, the presence or absence of n.g. can be said to provide a simple shibboleth for distinguishing a Civil law from a Common law system. Written from this point of view, a comparative account of the institution might begin with a survey of its main features in the principal Civil law systems and then inquire how far in particular areas the Common law arrives at similar practical results. Stoljar, however, rejects the conventional view and argues that the Common law does indeed by now have "something rather like n.g. ", though with unfortunate, but still diminishing, gaps. In other words, what are in origin several separate institutions can be seen as embodying a set of principles rather like those of n.g., though with exceptions not found in the Civil law. To some extent, of course, this is merely a matter of formulation (should one say: "there is no n.g., but there are several institutions which produce some similar results" or "there is what amounts to n.g., but with several gaps not found in the Civil law"?), but it affects the whole structure of the Chapter (which is in reality a quite substantial book, extending over 180 of the densely packed pages of the Encyclopedia). Whereas the traditional Civil law account of n.g. proceeds, as has been suggested above, by expounding the elements of the institution, without any systematic breakdown into particular applications, and the traditional Common law account proceeds in the converse way, Stoljar applies both approaches to both systems. After a discussion of the essential elements he examines in considerable detail four types of situation which are "jointly exhaustive of the traditional Civilian area of n.g. ", but which are presumably chosen for their relevance to the Common law. (The situations are: pay