Altruism in Private Law

Liability for Nonfeasance and Negotiorum Gestio

Jeroen Kortmann

Advocates a reconsideration of the English legal position on both action versus inaction, and on the provision of reward or expenses to those who intervene to help others.
Comparative in focus, contrasting English and European laws.
Examination of Roman law provides historical context.

Altruism in Private Law

Liability for Nonfeasance and Negotiorum Gestio

Jeroen Kortmann

Description

This book examines two problems in Private law which are posed by the 'good Samaritan': First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, as the good Samaritan did, will we have any claim for the expenses that we incurred, or perhaps even for a reward? Kortmann examines and compares the varied responses of the Roman, French, German, and English legal systems to these problems, providing the first comprehensive treatment of English law in relation to 'liability for nonfeasance' (or 'liability for omissions') and 'negotiorum gestio' (or 'the doctrine of necessity').

In Part I, Kortmann examines English law which draws a distinction between action and inaction, or 'feasance' and 'nonfeasance'. In general, one is not held liable for failing to act. He explores the theoretical justifications for drawing this distinction and reveals through a short comparative survey the fundamentally different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires a reconsideration.

In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. Kortamnn examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration.

Finally, Kortmann concludes by demonstrating close interconnections between the two, traditionally independent issues. He argues that the law ought not to introduce a general duty to intervene without at the same time granting the intervener a claim, at the very least for reimbursement of expenses and compensation of any loss suffered in the course of the intervention.

Altruism in Private Law

Liability for Nonfeasance and Negotiorum Gestio

Jeroen Kortmann

PART I: LIABILITY FOR NONFEASANCE
I. INTRODUCTION
II. WHAT IS 'NONFEASANCE'?
III. THEORETICAL JUSTIFICATIONS FOR DISTINGUISHING BETWEEN FEASANCE AND NONFEASANCE
IV. LIABILITY FOR NONFEASANCE IN CONTINENTAL EUROPEAN PRIVATE LAW
V. LIABILITY FOR NONFEASANCE IN ENGLISH PRIVATE LAW
VI. TOWARDS A MORE CONSISTENT APPROACH
PART II: GRANTING A CLAIM TO THE INTERVENER
VII. THE DIFFERENT MEASURES OF RECOVERY AND THEIR TERMINOLOGY
VIII. THEORETICAL ARGUMENTS AGAINST GRANTING A REMEDY TO THE INTERVENER
IX. THEORETICAL ARGUMENTS IN FAVOUR OF GRANTING A REMEDY TO THE INTERVENER
X. THE CONTINENTAL DOCTRINE OF 'NEGOTIORUM GESTIO'
XI. THE POSITION IN ENGLISH LAW
XII. TOWARDS A GENERAL PRINCIPLE: USING THE EXISTING DOCTRINES?
XIII. TOWARDS A NEW GENERAL PRINCIPLE
EPILOGUE

Altruism in Private Law

Liability for Nonfeasance and Negotiorum Gestio

Jeroen Kortmann

Author Information

Jeroen Kortmann, Attorney at Law at Stibbe, Amsterdam, and a member of the Amsterdam Bar

Altruism in Private Law

Liability for Nonfeasance and Negotiorum Gestio

Jeroen Kortmann

Reviews and Awards

"[This] book is to be welcomed as a carefully argued, at times imaginative, contribution to the continuing debate about the future annd shape of the English law of rescue." - Kevin Williams, Modern Law Review

"The author is to be commended for his lucid treatment of both doctrines, and for his subtle and convincing analysis of their interconnectedness" - European Tort Law

"This slim, elegantly-argued volume presents a persuasive case for the reconsideration of both liability for nonfeasance and reimbursement for necessitous intervention in English Law"

"In a clear and elegant style, Kortmann has written a remarkable book in which he has developed a fine, sophisticated theory. It is to be hoped that the English courts will draw inspiration from it." - Professor J.H.A. Lokin, Ars Aequi

"An interesting read, based on considerable research. The account is thoughtful and thought-provoking and challenges the common lawyer to reassess his or her views on the topic of omissions.... Lord Goff in Smith v Littlewoods onceded that the legal treatment of omissions may one day need to be reconsidered. Kortmann eloquently puts the case for such a change." - Paula Giliker, King's College Law Journal

"[This book] certainly constitutes essential reading for any lawyer interested in the nature and effect of altruism in private law." - D.H. Van Zyl, Legal Studies

"Without doubt ... [Kortmann] deserves much praise for a book that is certain to captivate the reader. ... His arguments are well written and ...demonstrate a heartwarming erudition" - Professor H.C.F. Schoordijk, Weekblad voor Privaatrecht, Notariaat en Registratie