Concept and Basic Structure of Management without Mandate
Die Management without Mandate (GoA) is a central legal concept in German civil law, governed by the German Civil Code (BGB), particularly in §§ 677 et seq. BGB. It describes a situation in which a person conducts a transaction for another person without having been expressly or impliedly authorized or otherwise entitled to do so by that person. The aim of the GoA is to balance the interests between the acting manager and the principal, particularly in cases involving interference with the legal or interest spheres of others.
Requirements for Management without Mandate
Handling of a Transaction
The management without mandate first requires a ‘handling of a transaction.’ This refers to any action, whether factual or legal, that affects the legal or interest sphere of another person. A transaction within the meaning of the GoA may be a legal act (e.g., conclusion of a contract) as well as an act in fact (e.g., repair, cleaning).
Foreignness of the Transaction
The action must be objectively (and, if applicable, subjectively) ‘foreign,’ i.e., it must at least also be in the interest and legal sphere of a third party, the so-called principal.Types of Foreignness:
- Objectively foreign transaction: The transaction belongs exclusively to the legal sphere of another person (e.g., rescuing someone else’s property).
- Also-foreign transaction: The transaction serves both foreign and own interests.
- Clearly own transaction: This does not fall under the GoA, as there is no foreignness present.
Without Mandate or Other Authorization
The management must be carried out without legal authorization or other authority (e.g., by law, official order, or contract). Authorization or obligation arising from another legal relationship generally excludes the application of the GoA.
Types of Management without Mandate
1. Authorized Management without Mandate (§§ 677 et seq., 683, 670 BGB)
Authorized GoA exists if the management is in the interest and in accordance with the actual or presumed will of the principal. In this case, the manager is especially entitled to reimbursement of expenditures pursuant to § 683 BGB in conjunction with § 670 BGB.Examples:
- Rescuing a dog from an emergency for its owner
- Repairing a pipeline to prevent more significant damage for the owner
2. Unauthorized Management without Mandate (§§ 678, 684 BGB)
An unauthorized GoA occurs when the action is objectively foreign but does not correspond to the actual or presumed will of the principal and thus contradicts their interests. This may result in liabilities for damages on the part of the manager towards the principal.
3. Improper Management without Mandate (§ 687 BGB)
An improper GoA refers to situations in which the manager conducts the transaction as his or her own, even though it is actually a foreign or also-foreign transaction (GoA in one’s own interest). The rules of §§ 677 et seq. BGB apply here with modifications.
Legal Consequences of Management without Mandate
Duties of the Manager
- Duty of Care: The manager must conduct the transaction as required by the interest and will of the principal (§ 677 BGB).
- Notification Obligation: The principal must be informed without undue delay regarding the management and its contents (§ 681 BGB).
- Accounting Obligation: Upon request, an account must be rendered regarding the transactions and expenditures made (§ 666 BGB by analogy).
Rights of the Manager
- Reimbursement of Expenditures: Reimbursement of necessary and useful expenditures if the transaction was properly managed (§§ 683 sentence 1, 670 BGB).
- Acquisition of Ownership and Claims for Surrender: In certain cases, the manager may acquire ownership or demand the surrender of items handed over.
Claims of the Principal
The principal has the right to approve or reject the management and, if applicable, to claim damages for unwanted or incorrect management (§ 678 BGB). Additionally, he can demand the surrender of items or substitutes obtained from the management (§ 681 BGB).
Distinctions from Related Legal Concepts
Distinction from Mandate (Auftrag)
Unlike a mandate (§§ 662 et seq. BGB), the GoA lacks a contractual agreement between the parties.
Distinction from Unjust Enrichment (§§ 812 et seq. BGB)
The GoA primarily covers situations where someone acts deliberately in a foreign interest, whereas unjust enrichment concerns a transfer of assets without legal basis.
Distinction from Unlawful Act (§§ 823 et seq. BGB)
In the case of an unlawful act, there is an infringement of a legal right within the meaning of tort law, which must be distinguished from the intentional management of another’s affairs.
Examples and Typical Cases of Application
- Removal of a third party’s car blocking a private driveway
- Emergency repairs on a neighbor’s house during their absence
- Payment of a third party’s debt in good faith of being authorized
Significance in Legal Practice
Management without mandate is particularly relevant in areas of damage prevention, hazard control, and neighborhood relations. It serves to balance conflicting interests and promotes social action by regulating situations of intervention and assistance and balancing them financially.
Further Provisions and International Reference
§§ 677 et seq. BGB are particularly important in German civil law. Comparable legal concepts also exist in other legal systems (for example, in Austrian and Swiss civil law), but the requirements and legal consequences may differ.
References and Web Links
- German Civil Code (BGB), §§ 677-687
- MüKoBGB, Commentary on the German Civil Code, 9th edition
- Palandt, German Civil Code, current edition
Note: This article does not replace individualized legal advice and is intended as an overview of the legal concept of management without mandate. The actual application in individual cases may depend on the specific circumstances.
Frequently Asked Questions
In which cases is management without mandate relevant under German law?
The management without mandate (“GoA”) is legally relevant under §§ 677 et seq. BGB whenever someone (the manager) acts independently, i.e., without mandate or other authorization, to handle a transaction for another (the principal). In practice, GoA arises, for example, when someone protects someone else’s property without explicit instruction, prevents damage for another person, or takes care of an issue because the principal is incapacitated. GoA becomes legally significant especially when, in retrospect, claims for reimbursement of expenditures, surrender of obtained benefits, or even damages arise, for example in case of failed management. A classic example: a neighbor extinguishes a fire in another’s house while the owner is absent for a prolonged period. In this constellation, a statutory obligation with diverse rights and duties arises. A key aspect is distinguishing GoA from the fulfillment of contractual duties or special statutory regulations such as emergency compensation or immediate assistance.
What rights and duties arise for the manager under the GoA?
If a transaction is carried out without mandate, the manager initially incurs comprehensive obligations for proper handling of the transaction pursuant to § 677 BGB. They must perform the transaction as required by the interest and actual or presumed will of the principal. Notably, they have a duty of care analogous to that of a contractually appointed agent (§§ 677, 280 BGB). The manager may have claims for the reimbursement of necessary expenditures (§ 683, § 670 BGB), or even claims for remuneration. However, if the transaction is not in the interest or is against the stated will of the principal, the manager risks personal liability (§ 678 BGB) and is obliged to compensate for damages. There are also obligations to provide information and to surrender any gained advantages (§ 681, § 667 BGB). The exact legal consequence largely depends on whether the GoA was authorized or unauthorized.
To what extent can the principal assert claims against the manager?
The principal has several claims in the context of management without mandate if the transaction did not correspond to their interest or will, or was carried out improperly. In particular, in cases of so-called unauthorized GoA (§ 678 BGB), the principal can demand damages if the manager should have known they were acting against the principal’s will. In addition, pursuant to § 681 sentence 2 in connection with § 667 BGB, the principal may request information about the transaction and the surrender of any benefits acquired from the transaction. In certain situations, e.g., in cases of unwanted or damage-causing actions, there may be claims for reversal and claims for compensation based on trust. The determining factor is always the distinction between authorized and unauthorized management – depending on whether the action was in the actual or presumed interest.
In which situations is the distinction between a favor and an unlawful act problematic?
The legal distinction between management without mandate, a mere socially accepted favor, or an unlawful act (§ 823 BGB) can be problematic, particularly in everyday life. While the GoA presupposes a deliberate intention to manage another’s affairs, purely friendly acts do not, as they do not involve intent to create legal obligations (e.g., neighborhood help without truly taking over someone else’s affairs). In case of damage or unsuccessful management, it must be decided based on the individual circumstances whether a GoA exists at all, or, in cases of unauthorized harm, tort liability applies. The decisive criterion is the objective appearance as manager and the actual handling of a matter belonging to the principal. This distinction is of practical and legal significance for determining whether statutory claims arise from GoA or another basis.
What are the consequences of authorized versus unauthorized GoA?
The distinction between authorized (§ 683 BGB) and unauthorized (§ 678 BGB) GoA is crucial for the legal consequences. Authorized GoA exists if the transaction objectively serves the interest and (presumed) will of the principal. In such case, the manager is entitled to reimbursement of expenditures and, if applicable, remuneration; the principal cannot refuse the takeover of the transaction according to § 684 sentence 2 BGB. In unauthorized GoA, this coincidence of interest and will is precisely lacking. The manager is then liable for damages and can generally claim neither reimbursement of expenditures nor remuneration. If the conduct is not in the interest of the principal, but there is no negligence or intent, an ‘improper GoA’ may be present; in this case, surrender claims are limited. The decisive issue always remains the objective assessment of the interest and will of the principal.
What role does the intent to manage third-party affairs play in management without mandate?
A prerequisite for any GoA is the so-called intent to manage third-party affairs (Fremdgeschäftsführungswille). The manager must act with the awareness and genuine intention to handle an objectively foreign transaction on behalf of the principal and not in their own interest. This intention must be assessed in each case on the basis of objectively recognizable circumstances. An alignment of personal and third-party interests (the so-called also-foreign transaction) is sufficient; however, the person acting must not act solely in their own interest. Determining the intent to manage third-party affairs can be problematic and legally significant, especially in everyday transactions, spontaneous assistance, or customary actions. If such intent is lacking, the statutory obligation under the GoA generally does not arise.
How do special provisions, such as emergency law, affect GoA?
Special regulations, such as in the area of emergency law (§§ 228, 904 BGB), public law provisions, or specific statutory regulations (e.g. law of finds, safekeeping), may supersede or override the legal institution of management of the affairs of another (GoA). In particular, in the case of emergency measures to avert imminent dangers, it must be examined whether a priority legal basis applies. The classic example is the so-called “justified emergency,” in which interventions in third-party legal interests are justified under certain conditions. In these cases, different rules regarding compensation and liability may apply. For a GoA to exist, no overriding specific provision may be applicable; otherwise, the content of that provision takes precedence and the GoA is at best to be applied subsidiarily. Therefore, in each individual case, a careful examination of the relevant statutory requirements is essential.
