Management of another’s affairs without mandate, public law
Die Management of another’s affairs without mandate (GoA), public law, is a concept of German administrative law and describes the scenario in which a person or authority undertakes a public-law transaction in the interest of another, without their mandate or authorization. It constitutes a special institute compared to the private law management of another’s affairs without mandate, which is governed by the German Civil Code (BGB), and is particularly relevant to administrative procedure law and state liability law.
I. Fundamentals of public-law management of another’s affairs without mandate
1. Definition and distinction
Public-law management of another’s affairs without mandate differs fundamentally from its civil law counterpart (§§ 677 ff. BGB) in several aspects. While civil law primarily regulates obligations between private individuals, public-law management of another’s affairs without mandate applies in administrative law, particularly when fulfilling public duties without a formal administrative act and in the actual performance of administrative measures for the benefit of a third party.
2. Origin and historical development
The necessity of a public-law version of the GoA was already emphasized in the decisions of the Imperial Court as well as in subsequent scholarly discussions. Its comprehensive scope was further developed in the course of modern legal protection and state liability law, particularly with regard to the so-called third-party performance by authorities.
II. Requirements for public-law management of another’s affairs without mandate
1. Transaction
A prerequisite is the actual implementation of a public-law action (transaction) that falls within the area of responsibility or at least in the interest of another (intention to act on behalf of another). Typical examples are hazard prevention measures as well as emergency and substitute performance by the administration.
2. Lack of mandate
The action is taken without mandate or any other authorization from the principal. Thus, there is neither an official order nor a formal transfer of the corresponding obligation to the agent.
3. Third-party nature of the transaction
The relevant transaction must be objectively third-party in nature, i.e. it must fall within the area of interest or responsibility of another person or authority.
4. Public task
The transaction must concern a public task. Actions that are purely in the private sphere, to which the public-law GoA does not apply, are to be distinguished from this.
III. Legal consequences of public-law management of another’s affairs without mandate
1. Claim for reimbursement of expenses
The public-law agent may, under certain conditions, claim reimbursement for necessary expenses incurred. The basis for such claims arises, unless a specifically regulated right of action takes precedence, from the principles of public-law GoA in conjunction with general public-law principles, and subsidiarily from state liability law.
2. Right of intervention and self-help
In certain emergency and danger situations, the public-law GoA establishes a de facto right to take measures in the public interest, particularly in cases of imminent danger or to avert significant legal interests being harmed.
3. Liability and responsibility
The agent generally bears the consequences of their actions, but may invoke grounds for justification such as necessity (§ 34 German Penal Code analogously) and supra-legal necessity. In the context of official liability (§ 839 BGB in conjunction with Art. 34 GG), special considerations apply when authorities act without mandate but in the public interest.
IV. Distinctions and typical areas of application
1. Distinction from private-law management of another’s affairs without mandate
Unlike civil law, where the intention to manage affairs in another’s interest is crucial, public law primarily concerns the fulfillment of public duties, especially in cases where another authority or private individual steps in due to an overload of duties or as a substitute.
2. Typical case scenarios
The most frequent areas of application include substitute performance by the authority, safety measures in the event of disasters, the removal of obstructions in road traffic (such as the towing of illegally parked vehicles by the police), and hazard prevention measures.
3. Significance for state liability law
The public-law GoA is relevant in the context of state liability law, particularly with regard to the so-called “outstanding intervention” for hazard prevention, when the administration acts for the benefit of a third party who would otherwise be responsible.
V. Limits and current developments
1. Gaps in the law and analogy
Due to the lack of explicit statutory provisions in general administrative law, the application of the principles is always by analogy to private-law regulations and taking into account the respective public interest involved.
2. Limits to applicability
Public-law management of another’s affairs without mandate is limited where special statutory provisions apply or where administrative action strictly requires a formal administrative act.
3. Current trends and case law
Despite continuing legal uncertainty in certain individual issues, case law affirms the doctrinal necessity of this institute for the functioning of public administration practice, especially in the fields of hazard prevention, disaster control, and substitute performance.
Literature and further references
- Maurer, Administrative Law General Part, 20th edition, Chapter 27
- Kopp/Schenke, VwVfG, Commentary, § 44 VwVfG
- Ossenbühl/Grunsky, State Liability Law
- BVerwG, Judgment of 24.04.2001 – 3 C 21/00
Summary
Public-law management of another’s affairs without mandate is a significant, albeit uncodified, institute of administrative law. It applies whenever administrative measures without a formal mandate are required to safeguard the public interest. Its doctrinal derivation, requirements, and legal consequences are largely shaped by case law and administrative science, making it one of the key auxiliary institutes in German public law.
Frequently asked questions
What requirements must be met for public-law management of another’s affairs without mandate?
For public-law management of another’s affairs without mandate (GoA) to exist, several key requirements must be met. First, there must be so-called “management conduct,” meaning a person (the agent) independently undertakes an action in the public interest without having been expressly authorized to do so by the competent authority or another public body. Unlike civil law, management here must relate to a public-law legal relationship, that is, action within the realm of public law, such as hazard prevention or the exercise of police functions. Furthermore, GoA requires that an objective and third-party transaction is managed, meaning the action must fall within the sphere of another public-law entity or at least affect it. In addition, the action must be performed with the intention of managing on behalf of another, i.e. the intention to do the transaction for another party. Finally, there must be neither a mandate nor a public-law relationship of hierarchical subordination; the latter is especially important for sovereign intervention measures. These requirements serve to distinguish GoA from other legal institutions such as public-law contract law or direct state administration.
What legal consequences result from public-law management of another’s affairs without mandate?
The existence of public-law management of another’s affairs without mandate can lead to various legal consequences, especially claims for reimbursement of expenses or enrichment claims. If a transaction is carried out to avert danger or in the interest of the public sector and results in expenditure by the agent, under certain conditions the agent may assert a claim for reimbursement of those expenses against the entity for whom the transaction was conducted. The legal basis for this depends on the applicable provisions, particularly §§ 683 et seq. BGB analogously or special statutory regulations, which, in public law, are often modified or overridden. Additionally, claims for performance and action may be conceivable if a reversal of what has been done or involvement of the entity is required. Furthermore, claims for damages or consequences such as management liability may become relevant if special damage or legal risks arise from the action. The exact structure of the legal consequences largely depends on whether the action conforms to the objective or subjective interest and the presumed will of the principal—that is, the public entity.
Is public-law management of another’s affairs without mandate subject to the same principles as in civil law?
Public-law management of another’s affairs without mandate is in many respects oriented toward the principles of civil-law GoA, but significantly diverges in certain aspects. In the public-law context, it must always be examined whether special statutory regulations have priority, for example, those found in police and regulatory law, emergency services law, or disaster control law. While civil law focuses on the relationship between private persons, public law is governed above all by hierarchical relationships and the protection of public interests, which may lead to a modified application of GoA. The analogous application of §§ 677 ff. BGB is fundamentally possible in public-law cases, but is limited by the specifics of public law—such as sovereign actions, administrative coercion, or justifications for interference. Also, the intention to act for another party often plays a lesser role in public law or is derived from objective criteria.
What significance does the public-law GoA have in the field of hazard prevention?
In the field of hazard prevention, public-law management of another’s affairs without mandate assumes particular importance when, for example, a private individual or another local authority acts to avert an urgent threat to public safety and order, even though this is in principle the responsibility of the competent authority. This is conceivable, for instance, in cases where the competent police authority cannot intervene in time and third parties must act to avert danger. In such cases, the management is undertaken in the interest of the community or state authority and is often associated with significant expenditures. Subsequently, a claim for reimbursement of these expenses may be asserted against the public sector. This structure allows the maintenance of the rule of law without delaying necessary and urgent actions, but must be clearly distinguished from purely private emergency measures.
How is the intention to manage another’s affairs assessed in the public-law context?
In the public-law context, the intention to manage another’s affairs (“intention to act on behalf of another”) is mainly assessed objectively; that is, the focus is on whether the conduct outwardly appeared to be directed toward the interests of another. The agent’s inner subjective motives are of lesser importance. Thus, especially in emergency measures taken in the public interest, it is presumed that the party acted for a third party’s interests if the transaction typically falls within the area of responsibility of a public body (e.g., police hazard prevention, rescue measures). This objective approach prevents external third parties from entirely pursuing their own interests while claiming reimbursement against the public sector. The distinction is principally drawn by reference to the activity area in which a public interest typically exists.
What liability issues arise in public-law management of another’s affairs without mandate?
Liability questions play a significant role in public-law management of another’s affairs without mandate, especially regarding the prohibition of excess, proportionality, and the agent’s duty of care. Thus, if the agent assumes a transaction, they are liable to the public sector for damages caused by negligent or improper conduct, according to public-law claims for compensation. Conversely, the public entity is liable for lawful measures taken in the public interest only when the requirements of GoA and objective attribution are met. In administrative law, special features arise because obligations to pay compensation and liability consequences are regularly displaced or superseded by special statutory provisions (e.g., police acts, fire service acts), and then the general GoA principles do not apply. In practice, the main significance lies in protecting those acting from unforeseen financial risks.
Can public-law management of another’s affairs without mandate be terminated by administrative act?
As a general rule, the public-law management without mandate (GoA) cannot be terminated by an administrative act, but only through actual or legal measures between the manager and the principal. However, the competent authority may, by means of an administrative act, order the manager to refrain from or complete a commenced measure if the public interest so requires. Such an official measure only terminates the actual management, but does not retroactively affect the already established legal relationship arising from the GoA. In this respect, the claim for reimbursement of expenses or damages from the period of unauthorized management remains intact. The executive can therefore intervene in a regulatory manner but has no direct influence on the creation or non-creation of the GoA as a legal institution itself.
In which areas of public law is the GoA particularly relevant?
The public-law management without mandate (GoA) primarily applies in areas where unforeseen emergencies or gaps in legal competence occur. It is particularly relevant in police and public order law (e.g., hazard prevention by third parties), civil protection (e.g., rescue operations by external units), road law (e.g., removal of obstacles by private individuals), monument protection, and in municipal services of general interest. Occasionally, it is also applied in health law, for example, when disease control measures are taken by third parties because the competent authorities were not available. Wherever action in the objective public interest is required outside of the classic assignment of tasks, the GoA gains significant practical importance as an exceptional provision.
