Izvorni znanstveni članak
https://doi.org/10.31141/zrpfs.2018.55.128.387
Negotorium gestio: theoretical legal analysis
Žaklina Harašić
; Pravni fakultet Sveučilišta u Splitu, Split, Hrvatska
Sažetak
This paper is aimed at understanding the concept of negotiorum gestio from the viewpoint of legal theory. If the prevailing manner of viewing that concept in available legal literature is used as the starting point in our research, one might end up surrounded by individual perceptions thereof, e.g. dogmatic or historical or comparative perception, but no one will come across a universal, jurisprudential perception of negotiorum gestio. Such a perception can result from integral application of several methods (together) or more precisely, using the dogmatic, historical and comparative method simultaneously. Why cannot we comprehend negotiorum gestio completely using only a single method? It is because each of these methods perceives that concept from a certain aspect. The dogmatic method sees negotiorum gestio as a legal institution in a concrete positive legal order, e.g. Roman, French and German legal order. The historical method explains negotiorum gestio by means of an individual, unique cause or by virtue of some other occurrence as its unique, individual cause. The comparative method will probably lead us to a perception that depicts the similarities and difference of negotiorum gestio in different concrete legal orders. Still, application of particular methods (individually) will not bring us to full understanding of negotiorum gestio – which is required and provided by a jurisprudential perception thereof. The need for full understanding of the concept in question is derived from the assertion that each of the above perceptions assumes that negotiorum gestio has appeared in a multitude of concrete legal orders for than two thousand years. Let us not forget that the concept of negotiorum gestio is from the viewpoint of legal theory (jurisprudence) an ideal type (in Weber’s sense).
Ključne riječi
jurisprudential perception; ideal type; dogmatic method; historical method; comparative method
Hrčak ID:
199096
URI
Datum izdavanja:
19.4.2018.
Posjeta: 2.170 *