Did I need assistance to move down the tree?

Tue 30 March 2021, Philippe Ropenga Negotiorum gestio

Resulting trusts are applied when one interferes with someone else’s property in an ambiguous way. French courts recognise natural obligations that bind a person who did not wish to be obliged to anything towards another.¹ Negotiorum gestio is a Roman quasi-contract that exists in French law. A blog post deals with a case in which these two concepts partially overlap.² Negotiorum gestio is often applied when one interferes with someone else’s property for the benefit of the latter who does not know it. Negotiorum gestio may for example be applied to oblige the owner of a house to cover expenses made to repair the roof after a storm took place in the absence of the owner. A recent appeal case gives us the opportunity to see negotiorum gestio in the context of heir search. A probate genealogist provides information that helps to establish that one is an heir and that there is no other heir than those listed by the genealogist in his report. Negotiorum gestio is applied by courts that check the usefulness (1) and the price (2) of this information.

1 The usefulness of genealogical information

Negotiorum gestio is applied when the genealogist searches heirs without being contracted to anyone. When he founds one, he contacts him and informs that he is able to claim a share of the estate of deceased thanks to the relevant information that is necessary to establish the connection between him and the deceased. The prospect has to decide whether he wants to pay to receive the genealogist's report. The fee usually consists in a share of the heir's share. An heir may be tempted to do the search himself, once that he knows that he will inherit. This is frustrating for the genealogist since he may think that the heir would not have started the search without knowing that he was the heir of a distant relative. If every prospect starts his own search, the genealogist never gets paid for his work. People are however not obliged by contracts that they have not signed. Negotiorum gestio is interesting in this context because it is not a contract but a quasi-contract. The genealogist has to prove that his work is useful. This may seem obvious in a case of succession since it evolves the prospect's knowledge regarding his connection to a distant relative. When it is established that the prospect was not aware of the existence of a distant relative, the usefulness of the genealogical information is clear. One should bear in mind that negotiorum gestio are quasi-contracts and therefore deal with ambiguous situations where one took advantage of the engagement of another without obliging himself to anything. These situations are ambiguous by nature and thus no one should be surprised by the ambiguity of case law. The ambiguity does not come from the law but from the facts. Let us compare two cases to see that solutions are not always obvious.

One has been decided by the Court of Appeal of Amiens³ in France, the other by the French Cour de cassation⁴ that is the supreme court that deals with civil, commercial, and criminal cases. A notary asked genealogists to look for the heirs of a deceased person on 14 January 2015. The genealogists contacted an heir on 17 April 2015 and offered to inform him about a succession without revealing the name of the deceased and let him know that he would have to pay fees to obtain genealogical information. The heir called the notary on 27 April 2015 and wrote her a letter on 11 May 2015. The genealogists revealed some details about the succession to the heir and asked him to sign the contract on 11 December 2015. The heir declined the offer and let the genealogists know that a friend of his cousin had told him about his death in January 2015. The genealogists claim their fees on the ground of the new Article 1301 of the French civil code. The Court of Appeal made clear that the party who brings a claim regarding a negotiorium gestio has to prove that his services have been useful. The genealogists insisted on the fact that the heir called the notary ten days after they contacted the heir about the succession. This short interval proved that the first contact that they had with the heir caused his call to the notary about the succession. The heir provided evidence to rebut this allegation. The friend of the deceased has certified that she had told the defendant about the death of his cousin in January 2015 and the defendant was able to show four pictures and to prove that he had made expenses that corresponded to a visit to the deceased who could be seen on the pictures with the heir. The pieces of evidence revealed a friendly atmosphere at the time of the alleged visit to the deceased in June 2010. The appeal judges have found extremely likely that the heir knew that his cousin was without issue and that his place in the succession line may enable him to inherit. The facts of the supreme court case are sightly different. The Court of Appeal found that even if the heir knew that she was the only heir in her mother's succession line, the assistance of a probate genealogist had been necessary to establish with the appropriate level of certainty that there was no other heir. The solution in the appeal case may seem to be conflicting with that of the Cour de cassation but it is not. The Court of Appeal of Amiens has quoted it regarding another point is about to be discussed. The Cour de cassation and the Court of Appeal both considered whether the heir needed the information provided by the genealogist to claim his share of the estate. The answer varies according to facts.

It has been seen that negotiorum gestio in cases of heir search was essentially a matter of fact. Solutions to cases are thus highly likely to be as ambiguous as the facts of these cases. Let us now that applying negotiorum gestio requires to pay attention to the price of genealogical information.

2 The price of genealogical information

This point is much sorter than the previous one and has to treated separately. Once genealogical information has been proved useful, one has to determine its price. The appeal case is interesting since it compares the new legislation regarding negotiorum gestio with the previous one provided by old Articles 1375 and ff. of the French civil code. The appeal judges quoted the Cour de cassation and stated that a principle remained unchanged by Ordinance nº 2016-131 dated 10 February 2016 that is now in force: genealogists can only make a claim regarding their expenses not their fees since no contract has been signed. Not only can a genealogist not charge a prospect fees but he also has to justify very precisely the expenses made to search for heirs. This is a matter of fact as you see, and the Cour de cassation deals with matters of facts in a specific manner as you know⁵. The supreme judges do not check evidence but make sure that law has been correctly applied to the facts. When they consider that lower judges have not examined facts correctly when applying the law, they quash the appeal case for lack of legal basis or manque de base légale. They have found here that there were not able to determine what had been done by the genealogist nor what their expenses were. This part of the appeal case has been quashed.

It has been seen that negotiorum gestio only allowed to claim very precisely justified expenses, not the expected fees.

In brief, some aspects of heir hunting are ambiguous by nature. You should therefore be able to prove anything that has been done. I also assume that you may be more interested in a less ambiguous hunt at the moment, that of Easter eggs or chocolate bunnies. I hope that your loved ones will be able to join you for Easter.

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