Service without assignation (negotiorum gestio)

2019-03-11 i AVTALSRÄTT
Hello I am in dispute with a Samfallningshets forrening of which I am a member ( owner of a stugor). The forrening has a private car parking area for its members which was in need of maintenance due to pot holes and neglect, and which therefore constituted a risk to any people using it. The forrening did ot carry out the work so I undertook the work myself. 5000 SEK in materials were bought and 2 days of labour in order to fix the damaged areas and improve the state of the car park.When I asked the Forrening for payment for the work and materials they refused on the grounds that the work had not been ordered by the forrening.I would like to know if I have a right to be paid for my time and cost of materials.

Hello and thank you for turning to Lawline with your question. Please see the tex in bold below if you don't wish to read the entire answer.

Although there are some regulations in the lag om om förvaltning av samfälligheter (law regarding the caretaking of samfälligheter) which states that the samfällighet shall cater to the needs of its members, there is no provision that you can base your claim on. If you have any internal policies or contracts that dictates situations like these, I suggest that you invoke them.

Otherwise, this is a case of negotiorum gestio, an unauthorized management of affairs, in Swedish called tjänst utan uppdrag – service without assignation. It's generally not recognized in Swedish law, and not regulated in any law. There exist some court decisions on the topic however, and some legal doctrine, which I will use as sources for this answer (although they won't be disclosed due to Lawline policy). Given the nature of these sources (unlike law, they are not legally binding, but carry some weight), you can't take anything I write for granted.

A basic principle of almost every civilized legal system is the principle of freedom of contract. This not only includes the freedom to enter into contracts, but also the freedom to refrain from doing so. Therefore, the starting point is that you are not entitled to payment, since no deal was made. The principle of freedom of contract is not absolute however. Say for example that you leave your phone at home and go away on vacation. While you're away, a football finds its way to your living room window and breaks it. Shortly afterward a downpour starts. Shouldn't society encourage a friendly neighbor to fix your window – preventing all your precious art from going down the drain – knowing he will be compensated?

Well, not so much according to the courts. Both the Court of Appeals (Hovrätten) and the Supreme Court (Högsta domstolen) have been reluctant to compensate friendly neighbors, although compensation have been granted in some cases. However, in one case, it was a matter of emergency, and in another, compensation was handed out for a different reason than negotiorum gestio. One can anyway derive a criteria that almost always (except in emergencies and possibly other situations) must be fulfilled in order to be entitled to payment, and that is a failed attempt to contact the benefactor of the service (huvudmannen, H). In your case, H is the samfällighetsförening. If you did not try to contact H before doing the work, your chances of compensation on the basis of negotiorum gestio are virtually zero. This is also the case if H promised to carry out the work, or rejected your offer to do it. It must have been impossible to get H's opinion. I don't have enough background information to know for sure what preceded your decision to undertake the work yourself, but I can't make any other assessment than that H was available for inquiry. Therefore, you unfortunately have no right to get paid.

Because of my conclusion in the section above, I will not go on further. There are other criteria that needs to be fulfilled, but I don't find it necessary to go through them. If I have misinterpreted the situation, you are welcome to get back either directly to me in the comment section below, or post a new question, preferably including the link to this answer, which will be contained in the URL at the top of your screen.

Until then I wish you the best of luck.

Jesper Eng
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