Chapitre+gestion+d'affaires+Baudouin-Jobin

Gestion d’affaires: management of the business of another (Manager, M and Principal, P)
 * a. 1482**

· Formed between manager and principal · Manager can ask to be indemnified
 * __I Lien d’obligation__**


 * __II Conditions__**

· Manager cannot be juridically obligation to act. There must therefore be an absence of contractual link between M and P, and of other obligation by law/judgment (i.e. liquidator, child custodian etc.) · This is distinct from a mandate: a mandate requires the approval of the principal.
 * 1) Absence of representation**

· The manager has the intent to manage affairs to the benefit of another and not himself (i.e. as opposed to the //in rem verso// solution of unjust enrichment). · Intention to eventually be indemnified. This is not an act of charity.
 * 2) Intention to manage**

· The legal capacity to manage is not necessary · a. 1484 submits the manager to the “general rules of the administration fo the good of another charged with simple administration”. This leads us to… · a. 1355 provides an implicit requirement for juridical capacity.
 * 3) Capacity**

· The act may be material (i.e. window repair) –or- juridical (hire a contractor to carry out the repair). · The act must be necessary or useful to the conservation of a good to maintin the use to which it is normally directed (this could include alienation of the good in certain circumstances) · Manager can’t claim indemnity from principal without demonstrating the conditions in which the act was carried out. The manager should always act with prudence and diligence. · **A. 1487:** The key contextual moment is that at which the act was carried out, not that of reclamation at which point the benefit of the act may have disappeared.
 * 4) Gestion Opportune**

· Relationship between M, P and a third party
 * __III Effects__**

· **A. 1482:** there is an opportune nature to the act · **A. 1490**: inopportune management leads to unjust enrichment. If the principal suffers prejudice, can ask for reparation from the manager.
 * 1.) Inopportune management**

· Three year prescription in which the manager has recourse against the principal for his act. The principal in this time can also go after the manager if a. 1490 applies.
 * 2.) Prescription in recourse**

__A Obligations of the manager__

· Two situations when a 3rd party is involved (contractually linked) i) **a. 1489 al. 2**: the manager is acting the name of the principal, and the 3rd party is aware of this - a. 2130: mechanism of representation - the manager is not, in principle, personally responsible to the 3rd parties as he has denounced his benefit
 * 1) Vis-à-vis a 3rd party**

ii) Absence of knowledge by 3rd party of the gestion - 3rd parties must be able to rely on the appearance of the manager as being party to the contract - **a. 1489 al. 1:** a 3rd party has contractual recourse against the manager (and against principal as well) - **a. 1486 al. 2 and a. 1490**: outline the ability of the manager to carry out recourse against the principal (1486 – with regard to a 3rd party contract)

· The manager assumes 4 obligation with regard to the principal:
 * 2) Vis-à-vis the principal**

· **A. 1483**: the principal must inform asap the managed of the management of an enterprise. · The principal then has the option of giving a mandate, continuing to manage himself, or to end the management.
 * a) Informing the principal of the situation**

· **a. 1484 al. 1**: the manager can’t just abandon the enterprise. He must continue it until there is no risk of loss or the principal is able to take back responsibility. · **a. 1485:** if the manager is decesased, the management does not end. The luiquidator must take steps to avoid loss insofar as he is aware of
 * b) Carrying out the complete enterprise**

· **a. 1484 al. 2**: honesty, loyalty and reasonable care must be present when carrying out the enterprise. · **a. 1318:** a tribunal can mitigate the manager’s responsibility in the case of poor management, with consideration of attenuation circumstances.
 * c) Prudent and diligent management**

· **a. 1363, 1484 al. 2**: the manager is held to rendition of the account · **a. 1364**: rendition may occur by agreement or judicially.
 * Rendition of the account**

__B. Obligation of the Principal__ Execution of obligations and responsibility for another:**
 * 1. Vis-a-vis third parties
 * -a. 1489, al. 2**: the principal is personally and directly responsible vis-a-vis a third party that contracted with the manager if the principal knew the management was occurring, or if he didn't (see A-1-ii above).
 * - aa. 1322, 1484**: the principal is responsible for the faulty acts of the manager in the execution of gestion d'affaires in relation only to the benefits obtained by the principal.
 * - a. 1484**: administration du bien d'autrui - similar situation. This is another case of legal responsibility in the form of vicarious liability.

- //**Fortier c. Assurance-vie Desjardines-Laurentienne Inc**//.: if someone, such as a hypothecary creditor, benefits directly from the management, they may be held to reimburse the principal just as the manager would be. - **//Robitaille c. Grant://** the principal must pay interest on money put forward by the manager. - **aa. 958, 1488:** good faith principles apply to disbursements applied to an immovable of the manager.
 * 2. Vis-a-vis the manager**
 * Reimbursement of expenses**
 * - a. 1486, al. 1**: the principal must reimburse the manager for all necessary and useful expenses - ones that were necessary for conservation or that were not necessary but nonetheless useful or beneficial and preserved or augmented the value of the property.
 * - a. 1487**: the necessity or utility of expenses is appreciated at the moment that they were carried out, not at the time of reimbursement. Unlike in the case of unjust enrichment (a. 1493), if the expenses were deemed opportune in the circumstances but later caused prejudice, the principal must still reimburse the manager.


 * Compensation (indemnisation) for prejudic**e
 * - a. 1486, al. 2**: the principal must compensate the manager for damages suffered as a result of the management even if they are not of his fault (conclusion drawn from case law!).


 * Personal obligations of the manager towards third parties**
 * - a. 1486**: the principal must compensate the manager for obligations contracted in his own name or to his benefit (the principal's).
 * - a. 1489:** a manager acting in his own name is obligated towards third parties and cannot take action against the principal in this scenario. However, he is not held to obligations that were necessary or useful at the time the contract was formed (**a. 1486, al. 2).**