Medical Intervention and Incapax Patients: The Place of Negotiorum Gestio within Law’s “Fundamental Structural Language”

Abstract

A. INTRODUCTION In 2017, Professor Martin Hogg published a magisterial monograph on the subject of Obligations: Law and Language. From the outset of that work, the author notes that the words used by the parties to obligational relationships―even obligational relationships which are constituted ex voluntate―do not need to, and indeed do not generally, map on to the “fundamental structural language” of the law. This “fundamental structural language” can be understood as the lexicon comprised of those basic terms which are used by “external observers” of obligational relationships―most often being lawyers, legislators and jurists―to “make sense” of the law of obligations conceptually, as well as of specific undertakings in particular. Words such as ‘promise’, ‘offer’ and ‘unqualified acceptance’, to take some basic examples not directly examined by Hogg for “constraints of space”, might be applied by the parties to a (potentially) obligational relationship. However, the subjective understanding that the parties themselves have of these terms, or their respective intentions in using them, will not necessarily correspond with the objective legal understanding of the relevant words. Within the field of ex lege obligations―that is, those obligations which are imposed by law, or arise juridically―there is less (indeed, usually no) opportunity for the parties to demonstrate their own understanding of the words habitually employed to describe the obligational nexus. It does not matter how a negligent driver who is sued for causing injury to another road user would describe their relationship to the pursuer: the institutional position is that they are delictually liable to repair the damnum [loss] that they wrongfully caused. A party to a frustrated agreement might not think or believe themselves to be ‘unjustifiably enriched’ by possessing something given to them in the expectation of their performance of