Poslovodstvo bez naloga i posjedovanje tuđe stvari - problem konkurencije tužbi u doktrini i sudskoj praksi

Benevolent intervention in another’s affairs, known in jurisdictions of the civilian legal tradition as negotiorum gestio from Roman law, is a relevant source of obligations, and is in Croatian law regulated with the articles 1121-1129 of the Croatian Law of Obligations (Official Gazette no. 35/2005, 41/2008, 125/2011, 78/2015, 29/2018, 126/2021). One of the actions or claims associated with negotiorum gestio is the claim of the intervener (negotiorum gestor) against the principal (dominus negotii) for the reimbursement of the expenses incurred during the intervention. This claim is similar to another action, the counter-claim of a possessor against the owner, which is an incidental claim alongside rei vindicatio for the return of an object. According to the articles 164 and 165 of the Croatian Law on Ownership and Other Proprietary Rights (Official Gazette no. 91/1996, 68/1998, 137/1999, 22/2000, 73/2000, 129/2000, 114/2001, 79/2006, 141/2006, 146/2008, 38/2009, 153/2009, 143/2012, 152/2014), a possessor may be entitled to a reimbursement of certain expenses he had in association with the possession of the object being claimed by the plaintiff. Therefore, theoretically, both claims could be brought on the basis of the same set of circumstances (for example, when an intervention in another’s affairs has been done while possessing an object belonging to another). This possibility has been noticed in literature, and indeed has been recorded in practice. The main practical problems included are different rules regarding the scope of the claim (for example, in rei vindicatio there is a possibility for the owner to deduct any benefits the possessor might have had from his counter-claim ; nothing of the sort exists in the context of the benevolent intervention in another’s affairs) and different limitation period between the two actions (three years for the counter-claim of the possessor or five years for the claim of the intervener). The aim of this paper is to analyse pertinent available case law and extant theoretical considerations, in order to provide a more complete assessment of the competition between the two actions in contemporary Croatian law. This problem is known in the German language countries of the civilian tradition as the Klagenkonkurrenz, and is a doctrinally developed concept. Analysis of judicial decisions and theoretical approach to the problem will be put against the backdrop of the general approach to the problem in the civilian (or Roman legal) tradition. With this, we hope to provide a relevant analysis of an existing practical and theoretical problem, which may be helpful in the future judicial or legislative considerations thereof.