Gentlemen's Agreement. Civil Law Perspective Study

Currently gentlemen's agreement has not been given enough emphasis in the circle of civil law theories, and in judicial practice there is not a uniform way to handle this kind of dispute which is becoming more and more in number and imposing a severe challenge on the appliance of law. In order to have a clear understanding of gentlemen's agreement and solve this kind of dispute justly and reasonably, the author have conducted an extensive research in terms of the definition, nature, feature, types of the gentlemen's agreement, relation to contract, and law relief, etc. by the methods of comparison and empirical analysis. Through four parts of argumentation, it comes to the conclusion: the gentlemen's agreement in the perspective of civil law is a agreement that is not legally binding and is only morally binding; there are both differences and likeness between gentlemen's agreement and contract, and they can be differentiated according to the intention to be legally bound and all kinds of objective factors; as for the dispute of free-ride, the author thinks that the exclusion of default responsibility does not means the exclusion of claims in tort and in quasi-contract, and the liability for tort that assumed to the driver should be reduced. This paper is divided into four parts as follow:1. The general review of gentlemen's agreementIn this part the author first proposes three kinds of definitions of gentlemen's agreement, i.e. the broadest, broad and narrow, which are explained in terms of comparative law, sociology and contract theories. The definition used in this paper is the one in broad sense which refers to the unbinding agreement between two or more parties of equality in the field of civil law. Then, the author conducts a meticulous analysis of the nature and characters of the gentlemen's agreement and thinks that gentlemen's agreement is a kind of conduct in sociality that is not legally binding.2. The types of gentlemen's agreementBecause of its flexibility, gentlemen's agreement is broadly used in judicial practice. In this part, the author first examines the classifications in Civil Law and Common Law, and then presents his own classification according to the scope of application of gentlemen's agreement, i.e. domestic and social agreements, commercial agreements and other informal agreements.3. The relation to contractIt is of vital importance to understand the relation between gentlemen's agreement and contract. The author thinks that there are two kinds of agreements, i.e. binding and unbinding. The former is contract, and the latter is only gentlemen's agreement. They are different in that they have different law consequences, ways of solving disputes, certainty of contents. In view of the complicated relations between them, the author proposes two kinds of standards to differentiate them, i.e. subjective and objective. The subjective one is intention to be legally bound and the objective one is closely related to the value of the agreement, the significance involved, the interest of parties of the agreement and the practice of dealing etc.4. Law relief to the disputes of gentlemen's agreementAlthough gentlemen's agreement is a kind of social conduct, it does not mean that it has nothing to do with law. When there comes dispute that can not be morally solved, law is needed to settle the dispute and strike a balance between the parties. In settling the dispute of gentlemen's agreement, claims in gestio negotiorum, unjust enrichment and tort should be involved. In the perspective of claim in tort, the author proposes some constrictive rules aiming at striking a balance between the parties involved. Firstly, fault is a necessary factor to assume the responsibility. Secondly, the responsibility of the one giving favors should be reduced. Thirdly, to perfect the rules of vehicle insurance in our country through incorporating free rider into the covering of compulsive insurance to disperse social risk.