Definition Of Friendship Behavior And Discussion On Its Responsibility

Friendship behavior (Gefalligkeiten), also known as the "kindness patronage" or"patronage behavior", called "Gentleman’s Agreement" in the common law. It refersto behavior implement for free based on friendship or morality in the aspect of society,which is lack of legal effect. In most cases, this kind of behavior is not adjusted bylegal norm, but by the customs and habits, so it is the most appropriate to define itwith social behavior, in order to avoid too much interference by the law. But whenpeople suffer with friendship behavior, this kind of behavior will return to legalperspective, to seek legal basis, to protect the legitimate rights and interests of victimparties.There is little study on friendship behavior at present, only a few scholars’ book inGermany and Taiwan can be found, such as Dieter Medicus’" German civil lawgeneral remarks", in the definition of legal act chapter are the friendship behaviorintroduced, and the identification of nature of friendship behavior and tort liability toreduce has stated a lot. About friendship behavior in Germany cases, one of the mostfamous cases is "the lottery case" and "the pill case", etc., has talked about how isfriendship behavior adjusted and how to bear the responsibility by law. Scholars inTaiwan,"the debt law principles" wrote by Wang Zejian and " The civil law of debtstructure " wrote by Huang Li have the same opinion on the identification of nature offriendship behavior with the German point of view, but have different opinions on the responsibility in triggered by friendship behavior. Research on friendship behavior byscholars in Civil Law system is very scarce, and few monographs about this kind ofbehavior, only some discussion can be found in some scholars’ thesis. This paper,under the limited data, draw lessons from forefathers’ research results, combine withtheir own views and opinions, explore for friendship behavior qualitative and theproblem of responsibility.This article altogether is divided into four parts: Firstly, refer to the two typicalcases in real life, raising a question formed by the facts of and the outcome of the case.This article elaborates the concept, characteristics and classification of friendshipbehavior, comparative analysis of understanding of the continental law system such asGermany, Taiwan scholars and Anglo-American law system about these problems.The second part mainly introduces the nature of the friendship behavior, and analyzesits difference with legal act, factual behavior, finally defines the friendship behaviornot by law adjustment and constraints. This part also examines the standard forjudgment on friendship behavior in the continental law system and Anglo-Americanlaw system, and analyzes the merits of the subjective standard and objective standard,subjective criteria are designed to emphasize to explore the behavior personsubjective whether there is a legally binding, objective criteria are asked to considerthe occasion and trading habits, as well as the risk of friendship behavior. Onlycombine the subjective and objective standard, the final conclusion will be morescientific and more accurate. The third part is about infringement responsibilitycaused by friendship behavior, in terms of friendship behavior effectiveness, ruled outthe application of the right of claim, and analyzes the pure economic loss; In thecomposition of damage compensation liability, elaborates the standard of the duty ofcare, the principle when constitute tort imputation, and the situation of tort liability toreduce and eliminate.