Gentleman’s Agreement And The Tort Liability It Caused

Gentleman’s agreement is widespread in our daily life. Every kind of social engagements, which are carried out not for people’s own economic interests, but purely in purpose of helping others and enhancing friendship, can be classified as gentleman’s agreement. Free of charge, selflessness and not subject to any legally binding agreements are the three main characteristics of gentleman’s agreement.Different from civil legal act and fact act, gentleman’s agreement itself is not regulated by law, but by morality, customs and other social norms. However, when the actor causes some kind of personal or property damages to the other due to his own fault in the process of implementation of gentleman’s agreement, it may fall into the adjusting range of tort law.Gentleman’s agreement has something in common with contracts without consideration. The most significant difference between them is, whether the actor has a legally binding will during the action or not. To judge the existence of such kind of will, we should take various objective aspects into consideration, such as type, reason, purpose of the affair and its economic and legal significance, relationship between the parties and their interest situation, environment during the implementation of affair and the potential economic risks of the affair.If a gentleman’s agreement is not fulfilled according to promise, the other side has neither a performance claim nor a claim for damages of reliance interest. However, as long as a gentleman’s agreement is fulfilled, the actor has no right of claim of restitution of unjust enrichment against the other side. There are also no special obligations to protect each other between both sides of a gentleman’s agreement according to contracts or concluding contracts. If personal or property damages are caused during the implementation of a gentleman’s agreement, only tort liabilities can be penalized according to tort law. In this process, we must not only pay attention to the encouragement of mutual behaviours, but also protect the interests of victims.Doctrine of liability for wrongs should be established as a principle here. Due to its main characteristics, free of charge and selflessness, intentional tort can be excluded during the implementation of gentleman’s agreement. If the actor has gross negligence during his action, he must assume the tort liability for all kinds of damages which he has caused, and such liability cannot be excluded by prior agreement of the parties. If the actor has light negligence, the analogical apply of the rules for contracts without consideration should be taken into consideration. Personal and property damages should be differently treated here. Such liability can be excluded by prior express agreement of the parties, but principally not by implied agreement. We should note that the insurance status of the parties, especially the liability insurance status of the actor, has a great impact on the account of tort liability. To improve the system of motor vehicle liability insurance and thus to expand the role of insurance in covering unexpected losses is a good way to resolve relative disputes.If the other side has a common fault with the actor, the share of the actor’s liability shall be reduced accordingly. In some extreme cases, the share of the actor can be restrictively reduced according to the principle of fairness in civil law, only if the actor is responsible for personal damages due to his light negligence.