March 28, 2010

Assessment V – Critics of the Doctrine of Gentleman Agreements

Refering to the ICP-presentation about the English concept of Gentleman Agreements, these are agreements that are no contracts. Often because they are not precise and clear enough. Sometimes they seem to be performed without any words spoken by the actors. According to the presentation, there is no written document.

In my point of view (conform to the French and German legal system) the fact that there is an agreement means that there IS a contract. The written form or any other criterium of behaviour of the parties is not required for the existence of a contract. It seems obvious to me that there is a contract determining precisely the obligations of the parties, otherwise they wouldn`t act in the way the other party expects him or her to perform.

In my opinion the problem is not that the agreements are not clear enough and that there`s no written evidence for the contract, but that in most of the cases the object of the agreement is of such a nature that a state does not want it to be executed. This might be the case for daily life promises between familiar persons, where a state doesn`t want to intervene due to the privity of the affair and/or because of the triviality of the content of the contract. The rest of the so-called gentleman agreements are not wished to be qualified as executory contracts on behalf of the illegality of their object. Taking the example of a contract about dealing smuggled diamonds against arms, I wouldn`t say that there is no contract because the acting parties behave in a dubious manner that isn`t clear for an objective observing third person. I would say the simple reason why there is no valid contract is that the agreement is about an illegal deal, hence an affair that a state doesn`t want to be executory but prohibited if possible. The same is true for agreements between huge supermarket chains fixing identical prices for products. This is not a non-contract because its hidden. It is rather a contract that is void because it infringes laws prohibiting price-fixing.

I prefer identifying things as what they are as far as possible, therefore I dismiss the concept of gentleman agreements as far as it denies the contractual character to agreements that are clearly contracts fulfilling requirements as the essential elements offer and acceptance and a very French certain object but also, refering to the Common Law, consideration/ quid pro quo. Their only failure consisting in being in its essence against the law or more directly spoken against the volition of the state.

My approach is consequently applied positivism. As problems that so-called failed-states with unjust norms, suppression and violence against humans, may present are not solved by denying their character of a state, deals with immoral content do not vanish by refusing naming them contracts. The existence of law and legal structures should be determined in a scientifical, moral-neutral way.

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