Gentlemen's Agreement

from Wikipedia, the free encyclopedia

A gentlemen's agreement is only a morally but not legally binding agreement , therefore a loose arrangement. The agreement is based on good faith and mostly also on mutual trust. The declarations are made without any legal consequences , because the desired success is to be achieved by relying on the partner's word or with the help of decency. It is an example of what is known as soft law , which exists in both private and public law , especially in international law . Since the agreement does not create any legal obligations, only non-legal sanctions are triggered in the event of a breach . Possible extra-legal sanctions are withdrawal from existing relationships or their complete termination.

Occasion, reasons

Reasons for a gentlemen's agreement can lie in a legally inadmissible subject matter of the agreement, i.e. in a violation of legal prohibitions. In antitrust law , a gentlemen's agreement is the term used to describe coordinated behavior by companies that are based on conscious coordination but not on a legal basis. Companies that have a dominant market position as a whole make price agreements and thus exclude free market forces in setting prices to the detriment of the consumer. Coordinated behavior is prohibited under German and European antitrust law ( Section 1 GWB and Art. 101 Para. 1 TFEU ).

Another case can exist, especially among business people, if the contracting parties consider it sufficient to achieve a general agreement, the details of which are left to mutual commercial decency, without the parties having to acquire actionable claims. According to the Hanseatic Higher Regional Court , such non-binding agreements between traders are not uncommon. An agreement called a gentlemen's agreement is characterized by the fact that it is a promise of goodwill and commercial decency on the part of one or both sides, which, according to the will of the parties, should not give rise to any actionable claims. The debtor is expected to behave as a gentleman that should not be legally enforceable.

In international law , agreements between administrators from different states, which are not legally binding on the states, are referred to as gentlemen's agreements . At most they have a binding effect based on good morals. In their effects surpass political declarations of intent (= always reversible definitions of political direction) and codes of conduct ( codes of conduct - non-binding recommendations of a particular pattern behavior). The CSCE Final Act of Helsinki is a classic gentlemen's agreement .

Differentiation from contracts concluded orally

Oral contracts are to be separated from the gentlemen's agreement , which are generally legally binding in their entirety, but whose content can often not be proven in the event of a dispute. Here the agreement reached with a handshake has a social duty to fulfill. An example of this is the international diamond trade . The trade in gemstones worth millions of US dollars is often arranged with a handshake . As soon as a contractual partner does not meet his obligations, he is ostracized and excluded from this elite group. Since the market is manageable and the participants are also closely connected socially, this means the end of business and social life in the diamond industry for the person concerned.

Examples of gentlemen's agreements

  • In American post-civil war baseball , racial segregation for African American players was not written down, but decided in oral agreements of the Major Leagues after the engagement of two African American players, the brothers Moses Fleetwood Walker and Weldy Walker.
  • In the closed society ( Closed Society ) of the US state Mississippi , the unwritten law ( Unwritten Law ), also known as the Gentlemen's Agreement, existed until the 1960s . That law banned state-sponsored educational institutions from participating in sporting competitions between white and black athletes during the Second Reconstruction . As a result, Southeastern Conference winners were not allowed to compete in the NCAA basketball championship tournament without fear of losing government funding. It was not until 1963 that opposed Maroons of Mississippi State University an injunction, which was canceled after the start of the tournament, and sneaked out of the city to East Lansing, Michigan against the Ramblers of Loyola University Chicago to compete with four black players in the starting lineup . This game (a loss) is seen as the beginning of the downfall of the gentlemen's agreement.
  • In German case law, the term “ gentlemen's agreement ” chosen by the contracting parties themselves in a contract on most favored nation treatment for orders has caused the Federal Court of Justice to see no right in this to demand information from the other party about the orders placed with third parties. A right to information about this could arise as soon as the behavior of the other part gives reason to believe that he is abusing the special trust placed in him.

literature

  • Udo Bahnje: Gentlemen's agreement and coordinated behavior. A dogmatic investigation of non-legal business settlement facts in civil law, antitrust law and international law. Athenaeum. Königstein, 1982. ISBN 978-3-7610-6376-7 Zugl .: Diss. Jur. Berlin, 1982.
  • Heinz Richard Heigl: The “gentlemen's agreement” in the law against restraints of competition . Cologne, Faculty of Law, Diss. June 27, 1961.
  • Sigbert Honold: The Gentlemen's Agreement and its Significance in Antitrust Law . Tübingen, legal u. Economics Faculty, Diss. 3rd December 1962.
  • Michael Huber: On the insurance of natural hazards - The English gentlemen's agreement and its development opportunities . In: Quarterly issues for economic research . tape 77 , no. 4 , October 2008, ISSN  0340-1707 , p. 44–52 , doi : 10.3790 / vjh.77.4.44 ( duncker-humblot.de [accessed on October 16, 2018] - freely available from Econstore .).
  • Tomasz Janusz Liczbański: The non-legally binding agreement in international relations. Dissertation Free University of Berlin, 2004.
  • Eduard Stämpfli: The measures taken by the federal government and the private sector to curb construction activity, in particular the gentlemen's agreement on construction financing . Basement, cellar. Winterthur. At the same time dissertation, Bern 1954.
  • Ullrich Stratmann: Antitrust problems with the gentlemen's agreement . Heidelberg, Univ., Diss., 1971.

Individual evidence

  1. ↑ e-specialist dictionary compact law English-German 5.0 , 2010, Langenscheidt Fachverlag, Berlin and Munich and Alpmann and Schmidt legal courses Verlagsgesellschaft mbH & Co. KG, Münster.
  2. ↑ Dietl / Moss / Lorenz, Dictionary for Law, Economics and Politics, 2nd edition 1979; Collins e-large dictionary English-German 5.0, Langenscheidt KG, Berlin and Munich and HarperCollins Publishers Ltd.
  3. ↑ "informal understanding based on trust", cf. e-specialist dictionary compact law German-English 5.0, 2010, Langenscheidt Fachverlag, Berlin and Munich, and Alpmann and Schmidt legal courses Verlagsgesellschaft mbH & Co. KG, Münster.
  4. ↑ a b c BGH, judgment of January 22, 1964 - Ib ZR 199/62 -, MDR 1964, 570 , accessed on October 16, 2018.
  5. ↑ Gabler Wirtschaftslexikon, keyword Gentlemen's agreement , accessed on October 16, 2018.
  6. ↑ Alexandre Flückiger: Pourquoi respectons-nous la soft law? In: Revue européenne des sciences sociales . XLVII-144, May 1, 2009, ISSN  0048-8046 , p. 73-103 , doi : 10.4000 / ress.68 ( openedition.org [accessed October 16, 2018] passim).
  7. ↑ Creifelds, Legal Dictionary, 21st edition 2014, keyword Gentlemen's Agreement
  8. ↑ Creifelds, Legal Dictionary, 21st edition 2014, keyword coordinated behavior .
  9. ↑ OLG Hamburg, judgment of March 17, 1953 - 2 U 147/52 - MDR 1953, 482.
  10. ↑ Ipsen, Völkerrecht, 6th edition 2014, § 10 marginal no. 9 (p. 394).
  11. ↑ By Arnauld, Völkerrecht, 2nd edition 2014, § 3 marginal no. 189 (p. 77).
  12. ↑ Diamond fever. In: Der Tagesspiegel . March 3, 2013, accessed July 10, 2016 .
  13. ^ Leslie Heaphy: Cuban Giants. Black Baseball's Early Sports Stars. in: Separate Games. African American Sport behind the Walls of Segregation. edited by David K. Wiggins and Ryan A. Swanson. Fayetteville, 2016: The University of Arkansas Press. ISBN 978-1-68226-017-3 (pages 3-18, in English).
  14. ↑ Howard P. Chudacoff: Changing The Playbook. How Power, Profit, and Politics Transformed College Sports. Urbana, Chicago, and Springfield, 2015: University of Illinois Press. ISBN 978-0-252-08132-3 (page 26f, in English).
  15. ^ Jason A. Peterson: Full Court Press. Mississippi State University, the Press, and the Battle to Integrate College Basketball . Jackson, 2016: University Press of Mississippi. ISBN 978-1-4968-0820-2 (page 21f, in English).
  16. ↑ Howard P. Chudacoff: Changing The Playbook. How Power, Profit, and Politics Transformed College Sports. Urbana, Chicago, and Springfield, 2015: University of Illinois Press. ISBN 978-0-252-08132-3 (page 26ff, in English).