Historically, in Victorian England, the term “gentleman” carried a complex set of social, cultural, and moral connotations. Being considered a “gentleman” was not solely determined by wealth and power, though these factors played a role. Rather, it encompassed a broader set of characteristics and expectations.

A true gentleman was expected to demonstrate certain social and moral qualities, such as integrity, honor, politeness, and a sense of duty. Gentlemen were expected to act fairly and adhere to a code of conduct emphasizing respect for others. Proper manners and etiquette were essential, while honor and reputation were seen as paramount virtues in high society. As a result, a handshake or mere word of agreement between gentlemen was often regarded as more binding than a formal written contract in today’s terms.

The concept of the gentleman has evolved over time, placing more emphasis on character and behavior rather than inherited wealth or aristocratic lineage. Consequently, the meaning of a “gentleman’s agreement” has also become widely understood and retained its significance to this day. But what exactly is a gentleman’s agreement, and when and how is it used?

A gentlemen’s agreement is essentially a verbal contract—a form of contracting explicitly recognized under Romanian law. The Civil Code contains several provisions outlining how mutual consent forms a valid contract, with consensual agreements being the rule and formalism the exception.

The Romanian Civil Code further provides:

• Article 1178: “A contract is concluded by the mere agreement of wills of the parties if the law does not require a specific form for its validity.”
• Article 1240: “(1) The will to contract may be expressed verbally or in writing. (2) The will may also be manifested through conduct which, according to law, the parties’ agreement, established practices, or customs, leaves no doubt as to the intention to produce the corresponding legal effects.”
• Article 1169: “Parties are free to enter into any contracts and determine their content within the limits imposed by law, public order, and good morals.”
• Article 1170: “Parties must act in good faith during contract negotiations, execution, and throughout its duration. They cannot exclude or limit this obligation.”
• Article 1183: “The party that initiates, continues, or terminates negotiations in bad faith is liable for any damages caused to the other party. Such damages are assessed considering the expenses incurred for the negotiations, the other party’s abandonment of other offers, and any similar circumstances.”

Thus, if two parties capable of entering into contracts reach an agreement on the essential elements of a contract, and the law does not require a written form for its validity, a binding contract is formed.

However, a gentleman’s agreement carries a connotation beyond that of a mere verbal contract. It refers to honor—a high-nobility character trait—and reputation, considered a fundamental human right and a component of the right to dignity. While honor is a personal attribute, reputation can be a key element in business, particularly today, when a brand’s image can sometimes outweigh the product itself.

A gentleman’s agreement can also be formalized in writing and signed by the parties, thus bridging the gap between the absence of any evidence of a contract and a fully written and enforceable agreement. In the negotiation phase, along with an NDA (Non-Disclosure Agreement), a gentleman’s agreement can add clarity to the intentions and understanding of the parties, though it may not be enforceable in court, it can serve as additional evidence in case of disputes.

Beyond reputational damages that might be suffered by a party breaching such an agreement, a gentleman’s agreement could also entail contractual liability, and there is judicial practice supporting this. However, evidence tends to be corroborated, with witness statements, messages, payments, or invoices supporting claims. The real challenge is proving the existence of a consensual contract.

In the negotiation of future distant transactions, we advocate for the use of a written gentleman’s agreement. This preserves the agreement’s connotation while offering additional proof should the other party fail to meet moral expectations. For existing goods or transactions that can already be documented, we recommend opting for more secure forms, such as notarized promises or guarantees.

In conclusion, a “Gentleman’s Agreement”—an understanding between honorable individuals—serves as an interesting legal instrument, capable of generating both moral obligations and legal effects when used wisely.

Author: Atty. Lavinia Rusu