Abstract
The term private law as distinguished from public law is not defined by Thai statute law. Justinian’s definition publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem pertinet, still indicates the line of cleavage. It should be remembered, however, that there are cases where public bodies exercise private rights as property owners or as employers of labour and that such rights, though exercised for the public benefit, are regulated by private law. The Thai Civil and Commercial Code and the other enactments referred to in this treatise deal with private law only, but there are matters on the borderline to which attention will be called in their several proper places.
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Notes
- 1.
Dig. I.1.1§ 2, Ulpian: public law is the law that concerns the position of the Roman state; private law is the law that concerns the interest of the individual citizens.
- 2.
See in this sense Engel and Engel (2010), pp. 38–39.
- 3.
On this point, see Stasi (2015), pp. 14–15.
- 4.
The king’s son, Prince Raphi Pattanasak of Rajburi, was sent to study law in England, and in 1896, he was appointed Minister of Justice. Thanks to his reforms, Prince Raphi is today considered as the father of Thailand’s modern legal system. Prince Raphi established the first law school in the country in 1897, using the Ministry of Justice building, designed the syllabus, and selected the students himself. In his fourteen years in office, he laid down the foundations of the Thai legal system. Another key figure during the reign of King Rama V was his Adviser-General, Belgian jurist Rolin-Jacquemyns, who played a very important role in establishing Thailand’s modern legal system. He coedited the legal Code in 1897, recommended the creation of a law school to King Rama V, and coexamined the bar exams for the law school. On this point, see McCargo (2015), p. 30. See also Preechasilapakul (2003), pp. 17–20.
- 5.
See, among others, Prachoom (2015), p. 66.
- 6.
On this point, see Loos (2006), p. 62, who states that ‘The problem appears to have been in part their lack of proficiency in English. Despite the entirely French and Siamese membership of the drafting commission, the Civil Code was initially drafted in English by the French members, three of whom were sent to improve their English in London in 1908 before coming to Siam. They drafted the Codes without input by bilingual Siamese, not because of imperial tendencies on the part of the French legal advisers or inabilities of Siamese officials, but because of the limited availability of and great demand for Siamese officials with bilingual fluency in English and Thai. When Padoux returned to Paris in 1912 for reasons of ill health, he also was disappointed in his work. By 1913, poor health or not, Padoux resigned his post in Siam and signed on to work as an adviser in China’.
- 7.
Letter of King Rama V to Jens Westengard, 24 February 1910.
- 8.
The Japanese Civil Code was chosen mainly because it represented a successful approach of transforming private law from an oriental-style country to a Western-style country, and thus, Thailand could avoid significant risks and uncertainties if she followed the Japanese model. Therefore, the development of Thai private law is principally an amalgamation of different legal paradigms of different countries, including Germany, France, and Japan. Only in the domain of family law, has an autonomous model been used.
- 9.
On this, see in particular Powel (2009), who observes correctly that ‘the Thai legal register has been tainted by English grammatical construction. While Thai does not employ a passive voice equivalent to the English passive, there are many instances in the Civil and Commercial Code where the syntax of the Thai closely mimics the English, producing sentences which are not how Thais would say things at all and yet which have become familiar to and are routinely copied by legal drafters’.
- 10.
See Stasi (2015), p. 16.
- 11.
A Thai version of the Civil and Commercial Code can be found in the Legal Execution Department’s Website at http://www.led.go.th/datacenter/pdf/1_5.pdf. There is no official English version. A recommended English translation can be found in Sandhikshetrin (2008).
- 12.
The BGB is divided into five books, of which the first contains general rules, while the second, third, fourth, and fifth books, respectively, deal with the ‘law of obligations’, ‘the law of things’, ‘family law’, and ‘the law of inheritance’. The structure of the BGB is in line with the structure of the Pandektenlehrbucher, i.e. the systematic books on modernized Roman law which was the ‘Common Law’ of Germany before the introduction of the Civil Code.
- 13.
For a detailed discussion on this point, see Nipitikul (2001), pp. 32–38.
- 14.
See in regard to more comprehensive discussion Saengyouthai (2011), p. 49.
- 15.
On this theme, see especially Auaychai et al. (1982), p. 19.
- 16.
Kasemsap (1981), p. 54.
- 17.
On this, see in particular Kriwichian (2007), p. 92.
- 18.
See Stasi (2016), pp. 16–17.
- 19.
See in regard to more comprehensive discussion Kasemsap (1981), p. 42.
- 20.
See in this sense Stasi (2016), p. 25.
- 21.
On this aspect, see for all, Prachoom (2015), p. 63.
- 22.
It is relevant to point out that under English law, the delicate situation of the unborn child has somewhat been clarified by the Congenital Disabilities (Civil Liability) Act of 1976 which provides that a child who is born alive but disabled as a result of an occurrence before its birth may bring an action in tort for recovery of damages.
- 23.
On this theme, see especially Stasi (2015), p. 32.
- 24.
In this sense, Harris (2005), p. 108.
- 25.
On this point, see Prachoom (2015), p. 63.
- 26.
Ibid., p. 65.
- 27.
In this sense, Stasi (2015), p. 34.
- 28.
Domicile and residence are sometimes used interchangeably, but they are not the same. Residence has a more restricted meaning than domicile. It indicates the place where someone lives and is used as a legal concept to fulfil one of the requirements of domicile.
- 29.
On this point, see Stasi (2015), p. 43–46.
- 30.
For a detailed analysis on this point, see Leage (1906), p. 47.
- 31.
The effect of these distinctions, and the distinction between capacity for juristic acts and capacity in respect of the commission of unlawful acts, will be explained below in Sect. 1.5.2.
- 32.
Jaisamoot (1971), p. 32.
- 33.
See in particular Prachoom (2015), p. 81.
- 34.
Ibid., p. 80.
- 35.
For more detailed discussion on this topic, see Thingsapati (1984), pp. 28–49.
- 36.
Prachoom (2015), p. 84.
- 37.
Jaisamoot (1971), p. 12.
- 38.
There is in England a distinction between persons of unsound mind not so found, and persons adjudicated incompetent by a court, but this distinction has not the same effect as the corresponding distinction in Thai law. A lunatic so found according to English law is not, by reason of that fact alone, incapable for all purposes. On the other hand, a person placed under guardianship by a Thai court on the ground of mental disease is under complete incapacity. Persons of unsound mind not placed under guardianship on the ground of mental disease are under complete incapacity if their soundness of mind is of a nature to prevent the free exercise of their power of volition is not merely of a temporary character.
- 39.
In certain cases of serious physical handicap or mental disorder, the court may give an order empowering the curator to act on behalf of the quasi-incompetent, thereby mimicking the Roman tutorial device, albeit without its concomitant demerit of lack of mandate (Section 34, paragraph 2, Civil and Commercial Code). On this point, see Prachoom (2015), p. 81. See also Jaisamoot (1971), p. 69.
- 40.
Stasi (2015), p. 28.
- 41.
See in particular Prachoom (2015), p. 96.
- 42.
Khurusuwan (2012), p. 27.
- 43.
On this point, see Stasi (2016), p. 29.
- 44.
For a more comprehensive treatment of the subject, see Stasi (2016), pp. 29–31.
- 45.
Ibid., p. 31.
- 46.
On this aspect, see the observations by Chanwirat (1992), pp. 29–42.
- 47.
These primary agents must be distinguished from agents appointed by the primary agents, whose powers may be as varied as the powers of the agents of natural persons.
- 48.
In this sense, Minakanit (2009), pp. 52–53.
- 49.
See again, Stasi (2016), p. 30.
- 50.
Posataboot (2000), pp. 76–89.
- 51.
Ibid., p. 92.
- 52.
As far as such artificial indivisibility as well as divisibility is concerned, perhaps instances of Roman law can shed some light on the applicable criteria. Thus, a communio existing among co-owners was, while it lasted, indivisible, but with judicial intervention, it could be dissolved and therefore made divisible, it being made clear that, in Roman thinking, artificial indivisibility was voluntary. Unfortunately, Roman law not only indiscriminately embraced property as well as property objects, the focus of Thai law, but also devoted its attention to judicial, artificial, as well as physical division. On this point, see Prachoom (2015), p. 113.
- 53.
The distinction between ‘movable’ and ‘immovable’ things, categories bequeathed to civil law systems by Roman law, became the principal basis of classification during the high Middle Ages where they conveniently served to distinguish land from anything else that could be owned privately. In English law, it has tended more and more to replace the old classification of things as real and personal. On this point, see Lee (1956), p. 111. See also Howell (2007), p. 538.
- 54.
It is noteworthy that the Civil and Commercial Code has adopted not only the Roman distinction between movables and immovables, but also its concomitant ambiguity. As noted earlier, in its simplest sense, res in the law of property merely indicates a physical object, sometimes known as property object, but for lawyers, there are also such intangible things (e.g. notes, shares, franchises, patents), a common denominator between these two kinds of thing being that both are assets of economic value. Both a sangharima sap and sangharima sap envisaged in Sections 139 and 140 of the Civil and Commercial Code, respectively, being essentially sap as they are, literally refer to property objects but so generous a construction is put on them that they are made to denote property in the widest possible sense to reflect the convenient equivocation of the Roman res. On this point, see Prachoom (2015), p. 112.
- 55.
For a detailed discussion on this point, see Waayupap (2012), p. 23 ff.
- 56.
Ibid., p. 87.
- 57.
See in regard to more comprehensive discussion Suchiwa (2007), p. 17.
- 58.
On this point, see Auaychai et al. (1982), p. 73.
- 59.
On this theme, see especially Suchiwa (2007), p. 42.
- 60.
Stasi (2016), pp. 38–39.
- 61.
Periodical outgoings are apportioned in the same way as payments received periodically; outgoings not being of a periodical kind must be paid by the person chargeable with the outgoings at the time when they are payable.
- 62.
On this point, see Minakanit (2009), p. 82.
- 63.
On this aspect, see Posataboot (2000), p. 107.
- 64.
On this aspect, see also the observation of Kriwichian (2007), p. 131 ff.
- 65.
Stasi (2015), p. 45.
- 66.
Ibid., pp. 222–223.
- 67.
Owners of unregistered trade symbols do not enjoy the same broad protection as the owners of registered trade symbols. Pursuant to Section 46 of the Trademark Act, the only remedy available for owners of unregistered trade symbols is a passing-off action. Passing-off actions arise out of the use by the defendant of any trade symbol which is identical with or deceptively similar to the plaintiff’s trade symbol. This prevents traders from misleading customers and holding out their products as having some association with other traders when this is false.
- 68.
Under the Trademark Act, national symbols include those which are ‘identical to national or royal flags, royal or government emblems or seals, the state name, and names or representations of members of the royal family, as well as symbols of international organizations’ (Section 8).
- 69.
It must be pointed out that Thailand is not a member of the Madrid System for the International Registration of Marks. It follows that a person must submit a trademark registration application to the Department of Intellectual Property in order to register a trademark in Thailand.
- 70.
It is interesting to note that many civil law countries prefer to use the term ‘author’s right’ in lieu of ‘copyright’ (e.g. droit d’auteur in France, Urheberrecht in Germany, diritto d’autore in Italy, and chosakuken in Japan). The expression ‘author’s right’ is more expressive than copyright because it includes the author’s exclusive right to the publication (which expression includes public reading, recitation, and performance) of an unpublished work (common-law copyright) as well as the exclusive right to the reproduction of a published work (copyright in the ordinary sense of the word). In this text, the usual translation (i.e. copyright) has been preferred to a more natural sounding one (i.e. author’s right).
- 71.
Under Section 9 of the Thai Patent Act B.E. 2522 (1979), an invention of which the application would be contra bonos mores is not patentable. The following inventions are also excluded from patent protection: natural micro-organisms and any component of micro-organisms, plants or extracts from animals or plants; scientific and mathematical methods and theories; data systems for an operation of a computer (computer programs); and methods of diagnosis and treatment or cure of human diseases or animal diseases.
- 72.
See again Stasi (2015), p. 214 ff.
- 73.
Originally, patents lasted only fifteen years from the filing date. In 1992, a new Patent Act (No. 2 B.E. 2535) sought to amend the 1979 Act, and it changed the term of protection to twenty years from the date of filing (Section 35, Patent Act). During this period, no one has the right to produce, use, sell, or import the invention without permission. At the end of the twenty years, however, the product or process enters the public domain. In other words, the patented product is available to the whole world. The Patent Act does not provide any possibility of renewal or extension upon expiration of the patent.
- 74.
A claim for such damages must be filed before the court after the patent has already been granted to the applicant.
- 75.
An attack against the property of the person concerned is for this purpose deemed an attack directed against him.
- 76.
To take an example, a person who kills a ferocious dog attacking his own dog acts in lawful self-defence; but a person who kills a valuable horse which has strayed from a neighbouring paddock into his garden to the danger of his flower beds is, not acting in lawful self-defence, as the loss inflicted on the horse’s owner is quite out of proportion to the loss which would have been incurred by the destruction of the flower beds. See a comprehensive list of examples of self-defence in Minakanit (2009), pp. 177–191.
- 77.
In this sense, Poonyapun (1978), p. 88.
- 78.
On this aspect, see for all, Sumawongse (1981), p. 69.
- 79.
A juristic act constituted by the declaration of intention of one person only (e.g. a notice to determine a lease, a testamentary disposition) is called ‘unilateral’ (in Thai: nitikam fai dio), while a juristic act requiring concurrent declarations of intention on the part of several persons is called ‘an agreement’ (in Thai: sanyaa). The declaration by which a unilateral act is constituted may either be one which is not effective unless communicated to another party (e.g. a notice), or it may be effective without communication (e.g. a will). In the first case, it is called ‘a declaration of intention requiring communication’.
- 80.
As we will see in detail in Sect. 1.5.9, voidable means that the act can be either made void or ratified by the legal representative. A void juristic act has no legal effect from the moment; it was made by operation of law, automatically, without any declaration of the parties required. When a voidable Transaction is avoided, and it is to be regarded as void from its inception date. When a voidable transaction is ratified, it is then perfected and no longer subject to disaffirmance.
- 81.
See, for instance, Articles 1123 and 1124 of the French Civil Code .
- 82.
On this point, see above Sect. 1.2.4.
- 83.
If the restricted capacity of a contracting party was unknown to the other party, or if it was falsely represented to such other party that the required authorization had been given, the party misled by such ignorance or such misrepresentation may, at his option, withdraw from the agreement. On this point, see Kasemsap (1981), p. 108.
- 84.
Setabutr (2008), p. 134.
- 85.
See in particular Haemaratchata (1992), pp. 21–22.
- 86.
In regard to the method of declaration of intention, parties must express their intent objectively. Law is not concerned with what a party may have actually thought or the meaning that he intended to convey. Normally, the declaration of intention corresponds to the subjective intention of the actor. Thus, the intention of a party is analysed as it reasonably appears from his or her words or actions. On this point, see Stasi (2015), p. 60.
- 87.
Panthulap (1979), p. 160.
- 88.
The Civil and Commercial Code contains express general rules as to the interpretation of juristic acts. More precisely, Section 171 of the Civil and Commercial Code states that ‘in the interpretation of a declaration of intention, the true intention is to be sought rather than the literal meaning of the words or expressions’.
- 89.
An example will help clarify this point. Suppose A declares his intention to donate his land to B, when in reality a sale agreement is being made. In this case, the concealed contract (sale contract) binds both parties as long as it meets all the conditions for its validity. Similarly, if a debt intended to be assigned by way of mortgage as security for a loan is in fact assigned absolutely, the transaction as between the assignor and the assignee is treated as a mortgage. On this point, see Stasi (2015), pp. 61 and 73.
- 90.
Setabutr (2008), p. 152.
- 91.
Sodpipan (2002), pp. 88–94.
- 92.
Ibid., p. 102.
- 93.
A comprehensive overview of the issue can be found in Haemaratchata (1992), p. 65.
- 94.
The contracting party in bad faith, however, is liable for damages resulting from the fraud (Section 161, Civil and Commercial Code). On this point, see Stasi (2016), p. 76.
- 95.
Ibid., (2016), p. 78.
- 96.
On this theme, see especially Setabutr (2008), p. 173.
- 97.
Haemaratchata (1992), p. 43.
- 98.
This includes juristic acts which tend to interfere with good government, juristic acts in conflict with the proper discharge of official duties and responsibilities, and, more generally, juristic acts against the public interest of the state in its internal relationships. The constitutional law, the criminal law, and the administrative and fiscal law are founded on principles of public policy, their aim being the protection of the collective interest of individuals. Two private parties cannot infringe or alter the imperative norms of the country. On this point, see Stasi (2016), p. 66 ff.
- 99.
See a comprehensive list of examples in Sodpipan (2002), p. 111.
- 100.
For instance, Section 570 of the Civil and Commercial Code states that if the lessee continues to use the property after the expiry of the agreed period and the letter is aware of this fact and makes no objection, the parties are deemed to have renewed the contract for an indefinite period.
- 101.
Panthulap (1979), p. 195.
- 102.
See in particular Stasi (2015), p. 67.
- 103.
On this point, see Setabutr (2008), pp. 183–191.
- 104.
Haemaratchata (1992), p. 119.
- 105.
Sodpipan (2002), p. 61 ff.
- 106.
See again, Panthulap (1979), p. 191.
- 107.
Setabutr (2008), p. 189 ff.
- 108.
Under Section 181 of the Civil and Commercial Code, a voidable act cannot be avoided later than one year from the time when ratification could have been made or later than ten years since the act was done.
- 109.
On this theme, see especially Auaychai et al. (1982), p. 245.
- 110.
In the usual English terminology, the expression ‘agent’ is frequently applied to designate any person employed by another, whether as a messenger, as an independent contractor, or as an agent within the meaning defined above, but in the course of this treatise, it will be used in the narrower sense only.
- 111.
For a more detailed discussion on the distinction between active or passive acts of agency, see Nipitikul (2001), pp. 101–103.
- 112.
On this point, see Stasi (2016), p. 32.
- 113.
Where a mere presumption is established, the effect of restrictions on third parties is made subject to certain conditions as to publicity.
- 114.
A comprehensive overview of the issue can be found in Khurusuwan (2012), p. 77 ff.
- 115.
No question as to agency can arise under Thai law in the case of acts done on behalf of unnamed or undisclosed principals. A person, who does not professedly act on behalf of a named principal, cannot be treated as an agent, and a person, who was not named as principal by the agent acting on his behalf, cannot be treated as principal by the other party. If the intention to act on behalf of another is not made manifest, the absence of the intention of a person to act on his own behalf cannot be taken into consideration.
- 116.
In this sense, see Stasi (2016), p. 33.
- 117.
It must be pointed out that in the case that such a request is made, the ratification is inoperative unless communicated to the party making it.
- 118.
If a unilateral declaration of intention is communicated to a person who consents to receive it on behalf of another, but has no authority to do so (e.g., if a notice to determine a lease is addressed to the lessor’s solicitor without the lessor’s authority), ratification may take place in the same way as in the case of an active act of agency.
- 119.
This rule substantially agrees with the corresponding rule of English law.
- 120.
It is noteworthy to observe that under Section 827, paragraph 2, of the Civil and Commercial Code, ‘the party who revokes or renounces the agency at a time which is inconvenient to the other party is liable to such party for any injury resulting therefrom’.
- 121.
In this regard, Section 828 of the Civil and Commercial Code provides that when the agency is extinguished by the death of the principal or by the principal becoming incapacitated or bankrupt, the agent must take all reasonable steps to protect the interest entrusted to him until the heirs or representatives of the principal can protect such interest. Similarly, when the agency is extinguished by the death of the agent or the agent becoming incapacitated or bankrupt, the heir or the person having lawful charge of the agent's estate must notify the principal and take steps to protect the interest of the principal as may be reasonable under the circumstances until the principal can protect such interest (Section 829, Civil and Commercial Code).
- 122.
The expression ‘disposition’ occurs very frequently and includes every transaction by which a right is transferred to another, or charged or pledged in favour of another.
- 123.
It must be pointed out that under Thai private law, the authorization of a juristic act may be revoked at any time before it has been acted upon, except in a case in which, owing to the special relation between the parties, the assent was irrevocable. On this point, see Kasemsap (1981), p. 95 ff.
- 124.
It is important to note that such security is not available in respect of any claim for arrears of interest or of any other payments or deliveries due at periodical intervals, in so far as such claim is barred by prescription.
- 125.
In the case of a claim which is established by judgment or has the force of such a claim, the period is ten years, without regard to its original nature; where, however, a claim for periodical future performance is established in this manner, the ordinary rule is applied.
- 126.
On this point, see Stasi (2015), p. 81.
- 127.
Thus, for instance, the right of a statutory heir to avoid a testamentary disposition which excludes him only arises at the moment at which he becomes aware of the ground of avoidance. The period of prescription in such a case runs from the latter date only.
- 128.
A person under incapacity cannot under any circumstances be sued, while he has no legal representative, but a person of restricted capacity can sue or be sued without his legal representative in respect of any transaction into which he can enter without the assent of his legal representative.
- 129.
See comprehensively Stasi (2016), p. 83 ff.
- 130.
This rule, however, is not applied in any case in which the debtor’s temporary right to refuse satisfaction is based on one of the following grounds: on the exceptio non adimpleti contractus; on one of the special grounds of defence open to a surety; or on one of the dilatory pleas open to an heir of the original debtor.
- 131.
In regard to the suspension of the period of prescription, see Nipitikul (2001), p. 149.
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Stasi, A. (2016). General Rules of Thai Private Law. In: General Principles of Thai Private Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-2191-6_1
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