Talk:2468th Sec 0204

Presumption of the debtor's liability for default

The Thai drafters followed the Japanese concept regarding the remedies for non-performance (Japanese Arts.412 – 426). However, Art.412 was replaced with the German traditional § 271 for the issue "Time for performance" and § 284 for the issue "the debtor's default in performance". The traditional § 284 clearly requires the "Demand for performance" by the creditor as an essential requisite for the debtor's default in performance. At the same time, this provision automatically allows to presume the debtor's liability (negligence) for default together with the next Sec.205, which was adopted from the German traditional § 285.

This concept of Secs.204 and 205 apparantly shows that the Thai drafter decided for so-called "Civil law" tradition instead of the "Common law" concept. The main drafter of the Japanese Civil Code, Professor Hozumi, had originally intended to declare the same principle in the traditional Art.415. Unfortunately, the drafting commission decided to replace the 2nd sentence of the provision "unless the debtor is not responsible for the cause of the non-performance" with another sentence "The same shall apply if the performance become impossible for any cause for which the debtor is responsible" (see C-5 in "The Thai Civil Law on Non-performance in a Comparative, Structural View", P.14). As a result, the principle of presumption of the debtor's liability became almost unvisible in the Japanese provision. The Thai drafter must have recognized this conceptual weakness of the Japanese provision and decided to adopt the German §§ 284 and 285.

The comparison between the German § 284 and the Thai Sec.204, however, shows a small difference; the 2nd sentence of the German provision was not adopted:

Citation from the paper "Reconstruction of Thai Arrangement of the Remedies for non-performance" (P.8) – Apparently, Phraya Manava Rajasevi eliminated §284 Paragraph (1) Sentence 2 from the Thai article มาตรา 204. This sentence regarded the effect of “action for the performance” and other similar actions. Presumably, he decided to eliminate it because he had already planed to adopt Art. 414 of the Japanese code for the issue “Demand for enforcement of specific performance”. (end of citation). Please, see Sec.213. Codesuser (talk) 16:04, 6 October 2025 (UTC)