Talk:2468th Sec 0370 - Revision history

Codesuser: /* How to Solve the Inconsistency Issue in the Thai Arrangement */

2025-10-20T13:35:03Z

How to Solve the Inconsistency Issue in the Thai Arrangement

← Older revision		Revision as of 13:35, 20 October 2025
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	<p>Accordingly, the whole concept on the “Effects of a Reciprocal Contract” in the Thai arrangement could be described in the following manner:		<p>Accordingly, the whole concept on the “Effects of a Reciprocal Contract” in the Thai arrangement could be described in the following manner:

	<h5 style="background-color:DarkBlue"><font style="color:white">Principle I: Impossibility due to the debtor’s fault: Rescission of contract and demand for compensation.</font></h5>		<h5 align=center style="font-family:sans-serif;background-color:DarkBlue"><font style="color:white">Principle I: Impossibility due to the debtor’s fault:<br> Rescission of contract and demand for compensation.</font></h5>
	<ul>		<ul>
	<li>'''Sec. 387. [Rescission of contract: <u>Debtor’s default</u>]'''		<li>'''Sec. 387. [Rescission of contract: <u>Debtor’s default</u>]'''
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	</ul></ul>		</ul></ul>
	<P style="margin-left:30px">[...]		<P style="margin-left:30px">[...]
	<h5 style="background-color:DarkBlue"><font style="color:white">Principle II: Impossibility due to the creditor’s fault: Debtor’s demand for counter-performance.</font></h5>		<h5 align=center style="font-family:sans-serif;background-color:DarkBlue"><font style="color:white">Principle II: Impossibility due to the creditor’s fault: <br>Debtor’s demand for counter-performance.</font></h5>
	<ul><li style="background-color:cornsilk">'''Sec. 372(II) Sentence 1, 2. [Right to counter-payment: <u>Impossibility due to Creditor’s fault</u>]'''		<ul><li style="background-color:cornsilk">'''Sec. 372(II) Sentence 1, 2. [Right to counter-payment: <u>Impossibility due to Creditor’s fault</u>]'''
	<br>If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties.		<br>If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties.
	</ul>		</ul>
	<h5 style="background-color:DarkBlue"><font style="color:white">Principle III: Impossibility without fault of parties: Burden of Risk of Loss.</font></h5>		<h5 align=center style="font-family:sans-serif;background-color:DarkBlue"><font style="color:white">Principle III: Impossibility without fault of parties: <br>Burden of Risk of Loss.</font></h5>
	<ul>		<ul>
	<li style="background-color:LightCyan">'''Sec. 370. [<u>Burden of Risk of Loss (A)</u>: <u>Impossibility without parties’ fault</u>; Specific things as subject matters]'''		<li style="background-color:LightCyan">'''Sec. 370. [<u>Burden of Risk of Loss (A)</u>: <u>Impossibility without parties’ fault</u>; Specific things as subject matters]'''

Codesuser: /* How to Solve the Inconsistency Issue in the Thai Arrangement */

2025-10-17T09:25:17Z

How to Solve the Inconsistency Issue in the Thai Arrangement

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 <li>'''Principle II''': Impossibility due to the creditor’s fault: Debtor’s demand for counter-performance.
 <li>'''Principle III''': Impossibility without fault of the parties: Burden of Risk of Loss.</ul>
-<p>In the Thai arrangement, '''"Principle I"''' is treated in Secs.386 – 394, and '''"Principles II and III"''' are just treated in Secs.370 – 372, the order of which could be improved according to the consideration about the Japanese provisions above in the following way: [[User:Codesuser|Codesuser]] ([[User talk:Codesuser|talk]]) 08:17, 17 October 2025 (UTC)
+<p>In the Thai arrangement, '''"Principle I"''' is treated in Secs.386 – 394, and '''"Principles II and III"''' are just treated in Secs.370 – 372, the order of which could be improved according to the consideration about the Japanese provisions above in the following way:

Codesuser: /* How to Solve the Inconsistency Issue in the Thai Arrangement */ new section

2025-10-17T08:17:10Z

How to Solve the Inconsistency Issue in the Thai Arrangement: new section

← Older revision		Revision as of 08:17, 17 October 2025
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	<p>Presumably, the Thai drafter did not notice of this conceptual inconsistency and followed the real order of the traditional Japanese Arts. 534 – 536 in the part of the Thai Secs. 370 – 372. It would be much more consequent if Sec.372(II) Sentence 1 and 2 could be moved to the top position before Sec. 370.		<p>Presumably, the Thai drafter did not notice of this conceptual inconsistency and followed the real order of the traditional Japanese Arts. 534 – 536 in the part of the Thai Secs. 370 – 372. It would be much more consequent if Sec.372(II) Sentence 1 and 2 could be moved to the top position before Sec. 370.
	''(end of citation)'' [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 08:00, 17 October 2025 (UTC)		''(end of citation)'' [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 08:00, 17 October 2025 (UTC)

			== How to Solve the Inconsistency Issue in the Thai Arrangement ==

			''Citation from'' [https://openlegaltextbook.ddns.net/Resources/13_Thai-law-and-Recent-Reforms.pdf "Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance"] (P. 48 –50) – Thai provisions Secs.370 – 372 followed the Japanese concept just reviewed above (VII. A.). In this sense, these Thai provisions suffer the same conceptional inconsistency as the Japanese Arts.534 – 536. According to the consideration in '''III. B. 9'''., their conceptual inconsistency would be improved by the following theoretical reconstruction of the concept on "Effects of a Reciprocal Contract":
			<ul><li>'''Principle I''': Impossibility due to the debtor’s fault: Rescission of contract and demand for compensation.
			<li>'''Principle II''': Impossibility due to the creditor’s fault: Debtor’s demand for counter-performance.
			<li>'''Principle III''': Impossibility without fault of the parties: Burden of Risk of Loss.</ul>
			<p>In the Thai arrangement, '''"Principle I"''' is treated in Secs.386 – 394, and '''"Principles II and III"''' are just treated in Secs.370 – 372, the order of which could be improved according to the consideration about the Japanese provisions above in the following way: [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 08:17, 17 October 2025 (UTC)

Codesuser: /* Another Inconsitency Issue in the Japanese Concept */

2025-10-17T08:07:06Z

Another Inconsitency Issue in the Japanese Concept

← Older revision		Revision as of 08:07, 17 October 2025
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	''Citation from'' [https://openlegaltextbook.ddns.net/Resources/13_Thai-law-and-Recent-Reforms.pdf “Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance”] (P.47) – As mentioned in the main text (III. B. 9. a)), this part of the Japanese Civil Code (1896/98) suffered a serious conceptional inconsistency. Its cause was mainly the position of Art.536(II), according to which the debtor does not lose his entitlement to counter-performance even in case the performance due from him becomes impossible if the creditor is responsible for the cause of impossibility. The problem is that this rule stood under the provision regarding exclusively the obligations subject matters of which are other than delivery of specific things. However, this rule may apply generally to all kinds of obligations. This is the conceptual inconsistency.		''Citation from'' [https://openlegaltextbook.ddns.net/Resources/13_Thai-law-and-Recent-Reforms.pdf “Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance”] (P.47) – As mentioned in the main text (III. B. 9. a)), this part of the Japanese Civil Code (1896/98) suffered a serious conceptional inconsistency. Its cause was mainly the position of Art.536(II), according to which the debtor does not lose his entitlement to counter-performance even in case the performance due from him becomes impossible if the creditor is responsible for the cause of impossibility. The problem is that this rule stood under the provision regarding exclusively the obligations subject matters of which are other than delivery of specific things. However, this rule may apply generally to all kinds of obligations. This is the conceptual inconsistency.
			<p>Generally speaking, there are three basic rules regarding the effects of reciprocal contracts. In the traditional German BGB, they were §§ 323, 324, and 325:
	Generally speaking, there are three basic rules regarding the effects of reciprocal contracts. In the traditional German BGB, they were §§ 323, 324, and 325:		<ul><li>§ 323: The debtor bears the risk of loss due to impossibility of his performance for which neither the debtor nor the creditor is responsible;
			<li>§ 324: The debtor retains his entitlement to counter-performance from the creditor if the latter is responsible for the impossibility of performance;
	* § 323: The debtor bears the risk of loss due to impossibility of his performance for which neither the debtor nor the creditor is responsible;		<li>§ 325: The creditor may rescind the contract or demand compensation if the debtor is responsible for the impossibility of performance.</ul>
	* § 324: The debtor retains his entitlement to counter-performance from the creditor if the latter is responsible for the impossibility of performance;		<p>The Japanese drafters in the Codes Investigatory Commission moved the 3<sup>rd</sup> rule to Art. 543 in Book III, Chapter II, Part III regarding “Rescission of a Contract”. There remained the 1st and 2nd rules in Part II “Effects of a Contract”. They distinguished two kinds of cases to which the 1st rule shall apply; namely (A) contracts which have delivery of ''<u>specific things</u>'' as subject matters (Art. 534) and (B) contracts which have other kinds of performance as their subject matters, especially subject matters ''<u>designated by species only</u>'' (Art. 536). Unfortunately, they allocated the 2nd rule to Art. 536(II) despite its general applicability.
	* § 325: The creditor may rescind the contract or demand compensation if the debtor is responsible for the impossibility of performance.		<p>Theoretically, the 2<sup>nd</sup> rule should stay at the top position of the part and the 1<sup>st</sup> rule should follow under distinction between two groups mentioned above:
			[[File:Ja Arts0534-0536.png\|thumb\|center\|Conceptual inconsistency of Jp. Arts.534 – 536]]
	The Japanese drafters in the Codes Investigatory Commission moved the 3<sup>rd</sup> rule to Art. 543 in Book III, Chapter II, Part III regarding “Rescission of a Contract”. There remained the 1st and 2nd rules in Part II “Effects of a Contract”. They distinguished two kinds of cases to which the 1st rule shall apply; namely (A) contracts which have delivery of ''<u>specific things</u>'' as subject matters (Art. 534) and (B) contracts which have other kinds of performance as their subject matters, especially subject matters ''<u>designated by species only</u>'' (Art. 536). Unfortunately, they allocated the 2nd rule to Art. 536(II) despite its general applicability.		<p>Presumably, the Thai drafter did not notice of this conceptual inconsistency and followed the real order of the traditional Japanese Arts. 534 – 536 in the part of the Thai Secs. 370 – 372. It would be much more consequent if Sec.372(II) Sentence 1 and 2 could be moved to the top position before Sec. 370.
			''(end of citation)'' [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 08:00, 17 October 2025 (UTC)
	Theoretically, the 2<sup>nd</sup> rule should stay at the top position of the part and the 1<sup>st</sup> rule should follow under distinction between two groups mentioned above: [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 08:00, 17 October 2025 (UTC)

Codesuser: /* Another Inconsitency Issue in the Japanese Concept */ new section

2025-10-17T08:00:33Z

Another Inconsitency Issue in the Japanese Concept: new section

← Older revision		Revision as of 08:00, 17 October 2025
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	<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543. ''(end of citation)''		<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543. ''(end of citation)''
	[[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 14:39, 17 October 2025 (UTC)		[[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 14:39, 17 October 2025 (UTC)

			== Another Inconsitency Issue in the Japanese Concept ==

			''Citation from'' [https://openlegaltextbook.ddns.net/Resources/13_Thai-law-and-Recent-Reforms.pdf “Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance”] (P.47) – As mentioned in the main text (III. B. 9. a)), this part of the Japanese Civil Code (1896/98) suffered a serious conceptional inconsistency. Its cause was mainly the position of Art.536(II), according to which the debtor does not lose his entitlement to counter-performance even in case the performance due from him becomes impossible if the creditor is responsible for the cause of impossibility. The problem is that this rule stood under the provision regarding exclusively the obligations subject matters of which are other than delivery of specific things. However, this rule may apply generally to all kinds of obligations. This is the conceptual inconsistency.

			Generally speaking, there are three basic rules regarding the effects of reciprocal contracts. In the traditional German BGB, they were §§ 323, 324, and 325:

			* § 323: The debtor bears the risk of loss due to impossibility of his performance for which neither the debtor nor the creditor is responsible;
			* § 324: The debtor retains his entitlement to counter-performance from the creditor if the latter is responsible for the impossibility of performance;
			* § 325: The creditor may rescind the contract or demand compensation if the debtor is responsible for the impossibility of performance.

			The Japanese drafters in the Codes Investigatory Commission moved the 3<sup>rd</sup> rule to Art. 543 in Book III, Chapter II, Part III regarding “Rescission of a Contract”. There remained the 1st and 2nd rules in Part II “Effects of a Contract”. They distinguished two kinds of cases to which the 1st rule shall apply; namely (A) contracts which have delivery of ''<u>specific things</u>'' as subject matters (Art. 534) and (B) contracts which have other kinds of performance as their subject matters, especially subject matters ''<u>designated by species only</u>'' (Art. 536). Unfortunately, they allocated the 2nd rule to Art. 536(II) despite its general applicability.

			Theoretically, the 2<sup>nd</sup> rule should stay at the top position of the part and the 1<sup>st</sup> rule should follow under distinction between two groups mentioned above: [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 08:00, 17 October 2025 (UTC)

Codesuser at 07:39, 17 October 2025

2025-10-17T07:39:50Z

← Older revision		Revision as of 07:39, 17 October 2025
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	<br>[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.		<br>[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.
	<p style="margin-left:40px>[II] If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies if the performance due from one party becomes impossible <font style="color:Tomato;">or the party becomes unable to perform his obligation</font>, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.		<p style="margin-left:40px>[II] If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies if the performance due from one party becomes impossible <font style="color:Tomato;">or the party becomes unable to perform his obligation</font>, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.
	<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543. ''(end of citation)''		<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543. ''(end of citation)''
			[[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 14:39, 17 October 2025 (UTC)

Codesuser: /* Integration of the German Provisions into the French-Japanese Concept */

2025-10-17T07:37:23Z

Integration of the German Provisions into the French-Japanese Concept

← Older revision		Revision as of 07:37, 17 October 2025
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	<br>[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.		<br>[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.
	<p style="margin-left:40px>[II] If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies if the performance due from one party becomes impossible <font style="color:Tomato;">or the party becomes unable to perform his obligation</font>, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.		<p style="margin-left:40px>[II] If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies if the performance due from one party becomes impossible <font style="color:Tomato;">or the party becomes unable to perform his obligation</font>, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.
	<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543.		<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543. ''(end of citation)''

Codesuser: /* Integration of the German provisions into the French-Japanese Concept */

2025-10-17T07:35:22Z

Integration of the German provisions into the French-Japanese Concept

← Older revision		Revision as of 07:35, 17 October 2025
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	<p>Probably, this was a reason for the Thai drafter's decision to adopt the French-Japanese concept. [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 15:35, 16 October 2025 (UTC)		<p>Probably, this was a reason for the Thai drafter's decision to adopt the French-Japanese concept. [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 15:35, 16 October 2025 (UTC)

	== Integration of the German ~~provisions~~ into the French-Japanese Concept ==		== Integration of the German Provisions into the French-Japanese Concept ==

	As mentioned above, the traditional Japanese Art.536(I) suffered a serious problem of inefficiency. The Thai drafter was aware of it:		As mentioned above, the traditional Japanese Art.536(I) suffered a serious problem of inefficiency. The Thai drafter was aware of it:

Codesuser: /* Integration of the German provisions into the French-Japanese Concept */

2025-10-17T07:33:37Z

Integration of the German provisions into the French-Japanese Concept

← Older revision		Revision as of 07:33, 17 October 2025
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	As mentioned above, the traditional Japanese Art.536(I) suffered a serious problem of inefficiency. The Thai drafter was aware of it:		As mentioned above, the traditional Japanese Art.536(I) suffered a serious problem of inefficiency. The Thai drafter was aware of it:
	<p>''Citation from'' [https://openlegaltextbook.ddns.net/Resources/13_Thai-law-and-Recent-Reforms.pdf “Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance”] (P.24 - 25) - Apparently, he was aware of this error, therefore, he tried to rescue the German concept at least in cases of reciprocal contracts with subject matters designated by species only. For this purpose, he inserted the old German § 324(II) into Sec. 372(II) Sentence 3. The Sec. 372 treats cases of reciprocal contracts where the debtor bears the risk of loss (Sec. 372(I)) and cases where the creditor is liable for the loss of subject matters due to his fault (Sec. 372(II) Sentence 1 and 2). In this arrangement, the Thai drafter adopted the traditional Japanese Art.536(I) as Sec.372(I) while he replaced the Japanese Art.536(II) with the traditional German § 324(I) as as Sec.372(II).36 At the end, he added the German § 324(II) to Sec. 372(II) as its 3rd Sentence. In cases of Sec.372(II), the debtor retains his right to demand counter-performance from the creditor. In its appearance, this rearrangement seemed to be quite successful.		<p>''Citation from'' [https://openlegaltextbook.ddns.net/Resources/13_Thai-law-and-Recent-Reforms.pdf “Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance”] (P.24 – 25) – Apparently, he was aware of this error, therefore, he tried to rescue the German concept at least in cases of reciprocal contracts with subject matters designated by species only. For this purpose, he inserted the old German § 324(II) into Sec. 372(II) Sentence 3. The Sec. 372 treats cases of reciprocal contracts where the debtor bears the risk of loss (Sec. 372(I)) and cases where the creditor is liable for the loss of subject matters due to his fault (Sec. 372(II) Sentence 1 and 2). In this arrangement, the Thai drafter adopted the traditional Japanese Art.536(I) as Sec.372(I) while he replaced the Japanese Art.536(II) with the traditional German § 324(I) as as Sec.372(II).36 At the end, he added the German § 324(II) to Sec. 372(II) as its 3rd Sentence. In cases of Sec.372(II), the debtor retains his right to demand counter-performance from the creditor. In its appearance, this rearrangement seemed to be quite successful.
	[[File:Th Secs0370-0372.png\|thumb\|center\|Arrangement Secs.370 - 372]]		[[File:Th Secs0370-0372.png\|thumb\|center\|Arrangement Secs.370 – 372]]
	<p>However, there is certain doubt about its conceptual consistency in the following two points:		<p>However, there is certain doubt about its conceptual consistency in the following two points:
	<ul><li>At first, it is only one part of the original German concept described above. Moreover, the traditional German § 324(II) was intended to apply to cases of ''<u>specific subject matters</u>''. However, the Thai drafter conceived of its application to contracts subject matters of which are ''<u>other than delivery of specific matters</u>''; namely certain act or forbearance on the one side, and subject matters ''<u>designated by species only</u>''. In this manner, the original logical structure of the German concept was severely deformed.		<ul><li>At first, it is only one part of the original German concept described above. Moreover, the traditional German § 324(II) was intended to apply to cases of ''<u>specific subject matters</u>''. However, the Thai drafter conceived of its application to contracts subject matters of which are ''<u>other than delivery of specific matters</u>''; namely certain act or forbearance on the one side, and subject matters ''<u>designated by species only</u>''. In this manner, the original logical structure of the German concept was severely deformed.
	<li>Secondly, the applicability of Sec. 372(II) Sentence 3 would be questionable. As described above, its text was adopted from the German § 324(II), but it pursues rather the same goal as the traditional German § 300(II); namely the passage of the risk of loss to the creditor during the time of his default in acceptance. On the other hand, however, there is an essential difference between the German § 300(II) and the Thai Sec. 372(II) Sentence 3; the German provision provided for the passage of the risk of loss to the creditor during his default in case of the debtor’s ''<u>inability of performance</u>'' while the Thai provision still maintains the wordings of the German § 324(II) and mentions only cases of ''<u>impossibility of performance</u>''. This is a reason for the doubt about the conceptual consistency of the Thai provision; namely, it is quite difficult to imagine to what cases it could really apply because “impossibility of performance” is principally excluded in cases of subject matters ''<u>designated by species only</u>''. It would be much more consequent if the Thai drafter modified the wordings of the German § 324(II) and clearly mentioned the ''<u>debtor’s inability of performance</u>'' as follows for instance:</ul>		<li>Secondly, the applicability of Sec. 372(II) Sentence 3 would be questionable. As described above, its text was adopted from the German § 324(II), but it pursues rather the same goal as the traditional German § 300(II); namely the passage of the risk of loss to the creditor during the time of his default in acceptance. On the other hand, however, there is an essential difference between the German § 300(II) and the Thai Sec. 372(II) Sentence 3; the German provision provided for the passage of the risk of loss to the creditor during his default in case of the debtor’s ''<u>inability of performance</u>'' while the Thai provision still maintains the wordings of the German § 324(II) and mentions only cases of ''<u>impossibility of performance</u>''. This is a reason for the doubt about the conceptual consistency of the Thai provision; namely, it is quite difficult to imagine to what cases it could really apply because “impossibility of performance” is principally excluded in cases of subject matters ''<u>designated by species only</u>''. It would be much more consequent if the Thai drafter modified the wordings of the German § 324(II) and clearly mentioned the ''<u>debtor’s inability of performance</u>'' as follows for instance:</ul>
	<p style="margin-left:~~30px~~>'''Section 372.'''		<p style="margin-left:40px>'''Section 372.'''
	<br>[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.		<br>[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.
	<p style="margin-left:~~30px~~>If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies if the performance due from one party becomes impossible <font style="color:Tomato;">or the party becomes unable to perform his obligation</font>, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.		<p style="margin-left:40px>[II] If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies if the performance due from one party becomes impossible <font style="color:Tomato;">or the party becomes unable to perform his obligation</font>, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.
	<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543.		<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543.

Codesuser: /* Reason for choice for French-Japanese Concept */

2025-10-17T07:31:07Z

Reason for choice for French-Japanese Concept

← Older revision		Revision as of 07:31, 17 October 2025
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	<p>Probably, this was a reason for the Thai drafter's decision to adopt the French-Japanese concept. [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 15:35, 16 October 2025 (UTC)		<p>Probably, this was a reason for the Thai drafter's decision to adopt the French-Japanese concept. [[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 15:35, 16 October 2025 (UTC)

	== ~~Reason for choice for~~ French-Japanese Concept ==		== Integration of the German provisions into the French-Japanese Concept ==

	The Thai ~~Code~~, ~~Book IV on Law~~ of ~~Things~~, ~~does not posses any general clause like~~ the ~~French~~ Art.~~1138 or~~ the Japanese Art.~~176~~. ~~Book III~~ on ~~Specific Contracts~~, however, ~~includes~~ the ~~same principle especially~~ for ~~Sale contract~~ in ~~Sec~~.~~458~~:		As mentioned above, the traditional Japanese Art.536(I) suffered a serious problem of inefficiency. The Thai drafter was aware of it:
	<p style="margin-left:~~20px"~~>~~Sec~~.~~458~~		<p>''Citation from'' [https://openlegaltextbook.ddns.net/Resources/13_Thai-law-and-Recent-Reforms.pdf “Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance”] (P.24 - 25) - Apparently, he was aware of this error, therefore, he tried to rescue the German concept at least in cases of reciprocal contracts with subject matters designated by species only. For this purpose, he inserted the old German § 324(II) into Sec. 372(II) Sentence 3. The Sec. 372 treats cases of reciprocal contracts where the debtor bears the risk of loss (Sec. 372(I)) and cases where the creditor is liable for the loss of subject matters due to his fault (Sec. 372(II) Sentence 1 and 2). In this arrangement, the Thai drafter adopted the traditional Japanese Art.536(I) as Sec.372(I) while he replaced the Japanese Art.536(II) with the traditional German § 324(I) as as Sec.372(II).36 At the end, he added the German § 324(II) to Sec. 372(II) as its 3rd Sentence. In cases of Sec.372(II), the debtor retains his right to demand counter-performance from the creditor. In its appearance, this rearrangement seemed to be quite successful.
	<br>~~The ownership~~ of the ~~property sold is transferred~~ to the ~~buyer~~ from the ~~moment~~ when the ~~contract of sale~~ is ~~entered into~~. ~~[[User:Codesuser\|Codesuser]] ([[User talk:Codesuser\|talk]]) 06:19~~, ~~17 October 2025 (UTC)~~		[[File:Th Secs0370-0372.png\|thumb\|center\|Arrangement Secs.370 - 372]]
			<p>However, there is certain doubt about its conceptual consistency in the following two points:
			<ul><li>At first, it is only one part of the original German concept described above. Moreover, the traditional German § 324(II) was intended to apply to cases of ''<u>specific subject matters</u>''. However, the Thai drafter conceived of its application to contracts subject matters of which are ''<u>other than delivery of specific matters</u>''; namely certain act or forbearance on the one side, and subject matters ''<u>designated by species only</u>''. In this manner, the original logical structure of the German concept was severely deformed.
			<li>Secondly, the applicability of Sec. 372(II) Sentence 3 would be questionable. As described above, its text was adopted from the German § 324(II), but it pursues rather the same goal as the traditional German § 300(II); namely the passage of the risk of loss to the creditor during the time of his default in acceptance. On the other hand, however, there is an essential difference between the German § 300(II) and the Thai Sec. 372(II) Sentence 3; the German provision provided for the passage of the risk of loss to the creditor during his default in case of the debtor’s ''<u>inability of performance</u>'' while the Thai provision still maintains the wordings of the German § 324(II) and mentions only cases of ''<u>impossibility of performance</u>''. This is a reason for the doubt about the conceptual consistency of the Thai provision; namely, it is quite difficult to imagine to what cases it could really apply because “impossibility of performance” is principally excluded in cases of subject matters ''<u>designated by species only</u>''. It would be much more consequent if the Thai drafter modified the wordings of the German § 324(II) and clearly mentioned the ''<u>debtor’s inability of performance</u>'' as follows for instance:</ul>
			<p style="margin-left:30px>'''Section 372.'''
			<br>[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.
			<p style="margin-left:30px>If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. The same rule applies if the performance due from one party becomes impossible <font style="color:Tomato;">or the party becomes unable to perform his obligation</font>, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.
			<p>Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543.