Talk:2468th Sec 0194

Adoption of the German "Principle of Natural Fulfillment"

Citation from "Thai Law and Recent Reform in Germany and Japan in Law on Non-performance"(P.13) – At the beginning of Book II on Obligations, the drafter decided to introduce the system-defined provision of the German concept; namely the traditional § 241 of BGB which clearly distinguishes itself from the Common law approach to the issue "effects of obligations". The proper goal of an obligation in legal sense should be to achieve its specific performance, not its pecuniary equivalence. The debtor owes the creditor a duty to perform his obligation properly to its purpose. [...] Accordingly, it could be logically expected that the demand for specific performance by the creditor initiates the part on the "Effects of non-performance". For this reason, the Thai drafter put the German provision § 271 regarding the time of performance at the top position of this part as Sec. 203.(end of citation) Codesuser (talk) 15:21, 29 September 2025 (UTC)

Recent development in the modernized German law

Citation from "Reasoning to the Personal Proposal" (P.73) – According to the newly introduced § 241(II), every obligation obligates each parties to exercise care to protect other parties. Each obligation automatically involves this duty. In this sense, this duty composes an essential part of obligations and its breach in "non-performance" in a broader sense. (end of citation)

This description, however, was a little bit misleading; the new German law does not include the duty of care after § 241(II) into the duty of performance (Natural Fulfillment of the obligation). Rather, the both duties are clearly distinguished. For this reason, the modernized § 280(I) defines the general reason for liability as "Breach of Duty" insread of simple "Non-performance".

What could be a reason for this clear distinction between the duty of performance and the duty of care? One reason could be found in the new § 311(II) after the theory of "culpa in contrahendo" (fault during contract negotiations). According to the German understanding, "the commencement of contract negotiations" establishes already a quasi-contractual relationship between the parties, and they owe the duty of care to each other, but not any duty of performance. Codesuser (talk) 03:40, 30 September 2025 (UTC)

Another approach in the reformed French law

According to the newly reformed Art.1112 in the French law, the commencement of contract negotiations obligates the parties to conduct in good faith. The breach of this duty, however, provides no basis for a demand of "expectation interest". The article does not say clearly but the wording of "the reparation of the resulting loss" lets us presume that the French law justifies at least the claim for a "reliance interest" in case of "culpa in contrahendo".

But what kind of liability is it? The principle of "Good Faith" in contract negotiations would establish the duty of care to protect each other. Its breach could be seen as a "failure to act or lack of care" in the sens of the new Art.1241. In other words, the reformed French law understands the "culpa in contrahendo" as a ground for the tortious liability, but not any quasi-contractual liability. Of course, this liability could be established also in any contractual relationship. In this sense, the reformed French law offers another possibility to establish the additional liability for the breach of care to protect other parties.

However, is it possible for Thai law to take the French approache? Unfortunately, the breach of duty to conduct in good faith could be covered neither by Sec.420 nor by Sec.422. The drafters did not adopt the traditional German § 826. For this reason, the German approach would be the only possibility to establish the duty of protection for the Thai law. See, the "Option 01" in "Proposal for the Reform of the Law on Obligations (P.1); "Reasoning to the Personal Proposal" (P.93). Codesuser (talk) 05:23, 30 September 2025 (UTC)