Talk:2468th Sec 0207

Insertion of "Creditor's default" in the midmost of the segment on "Debtor's default"

The Thai drafter inserted the provisions Secs.207 – 212 on the issue "Creditor's default" into the middle of the segment about the issue "Debtor's default" (between Secs.203 – 206 and Secs.213 – 217). What was the reason for this strange arrangement? It happened due to the following circumstances:

Citation from B-7. Step 7 in "Reconstruction of Thai Arrangement of the Remedies for non-performance" (P.25) – In the traditional German theory of obligations, the creditor is entitled to the demand for the natural fulfillment of the obligation, but he owes the debtor no duty to accept the performance of the latter. Hence, there would be no “non-performance” even though the creditor refuses to accept the fulfillment of the obligation. Consequently, the issue “Creditor's default” (Segment 6) was clearly separated from the issue the debtor's “Non-performance” (Segment 4). The main subjects of Segment 6 on “Creditor's default” were rather debtor's duty to tender performance and reduction of debtor's liability during creditor's default. (citation suspended)

It was the circumstance in the traditional German Law. How about the situation in the Japanese law?

(citation resumed) The "Old Civil Code of Japan (1890)", on the other hand, had treated the issue “Tender of performance” (Arts. 474 – 478, Law on Properties) in the part of “Extinction of Obligation” just like the French Civil Code (Arts. 1257 – 1264). The “Revised Civil Code of Japan (1896)” followed this French arrangement (Arts. 492 and 493). However, the “Old Civil Code of Japan (1890)” had no provision on the issue “Creditor's default”. In the discussion of “Codes Investigatory Commission”, therefore, Prof. Hozumi proposed to insert a provision on this issue just after the provision on the issue “Debtor's default”.1 Apparently, this simple article was composed after the German provision §293; the both provisions required no responsibility of the creditor for his default. (citation suspended)

Apparently, any "responsibility" was required because the question of the "creditor's default" was not any issue of the creditor's liability, but rather a circumstance regarding the question of the debtor's liability.

(citation resumed) In Step 7, Phraya Manava Rajasevi simply put Segment 6 of the German code into the position which exactly corresponds to the location of Art. 413 of the Japanese code, and performed following four modifications: [...] (end of citation)

Such a circumstance was just the reason for insertion of the "Creditor's default" in the midmost of the provisions regarding the "Debtor's default". Fortunately, this "acrobtic" arrangement of the German provisions did not cause any system inconsistency issue. Codesuser (talk) 09:01, 8 October 2025 (UTC)

Effects of "Creditor's default" and the Principle of "Risk of loss"

Despite of the adoption of the German provisions on the "Creditor's default", the Thai arrangement sufferes exactly the same weakness as the traditional Japanese concept about this issue. The reason for this problem was the adoption of the Japanese provisions on the issue "Burden of risk of loss" (Arts.534 – 536):

Citation from III.B.9.a) Integrity issue 8 in "Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance" (P.23) – The traditional Japanese scheme of non-performance had only a quite simple provision about the creditor’s default, and it did not provide any clear consequence from the creditor’s default. Mainly, it was a result of the old Arts. 534 – 536 which stated that the creditor should bear the risk of loss in cases of reciprocal contracts with specific subject matters.

Unfortunately, the Thai drafter adopted this provision as Sec. 370. As a result, it was not possible for the Thai drafter to adopt the German provisions regarding the effect of the creditor’s default; namely §§ 300 and 324(II).(end of citation)

According to § 300(I), the deptor is responsible only for his intentional non-performance and gross negligence during the time of the creditor's default. Moreover, § 324(II) provided that the risk of loss due to the impossibility of performance passes to the dreditor during the time of his default in acceptance of performance. If the subject matter of the obligation is "designated by species only" (ระบุไว้แต่เพียงเป็นประเภท), however, the performance is principally always possible so that only the "inability to perform" may happen, and the traditional § 279 provided that the debtor is always responsible for his inablity. Consequently, the passage of the risk of loss to the creditor is principally unthinkable. Under such a circumstance, § 300(II) made an exception during the time of the creditor's default so long as no fault is imputable to him.

The Thai drafter adopted the concept of the creditor's default from the German law, however, he could not introduce the § 324(II) because of Sec.370 modeled after the Japanese Art.534. Also regarding the debotor's responsibility, he could not adopt § 300(I) because he had eliminated § 276 (definition of the debtor's responsibility).

Presumably, the Thai drafter tried to introduce at least § 300(II), but in another manner in Sec.372 on the risk of loss in cases of the obligation "designated by species only":

• Sec.372(I): Principle of burden of risk of loss on the side of the debtor; modeled after the Jp. Art.536(I);
• Sec.372(II) Sentence 1 and 2: Exception (A) in case of impossibility due to the creditor's fault; modeled after the Gr. § 324(I);
• Sec.372(II) Sentence 3: Exception (B) in case of impossibility during the creditor's default; modeled after the Gr. § 324(II).

Formally, the Thai Sec.372(II) Sentence 3 and the traditional German § 300(II) pursue the same goal; namely the passage of the risk of loss to the creditor during his default in acceptance. However, there is a certain difference between them; the Thai provision treated cases of "Impossibility of performance" while the original German provision provided the passage of the risk of loss due to the debtor's "Inability to perform". This is a reason for the doubt about the efficiency of Sec.372(II) Sentence 3; it is quite difficult to imagine a case of "Impossibility" of performance "designated by species only".

In other words, it would be much more consequent if this sentence would clearly mention also the debtor's "Inablity" as follows:

Sec.372(II), Sentence 3: The same rule applies if the performance due from one party becomes impossible or the party becomes unable to perform his obligation, in consequence of a circumstance for which he is not responsible, at the time when the other party is in default to acceptance.

Then, there will be certain cases where the application of Sec.372(II) Sentence 3 could apply. Codesuser (talk) 11:02, 11 October 2025 (UTC)