Talk:2468th Sec 0203

"Effect of Non-performance" or "Primary Effect of Obligation"?

Citation from "Thai Law and Recent Reform in Germany and Japan in Law on Non-performance"(P.13) – This provision states on what time the creditor may demand performance from the debtor. In this sense, this position under the title “Effects of non-performance” could be somewhat misleading because the creditor’s right of demand for performance is the primary effect of the obligation itself, but not particularly effect of non-performance (in the German law, the “Effects of non-performance” begin with its § 275). The decision by the Thai drafter, however, could be justified from the following consideration. (citation suspended)

Presumably, the Thai drafters had planed to set up the part on "Effect of non-performance" in accordance with the traditional Japanese provisions Arts.412 – 426 instead of the traditional German provisions §§ 275 – 292. However, the Japanese Art.412 suffered a serious conceptual ambiguity.

(citation resumed) – This position exactly corresponds with the position of the old Art. 412 in the Japanese Civil Code, which suffers a conceptual ambiguity as already explained above (in II. B.). This problem was caused from mixture of two subjects; namely the time of performance and the debtor’s default. For this reason, the Thai drafter overrode this unfortunate provision with the German § 271 on the time of performance. The other subject regarding the debtor’s default was moved to the next provision Sec. 204 which was adopted from the traditional § 284 of BGB.

In this sense, Sec. 203 plays also two roles; namely the role to declare the time when the creditor may demand performance on the one hand, and another role to provide for a requisite to put the debtor into default, which would be comparable with the role of Art. 336 in the Law on Properties of Japan (1890) or the old Art. 1139 of the French CC. For all these reasons, we could conclude that the Thai drafter used merely the position of the traditional Japanese Art. 412 as a starting point of the part regarding the debtor’s default, but definitely rejected the Japanese provision itself to avoid its conceptual ambiguity. (end of citation)

In the reformed French Civil Code, the rigid procedure to put the debtor in default has been loosened to the procedure to put the debtor on notice to perform. The new Art.1344 reads "A debtor is put on notice to perform by formal demand, by an act which gives sufficient warning, or, where this is provided for by the contract, by the mere fact that the obligation is enforceable". As a result, the defference between the German "Demand on performance" (§ 284) and the French "Notice on performance" is now almost unnoticeable. Codesuser (talk) 08:58, 1 October 2025 (UTC)