1919th Authentication

DRAFT: CIVIL AND COMMERCIAL CODE FOR KINGDOM OF SIAM. (1919)

Alternative Method to Authenticate the Copy of the Draft 1919

A. Introductory Remarks.

As explained on the "1919th Main Page", it is not possible to directly authenticate our copy of the Draft 1919 due to lack of corresponding documents in the "Archives of the History of Thai Codification". Nevertheless, there is still another possibility to indirectly authenticate it; namely utilizing the diverse handwritten alterations and corrections to the English text of the copy — most of them are handwritten, several ones are written on a typewriter. If we could identify any exactly corresponding descriptions of such alterations and corrections in any documents in the "Archives of the History of Thai Codification", then such documents could be evaluated as indirect evidence for the authentication of the copy.

Just such documents could be found in the Archive titled as "DRAFT CODE ON OBLIGATIONS, VI" (Vol.35, ID=163427). It contains a following set of documents:

• Title: "ALTERATION TO THE DRAFT CODE OF OBLIGATIONS 1919 BEFORE PROMULGATION, First Part: GENERAL (Sections 1 to 387)"
• Date: 18th and 19th October 1921.
• Items: 73 entries.
• Pages: 35/175 – 202.

We can find exactly corresponding alterations and corrections in our copy of the Draft 1919 for most of these entries. 6 entries of them were not written to our copy. This circumstance suggests that our copy of the Draft 1919 show its stand shortly before the submission of the just named report "ALTERATION TO THE DRAFT OF OBLIGATIONS 1919 ..." on 19th October 1921.

B. Contents of the Report of 19^th October 1921.

B. I. Attached Letter:

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Mr. R. Guyon to H. E. Chao Phya Abhai Raja, Minister of Justice, President of the Commission of Codification:

Bangkok 19 th. Octoler 1921.

Your Excellency,

I beg to submit to you the Report of the alterations suggested by both the Committee of Redaction and the Committee of Translation to the Draft Code of Obligations 1919 before the promulgation of the same.

The present Report concerns the first Part of the Code (sections 1 to 387) which contains any kind of general provisions of civil law, and is now translated into Siamese and ready to be promulgated and published.

Another Report will follow further to contain the alterations in the second Part of the Code (sections 388 to 1463) when ready for translation and promulgation.

I remain, your most faithful servant.

[Signature]

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B. II. Document Title:

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ALTERATIONS

TO THE

DRAFT CODE OF OBLIGATIONS 1919

— — — — —

First Part: GENERAL (Sections 1 to 387)

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B. III. Entries:

"PARTS"

• The sub-divisions of Chapters (numbered as I. II, III, IV, etc.) shall be called "Parts".

⇒ OCR-Data: Contents

Section 3.

• The Committee of Translation suggest the addition of the word "bye-laws" which is used in the present Siamese texts of this kind.

⇒ OCR-Data: P.1

Section 13.

• The word "private" to be deleted: because it adds nothing to the word "agreement", and is only likely to induce the Courts to misconstructions.

⇒ OCR-Data: P.4

Section 18.

• This section has been reconsidered and a note submitted to that effect by the French Committee (see Annex I to the present Report).
• As a consequence, it is suggested to redraft the section as follows:
  • "Creation. extinction or modification of rights and fulfilment of obligations must be made in good faith".

⇒ OCR-Data: P.6

Section 30.

• Instead of: "which version was considered to be the original ...........", say: "which version was intended to govern, the document executed in the Siamese language shall govern".

Section 32.

• We have been of opinion that the illustration for this section is too complicate and has better to be substituted by the following one:
  • Illustration. - On the 1st. of July 2463 at 10 a.m. A lends to B 100 baht to be returned on the 1st. of September 2463. B is not obliged to return the money on this day at 10 a.m., but only before the end of the day.

Section 48 2nd. par.

• The words "in execution of the contract" are objectionable, because the word "execution" has not been used in the other parts of the Code, and is not advisable owing to the habitual use of the word "performance" in similar cases.
• It is suggested to substituted "in execution of the contract" by "as a performance of the contract".

Section 52.

• Illustration to be deleted.

Section 54.

• Minor alterations of wording in the illustration: instead of "retrospective effect". to read "stipulation".

Section 60.

• Minor alterations in the wording of the illustration.

Section 61.

• Minor alterations in the wording of the illustration.

Section 62.

• Minor alterations in the wording of the illustration.
• Misprinting to be corrected, the second figure being "400" instead of "500".

Section 74.

• Illustrations to be added to this section, as follows:
  • Illustration. - I. A is a creditor of B for 10,000 baht money borrowed. At the time of performance. B asks for a delay, but A does not allow it and threatens B to exercise against him his rights of action for the recover, of the sum due and to seize B's properties if the latter does not immediately pay the money due or does not mortgage a property of his own as security.
  • B. fearing seizure of his properties, mortgages his house for the benefit of A. There is no duress from A.
  • II. - A, a cashier in B's firm, has misappropriated 1,000 baht from his employer. B discovers this criminal misappropriation when examining his cash-accounts, but does not warn the police because he takes in consideration that A was up to the present day a good employee. B orders A and his wife to come to his office, when he makes A confess his robbery and he threatens to send him to Court in there is no immediate return of money, or if A's wife does not consent to mortgage her own property as security of this return. A's wife, to save the honour of her husband, consents to do so. There is no duress from B and the mortgage is valid.

Section 79.

• Two words "or fraud" have been omitted in the printing.

Section 85.

• Miner alterations in the wording of the illustration.

Section 86.

• "Invalidity" to be substituted by "voidity".

Section 95.

• Instead of: "If the manager has not undertaken to act contrary ...........", to read: "If the manager has undertaken to act not contrary ...........".

Section 96.

• Instead of: "If the manager has not undertaken to act contrary ...........", to read: "If the manager has undertaken to act not contrary ...........".

Section 108.

• Minor alterations in the wording of the illustration I.

Section 109.

• Illustration to be deleted here, and transferred after section 111.

Section 111.

• The beginning of the illustration to be modified as follows:
  • "Illustration (sections 109, 110 and 111). - A delivers to B an elephant, market value 2,000 baht. believing that such prestation was due. In fact, the prestation was not due. A is entitled to restitution from B.
  • If the elephant is still in B's possession ...........etc."

Section 113.

• Illustration. - Reference to section "109" to be substituted by reference to section "111".

Section 117.

• First paragraph. - The word 'for" (before "charges") to be deleted.
• Illustration. - To be modified in order to be clearer, as follows:
  • "A is ordered under section 105 to restore to B a house which had been unduly delivered to him by B.
  • a) A has incurred 200 baht expenses in repairing the roof of the house and he has paid 50 baht house tax on it. R must reimburse these 250 baht to A. If A has leased the house and collected 180 baht rent, he is entitled to keep such rent if he was in good faith (section 114). But then these 150 baht profits must be deducted from the 250 baht to be reimbursed to him, that is to say that B would have finally to reimburse 100 baht balance;
  • b) If A has ascertained at a certain time that the house In[was] on the verge of falling in owing to floods, and has had to make 5.000 baht for the ground works, this is an expense for preservation. Then B must reimburse to A 5,000 baht; and no deduction shall be made of any rent collected by A and which he is entitled to keep on account of his being in good faith".

Section 119.

• This section is to be rend as follows:
  • "If the person who has in bad faith unduly received a property has made alterations

in. or additions to it, he must return the property after having put it in its former condition at his own expense. If it is impossible to put it in its former condition or the property would be damaged thereby, he must return it in such condition as it is and he is entitled to no compensation for any increase of value accruing to the property from such alterations or additions, and he is liable to pay compensation for any decrease of value resulting from the same".

• N.B. - The words which are new (underlined words) have been added to make clear an idea which was understood, but has better to be fully explained especially in the Siamese version.

Section 120.

• In order to have a better discrimination of the words "intentionally" and "negligently", it is suggested to redraft the section as follows:
  • "Whoever intentionally causes injury to another person, or whoever causes such injury negligently. that is to say, under any of the following circumstances:
    • 1) By omission of such care as may be expected from a person or ordinary prudence, or
    • 2) By omission of such skill and care in a profession as may be expected from a person exercising such profession, or
    • 3) In disobedience to any law, bye-law or lawful order,
  • is said to commit a wrongful act and is bound to make compensation to the injured person".

Section 123.

• The illustration is objectionable, and it is proposed to give no illustration for this section which is perfectly clear by itself.

Sections 124 and 125

• It is suggested: first. that the rank of these two sections be reversed, to be read more logically; second, that the Court may, instead of being bound, decide the proportion in which the compensation must be borne by the wrongdoers, because, as a rule, the present practice of the Siamese Courts is repugnant to decide upon points which have not been submitted by the parties themselves.
• In order to meet these suggestions, the following alterations are proposed:
  • 124. - If a wrongful act has been committed by several persons, the several wrongdoers are jointly liable for the payment of the whole of the compensation to the injured person unless otherwise decided by the Court.
  • 125. - As between the several wrongdoers themselves, the Court may decide the proportion in which the compensation must be borne by each of them.

Section 126.

• Instead of: "by section 91 of the Penal Code", to read: "by the Penal Code".

Section 129.

• This section deals with self-help and the second sentence says that a creditor who uses self-help contrary to the provisions of sections 127 and 123 commits a wrongful act and has no defence by alleging "that me was ignorant that his act was wrongful or that his ignorance was not due to his own fault".
• This second sentence has been objected to as being unuseful or even not exact.
• Since the creditor commits a wrongful act. we are governed by section 120 (definition of wrongful acts). and generally the wrongful act specified in section 129 will be committed by "omission of care".
• On the other hand. to say that it is no defence to say that the creditor's "ignorance was not due to his own fault" appears somewhat difficult to understand for the reader. And, moreover, it has never been possible to exonerate oneself from liability for wrongful act-by one alleging that one was ignorant without one's fault.
• The first sentence of the section seems to be sufficient and it is suggested to delete the second sentence of the section.

Section 130.

• Second paragraph. - To delete the word "lawful" (in "lawful command"). This word is objectionable, because the command, which was to be obeyed by the injuring person as being a subordinate. has probably been something not lawful in itself.
• Cf. the words: "who wrongfully gave the command".

Section 133.

• The words "as refer to restitution made" are to be deleted as having no utility.

Section 135.

• To say "for medical treatment' instead of "during illness".
• Cf. de Becker's Japanese Code Commentary under section 710.

Section 136.

• To say "for medical treatment" instead of "during illness"; Cf. 135.
• To say "or" instead of "and" in the enumeration of parents.

Section 137.

• Instead of: "by section 96 of the Penal Code", to read: "by the Penal Code".

Section 138.

• The name of Division II (of Some Particular Kinds of Obligations) has been objected to. The English word "Particular", it is said, has not the meaning of the French word "Modalités" which is used in the Swiss Code. To come nearer to the French wording, it is deemed convenient to say: "Of

Various Kinds of Obligations".

Section 146.

• Minors alterations in the illustration.

Section 151.

• Misprinting. To read: "149" instead of "146".

Section 164.

• Illustration: Instead of: "debt", to say: "sum due".

Section 165.

• Second paragraph. Instead of: "he is entitled to ...........", to say: "the debtor may ...........".
• This second paragraph becomes section 166.

Section 166.

• This section shall be numbered 167.

Section 167.

• This section shall be numbered 168.

Section 168.

• This section shall be numbered 169.

Section 169.

• This section shall be numbered 170.

Section 170.

• This section shall be numbered 171.

Section 171.

• The suppression of this section has been requested because the solution which is proposed in section 171 has been given up about twenty years ago in Siamese law and is disfavoured as being unfit for the customs of the country.
• Any way, the matter may be reconsidered when the Civil Procedure Code shall be drafted.

Section 177.

• The reference "167" to be substituted by "168".

Section 184

• Omission in printing. Instead of: "in favour of one joint debtors", to read: "in favour of one of the joint debtors".

Section 185.

• The suppression of this section has been requested in the same conditions as for section 171 (see herebefore).

Section 186.

• This section shall be numbered 185.

Section 187.

• This section shall be numbered 186.

Section 188.

• This section shall be numbered 187.

Section 189.

• The first paragraph of this section shall be numbered 188.
• The second paragraph shall become section 189 reading separately as follows:
  • "If the release is granted to a debtor personally, his share only in the obligation is extinguished to the extent of the release".

Section 195.

• The wording of the first paragraph is slightly altered as follows:
  • "The joint debtor who has satisfied the creditor is subrogated to the rights of the creditor against the other joint debtors up to the amount satisfied by him on behalf of such other joint debtors".

Section 202.

• The attention of the Commission of Codification has been called upon the use of the words "distress", "attachment" and "seizure" in the Siamese legislation.
• After a careful examination of the respective meaning of these words in English, the Commissioners have been of opinion that to use only the word "seizure" is sufficient and more proper for the Siamese language, provides that distinction between a seizure before or after judgment shall be made when necessary. (Cf. the word "saisie" in French).
• Several sections of the Code of Obligations have been altered accordingly.
• Section 202 shall read: "An obligation seized by an order of a Court, before or after judgment, cannot be transferred by the creditor".

Section 213.

• Section 213 deals with the right and conditions of transfer of rights which are subject to litigation.
• Upon the request of the Committee of Translation, this important [question] has been reconsidered and discussed again (see Annex II to the present Report).
• After this examination. it has been decided that section 213 of the Draft would be substitused by the following one:
  • "Any transfer of right for a reciprocal prestation, whilst subject to litigation, is void".

Section 229.

• See note for section 202.
• Section 229 shall read: "If the debtor performs the obligation notwithstanding an order for seizure before or after judgment ..........."

Section 259.

• Instead of: "from the moment when", to read: "after".

Section 263.

• Instead of: "before", to read: "at the time when".

Section 270.

• Illustration II has been redrafted.

Section 287.

• The English version has been modified in order to be clearer.
• No. 1 shall read: "if he has received the earnest money. he is entitled to forfeit it";
• No. 2 shall read: "if he has delivered the earnest money, he can claim double amount of earnest money".

Section 289.

• Instead of: "from the time when", to read: "after".

Section 310.

• See note for section 202.
• Section 310 shall read: 'If the property of a debtor has been seized by order of the Court in execution of a judgment .........."

Section 315.

• Misprinting: the reference "294" to be subatituted by "314".

Section 325.

• See note for section 202.
• Section 325 (second paragraph) shall read: "The lessor can object to such movables being removed until be has been satisfied. and seize them if necessary to prevent their removal".

Section 328.

• See note for section 202.
• Section 328 (third paragraph) shall read: "Provided that such monies or properties be seized by order of the Court, either before or after judgment. before they are paid or delivered to the debtor".
• A misprinting is to be corrected: the words "by the creditor" have been omitted (line 2, after "exercised").

Section 338.

• The practice of the Siamese Civil Procedure (Civ. Pr. Code, s. 83) is that civil actions provided for by section 338 are exercised in the name of the creditor.
• The Committee of Translation have requested that the words "in the name of the debtor" be substituted by "in the name of the creditor".
• No difficulty. The words "in the name of the debtor" have been the translation of the French meaning "au nom du débiteur" what means as well in English "on behalf of the debtor".
• It is then proposed to say, to be clear and complete: "in his own name on behalf of the debtor".

Section 340.

• In this section, to say that the defendant "can have such action dismissed" would mean, according to the Siamese Civil Procedure, that the costs should be borne by the plaintiff (creditor suing in the name of the debtor).
• Of course, the costs must be borne by the defendants; to avoid any difficulty, it is suggested to redraft the section as follows:
  • "The judgment creditor can exercise a right of action belonging to the debtor for the whole amount due to the debtor irrespective of the amount due to the creditor. But the defendant can satisfy the creditor by paying the amount due to him, provided that if the original debtor joined as plaintiff, he may proceed to judgment for the balance".

Section 343.

• The Committee of Translation have requested that the Drafting 1910 be taken again for this section: so that the words "judgment creditor' by the ends of No. 2 and No. 3 be substituted by the words "creditor". The wording would be very clear without such a repetition.

• The Committee of Redaction have no objection against the alteration, being understood that no misconstruction may arise, and that any way the "creditor" named by the ends of Nos. 2 and 3 is and remains the "judgment creditor" named by the beginning of the section. Of course, in law, it is necessary that the creditor entitled to exercise the action specified in section 243 be a creditor the title of which is anterior to the transfer or renunciation made by the debtor in fraud of the creditor's rights. The consequence being that the date of the title must be known and ascertained accurately and undisputedly. Then, as in Siam there is no better way to have such date made sure and definite than a Judgment of a Court, it is necessary that a[the] creditor be always a judgment creditor.

Section 344.

• Same objection has been raised against this section as against section 340, viz: the word "dismissed" would, according to the Siamese Civil Procedure, mean that the plaintiff has to bear the costs and fees of the case.
• The same modification is proposed as for section 340, that is to say:
  • "In such action. the Court shall hold the plaintiff as duly satisfied if the defendant pays off the judgment creditor's claim".

Section 356.

• See note for section 202.
• Section 356 shall read: "A debtor cannot notify set off after the obligation has been seized by order of the Court, either before or after judgment".

Section 359.

• Instead of: "at once", to read: "at the same time".

Sections 363, 364, 385 and 366

• These sections deal with prescription and consider the following points:
  • shall prescription be set up by the Court itself, when the parties did not do so?
  • shall prescription be set up as a defence at any stage of the proceedings and in any Court?
• The question is an important one, and the Committee of Translation have requested to reconsider the questions from the Siamese point of view.
• The French Committee have quite agreed that section 363 of the Draft entitling the Court to set up themselves the prescription as a defence when the parties did not do so is contrary to the practices of many other Codes (French, German, Swiss, Japanese, etc.).
• The reason to adopt this provision twelve years ago, was, as we read in the Preparatory Works, that it was feared that the parties in this country were often unaware of their own rights. And the point was rather much discussed.
• But twelve years have elapsed and the French Committee are quite prepared to admit that such fears say be given up at the present time. They propose therefore to cancel section 363 and to say:
  • "When prescription has not been set up as a defence, the Court cannot dismiss the claim on the ground of prescription".
• As to section 364, the position is not so clear. Indeed, the present practice is not only that the defence of prescription cannot be set up before the Dika Court for the first time, but that even it cannot be set up before the Appeal Court for the first time. This is the English Law, which is contrary to the Continental Law in the matter. The French Committee are of opinion that the point requires some consideration more, and can hardly be decided and settled up for a special case like that of section 364 alone: as a fact, the point is connected with the whole Civil Procedure, and it would be better to reserve it, to say nothing in the Code of Obligations, and to have a full consideration of the matter when coming to the examination of the Civil Procedure. It may be noted that the Japanese Civil Code has done so.
• This suggestion having been adopted, to avoid renumbering of the whole Code, it has been proposed:
  • to cancel section 364;
  • section 365 being numbered 364;
  • section 366, paragraph 1, being numbered 365;
  • section 366, paragraphs 2 and 3, being numbered 366.
  • Illustration of 366 accordingly.

Section 386.

• This section deals with period of prescription for obligations resulting from judgments. etc. The Committee of Translation have suggested that the end of the section (whatever the original cause of action may have been) is objectionable because it has been avoided in the Code to use the word "cause", which besides is ambiguous in the present section. It has been agreed that no doubt may arise as to the interpretation of the section if the said words are deleted, and it is suggested to do so.

18 th. October 1921.

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