Talk:2468th Sec 0370

French Concept of the Effects of Reciprocal Contracts

In the Title "Effects of Reciprocal Contracts" (Secs.369 – 376), the Thai drafter follows mainly the traditional Japanese Arts. Arts.533 – 539.

Especially, Sec.370 adopted the traditional Japanese Art.534, which shows the special feature of the French concept on "Burden of risk of loss". Contrary to the German concept, the French concept lets the creditor bear the burden of risk of loss. The ground of this concept was Art.1138:

• The consent of the parties is all that is necessary to make the obligation of delivering the thing complete. Such consent makes the person to whom deliyery has to be made the owner, and the thing is at his risk from the moment it ought to have been delivered, although delivery may not have been actually given, unless the person bound to deliver is in default in delivering the same, in whioh ease the thing is at his risk.

The Japanese Art.176 adopted this French principle. Accordingly, the creditor had already obtained its ownership at the moment where the subject matter of a reciprocal contract is lost, damaged, or storen. This is the reason for the principle that the creditor must bear the burden of risk of loss.

However, Art.176 would have no effect to other kinds of contracts; namely cases where the subject matter of a contract is not delivery of any specific thing, but certin act or forbearance as well as something designated by species only. For such cases, the traditional Art.536(I) provided for another rule that the debtor shall be the party who must bear the burden of risk of loss.

Despite this alternative rule, its efficiency was quite doubtful in regard to cases with subject matters designated by species only; namely because occurance of "impossibility of performance" is almost excluded. Moreover, the Japanese drafters did not adopted the German concept of the debtor's "inablity of performance"; namely the traditional §§ 275, 279, and 300(II). As a result, the traditional Art.536(I) had almost no efficiency. Unfortunately, the Thai drafter adopted this Japanese concept together with its system inconsistencies. Codesuser (talk) 15:35, 16 October 2025 (UTC)