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). Codesuser (talk) 11:02, 11 October 2025 (UTC)