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:
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 certain 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. The Thai Code, Book IV on Law of Things, does not posses any general clause like the French Art.1138 or the Japanese Art.176. Book III on Specific Contracts, however, includes the same rule especially for Sale contract in Sec.458:
Sec.458
The ownership of the property sold is transferred to the buyer from the moment when the contract of sale is entered into.
Probably, this was a reason for the Thai drafter's decision to adopt the French-Japanese concept. Codesuser (talk) 15:35, 16 October 2025 (UTC)
Integration of the German Provisions into the French-Japanese Concept
As mentioned above, the traditional Japanese Art.536(I) suffered a serious problem of inefficiency. The Thai drafter was aware of it:
Citation from “Thai Law and Recent Reforms in Germany and Japan in Law on Non-performance” (P.24 – 25) – Apparently, he was aware of this error, therefore, he tried to rescue the German concept at least in cases of reciprocal contracts with subject matters designated by species only. For this purpose, he inserted the old German § 324(II) into Sec. 372(II) Sentence 3. The Sec. 372 treats cases of reciprocal contracts where the debtor bears the risk of loss (Sec. 372(I)) and cases where the creditor is liable for the loss of subject matters due to his fault (Sec. 372(II) Sentence 1 and 2). In this arrangement, the Thai drafter adopted the traditional Japanese Art.536(I) as Sec.372(I) while he replaced the Japanese Art.536(II) with the traditional German § 324(I) as as Sec.372(II).36 At the end, he added the German § 324(II) to Sec. 372(II) as its 3rd Sentence. In cases of Sec.372(II), the debtor retains his right to demand counter-performance from the creditor. In its appearance, this rearrangement seemed to be quite successful.
However, there is certain doubt about its conceptual consistency in the following two points:
- At first, it is only one part of the original German concept described above. Moreover, the traditional German § 324(II) was intended to apply to cases of specific subject matters. However, the Thai drafter conceived of its application to contracts subject matters of which are other than delivery of specific matters; namely certain act or forbearance on the one side, and subject matters designated by species only. In this manner, the original logical structure of the German concept was severely deformed.
- Secondly, the applicability of Sec. 372(II) Sentence 3 would be questionable. As described above, its text was adopted from the German § 324(II), but it pursues rather the same goal as the traditional German § 300(II); namely the passage of the risk of loss to the creditor during the time of his default in acceptance. On the other hand, however, there is an essential difference between the German § 300(II) and the Thai Sec. 372(II) Sentence 3; the German provision provided for the passage of the risk of loss to the creditor during his default in case of the debtor’s inability of performance while the Thai provision still maintains the wordings of the German § 324(II) and mentions only cases of impossibility of performance. This is a reason for the doubt about the conceptual consistency of the Thai provision; namely, it is quite difficult to imagine to what cases it could really apply because “impossibility of performance” is principally excluded in cases of subject matters designated by species only. It would be much more consequent if the Thai drafter modified the wordings of the German § 324(II) and clearly mentioned the debtor’s inability of performance as follows for instance:
Section 372.
[I] Except in the cases mentioned in the two foregoing sections, if an obligation becomes impossible of performance by a cause not attributable to either party, the debtor has no right to receive the counter performance.
[II] If performance becomes impossible by a cause attributable to the creditor, the debtor does not lose his right to the counter performance. He must, however, deduct what he saves in consequence of release from the performance, or what he acquires or maliciously omits to acquire by a different application of his faculties. 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.
Also, it should be noted that Secs. 370 – 372 cause another difficulty regarding “rescission of contract” in Sec. 389 modeled after the traditional Japanese Art. 543. (end of citation) Codesuser (talk) 14:39, 17 October 2025 (UTC)
