DRAFT CIVIL AND COMMERCIAL CODE FOR THE KINGDOM OF SI AM. BOOK ON OBLIGATIONS

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DRAFT CIVIL

AND COMMERCIAL CODE FOR THE

KINGDOM OF

SI AM.

BOOK ON

OBLIGATIONS

41^

BANGKOK

August, 1914

Printed at the " Bangkok Daily Mail," Si

Phya Road.

CONTENTS

Code of

Obligations.

SECTIONS.

PEBLIMINAEY. TITLE

I.

TITLE

1 1

—

Commencement

Title,

1-3

.—Definibionii

TITLE

II

TITLE

IV.—EuieS''

TITLE

V.

TITLE

and" E6pBal.

i.— General

4-10

Provisionis'

11-26

...

f6¥ coiistruetion

6'f

dbCaOienlis

—Periods time VI. — Capacity Minors and Persona of unsound

27-33

of

of

34-4=2

mind.

43-52

DIVISION I.—HOW OBLIGATIONS AETSE.

TITLE

I.—Contracts.

—Definition —Conditions for the validity of Contracts.

Chapter

I.

Chapter

II.

— Capacity of

PART

I.

Part

II.— Consent I.

II.

III.

Parties

TITLE

II.

54-61

62 63-64

Offer and Acceptance

65-80

Defective Consent

81-92

Eatification

93-97

Part III.— Object TITLE

53

— Management

98-100

of affairs vsrithout a

mandate

...

101-117

III.— U-nd'uB Enrichment.

Chapter Chapter

I.

II.

—Liability for undu^ —Eestitution for

urid'ue

TITLE IV.— Wrongful

Chapter

I.

enrichment.

118-121

enrichment.

122-132

Act.

— Liability for Wrongful A&t.

Chapter II.— Self-Help Chapter

III.—

Chapter

IV.

Lawful defence,

133-139

140-142 la^^ful coitimand, necessity.

— Compensatibn for wrrongful acts.

143-144

145-150

SECTIONS.

DIVISION XL—OF

SOME PAETICULAE KINDS OF OBLIGATIONS. 151-155

TITLE I.—Conditional Obligations TITLE

II.

—Obligations subject to a time

clause

..

...

156-159 160-166

TITLE III.—Alternative Obligations

—Plurality of creditors and debtors. Chapter — General Provisions.

TITLE. IV

167-171

I.

Chapter II.—Joint Obligations.

Part I.—General

Part II—Joint

172 175

Provisions

176-190

Creditors

Part III.—Joint

Debtors.

Eelations between Joint Debtors and

I.

191-204

the creditor

Eelations between Joint Debtors

II.

Chapter

.

III.— Indivisible Obligations

...

...

205-210 221-212

DIVISION III.—TEANSPBE OF OBLIGATIONS.

—General

TITLE

1.

Title

H.—Transfer

TITLE

III.

Provisions

213-217

of Eights

218-226

—^Transfer of Liabilities

227-2.30

DIVISION IV.—EFFECTS OF OBLIGATIONS.

—General provisions

TITLE

i.

TITLE

H.—Eights

Chapter

I.

of the creditor

—Performance.

— Who may perform —Who entitled to receive performance —What may performance consist of

Part Part

II.

Part

III.

I.

is

PART IV.— Place Part

231-234

...

V.

of

performance

—Time of performance

...

Part VI.—Appropriation Chapter

11.

—Non-Performance.

Part

L—Default

Part

II.

of the

—Eemedies

Debtor

of the creditor

•

SECTIONS.

Part Hi.— Specific Performance Part IV.— Compensation Chapter

1

1.

1

Part II.— Special

Provisions

286-293

preferential rights

294-304

Part III.— General

Part IV.— Rank Chapter

IV.

288-285

— Righta of the Creditor over the property of the Debtor.

I— General

Part

278 282

305-307

preferential rights

and

308-311

effects of preferential rights

—Exercise of the debtor's rights of action by 312-316

the creditor

Chapter V.— Cancellation

of acts

made

in proof of the rights

317-323

of the creditor

TITLE

III

—

Rights of the debtor.

Chapter I.— Default

of the creditor

Chapter II.—Deposit

in lieu of performance...

TITLE

iV.

—-Assesment

of

Compensation

324-330 ...

...

1.

Chapter

ll.--Penalty Clause

331-341

for non-performance.

— General Provisions

Chapter

...

342-347 348-365

DIVISION v.—EXTINCTION OF OBLIGATIONS.

TITLE

I.

—Performance

...

...

397

TITLE II.— Release TITLE III.— Set

356

358-374

Off

365

TITLE IV.— Merger

TITLE v.— Prescription

366-393

DIVISION VI.— SPECIFIC CONTRACTS.

TITLE

I— Sale

Chapter

I.

— Nature

Part I.— General

PART PART Chapter

Provisions

394-398

II.—Transfer

of

Ownership

399-401

-Promise

of

Sale

403-404

III II.

Part

essentials of the contract of Sale.

and

—Duties and

liabilities of the seller.

L— Delivery

PART II.— Liability for Defects PART III.— Liability for Eviction

405-408 409-412 41.3-423

SECTIONS.

Part IV.— Clause Chapter III.— Duties Chapter

IV.

for nonliability

424-426

buyer

427-429

of the

— Of some particular kinds of Sale.

Parti. — Sale

430-442

with right of redemption.

—Sale by sample. Sale on approval. III — Sale by number, quantity, weight or measure.

Part

443-448

II.

Part

Part IV.— Sale

...

449-453

454-462

by auction

TITLE II.—Exchange

463-465

TITLE III.— Gift

466-487

TITLE IV.— IJire

of Property.

—^General Provisions.

Chapter

I.

Chapter

II.

Part L — Delivery and Part II.— Liability for Part

Chapter IV.— Extinction

TITLE

V.

496-600

defects.

501-505

V.

506-513

Clause for non-liability

—Duties and

III.

Chapter.

liabilities of the lessor.

III.— Liability for eviction.

Part IV.Chapter

488-493

315-

liabilities of the lessee.

517-533

...

of the lea^e.

534-543

—Transfer of lease and sublease

544-546

—Hire of services.

TITLE VI.—Hire

of

547-559

work

560-586

TITLE VII.— Carriage

Chapter I.— Carriage

587-588 of goods.

Part L-General. Part II. —Duties and Part Chapter

hi.

II.

—

689-593 liabilities of

the carrier.

—Eights and duties of the sender and the

Carriage of passengers.

594-608 consignee.

609-622 623-628

TITLE VIII.—Loan.

—Loan for use-

Chapter

I.

Chapter

II.

629-647

— Loan for consumption.

Part

I.

Part

II.

—General Provisions —Special rules for loan of money

648-652

653-656

TITLE IX.— Deposit.

Chapter

I.

—General Provisions.

657-678

SECTIONS.

Chapter II.— Special

rules for deposit of

Chapter 111.— Special TITLE

money

679-680

rules for innkeeper?

681 G8G

X— Suretyship.

Chapter I.— General Provisions

687-694

Chapter II.—Effects

695-702

before performance

Chapter Ml.—Effects

after

Chapter IV.— Extinction

performance

-•

...

703-707 708-712

of Suretyship

TITLE XI.— Pledge. Chapter I.—General Provisions

713-728

Chapter II.— Eights and

729-736

duties of pledgor and pledgee

Chapter

III.—Enforcement of pledge

Chapter

IV.

—Extinction

737-745

746

of pledge

—Warehousing. Chapter — General Provisions

747-759

Chapter II.—Warehouse

760-779

TITLE

XII.

I.

reeoipt by warrant

TITLE XIII.—Agency.

Chapter

I

.—General Provisions

780-794

—Duties the agent the principal —Duties the principal to the agent —Liability principal and agent third persons —Extinction agency

Chapter

II

Chapter

III.

Chapter

IV.

Chapter

V.

of

801-808

of

of

to

of

Chapter VI.— Subagency

Chapter

795-800

to

809-815

816-825 826-832

—Importation

VII.

...

833

agents

TITLE XIV.—Brokerage

834-842

TITLE XV.— Compromise

843-848

TITLE XVI.— Gambling and Betting

849-851

TITLE XVI I.- Current Account

TITLE

XVIII.

—Insurance against Loss

TITLE XIX.—Insurance on TITLE

862 860 861-874

875-887

life

XX.—Bills.

Chapter

Chapter

Part

I.

—General provisions —Bil of Exchange. s

II.

I.—Drawing

PART 11—Effects Part

888-899

III.

of a Bill of

of a Bill of

Exchange

900-918 914-917

Exchange

—Transfer and indorsement

• • •

918-932

SECTIONS.

Part

IV.

—Acceptance,

I.

Eight of recourse in case of non-payment

11.

Payment

III.

honour

for

Part V —Bills

of

Exchange

Chapter

III.

— Promissory

Chapter

IV.

—Cheques.

Part

I.

Part Chapter

978-990

General provisions

in a set

Notes

— General provisions

...

II.— Crossed Cheques

— Prescription

V.

Chapter VI—Forged,

stolen

and

lost Bills

—Partnerships and Companies Chapter — General provisions Chapter — Ordinary Partnerships Part —Definition Part —Eelations of partners between

TITLE XXI.

I.

II.

I.

II.

themselves

Part

III.

— Eelations of partners with third persons

PaFT IV.— Dissolution

of

Or-

dinary Partnerships

Part

V.

—Eegistration of Ordinary Partnerships

Part VI.—Amalgamation

of Eegistered Part-

nerships

Chapter

III.

Chapter

IV.

Part

— Limited

Partnerships

— Limited Companies. I.

— Nature and formation of Limited Companies

Part

Part

— Shares and shareholders III. — Management of Limited Companies. II.

I.

II.

General Directors

III.

General meetings

IV.

Balance-sheet

...

SECTIONS.

V.

VI.

PART

Dividends

1266-1271

Books and accounts

1272 1273

IV.— Audit

1274-1280

v.— inspection

Part Part

VI.

Part

1281-1286

—increases and reductions of capital

1287-1296

VII.— Debentures

1297-1304

PART VIII.— Dissolution

1305

—Amalgamation

Part

IX.

PART

X.— Notes

Chapter

V

of Limited

Companies

1306-1311 1312-1313

—Liquidation of Eegistered

Partnerships,

Limited Partnerships and L'd. Companies.

Chapter VI.— Penalties

13421360

TITLE XXII.— Associations

Law on

Conflict of laws.

Index

1314-1341

1361-1394 ...

...

...

...

...

...

...

Page 282

Pages I-LXXIII

:

CODE OF

OBLIGATIONS PRELIMINARY.

TITLE

TITLE,

I.

COMMENCEMENT AND

REPEAL.

1.

—This law shall be called the Code of Obligations.

2.

— It shall come into force on the

3.

—On and from the day of operation

day of

of this

245.

Code the following laws and

regulations shall be repealed

A

annexed hereto.

1

)

The laws mentioned in Schedule

2

)

All other laws and regulations in so far as they deal with matters

governed by

this

Code or are inconsistent with the provisions of

this Code.

—

TITLE

II.

DEFINITIONS.

—Law

4.

denotes exclusively any Code, Act,

Law, Decree

or other

rule

enacted by His Majesty the King and promulgated.

—Injury denotes any harm to the body,

5.

mind, liberty, honour, reputation

or property of a person.

6.

—Security denotes any guarantee which may be given for the performance

of an obligation.

7.

—A person who

is

subrogated to the rights of a creditor can exercise

the rights which the creditor had security for

8.

in respect of the effects of the obligation or of

all

any

it.

—Intention or consent may

be inferred from words spoken or written, or

from conduct, or from any other circumstances.

9.

—An

obligation

entitled to performance of

is

said to be due from the time

when

the creditor

is

it.

Force majeure denotes any circumstance not under the control of a person and which that person could not have avoided even by using such care as10.

may

be expected from a person of ordinary prudence.

——

—

TITLE

III.

GENBEAL PEO VISIONS.

11.

— An obligation

debtors, are

bound

to

is

a legal relation whereby one or more persons, called

one or more other persons, called

or to do or to abstain from doing

The delivery

an

creditors, to deliver property,

act.

of property or the doing or not doing of the act

is

called

prestation.

—

Illustration. I. obligation to repay the money

A

borrows money from B. A, the debtor,

is

under an

to B, the creditor,

A sells a house to Bfor 10,000 ticals, A is under an obligation to deliver With regard to the the house to B. B is under an obligation to pay the price to A. the and the debtor B is creditor. With regard to obligation to deliver the house A is the obligation to pay the price B is the debtor and A is the creditor. II.

A, a transport company on the river Menam, agrees with B, another transport company, that A 's boats shall ply only from Bangkok down the river and A is under an obligation not to B's boats shall ply only from Bangkok up the river. III.

run boats up the river and the first obligation

the debtor

and

12.

A

A

B is

is the

under an obligation not to run boats down the river.

debtor and

In the second obligation

B is

is the creditor.

— Obligations may be cr'eated,

of the parties, as they

may

think

modified or determined by mutual consent

fit.

See Illustration under Section

13.

B is the creditor.

In

13.

— Private agreements cannot

exclude or modify the provisions of law in

which the public order or good morals are involved.

Illustration

(Sections 12

& lS).—Sectio7i

398 provides that the costs of a

The payment of the costs of a which public order and good morals are not involved.

contract of sale must be borne by both parties equally. contract of sale

The parties

is

a qvestion in

to a contract of sale

can therefore agree that the costs of the contract shall

be borne by one of them.

Section 654 provides that interest shall not exceed 15% per year.

of the rate of interest

is

a question in which public order

The limitation

is involved.

The parties to

a contract of loan of money cannot therefore agree that the loan shall bear more than 15 °% interest per year.

14.

— If there

is

no law applicable to a

15.

— If there

is

neither law nor custom applicable to a case, the case shall be

case,

custom shall apply.

decided by analogy with the nearest provision or the general principles of law.

16.

—Whenever

a writing

is

written by the person or persons from it

must

—If a person

affixing of such seal

18.

—A

is

is

it ia

19.

required, or

not necessary that

by the parties

to

it

it,

be

but

in the habit of affixing a seal in lieu of signature, the

— Whenever

if it is certified

the law requires that

may

by

be witnesses as are of

— In so far

affixed to a

full

age and

is

a document, signature, fingerprint,

witnesses, the witnesses shall sign it

know how to

may

;

only such

sign.

as circumstances admit, the provisions of this

the validity of contracts apply to anything which obligation.

mark

document by the signature of two witnesses.

finger print, cross or other such

or statement be certified

20.

an

is

equivalent to a signature.

equivalent to a signature

persons

whom

it

bear their signature.

17.

mark

required by law,

create,

Code concerning modify or extinguish

———

—

Illustration.

—Although not included

may create, modify In so far as circumstances admit, the provisions of this Code concerning the validity of contracts apply to wills. in this Code, wills

or extinguish an obligation.

A

I.

is

a near relation to

A A

relation to

element.

's

's

A

will in

favour of B, stating in

dead wife.

's

A

dead wife.

will

's

After the death of

A 's Ilf.

makes a

in favour of

ivill

to

B

is

B no

an essential

It

believe that

turns out after A's death that

C is

still

is voidable. 's

will is vitiated by

is voidable.

A

makes a

will bequeathing his property to

will is unlawful

—Every person

21.

only because

turns out that

A makes a will in favour ot B under B's duress. A

The object of the

by law.

it

it

B because B fraudulently made A

B's fraud ajid

will is vitiated by

B's duress and IV.

A

makes

was made under a mistake as

a nearer relation to A, was already dead.

living.

that he

it

will is voidable.

A

II.

C,

makes a

the will is void.

:

bound to act

is

an association not authorized

in

good faith in exercising his rights and

in performing his obligations.

22.

23.

—Every pei-son

—Good

is

faith is

presumed

to be acting in

no defence

if

good

faith.

not coupled with such care as

may

be

expected from a person of ordinary prudence.

24.

his

—An agreement that

own bad

25.

faith is void.

—In case of doubt an obligation shall be construed in favour of the debtor.

Illustration. land to B.

a person shall not be liable for the consequences of

—

I.

A

dies after having bequeathed by will a part of his

The heirs are under an obligation

are the debtors and

B

is the creditor

to deliver that

of that obligation.

legatee.

They

found that

it is

part to the

Then

it

is

doubtful whether the part of the land described in the will extends to a certain Klong only cyr further on. The obligation must be construed in favour of the heirs, that is to

say their obligation to deliver land shall be limited to the part of the land which extends to the klong.

II.— The Government has conceded to a company a line of tramway running from the town A to the town B. In this case the Government is under an obligation to The allow the company to lay the track and to run cars on the line conceded. Then a dispute arises The between the Government and the to extent of tfie line conceded. company contends that the concession extends to the centre of the town B. The Government contends that it extends only to the limits of the town B. If the question Government

is the

debtor and the

company is company as

the creditor.

no evidence to show whether the concession extends to the centre or to the limits of the town B, the doubt must be construed in favour of the is doubtful, that is to

say if there

is

debtor, viz. in favour of the Government.

26.

—Whenever

contract or by law,

it

interest is to be paid,

shall

and the rate

is

not fixed

by the

be 7^^% per year.

TITLE

IV.

EULES FOE THE CONSTEUOTION OP DOCUMENTS.

27.

—Whenever

the meaning of a document

at the real intention rather than at the literal

28.

— Whenever

two

or

is

doubtful the Court shall look

meaning of the words or

expressions.

more provisions of a document are inconsistent or

repugnant and the Court cannot ascertain the real intention, the

last provision shall

govern.

29.

— Whenever

it is

proved that part of a document has been forged, the

Court shall restore such document to If the Court

shall be

had

its

original condition.

cannot ascertain what the original condition was, no regard

to the part

which has been forged.

30.

—That construction

shall be preferred

by which

effect

may

be given t6 a

provision or dopument.

31.

—Whenever a sum or quantity

is

expressed in letters and in figures, and

the two expressions do not agree, and the Court cannot ascertain the real intention, the expression in letters shall be held good.

—Whenever

33.

a sum or quantity

is

expressed several times in letters or

several times in figures and the several expressions do not agree, and the Court cannot

ascertain the real intention, the lowest expression shall be held good.

33.

— Whenever a document

is

executed in two versions, one in the Siamese

language, the other in another language, and there are discrepancies between the

two

versions,

original, the

and the Court cannot ascertain which version was considered document executed in the Siamese language shall govern.

TITLE

to be

the

V.

PEEIODS OF TIME.

34.

—The

rules contained in this Chapter apply to the calculatiom of all

periods of time.

35.

—Periods of time are calculated by the day and not by the hour.

ILLUSTRATION.— On hill

the 20th. of

of exchange, sends a protest to

According

non-payment

if

B

to Section

does not pay

to say on or hefore the 23rd. of

at 10 a.m., A, the holder of

an unpaid

B the drawee.

997, it

May,

the

hill

of exchange

within three days from

May. The period however

shall

he dishonoured

by

the date of protest, that is

is calculated

hy the day, not

—

by the hour. If the

B

shall not

bill

36.

pays on the 23rd. of May after 10 a.m. fmt before the end of the day,

'he

dishonoured.

—When a period

of time begins to run from a certain day, that

When

not included within the period.

a point of time, the day

is

a period begins to run from an event or

which the event or the point of time occurs

in

day is

not

included.

ILLUSTRATION.— L— Or?

A

he repaid within twenty days.

the 1st. of April

must return

the

A

borrows from

money on or before

B 100

ticals,

to

the 21st. of April,

that is to say the 1st. of April is not included in the twetity days period.

A

II.

borrows from

from a voyage to Chantahoon. money on the 18th. of April,

B 100 ticals to he repaid three days after A return A comes back on the 10th. of April. A must return the 's

that is to say the 10th. of April is not included in the

three days period.

37.

—A period measured by weeks ends in the last

same day

of the

as that on

which

it

— On

Monday

Illustration.— I.

B

and

deliver it in three weeks.

week on the expiration

began to run.

4th. of

January,

A

agrees to

sell

a pony to

The pony must be delivered on or before Monday the

25th. of January. II.

A

agrees to

sell

100 bags of rice to

the arrival of the cargo boat Patani.

of March.

Tlie

B

and

to deliver

them two weeks after

cargo boat arrives on Wednesday the 15th.

The 100 bags of rice must be delivered on Wednesday the 29th. of March.

—A period measured by months or years

ends in the last month or year on the expiration of the day which corresponds to the date on which the period began 38.

to run. If there is

no corresponding date or

if

the date on which the period began to

the last day of a month, the period ends on the expiration of the last day of the

run

is

last

month.

— On the lOth. of January A

Illustration.

If the sale

is

agrees to

sell

The pony must he delivered on or before the

deliver it in one month.

made on January

a pony

B

and

of February.

10th.

pony must be

Slst. 2455, the

to

delivered on or

before the 28th. day of February 2455.

39.

—Month and year are those of the

The beginning

The middle The end

40.

of a

of a

of a

month means the

month means the

month means the

—If a period of time

is

official

first

day

fifteenth

last

day

calendar. of such

month.

day of such month.

of such month.

extended, the

first

day of the extension

is

the day

following the last day of the original period.

a holiday on which do business, the period includes the next working day. 41

.—If the

42.

last

day

—In matters

usual hours of

of a period is

of justice, administration

it is

customary not to

and commerce, day means tha

office or business.

TITLE

VI.

CAPACITY OF MINORS AND PERSONS OP UNSOUND MIND.

43.— A person who has not completed

his twentieth year of

44.—A person who marries before having completed age ceases

to be

a minor.

age

is

a minor.

his twentieth year of

10

45.— A minor can do by himself ordinary course of daily

life

which are customary

acts

all

in the

having due regard to his means and position.

46.— Unless otherwise provided by law or custom, acts other than those described in Section 45 are valid if done by the minor with the assistance of his lawful representative, or by the lawful representative on his behalf.

The lawful representative power over him,

47. its

is

the person

who

exercises parental

the absence of such person, his guardian.

—An act done by a minor beyond the scope of his capacity

is

voidable

if

consequences are likely to cause injury to him.

48.

ratify

it

is

— If

an act done by a minor

is

voidable, the following persons only can

or claina its cancellation on the ground of 1)

His lawful representative, or

2)

The minor himself

3)

His

49.

he

or, in

of a minor

he has become of

of capacity:

full age, or

heirs.

— If the minor has used fraudulent means

of full age, his act

50.

if

want

is

to cause

it

to be believed that

valid.

— An act done by a person of unsound mind

is

voidable.

51.— Unless otherwise provided by law or custom, an act done by the lawful representative of a person of unsound mind on his behalf is vahd. The lawful representative of a person person

is

of

unsound mind

is

his spouse if

such

married. If the person of

father, or, if he has

unsound mind

is

no father, his mother,

not married his lawful representative or, if

ho has no parents, his guardian.

is

his

11

52.

—The following persons only can ratify an act done by a person of unsound

mind or claim

its

cancellation on the ground of

1)

His lawful representative, or

2)

The person himself

3)

His

heirs.

if

he has ceased

want

of capacity:

to be of

unsound mind, or

12

DIVISION I.-HOW OBLIGATIONS ARISE.

TITLE

I.

OONTEACTS.

CHAPTER

I.

DEFINITION.

53.

—A

creates one or

contract

more

is

an agreement between two

or

more persong which

obligations.

CHAPTER

II.

CONDITIONS FOE THE VALIDITY OF OONTEACTS.

—A

54.

contract which does not comply with the conditions concerning

capacity or consent

—A

55.

object

is

is

voidable.

contract which does not comply with the conditions concerning

void.

—A

56.

required by

law

contract

is

also void if it does not

comply with any other condition

for its completion.

57.—A voidable contract may be cancelled on the application of, or ratified by, such persons only as are specified by law, and within the time provided by law.

13

Illustration.

thousand tons of

ice are

made annually

at

A's

ice

A falsely represents to B that the annual output of the factory is ten thousand

factory. tons,

— Five

and thereby induces

he had

known

of sale

is defective

that the output

Its cancellation

89 to 91)

B to buy

and

may

the factory.

was five thousand tons

the contract is voidable.

be claimed by

not completed.

58.

— Whenever a voidable contract ^

cancellation has expired,

its

59.

It

only.

may

bought the factory if B's consent to the contract

be ratified by

B

or

B

's

heirs.

B or B's heirs as long as prescription (under Sections

is

claiming

B would not have

it

is ratified, or the time allowed by law for becomes valid as from the date of its making.

—A void contract may be cancelled at any time on the application of any

interested person.

—A

60. it

void contract cannot be ratified. If the parties purport to ratify

with knowledge of

61.

—In

its invalidity,

they are deemed to have made a

became

contract.

the event of the cancellation of a contract, the parties must be

replaced in the same position as they were at the time or

new

when

the contract was

made

void.

bound to restore to the other party the prestation which he received in execution of the contract, or to make compensation for it, according to the provisions of this Code concerning restitution for undue enrichment.

Each party

is

—

Illustration, A sells to B for l.OOO ticals an ingot which both parties thought to be of pure gold. Later on B discovers that the ingot contained lead The sale is voidable on account of mistake. B is entitled to claim for the inside. return of the 1,000 ticals paid to A. A is entitled to claim for the return of the ingot. If the ingot has been lost or stolen, restitution becomes impossible. But B has as still no compensation to pay since he is liable only for such part of his enrichment totally enrichment the exists {see Section 125): When the ingot was lost or stolen, is still entitled to claim for the return of the 1,000 ticals disappeared. Nevertheless,

B

paid

to

A.

14

If

from

B sold

the ingot, he is only bound to restore to

A

the price which he received

the purchaser, because such price represents B's actual enrichment (see section 125).

But he

is still entitled to

claim far the return of the 1,000 ticals paid to A.

PART I.— Capacity of Parties.

62.^Every person who

is

not declared by law or custom to be incapacitated

can enter into a contract.

Part II.— Consent.

63.

—There

64.

—Consent may be expressed or implied.

no contract except by the mutual consent of the parties, that to say unless the parties have agreed upon the terms of the contract. is

is

-OFFER AND ACCEPTANCE.

65.

—If an offer to make

when acceptance reaches the

a contract

is

made, the contract

is

complete only

offerer.

—

interest.

C

Illustration. B has borrowed money from A, a banker in Bangkok, at 7^^% On the 1st. of August A writes to C, in Chantaboon, offering to transfer to

the rights of

A

against B.

A

specifies in his letter that the offer

before the 1st. of September. Acceptance reaches is

formed on

August

only.

the 25th. of

August and

A

C is entitled

must be accepted

on the 25th. of August. The contract to receive interest

from

the 25th. of

15

66.—Acceptance has no retrospective back to the time when the offer was made.

See Illustration under Section

effect,

that

is

to

say

it

does not relate

67.

—

effect

67. If it is agreed that acceptance shall have a retrospective effect, such cannot affect the rights acquired by third persons acting in good faith.

67).— On the 1st of May A writes to B offering him a carriage for sale and asking that B should give an answer not later than the 10th. of May. On the 8th. of May A receives an answer from B that B is willing to take the carriage. The contract is formed on the 8th. of May.

Illustration

A

If

had stipulated that

offer was made the May. But should on

bought

C

it

B

's

acceptance should relate hack to the time when the

contract of sale would he deemed to have heen

May

made on

tlie 1st.

of

A

have sold the carriage to a third person C, who in good faith, the retrospective effect could not affect C's right, that is to say the 3rd. of

would remain the

68.

lavjful

owner of the carriage.

—An offer made inter praesentes

An

offer

made by

Illustration. accept immediately.

A

telephone

—A

is

meets

69.

A

is

B

not hound to

The same rule applies if

is

&

(Sections 66

is

binding only

deemed

to

be

made

if

accepted at once.

inter praesentes.

and offers to sell him his motor-car. and is free to sell his motor-car to

B

telephones to

if

does not

B and B does not accept at once.

—An offer made inter absentes in which no time for acceptance

binding only

B C.

is

specified

acceptance reaches the offerer within a reasonable time.

A reasonable time is the time within which acceptance may be reasonably expected to arrive, due regard being paid to distance and means of communication, and to the nature and object of the proposed contract. The

offer

cannot be withdrawn during such period.

16

70.

—An

drawn, but

71. it

was

it is

offer in

which a time

binding only

if

cannot be withacceptance reaches the offerer within such time. for acceptance is specified

—If the acceptance arrives after the time specified, but

sent so that in the ordinary course of things

it

it is apparent that ought to have arrived