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The provisions of the Thai Civil and Commercial Code (TCCC), embodying the rules on remedies for breach of contract, were entirely borrowed from foreign legal systems, mainly German and Japanese law. This transplantation was rather hasty and uncritical, with the unfortunate result of theoretical and practical disorientation. This is well illustrated by the problems concerning the availability of specific performance and damages; although most Thai writers maintain that specific performance is the primary remedy for breach of contract, sections 213 and 215 of the TCCC give the creditor the concurrent right to choose between specific performance and damages. Similarly, the judicial position as to the primacy of specific performance is enigmatic. This article explores the positive rules of remedies for breach of contract in Thai law through the lens of legal transplantation in order to provide a better understanding of their fundamental unresolved problems.

This chapter examines issues concerning the formation of contract under Thai law. It discusses the background to the Thai Civil and Commercial Code 1925 and the French and German influences on its drafting. The chapter examines the interpretation of intention, which is integral to the notion of a juristic act for creation of contractual obligations. The direction to discern true intention, combined with notions of fictitious intention and concealed juristic act, enables a court to re-characterize transactions according to their true intention. Through the power to ‘transform a void act’, a court may also declare an act valid otherwise void for non-compliance with formalities governing one kind of juristic act, if it complies with the requirements of another juristic act. The chapter discusses the German concept of Vorvertrag or pre-contract in the context of transactions that do not comply with the formality requirements, and explains why the Thai judges have not embraced this concept. It also examines how a court imposes pre-contractual liability on a party breaking off from contract negotiations.

This chapter examines the ability for third party beneficiaries to enforce contracts under section 374 of the Thai Civil and Commercial Code. The provision illustrates that the urgency for enactment of the Code came at the expense of depth and intricacy. Whereas the German Civil Code expressly provides that the third party’s entitlement to enforce the provisions of a contract may be inferred from the circumstances, such provision is absent in the Thai Code. While the intention of the parties should be capable of inference from the contract, Thai courts have demonstrated a reluctance to read section 374 broadly; compelling evidence is required before the third party is found to acquire rights. Apart from the four categories of contracts where the courts more readily find third party rights—insurance, compromise, a contract to discharge a debt owed by third party, and a contract to confer an option on a third party—parties are likely to find it difficult to invoke section 374. Underlying the judicial attitude is the strong grip of the privity rule, or to use the German-inspired term, the ‘relativity of contract’. This restrictive approach also applies to the interpretation of ‘performance’ which does not include conferment of benefits.

This chapter examines the ascertainment of contract terms, and thus two closely connected issues in defining the contents of contracts, in Thailand: the approaches adopted in interpreting the meaning of agreed contractual terms, as well as to what extent additional terms are implied to supplement the express terms. It discusses the underlying philosophy of interpretation with regard to the dichotomy of ‘objective’ and ‘subjective’ approaches; it details the various interpretative aids, such as customs, usages, the commercial background, and the negotiations of the parties; and it shows how Thai law resolves the tension between literalist and contextualist approaches to interpretation. A number of hypothetical scenarios illustrate how the courts in Thailand deal with issues of contractual interpretation and gap-filling in practice.

This chapter considers the kinds of legal and medicolegal disputes that arose when foreign residents sustained injuries on the tracks of the Bangkok Tramway Company. It looks at the kinds of expertise and institutions responsible for adjudicating claims for compensation and considers the rights of the Bangkok Tramway Company, its employees, managers, and shareholders. In answering these questions, the chapter analyzes “jurisdictional politics,” “conflicts over the preservation, creation, nature, and extent of different legal forums and authorities,” in the plural legal arena of treaty port Bangkok. It deconstructs historical metanarratives about the “Westernization” or “modernization” of Thai law by revealing the fractious nature of Western law, including evidence of internecine squabbles between the representatives of legal and medical expertise—barristers and physicians—but also among the laypeople who advocated for particular brands of European legal tradition. It therefore complicates celebratory narratives of legal liberalism by demonstrating how nationalist sentiments and professional self-interest were the true impetus for legal change, not any grand imperial ambitions for bestowing law as a civilizing force.

The chapter gives an account of consumer protection in Thailand and, more specifically, how Thai contract law deals with extremely one-sided, onerous, or otherwise unfair terms, such as exclusions or limitations of liability, penalty clauses, or restraint of trade clauses. It discusses the overt judicial control of such terms under the 1997 Unfair Contract Terms Act and other protective mechanisms under specific consumer legislation. It also analyses how the Thai courts have exercised a more indirect control by employing traditional general contract law doctrines, including the rules on procedural fairness, in order to protect parties against the imposition of unfair terms. Empirical evidence is provided to show that effective overall consumer protection has been established since the 1990s.