Contemporary Legal Knowledge and Practice PDF

Contemporary Legal Knowledge and Practice Comparative Laws - Singapore Institute of Legal Education Session 2 Gitta Satryani, Warathorn Wongsawangsiri, Debby Sulaiman 1. Contract Formation Under general civil law, three requirements need to be met: (i) consent, (ii) capacity and (iii) a lawfu...

Contemporary Legal Knowledge and Practice Comparative Laws - Singapore Institute of Legal Education Session 2 Gitta Satryani, Warathorn Wongsawangsiri, Debby Sulaiman 1. Contract Formation Under general civil law, three requirements need to be met: (i) consent, (ii) capacity and (iii) a lawful and certain content. Query requirements for contractual interpretation 2. Contractual interpretation: Indonesian CC  2. Contractual interpretation: Thai CCC 2.1 Contractual interpretation in accordance with the true intentions Section 171. In the interpretation of a declaration of intent, the real intent must be sought rather than the literal meaning of the words or expressions. The true intention shall always prevail even when it is in conflict with the written agreement Example: Supreme Court Judgment No. 11107/2555 The Court ruled that the true nature of a contract should be determined by the parties' intentions and actual terms, not just its name. ? Section 368. Contracts shall be interpreted as required by good faith, taking customary practice into consideration. Example: Supreme Court Judgment No. 1375/2505 “Although it did not state in the freight booking that the jute must be packed tightly, but in the customs of freight forwarding overseas, the consignor shall machine pack the jute that would be delivered tightly.” Supreme Court Judgment No. 2210/2526 “The true intention of the parties could be seen from such agreement. If the provision in the agreement is clear, there is no requirement to interpret the intention of the parties outside such agreement.”  2. Contractual interpretation: Thai CCC 2.2 Filling the gaps with the statutory rules Section 10 – 14 of the CCC Section 10. When any of the terms in a document may be interpreted in two meanings, the meaning which gives some effect shall be preferred over the other which does not. Section 11. In case of doubt, the interpretation shall be in favour of the party who incurs the obligation. Section 12. In the case where an amount of money or quantity is expressed in a document both in characters and in figures, if there is inconsistency between them and the real intent cannot be ascertained, the expression in characters shall be governed. Section 13. If an amount of money or quantity is expressed in characters or in figures more than once in a document, but there is inconsistency in them and the real intent cannot be ascertained, the lowest amount of money or quantity shall be governed. Section 14. In the case where a document is made in several languages, whether in a single document or several documents, including the Thai language, if the contents in such several languages are different and the parties’ intent as to which language is to prevail cannot be ascertained, the Thai language shall prevail. 3. Pre-contract Negotiations Common law position Civil law position Pre-contractual negotiations are part of the Civil law systems are much more surrounding circumstances that are used to expansive when looking at pre- design, and hence interpret, the apparent contractual negotiations. The logic is (objectively determined) meaning of an that most contracts are subject to agreement, unless the document is intended detailed negotiations in which the to be seen by third parties not privy to the parties set out their position and will negotiations. often explain their reasoning based on the commercial background. Evidence Under common law, as you know, various of such discussion may sometimes be rules prohibit the admission of evidence of useful when seeking to interpret a pre-contractual negotiations. contract at a later time. However, The "Factual matrix" therefore is limited and please bear in mind that this is not excludes pre-contractual negotiations from conclusive and it is still subject to evidence – other than in exceptional interpretation under Thai law. circumstances. 4. The Doctrine of Good Faith Good faith in Thailand Section 6. It shall be presumed that each person acts in good faith. Example: Supreme Court Judgment No. 9158/2539 “The court viewed that the plaintiff should be benefited from Section 6 that the purchase of land was done in good faith, that is, the payment had been made and the title had been registered.” Section 368. Contracts shall be interpreted as required by good faith, taking customary practice into consideration. Example: Supreme Court Judgment No. 478/2544 “When the true intention of the parties could not be revealed and no specific default rules are applicable, the interpretation of this term shall rest upon the principles of good faith and ordinary customs under Section 368.”  4. The Doctrine of Good Faith Liability of bad faith for Torts Section 421. The exercise of a right which will only injure another person shall be unlawful. Example: Supreme Court Judgment No. 6599/2559 Company T announced that it will take the coupons valued 80 baht issued by Company B and will double the value of the coupon to be 160 baht provided that the customer shall purchase the goods in Company T's supermarket. Company T’s operation is obviously to scramble for Company B’s customers. The Supreme Court held that Company T’s conduct was wrongful against Company B under Section 421 of the CCC. 5. Discharge of contracts under civil law systems Keep in mind: Different specific remedies are available after termination Civil code specifies what damages apply Often specific performance is preferred Election of remedies is critical 5. Discharge of contracts under civil law systems Further facts in our case study Recall: the Respondents terminated the SPA on 3 June 2015. The termination was contested. The Claimants later sold their shares to a third party on 1 Feb 2018, nearly 3 years after the original Closing, for a significantly lower purchase price. They claimed the delta from the Respondents as damages for wrongful termination i.e. to seek to put itself in a position as if the contract and Closing had been performed on 1 June 2015. Were the Claimants entitled to positive damages? And if so, to what value? 5. Discharge of contracts under civil law systems The importance of election of remedies