SPD LA100 Class 2 Civil and Commercial Law I.pdf

International Programme on Social Policy and Development Thammasat University Introduction to Law and Legal Systems Class 2 – Civil and Commercial Law I UKRI...

International Programme on Social Policy and Development Thammasat University Introduction to Law and Legal Systems Class 2 – Civil and Commercial Law I UKRIT SORNPROHM Special Lecturer Chief of Policy and External Affairs on the Rule of Law and Criminal Justice Thailand Institute of Justice (TIJ) affiliated with the United Nations  I. Structure of the Code CONTENT II. General Principles Juristic Acts V. III. Persons Obligations VI. IV. Thing and Property Family & Succession VII. Q&A I. Structure of the Code BRAINSTORMING: Work in groups of 3-4 people What are the human life cycle? Are there any legal aspect involved with each stage of human life? Make a list of some examples of such legal aspect. UKRIT S. - LA100 SPD TU 2024 | 3 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 1 General Principles (Sections 1 - 193/35) Book 2 Obligation (Sections 194 - 452) Book 3 Specific Contracts (Sections 453 - 1297) Book 4 Property (Sections 1298 - 1434) Book 5 Family (Sections 1435 - 1598/41) Book 6 Succession (Sections 1599 - 1755) UKRIT S. - LA100 SPD TU 2024 | 4 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 1 General Principles (Sections 1 - 193/35) Introductory Provisions (Sections 1 - 3) Title 1 General Provisions (Sections 4 - 14) Title 2 Persons (Sections 15 - 136) Title 3 Things (Sections 137 - 148) Title 4 Juristic Acts (Section 149 - 193) Title 5 Period of Time (Sections 193/1 - 193/8) Title 6 Prescription (Sections 193/9 - 193/35) UKRIT S. - LA100 SPD TU 2024 | 5 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 2 Obligations (Sections 194 - 452) Title 1 General Provisions (Sections 194 - 353) Title 2 Contracts (Sections 354 - 394) Title 3 Management without Mandate (Sections 395 - 405) Title 4 Undue Enrichment (Sections 406 - 419) Title 5 Wrongful Acts (or Tort) (Sections 420 - 452) UKRIT S. - LA100 SPD TU 2024 | 6 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 3 Specific Contracts (Sections 453 - 1297) Title 1 Sale (Sections 453 - 517) Title 2 Exchange (Sections 518 - 520) Title 3 Gift (or Giving) (Sections 521 - 536) Title 4 Hire of Thing (or Rental Agreement) (Sections 537 - 571) Title 5 Hire Sale (or Hire Purchase) (Sections 572 - 574) Title 6 Hire of Service (or Employment Contract) (Sections 575 - 586) Title 7 Hire of Work (or Work Hire) (Sections 587- 607) Title 8 Carriage (or Transport) (Sections 608 - 639) Title 9 Loan (Sections 640 - 656) Title 10 Deposit (Sections 657 - 679) Title 11 Suretyship (or Security) (Sections 680 - 701) Title 12 Mortgage (Sections 702 - 746) UKRIT S. - LA100 SPD TU 2024 | 7 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 3 Specific Contracts (Sections 453 - 1297) Title 13 Pledge (Sections 747 - 769) Title 14 Warehousing (Sections 770 - 796) Title 15 Agency (Sections 797 - 844) Title 16 Brokerage (Sections 845 - 849) Title 17 Compromise (Sections 850 - 852) Title 18 Gambling and Betting (Sections 853 - 855) Title 19 Current Account (Sections 856- 860) Title 20 Insurance (Sections 861 - 897) Title 21 Bill (or Letter of Payment) (Sections 898 - 1011) Title 22 Partnership and Company (Sections 1002 - 1273/4) Title 23 Association (Sections 1274 - 1297) (repealed) UKRIT S. - LA100 SPD TU 2024 | 8 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 4 Property (Sections 1298 - 1434) Title 1 General Provisions (Sections 1298 - 1307) Title 2 Ownership (Sections 1308 - 1366) Title 3 Possession (Sections 1367 - 1386) Title 4 Servitude (Sections 1387 - 1401) Title 5 Habitation (Sections 1402 - 1409) Title 6 Superficies (or Right of Property Surface) (Sections 1410 - 1416) Title 7 Usufructs (or Usufructuary Rights) (Sections 1417 - 1428) Title 8 Charge on Immovable Property (Sections 1429 - 1434) UKRIT S. - LA100 SPD TU 2024 | 9 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 5 Family (Sections 1435 - 1598/41) Title 1 Marriage (Sections 1435 - 1535) Title 2 Parent and Child (Sections 1536 - 1598/37) Title 3 Maintenance (Sections 1598/38 - 1598/41) UKRIT S. - LA100 SPD TU 2024 | 10 I. Structure of the Code STRUCTURE OF CIVIL AND COMMERCIAL CODE Book 6 Succession (Sections 1599 - 1755) Title 1 General Provisions (Sections 1599 - 1619) Title 2 Statutory Right of Inheritance (Sections 1620 - 1645) Title 3 Last Will (or Testament) (Sections 1646 - 1710) Title 4 Administration and Distribution of the Succession (Sections 1711 - 1752) Title 5 Vacant Estate (Section 1753) Title 6 Prescription (Sections 1754 - 1755) UKRIT S. - LA100 SPD TU 2024 | 11  I. Structure of the Code CONTENT II. General Principles Juristic Acts V. III. Persons Obligations VI. IV. Thing and Property Family & Succession VII. Q&A II. General Principles SOURCES OF CIVIL AND COMMERCIAL LAW Civil and Commercial Code Written laws Local Customs Most nearly applicable written law General principles of law Civil and Commercial Code: Section 4 UKRIT S. - LA100 SPD TU 2024 | 13 II. General Principles GOOD FAITH Every person must, in the exercise of his/her rights and in the performance of his obligations, act in good faith Every person is presumed to be acting in good faith. Civil and Commercial Code: Sections 5 - 6 UKRIT S. - LA100 SPD TU 2024 | 14 II. General Principles INTEREST RATE When interest must be paid and its rate is not fixed by a legal act or by an expressed provision of the law, the rate shall be three percent (3%) per annum. Civil and Commercial Code: Section 7 UKRIT S. - LA100 SPD TU 2024 | 15 II. General Principles FORCE MAJEURE Force majeure means any event whose occurrence or harmful result could not be prevented, even if the person against whom it occurred or threatens to occur took the precautions that can be expected of him/her in such situation and in such condition. Civil and Commercial Code: Section 8 UKRIT S. - LA100 SPD TU 2024 | 16 II. General Principles INTERPRETATION When a sum or quantity is expressed in words and figures, and the two expressions do not agree, and the real intention cannot be determined, the expression in words must be maintained. When a sum or quantity is expressed several times in words or several times in figures, the different expressions do not agree and the real intention cannot be determined, the lowest expression is retained. Civil and Commercial Code: Sections 12 - 13 UKRIT S. - LA100 SPD TU 2024 | 17  I. Structure of the Code CONTENT II. General Principles Juristic Acts V. III. Persons Obligations VI. IV. Thing and Property Family & Succession VII. Q&A III. Persons LET’S DISCUSS… Ariel is 12 years old. She has 500,000 USD and wants to buy a car. She goes to a showroom in Chiang Mai and asks a salesperson to bring her a purchase contract, which she then signs. You are a salesperson. Will you enter into a contract with Ariel? Why? UKRIT S. - LA100 SPD TU 2024 | 19 III. Persons Persons Under Civil and Commercial Code Natural Persons Juristic Persons (Sections 15 - 64) (Sections 65 - 136) Quasi-incompetent Incompetent Competent Persons Children Persons Persons (Section 19 - 20) (Sections 19 - 24) (Section 32) (Section 28-29) UKRIT S. - LA100 SPD TU 2024 | 20 III. Persons PERSONALITY (PERSONHOOD) Personality begins with the full achievement of birth as a living child and ends with death. The baby in the womb of its mother is capable of rights provided that it is then born alive. Civil and Commercial Code: Sections 15 UKRIT S. - LA100 SPD TU 2024 | 21 III. Persons CAPABILITY (COMPETENCE) OF NATURAL PERSONS A person who reaches the age of twenty ceases to be a minor and becomes sui juris. (S.19) A minor becomes sui juris by marrying, provided that the marriage is concluded in accordance with the provisions of Section 1448. (S.20) Marriage cannot take place until the man and the woman have reached the age of seventeen. But the court may, for appropriate reasons, allow them to marry before they reach that age. (S.1448) Civil and Commercial Code: Sections 19 - 20, 1448 UKRIT S. - LA100 SPD TU 2024 | 22 III. Persons CAPABILITY (COMPETENCE) OF NATURAL PERSONS For the doing of a juristic act, a minor must obtain the consent of his/her legal representative. All acts done by him without such consent are voidable unless otherwise provided. (S.21) A minor may perform any act by which he simply acquires a right or frees himself from an obligation, any act which is strictly personal, and any act which is suitable to his condition in life, and actually required for his reasonable needs. (S.22-24) Civil and Commercial Code: Sections 21 - 24 UKRIT S. - LA100 SPD TU 2024 | 23 III. Persons CAPABILITY (COMPETENCE) OF NATURAL PERSONS A minor, after completing fifteen years of age, can make a will. (S.25) When the legal representative permits a minor to dispose of property for a purpose specified by him, the minor may, within the limits of such purpose, dispose of it at his pleasure. He may do the same as to property which he has been permitted to dispose of without any purpose being specified. (S.26) Civil and Commercial Code: Sections 25 - 26 UKRIT S. - LA100 SPD TU 2024 | 24 III. Persons LET’S DISCUSS… Ariel is 12 years old. She has 500,000 USD and wants to buy a car. She goes to a showroom in Chiang Mai and asks a salesperson to bring her a purchase contract, which she then signs. You are a salesperson. If you sign a contract with Ariel, what is the legal status of the signed contract? How to solve it? UKRIT S. - LA100 SPD TU 2024 | 25 III. Persons Persons Under Civil and Commercial Code Natural Persons Juristic Persons (Sections 15 - 64) (Sections 65 - 136) Registered Association Foundations Limited Companies Partnerships (Sections 1096 - 1273/4) (Section 78) (Section 110) (Sections 1012 - 1273/4) UKRIT S. - LA100 SPD TU 2024 | 26 III. Persons EXISTENCE OF JURISTIC PERSONS A juristic person can come into existence only by virtue of this Code or of other law. (S.65) A juristic person has rights and duties conformity with the provisions of this Code or of other law within the scope of its power and duties, or its object as provided by or defined in the law, regulation or constitutive act. (S.66) Civil and Commercial Code: Sections 65 - 66 UKRIT S. - LA100 SPD TU 2024 | 27 III. Persons REPRESENTATIVES OF JURISTIC PERSONS A juristic person must have one or several representatives as prescribed by the law, regulations or its constitutive act; decisions as to the affairs of juristic persons are made by a majority of the representatives. (S.70) In the case where a juristic person has several representatives, if it is not otherwise provided by the law, or defined in regulations or constitutive act, decisions as to the affairs of juristic person are made by a majority of representatives. (S.71) Civil and Commercial Code: Sections 70 - 71 UKRIT S. - LA100 SPD TU 2024 | 28 III. Persons RESPONSIBILITY OF JURISTIC PERSONS A juristic person is bound to make compensation for any damage done to other persons by its representatives or the person empowered to act on behalf of the juristic person in the exercise of their functions, saving its right of recourse against the causers of the damage. (S.76) If damage is done to other persons by an act which is not within the scope of the object or power and duties of the juristic person, all the persons as mentioned in paragraph one who agreed such act or executed it, are jointly liable to make compensation. (S.76) Civil and Commercial Code: Sections 76 UKRIT S. - LA100 SPD TU 2024 | 29  I. Structure of the Code CONTENT II. General Principles Juristic Acts V. III. Persons Obligations VI. IV. Thing and Property Family & Succession VII. Q&A IV. Things and Property DEFINITION Things are corporeal objects. (S.137) Property includes things as well as incorporeal objects, susceptible of having a value and of being appropriated. (S.138) Civil and Commercial Code: Sections 137 - 138 UKRIT S. - LA100 SPD TU 2024 | 31 IV. Things and Property TYPES Immovable property denotes land and things fixed permanently to land or forming a body therewith. It includes real rights connected with the land or things fixed to or forming a body with land. (S.139) Movable property denotes things other than immovable property. It includes rights connected therewith. (S.140) Civil and Commercial Code: Sections 137 - 138 UKRIT S. - LA100 SPD TU 2024 | 32 IV. Things and Property FRUITS OF A THING By fruit of a thing is a natural fruit and legal fruit. Natural fruit denotes that which is a natural offspring of and is obtained from a thing in the normal possession or in the use thereof; and it is capable of acquisition at the time when it is severed from the thing. Legal fruit denotes a thing or other interest obtained periodically by the owner from another person for the use of the thing; it is calculated and may be acquired day by day or according to a period of time fixed. (S.148) Civil and Commercial Code: Sections 148 UKRIT S. - LA100 SPD TU 2024 | 33 IV. Things and Property FRUITS OF A THING By fruit of a thing is a natural fruit and legal fruit. Natural fruit denotes that which is a natural offspring of and is obtained from a thing in the normal possession or in the use thereof; and it is capable of acquisition at the time when it is severed from the thing. Legal fruit denotes a thing or other interest obtained periodically by the owner from another person for the use of the thing; it is calculated and may be acquired day by day or according to a period of time fixed. (S.148) Civil and Commercial Code: Sections 148 UKRIT S. - LA100 SPD TU 2024 | 34 IV. Things and Property LET’S DISCUSS… Ariel is 12 years old. She has 500,000 USD and wants to buy a car. She goes to a showroom in Chiang Mai and asks a salesperson to bring her a purchase contract, which she then signs. You are a salesperson. How would you categorize the car under this section? UKRIT S. - LA100 SPD TU 2024 | 35  I. Structure of the Code CONTENT II. General Principles Juristic Acts V. III. Persons Obligations VI. IV. Thing and Property Family & Succession VII. Q&A V. Juristic Acts FORMING A JURISTIC ACT Juristic act are voluntary lawful acts, the immediate purpose of which is to establish between persons relations, to create, modify, transfer, preserve or extinguish rights. (S.149) create modify RIGHT transfer preserve extinguish Civil and Commercial Code: Section 149 UKRIT S. - LA100 SPD TU 2024 | 37 V. Juristic Acts COMPLETION An act is void if its object is expressly prohibited by law or is impossible, or is contrary to public order or good morals. (S.150) An act is not void on account of its differing from a provision of any law if such law does not relate to public order or good moral. (S.151) An act which is not in the form prescribed by law is void. (S.152) An act which does not comply with the requirements concerning capacity of person is voidable. (S.153) Civil and Commercial Code: Sections 150 - 153 UKRIT S. - LA100 SPD TU 2024 | 38 V. Juristic Acts LET’S DISCUSS… Ariel is 12 years old. She has 500,000 USD and wants to buy a car. She goes to a showroom in Chiang Mai and asks a salesperson to bring her a purchase contract, which she then signs. You are a salesperson. How would you explain the movement of the right to possess the car under this section? UKRIT S. - LA100 SPD TU 2024 | 39  I. Structure of the Code CONTENT II. General Principles Juristic Acts V. III. Persons Obligations VI. IV. Thing and Property Family & Succession VII. Q&A VI. Obligations SOURCES OF OBLIGATIONS Sources of Obligations Under Civil and Commercial Code Juristic Acts Legal Causes Two or More Parties One Party /Contracts UKRIT S. - LA100 SPD TU 2024 | 41 VI. Obligations SOURCES OF OBLIGATIONS Sources of Obligations Under Civil and Commercial Code Juristic Acts Legal Causes Management Undue Enrichment Wrongful Acts/Tort without Mandate UKRIT S. - LA100 SPD TU 2024 | 42 VI. Obligations MANAGEMENT WITHOUT MANDATE (S.395-405) A person who takes charge of an affair for another without having received mandate from him or being otherwise entitled to do so in respect of him, shall manage the affair in such manner as the interest of the principal requires, having regard to his actual or presumptive wishes. (S.395) If the undertaking of the management of the affair is opposed to the actual or presumptive wishes of the principal, and if the manager must have recognized this, he is bound to compensate the principal for any damages arising from his management of the affair, even if no fault otherwise imputable to him. (S.396) If the undertaking of management of the affair is in accordance with the interest and the actual or presumptive wishes of the principal, the manager may demand reimbursement of his outlay as an agent. (S.401) Civil and Commercial Code: Sections 395 - 396, 401 UKRIT S. - LA100 SPD TU 2024 | 43 VI. Obligations UNDUE ENRICHMENT (S.406-419) Any person who, through an act of performance made by another person or in any other manner, obtains something to the prejudice of such other person without legal ground, must return it to the latter. The acknowledgment of the existence or non-existence of a debt is deemed to be an act of performance. (S.406) When the property which must be returned is other than a sum of money and the person who received it was in good faith, such person is only bound to return it in such condition as it is and is not responsible for less or damage to such thing, but he must return whatever he has acquired as compensation for such loss or damage. If the person who received the property was in bad faith he is fully responsible for the loss or damage even caused by force majeur, unless he proves that the loss or damage would have happened in any case. (S.413) Civil and Commercial Code: Sections 406, 413 UKRIT S. - LA100 SPD TU 2024 | 44 VI. Obligations WRONGFUL ACTS/TORT (S.420-452) A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore. (S.420) An employer is jointly liable with his employee for the consequences of a wrongful act committed by such an employee in the course of his employment (S.425) An employer is not liable for damage done by the contractor to a third person in the course of the work, unless the employer was at fault in regard to the word ordered or to his instructions or to the selection of the contractor (S.428) Civil and Commercial Code: Sections 420, 425, 428 UKRIT S. - LA100 SPD TU 2024 | 45  I. Structure of the Code CONTENT II. General Principles Juristic Acts V. III. Persons Obligations VI. IV. Thing and Property Family & Succession VII. Q&A VII. Family and Succession ENGAGEMENT/BETROTHAL & MARRIAGE (S.1435-1535) The engagement cannot take place until the man and the woman have completed their seventeenth year (S.1435) Engagement is not valid until the man has given or transferred the property which is the Khongman to the woman to prove that the woman is betrothed. The Khongman becomes the wife's property after the engagement (S.1437) After the betrothal has taken place, if either party commits a breach of the betrothal agreement, such party shall be liable to make compensation. In case the woman commits a breach of the betrothal agreement, the Khongman shall also be returned to the man. (S.1439) Civil and Commercial Code: Sections 1435, 1437, 1439 UKRIT S. - LA100 SPD TU 2024 | 47 VII. Family and Succession ENGAGEMENT/BETROTHAL & MARRIAGE (S.1435-1535) A marriage can take place only when the man and woman have completed their seventeenth year of age. But the Court may, in case of having appropriate reason, allow them to marry before attaining such age. (S.1448) A marriage cannot take place if either the man or the woman is an insane person or adjudged incompetent. (S.1449) A marriage cannot take place if the man and woman are blood relations in the direct ascendant or descendant line, or brother or sister of full or half blood. The said relationship shall be in accordance with blood relation without regard to its legitimacy (S.1450) Civil and Commercial Code: Sections 1448, 1449, 1450 UKRIT S. - LA100 SPD TU 2024 | 48 VII. Family and Succession ENGAGEMENT/BETROTHAL & MARRIAGE (S.1435-1535) An adopter cannot marry the adopted. (S.1451) A marriage cannot take place if the man or woman is already the spouse of another person. (S.1452) Husband and wife shall cohabit as husband and wife. Husband and wife shall maintain and support each other according to his or her ability and condition in life. (S.1461) Properties of husband and wife except in so far as they are set aside as Sin Suan Tua, are Sin Somros. (S.1470) Civil and Commercial Code: Sections 1451, 1452, 1461, 1470 UKRIT S. - LA100 SPD TU 2024 | 49 VII. Family and Succession ENGAGEMENT/BETROTHAL & MARRIAGE (S.1435-1535) Sin Suan Tua (S.1471) consists of: 1. property belonging to either spouse before marriage 2. property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse 3. property acquired by either spouse during marriage through a will or gift 4. Khongman. Sin Somros (S.1474) consists of: 1. property acquired during marriage; 2. property acquired by either spouse during marriage through a will of gift made in writing if it is declared by such will or document of gift to be Sin Somros; 3. fruits of Sin Suan Tua. Civil and Commercial Code: Sections 1471, 1474 UKRIT S. - LA100 SPD TU 2024 | 50 VII. Family and Succession PARENT AND CHILD (S.1536-1598/41) A child has the right to use the family name of the father. In case the father is unknown, a child has the right to use the family name of the mother. (S.1561) No person can enter an lawsuit action, either civil or criminal, against his ascendants, unless the case is taken up by the Public Prosecutor upon application of such person or a close relative of such person. (S.1562) Children are bound to maintain their parents. (S.1563) Parents are bound to maintain their children and to provide proper education for them during their minority. When the children are sui juris, parents are bound to maintain them only when they are infirm and unable to earn their living. (S.1564) Civil and Commercial Code: Sections 1561 - 1564 UKRIT S. - LA100 SPD TU 2024 | 51 VII. Family and Succession SUCCESSION (S.1599 - 1755) When a person dies, his estate devolves on the heirs. An heir may lose his right to the succession only under the provisions of this Code or other laws. (S.1599) An heir shall not be liable in excess of the property devolving on him. (S.1601) An estate devolves on the heirs by statutory right or by will. (S.1603) Heirs who are so entitled by Law are called ‘statutory heirs'. Heirs who are entitled by Will are called ‘legatees'. Civil and Commercial Code: Sections 1471, 1474 UKRIT S. - LA100 SPD TU 2024 | 52 VII. Family and Succession SUCCESSION (S.1599 - 1755) Types of a Will: 1. Ordinary (simple) will: Also known as a basic will, this is the type most people are familiar with. It allows the testator to name a guardian for any minor children and decide who will receive their assets. This must be co-signed by 2 witnesses. 2. Holographic will: This is a handwritten will where the testator writes the entire document, the date, and their signature by hand. No alterations, additions, or erasures are valid unless made by the testator's hand and signed by them. 3. Public document will: This is a will in public form prepared by a government official. 4. Secret document will: This is a will that is sealed until the testator's death. 5. Oral will: This is often limited to emergency events such as military personnel or sailors serving in wars; this must be presented in front of 2 witnesses. Civil and Commercial Code: Sections 1656-1663 UKRIT S. - LA100 SPD TU 2024 | 53  Q&A [email protected] 54