CTL 3 - Non-Contractual Terms PDF

Audio file ========== [Your Recording 67 1.wavTranscript00:00:04 Speaker 1Hi there we are now starting on Session 3 which deals with non contractual claims.00:00:12 Speaker 1You will recall from the earlier sessions that the Civil Code broken obligations include not just obligations born out of con...

Audio file ========== [Your Recording 67 1.wavTranscript00:00:04 Speaker 1Hi there we are now starting on Session 3 which deals with non contractual claims.00:00:12 Speaker 1You will recall from the earlier sessions that the Civil Code broken obligations include not just obligations born out of contracts, but also obligations born out of law or.00:00:23 Speaker 1Cuz.00:00:25 Speaker 1Where a party has defaulted on a contractual obligation, the innocent party has a cause of action in contract for such a default.00:00:34 Speaker 1However, since obligations go beyond contractual obligations, the Civil Code book on obligations also recognize another course of action known as Unlawful Act.00:00:46 Speaker 1These are wrongful or unlawful acts which give rise to an actionable non contractual claim.00:00:55 Speaker 1In the civil law jurisdictions, such a claim is known as a civil wrong or a tort.00:01:01 Speaker 1In the context of the Indonesian Civil Code, the basis of such a claim can be found in Article 1365 of the Indonesian Civil Code.00:01:13 Speaker 1The provision says that every unlawful act that causes damage onto another party obliges the wrongdoer to compensate such damage.00:01:24 Speaker 1So the elements of the civil law taught can be divided into the following.00:01:30 Speaker 1First of all, there must be an unlawful act that is, an act which violates written laws or generally accepted.00:01:38 Speaker 1Rules of law.00:01:39 Speaker 1Or custom. Note that the thought is not limited to persons, as in natural persons a cooperation and in other legal entities can also commit.00:01:50 Speaker 1Wrongful or unlawful acts.00:01:54 Speaker 12nd.00:01:55 Speaker 1Civil law further defines unlawful acts to include both intentional and unintentional acts, that is negligence.00:02:14 Speaker 14th and finally there must be causality between the unlawful act.00:02:19And.00:02:20 Speaker 1The injury.00:02:22 Speaker 1Let me pause here for a moment.00:02:25 Speaker 1Causation is, of course, a familiar concept, the common law.00:02:29 Speaker 1However, in civil law it applies what is referred to as the adequate causation theory, where an act is A cause of harm. If such a result, that is, the harm could have been expected or foreseen to arise from.00:02:46 Speaker 1Such an act.00:02:48 Speaker 1Thus, under this adequate theory or stability of an effect, that is, the loss is relevant in determining if there was a causal relationship between the loss or damage and that.00:03:03 Speaker 1It is sufficient for a claim for damages under Article 1365 that a person knew or could have foreseen that his conduct would cause harm and it is not necessary that he knew or could have foreseen what form the harm would take.00:03:23 Speaker 1Teen, 65, of the Indonesian Civil Code, requires a person committing an unlawful act to pay compensation for his actions, and there are several forms of compensation contained in Article 1365. These include compensation in the form of money.00:03:43 Speaker 1For the shrinking of assets or diminution of value in the assets as a result of the actions that were.00:03:50 Speaker 1Unlawful or wrongful.00:03:53 Speaker 1It also allows the innocent party to seek compensation for repairs to put unanswered in question if it has been harmed in the same condition as before.00:04:05 Speaker 1Finally, it also allows the innocent party to seek a refund of costs for restoration in its original state.00:04:17 Speaker 1And financial losses for the suffering and distress of a person.00:04:22 Speaker 1All his or her good name tarnished due to their own full act.00:04:26 Speaker 1So it is important to note that the return of compensation is not always in the.00:04:32 Speaker 1Form of money.00:04:33 Speaker 1And cash compensation, but could include what common law lawyers would consider specific performance such as repair or replacement of the goods that have been harmed.00:04:50 Speaker 2In the Thai legal system, non contractual claims typically fall under the category of tort law under Section 420 of the Thai Civil and Commercial Code, which provides that a person will willfully or negligently unlawfully injuries the live body health liberty.00:05:06 Speaker 2Property or any other right of a person is said to commit the wrongful act and bound to make compensation.00:05:12 Speaker 2So you see that the torch is worded slightly differently under Thai law than it was under Indonesian law. In Jesus\'s previous slides. However, the fundamental principles are the same.00:05:23 Speaker 2Other sections of the CCC refer further to the exercise and right, even if it was legal to be wrongful, Section 421 is an interesting one. It declares acts which otherwise would have been lawful, but were in this instance done only on the purpose of causing injury to another as wrongful.00:05:41 Speaker 2That is an important threshold from an evidentiary point.00:05:44 Speaker 2View One would have to prove that the defendant\'s right to exercise a contractual right had no other purpose. Could that right have been legitimately exercised only to achieve the harmful purpose or to cause injury?00:05:59 Speaker 2That is the inquiry that we must engage with to determine if the wrongful act under Section 421 has occurred.00:06:07 Speaker 2Let\'s take a case study to illustrate this. Here are the facts of the case. The plaintiff filed a claim against the defendant for wrongful acts. The grounds of the case that the defendant had entered into three investment agreements with the plaintiff.00:06:21 Speaker 2Later, it so happened that the office of the Securities and Exchange Commission the SEC.00:06:27 Speaker 2Investigated the director and the executive of the plaintiff for bribery and false accounting entry.00:06:32 Speaker 2The defendant took the opportunity to declare an event of default on debts that were still owing and file an insolvency claim against the plaintiff for the amounts that would have been payable in a certain few days under the investment agreements, with the intention of a hostile takeover at the time that the SEC investigations were ongoing.00:06:53 Speaker 2The court had to assess whether the defendant in filing this bankruptcy petition had acted in good faith and in by exercising a right which can only have the purpose of causing injury to another person. So intersections 4/21 of the C.00:07:07 Speaker 2See it found that it had critically in this case, the court considered whether or not the bankruptcy petition had been legitimately filed, because if it had been filed as it was in this case, even before the debts under the investment agreement had been fully crystallized, that was a clear indication that the filing had been intended to cause harm rather than.00:07:27 Speaker 2Pursue any alleged that interest.00:07:32 Speaker 2Two final issues I will address.00:07:34 Speaker 21st on the nature of compensatory damages in the context of torts damages in thy law are awarded on a compensatory basis. That is, the actual cost or losses thy law does not restrict the claimant from pursuing compensation for any type of damage suffered in a civil context. That is, including injury to health.00:07:55 Speaker 2Loss of earnings, loss of enjoyment, subject of course to the usual rule that a claimant must be able to prove and quantify the damage where losses are not immediately quantifiable. For example, in the case of personal injury or loss of earnings.00:08:09 Speaker 2The assessed amount of compensation in our experience is typically quite low in Thailand by international standards, the CC only provides very broad statements of the basis upon which damages are assessed.00:08:22 Speaker 2Section 438 provides that the Court shall determine the manner and the extent of the compensation according to the circumstances and the gravity of.00:08:30 Speaker 2The wrongful act.00:08:31 Speaker 2There are similarly limited guidance as to how claims of personal injury and.00:08:35 Speaker 2Death may be quantified.00:08:37 Speaker 2If interested, C sections 444 to 446 of the DIC.00:08:44 Speaker 2The second issue I want to touch on is the issue of limitation periods.00:08:48 Speaker 2The general rule.00:08:50 Speaker 2Under Section 193, thirty of the CCC is that a claim or action may be brought within 10 years unless another period is specified for law.00:09:00 Speaker 2Note that this is different from the more common six year limitation period in common law systems. However, specific limitation periods have been specified by law for taught claims brought under sections 420 to 437 of the C.00:09:15 Speaker 2These claims are subject to section 448 of the CCC, which states that claims are barred after one year from the date when the wrongful act and the identity of the defendant become known to the claimant. In any case, cannot be brought more than 10 years from the date of Commission of the Wrongful Act, in line with the general rule and the section.00:09:35 Speaker 293 that I just mentioned.00:09:38 Speaker 2Knowledge of the wrongful act and identity of the defendant is fact specific and will vary from case to case.00:09:45 Speaker 2Note that thy law does not recognise constructive knowledge in calculating limitation periods. Therefore the fact that companies A\'s related entities may have knowledge about unlawful acts will not, for the purposes of calculating limitation periods, be taken as knowledge of company itself. In a case where company A is the claimant.00:10:06 Speaker 2Arguments may also be made as to whether the wrongful act, however framed, is in fact continuing, in which case court proceedings confirm that the last wrongful act or last day of the continuing Wrongful Act will be the operative date for limitation purposes.00:10:23 Speaker 2An example of a continuing wrongful act. Say we have pollution by emissions being poured into the sea and that has been established as a wrongful act. The pollution itself and the emissions itself, may have started in 2000 and.00:10:37 Speaker 2But when does the limitation period start? Is it from the day that the pollution started?00:10:43 Speaker 2Or is in.00:10:43 Speaker 2Fact.00:10:44 Speaker 2Should be calculated from yesterday when the pollution was continuing, because as you see, depending on how you frame the case, you could argue that there was pollution yesterday and that the limitation period therefore should start.00:10:57 Speaker 2From yesterday.00:10:59 Speaker 2For these reasons, in most cases it\'s difficult to assess likely limitation defenses with certainty, at least until the claimants claim, and the complaint has been very clearly framed.](https://1drv.ms/u/s!AGaPTZsZg5MLib5i) Comparative Law - Lecture 3 - 1\. Non-Contractual Claims in Indonesian Law - Elements of tort Art 1365 - **[Compensation for breach of contract may not be monies; the elements are: I]**. An unlawful act, committed by a legal subject, intentionally or unintentionally which turns out to be against the law. The act must contain elements of error and must have caused a loss. ii. There must be a fault caused by purpose or by negligence. iii. The unlawful act must have caused injury or damages to another party, either material or immaterial. iv. Causality between the unlawful act and the injury must be established. - 2\. Non-Contractual Claims in Thai Law - s420 Civil and Commercial Code unlawful injuring the body / property - s438 Compensation depends on the damage of the wrongful act - s193 CCC Limitation period = 10 years