Juristic Acts in the Thailand Civil and Commercial Code: juristic acts or an action intended and capable of having a legal effect.
Section 149. 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.
Section 151. 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.
Section 152. An act which is not in the form prescribed by law is void.
DECLARATION OF INTENTION
Section 154. A declaration of intention is not void on the ground that the declarant in the recesses of his mind does not intended to be bound by his expressed intention, unless this hidden intention was known to the other party.
Section 155. A declaration of intention made with the connivance of the other party which is fictitious is void; but its invalidity cannot be set up against third persons injured by the fictitious declaration of intention and acting in good faith.
If a declaration of fictitious intention under paragraph one is made to conceal another juristic act, the provisions of law relating to the concealed act shall apply.
Section 156. A declaration of intention is void if made under a mistake as to an essential element of the juristic act.
The mistake as to an essential element of the juristic act under paragraph one are for instance a mistake as to a character of the juristic act, a mistake as to a person to be a partner of the juristic act and a mistake as to a property being an object of the juristic act.
Section 157. A declaration of intention is voidable if made under a mistake as to a quality of the person.
Mistake under paragraph one must be a mistake as to the quality of the person which is considered as essential in the ordinary dealings, and without which such juristic act would have not been made.
Section 158. If the mistake under Section 156 or Section 157 was due to the gross negligence of the person making such declaration, he cannot avail himself of such invalidity.
Section 159. A declaration of intention produced by fraud is voidable.
An act under paragraph one is voidable on account of fraud only when it is such that without which such juristic act would not have been made.
When a party has made a declaration of intention owing to a fraud committed by a third person, the act is voidable only if the other party knew or ought to have known of the fraud.
Section 160. The avoidance of a declaration of intention produced by fraud cannot be set up against a third person acting in good faith.
Section 161. If the fraud is only incidental that is to say it has merely induced a party to accept more onerous terms than would otherwise have done, such party can only claim compensation for damage resulting from such fraud.
Section 162. In bilateral juristic acts, the intentional silence of one of the parties in respect to a fact or quality of which the other party is ignorant, is deemed to be a fraud if it is proved that, without it, the act would not have been made.
Section 163. If both parties acted with fraud, neither of them can allege it to void the act or to claim compensation.
Section 164. A declaration of intention is voidable if made under duress.
Duress, in order to make an act voidable, must be imminent and so severe that makes him fear and without it, the act would not have been made.
Section 165. The threat of the normal exercise of a right is not considered duress. Any act made owning to reverential fear is not considered an act made under duress.
Section 166. Duress vitiates the juristic act, even when it is exercised by a third person.
Section 167. In determining a case of mistake, fraud or duress, the sex, age, position health, temperament of the person made the intention and all other circumstances and environment which may relate to that act shall be taken into consideration.
Section 168. A declaration of intention made to a person in his presence takes effect from the time when it becomes known to the receiver of the intention. This also apply to the declaration of intention made by one person to the other through telephone, other communication devices, or other means through which similar communication can be made.
Section 169. A declaration of intention made to a person not in his presence takes effect from the time when it reached the receiver of the intention. If does not become effective if a revocation reaches him previously or simultaneously.
Even though the person who made a declaration of intention dies, becomes incompetent or quasi-incompetent by an order of the Court after it has been sent, the validity of declaration is not impaired thereby.
Section 170. If the declaration of intention is made to a minor or a person adjudged incompetent or quasi-incompetent, it cannot be set up against him unless his legal representative, guardian or curator, as the case may be, has knowledge of it or has given prior consent to it.
The provisions of paragraph one do not apply to the declaration of intention concerning any matter that the minor or the incompetent is required by law to make by himself.
VOID AND VOIDABLE ACTS
Section 172. A void act cannot be ratified, and its nullity may be alledged at any time by any interested person.
The return of a property arising from a void act shall be governed by the provisions on Undue Enrichment of the Code.
Section 173. If any part of an act is void the whole act is void, unless it may be assumed under the circumstances of the case that the parties intended the valid part of the act to be separable from the invalid part.
Section 174. If a void act complies with the requirements of another act which is not void, it is valid as the other act, if it may be assumed that such validity would have been intended by the parties, had they known of the invalidity of the intended act.
Section 175. A voidable act may be avoided by:
- The legal representative or the minor after becoming sui juris, but the avoidance can be made by the minor minor before his becoming sui juris if a consent thereti has been given by his legal representative, or
- The person adjudged incompetent or quasi-incompetent after he has recovered his capacity, or by the guardian or curator, as the case may be, but the avoidance can be made by the quasi-incompetent before recovery of his capacity if a consent thereto has been given by his curator, or
- The person who has made the declaration of intention owning to mistake, fraud or duress, or
- The person of unsound mind who did the voidable juristic act under Section 30 after he has recovered his capacity.
If the person who did the voidable juristic act dies before making the avoidance, it may be avoided by his heir.
Section 176. When a voidable act is avoided, it is deemed to have been void from the beginning; and the parties shall be restored to the condition in which they were previously, and if it is not possible to so restore them, they be indemnified with an equivalent.
If any person knew or ought to have known that an act is voidable, he, after making the avoidance, is deemed to have known that the act is void since the voidable act became known or ought to become known to him.
The claim resulting from restoring them to the previous condition under paragraph one cannot be exercised later than one year from the date of avoidance of the voidable act.
Section 177. If any person entitled to avoid a voidable act under Section 175 ratifies a voidable act, it is deemed to have been valid from the beginning; but the right of third persons cannot be affected thereby.
Section 178. The avoidance of or ratification to a voidable act could be made by a declaration of intention made to the other party who is a determinate person.
Section 179. A ratification is valid only if it is made after the state of facts forming the ground of voidability has ceased to exist.
When a person adjudged incompetent or quasi-incompetent or a person of unsound mind who did a voidable juristic act under Section 30 acquires knowledge of such act after he has recovered his capacity, he can ratify it only after acquiring knowledge.
The heir of the person having done the voidable juristic act can ratify such act after the death of such person unless the right to avoid the voidable juristic act of the deceased has extinguished.
The provisions of paragraph one and paragraph two shall not apply to a ratification to the voidable juristic act made by the legal representative, guardian or curator.
Section 180. If after the time when ratification according to Section 179 could be made, any of the following facts takes place in regard to a voidable act by an act of the person entitled to avoid the voidable act under Section 175, it is deemed to be ratified, unless a reservation is expresses, such as:
- The obligation has been fully or partially performed.
- The performance of the obligation has been demanded.
- A novation of the obligation has been effected.
- Security has given for the obligation.
- The whole or part of the right or liability has been transferred.
- Any other acts done which indicate the ratification.
CONDITIONS AND TIME
Section 182. A clause which subordinates the effect or the end of the effect of a juristic act to a future and uncertain event, is considered a condition.
Section 183. A juristic act subject to a condition precedent takes effect when the condition is fulfilled.
A juristic act subject to a condition subsequent ceases to have effect when the condition in fulfilled.
If the parties to the act have declared an intention that the effect of the fulfillment of a condition shall relate back to a time before its fulfilled, such intention is to govern.
Section 184. Any party to a juristic act subject to a condition must not, while the condition is pending, do any thing by which the benefit which the other party might derive from the fulfillment of the condition impaired.
Section 185. The rights and duties which the parties have, while the condition is pending, may be disposed of, inherited, protected or secured according to law.
Section 186. If the fulfillment of a condition is prevented not in good faith by the party to whose disadvantage it would operate, the condition is deemed to have been fulfilled.
If the fulfillment of a condition is brought about in bad faith by the party to whose advantage it would operate, the condition is deemed not to have been fulfilled.
Section 187. When the condition is already fulfilled at the time of the juristic act, the latter is unconditionally valid, if the condition is precedent, and is void, if the condition is subsequent.
When it is already certain at the time of the juristic act that the condition cannot be fulfilled, the act is void, if the condition is precedent, and unconditional valid, if the condition is subsequent.
The parties still have rights and duties according to Section 184 and Section 185 so long as they do not know whether the condition is fulfilled under paragraph one or cannot be fulfilled under paragraph two.
Section 188. A juristic act is void if it is subject to an unlawful condition, or a condition contrary to public order or good morals.
Section 189. A juristic act upon a condition precedent which is impossible is void.
A juristic act upon a condition subsequent which is impossible is unconditionally valid.
Section 190. A juristic act upon a condition precedent which depends upon the will of the debtor is void
Section 191. If a time of commencement is annexed to a juristic act, its performance cannot demanded before such time arrives.
If a time of ending is annexed to a juristic act, its effect ceases when such time arrives.
Section 192. It is presumed that a time of commencement or ending is fixed for the benefit of the debtor, unless it appears from the tenor of the instrument or from the circumstances of the case that it was intended for the benefit of the creditor, or of both parties.
The benefit of such a time may be waived, but this will not affect any benefit which would accrue there from to the other party.
Section 193. In the following cases the debtor cannot take advantage of a time of commencement or ending:
- If he has been ordered by the Court to place his assets under final custody and control according to the law on bankruptcy.
- If he has not given security when he was bound to give it.
- If he has destroyed or diminished any security given.
- If the debtor has produced as security a property of other person without the latter's consent.
PERIODS OF TIME
Section 193/1. The manner of computing all periods of time is governed by the provisions of this Title, unless it is otherwise provided by law, by juridical order, by rules and regulations or by a juristic act.
Section 193/2. A period of time is calculated by day. But if it is determined shorter than a day, it shall calculated as such.
Section 193/3. If the period of time is determined shorter than a day, it begins to run at once.
When a period of time is determined days, weeks, months or years, the first day of the period is not included in the calculation, unless the period begins to run on that day from the time which is customary to commence business.
Section 193/4. As far as the legal proceedings, official business or commercial and industrial business are concerned, a day means working hours determined by law, by a judicial order or by rules and regulations, or usual working hours of that business, as the case may be.
Section 193/5. The period determined in weeks, months or year are calculated according to the calendar.
If the period is not computed from the beginning of a week, month or year , it ends on the day preceding that day of the last week, month or year which corresponds to that on which it began. If a period measured in months or years there is no corresponding day in the last month, the last day of such month shall be the day of ending.
Section 193/6. If a period of time is determined in months and days, or in months and a part of a month, a full month shall be first measured and then a number of days or a part of a month measured in days.
If a period of time is determined in a part of a year, the part of a year shall be first measured in months and a part of a month, if any, shall be measured in days.
In calculating a part of a month under paragraph one and paragraph two, thirty days is regarded one month.
Section 193/7. If a period of time is extended and no beginning day of the extension is determined, the first day of the extension is the day following the last day of the original period.
Section 193/9. A claim is barred by prescription if it has not been enforced within the period of time fixed by law.
Section 193/10. After the lapse of the period of prescription for claims, the debtor is entitled to refuse performance.
Section 193/11. The periods for prescription fixed by law cannot be extended or reduced.
Section 193/12. Prescription begins and run from the moment when the claim can be enforced. If the claim is to a forbearance, prescription begins to run from the moment when the right is fist infringed.
Section 193/13. If the creditor may not demand performance until he has given notice to the debtor, prescription begins to run from the moment when notice can be first given. If the debtor is not bound to perform until a given period has elapsed since the notice, prescription begins to run from the expiration of this period.
Section 193/14. Prescription is interrupted if:
- The debtor has acknowledged the claim towards the creditor by written acknowledgement, by part payment, payment of interest, giving security, or by any unequivocal act which implies the acknowledgment of the claim.
- The creditor enters an action for the establishment of the claim or for requiring performance.
- The creditor applies for receiving a debt to arbitration.
- The creditor submits the dispute to arbitration.
- The creditor does any act which brings an effect equivalent to entering an action.
Section 193/15. When prescription is interrupted, the period of time which has elapsed before interruption does not count for prescription.
A fresh period of prescription begins to run from the time when the interruption ceases.
Section 193/16. The creditor of an obligation for the payment of money periodically is entitled to require from the debtor, at any time before the completion of the period of prescription, a written acknowledgment of the obligation in order to obtain evidence of the interruption of prescription.
Section 193/17. In the case where prescription is interrupted due to the case under Section 193/ 14 (2), if the Court has passed a final judgment to dismiss the action, or the action has terminated and has been disposed of on the ground of being withdrawn or abandoned, the prescription shall be deemed to have never been interrupted.
In the case where the Court refuses to accept, return or dismisses the action on the ground of want of jurisdiction, or the action is dismissed with the right to re-enter the action in Court and the period of prescription expired pending proceedings, or would have expired within sixty days from the date of final judgment or order, the creditor shall be entitled to enter an action in Court for establishing his claim or for requiring performance of the obligation within sixty days from the date of final judgment or order.
Section 193/18. The provisions of Section 193/17 shall apply, mutatis mutandis, to interruption of prescription due to the case under Section 193/14 (3), (4) and (5).
Section 193/19. If at any time when the prescription would end, the creditor is prevented by force majeure from effecting a interruption, the prescription is not completed until thirty days after the time when such force majeure has ceased to exist.
Section 193/20. If prescription of claim of a minor, or a person of unsound mind whether adjudged incompetent or not, would have expired while the said person does not acquire full capacity, or within one year from the day when the said person is without a legal representative or a guardian, if is not completed until the expiration of one year after he has acquired full capacity or has a legal representative or guardian, as the case may be. If the period of prescription of the claim is shorter than one year, the shorter period of time shall apply in place of the said period of one year.
Section 193/21. If prescription of claim of a minor, an incompetent or a quasi-incompetent against his legal representative, guardian or curator would have expired while the said person does not acquire full capacity, or within one year from the day when the said person is without legal representative, guardian or curator, if is not completed until the expiration of one year after he has acquired full capacity or has a legal representative, guardian or curator, as the case may be. If the period of prescription of the claim is shorter than one year, the shorter period of time shall apply in place of the said period of one year.
Section 193/22. If prescription of claims between spouses would have expired before within one year after dissolution of marriage, it is not completed until the expiration of one year after dissolution of marriage.
Section 193/23. If prescription of a claim existing in favour of or against a deceased would have expired within one year after the date of the death, the period of prescription is not completed until the expiration of one year after death.
Section 193/24. The benefit of prescription can be waived only after it has been completed, but such waiver does not prejudice the right of third persons, or the surety.
Section 193/25. When prescription is completed, its effect relates back to the day when it began to run.
Section 193/26. With the principal claim the claims for accessory acts of performance dependent upon it are also barred by prescription, even if the particular prescription applying to the accessory claim is not yet complete.
Section 193/27. The barring of the principal claim by prescription does not prevent a mortgagee, a pledge, holder of a right of retention or a creditor who has preferential right on property of the debtor detained by him, to enforce his right out of the mortgaged, pledged or detained property. But in exercising the right the creditor cannot obtain more than five years for arrears of interest.
Section 193/28. If any act of performance is done in satisfaction of a claim barred by prescription, the value of such performance may not be demanded back, even if the performance has been effected in ignorance of the prescription.
The provisions of paragraph one shall apply to a contractual acknowledgment of liability in writing and to the giving of security by the debtor, but it cannot be referred against the former surety.
PERIOD OF PRESCRIPTION
Section 193/30. The period of prescription for which no other period is provided by law is ten years.
Section 193/31. The period of prescription for claims of the Government for taxes and rates is ten years. As to other claims of the Government relating to obligations, the provisions of this title shall apply.
Section 193/32. The period of prescription for a claim established by a final judgment, or by a contract of compromise is ten years, even if the claim itself is subject to any period of prescription.
Section 193/33. The period of prescription is five years for the following claims:
- Arrears of interest.
- Sums payable for the purpose of paying off the principal by installments.
- Arrears of rent or hire of property except the rent of movables under Section 193/34 (6).
- Arrears of salaries, annuities, pensions, allowances for maintenance and all other periodical payments.
- Claims under Section 193/34 (1) (2) and (5), so far as they are not subject to the period of two years.
Section 193/34. The period of prescription is two years for the following claims:
- Claims of merchants, industrialists manufactures, artisans and those who practice industrial arts, for delivery of goods, performance of work and care of others' affairs, including disbursements, unless the service was rendered for the business of the debtor.
- Claims of those who engage to agriculture or forestry, for delivery of agricultural or forest products, so far as the delivery is for the domestic use of the debtor.
- Claims of carriers for passengers or goods, or if messengers, for fare, freight, hire and fees, including disbursements.
- Claims of innkeepers or hostel keepers and those who make a business of providing food and drink, or those who make a business of rendering entertainment service according to the law on places of entertainment services, for supplying lodging and food or other services rendered to the guests, including disbursements.
- Claims of those who sell lottery tickets, racket or similar tickets for the sale of the tickets, unless the tickets are delivered for further sale.
- Claims of those who make a business of letting movables, for the rent.
- Claims of those who, without belonging to the classes specified in (1), make business of the care of others' affairs or the rendering of service, for the remuneration due to them from the business, including disbursements.
- Claims of those who are in private service, for the wages, or other remuneration for services, including disbursements; also claims of the employers for advances made upon such claims.
- Claims of employees, whether they be permanent, temporary or day labourers, and apprentices, for the wages or other remuneration, including disbursements, or claims of the employers for advances made upon such claims.
- Claims o masters of apprentices, for the premium and other expenses agreed upon in the contract of apprenticeship and disbursements.
- Claims of owners of educational institutions or nursing home, for instruction fees and other fees, or medical fees an other expenses, including disbursements.
- Claims of those who receive persons to be maintained or educated, for services including disbursements.
- Claims of those who receive animals to be maintained or trained, for services, including disbursements.
- Claims of teachers, for their fees.
- Claims of practitioners in medicine, dentist, nurses, midwives, veterinary surgeons or those who practice in other related fields of medicine, for their services, including disbursements.
- Claims of lawyers or those engaged in legal profession including expert witnesses for their services, including disbursements, or claims of the parties for advances made upon such claims.
- Claims of engineers, architects, auditors or those engaged in other independent professions, for services including disbursements, or claims of the employers for advances made upon such claims.
Section 193/35. Subject to Section 193/27, prescription of claims arising from the acknowledgment of liabilities by the debtor in writing or in giving of security under Section 193/28 paragraph two is two year from the date of acknowledgment of liabilities or of giving of security.