A comparison of parties’ obligations in the Thai Civil and Commercial Code (TCCC)
and the Convention on International Sale of Goods (CISG)
by: Naiyana Guerin: [email protected]
Summary: The purpose of this paper is to compare the parties’ obligations between Thai
Civil and Commercial Code (TCCC) and the Convention on International Sale of Goods (CISG).
Again we will find the similarity in seller and buyer’s obligations between the two legal regimes.
Part I – Comparisons the Obligations of seller in Thai and CISG
Part II – Comparisons the Obligations of buyer in Thai and CISG
Introduction
While I am writing this article I have heard about Japan’s plan to ratify CISG on August
1, 20091, that makes 71 States have adopted the CISG, as of July 4, 20082. From my last article, I
compared trading statistics tables between China, Japan and Singapore, contracting countries and
Thailand, and can’t imagine how CISG govern international trade is to allow participants to deal
with each other with a certain level of predictability and, thus, to reduce misunderstanding and
avoid conflicts and confrontations.
My journey on Thai and CISG comparisons has come to the second step, obligations of
parties, when the seller has the obligation to deliver the goods and transfer the property in goods.
And these are exactly the rights of the buyer: demanding delivery and transferring property.
Whereas the buyer is obliged to take delivery and pay the price, it is the seller’s right to demand
that delivery be taken by the buyer and that the price be paid.3
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PART I OBLIGATIONS OF SELLER
Under Article 30, the seller must deliver the (right) goods (at the right place and at the right
time) as required by the contract and this Convention. Because the Convention respects the parties'
freedom to define their own obligations, etc.4
This notion is similar to the Thai Civil and Commercial Code (TCCC) Section 461 “The
seller is bound to deliver to the buyer the property sold.” The partial delivery is also an evidence for
the future in case that parties do not have a contract as states under Section 456 para2 “…An
agreement to sell or to buy any of the aforesaid property, or a promise of sale of such property is
not enforceable by action unless there is some written evidence signed by the party liable or unless
earnest is given, or there is part performance…”
However a delivery might occur before, the same time or after the transferring of ownership,
because a delivery is only the duty of seller.5 The right of the buyer will not be transferred until the
condition is fulfilled or the time has arrived.6 Or in Section 460 of TCCC states “In case of sale of
unascertained property, the ownership is not transferred until the property has been numbered,
counted, weighed, measured or selected, or its identity has been otherwise rendered certain.
In case of sale of specific property, if the seller is bound to count, weigh measure or do some
other act or thing with reference to the property for the purpose of ascertaining the price, the
ownership is not transferred to the buyer until such act or thing be done.”
Obligation to deliver the goods
Generally parties agree on the place of delivery by referring to clauses of the Incoterms. 7
Under 31(a), International sales regularly involve carriage of the goods. This does not necessarily
mean that the contract also involves carriage.8 If the seller has handed over the goods to the first
carrier, he has fulfilled his obligation to deliver.9 In any case, handing the goods over to a carrier
means handing them over to an independent organization. If the seller himself operates trucks, he is
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not the carrier. This also has significance for possible exemptions from liability on the part of the
seller.10
Thai law has a similar consideration, if the seller delivers the goods to the carrier; he has
satisfied his obligation to deliver.11And the carrier is not the seller as stated in Section 608 of
TCCC.12
Under (b), The seller must place where the goods have to be placed at the buyer's disposal
could be, for instance, a factory, a mill, a plantation, a warehouse etc, and (c) contains an escape
provision according to which the seller, in case of doubt, has to place at buyer's disposal at his own
place of business.13 As in Thai law, that in case of doubt the place of performance, if a specific thing
is to be delivered, the delivery is to be made at the place where the thing was at the time when the
obligation arose; other kinds of the performance must be made at the place of the creator’s present
domicile.14 Article 32 like the other articles with respect to the seller's delivery obligations only
applies in the absence of contrary agreement between the parties. In practice, the agreement will
spell out the seller's delivery obligations quite precisely by adopting an established shipment term
(e.g., F.O.B., C.I.F., C. & F.) and less frequently by incorporating the INCOTERMS of the
International Chamber of Commerce or the definitions in UCC 2-319 et seq. As a result the need to
rely on Art. 32, is not often likely to arise in practice.15Thai’s Supreme Court also holds the similar
notion that the contracts contains C.I.F, the seller is responsible for all costs up to the named port
of destination.16
Time to Delivery
Article 33 the first paragraph is a self-evident statement that the relevant time for delivery is
primarily the date fixed by or determinable from the contract.17 The paragraph (b) is unambiguous:
If a certain period of time is fixed, the seller is basically at liberty to choose at which date within this
time span he wants to deliver, unless the buyer is to choose a date. Finally, the auxiliary rule of
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paragraph (c) corresponds to the respective rules of numerous domestic laws, such as UCC 2-309(1).
Even where it is established, as in Thai law, that in case of doubt the buyer may demand immediate
performance TCCC Section 490.18 The hardship of such a provision is softened somewhat by the
requirement of good faith according to which the special circumstances of the particular case have
to be taken into account.19Similar notion to Thai’s holding’s “After the inspection the goods by the
buyer, he must pay for the price at the same time as well.”20
Obligations to Documents
The duty in Article 34 covers all documents relating to the goods, including those which give
the buyer the control over them, such as bills of lading, and other documents. When trade terms are
used they often prescribe which documents are to be handed over. Thus the documents required by
C.I.F. are: a clean negotiable bill of lading, an invoice of the goods shipped, an insurance policy (see
INCOTERMS C.I.F., A.7), and certificate of origin and the consular invoice (see INCOTERMS
C.I.F., A.12). Furthermore, INCOTERMS C.I.F., A.12 provides that the seller must at the buyer's
request, risk and expense render assistance to him in obtaining any other document issued in the
country of shipment and/or origin and which the buyer may require for the importation of the
goods into the country of destination.21
Conformity of the Goods
The buyer has purchased the goods for some purpose. He wants to consume, use or resell
them. His expectations with respect to the goods can be frustrated if the goods do not possess the
features necessary for the use intended by the buyer, or if a third party claims a right to possession
or prohibits their use by virtue of a patent or other industrial or intellectual property right. In all
these cases, the question arises whether and to what extent the seller has to take responsibility for
the intended and uninhibited use.22Under CISG under 35, the seller must deliver quantity, quality
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and description required by the contract and which are contained or packaged in the manner
required by the contract.
Fit for ordinary purposes
Under 35(2)(a), Goods are often ordered by general description without any indication to the
seller as to the purpose for which those goods will be used. In such a situation the seller must
furnish goods which are fit for all the purposes for which goods of the same description are
ordinarily used. The standard of quality which is implied from the contract must be ascertained in
the light of the normal expectations of persons buying goods of this contract description. The scope
of the seller's obligation under this subparagraph is not determined by whether the seller could
expect the buyer himself to use the goods in one of the ways in which such goods are ordinarily
used. In particular, the obligation to furnish goods which are fit for all the purposes for which goods
of the contract description are ordinarily used also covers a buyer who has purchased the goods for
resale rather than use. For goods to be fit for ordinary purposes, they must be honestly resalable in
the ordinary course of business. If the goods available to the seller are fit for only some of the
purposes for which such goods are ordinarily used, he must ask the buyer the particular purposes for
which these goods are intended so that he can refuse the order if necessary.23 If the parties ... have
different understandings of the connotations of the agreed description, the problem needs to be
resolved pursuant to the Convention's rules for interpreting sales contracts. These rules are set forth
in Article 8 ... supplemented by the practices of the parties and trade usages (Article 9). ... Under
these rules the relevant facts are: Which party drafted the description (This may be either the seller
or buyer). What, under Article 8(2), would be 'the understanding that a reasonable person of the
same kind as the other party would have had in the same circumstances'? To ascertain this
understanding Article 8(3) directs attention to all relevant circumstances including 'the negotiations,
any practices which the parties have established between themselves, usages and any subsequent
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conduct of the parties.' . .. [In sum] the Convention did not lay down a general rule on whether the
seller must supply goods that meet with special restrictions or prohibitions in the buyer's country.
This question must be decided in each case on the basis of the contract, the practices of the parties
and trade usages, Articles 8 and 9.24
Fit for particular purpose, subparagraph (2)(b)
The purpose must be known to the seller by the time of the conclusion of the contract so
that the seller can refuse to enter the contract if he is unable to furnish goods adequate for that
purpose.25 It would also be unreasonable for the buyer to rely on the seller's skill and judgment if the
seller did not purport to have any special knowledge in respect of the goods in question.26
Sample or model, subparagraph (2)(c)
If the contract is negotiated on the basis of a sample or model, the goods delivered must
possess the qualities which are possessed by the goods the seller has held out as the sample or
model. This exactly the same Thai’s rule under TCCC Section 503 states “In a sale by sample, the
seller is bound to deliver property or properties corresponding to the sample.
In a sale by description, the seller is bound to deliver property corresponding to the
description.”27
Of course, if the seller indicates that the sample or model is different from the goods to be
delivered in certain respects, he will not be held to those qualities of the sample or model but will be
held only to those qualities which he has indicated are possessed by the goods to be delivered.28
Seller's Knowledge of the Non-Conformity
Seller is relieved of any obligations against defects in quality under Article 35(3) whenever
buyer is aware or could not have been unaware' of a defect at the time the contract is 'concluded'.
However, knowledge gained at the time of delivery or inspection of the goods will not affect seller's
obligation. They could not have been unaware language is the subject of much dispute among
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common law and civil law authorities. Most common law authorities consider it to be 'subjective'
and relate to buyer's actual state of mind, rather than to impose 'constructive knowledge' on buyer
for items he should have learned.29
According to article 36(1), the conforming qualities of the goods must exist at the time when
the risk passes to the buyer. If they are absent at that time -- which is regulated in articles 66 to 70
and which is the topic of Professor Honnold's report -- the seller is liable regardless of when the lack
of conformity becomes apparent. Conversely, the seller is not liable if the deficiencies come into
existence only after that tinie. This provision, which is analogous to the rules in a range of
Continental legal systems,30 couples obligation and liability on the part of the seller with the passing
to the buyer of the risk to pay even though he does not obtain the goods, or goods in the promised
condition. Thus, if a machine sold by a German manufacturer to an American buyer FOB Hamburg
is damaged by water during shipment, the seller is free from responsibility for the damage because
he fully performed his obligations and all risks passed to the buyer when the machine passed the
ship's rail in Hamburg harbor; the buyer, on the other hand, has lost his remedies and must pay the
full price (article 66). To those scholars interested in the dogmatic basic structures of a law of sales,
this (adequate) regulation shows that the buyer's remedies and the risk-of-loss rules are (and should
be) in the final analysis based on the same principles of risk distribution.31
Paragraph (2) provides that even after the passage of the risk the seller remains liable for any
damage which occurs as a breach of one of his obligations. Although this is most evidently true
when the damage occurs because of some positive act on the part of the seller, it is also true when
the obligation which has been breached is an express guarantee [a guarantee] given by the seller that
the goods will retain some particular characteristics for a specified period [for a period of time] after the
risk of loss has passed. Since article 36(1) states that conformity of the goods is to be judged at the
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time risk passes, it was considered necessary to state specifically that the seller was liable for any
breach of an express guarantee [a guarantee] of quality.32
Article 37, Right to Cure Up to the Date for Delivery, should be read with its companion
article, Article 34, conferring a right to cure in the case of a tender of defective documents. In both
cases, the right to cure only arises:
(i)
Where the tender on delivery is made before the date for delivery,
(ii)
The cure is effected before that date, and
(iii)
Where the exercise of the right to cure does not cause the buyer unreasonable
inconvenience or expense.33
The effect of the right to cure is to extend the serious deficiencies or defects that (in the
absence of cure) would constitute a "fundamental breach. Consequently, unless it is clear that the
seller will not cure, the buyer may not effectively avoid the contract until the date for delivery has
passed.34
The language of Article 37 and its legislative history do not clearly answer the question
whether the cure must be perfect. However, the sweeping language of the Article allowing the seller
to remedy "any" deficiency or lack of conformity unless this causes "unreasonable" inconvenience or
expense, and the last sentence of the Article preserving the buyer’s right to claim damages, indicate
that perfection with respect to the second tender may not be required.35
CISG Article 38 describes the point of time when the buyer is obligated to examine the
goods. The buyer's right to examine the goods prior to paying the price is considered in Article
58(3).36 It is similar notion in Thai law that if not time is fixed for the examination of the property,
the seller can fix a reasonable time and notify the buyer to answer within that time whether he
accepts the property or not.”37However if the buyer fails to examine the goods before delivery and
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does not accept within the time fixed, by the contract, usage or notification from the seller, the latter
is no longer bound to the contract.38
This article is prefatory to article 39, which provides that if the buyer fails to notify the seller
of lack of conformity of the goods within a reasonable time after he has discovered it or ought to
have discovered it, he loses the right to rely on the lack of conformity [unless the buyer "has a reasonable
excuse for his failure to give the required notice" (CISG article 44)]. The time when the buyer is obligated to
examine the goods under article 38 constitutes the time when the buyer "ought to have discovered"
the lack of conformity under article 39 unless the non-conformity is one which could not have been
discovered by such examination.39 This applies to cases where, after the contract has been
concluded, a deterioration of the goods occurs, which fact has become known to the seller or could
not escape his notice. If, however, the non-conformity is already present at the time the contract is
made, domestic rules governing fraud will generally be applicable.40
Article 40, Seller’ knowledge of non-conformity, the buyer retains his rights even if he did
not examine the goods and did not give notice. It follows that under the Convention the seller is
obliged to disclose any defects of the goods to the buyer. And, if the seller could not have been
unaware of the defects, he cannot use the excuse that he did not know of the defects. Thus he is also
obliged to examine his goods himself, to make sure that his goods conform with the contract.41 This
Article does not speak of the time of the seller's knowledge; the goods may be all right at the time of
the conclusion of the contract but have deteriorated later on. In such a case, the seller may not ship
them. It seems that the knowledge or better the absence of knowledge of any defects in the goods is
required when the seller performs the contract, that is, when he ships the goods.42
Third Party Claims to the Goods
The delivery of goods that are subject to any right or claim by a third party is a breach of the
seller's obligation, unless the buyer agreed to take such goods (Article 41) which is commonly known
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under section 476.43 In contrast to the laws governing lack of conformity, the buyer's mere
knowledge of the third-party claim does not relieve the seller of his obligation. Consent is needed, be
it express or implied.44
There is no time-limit for notifying the seller of any defects in title, as there is for lack of
physical conformity of the goods prescribed in Article 39(2), so that the seller must take into
account that claims based on defective legal title may be asserted for the duration of the applicable
statute of limitations.45 In addition, when the buyer has a "reasonable excuse" for not notifying the
seller, the exception in Article 44 applies here as it would for notice of non-conformity, though in
this case, it only assures compensation for damages.46 Finally, if the seller had knowledge of the right
or claim of the third party and the nature of it (Article 43(2)), he cannot defend himself on the basis
of the buyer's failure to notify.47
Third-Party Infringement Claims, Article 42
The seller is not liable merely on the ground that there may exist a patent or other right
based on industrial property anywhere in the world; rather, he can only be held liable if such a right
exists or is claimed under the law of the State where the goods are to be used, whether by resale or
otherwise (article 42(1)(a)). And if this State is not apparent from the contract, the seller is
responsible only for the freedom from such claims under the law of the State where the buyer has
his place of business (article 42(1)(b)). This emphasizes the fact that the seller's obligations are
determined by the place where the goods are to be used, just as according to article 35(2) the
intended use of the goods determines conformity unless the parties have agreed on something else.
Admittedly, article 42 restricts the seller's responsibility even further: he is liable for the freedom
from rights or claims based on industrial or other intellectual property in a given country only if it
was contemplated by the parties at the time of conclusion of the contract that the goods would be
resold or otherwise used in that country. This rule also runs parallel to article 35 according to which
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the seller has to warrant any particular qualities only if they have been agreed upon, or if the
particular purpose has been made known to him by the buyer prior to the conclusion of the
contract. Apart from that, he is liable only for the "usual case," that is, use in the State of the buyer.48
The seller is not subject to the obligation if the buyer knew or ought to have known of the right or
the claim in question (Article 42(2)(a)), or if the seller followed technical drawings, designs,
formulae, or other specifications supplied by the buyer himself (Article 42(2)(b)).49 Finally, the buyer
loses his right to assert a claim based on such infringements if he does not notify the seller within a
reasonable time after he learns or should have learned of the third-party rights or claims.50
The major purpose of the Article is to recognize the importance of effective enforcement of
laws and explicitly incorporate enforcement obligations, and to allow the intellectual property
owners enjoy protections and benefits across national boundaries and which simplifies and facilitates
the process of obtaining intellectual property rights within national legal systems.
No doubt that this Article would greatly benefit countries that enforce and respect the
international intellectual property because of those individual creatures of the domestic law has
created those rights. Under Thai’s Intellectual Property Copyright law has been highly developed
both process and details in order to protect intellectual property owners. The statue of limitation of
this matter is three year after the plaintiff knows or should have known the violation.51
Article 43 is the last article in Section II of Chapter II of Part III is one which cannot be
found in any national law.52 It serves as an exception to the main rules in articles 39(1) and 43(1). A
buyer who has a "reasonable excuse" for his failure to notify does not lose all of the right to rely:
such buyer, while still losing the right to require performance and the right to avoid, retains the right
to a proportionate reduction in price (at least in the case of an article 35 breach) as well as a limited
right to claim damages (i.e., except for loss of profit under article 74, which remains lost by virtue of
the failure to notify). The two-year cut-off rule in article 39(2) remains unaffected by article 44.53
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PART III OBLIGATIONS OF BUYER
In Article 53, which describes the obligations of the buyer, reference is made to two sets of
obligations. First, the buyer must pay the price. This may be described as his main obligation.
Secondly, the buyer must take delivery of the goods.54 It is also same as Thai, the buyer is bound to
take delivery of the property sold and to pay the price in accordance with the terms of the contract
of sale.55
Payment of the price
Article 54, the buyer must take the steps and comply with the formalities which may be
required by the contract and by any relevant laws and regulations [by any laws and regulations] to enable
payment to be made. These steps may include applying for a letter of credit or a bank guarantee of
payment, registering the contract with a government office or with a bank, procuring the necessary
foreign exchange or applying for official authorization to remit the currency abroad. Unless the
contract specifically placed one of these obligations on the seller, it is the buyer who must take the
steps.56 The buyer's obligation under article 54 is limited to taking steps and complying with
formalities. Article 54 does not require the buyer to undertake that his efforts will result in the
issuance of a letter of credit, the authorization to procure the necessary foreign exchange or even the
price will finally be paid. Of course, under article 53 the buyer is obligated to see that the price is
paid, an obligation the consequences of which he may be relieved in part by the exemption
provision in article 79.57 The major significance of article 54 lies in the fact that taking such steps and
complying with such formalities as may be required to enable payment to be made is considered to
be a current obligation, the breach of which gives rise to remedies under article 61 to 64, and is not
considered to be "conduct in preparing to perform or actually in performing [or in performing] the
contract", which may give rise to questions of anticipatory breach under articles 71 to 73.58
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Article 55, Open price, as mentioned in my previous article, T.C.C.C. Section 48759, duties of
the buyer, states “The price of the property sold may be fixed by the course of dealing between the
parties.
When the price is not determined as aforesaid, the buyer must pay a reasonable price.”
The price under paragraph 2, in order to determine how much buyer has to pay for unfixed
price, the reasonable price is not always be calculated, but instead we must consider upon the
purposes of the parties and particular trade usage together.60 The law would not allow the contractor
to take advantage of ambiguity when the inquiry could readily remove the doubt.61
Article 56, it is clearly stated that the goods should be measured at net weight.
In the matter of the currency issue, in Thai law if a money debt is expressed in a foreign
currency, payment may be in Thai currency. The commutation is made according to the rate of
exchange current in the place of payment at the time of payment.62If the creditor specifies the kind
of money which is no longer current at the time of payment, the payment shall be made as if the
kind of money were not specified.63
Place of payment
In the absence of agreement, payment must be made at the seller's place of business (Article
57(1)(a)).64 Where there is an agreement for immediate payment - "cash against documents" payment is to be made at the place where the goods or the documents are transferred (Article
57(1)(b)).65 In a sale involving carriage, if immediate payment has not been agreed upon, the seller's
place of business remains the place of payment.66
As a rule, the risk and costs of a delayed or lost payment are carried by the buyer. Article
57(2) provides one exception to this rule: the seller must bear the increased cost that is caused by a
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subsequent change of his place of business. Furthermore, the grounds for exemption listed in Article
79(1) and (2) also apply to damage claims based on lost or delayed payment.67
Time of Payment and Inspection of the Goods
Under paragraph (1), this default rule provides for a cash sale absent any agreement for
credit. Payment is due at the time the goods, or documents representing the goods, are put into the
buyer's control.68
The payment-in-exchange-for-goods principle also operates to the advantage of the buyer.
The buyer is not obligated to pay until the seller has delivered goods or documents in conformity
with the contract, either by placing them at the buyer's disposal (Article 58(1), cf. Article 31
concerning where goods must be placed at the buyer's disposal) or by dispatching them (Article
58(2), cf. Article 31(a)).69 For inspection to be excluded, the parties must agree on a means of
performance which does not permit inspection. The seller's right to retain the goods or documents
until payment has been made is not inconsistent with the buyer's right to inspect.70
The seller must accept partial payment or payment made before the due date only if he is
required to do so by contract. If there is no such agreement, he may return the payment without
breaching the contract.71 There is no express provision for the seller to withhold delivery where the
buyer has failed to fulfill obligations other than payment. Acceptance of a bill of exchange or
provision of a letter of credit can, however, be considered part of the contractual obligation to pay
under Article 54 as qualified by the contract. It is consequently covered by the rule in Article 58. 72 In
addition, it follows from Article 71 that even the buyer's failure to perform duties which do not fall
directly under Article 54 must give the seller the right to withhold delivery, as long as these duties are
substantial. If a party may suspend performance under Article 71 because of the danger of the nonperformance of a substantial duty, then actual non-performance must also give the seller the right to
withhold delivery. There is then no need to resort to domestic law to decide the question.73
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Article 59, the buyer must pay the price on the date fixed or determinable from the contract
and this Convention without the need for any request or compliance with any formality on the part of
the seller.74
As mentioned earlier, under Thai law assumes that when the seller delivers the goods, it is
presumed that the time for the payment of the price.75
Furthermore, since the sale contract is a party to a reciprocal contract may refuse to perform
his obligation until the other party performs or tenders performance of his obligation. But this does
not apply, if the other party’s obligation is not due.76
If the buyer is in default, the seller may retain the goods and send notice to buyer.77
Taking the Goods
Under Article 60, consists of two elements. The first element is that he must do "all the acts
which could reasonably be expected of him in order to enable the seller to make delivery". For
example, if under the contract of sale the buyer is to arrange for the carriage of the goods, he must
make the necessary contracts of carriage so as to permit the seller to "[hand] the goods over to the
first carrier for transmission to the buyer".78
The second element of the buyer's obligation to take delivery consists of his "taking over the
goods". This aspect of the obligation to take delivery is of importance where the contract calls for
the seller to make delivery by placing the goods at the buyer's disposal at a particular place or at the
seller's place of business.79 In such case the buyer must physically remove the goods from that place
in order to fulfill his obligation to take delivery.80
Under Thai law, the right of the goods has been transferred to the buyer immediately under
this section.
81
However if the seller delivers the goods less than, more than, he contracted for, or
mixed with the other properties, the buyer has a right to reject the goods. 82 But if the buyer refuses
to take the goods without course, he must be liable for breach a contract.83
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Conclusion
The following tables show the similarities of this article between “TCCC and “CISG”
THE SIMILARITIES
Title
CISG
T.C.C.C.
Obligations of Seller
Art. 30
Sec. 461
Art.31(c)
Sec. 463, 608
Art. 32
Sec. 608
Art. 33(c)
Sec. 490
Art. 35 (2)(c)
Sec. 503
Art. 38
Sec. 506
Obligation of buyer
Art. 53
Sec. 486
Pay for the goods
Art. 55
Sec. 487
Delivery
Conformity the goods

Naiyana Guerin is a LL.M. student from Pace School of Law.
1
http://www.cisg.law.pace.edu/cisg/countries/cntries-Japan.html
2
http://www.cisg.law.pace.edu/cisg/countries/cntries.html (last modified November 24, 2008).
By: Naiyana Guerin
16
See Nayiri Boghossian in "A Comparative Study of Specific Performance Provisions in the United Nations Convention
on Contracts for the International Sale of Goods": Pace Review of the Convention on Contracts for the International Sale of Goods,
Kluwer (1999-2000), p. 6
3
See Joseph Lookofsky, The 1980 United Nations Convention on Contracts for the International Sale of Goods, article 30
summary of seller’s obligation, Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws
- Contracts, Suppl. 29 (December 2000) 1-192.
4
5
6
See Professor Nakorn Sethphuriwat, Sale, exchange, gift, Ramkhamhaeng University, 1985. p.103.
Thai Civil and Commercial Code [C. civ.] sec. 459(Thail.)
7
See the commentary to the 1980 edition of the Incoterms by Frédéric Eisemann and Werner Melis (Vienna 1982).
See Fritz Enderlein Professor of Law, Potsdam, Rights and Obligations of the Seller under the UN Convention
on Contracts for the International Sale of Goods, International Sale of Goods: Dubrovnik Lectures, Oceana (1996), Ch.
5, 145.
8
9
See id, Fritz Enderlein , n. 7.
10
See id, Fritz Enderlein , n. 8, p. 147.
Thai Civil and Commercial Code [C. civ.] sec. 463 (Thail.) “If the contract provides that the property sold shall be sent
from one place to another, delivery takes place at the moment when the property is delivered to the carrier.”
11
Thai Civil and Commercial Code [C. civ.] sec. 608 (Thail.) “A carrier, within a meaning in the usual course of his
business undertakes to transport goods or passengers for the remuneration.”
12
See Peter Schlechtriem, The Seller's Obligations
on Contracts for the International Sale of Goods, Ch 6 p. [6-10].
13
14
Under
the
United
Nations
Convention
Thai Civil and Commercial Code [C. civ.] sec. 324 (Thail.)
See Professor Jacob S. Ziegel, University of Toronto July 1981 Report to the Uniform Law Conference of Canada on Convention on
Contracts for the International Sale of Goods; Article 32, Comment 2.
15
16
Dika [Supreme Court] 2061/ 1977(Thail.)
See In this context, it must be reiterated that, as stated in UCC 1-102(4), the express reference to the possibility of
agreement on a certain term by virtue of party autonomy does not exclude the possibility of varying other provisions
also; J. Honnold, Uniform Law for International Sales 245 no. 216 (1982).
18
Thai Civil and Commercial Code [C. civ.] sec. 490 (Thail.) “If a time is fixed for the delivery of the property sold, it
is presumed that the same time is fixed for the payment of the price.”
17
19
See Judgment of Apr. 29, 1982; IPRax 1983, 231 ff.
20
Dika [Supreme Court] 421/ 1993(Thail.)
21
See Ole Lando, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987), p.265.
By: Naiyana Guerin
17
See Peter Schlechtriem, The Seller's Obligations Under the United Nations Convention on Contracts for the International
Sale of Goods, International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender
(1984), Ch. 6, page 6-18.
22
23
See Text of Secretariat Commentary on article 33 of the 1978 Draft, Comment 5.
See John O. Honnold, "Uniform Law for International Sales under the 1980 United Nations Sales Convention 2d ed., Kluwer Law
International (1991) pp. 305-306 and 307 n. 12).
24
25
See Text of Secretariat Commentary on article 33 of the 1978 Draft [draft counterpart of CISG article 35] [Conformity of the
goods] . Comment 8.
26
See id. n.18. Comment 10.
Dika [Supreme Court] 7727/ 1997(Thail.) holds the seller is liable for the breach for delivering the products that did
not contain the qualities as indicated on the sample.
27
28
See id. n.19. Comment 11.
29
See Folsom, Gordon & Spanogle, International Business Transactions in a Nutshell", 3d ed., West (1988), p. 88.
See Swedish Sales Law art. 44; German Civil Code § 459(1); see also, J. Honnold, Uniform Law for International Sales
238-239 no. 210 (1982).
30
31
See Peter Schlechtriem. n. 15. p.6-23 to 6-24.
32
See Text of Secretariat Commentary on article 34 of the 1978 Draft; Comment 4.
33
See Professor Jacob S. Ziegel, supra Art 37; Comment 1.
See Under Art. 52(1) the buyer need not take delivery prior to the contract date. Cf. Art. 86(2). The seller’s right to cure
pursuant to Art. 37 also restricts avoidance under Art. 72 for anticipatory breach, since Art. 72 provides for avoidance
only when "it is clear" that a party will commit a fundamental breach. This restriction would be satisfied by a refusal to
cure; on the effect of a seller’s failure to respond to a buyer’s inquiry as to whether he would cure see Art. 7; See also,
John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 268.
34
35
See John O. Honnold, supra. p. 269.
36
See Text of Secretariat Commentary on article 36 of the 1978 Draft[draft counterpart of CISG article 38]; Comment 1.
37
Thai Civil and Commercial Code [C. civ.] sec. 506 (Thail).
38
Thai Civil and Commercial Code [C. civ.] sec. 507 (Thail).
39
See supra, Comment 2.
40
See Honnold, supra n. 26, at 283.
41See
Fritz Enderlein, Rights and Obligations of the Seller under the UN Convention
on Contracts for the International Sale of Goods: Dubrovnik Lectures, Oceana (1996), Ch. 5, 133-201. at 175.
42
See Fritz Enderlein, supra, at 177.
By: Naiyana Guerin
18
Thai Civil and Commercial Code [C. civ.] sec. 476 (Thail) states “The seller is not liable for a disturbance caused by a
person whose rights were known to the buyer at the time of sale.” Also see Dika [Supreme Court] 9654/2001 (Thail.)
43
44
See Secretariat's Commentary 104 § 2; ULIS Article 52(1) is similar in that it views as consent the taking over of the
goods with positive knowledge of the third party's rights. cf. Dölle (Neumayer) Article 52 § 12. CISG presumably
requires consent at the time the contract is concluded. However, one may permit an implied agreement, even afterwards,
and thereby a modification of the contract, such as by an acceptance with knowledge of the defects in title, as long as
there are no form requirements. Also See Peter Schlechtriem, Uniform Sales Law - The UN-Convention on Contracts for
the International Sale of Goods. p.23.
45
See Schlechtriem, Seller's Obligations. n. 23. at 6-32.
See Article 50 does not include reduction of the price as a remedy for defects in title. The question, however, was not
expressly decided at the Vienna Conference. See A/Conf. 97/C.1/SR.23 at 9-10 (= O.R. 349). Also see Schlechtriem,
Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods. p.72.
46
47
See Schlechtriem, Seller's Obligations. n. 34. at 6-32.
48
See Schlechtriem, supra. at 6-32 to 6-33.
49
See Schlechtreim, supra. n. 35. p. 74.
Unfortunately, a motion by the G.D.R. (A/Conf. 97/C.1/L.134 = O.R. 110) also to introduce here a two-year
limitation period was not passed. On the basis of the subjective requirements for liability - awareness or the clear
possibility of awareness - and the dispensability of the notice requirement when the seller is aware (Article 43(2)), notice
will only be necessary when the seller could not have been unaware of the property rights in question. An additional
limitation period for failure to give notice seemed dispensable in these cases. Also See Schlechtriem, supra.
50
51
Thai Intellectual Property Copyright sec. 63 (Thail)
52
See Fritz Enderlein, supra n.32 p. 185.
53
See Joseph Lookofsky, CROSS-REFERENCES AND EDITORIAL ANALYSIS Article 44
54
See Leif Sevón, Ministry of Justice, Helsinki, Obligations of the Buyer under the UN Convention on Contracts for the
International Sale of Goods; Dubrovnik Lectures, Oceana (1986), Ch. 6, 203-238. p. 206.
55
Thai Civil and Commercial Code [C. civ.] sec. 486 (Thail).
See Text of Secretariat Commentary on article 50 of the 1978 Draft [draft counterpart of CISG article 54] [Obligation to pay
the price]. Comment 2.
56
57
See supra. Comment 3.
58
See The quoted words are from article 62(1) [draft counterpart of CISG article 71(1).]
59
Thai Civil and Commercial Code [C. civ.] sec. 487 (Thail.)
60
Mr. Payom Lakayanon, Civil and Commerical Code : Sale, Exchange, Gift, 1957. p. 60.
Naiyana Guerin, A comparison of contract formation in the Thai Civil and Commercial Code and the Convention on
International Sale of Goods (CISG), 2007. p. 17.
61
By: Naiyana Guerin
19
62
Thai Civil and Commercial Code [C. civ.] sec. 196 (Thail).
63
Thai Civil and Commercial Code [C. civ.] sec. 197 (Thail).
64
If the seller has more than one place of business or none at all, reference must be made to Article 10.
65
See Huber, Dölle (Schlechtriem) ULF Article 4 § 2 (for ULF). at 510. Also see Schlechtriem, supra. n. 38. p. 80.
66
Judgment of April 4, 1979, BGH, 72 BGHZ 137, 141-42 (regarding ULIS Article 59(1).
67
See Huber, at 512. See also Schlechtriem, supra. n. 50. p. 80-81.
The uncertaintly as to what was meant by "documents controlling [the] disposition [of the goods]" which Huber
noted, see Huber at 514, was not clarified in Vienna. The expression concerns chiefly negotiable documents of title and is
therefore unsuitable for its function in Article 58. The reference in the Secretariat's Commentary to Articles 30 and 34
can be of some help. See Secretariat's Commentary at 139 note 4. It is not just a matter of delivery of the goods (and the
documents controlling them), but rather of performance of the seller's principal obligations. Insurance policies,
certificates of origin, etc. relate to the goods and, when in doubt, their delivery must be part of the seller's performance
even when they are not always necessary for the further disposition of the goods. The fact that Article 58 is designed to
regulate the time of payment and to give the seller the right to withhold the goods until they are paid for justifies the
view that "controlling" documents should be interpreted in the sense of Articles 30 and 34. Therefore, even if an
insurance policy, for example, is not required for the disposition of the goods, nevertheless, the seller has not placed the
goods at the buyer's disposal, according to Article 58(1) sentence 1, until he tenders the policy together with the goods.
Moreover, under Article 58(2), the seller has the right to withhold the insurance policy until the buyer pays. For the
application of Article 58(1) and (2) to the insurance policy, one need only imagine the case in which the purchased goods
are destroyed after the contract has been concluded and the risk of loss has passed to the buyer. For unimportant
documents that nevertheless relate to the goods, Article 58(1) and (2), interpreted in the light of Article 7(1), would
permit Article 71(1) - concerning the suspension of performance where one party has failed to perform "a substantial
part of his obligations" - to be used as a yardstick: If unimportant documents are missing or withheld, the buyer must
pay, but he can sue for damages or specific performance.
69 See ULIS Article 72(2); Secretary's Commentary at 141 § 7.
68
70
See Schlechtreim, supra. n. 52. p. 82.
71
See Schlechtreim, supra. p. 82.
72
ULIS Article 69; Secretariat's Commentary at 135 § 5.
73
See Schlechtreim, supra. n. 56. p. 83.
See Joseph Lookofsky, The 1980 United Nations Convention on Contracts for the International Sale of Goods, J.
Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) p.
133.
74
75
See supra. n.17.
76
Thai Civil and Commercial Code [C.civ.] sec 369 (Thail.)
Thai Civil and Commercial Code [C.civ.] sec 470 (Thail.)
77
78
Article 29(a) [draft counterpart of CISG article 31(a)]. Cf. article 30(2) [draft counterpart of CISG article 32(2)].
79
Article 29(b) and (c) [draft counterpart of CISG article 31(b) and (c)].
By: Naiyana Guerin
20
Cf. the buyer's obligation under article 75(2) [draft counterpart of CISG article 86(2)] to take possession on behalf of the
seller of goods which have been dispatched to and have been put at the disposal of the buyer at the place of destination
and in respect of which the buyer has exercised his right to reject.
80
81
Thai Civil and Commercial Code [C. civ.] sec. 486 (Thail.) supra. n. 54.
82
Thai Civil and Commercial Code [C. civ.] sec. 465 (Thail.) “In a sale of movable property:
1) Where the seller delivers the property less than he contracted for, the buyer may reject if; but if the buyer
accepts, he must pay the proportionate price.
2) Where the seller delivers the property more than he contracted for, the buyer may accept the property
according to the contract and reject the rest, or he may reject the whole. If the buyer accepts the whole of the
property so delivered, he must pay the proportionate price.
3) Where the seller delivers the property he contracted for mixed with the property of a difference description not
included in the contract, the buyer may accept the property according to the contract and reject the rest, or he
may reject the whole.”
Thai Civil and Commercial Code [C. civ.] sec. 207 (Thail.) “A creditor is in default if, without legal ground, he does
not accept the performance tendered to him.” .” Also see Dika [Supreme Court] 8055/ 2005(Thail.)
83
By: Naiyana Guerin
21