IV. Revised Book I and II of November 1925

A. Revision (January – November 1925)

Soon after the postponement of Book I and II, the Commission started the discussion about revision of these Codes. The documents during this period are collected mainly in the Archives of Rolls 08 and 12.

a. Archives of Documents during Revision Period

1. 1. “DRAFT CODE ON OBLIGATIONS, XVII” (Roll 08-6 Vol.48)
   2. “DRAFT CODE ON OBLIGATIONS, XVII Bis” (Roll 08-7 Vol.49)

These Archives contain many notes and memorandums in French. They were probably internal documents exclusively for the French advisers for the purpose to share information about the proposals made by the side of the Thai commissioners. The following passage in a document dated 24th March 1925 let us imagine how discussions and disputes proceeded in the meetings:

EXPRESSION OF INTENTION

The Committee of Redaction have examined carefully the Sections 93 to 98 of the Japanese Code and 116 to 144 of the German Code concerning the expression (or declaration) of intention.

They call the attention upon the fact that many of the provisions to that effect are already in the present Siamese Code but have been, according to the general plan, included in the Book III [= “II”] (Obligations) and are to be found in the Title on the Validity of Contracts. Owing to (old) Section 16 which extends the said provisions to all other juristic acts, it seems, unless the Legislative Committee otherwise decide, that it is not necessary to make a modification of that arrangement. […]

∗ Archive Roll 08-6 Vol.48/62.

In this discussion, the French advisers argued that the proposed modifications to the current Codes were unnecessary and apparently attempted to protect the current version of the Codes.

In another discussion dated 1st June 1925, however, they seem to have accepted the proposal of พระยามานวราชเสวี almost without any objections as follows:

Phya Manavaraj proposes to change one section which this committee has already adopted on the 27th May 1925. The proposal is worded as follows:–

“Contracts are to be interpreted in the manner in which good faith and mutual confidence of the parties require, taken in connection with the usages admitted in such affairs.”

Phya Chinda says that the words mutual confidence seem rather doubtful, and the meaning of the word usage presents certain difficulty, the question being whether we mean common practice or commercial practice.

The Committee decides to adopt German text as translated by Chung Hui Wang in art 157 à la lettre which runs as follows:

“Contracts shall be interpreted according to the requirements of good faith, ordinary usage being taken into consideration.”
(G. 157)

This new section shall be transferred to Chapter of sections dealing with “Contracts”. […]

∗ Archive Roll 08-7 Vol.49/19.

In such a manner, the discussion continued from March to October 1925. However, there was no complehensive Draft for the rivised Book I and II. As the fist part of the Vol. 49 ("Procès – Verbaux") sugests, there were only partial drafts for particular subjects, which were unfortunately not attached to these Minutes.

On the other hand, the Vol. 48 contains interesting documents in its second part ("II. Revision from April to October 1925"); namely the overview of the planned contents of the revised Book I and II (48/204 – 206), and partial drafts for several particular subjects (48/207 – 240). According to this fact, we can know that the contents and structure of the revised Book I and II were finally determined in April 1925. The Commission had only six months to finalize the whole provisions.

The recorded partial drafts treated subjects for instance, "Prescription", "Preferential Rights", "Subject of Obligations", "Effects of Obligations", "Subrogation", "Rescissionof Contract" and so on. The draft for "Effects of Obligations" had following two version:

1. "Part I. DEFAULT", Secs. 10 – 14. (48/225 – 226)

2. "Part I. NON-PERFORMANCE", Secs. 10. – 31. (48/227 – 234)

The second version shows the exactly same contents as Secs. 203 – 225 of the current Book II. It means, the 
"Arrangement by พระยามานวราชเสวี" was accomplished at that moment.

Regarding the partial drafts, there is an open question; namely the sections in the drafts on "Prescription" and "Rescission of Contract" mentioned above have the fixed section numbers which exactly correspond to the current Book I and II. But how could such mumbers be determined without any comprehensive draft? Perhaps, these were the results in the final stage. Unfortunatelly, these partial drafts are not dated.

In any way, the French commissioners seemed to work mainly on the subjects in the Book I "General Principles" and did not play any active roles especially for the subjects in the Book II "Obligations". I this regard, it should be also taken into consideration that one of the most important tasks of the French commissioners was the preparation of "Illustrations"  for each provisions.

b. Finalization of Revised Book I and II

The final results of the revision work are collected in the following Archives:

1. 1. “การตรวจแก้ร่างประมวลกฎหมายแพ่งและพาณิชย์ บรรพ 1-2 พ.ศ. 2468” (Roll 12-5 Vol.79)
      ∗ Text of the revised Book I in English, and text of the revised Book II in English and Thai.
   2. “CIVIL AND COMMERCIAL BOOK I AND II REVISED B.E. 2468” (Roll 12-8 Vol.82)
      ∗ Final text of the revised Book I and II in English.
   3. “ร่างประมวลกฎหมายแพ่งและพาณิชย์ บรรพ 1-2 ฉบับราชเลขาธิการ พ.ศ. 2468” (Roll 12-6 Vol.80)
      ∗ Final Thai translation of Book I and II (1st version).
   4. “ร่างประมวลกฎหมายแพ่งและพาณิชย์ บรรพ 1-2 พ.ศ. 2468” (Roll 12-7 Vol.81)
      ∗ Final Thai translation of Book I and II (2nd version).
   5. “ILLUSTRATIONS FOR THE CIVIL AND COMMERCIAL CODE BOOK I AND II REVISED B.E. 2468” (Roll 12-9 Vol.83)
      ∗ This work was one of the important tasks for the French advisers as explained above.

However, according to the documents dated 18th July 1925 (Roll 12-5 Vol.79/9 – 12), the whole contents of Book I and II were almost determined in detail, and the section numbers were finally fixed; namely Preliminary (Secs. 1 – 3), Book I (Secs. 4 – 193), and Book II (Secs. 194 – 452).

Furthermore, Thai translation of Book II was gradually finalized starting from the document dated 9th September 1925 (Roll 12-5 Vol.79/102 - 123) and finished in the document dated 27th October 1925 (Roll 12-5 Vol.79/316 - 330).

Considering these circumstances, we could assume that the revision of Book I and Book II was separately, but simultaneously carried out from the beginning of the revision work. However, the Archives listed above contain only partial records of its process. It suggests that the main part of the revising work must have been performed outside of the Committee. The Committee of Legislative Redaction discussed only questionable points particularly regarding Book I. In regard with Book II, its contents were already determined in detail, and its translation into Thai had begun when the Committee started its discussion about it.

B. Promulgation of the Revised Book I and II (11th November 1925)

These revised Codes were promulagated on 11th November 1925 ⇒ See Resources [1]; «ฉบับเดิม»

◊ บรรพ ๑ หลักทั่วไป (มาตรา 1 – 193)

◊ บรรพ ๒ หนี้ (มาตรา 194 – 452)

According to these circumstances, we could assume that the revised Book II was firstly accomplished and Book I followed. Probably, the Committee expected that the revised Codes would be accomplished in an earlier date. This delay in the revision caused several difficulties.

On 27th February 1926, พระยามานวราชเสวี published the commentary for the Revised Book I and II (อุทาหรณ์สำหรับประมวลกฎหมายแพ่งและพาณิชย์ บรรพ ๑–๒ ฉบับรกมร่างกฎหมาย) with the illustrations prepared by the French advisers.

a. Short Get-acquainted Period

On the day of the promulgation of Book III, the royal edict declared that the whole three Codes would be simultaneously put into effect on 1st January 1926. It meant the get-acquainted period of one year for Book III. The Committee probably planned that the revision of Book I and II should be completed as soon as possible. But it was significantly delayed so that there was the get-acquainted period of only 50 days for the revised Book I and II.

b. Missing Part on “Representation”

This problem was not just caused by the delay of the revised Book I and II, it was rather attributable to the plan of the codification developed by พระยามานวราชเสวี itself.

The original concept of codification developed by the French advisers did not plan any code particularly for the general principles. Most principles regarding “Judicial acts” were included in the part on “Validity of contracts” in Book II except for the principles regarding “Representation”. The latter part was planned to be included in the part of “Agency” in Book III. This circumstance caused a difficulty.

During the period of the revision of Book I and II, the most general principles in the part on “Validity of contracts” in Book II could be transferred to a newly inserted part on “Judicial acts” in Book I without any difficulty. However, it was impossible to transfer the general principles in the Title on “Agency” in the “Draft April 1924” to the revised Book I which did not exist yet. For such an adjustment, it was inevitable to promulgate the revised Book I and a new Book III simultaneously. Theoretically, it would be possible, but under the real circumstances at the time, it was almost impossible to accomplish the revision of Book I before 1st January 1925. The Committee needed one more year for the revision of Book I.

For this reason, the general principles on “Representation” remained in the Tile on “Agency” in Book III. If the Committee would have deleted them, then it would have caused another problem of “gaps in the law”. Accordingly, พระยามานวราชเสวี had to delete the whole part on “Representation” in the revised Book I. Perhaps, he thought that such an adjustment could be done in an opportunity of amendment to the Codes in future. Unfortunately, such an amendment was not done when Book III was revised again in 1929.

This part is still in process …

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