FRAUDULENT MISREPRESENTATION OF CONTRACTUAL CAPACITY FROM INCAPACITIES

Abstract

It’s necessary to give a special protection to the incapacities in the forms of limited contractual capacity, however ; due to the requirements to be some kinds of the incapacities and the nature of contract in present days which can make through face to face communication and through the internet, it can cause a probability for the incapacities to abuse their rights by using any fraudulent means to induce others to believe that they are a person with full capacity.  Nowadays there is no specific provision regarding on the principle and legal consequence of this issue in Thailand, while conducting the comparative study from the law of the Federal Republic of Germany,  Japan , England and the U.S.A. , there are discussions on this issue  in order to be an example of enforcement for the possible cases happening in the future and in some countries they prescribed this issue into the written law.  Therefore , there is a legal problem that if the cases relating to fraudulent misrepsentation of contractual capacity are brought to the court , which legal principle or doctrine can the court use in considering so as to punish the bad faith incapacities and to protect the other bona fide party? According to this research, it has been found that state may resolve the problem by imposing the provision of principle and legal consequences for fraudulent misrepresentation of contractual capacity from incapacities and by interpreting the existing law of restitution and law of tort to be effectively applied as one of legal consequences for their fraudulent act.