ปัญหาสิทธิบอกเลิกสัญญาก่อนหนี้ถึงกำหนดชำระในประมวลกฎหมายแพ่งและพาณิชย์ บรรพ 2

Abstract

The purpose of this article is to study legal problems related to the rescission of contract before performance is due in Sections 387 to 389, Chapter IV, Title II, Book II of the Thailand Civil and Commercial Code (TCCC), potentially applicable to all contractual obligations. The goal is to find which provisions enable the creditor’s right to immediately terminate before performance is due when it appears clearly and absolutely that the debtor is unwilling to perform obligations. Alternatively, before the debtor’s performance is due, circumstances occur through debtor’s own fault that lead to clearly and absolutely declaring inability to perform obligations when performance is due. However, according to the current TCCC, the creditor’s right to terminate before performance is chiefly addressed in Book III as dependent on some contractual obligations. In addition, the creditor’s right to terminate before performance is due related to debtor anticipated non-performance is mentioned in article 593, but applicable only in cases of hire-of-work agreement. Therefore, this article will mainly focus on comparative study of foreign legal systems to find which have developed principles related to the right to terminate before performance is due in cases of anticipated debtor non-performance as potentially applicable to all contractual obligations. By comparing such principles with Thai law, it may be considered whether Book II of the current TCCC enables the creditor’s right to terminate before performance is due. In addition, whether such rights cover all cases of anticipated non-performance can be examined. Results were that in Sections 387 to 389, Chapter IV, Title II, Book II of the TCCC, only Section 389 can potentially enable the creditor’s right to terminate immediately before performance is due as applicable in case of impossibility, yet this provision covers cases of anticipated non-performance while the debtor is still able to perform obligations. These findings suggest that Chapter IV, Title II, Book II of the TCCC should be amended by adding the creditor’s right to terminate before performance is due when circumstances clearly and absolutely reveal that the debtor will not able to perform obligations when performance is due. Furthermore, even if circumstances have yet to clearly and absolutely appear that the debtor will not able to perform obligations but the creditor has reasonable belief that the debtor may not perform obligations when performance is due, the law should protect the creditor’s right to receive reciprocal performance by granting the right to terminate before performance is due.