A Comparative Study of Concept and Experience of the Doctrine of Impossibility of Performance in German and Thai Law

Abstract

This research aims to study the problems in the enforcement of the Thai Civil and Commercial Code on the issue of impossibility of performance by analytically comparing the legal problems experienced in the enforcement of German Civil Code (Thai Civil and Commercial Code has largely been adopted from the German law) that led to the recent revision of the German Civil Code after it had been used for 100 years. The study found that unlike the German, in the Thai system the defense of impossibility became available only if objective impossibility existed while in the German legal order, the application of the doctrine is comparatively less restrictive. The impossibility of performance in the German system included the subjective impossibility - impossibility due to the inability of the individual debtor to perform. Apparently such different treatment between the two systems resulted in different legal problems experienced in each countries. It is, therefore, suggested that the recent amendments to the German Civil Code in this respect would not relevant to the Thai provisions and accordingly corresponding modifications would not be necessary. However it is further suggested that for clearer modifications are needed to the Thai provisions on the following two subject matters: the enforcement of specific performance where is grossly disproportionate to the interest in performance of the obligee; and the provisions that require the obligor to render the performance in person when performance cannot be reasonably required of the obligor and the obligor may refuse performance.