The Control of the Conclusion of a Contract through the Exploitation of Circumstances of Weakness of a Contracting Party

Abstract

This research is aimed at exploring problems relating to the declaration of an intention under circumstances of weakness, investigating limitations plaguing Thai laws about the protection of a party concluding a contract under a circumstance of weakness, and recommending an appropriate approach to amendment of Thai law for protecting a contractual party under a circumstance of weakness. This research is qualitative documentary research, whereby Thai law is discussed in comparison with the laws elsewhere, which include English law and principles of the law of Australia, China, and the European Union. It is found from this research that principles of law in the Civil and Commercial Code of Thailand remain insufficient for protecting a contractual party concluding a contract under a circumstance of weakness (for instance, illiteracy, lack of understanding of the transaction concerned, incomplete awareness prompted by old age, financial need, emotional distress or intoxication) when the other party is aware of such circumstance and takes advantage of it in leading the circumstantially weakened party to conclude a disadvantageous contract, while the doctrine of unconscionable bargains in English law and Australian law affords protection to a party under such circumstance and certain jurisdictions have indeed turned such judge-made doctrine into a written provision of law. Amidst the insufficient net of protection in Thai law, it is recommended that the Civil and Commercial Code of Thailand be amended by inserting a new provision as section 166/1 for protecting a contractual party concluding a contract under a circumstance of weakness.