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Judgement of Dika Court

Sale(Section 453-4901)

Judgement of Dika No. 1477/2541 Even the documents nominated jointly by the plaintiff and co-defendants was a rental agreement at the time of programming and advertising products on television of Thailand,  Public Relations Department, but the action the Plaintiff did not deliver any property to co-defendants so that the co-defendants utilized or getting benefit in the property, the programming and advertising products of co-defendants as agreed with the plaintiff, the plaintiff was a programmer or served for all, even co-defendants would give remuneration as money to the plaintiff for that., then the agreement that co-defendants agreed to hire the time for programming and advertising products on the television station from the plaintiff was not agreement to hire property, but it was the agreement to offer service of broadcast and picture widespread of the station of the plaintiff on the agreed schedule with remuneration, it deemed that the plaintiff was a trader who accepted the said working for co-defendants, when legal relationship between the plaintiff and co-defendants was not property rent, then the plaintiff would call for remuneration from programming and advertising products as agreed by co-defendants was not calling for rent of movable property according to Civil and Commercial Code, Section 193/34(6). 

The seller was no need to be the owner of property to be sold during making agreement, but the ownership on property had to be transferred to the buyer, see Dika No. 3763/2542. 

Judgement of Dika No. 3763/2542 The circumstance of the first plaintiff agreed to make agreement of sale the disputed care  to the plaintiff to take the car to Mr. Sor. for hire-purchase again was a method of dong business. The first defendant and the plaintiff used to do like this many times, so the plaintiff even knew that the first defendant was not the said disputed car’s owner while making agreement, the first plaintiff had to be bound to the agreement showing intention, the cite of bad motive with collusion with the plaintiff to be fictitious or swindling to others misunderstood because the seller was no need to be the owner of property during making agreement.

Judgement of Dika No. 519/2541 According to Sale Agreement of Disputed Condominium between the plaintiff and the defendant with no article specified the plaintiff’s duty to be a provider of source of loan for the plaintiff. The sale office of the defendant has an advertisement of various financial institutes to persuade the defendant’s customers to load, it was the matter of financial institutes to advertise for customers, there was no effect of binding to the defendant to provide financial institutes to the plaintiff, even the defendant’s employees would call for evidence from the plaintiff in order to contact financial institutes for the plaintiff, then it was the case of offering convenience to the plaintiff for benefit of selling condominium of the defendant more than the defendant to bind in agreement to provide source of loans for the plaintiff. The documents sent to the defendant by the financial institutes to express pleasure and support customers who bought the defendant’s condominium was not the document to be assured that the defendant had agreement to provide source of loans to the plaintiff. 

Judgement of Dika No. 76/2496 Sale of Car, the seller had delivered the care to the buyer already, but the buyer said it was not enough, it had to be certified at The Police Registration Department that the car sold to the buyer already for registration in car manual to transfer to be the buyer’s name. The seller did not go and cited that duty of sale had just transfer ownership and deliver. The Supreme Court told that not enough, except delivery car to the buyer, the seller also had a duty to certify to The  Police Registration Department that the ownership had been transferred  to the buyer already for that the authority would accept registration to the buyer even the registration would not the evidence of title, then it was the necessity to utilize the car.

The buyer’s other duty was a duty of agreement such as selling a house, then the buyer and the seller agreed to paint the house from white to green, is the duty as per agreement. The duty of agreement was not hard, what to make promise, then the article of agreement had to be follow and bind to the agreement. 

Judgement of Dika No.  6848/2540 Buy a piece of land only the piece of the defendant, when register to transfer ownership, the plaintiff was a co-owner, but the defendant still had a duty of agreement to do cadastral survey to separate the piece of land to the plaintiff.  

Eviction

Judgement of Dika No. 1885/2531 Compliance to the stranger requested according to Civil and Commercial Code, Section 481 must be compliance with voluntarily. The case that the Customs Official seized the car bought by the plaintiff from the defendant citing power of law, was not compliance to the stranger  according to Section 481, therefore the defendant’s liability who sold the care was not in prescription as per the said Section, but the case of general prescription  as per Section 164 (corresponding to Section 193/30 New).

Judgement of Dika No. 390/2518(Conference) Compliance to the stranger requested according to Section 481, provided prohibition to sue in the statement of liability for eviction, when elapse 3 months, it must be compliance with voluntarily. Th case that the police seized the motorcar from the plaintiff by virtue of law that the plaintiff must be in compliance to be seized or else the plaintiff must bear criminal faults. In case the plaintiff did not comply to the stranger requested within 3 months prescription according to Civil and Commercial Code, Section 481 but it must be in prescription according to Section 164 which has its 10 years prescription. 

Compare to Dika 2367/2516 The plaintiff and the defendant had their occupation of accepting to sale, buy, exchange for cars, the defendant bought the care from Mr. Sor, then sold to the plaintiff, after that the police seized that car from the plaintiff saying to the plaintiff that that car Mr. Sor embezzled  from real owner’s and suggested the plaintiff to return the car to the owner, and the plaintiff to claim for damages from the defendant. The plaintiff agreed to deliver the car to the police and the plaintiff said to demand from the defendant himself. Therefore it deemed that the buyer complied to the stranger to request as prescribed in Civil and Commercial Code, Section 481 already. When the plaintiff sued the defendant to make payment for car over 3 months from the date of car seized, then the case had no prescription.  

It can be seen that as per Dika No. 2367/2516 was the case of plaintiff’s accord to deliver to the police, it was the case of the plaintiff complied to stranger requested with 3 months prescription, Section 481, but in Dika 390/2518 was the case of the police seized the car, not the case of Section 481 with 10 years prescription as per Section 164.  

In case the seller could not transfer ownership to the buyer because the seller was not the owner in that property and caused damage to the buyer and the buyer had to return money to the buyer subsequently, the buyer could sue for damages from the seller, not the case of eviction, not in prescription of Section 481, see Dika No. 4366/2539. 

Non-performance of the hire-purchaser until causing rescission of contract; that was expense of property all the time of possession tacit of Civil and Commercial Code, Section 391, paragraph 3 only, and if the property returned damaged, then the hire-purchaser must bear liability except damage caused from utilizing that property lawfully as well.   

Judgement of Dika No. 985/2532 If there was rescission of hire-purchase contract from the hire-purchaser’s default did not make payment of hire-purchase, then hire-purchaser had his right to possess that car, confiscate hire-purchase payment and had the right of claim for expense of  property all the time of possession tacit. Thereafter the rescission of hire-purchase contract of Civil and Commercial Code, Section 391, paragraph 3, if the returned property damaged, then the hire-purchaser had to take liability except the damage caused from utilizing the property lawfully and had to take liability for expenses to follow the car of hire-purchase returned from the hire-purchaser.

Judgement of Dika No. 3358/2530 Civil and Commercial Code, Chapter 3.Type 5, mentioned to hire-purchase, not providing on prescription directly, but the cost of hire-purchase was the rent from utilizing property; therefore the hire-purchaser who was a trader sue for the outstanding rent of movable property (Television set), the case had to be sued within 2 years prescription pursuant to Civil and Commercial Code, Section 165 (6), not 10 years pursuant to Civil and Commercial Code, Section 164. 

Judgement of Dika No. 192/2512 In case the hirer terminated the agreement and called the hire-purchaser returned the hire-purchased property, if couldn’t return, then the price should be replaced, it is the owner gave the right to follow the property to be returned within 10 year prescription.  

Judgement of Dika No. 601/2513 When the hire-purchaser was in default, the hirer had only right of confiscation to the rent received with the right to call for the hire-purchased property, couldn’t call for outstanding rent, just expense of property utilized by the hire-purchaser all the time of possession, if the hire-purchased property damaged from other causes except from utilizing the hire-purchased property lawfully, then the hirer could call for damages and sued for damages with 10 years prescription.  

Judgement of Dika No. 3944/2535 The hire-purchase contract defined that the hire-purchaser had to pay the rent of hire-purchase pursuant to the term of 36 installments. If the hire-purchaser was in default to pay any installment, it deemed that the contract was terminated, but it is appeared that the 1^st defendant paid the 1^st installment to 10^th installment were more delayed than in contract all the time, but the plaintiff accepted for payments without objection, it is shown that in practice the plaintiff and 1^st defendant did not deemed term of hire-purchase payments pursuant to contract as significant matters as follows when the 1^st defendant did not settle  11^st installment, it would deemed that the 1^st defendant was in default and the contract should not be terminated pursuant to this agreement. In this case, if the plaintiff had a purpose to terminate the contract, the plaintiff had to notice to the 1^st defendant to settle the rent of hire-purchase within reasonable term pursuant to Civil and Commercial Code, Section 387, when the 1^st defendant did not settle payment, the plaintiff could terminate the agreement. However, the car seized by the plaintiff from 1^st defendant because of the 1^st defendant did not settle the rent of hire-purchase next installment and 1^st defendant agreed with no argument, this circumstance deemed that both the plaintiff and 1^st defendant voluntarily to implied terminate the agreement from the day of seizing the disputed car.

Judgement of Dika No. 1730/2536 The hire-purchase agreement between the plaintiff and the defendant terminated by the plaintiff use his right to terminate the agreement by taking the hire-purchased tractor to return to the plaintiff, not the case of termination by the defendant who did hire-purchase was seized or was garnished or was in custody in bankruptcy case or wrongful conduct of agreement which caused the duty to indemnify to the defendant the outstanding cost of rent to the plaintiff pursuant to the agreement, when the hire-purchase agreement terminated by the defendant used his right to terminate according to this agreement and Civil and Commercial Code, Section 573, both parties had to granted to another party to in statu quo as previously pursuant to Section 391, therefore, even the defendant was overdue of rent to the plaintiff for 3 installments  before termination of this agreement, then the plaintiff had no right to call for overdue of hire-purchase rent before this agreement terminated.  

Judgement of Dika No. 3842/2526 The said hire-purchase agreement which was in default by non-performance by the hire-purchaser just one time or one installment, then the hire-purchaser could terminate that agreement even the it was different from Civil and Commercial Code, Section 574, first paragraph, but this provision is not the law on peaceful or good merit of population to be in effected.   

Judgement of Dika No. 3408/2530 The hire-purchase agreement specified that payment to rent corresponding to the term was significant matter of that agreement, if the hire-purchaser was in default to pay for the rent for 2 installment consecutively or was in default to pay for the rent from 2 installment, then the hire-purchase agreement was quashed immediately, but in practice when the defendant or hire-purchaser did not pay the rent to the plaintiff corresponding to the term specified in the agreement all the time, the plaintiff accepted payment with no disinclination; therefore, it  could be seen that the defendant and the plaintiff had no intention to deem the term of agreement as significant matter, if the plaintiff wanted to terminate the hire-purchase agreement to the defendant, then the plaintiff had to follow the Civil and Commercial Code, Section 387, namely the plaintiff had to inform the reasonable term to the defendant to pay for the outstanding rent, if the defendant did not pay the rent within the term specified, then the plaintiff would terminate the agreement.  

Hire of Property

Lease Agreement is particular right of the Lessee.

Even the lease agreement contained terms of agreement to the lessee to transfer right to lease to other person, the lease agreement was still particular right, could not devolve on the heirs of the lessee, see Dika No. 383/2540.

Judgement of Dika No. 383/2540 Hire of property, the lessor always focused to the lessee’s qualifications whether to be trusted for using hired property and guarding hired property or not; therefore, right of lessee would be in particular state, when the lessee died, then agreement was lapsed, could not devolve on the heirs. The 4^th article specified in the agreement that during the agreement was undue, the lessee had his right to transfer the rent to other person, but the remuneration as money should be paid to the lessor was agreement regarding transferring the rent during the lessee was still alive which could be done pursuant to Civil and Commercial Code, Section 544 and was just the person who had his right to bind only with the agreed parties, could not devolve on the hires of the defendant at all.  

There was a case of using right or use power on his own property that would have a problem on tort or not; that was the case of rent the house, but the agreement was expired, but the lessee did not leave the house, then the lessor or house owner could locked the house or not. The lessee was still constrained living in the house expired or the rent was terminated or living by tort, then the person who leased or lived illegally and was tort, but living illegally,  then the house owner could not pull and push him out of the house because the law has defined the solution already that when there was intrusion or living illegally which was tort, the house owner would have sue to oust , then the executing officer would come to force to oust . Sometimes sue to oust is not quick to the house owner’s need, then the house owner locks the house to lockup, putting the lock is not fault, but lockup is freedom miscarriage, but at that time they were not in the house, the lock is put is possible, another case is;

Judgement of Dika No. 3921/2535 When the 1^st defendant as a lessor terminated the lease agreement, the agreement shall be lapsed, the plaintiff has no possessory right to utilize the rental place further, the defendant did not supply the electricity, water supply to the plaintiff, then the defendant locked the place from entering to the rental place of the plaintiff was consequent action of the agreement terminated with the suitable term to the plaintiff already, so it was not tort, the plaintiff  has no right to sue for damages from having no income from the business of the plaintiff and compensation paid to the plaintiff’s employee from the date of termination.

In this case was always happens such as the case of shopping center shared the space to the companies and shops to rent for sale goods, when the lessees could not sell well, they did not pay the rent, when the owner told to leave, but  they did not leave, the owner had to cut off electricity and water supply, but the lessees still did not leave even the electricity and water supply was cut, when the lessees returned home to sleep at night, the lessor came to lock over, did not allow the lessees to enter the rental place, then the lessees came to sue for compensation for tort. The case was that the lessor did tort to the lessees or not, when considering Section 420, a point of lessor’s action was wrongful act or not. The case of the lessor cut electricity and water was the power to utilize of the lessor which was the person who asked from the Water Supply Authority and Electricity Authority according to the agreement that he had his duty when another party was not fault. When he was fault and the agreement was terminated lawfully, then cutting electricity and water was not breach of contract, and locking the rental room was the action to the property which was the ownership of the lessor was not trot, therefore, the lessees who was breach the contract could not sue of tort, so it could not listen, the case was dismissal. 

In case the lessee was still in the house, even it was living by tort, if the house owner went to lock, the owner was not fault of tort to do action to the house because the house was of the lessee. But is was tort to person who lived in the house, made him to be detriment of freedom.  If the person was not in the house, but there were belongings pursuant to this Dika, his belongings were kept in the rental room, the lessor could not take them out because locked up with the key was tort or not, the lessor told to take out at suitable period and terminate the agreement lawfully, then the action of not taking those belongs out was unable to help, the lessor had his right to put the key.

Deposit  is an agreement that a person called “depositor” has delivered the property to another person called “depositary” and the depositary agreed to keep that property in his custody, and will return. (Section 657)

Judgement of Dika No. 1621/2534 The defendant agreed to the customer to take his car to park in the space of gas station both daytime and nighttime for temporary without any charge, but if he takes the car out after 6 o’clock, he has to pay 10 baht a car. Taking the car to park and lock the car and keep the key, not deliver the key to the defendant’s employees, possession of car during the car parking in the possession of Sor., even charging for parking is not the case of deposit. 

Judgement of Dika No. 7287/2539 Dor. And Hor took there cars to park in the space of the defendant arranged according to the words of the two defendants said there was a space inside to park, the charge had paid to the defendant’s employee, and received the slip with the statement that Parking Slip, while Dor. And Hor. Still kept the keys theirselves and they left the parking lot, it still cannot listen to be delivery the car to the two defendants as a depositary with remuneration when the cars lost, the two defendants has no responsibilities for all damages. 

Remarks: According to Judgement of Dika No. 1621/2534 and 7287/2539, the cars’ owner took the cars to park, but kept the keys, was not listen to be delivery car into custody of the defendant. Please see further Dika, the car owner had delivered the key to the defendant’s employee for the reason of backing & taking the car in or out, the Dika Court deemed to be deposit already, see Dika No. 925/2536. 

Judgement of Dika No. 925/2536 The case of 1^st defendant provided service for customers who had food at the 1^st defendant’s restaurant , and has 2^nd defendant did welcome, took the key and drove the cat to the parking lot and moved the cars, if there were other cars in and out the area of that restaurant, issued the slip which the registration is records and received the customers’ keys to keep, this 1^st defendant’s  performance is deemed to be deposit pursuant to Civil and Commercial Code, Section 657.  

Judgement of Dika 4235/2541 The plaintiff took the car to deposit to the defendant, the defendant asked for deposit charge monthly, with the regulations that the cars’ owner had to deposit the keys to the defendant so that the defendant could move the car in case there was other cars came to park, the plaintiff delivered the keys to the defendant every time to park, this circumstance was deposit property with some charge, was not the case of let the place to park the cars.  

Sale with Right of Redemption

Th results from redemption of deposit.

When redeeming the property from deposit within the term of redemption or the redeemer had deposited property which was redeemed property to the Deposit Office within the term of redemption by waiving right of redemption which has deposited, then the property which is sold with right of redemption was the ownership of the redeemer from the time that the redeemer has redeemed and paid value of redemption or deposit the property which was redeemed property. (Section 492, paragraph 1) 

This provision has been revised in B.E. 2541, the principle previously mentioned that when redeeming the property which was sold with right of redemption, it deemed to ownership has never been to the redeemer at all, it was being that the property which was sold with right of redemption was to be the ownership of the redeemer since the time the redeemed property is paid or the property had been deposited as redeemed property. 

From this new revision, it shown that during the time of sale with right of redemption to be the time of redemption, the ownership to property which is sold with right of redemption is to be of the redeemer, the redeemer has his right to possess, to utilize and to have fruit occurred during the time mentioned above as the ownership. 

Judgement of Dika No. 656/2517 The fruit of property from sale with right of redemption occurred during the term of sale will be of redeemer, Section 492 of Civil and Commercial Code provided that the property which is sold with right of redemption, if redeems within the term, it will be deemed that the ownership has never been to the redeemer at all,  that means only the property which is sold with right of redemption excluding the fruit as well.  

Remarks: Pursuant to the Judgement of Diak, when  adjudging the new provision, the result of the case is as same as, but the reason shall be changed to be “pursuant to Section 492, when redeems the property sold with right of redemption, the said property shall be of the redeemer from the time he pays for that property, it shows that before redeeming the property which is sold with right of redemption is the ownership of the redeemer, the fruit occurred during the said period shall be of the redeemer by virtue of Ownership pursuant to Section 1336”. 

Mortgage

Judgement of Dika No. 5733/2537 When the obligation of a loan contract from overdraft which was principal debt due pursuant to the Mortgage Contract which was the equipment debt that the defendant made as principal debt guarantee as mentioned should be due as well.  

The case that mortgagee requested the court to do public auction without mortgage according to Civil and Commercial Code, Section 289 was the enforcement of mortgage, the mortgagee should have right to benefit of payments before other debtors, see Dika No. 2825/2527. 

Judgement of Dika No. 2828/2527 The plaintiff as the mortgagee preferred to receive obligation payment from the property mortgaged before ordinary creditor, even the plaintiff shall not make enforcement of mortgage preferred to have debt payment from the property mortgaged property before ordinary creditors, even the plaintiff shall not make enforcement of mortgage directly, but the plaintiff requests to do public auction with mortgaged property which is seized without mortgage, which deems that is enforcement of debt payment by virtue of mortgaged creditor’s preferred right, the plaintiff who is preferred creditor which is in the position of receiving payment before other creditors, the applicant who is the creditor pursuant to judgement who is not preferred creditor prefers to have just money left from payment of mortgage, if any as provided in Code of Civil Procedure, Section 289, last paragraph.         

Note that this Dika, when suing, sue as ordinary creditor, but when compulsory execution, there is a request to sell the mortgaged property as without mortgage, then the plaintiff has his right to receive payment before other creditors.  

In the class of compulsory execution which has other creditors as mortgagee, and there is seized which is mortgaged and makes public auction, the mortgagor has his right to submit for receiving payments as mortgaged creditors, of in Code of Civil Procedure, Section 289 which will receive payment before ordinary creditor, however, the mortgagee has not submitted as provided by the provision, then right of mortgagee shall not quashed, See Dika 3655/2538.

Judgement of Dika No. 3655/2538 The mortgagee has not submitted to the court before taking the mortgaged property to do public auction, then right as mortgagee shall not lapsed; therefore, when the mortgaged property is made public auction without mortgage already, the mortgaged obligation shall be paid to the mortgagee firstly.

Judgement of Dika No. 741/2523 The 3^rd and 4^th defendants did land mortgage to the plaintiff for the contract guaranty to establish the branch of bank, is to give promise to the plaintiff that if the 1^st defendant breaches the contract and causes damage to the plaintiff, and did not pay for damages, then the plaintiff can make enforcement of mortgage, 3^rd and 4^th defendants shall not make jactitation the Civil and Commercial Code, Section 689 to be the quality of guarantee  that   shall not enforce from the 1^st defendant’s property. Even though the buyer will buy from public auction bona fide, the mortgage shall attach as well, see Dika No. 1536/2500, 132/2535.

Judgement of Dika No. 1536/2500 Purchasing land barehanded from sale by auction, even it shall be buy in good faith, not knowing that it is in mortgage, then mortgage is still fix to the land.

Judgement of Dika No. 132/2535 The applicant bought disputed land from sale by auction pursuant to court order bona fide, but the Civil and Commercial Code prescribed only that the buyer’s right shall not lapsed even there is a proof that that property is not the defendant’s, not protect to the buyer to have his right forever without any burden, if the plaintiff accept mortgage that disputed land from the defendant in good faith lawfully, then the mortgage shall be fixed to the land and the plaintiff shall have his right to control of mortgage for that disputed land. 

Loan

Judgement of Dika No. 382/2537 The 3^rd defendant has made suretyship and mortgaged land for debt guaranty to Loan Contract of Overdraft of the 1^st defendant to the plaintiff at the amount of 400,000 baht or not exceeding 400,000 baht, it shown that The 3^rd defendant has his intention to guarantee and to mortgage the land for debt guaranty pursuant to Loan Contract of Overdraft of the 1^st defendant at the amount of 400,000 baht, although it appeared that the plaintiff agreed to the 1^st defendant to loan as overdraft at the amount of 400,000 baht, then it is binding between the 1^st defendant and the 2^nd defendant, the managing partner of 1^st defendant to the plaintiff only, the binding shall not be to the 3^rd defendant, therefore, when the contract due to the contract, the 3^rd defendant has a letter of payment to the 1^st defendant at the amount of 400,000 baht for the plaintiff with interest, it is the tender of performance to the plaintiff who is a creditor when it is due in good faith pursuant to Civil and Commercial Code, Section 701. 

Suretyship

Judgement of Dika No. 2565/2533 When the contract of cheque discount sale between Company Khor., and the plaintiff with no limits to the cheque that Company Khor. Takes to discount sale shall be the customer’s cheque of Company Khor. only and in contract of suretyship made by the defendant with the plaintiff specified the defendant’s liability including debt on cheque of other persons sold for discount by Company Khor., to the plaintiff. The defendant as the guarantor shall be in liability pursuant to contract of suretyship that Company Khor. owed to the plaintiff for 2 million baht.

Judgement of Dika No. 2053/2535 The 2^nd defendant guarantees performance on the promisory note issued by the 1^st defendant to the plaintiff in the amount not exceeding 1,000,000 baht, which is not specified which promisory note shall be guaranteed and does not specify the term and does not agree on the contract of suretyship to be effected all the time until the bank shall terminate giving credit. The Dika Court adjudges that the said terms of contract shown that the 2^nd defendant has his intention to guarantee debt on the promisory note without the number of notes and with no limitation of terms all the time in the amount of not exceeding 1,000,000 baht; therefore, the 2^nd defendant shall bind as guarantor to the 1^st defendant in the debt of last promisory note that the plaintiff took for action. 

Judgement of Dika No.678/2540 Contract of Cheque Discount Sale is a bilateral contract in the first category without type. That the 1^st defendant took his cheque, who is a drawer which agreed on advanced date and conferred to the bank and received money from the bank with the terms that if the cheque could not honor, then the 1^st defendant agrees to pay on cheque with interest, is a discount cheque sale.

The 2^nd defendant made contract of suretyship to sale cheque on discount of the 1^st defendant at Bangkok Bank, Sam Yod Branch, in the amount of two million baht, but the contract of suretyship specified that guaranty to debt of contract of cheque discount sale between the 1^st defendant with Bangkok Bank Limited, not specified to intend to guarantee the 1^st defendant’s debt to Bangkok Bank of any branch specifically; therefore, when the 1^st defendant brought the cheque of Bangkok Bank Limited, Ratchawong Branch signed and drawn and to sale for discount to Bangkok Bank Limited, Ratchawong Branch, then the 1^st defendant breached of contract, then the 2^nd defendant as a guarantor shall be liable pursuant to contract of suretyship.

Hire of work

Liability of Employer(Section 428) 

Judgement of Dika No. 2077/2542 1^st defendant is an employer  employed the 2^nd and 3^rd defendants consecutively to build the reinforced concrete building and in Contract of Building Contraction between 1^st defendant with the 2^nd defendant and between 1^st defendant and 3^rd defendant shall be made according 1^st defendant’s order, if the 2^nd defendant and 3^rd defendant fail to follow, then the 1^st defendant shall have his right to terminate the contract. The fact that during construction, 1^st defendant goes to control and supervise building work all the time, it deems that 1^st defendant is a wrong doer in part of work to order to do or the order assigned by himself, or seeking contractors as prescribed in Section 428 of Civil and Commercial Code.  When the construction of building of the 2^nd and 3^rd defendants causes damage to the plaintiff’s building, then 1^st defendant shall be liable for damage occurred together.

Insurance(Section 861-897)

Insurance Contract(section 861) 

Insurance Contract which is provided others to be a beneficiary is a contract for benefit of stranger (or third party), when the stranger (or third party), still does not show his intention to take his benefit, the insured can sue the insurer to be liable, see Dika 132/2540. 

Judgement of Dika No. 132/2540 The plaintiff has made hire purchased of truck from Company Khor., the plaintiff had made car insurance to the defendant by specifying Company Khor. to be a beneficiary, when Company Khor. does not show intention to take benefit from insurance contract, so the right of stranger (or third party) still does not occur pursuant to Section 374, paragraph 2, when the truck turned over and damaged, the plaintiff shall has his right to sue the defendant to be liable according to insurance contract, Company Khor. needs not to assign his right of demand or assign his right to the plaintiff to sue. 

Judgement of Dika No. 5133/2542 Insurance Contract, the laws do not provide the types of its act in the laws, just provide enforcement to have written evidence as a case and signature of the liable party  or representative as significantly; or else the case shall not sue for compulsory; therefore, insurance contract shall occur when there is intention  to make offer and acceptance correspondingly. 

Mr. Sor, the defendant’s manager, Branch Khon Kaen, does not a representative who has no power to make insurance contract for the defendant, so Mr. Sor, has no power to accept truck insurance which is in dispute from the plaintiff, the case that Mr. Sor accept the offer of insurance from the plaintiff is only for delivery the plaintiff’s offer to the defendant’s company so that the head office shall consider to accept insurance or not, not the acceptance for insurance, when the defendant’s company, head office just receives the offer from the plaintiff at 13.55 hours, which is the time after the disputed truck had occurred the incident already, also it is not appear that the defendant has acceptance for insurance for the disputed truck at any time, so it could not listen that while the disputed truck had an accident, the defendant has accepted truck insurance, which shall be liable for defray compensation to the plaintiff at all.  

Judgement of Dika No. 1675/2516 The case that the injured fails to call the insured to enter to the case in action for the insurer to defray compensation as proscribed in Section 887, 2^nd paragraph. That provision results only to the injured that could not demand for compensation for the lack portion from insurance, does not result from the insured to be liable for damages to the injured and the insured has no liability as well. 

For Judgement of Dika No. 2447/2539 had other cases to concern;  1^st defendant drove the car which 3^rd defendant accepted insurance with the consent of the insured with negligence hitting the plaintiff’s car. It deemed that 1^st defendant was in quasi the insurer according to the terms in insurance policy, the insurer had to be liable for damage occurred to the plaintiff. The case that the injured did not sue or call the insured to enter to contention pursuant to Section 887, paragraph 2, the it resulted to the injured could not call for compensation of lack portion  from the insured only, no results to the insured had no liability to the injured and caused the insurer had no liability as well. 

Judgement of Dika No. 1006/2518 In this case the insurance policy contained exception the liability of insurer company which is mention that the driver who had no driving license lawfully in capable of driving the car which is insured, the company should not liable for liability. The point of problem was that the insurer company has to be liable or not. It said that the driver shall be protected on the agreement of guaranty insurance should be a lawfully driver, and shown that to be a person who could drive wrongfully, when there was no driving license, it deemed to be a person who was incapable of driving; therefore, when damages occurred, the insurer company had no liability.

Current Account

Judgement of Dika No. 4985/2541 The defendant had opened current account and applied to use credit card from the plaintiff, by mutually agreed on conditions of debt performance from using of credit card. When the plaintiff paid money to the collector from using credit card of the defendant, the defendant had to pay money replacement of the plaintiff by allowing the plaintiff to withhold from current account for credit card, then the defendant had spent credit card to pay for goods and service as well as to withdraw cash according to terms and conditions in the agreement of credit of the plaintiff; then the defendant did paid for the debt in full amount, and it appeared that the defendant owed the plaintiff only the credit card.  The case that the defendant opened current account for the plaintiff to withhold money paid by the plaintiff for the defendant from the current account.

The behavior between the plaintiff and the defendant, the defendant did not use the said current account and in the terms and agreement of using credit, the defendant had to pay for fees of issuing credit card and the defendant could take credit card to buy goods from the shops accepted the plaintiff’s credit card  without paying cash. When the shop called to collect money, the plaintiff would pay for the defendant, and would call to collect from the defendant later, so it was the case that the plaintiff was a person to act for the defendant, and the case that the plaintiff paid for debt to the defendant’s creditors and called to collect from the defendant later was to call for money paid by the plaintiff, so the plaintiff’s right should be 2 years of prescription according to Civil and Commercial Code, Section 193/34 (7) was not right of demand pursuant to contract of current account with 10 years prescription at all. 

Cheque

Liability of Bill Signatory(Section 900)

The person who is not a member of board of directors of any juristic person has signed his name to pay on cheque, even the seal of juristic person shall be affixed on that cheque, it cannot deem to do for that juristic person, the person who signs his name shall be liable on that cheque according to Section 900, see Dika 7121/2539. 

Judgement of Dika No. 7121/2539 1^st & 2^nd  defendants were drawers on cheque of Company Or, had signed their name on disputed cheque which was of the plaintiff’s company for performance of the company and of 1^st defendant, but 2^nd defendant did not affix seal of company, so it cannot deem that 1^st & 2^nd defendants had signed their name on disputed checques for the company, and 1^st & 2^nd defendants had not signed their names to draw cheques by specifying that they acts for their company; therefore, 1^st & 2^nd defendants shall be mutually liable according to the statement appeared on the cheques pursuant to Civil and Commercial Code, Section 900, 9001.

Cheque(Civil Case)

Making act of law of directors of limited partnership or company limited shall be compliance to the regulations of limited partnership or company limited so that it shall be binding to that limited partnership or company limited. For drawing cheque, if it is not comply to its regulations, it cannot deem that the limited partnership or company limited signs the name to draw the cheque, see Dika No. 4214/2539. 

Judgement of Dika No. 4214/2539 Regulations for limited partnership set by 1^st defendant that making act of law shall be bound to 1^st defendant, the managing partner shall have two people sign their names and seal of 1^st defendant. Th case of 2^nd defendant  signed the name on the cheque issued to the plaintiff solely is not right, it cannot deem that 1^st defendant signed his name to draw cheque pursuant to Civil and Commercial Code, Section 900, although 2^nd defendant shall be a managing partner, but it is not appeared that 1^st defendant  has appointed the 2^nd defendant as a straw man, and also the money has not taken to spent in the 1^st defendant ‘s business from drawing cheque that deems to be giving promise to the action of 2^nd defendant, then 1^st defendant shall not liable to the plaintiff.  

Exceptions for holder shall not take the cheque to submit to the bank.

The case of drawer’s account is closed, the holder needs not to take the cheque to call for money, see Dika No. 1865/2517, 1494/2529.

Judgement of Dika No. 755/2526 In case of suing money from cheque, even the bank shall collect money onto the cheque before the due date, if the drawer’s account shall be closed before the bank calls for money, it deems that the cheque has no effect for performance, it is no need to take the cheque to the bank to re-call for money. In this case the holder shall take the cheque to sue the drawer to responsible by Civil Case according to Section 959 and 989.

Cheque(Criminal)

Judgement of Dika No. 2139/2526 The defendant issued cheque without day, month, year, it shall have no issuing date for default, even the defendant shall told his daughter to put date onto disputed cheque, it only has effect to the cheque to have complete particulars and can be sued on civil case only, has no effect to be a fault pursuant to Act of Fault from Using Cheque.

Judgement of Dika No. 2730/2523 Issuing each cheque shall be a fault only; therefore, when the defendant issuing disputed cheque to payable to the holder for the plaintiff, then the plaintiff’s wife take the cheque to sale for discount to Bangkok Bank Limited, then on the due date, Bangkok Bank, who is a holder calls for money, but the bank refuses to pay; so Bangkok is an injured and a fault occurred on that day, thereafter, the plaintiff shall take the money to exchange that disputed cheque and submit to the bank in order to pay, but the bank refuses to pay, then the defendant has no fault,so the plaintiff is not an injured, no power to sue the defendant. 

Judgement of Dika No. 228/2503 A fault pursuant to Act of Fault from Using Cheque occurs when the bank refuses to pay money on cheque, if the bank still does not refuse to pay money, then a fault still does not occur, the prescription shall be counted when a fault occurs only.  

From the day of refusal to pay money by the bank to the day the injured complains to the official is not over 3 months, the case still has its prescription.

Tort

Judgement of Dika No. 5389/2538 The parking lot building of 5^th defendant with one entry and one entrance, there is a security standing at the entry doc collecting money and issue a card for parking car 5 baht, by register onto the card with the statement on the card that “service for cleaning and security”, the statement on the back that “the driver shall keep this card with the driver for protection you car lost please return this card every time before taking your car from the parking lot, if card lost or cannot show card, the company shall not allow taking car out until the evidence can be shown satisfactory”. And at the parking lot, there is a guard walking for inspection, at the wall of parking lot, a statement warns that “please do not forget parking card because the car may be lost, at the egress, there is a guard standing at the doc waiting to check card and allowing the car out, even the service users for parking shall be a selectors to park the cars, close the car and keep the keys even on the back of the card said that “if there is lost or damaged occurred in all cases, then the car’s possessor shall be liable in all respects. But it makes the service users understand that  generally at the parking place of 5^th defendant  has security service for cars parking here while the drivers contact his business or buy goods at the department store of 5^th defendant that who are cars’ owner cannot take the car out, at the same time the service users shall pay 5 baht as remuneration, the said action is deemed to the previous action of all 5 defendants causes duties to the 5 defendants have to take care and give security to all cars parking there.  

2^nd and 5^th defendants standing to collect money and issuing card, register cars onto the card and check cards while the cars drove from parking lot at the dock at the entrance of parking lot. So the guard duty of 2^nd to 5^th defendants regarding protection anyone who are not cars’ owner to take the care out from the parking lot or protection car robbery directly, when there is just a way of ingress and ingress, if 2^nd to 5^th defendants who are in the dock checking cards strictly, so it is difficult for the plaintiff’s car to be stolen, but the case of plaintiff’s car is stolen since 2^nd to 5^th defendants are careless to check parking card strictly which is omission to perform duty to protect car robbery and results directly to the plaintiff’s car stolen and is negligence, so it is the action of tort to the plaintiff pursuant to Civil and Commercial Code, Section 420, so 2^nd to 5^th defendants shall be liable to the plaintiff, but 2^nd to 5^th defendants are 5^th defendant’s employees and does action of tort of employment, so 5^th defendant shall be liable for the feult with 2^nd to 5^th defendants  pursuant to Section 425. 

The case of car lost because of parking at gas station, at department stores or service parking station, the plaintiff always sues with jactitation of ground of debt is a case of contract to be car depositary, if there is a contract of property deposit, when the car lost, the depositor shall sue for liability from the depositary, if parking car without contract of property deposit, the depositary shall not be liable. So the gas station changes to make a contract to lease the space for parking, when the car lost, the gas station has no responsibility, but this case set to be tort, not deposit contract because it is not property deposit contract; right from tort is ownership in the car, 5^th defendant did not rob the car, so the problem is that what the defendant did as tort, it appeared that collecting traffic charge is just 5 baht which is not the parking service, but the principle of law said that action means omission to do, omission shall deem to be action when that person has his responsibility to do in order to protect the result and does not act on duty, this case has no duty of law because there is no provision prescribed that the person who opens shopping center shall have duty to take care cars parking, so there is not  duty on contract, but there is a duty from prior relationship because the defendant ordered to take the car parked in that manner, so protection shall be made to the cars, so it is tort because it causes liability to indemnify for damages to the plaintiff.

Judgement of Dika No. 3373/2535 4^th Driver’s negligence insured by the plaintiff hit at the back of 3^rd car is damaged, it shall be 4^th driver’s fault to indemnify for damages is a part, different from 4^th car that the defendant is a negligent driver to hit 4^th car insured by the plaintiff, so damages of 4^th car shall bring to reply on the circumstance of 4^th driver by negligence and causes damage to 3^rd car to co-consideration which party causes damages more or less is not the case; damage of 4^th car shall be deemed to occur because defendant’s negligence who drove 5^th car only. 

This case is of 4^th car hit at the back of 3^rd car, during getting out of the car to look damage, the 5^th car came to hit 4^th car, only the damage of 4^th car with the point for Dika (Supreme) Court  adjudges that 4^th car will sue 5^th car occurred thereafter, if 5^th car cited that  4^th car is in default because hitting the back of another car and causes barring the way, so the driver asks for some portion of damage.  Dika (Supreme) Court adjudged that the incident occurred separately, have nothing to do with, not occurring immediately, the incident occurred and getting out of the car to look, then 5^th car drove but did not look that there is something barring on the way or not and hit at the back of 4^th , like this; so he is not wrong, the previous incident is not concerned, 5^th car came to hit thereafter, so he shall be in full of liability.

Judgement of Dika No. 1050/2495 Creditor as per adjudge of house seizure with the reason to believe bona fide that the house seized as judgement debtors until public auction shall be an action to use right of court, when the judgement creditor or a proxy holder done by negligence; although it appeared that the house is seized to be of others, then that action was not tort.

The case that the judgement creditor to seize property of judgement debtor is deemed that of suing power pursuant to Code of Civil Procedure. This seizure sometimes the property is of other, if the judgement creditor believe in good faith that the property seized was of judgement debtor, then it deemed that  it is using of right according to Code of Civil Procedure empowered, not wilful damage to others, so the problem is only negligence or not. If it is the judgement debtor’s property possessed or utilized  by generally of ordinary people, then it can be assured that the seized property or possessed or utilized is of judgement debtor; then it is not negligence, but in case the immovable property, the inspection from document shall be verified regarding right in land that the inspection shall be done firstly, if it can be believed that possession is replacement, the it shall have strong fact to be listen or understand bona fide that it is the judgement debtor’s property or else it shall be the action of negligence which is tort.

Trademark

Judgement of Dika No. 6920/2537 The plaintiff who owned trademark in Roman alphabet “BIRKENSTOCK” and invention mark of circle with the Roman alphabet that “BIRKENSTOCK BAD HONNEF-RHEIN” with feet picture and cross mark with the radius shining up with the words “BIRKENSTOCK” which is the family name of Mr. Carl Birkenstoc’s ancestors, who was the plaintiff’s Managing Director. The words BAD HONNEF-RHEIN  was a district nearby Rhine River, which was the location of plaintiff’s company. The plaintiff used this trademark with shoe products registering in Germany and other various countries and registering trademark with words BIRKENSTOCK to World Intellectual Property Organization. The plaintiff’s shoe products were popular in many countries more than 25 years, were popular in Thai people who traveled overseas and there were buyers bought them for distribution in Thailand. The defendant used to see and realized this plaintiff’s trademark before. The case that the defendant applied to register trademark which was the same as of the plaintiff in all respects was the use of right in bad faith, the plaintiff had his right in his own trademark better than applied by the defendant to register.

Provision Section 21 and 22 of Trademark Act B.E. 2474 is the provision for the procedure to register trademark divided in steps as well as announcement of request to register trademark pursuant to section 21 (There is available in Trademark Act B.E. 2534) and steps to register pursuant to section 22 prescribed the terms for submitting objections registration shall be submitted within 90 days from the day of notice the request to register trademark pursuant to section 21, but the said provisions do not bar the right of real trademark owner from procedure regarding trademark).

Suing to accept the child(Section 1555-1559)

If it is the case of inheritance pursuant to Section 1558 prescribed that if there is suing to accept the child within the prescription of inheritance, if the court adjudged that the child is legitimate child of the diseased, then that child shall have right of inheritance as legal heir, it shows that receiving inheritance has its relation back to the day the father died, see Dika No. 1196/2538. 

Judgement of Dika No. 1196/2538 Although 2^nd objection person has just been delivered and the court has order after the diseased died about 8 months, 2^nd objection person is a legitimate child of the diseased, then 2^nd objection person has his right to receive inheritance as legal heir relation back to the day the inheritance owner dies pursuant to Civil and Commercial Code, Section 1558, 1^st paragraph and is 1^st  legal heir. The applicant is just a siblings, as same as the diseased, and has no right in the estate of the diseased estate and has no interest in the estate to be requested to establish administrator. 

In case of the child certified by the father already, it deemed to be illegitimate child, has his power to sue father, see Dika No. 3019/2541.  

Judgement of Dika No. 3019/2541. The Civil and Commercial Code Section 1562 to prohibit suing predecessor as civil or criminal cases, is the provision of limitation on right, so it shall be translated strictly which means that prohibition to  legitimate child sues his own predecessor only. The plaintiff is a child certified already, but the defendant and mother has not registered marriage, then the plaintiff shall be legitimate child when the defendant and plaintiff’s mother married later  or the defendant has registered that the plaintiff is a child or the court adjudged to be a child pursuant to Civil and Commercial Code, Section 1547, when there is no procedure, the plaintiff is not legitimate child of the defendant, the plaintiff has his power to sue the defendant.

Prescription to manage inheritance(Section 1733, 2^nd paragraph)

The inheritance owner transferred his or other persons  estate without dividing to other heirs, it deemed that the administration of an estate is finished already, see Dika No. 2347/2540.

Judgement of Dika No. 2347/2540 The prescription to sue for the estate in case of the administrator as mentioned in Civil and Commercial Code, 2^nd paragraph provided that the heir shall not sue over than 5 years from the administration of an estate elapsed, not the day of knowing of administration of an estate elapsed, when it appeared that the estate has just a piece of land, the defendant transferred inheritance by registering his name and Mrs. Thor as the recipient without distribution of inheritance to all five plaintiffs until finished from the day 24 October B.E. 2527 and the inheritance owner has no other estate to manage further, so it deemed that administration of an estate elapsed already, the case of plaintiff has no prescription. 

Remarks:This case the plaintiff sued the defendant as the administrator, by citing that the defendant administered the inheritance lawfully, so it was the case of administration of an estate with its prescription pursuant to section 1733, 2^nd paragraph.

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