Reforming the Allocation of Risk in Contracts of Sale: A Comparative Study of Thai, German, and French Law

Abstract

        This article aims to examine the problem of risk allocation in contracts for the sale of movable property, with particular emphasis on the relationship between the transfer of ownership, delivery, and the transfer of risk under Thai law. The study undertakes a comparative analysis with German and French law in order to assess the appropriateness of the current Thai legal framework and to propose possible reforms consistent with principles of structural fairness and the protection of buyers prior to delivery.

        This research adopts a doctrinal approach based on documentary analysis of statutory provisions, judicial decisions, and comparative legal theories in Thai, German, and French law. Special attention is given to the concept of control over the goods as a criterion for allocating risk, which is employed as an analytical framework for examining the structural coherence of each legal system and its implications for the respective burdens borne by the contracting parties.

        The findings reveal that Thai law continues to adhere to the principle that risk follows ownership, a structure that may result in unfairness to buyers during the period prior to delivery. This approach differs from German law, which links the transfer of risk to delivery, and from French law, which, despite transferring risk together with ownership, provides robust post-contractual mechanisms for buyer protection. Accordingly, this article proposes amendments to Sections 458 and 370 of the Thai Civil and Commercial Code in order to align the transfer of risk more closely with control over the goods, without affecting the doctrine of force majeure under Section 219.