Originally from Force Majeure and Hardship in the Asia-Pacific Region

Questions
I.     Force majeure

A.    Background and definition of force majeure in Thailand

1.    Does Thailand recognize force majeure or any other legal concept similar to force majeure such as frustration, etc. (in the following: “force majeure”)? Are there any statutory provisions or is there any case law setting forth the definition of force majeure?

Thai law recognizes the concept of force majeure. The Civil and Commercial Code and other pieces of legislation recognize the concept of force majeure. While the Civil and Commercial Code and other pieces of legislation do not explicitly spell out a direct legal consequence of a force majeure event, it is generally understood that a party whose performance of an obligation is prevented/‌interrupted by any force majeure event shall not be liable for such failure to perform. Section 219, paragraph 1 of the Civil and Commercial Code governing contractual parties’ obligations, which applies across the board to all commercial contracts, does not explicitly use the term “force majeure event.” Instead, Section 219, paragraph 1 states that the obligor is relieved from his obligation to perform if the performance becomes impossible. But it is generally understood that any force majeure event will be deemed the circumstance where an obligor’s performance of an obligation becomes impossible, which relieves the debtor from his obligor to perform as per Section 219, paragraph 1.

Section 219 of the Civil and Commercial Code reads as follows: “The debtor is relieved from his obligation to perform if the performance becomes impossible in consequence of a circumstance, for which he is not responsible, occurring after the creation of the obligation.

If the debtor, after the creation of the obligation, becomes unable to perform, it is equivalent to a circumstance rendering the performance impossible.”

Under Thai law, whenever any obligor cannot perform his contractual obligation(s) due to an event/cause that is beyond his reasonable control, the obligor may invoke that his performance of the obligation(s) is prevented/interrupted by the force majeure event so that the obligor cannot be held liable for his failure to perform his contractual obligation(s) in accordance with Section 219, paragraph 1 of the Civil and Commercial Code. Generally, if the event falls under a statutory definition of force majeure, the obligor shall not be deemed a defaulting party and the obligee may not claim damages from the obligor for his failure to perform the obligation(s). There is Section 8 of the Civil and Commercial Code setting a statutory definition of the force majeure event.