Description

Section 536 of the Thai Civil and Commercial Code contains a provision for dealing with a gift intended to take effect after death (mortis causa gift). There is a lack of literature (both on the law of gift and the law of succession) on how to interpret this provision. There are two main questions in relation to this provision, the first of which concerns its ambiguity in terms of whether a gift intended to take effect after death refers to both a gift contract (bilateral juristic act) and the promise of a gift (unilateral juristic act), or only one of them. Based on their nature, a will is closer to the promise of a gift in that they are unilateral declarations of intention made by the testator/promisor, whereas a gift contract requires the donor and the donee’s mutual intention. Secondly, the meaning of the phrase “governed by the provisions of Law concerning Inheritance and Wills” is unclear. Does it mean that a mortis causa gift must comply with the formal requirement of a will? Does it also mean that provisions on the legal effects of wills, e.g., the revocation of a will, lapse of a will, and nullity of a will, can also be applied to it.  For instance, as a testator can always revoke his will, does this rule apply to a mortis causa gift? In addition, the subjective theory will be used when interpreting a clause of a will, because there is no need to protect the legatee’s interests as he is not regarded as a party to the will. In contrast, a gift contract and the promise of a gift has a party, namely, the donee/promisee (as the case may be), who is regarded as the party, and whose interests should be reasonably protected. Hence, if the rule in relation to the interpretation of a will can be applied to a mortis causa gift is questionable.

This research is intended to comparatively analyse the foregoing uncertainties under the Thai Civil and Commercial Code with the rules under the BGB. The German law is chosen on the basis, inter alia, that it essentially influenced the general laws of juristic acts, as well as contracts, in the Thai law. In addition, the BGB contains a provision that specifically deals with mortis causa gifts.