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| PHLIP VON MEHREN, J.D. |
TIM
SAWERS, J.D.
|
| MILBANK,TWEED,HADLEY
AND McCLOY WASHINGTON, D.C. |
HODGSON,
RUSS, ANDREWS, WOODS & GOODYEAR
BUFFALO, N.Y. |
54
[Thai numeral 42]. If land around the capital city of Ayuthya is an area (where) the people (live), do not allow them to buy (and) sell (land there). Do not leave (land) unoccupied; have the village headman, the district chief, the local official and the tax collector arrange for people to live there.
Also, (If) there is (formerly cultivated) land outside the city, even if it has long been abandoned, and a man comes and works that land as his farm (or) garden and plants fruit trees there, reduce taxes for him for one year. After that (the land will be subject to) royal taxes.(8)
Sale of land is prohibited. Local officials should find people to work vacant land. There will be a one year tax holiday for a person who takes up and works abandoned land.
61
[Thai numeral 49]. (If) there is a contract selling with the right of redemption farm land, paddy or a house, thammasat says redeem within ten years. If the owner does nothing for more than ten years (and then wants to) redeem (the land), thammasat does not allow (him to) redeem the farm land, paddy or house. (It) is the right of the purchaser.
The right to redeem of a vendor of land who retains the right of redemption expires after ten years. Such a vendor has no more rights in the land after ten years.
62
[Thai numeral 50]. (There is a) purchase of farm land, paddy or a house (and) there is a document as evidence. Someone comes (and) claims that farm land, paddy or house was originally his ancestor's. (You) consider (and decide) that it was not the owner of the land who sold (it to the purchaser). Thammasat says leave things as they originally were.(9) As for the purchase money, take it from the seller.
A claim to land based on ancestry takes precedence over the claim of one who purchased the land from a vendor who did not own the land, even if the purchaser has a sales document.
Comment
This section deals with a problem that every legal system faces: sale of property by a vendor who has no rights in the property. Compare it with U.C.C. § 2-403 (1977), which addresses this problem by articulating "no rights in the property" into "voidable claim" and "void claim." In § 2-403 itself one must infer "void claim" to understand correctly. For modern Thai supreme court cases reaching the same result as this section see Dika 1076-1079\2510 (1967) and Dika 2031\2514 (1971).
Observe the ambiguity of ? 62: it says not that the claim based on ancestry was valid, but that the vendor's claim was invalid; not that the purchaser gets his money back, but that the vendor may not keep the money. Even the command to "leave things as they originally were" is unclear. Our footnote resolving this last ambiguity in favor of the ancestral claimant is based on the use of the Thai word "original" (doem) in the description of the ancestral claim.
66
[Thai numeral 54]. Someone buys land for a house or garden that overlaps (with land claimed by his neighbor). (Both parties) knew and no one objected. There was no notification of officials. Afterwards there is controversy. If a man, wife, child, elephant, horse (or) buffalo dies, that is the karma of the deceased. Thammasat gives no punishment because there was no notification at first.
If both parties know of conflicting claims to land but do not notify the appropriate authorities, then a dispute arises and a person or animal dies, there is no legal recourse because there was no notification.
67
[Thai numeral 55]. Someone buys land for a house or garden. If (the claim to the land) overlaps (with someone else's claim and) one faction knows, (that faction) should have elders (or) officials go to announce the return of the land. The other side is arrogant, disdainful (and) refuses to return (the land) and puts in a wooden stake to mark the land. If a person, elephant, horse or buffalo of theirs(10) dies, have (the arrogant and disdainful faction) replace their loss(11) and levy a fine according to royal ordinance.
Also, (claims to) land for a house or garden overlap (and) one faction finds out the other faction won't listen (as above). If (you) investigate (and find that) (the claim to land of one faction) indeed overlaps (with the claim to land of the other faction) and (within) three days a person, elephant, horse or buffalo of theirs(12) dies, levy a fine (of) treble (damages). If (a person or animal) dies (within) five days, levy a fine (of) double (damages). If (a person or animal) dies (within) seven days, fine the cost of the damage. If (a person or animal) dies (within) three months, levy a fine (of) half (the damages). If (a person or animal) dies within one year, (levy a fine of) one third (the damages). When levying a fine use the cost of the dead (person or animal) to determine the fine. If (a person or animal) dies within three years, have (them) make amends with flowers.
If one party, learning of conflicting claims to land, notifies the appropriate authorities and sends elders to reclaim the land from the other party, but the second party refuses and then a person or animal belonging to the first party dies, the second party must replace the deceased person or animal and pay a fine. If after investigation it is determined that there are indeed conflicting claims and a person or animal belonging to the first party dies within three days of the notification, the second party will be fined treble damages. The second party's fine grows smaller as the length of time between the notification and the death increases.
69
[Thai numeral 57]. Someone buys land to farm and build a house. (The claimed land) overlaps (with a neighbor's claim), but there as not yet any danger (of death of a person, elephant, horse or buffalo). Have officials (or) elders go to prohibit them. If (they) do not listen, fine (them) for the transgression.
Furthermore, if they do not know of the overlapping (claims to land), (you) can't find elders and (someone) dies, have the person (whose claim) overlaps simply help to burn the ghost(13) because (you) can find no fault. It was his karma.
Where there are conflicting claims to land but not yet an open dispute, officials or elders should prohibit an open dispute. Those who disregard the prohibition will be fined. Where the parties do not yet know of their conflicting claims to land and a person or animal dies, there is no liability.
70
[Thai numeral 58]. Someone buys land to farm and (his claim) overlaps (his neighbor's claim). The owners see (that their claims to the land) indeed overlap and have elders (or) officials go announce the return (of) that land, then (the owners) mark the boundary. If a slave, a person, an elephant, a horse, a cow (or) a buffalo dies (some) other day, do not punish (them) at all.
If conflicting claims to land are peaceably resolved and later a person or animal dies, there is no liability.
Comment
Sections 66, 67, 69 and 70 all deal with situations where one party has bought land and it is later discovered that a portion of the land he claims is also claimed by a neighbor. The probability of feuding in such a situation is implicit, but never explicitly stated. Counterbalancing this potential for feuding is a very Thai-like preference for surface orderliness and deference to authority. Officials must be consulted. Arrogance and refusal to submit to authority apparently are independent factors which may weigh heavily in the decision on the merits (§ 67, first paragraph). This is anathema to Western systems of law, but anyone familiar with modern Thai society (and, one is tempted to add, human nature) has witnessed it. Perhaps Thai law, left to its own devices, would have developed along lines which placed more emphasis on outward peace and tranquility in the community and submission to authority than on the "correct" solution to a given legal problem.
The diminution of damages as time passes under § 67 seems to represent a policy similar to our statute of limitations, but it is probably more closely related to our notion of proximate cause. The reasoning behind § 70, which is aimed at avoiding over-inclusiveness, seems to be modern legal reasoning. Previous knowledge or scienter is obviously an important element in § 66, 69 and 70, but its significance in § 67 is lost to the modern lawyer.
LAW OF THE THREE SEALS, CRIMES AGAINST GOVERNMENT BOOK
47
[Thai numeral 47]. Someone clears land to farm. Thammasat says to go inform the local officials, have (them) go to look at the cleared land so (they will) know how much (land was cleared). Have the officials write a document and leave it with the person who cleared (the land) so they will know that person lives at that house and (the land) was newly cleared in that canton in that year. If any person surreptitiously clears (land) following only his own wishes (and) does not inform the officials, whether he is caught (in the act) or someone comes to complain, thammasat says punish (him) six ways. If the king forbids you to kill (him), hang the tax which (he) avoided (around his neck) for three days to disgrace (him), then fine him quadruple (the amount of the tax).
A person who clears land to farm must notify the appropriate authorities. Anyone who clears land to farm without such notification commits a crime subject to severe, perhaps capital, punishment.
Endnotes:
(8) This section is cited in many modern supreme court prescription decisions. E.g. Dika 1000\2493 (1950), 181\2508 (1965), 756\2509 (1966), 812\2509 (1966).
(9) The land goes to the person with ancestral rights.
(10) I.e. the faction which announced the return of the land.
(11) I.e. the dead person or animal.