DOI: 10.14457/tu.the.2019.1016
title: Partial rescission of sale contract: the adoption of the concept of international instruments to the sale contract law

description: In the sale transaction, there are many types of sale that the parties agree to have the sale contract to contain the performance of contractual obligation to be divided into separate performances or instalments. In this circumstance, when there is a non-performance or impossibility to be performed of any obligation which affects only a particular term, the parties should be able to cancel or end only that defaulting part without disturbing other parts of the contractual terms those are completely detached to such defaulting part and still be able to perform as normal. With this being said, enabling the party to be able to rescind the contract only to the term which is in default has become beneficial for the parties of the contract those normally are business partners. Since good relationship between the business partners is one of the most important factors for successful businesses, therefore, in the event of the breach of any contractual obligation which affects only an individual term without any effect to other terms, the party should be allowed to rescind the contract for the affected part and reserve other part to be performed or fulfilled as agreed. Although partial rescission can be done in practice upon the agreement of both parties, in order to avoid doubts, uncertainty and confusion of the parties, having explicit legal provisions that stipulated the principle, criteria and consequence of the partial rescission would help the parties to have clearer picture as well as legal guidelines those can be useful to comply in their actual practice for the sale contract which is the area to focus in this study. Since the Thai Civil and Commercial Code (Thai CCC) neither explicitly stipulates the general principle of nor expressly allows the action of partial rescission of the sale contract, this study attempts to find the most appropriate solutions to unblock the limitation or unclear principle of the Thai contract law by studying and analysing the concepts of partial avoidance provided in the UN Convention on Contracts for the International Sale of Goods 1980 (CISG) and the concept of termination of contract under the UNIDROIT Principles of International Commercial Contracts (UNIDROIT Principles) those are the uniform rules that provide legal frameworks and guidelines for sale and commercial related transactions. Although, the CISG and the UNIDROIT Principles are international regimes, the principles provided by these uniformed rules are widely adopted in many countries, regardless of the countries of the parties as well as their economic and legal systems, to apply nationally with modernized commercial contracts.The results from the comparative study between the principles of contract avoidance under the CISG in conjunction with the termination of contract under the UNIDROIT Principle and the Thai CCC, by particularly focusing on the comparison between significant factors consisting of (1) legal grounds for contract avoidance of the CISG, termination of contract under the UNIDROIT Principles as well as rescission of contract under the Thai CCC, (2) criteria of the contract which can be ended or cancelled partially, (3) key features of partial discharge of contract, (4) the effect of the end of contract provided by each international instrument and the Thai CCC and (5) responsibility on the damages after the contract has ended, reveal that the Thai law has similar legal grounds for the party to declare the contract to be ended, principles concerning the effects and the responsibility of the defaulting party on the damages arisen after the contract has ended, as those provided by the CISG and the UNIDROIT Principle. When considering on the negative effect to the Thai law if the provision that allow partial rescission for the sale contract is included, there is no negative effect can be found. On the contrary, it would be more beneficial for the contractual parties to have a clear principle for them to rely on and could potentially eliminate the confusion and doubt. Hence, the study recommends to include the provisions regarding to the partial rescission to the contract of sale by providing criteria, scope and effect of partial rescission of the sale contract; which contain divisible obligations as well as instalments sale; by adopting the partial avoidance principle stipulated in Article 73 of the CISG as well as the effects of termination under Article 81 of the CISG.