Article 438: Form of compensation, restitutio in integrum

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 2738/2554 (2011)

   Where a bank officer is grossly negligent in certifying a cheque bearing a forged drawer signature, the bank pays and debits the customer account tortiously, and a clause in the account-opening application excusing the bank where the customer was careless in keeping its cheques cannot be used to place the customer in the estoppel position at the end of section 1008 paragraph 1 so as to escape that liability. But the measure of compensation is not automatic restitution of the sum debited: under sections 223, 438 and 442 the court weighs which side caused the loss and by how much. Here the customer own employee, who kept the chequebook and knew the drawer had been forced but did not check it, was negligent no less than the bank, and only half the debited sum was awarded.

   Two cheques were stolen from a desk drawer in the plaintiff company office; one was presented with a forged drawer signature and forged company seal, the bank officer certified it, and 200,000 baht was debited from the current account. The Supreme Court held that, the signature being forged, the bank could not rely on the cheque against the customer save under section 1008; that the officer certification was gross negligence, making the payment and the debit a tort; and that the exclusion clause in the account-opening application could not put the customer in the section 1008 estoppel position so as to release the bank. It then apportioned fault under sections 223, 438 and 442: the plaintiff employee who kept the chequebook knew the drawer had been forced and failed to check it, which prevented the loss from being stopped in time, and was negligent no less than the bank. The Court awarded 100,000 baht, half the sum debited, with interest at 7.5 percent a year from the date of the tort.

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2. Arrêt de la Cour suprême n° 14919/2557 (2014)

   A civil claimant joining criminal proceedings to recover under section 438 bears the full burden of proving each head of damages; the court cannot deny them the opportunity to adduce evidence on compensation.

   The co-plaintiff sought funeral expenses, costs of managing the deceased's estate, and loss of dependency under section 438 in criminal proceedings. The Court held that although the law allows a civil claimant to file in the criminal case, the claimant bears the burden of proving the specific heads of damages claimed. The trial court's failure to allow the co-plaintiff to adduce evidence on damages was a procedural error requiring remedy.

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Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.