Section 438 — Form of compensation — restitutio in integrum
Statutory text (Thai original)
ค่าสินไหมทดแทนจะพึงใช้โดยสถานใดเพียงใดนั้น ให้ศาลวินิจฉัยตามควรแก่พฤติการณ์และความร้ายแรงแห่งละเมิดอนึ่ง ค่าสินไหมทดแทนนั้น ได้แก่การคืนทรัพย์สินอันผู้เสียหายต้องเสียไปเพราะละเมิด หรือใช้ราคาทรัพย์สินนั้น รวมทั้งค่าเสียหายอันจะพึงบังคับให้ใช้เพื่อความเสียหายอย่างใด ๆ อันได้ก่อขึ้นนั้นด้วย
Verbatim from the Royal Gazette / Office of the Council of State
คำแปลภาษาอังกฤษ
The Court shall determine the manner and the extent of the compensation according to the circumstances and the gravity of the wrongful act. Compensation may include restitution of the property of which the injured person has been wrongfully deprived or its value as well as damages for any injury caused.
This English translation is provided for reference only and has not yet been firm-verified — always rely on the Thai original.
Firm annotation
Section 438 articulates the restitutio in integrum principle — the goal of compensation is to make the plaintiff whole, no more and no less. The court has wide discretion on how to calculate (replacement cost, diminished market value, loss of use, repair cost). Recent SC decisions 6683/2537 (vehicle damage claim by borrower without standing) and 2359/2567 (director's duty of non-competition) explore the boundaries. For property loss, courts increasingly award not just repair cost but also "loss of use" damages (rental value of a damaged vehicle during repair).
Why this matters in practice
Lawyers: Section 438 grants the court broad discretion — not the claimant — to decide both the form (in-kind or money) and the amount of compensation. Where in-kind restoration is impossible or impractical, money is awarded. The 'gravity of the wrongful act' is a statutory factor: more egregious conduct justifies higher awards within the range of proved loss. Claimants must lead evidence of actual loss; the court cannot simply assume damage. Laypersons: If someone causes you loss, a court will decide what you should receive and in what form — usually money. The more serious the wrongdoing, the more the court may award within the limits of what you can prove.
Legislative history
Part of the original Civil and Commercial Code codification; no major subsequent amendment.
Supreme Court decisions interpreting this section
-
Supreme Court Judgment No. 2738/2554 (2011)
A bank that pays on a forged signature commits a tortious act; section 438 compensation takes the form of restoring the wrongfully debited amount with interest, and a contractual exclusion of liability for employee error cannot override this obligation.
A bank employee negligently certified and paid a cheque bearing a forged drawer's signature, debiting the plaintiff's current account. The Court held the bank had paid on the forged instrument tortiously and without basis; the appropriate form of compensation under section 438 was restoration of the amount wrongfully debited to the plaintiff's account, together with interest. A contractual clause purporting to exclude the bank's liability for employee error in processing cheques could not override the bank's section 438 obligation.
-
Supreme Court Judgment No. 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.
Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.