Earnest (Section 377-378)

Earnest is something given as evidence showing that the contract had been made aiready or as a security to perform as to the contract (Section 377) ; pursuant to the statement in section 377 showing that the property given as earnest must be made on the day making the contract The property promised to give on the next day is not earnest, See Deega No. 513/2538,1056/2541.

Judgement of Deega No 513/2538 : statement in Civil and Commercial Code, Section 377 prescribed that "on entering into a contract, if any thing given as earnest" showing that the earnest must be property given on the day making contact, not the property given on other days.

Contract to Purchase and Sale for the land disputed made on March 6th,1989, specified the statement that "on entering into a contract,the person specified to buy paid cash 200,000 baht, and on March 20th ,1989 paid another 3,300,000 bash, cash amount 200,000 was only deposit money,another 3,300,000 baht was not deposit money,cash amount. 200,000 was only deposit money,another 3,300,000 baht was not deposit money,but it was just some part of advanced payment which would be aid thereafter the day of making contract only.

When the matter of fact known that the plaintiff was a tort-feasor,then the defendant has his right to confiscate the earnest amount 200,000 baht pursuant to the contract, the another amount 3,300,000 baht that the plaintiff gave to the defendant for some part of advanced land price, then the defendant has his duty to return to the plaintiff with 7.5% interests per year from the time receiving such money.

Judgement of Deega No. 1056/2541 : Although the contract of land sale between the plaintiff and the defendant specified that the plaintiff delivered the house and the land disputed to the defendant as earnest for buying the defendant' s house and land, but the plaintiff was still not given such house to the defendant at all, then such house and land were not earnest. So, even the plaintiff and defendant each party has to transfer the ownership in the house and the land to each other with its nature as contract of property exchange which had to be enforced pursuant to the provisions of civil and commercial code, section 518-520, the defendant was in the status as the buyer for house and land disputed, while the plaintiff was the seller, when the defendant transferred his house and the land disputed to his possess already, then the defendant had his duty to pay the price for the house and the land disputed to the plaintiff.

Judgement of Deega No. 66/2542 : Money pursuant to the guarantee agreement of the bank which was used as a security for contract of hire by the defendant that the plaintiff received as payment from the bank, which specified in the contract to spend this money as a security for hiring performance of the defendant pursuant to the contract, then such money as mentioned in the guarantee agreement of the bank was not the earnest that plaintiff would confiscate when the defendant breached the contract, but it was deemed part of damages of breaching the contract, then the defendant had his right to bring this to deduct with total damages which was the fine defined by the court for the plaintiff pursuant to civil and commercial code, section 380, paragraph 2.

Note : The money pursuant to the guarantee agreement delivered to the plaintiff by the bank was not earnest, then the plaintiff has no right to confiscate pursuant to section 378(2), then it must be deducted from the fine specified by the court.