Olivier de Bernon
Musée Guimet, Paris
The legal theory of « force majeure » (bhaya) is used in limited contexts in the Siamese Codes. It appears only in three places: when referring to the « contract of pawning an object » (Phra Ayyakan Bet Set, 64) ; when referring to the « contract of making a deposit » (Phra Ayyakan Bet Set, 68), and when referring to the « contract of renting a junk » (Phra Ayyakan Bet Set, 73). In the framework of each of these contracts, if the item that had been pawned or deposited were destroyed, or if the cargo of the junk was lost due to « force majeure », the contractant with whom the item had been pawned or deposited, or the captain of the junk, would be freed from his commitment toward the owner of the item, or toward the owner of the cargo.
The technical notion of « force majeure » (bhaya) – as used in the the Siamese Codes as well as in the Khmer Codes – refers to « four fears or dangers » : rājabhaya « fear of the ruler », i.e. the fear, danger, or risk, that the item or cargo might be confiscated by the king, or captured or destroyed by the king’s enemies ; corabhaya « fear of thieves », i.e. the fear, danger, or risk, that the item or cargo might be stolen by armed men ; aggibhaya « fear of fire », i.e. the fear, danger, or risk, that the item or cargo might be burned in a fire or by lightning ; udakabhaya « fear of water », i.e. the fear, danger, or risk, that the item or cargo might be destroyed by flood or in a shipwreck.
The classification and terminology of these four bhaya is borrowed directly from Buddhist scriptures, although Pali literature usually mentions ten different bhaya (Cuḷavagga, p. 429; Mahāvagga, p. 331) or even seventeen bhaya (Milindapañhā, p. 196). Even if the various lists of bhayas known in the canon always begin with the four bhayas mentionned in the Siamese and Khmer Codes, it seems that the restricted set of these four bhayas exists only in Southeast Asian legal texts.
It is worth observing is that Siamese legal literature devoted to maritime trade belongs to the most recent part of the Codes. Therefore, it is not derived from earlier Mon or Burmese literature, and has no model in previous dhammasattha texts. Interestingly enough, later Siamese lawyers, whoever they were, turned to Buddhist Pali technical vocabulary, and transformed a well known moral or religious concept into a new precise legal understanding in order to forge the required new concept of « force majeure ».
(Presented in the 2012 Chulalongkorn-EFEO International Conference on Buddhist Studies : Imagination, Narrative, and Localization, 6-7 January 2012, Chulalongkorn University, Bangkok, organized by Faculty of Arts and Institute of Thai Studies, Chulalongkorn University In conjunction with The Buddhist Studies Group, EFEO)